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[2022] ZAFSHC 68
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Mofokeng v Free State Gambling, Liqour and Tourism Authority (540/2021) [2022] ZAFSHC 68 (2 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 540/2021
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MAJORO
MARVIN
MOFOKENG
Applicant
And
THE
FREE STATE GAMBLING, LIQUOR
AND
TOURISM
AUTHORITY
Respondent
CORAM:
C REINDERS, J
HEARD
ON:
29 OCTOBER 2021
DELIVERED
ON:
2 FEBRUARY
2022
APPLICATION
FOR LEAVE TO APPEAL
[1]
This is an application for leave to
appeal against the whole of the judgment and order granted by Parks
AJ on 14 May 2021.
[2]
The applicant as cited above was the
respondent in the application before Parks AJ, whilst the respondent
herein was the applicant.
Reference to the parties will be as it
appears in this application. The applicant filed a notice on 4 June
2021 setting out the
grounds of appeal. I do not intend to repeat
these grounds verbatim. In heads of argument on behalf of the
applicant, the gist
thereof was summarised to be that the court erred
in several ways in respect of the two main issues it was called upon
to adjudicate,
to wit the court's jurisdiction to hear the matter and
the question of the lawfulness of the applicant to make certain
deductions
from the respondent's salary.
[3]
The parties were ad idem in respect
of the test to be applied by me. An application for leave to appeal
must be considered in accordance
with the provisions of
s17
of the
Superior Courts Act, 10 of 2013
.
The
applicant relied on both
s 17(1)(a)(i)
and (ii) of the Act.
In terms of
s17
(1) leave
to appeal may only be given if I am of the opinion that-
"(a)(i) the appeal
would
have a reasonable prospect of success; or
(iii)there is some other
compelling reason why the appeal
should
be heard, including
conflicting judgments on the matter under consideration." (my
emphasis)
[4]
The threshold that an applicant in
an application for leave to appeal must meet to be successful was
confirmed (with reference to
S
v
Smith
2012 (1)
SACR
567
(SCA))
in
MEC
for
Health,
Eastern
Cape
v
Mkhitha
(1221/15)
[2016] ZASCA 176
(25 November 2016) at para [17].
"An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There
must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal."
[5]
I have perused the papers before me,
including the judgment of Parks AJ, the grounds for the application
for leave to appeal and
submissions by the legal representatives as
per heads of argument and orally before me. Having done so, I am not
of the opinion
that there is a reasonable prospect of success in that
another court would come to a different conclusion, nor that there
are compelling
reasons to grant leave.
[6]
Consequently the following order
will issue:
The application for leave
to appeal is dismissed with costs.
C.REINDERS,
J
On
behalf of the applicant:
Mr D
Qwelane
Qwelane
Theron & Van Niekerk Inc
BLOEMFONTEIN
On
behalf of the respondent:
Adv S
Grabler SC
Instructed
by:
Kramer
Weihmann Inc
BLOEMFONTEIN