Summary of Judgment

1. Introduction

This judgment concerns an application for leave to appeal brought in the Gauteng Division of the High Court, Pretoria. It was heard and decided after the court had previously delivered a substantive judgment and order on 17 June 2022, which included an order of eviction and adverse costs orders on the attorney-and-client scale, as well as the dismissal of a counter-application.

The parties are cited as Clive Malcolm Ellison as the applicant, with Marhinus Jacobus Dewald Breytenbach N.O as the first respondent, Richard Hicken N.O (in their capacity as joint trustees of Clive Malcolm Ellison) as the second respondent, and the City of Tshwane as the third respondent. The application for leave to appeal was supported by grounds set out in an application dated 7 July 2022. The hearing took place on 7 September 2022, and the present judgment was delivered on 14 October 2022.

The general subject matter arises from an eviction dispute (and related counter-application) previously determined by the court on 17 June 2022. The present proceedings are confined to whether leave to appeal that decision should be granted under the statutory threshold in the Superior Courts Act 10 of 2013.

2. Material Facts

On 17 June 2022, the court granted an order which (among other relief) directed that the first respondent be evicted from premises described in the order; required the first respondent to vacate within 30 days; authorised the sheriff to evict the first respondent should voluntary vacation not occur; ordered the first respondent to pay costs on the attorney-and-client scale; and dismissed the first respondent’s counter-application with costs on the same scale.

Thereafter, an application for leave to appeal was brought. The court recorded that the application for leave to appeal was premised on grounds listed in the applicant’s application dated 7 July 2022. The court further recorded, as a matter relevant to the application, that the applicant failed to identify specifically which ground(s) in section 17 of the Superior Courts Act 10 of 2013 were relied upon in seeking leave.

For purposes of deciding leave to appeal, the court also recorded that the parties, at the request of the court, filed written heads of argument to facilitate a virtual hearing. The court considered the papers and heard counsel before reaching its conclusion on prospects of success.

3. Legal Issues

The central legal question was whether the applicant satisfied the statutory requirements for leave to appeal in terms of section 17(1) of the Superior Courts Act 10 of 2013, in particular whether the contemplated appeal would have a reasonable prospect of success, or whether another recognised basis in section 17(1) justified leave.

This was primarily a question involving the application of legal standards to the procedural posture and outcome of the matter, namely whether the threshold for leave to appeal—described in the authorities as a raised threshold under the Superior Courts Act—was met. The court’s task required an evaluative determination as to the existence of a reasonable prospect that another court would reach a different conclusion.

4. Court’s Reasoning

The court identified section 17(1) of the Superior Courts Act 10 of 2013 as the governing statutory provision. It set out the statutory formulation that leave to appeal may only be granted where the judge is of the opinion that (among other requirements) the appeal would have a reasonable prospect of success, or there is some other compelling reason for the appeal to be heard, and that other statutory conditions are met.

In addressing the operative threshold, the court relied on authority explaining that the enactment of the Superior Courts Act raised the threshold for granting leave to appeal. It referred to the formulation in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC), which contrasts the former approach (whether another court might come to a different conclusion) with the current statutory language indicating that another court would differ, signalling a greater degree of certainty than previously required. In that context, the court also referred to Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) in describing the former test.

The court further adopted the articulation of the leave-to-appeal standard (with reference to S v Smith 2012 (1) SACR 567 (SCA)) to the effect that an applicant must establish realistic, non-remote prospects of success, and that more is required than showing that a case is merely arguable or not hopeless. The court also cited the Full Court’s observation in Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another Case no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020) emphasising the need to remain cognisant of the higher threshold and that there must exist more than a mere possibility that another court will find differently on fact and law.

Against that legal framework, and after considering the papers and hearing counsel, the court concluded that there was a reasonable prospect that another court would come to a different conclusion regarding the order previously granted. Although the judgment noted that the applicant did not specify the particular statutory ground relied upon in section 17, the court nonetheless determined that the reasonable-prospects threshold was met on the facts and submissions before it, warranting the granting of leave.

5. Outcome and Relief

The court granted leave to appeal to the Full Court of the Gauteng Division.

The costs order made in the leave application was that leave to appeal was granted with costs in the appeal, meaning that the costs of the leave proceedings were directed to be costs in the appeal.

Cases Cited

The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC)

Van Heerden v Cronwright & Others 1985 (2) SA 342 (T)

S v Smith 2012 (1) SACR 567 (SCA)

Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another Case no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020)

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)

Superior Courts Act 10 of 2013, section 16(2)(a)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, applying the statutory standard in section 17(1) of the Superior Courts Act 10 of 2013 and the authorities on the elevated threshold for leave to appeal, there existed a reasonable prospect that another court would reach a different conclusion on the order made on 17 June 2022. On that basis, leave to appeal was granted to the Full Court of the Gauteng Division, with costs to be costs in the appeal.

LEGAL PRINCIPLES

The statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013 is higher than under the pre-existing approach, and requires more than a showing that another court might differ; the wording indicates that another court would differ.

An applicant for leave to appeal must demonstrate prospects of success that are realistic and not remote, and must provide a sound, rational basis for concluding that the appeal has reasonable prospects, rather than merely showing that the matter is arguable or not hopeless.

In determining leave to appeal, a court must remain cognisant of the elevated threshold and evaluate whether there is more than a mere possibility of a different outcome on appeal, having regard to both legal and factual dimensions where relevant.