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[2019] ZAECMHC 21
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Member of the Executive Council for Health, Eastern Cape v Neliswa Mbola obo Asavela Mbola (4521/18) [2019] ZAECMHC 21 (18 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case No.: 4521/18
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE
Applicant
and
NELISWA
MBOLA obo ASAVELA MBOLA
Respondent
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
(
EX-TEMPORE
)
MBENENGE
JP
[1]
Even though this is an application and the parties should ordinarily
be referred to
as the applicant and the respondent, respectively, I
will for purposes of this judgment, use the appellations by which
they were
referred to during the related action proceedings.
[2]
The defendant seeks leave of this Court to appeal against my judgment
holding the
defendant liable in 100% of proven or agreed damages to
the plaintiff, in her representative capacity and an order granting
other
ancillary relief. The judgment was delivered on 6
December 2018.
[3]
The grounds of the application need no repetition as indeed they are
succinctly set
out in the relevant notice.
[4]
In terms of
section 17
of the
Superior Courts Act 10 of 2013
leave
may only be give where the judge concerned is of the opinion that the
appeal would have a reasonable prospect of success,
or there is some
other compelling reason why the appeal should be heard.
[5]
In
MEC
for Health, Eastern Cape v Mkitha
[1]
the
Supreme Court of Appeal held that an applicant for leave to appeal
must convince the court on proper grounds that there is a
reasonable
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.
[6]
I listened carefully to the argument presented to me on behalf of the
parties this
morning. I cannot pitch the defendant’s
cause in this instance as being higher than that of an arguable
case.
In my view, the application does not meet the requisite
threshold.
[7]
I am accordingly of the view that there is no reasonable prospect or
realistic chance
of the appeal sought being successful.
[8]
In these circumstances,
the application
for leave to appeal is dismissed with costs.
______________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Counsel
for the applicant (defendant):
EAS
Ford
SC (with
V Kunju
)
Instructed
by
: The State Attorney
Mthatha
Counsel
for the respondent (plaintiff):
J
Wessels
SC
Instructed
by
:
Nonxuba Inc.
Johannesburg
c/o
Potelwa & CO
Mthatha
Date
heard
: 18 March 2019
Date
delivered
: 18 March 2019
[1]
(
1221/2015)
[2016] ZASCA 176
(25 November 2016).