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[2024] ZALMPPHC 130
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Educational Journey NPO v National Lotteries Commission (Leave to Appeal) (10737/2023) [2024] ZALMPPHC 130 (9 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 10737/2023
(1)
REPORTABLE:
YES
/
NO
(2)
OF INTEREST TO THE JUDGES:
YES
/
NO
(3)
REVISED
DATE: 09/09/2024
SIGNATURE
In the matter between:
EDUCATIONAL JOURNEY
NPO
APPLICANT
and
NATIONAL LOTTERIES
COMMISSION
RESPONDENT
JUDGMENT
[LEAVE TO APPEAL]
This judgment is
delivered electronically by way of dispatching same to email
addresses of the parties' legal representatives and
publishing same
on SAFLII. The date of delivery of this judgment is deemed to be 9
September 2024.
SIKHWARI AJ
[1]
This court has previously granted an order
dismissing the applicant's application in the main case. The
applicant sought relief
in the following terms:
1.
That the respondent's decision of
declining applicant's application for access to public fund held at
National Lottery Distribution
Fund (NLDTF) is reviewed and set aside.
2.
That the applicant's application for
access to funding is granted.
3.
Directing that the respondent ts to
pay costs of this application.
4.
Granting further and/or alternative
relief that this honourable court deems appropriate.
[2]
Aggrieved by the order- of this court, the
applicant filed an application for leave to appeal. It is trite law
that application
for leave to appeal is regulated in terms of
Section
17
of the
Superior Courts Act 10 of 2013
, which provides that:
17.(1)
Leave to appeal may only be
given where the judge or judges concerned
are of the opinion that-
(a)
(i)
the appeal would have
a
reasonable
prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 156(2)(a)
; and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the
case, the appeal would lead to a just and prompt
resolution of the real issues between the parties."
[3]
The courts have interpreted the above new
provisions of the Act in several decisions and distinguished same
from the previous test
of "reasonable prospects of success"
on appeal. The use of the word
"would"
in
section 17
(1) (a) of the Act above
in the new test has risen the bar to a very higher standard in that
the test now is that the applicant
for leave to appeal must
demonstrate some level of certainty that the appeal may succeed, NOT
that it may succeed, NOT that it
is arguable, NOT that another court
may arrive at a different decision.
[4]
The new test in terms of
section 17
(1) (a)
of the Act was first confirmed, and explained thoroughly, in the case
of
The Mont Chevaux Trust (112012/28) v
Tina Goosen
&
18
Others 2014 JDR 2325 (LCC) at para 6,
where
Bertelsman J held that:
"It is clear that
the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new
Act. The former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different
conclusion, see
Van
Heerden v Cronwright
&
Others
1985 (2) SA 342
(T) at 343H.
The use of the word "would" in the new statute
indicates a measure of certainty that another court will differ from
the
court whose judgment is sought to be appealed against."
[5]
The Mont Chevaux Trust
test
on leave to appeal was later followed by the court as good current
law in the case of
Acting National
Director of Public Prosecutions and Others v Democratic
Alliance
In
Re:
Democratic Alliance v Acting National
Director of Public Prosecutions and Others, (19577/09) [2016] ZAGPPHC
489 (24 June 2016) at
para 25
, the full
court of the Gauteng Division in Pretoria, per Ledwaba DJP, Pretorius
J and Mothle J (as he then was) held that:
"The
Superior Courts
Act has
raised the bar for granting leave to appeal ..."
[6]
In the
case of
Fair-Trade Independent
Tobacco Association v President of the Republic of South Africa and
Another (2168812020) [2020] ZAGPPHC 246
(24 July 2020) at para 6,
the
full court of the Gauteng Division in Pretoria per Mlambo JP, Molefe
J and Sasson J considered the above-stated decisions on
interpreting
section 17 (1) (a) of the Act, and correctly held that:
"As such, in
considering the application for leave to appeal, it is crucial for
this court to remain cognizant of the higher
threshold that needs to
be met before leave to appeal may be granted. There must exist more
than just a mere possibility that another
court, the SCA in this
instance, will, not might, find differently on both facts and law. It
is against this background that we
consider the most pivotal grounds
of appeal."
[7]
The aforesaid new test was further
confirmed as good current law by the Supreme Court of Appeal (SCA) in
respect of
section 17
(1) (a) of the Act in the case of
Smith
v
S 2012
(1) SACR 567 (SCA) at para 7,
where
Plasket AJA held that:
"What the test of
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law that
a court of appeal could
reasonably arrive at a conclusion different to that of the trial
court. In order succeed, therefore, the
appellant must convince this
court on proper grounds that he has prospects of success on appeal
and that those prospects are not
remote but have a realistic chance
of succeeding. More is required to be established than that there is
a mere possibility of success,
that the case is arguable on appeal or
that the case cannot be categorized as hopeless. There must, in other
words, be a sound,
rational basis for the conclusion that there are
prospects of success on appeal."
[8]
In another case of
MEC
of Health, Eastern Cape v Mkhitha and Another (1221/2015)
[2016]
ZASCA 176
(25 November 2016, at paragraphs 1-6 and 17,
Schippers
AJA reaffirmed the SCA's disapproval to the granting of leave to
appeal where the new threshold of a higher test was not
met when the
unanimous judgment of the SCA held that:
"[16]
Once again it is necessary to
say
that leave to appeal, especially to
this court, must not be granted unless there truly is a reasonable
prospect of success.
Section 17
(1) (a) of the
Superior Courts Act 10
of 2013
makes it clear that leave to appeal may only be given 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 it
should be heard.
"[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 prospect of success on
appeal."
[9]
The essence of the application for leave to
appeal is that this court has erred by making a finding that the
respondent has no discretion
to condone the applicant' was held that
the respondent has authority to exercise its discretion on the
application, notwithstanding
the shortcomings on the audited
statements. The material principle is the authority of the respondent
to exercise discretion, which
may include the decision to condone the
shortcomings.
[10]
This court relied on the decision in the case of
Dr JS Moroka
Municipality and Others v Betram (Pty) Limited and Another (93712012)
[2013] ZASCA186;
[2014] 1 All SA 545
(SCA) (29 November 2013) at para
12,
Leach JA where it was held that:
"As a general
principle an administrative authority has no inherent power to
condone failure to comply with a peremptory requirement.
It only has
such power if it has been afforded the discretion to do so."
[10]
In this application for leave to appeal, the applicant referred this
court to the judgment in
Alpha Omega Youth Outreach v National
Lottery Commission (2019] ZAECELLC 30 (12 November 2019) at para 13 &
15
where it was held that the respondent does have the power to
exercise its discretion in circumstances where there are shortcomings
in the application for financial assistance from the Lottery
Commission. This was conceded in the
Alpha Omega Outreach
case.
[11]
The distinguishing factor between
Dr JS Moroka Municipality
case
and
Alpha Omega Otreach
case is that the former was stressing
the general principles whereas the latter is expressing the
exceptional or specific case in
which the power to exercise
discretion should be invoked irrespective of the nature of the
shortcomings in the application. The
exercise of this discretion may
or may not result in the granting of condonation; as opposed to
complete disregard of the application
by merely detecting a
shortcoming in the application relating to the qualifications of the
auditors.
[12]
In the-circumstances, we are seated with two conflicting decisions in
the same issue. In the
circumstances, there are other compelling
reasons to grant the leave to appeal. Accordingly, the application
for leave to appeal
to the full court of the Limpopo Division sitting
in Polokwane must succeed. Costs will be costs in the appeal.
[12]
Accordingly, the following order is
made:
1.
That the application for leave to
appeal is granted to the full court of this division, Limpopo
Division, Polokwane.
2.
Costs of the application for leave
to appeal are costs in the appeal.
MS SIKHWARI
ACTING JUDGE
OF THE HIGH COURT OF
SOUTH AFRICA,
LIMPOPO DVISION,
POLOKWANE
APPEARANCES:
For
Applicant
Adv
NK Tsatsawane SC
Adv
Chauke
Instructed
by
Diale
Mogashoa Attorneys
c/o
Verveen Attorneys
For
Respondent
Adv
RJ Rasesemola
Instructed
by
Gomba
Attorneys
c/o
Maswangani (M) Attorneys
Date
of Judgment
09
September 2024