the reasons for my findings . The Respondent opposes the application for leave
to appeal.
[2] The facts of the matter are set out in the main judgment and will not be repeated
herein.
[3] The grounds of appeal are set out in detail in the notice of appeal and I have
taken note of the points raised and carefully considered each.
Test to be applied
[4] It is relevant to firstly deal with the requirements for leave to appeal to be granted.
Section 17(1) of the Superior Courts Act 10 of 2013 provides as follows:
“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) …”
[5] Therefore in terms of section 17(1) (a)(i), leave to appeal may only be given
where the court is of the opinion that ‘ the appeal would have a reasonable
prospect of success ’, or in terms of section 17(1) (a)(ii), if there is ‘ some other
compelling reason why the appeal should be heard ’. 1
[6] In considering the test the court in S v Smith 2012 (1) SACR 567 stated:
“[7] 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 to 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 possibi lity of success, that the case is arguable on
appeal or that the case cannot be categorised as hopeless.
There must, in other words, be a sound, rational basis for
1 In Mont Chevaux Trust v Tina Goosen 2014 JDR 2325 (LCC) , it was held that the threshold for
granting leave to appeal is now higher under the Superior Courts Act than it was under the
previous regime. A mere possibility of success is not sufficient; a reasonable prospect must exist
that another court would come to a different conclusion.
the conclusion that there are prospects of success on
appeal .” 2 (Emphases added)
[7] The test is summarised by the Supreme Court of Appeal in Fusion Properties
233 CC v Stellenbosch Municipality [2021] ZASCA 10 (29 January 2021) as
follows –
“[18] Since the coming into operation of the Superior Courts Act, there
have been a number of decisions of our courts which dealt with
the requirements that an application for leave to appeal in terms
of ss17(1)(a)(i) and 17 (1)(a)(ii) must satisfy in ord er for leave to
be granted. The applicable principles have over time
crystallised and are now well established. Section 17(1)
provides, in material part, that leave to appeal may only be
granted ‘Where the judge or judges concerned are of the
opinion that -
(a) (i) the appeal would have a reasonable prospect of
success ; or
2 The National Credit Regulator v Lewis Stores (Pty) Ltd (937/18 ) [2019] ZASCA 190 the court
held:
“[40] Under ss 17(1) and (2) of the SC Act, the judge or judges who heard the case
at first instance may grant leave to appeal, if they are of the opinion that the
appeal would have reasonable prospects of success, or that there is some
other compelling reason w hy the appeal should be heard.”
(ii) there is some other compelling reason why the appeal
should be heard, including conflicting judgments on
the matter under consideration..’)
It is manifest from the text of s 17(1)(a) that an applicant seeking
leave to appeal must demonstrate that the envisaged appeal
would either have a reasonable prospect of success, or,
alternatively, that ‘there is some compelling reason why an
appeal should be heard’. Accordingly, if neither of these discrete
requirements is met, th ere would be no basis to grant leave.”.
(Own Emphases)
Turning now to the applicant’s grounds for appeal.
First Ground - Reasonable Prospect of a Different Conclusion
[8] The Applicant’s contention on the first ground of appeal is that the main judgment
deals with an abstract enquiry as to whether the procedural requirements of
section 53 of PAIA had been met. This enquiry, the applicant argues, was both
unnecessary and impermissible.
[9] The applicant with reference to Fortuin v Cobra 2010 (5) SA 288 (ECP) , referred
to in the main judgement , argues that this is authority that the requirement in
section 53, to communicat e the right sought to be protected to the party from
whom the information is requested, is not a formalistic requirement but a means
to an end, i.e. to permit for the request to be properly evaluated. Because, so the
applicant argues, the respondent knew why the applicant sought the information
that it did, the requirement was met and it was thus incorrect to determine
whether the appli cant had complied with the requirements.
[10] In Fortuin supra it is explained that the requirements of section 53 are peremptory
and must be complied with. I do not agree that considering whether the
requirements of section 53 had been met was unnecessary or not permitted. It is
only if the peremptory requirements have been met that a court can be in a
position to determine whether the applicant reasonably requires the information
in order to protect the specific right(s) tha t the applicant seeks to enforce.
[11] Section 50(1)(a) requires the applicant to demonstrate that the record sought is
required for the exercise or protection of its rights. Section 53(1)(d) in turn
explains how the requirement is to be met. To do so the requester of the
information must first identify the right it is seeking to protect or enforce and
secondly, the applicant must provide an explanation of why the information is
required for the protec tion of that right3. The applicant complied with neither of
these jurisdictional requirements.
[12] This conclusion is by itself fatal to the application for leave to appeal. It is also for
this reason that I am of the view that the applicant has little or no prospect of
3 The applicable authorities are discussed in main judgment and not repeated herein.
overcoming the hurdle that faces it, which is to convince another court that its
application complied with the peremptory requirements of PAIA.
The second ground: The supposed probability of harm
[13] In its second ground of appeal the applicant argues that my finding, that the
respondent’s version that harm may be done to the respondent, if it is released
to the applicant, is not “ so far -fetched that it should be rejected ” is incorrect. The
applicant argues that it is “ likely that another court may find that the respondent’s
version is entirely far -fetched”. As is evident from the authorities referred to above
to be granted leave the applicant must establish that there is a reasonable
prospect or realistic chance of success on appeal. A mere possibility of success
is not enough. The arguments now raised should have been raised by the
applicant in its replying affidavit. The applicant should have presented a version
as to why the respondent’s version is so far -fetched that it can be rejected in the
pleadings when it had the opportunity to do so. It elected not to do s o.
[14] Since the proceedings before the Court were motion proceedings, the Court was
obliged to apply the Plascon Evans rule and in doing so no grounds to deviate
from its trite principles were established by the applicant .4 I am thus not
convinced that there is any rational basis for the conclusion that the applicant
has any prospects of success on appeal on this ground either .
4 See MEDIA 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017(2) SA 1
(SCA) at p17 para 36, where the Supreme Court of Appeal restated the trite principles
For the Respondent: Adv Werner Lüderitz SC
Instructed by
Werksmans Attorneys
Date of submissions: Applicant 14 January 2025
Respondent 20 January 2025
Date of judgment: 24 January 2025