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[2025] ZAGPPHC 119
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Member of the Executive Committee for Health, Gauteng Province v Alexander obo KSA (Leave to Appeal) (13494/18) [2025] ZAGPPHC 119 (5 February 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 13494/18
(1)
REPORTABLE:
NO
(2)
OF INTEREST
TO OTHER JUDGES: NO
(3)
REVISED:
YES
DATE:
5 February 2025
In
the matter between:
THE
MEMBER OF THE EXECUTIVE
APPLICANT
COMMITTEE
FOR HEALTH, GAUTENG PROVINCE
and
ALEXANDER:
BRENDELYN OBO KSA
RESPONDENT
LEAVE
TO APPEAL JUDGMENT
ALLY
AJ
[1]
This is an application for leave to appeal against the whole of my
judgment delivered on 31 October
2024. The application is opposed.
[2]
The parties were represented, as at the partial quantum trial by Adv.
M. Dlamini SC for the Applicant
and by Adv. S C Myburgh SC with Adv.
C. Jacobs for the Respondent.
[3]
The Applicant's three grounds of appeal amount to what Counsel for
the Applicant submitted are
misdirections or irregularities committed
by the Court in assessing the case and the evidence led. I do not
intend repeating the
grounds which can be found in the applicant's
notice of appeal
[1]
.
[4]
It has now become trite that the test in applications for leave to
appeal has changed to one which
is heightened
[2]
.
The Applicant is accordingly required to convince this Court that
another Court 'would' come to another conclusion.
The
Supreme Court of Appeal
[3]
has
stated the test to be as follows:
"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 possibility
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 the
conclusion that there are prospects of success on appeal."
[5]
It is appropriate to repeat the requirements for an application for
leave to appeal. Section 17
(1) of the Superior Courts Act
[4]
provides as follows:
"Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that-
(a)
(i) the appeal would have reasonable prospects 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)
...
(c)
..."
[6]
I have read and considered all the grounds of appeal as well as the
submissions of both Counsel
for the Applicant and Respondent and I
remain unconvinced that another Court would come to a different
conclusion, the application
thus having no reasonable prospects of
success and furthermore, that there are no compelling reasons why
leave to appeal should
be granted.
[7]
I need to deal with an aspect mentioned by Counsel for the
Respondent, namely, the conduct of
Counsel for the Applicant. Save to
state that I did not consider Mr Dlamini's conduct to be
unprofessional and or discourteous
towards the Court, what cannot be
gainsaid is that Mr Dlamini showed passion for his client's case but
not to a degree that can
be said to be disrespectful to the Court.
[8]
In respect of the costs of this application, the normal rule of costs
following the result will
be applied. The costs of two Counsel as at
trial is warranted and is determined to be at Scale B.
Accordingly,
the following Order will
issue:
a).
the application for leave to appeal is dismissed;
b).
the Applicant is to pay the costs of two Counsel on Scale B.
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The
date for
hand-down is deemed to be
5 February 2025.
Date
of virtual hearing: 31 January 2025
Date
of judgment: 5 February 2025
Appearances:
Attorneys for the
Plaintiffs:
W BOSHOFF
ATTORNEYS
laura@wb-inc.co.za
Counsel for the
Plaintiffs:
Adv. S.J.
Myburgh SC with Adv. C. Jacobs
Attorneys for the
Defendant:
MOTSOENENG BILL
ATTORNEYS INC
sylvia@mbainincorporated.co.za
Counsel for the
Defendant:
Adv. M.W.
Dlamini SC
[1]
Caselines: Section V1 - V12
[2]
The Mont Chevaux Trust v Tina Goosen 3 November 2014 (unreported
judgement LCC Case No: LCC14R/2014; The Acting National Director
of
Public Prosecution v Democratic Alliance (unreported case no:
19577/09 dated 24 June 2016); First Reality (Pty) Ltd v Mitchell
&
Others
2021 ZALCC 21
dated 23 August 2021 @ para 2
[3]
S v Smith
2012 (1) SACR 576
SCA @ para 7
[4]
10 of 2013, as amended