IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
( 1) REPORT ABLE: NO
(2) OF INTEREST TO
(3) REVISED: YES
31 March 2025
Date
In the matter between:
NORIA MAGARETH MASHABANE
and
MINISTER OF DEFENCE AND
MILITARY VETERANS
THE CHIEF OF NATIONAL DEFENCE
SOUTH AFRICAN MILITARY OMBUD CASE NO: 6317/2021
1 ST Applicant
1 ST Respondent
2No Respondent
3Ro Respondent
JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL
INTRODUCTION
[1] This is an application for leave to appeal against the judgment and order handed
down on the 06th of July 2023.
[2] The application for leave to appeal was accompanied by an application for
condonation.
[3] The respondent opposed both applications for leave to appeal and condonation
and argued that the applications should be dismissed with punitive costs on the
basis that they were frivolous.
[4] The court granted the application for condonation with costs in the cause.
[5] The applicant's grounds of appeal are set out in the application dated 13 August
2024.
[6] The application for leave to appeal was remanded few times amongst others to
enable the respondent to comply with delivery and uploading on case line of heads
of argument and on 9 January 2025, respondent was ordered to pay costs for the
postponement.
[7] The application for leave to appeal and condonation were heard on the 18th of
March 2025.
RELEVENT LEGAL PROVISIONS AND AUTHORITIES
[8] Section 17 (1) (a) of the superior court Act reads as follows; "Leave to appeal"
17. (i) 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 .
[9] See also The Mont Chevaux Trust v Tina Goosen and 18 Others 2014 JDR 2325
(LCC) paragraph [6]
"It is clear that the threshold for granting leave to appeal against the 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 and others 1985 (2) SA 342 {T)
at 343 (H). 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".
[1 OJ The stringent test to be applied in the leave to appeal under the Superior Courts
Act was reaffirmed by the supreme court of appeal in S v Smith 2012 (1) SACR 567
(SCA), paragraph 7;
"In order to be succeed, therefore the appellant must convince this court on proper
grounds that he has prospect of success on appeal and those prospects are not
remote but have a realistic chance of succeeding. More is required than to establish
that there is a mere possibility of success, that the case is arguable on appeal or that
the case cannot be categorised as hopeless as hopeless. There must in other words
be sound, rational basis for conclusion that there are prospects of success on
appeal"
[11] See also MEC for Health Eastern Cape v Makhitha and Another (1221/2015)
[2016] ZASCA 176 (25 November 2016), paragraph [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 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 there is some or the compelling why it should be
heard"
[12] The grounds of appeal are summarised by the applicant in paragraph 2.13 of
their heads of argument for leave to appeal as follows.
"2.13. Applicant sternly avers that the honourable court erred in its interpretation of
the words "recommend" ad consider'' as appears in the military ombud final
recommendation to the minister for consideration.
2.14. The honourable court had a preconceived conclusion before it could hear the
applicant's case on facts and evidence adduced during the hearing of the
application.
2.15. The honourable court never considered legal implication of the minister of
defence's directive to the chief of defence to implement the recommendation of the
military ombud following applicant lodgement of her unbearable working condition
complaint;
2.15.1. The first and second respondents withheld the minister of defence's directive
to the chief of defence force referred to in the answering affidavit but not attached
despite numerous requests by applicant's current attorneys of record to avail same
thus hampering proper preparations of the replying affidavit until same was availed
during hearing of this matter on the 23rd of May 2023, but concealed during first
hearing on the 2nd of May 2023.
2.16. The honourable court misconstrued applicant's application on facts and
evidence.
2.17. The honourable court condoned first and second respondent's defective
affidavit, which in form was not deposed to and commissioned before the
commissioner of oath, after said point in limine was argued on the 2nd of May 2023
whereafter the court reserved judgement until 23 May 2023. On the same date the
honourable court varied its earlier judgment dismissing the first and second
respondent's application for condonation ".
[13] The applicant contend that should the respondent wish to oppose this
application the court should order the respondent to pay costs.
[14) The first and second respondent's counsel contends that this application for
leave to appeal should be dismissed with punitive because the application
constitutes an abuse of legal process.
Discussion
Point in limine-Answering Affidavit
[15) Point in limine raised by the Applicant in which the court admitted the answering
affidavit at which at first the last two pages were missing ,which contain the
commissioner of oath 's signature ,stamp and other details that go with it, I find it not
to have been fatal in admitting it .In my view that is a procedural and technical point
which do not address the substantive issue on the merits. The missing two pages
were eventually produced before the commencement of the main hearing in the
presents of the applicant. I am of the view that the applicant is being opportunistic by
relying on this point as a ground of appeal. The court is clothed with a discretion and
considered that there was substantive compliance.
Main application-Leave to Appeal
[16] I have read the papers filed and heard both parties having considered
arguments advanced, I do not see it necessary to deal with each alleged
misdirection on its own or in any great detail.
[17] In my judgment I dealt with each item raised by the applicant in the notice of
motion.
[18] The applicant failed to specifically engage the provisions of section 17( 1) (i) and
(ii) of the superior Court Act 10 of 2013.Having an arguable case is not enough,
there must be a measure of certainty that another court would come to a different
conclusion.
[19] The Applicant brief notice of motion does not deal with the chain of command of
the defence force as provided by section 202 of the constitution.
(201 AS Moosa AJ (as he was then) pointed out in re: Lembede v Minister of
Defence and Military Veterans and Others, GD 9642/2020 (15 December 2021) The
Military ombud is not a member of military command . As such the military ombud is
not part of the chain of command.
[21 I I am mindful of Davids v Minister of Defence and Military Veterans 854/2023
SCA (13/11/2024) paragraph 25.
"Paragraph 25 in my view, this is significant and lends support to the interpretation
that the recommendations of the Military Ombud are not binding on the Minister. The
Military cannot have more than one chain of command. There is only one chain of
command with the President as the commander in chief at the top".
[22] In the present case there was no authority or directive that was given by the
President to the Minister. The Minister on his own is not part of the chain of
command.
[23) Upon considering my judgment on the merits and ruling on procedural aspect, In
light of the grounds of appeal raised by the applicant, I am convinced that the
applicant has failed to show real prospect of success on appeal and no other
compelling reason why leave to appeal should be granted.
[24] In so far as costs are concerned, I see no reason why costs should not follow
the result.
ORDER
[25) In the circumstances, I make the following order:
1. The application for leave to appeal is dismissed with
Appearances
Counsel for the Appellant:
Instructed by
Counsel for the Respondent:
Instructed by
Date of hearing: Advocate K J Maleka
Leshilo Inc. Attorneys
Pretoria
Advocate Marius Oosthuizen SC
State Attorneys, Pretoria
18 March 2025
Date of Judgment: 31 March 2025
Judgment transmitted electronically