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SOUTH AFRICAN POLICE SERVICE MEDICAL
SCHEME (POLMED) Ninth Respondent
SOUTH AFRICAN MUNICIPAL WORKERS ’
UNION NATIONAL MEDICAL SCHEME
(SAMWU MED) Tenth Respondent
MEDSHIELD MEDICAL SCHEME Eleventh Respondent
CHWAYITA OMGANA YONGAMA YAKO Thirteenth Respondent
MUSTAFA MOHAMED N.O.
(cited in his capacity as liquidator of CROSS -
MED MTHATHA PRIVATE HOSPITAL (PTY)
LIMITED (IN LIQUIDATION)) Fourteenth Respondent
GONASAGREE GOVENDER N.O.
(cited in her capacity as liquidator of CROSS -
MED MTHATHA PRIVATE HOSPITAL (PTY)
LIMITED (IN LIQUIDA TION)) Fifteenth Respondent
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
THERON AJ:
[1] An application for leave to appeal is regulated by Section 17(1)(a)(i) and (ii)
of the Superior Courts Act No. 10 of 2013 (“the Act ”) which 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
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(ii) there is some other compelling reason why the appeal
should be heard, including conflict ing judgments on the
matter under consideration; ”
[2] It has been held in various judgments binding on me that the Act has raised
the bar for granting leave to appeal.1
[3] In S v Smith2, Plasket AJA explained the meaning of a “reasonable prospect
of success ” 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, the appellant must convince this
court on proper grounds that he has a prospect of success on appeal
and that these 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
1 Acting National Director of Public Prosecutions and Others v Democratic Alliance v Acting
National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24
June 2016); Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC) and S v Notshokovu [2016]
ZASCA 112 at paragraph 2
2 2012 (1) SACR 567 (SCA)
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prospects of success on appeal .”3
[4] A liberal approach to the granting o f leave to appeal by courts is discouraged
as being inconsistent with Section 17 of the Act. For instance, in Mothuloe
Inc Attorneys v The Law Society of the Northern Provinces and
Another4, the Supreme Court of Appeal stated as follows regarding the trial
court ’s liberal approach on granting leave to appeal:
“It is important to mention my dissatisfaction with the court a quo ’s
granting of leave to appeal to this court. The test is simply whether
there are any reasonable prospects of success in an appeal. I t is not
whether a litigant has an arguable case or a mere possibility of
success .”
[5] After considering the submissions made in the application for leave to
appeal, I find that the Thirteenth Respondent does not reach the threshold
and that there is no sound rational basis to conclude that he does.
I therefore make the following order:
1. The application is dismissed with costs on scale C.
3 See also Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) at
paragraph [34]
4 [2017] ZASC A 17