REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-046891
DATE : 26 FEBRUARY 2025
In the matter between:
SASRIA SOC LIMITED Applicant
and
TUHF Limited Respondent
Neutral Citation : SASRIA SOC v TUHF (2023 -046891) [2024] ZAGPJHC ---
(26 February 2025)
Coram: Adams J
Heard : 26 February 2025 – ‘virtually’ as a videoconference on Microsoft
Teams.
Delivered: 26 February 2025 – This judgment was handed down electronically
by circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and time
for hand -down is deemed to be 15:00 on 26 February 2025.
Summary: Application for leave to appeal – s 17(1)(a)(i) of the Superior Courts
Act 10 of 2013 – an applicant now faces a higher and a more stringent threshold
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
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– also s 17(1)(ii) – there are compelling reasons why the appeal should be heard
given its importance to the parties and other litigants –
Leave to appeal granted to the Full Court –
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ORDER
(1) The respondent’ s application for leave to appeal succeeds.
(2) The respondent is granted leave to appeal to the Full Court of this Division.
(3) The costs of this application for leave to appeal shall be costs in the appeal.
JUDGMENT [APPLICATION FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original application by the
applicant for a dismissal of the respondent’s main action on the basis of an
inordinate delay on the part of the respondent in prosecuting to finality the main
action. The respondent is the applicant in this application for leave to appeal and
the respondent herein is the applicant in the original application. On 23 December
2024 I granted the applicant’s application and dismissed, with costs, t he
respondent’s claim in the main action. The respondent applies for leave to appeal
the whole of my judgment and the aforesaid order of 23 December 2024, as well
as my reasons therefor .
[2]. The application for leave to appeal is based on the provisions of both sub -
sections (i) and (ii) of section 17(1)(a) of the Superior Court s Act 10 of 2013 ,
which reads as follows: -
‘17 Leave to appeal
(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) … … …’.
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[3]. The respondent submits that it is in the interest of justice that I allow the
appeal , which is mainly against my legal and factual findings. So, for example,
the respondent contends that I erred in finding that an abuse or bad motive on
the part of a plaintiff is not necessary and that , instead of abuse, the decisive
factors are prejudice and fairness. I accordingly, so the contention continues,
exercised my discretion on an incorrect basis contrary to the test established by
the Supreme Court of Appeal in Cassimjee v Minister of Finance1. The Court did
not exercise its discretion judicially , so the respondent argues, and exercised its
discretion on a wrong principle of law or wrong facts.
[4]. The respondent also contends that I erred in finding factually that the
respondent has no subjective intention of prosecuting the claim against the
applicant further . The Court ought to have considered, but failed to do so , the
undisputed evidence of the respondent that it was taking further steps to progress
the matter further. These steps , so the respondent contends, are the antitheses
of a party who does not want to prosecute the trial to finality.
[5]. It is also contended on behalf of the respondent that I erred in my finding
that, all things considered, t he delay in the prosecution of the claim was not
inordinate . I erred similarly, so the respondent argues, in my finding that the delay
was inexcusable, which implies a rejection of the respondent’s explanation for
the delay. Additionally, the respondent contends that t he Court erred in finding
that the time of the delay has caused significant prejudice to the defendant.
[6]. Nothing new has been raised by the respondent in this application for
leave to appeal. In my original written judgment, I have dealt with most, if not all
of the issues raised by the respondent in this application for leave to appeal and
it is not necessary for me to repeat those in full. Suffice to restate what I say in
the judgment, namely that, the conduct of the respondent in the main action to
1 Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA) .
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me does not suggest a claimant who seriously and bona fide intends prosecuting
its claim to finality.
[7]. The traditional test in deciding whether leave to appeal should be granted
was whether there is a reasonable prospect that another court may come to a
different conclusion to that reached by me in my judgment. This approach has
now been codified in s 17(1) (a)(i) of the Superior Courts Act 10 of 2013, which
came into operation on the 23rd of August 2013, and which provides 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 s uccess’.
[8]. In Ramakatsa and Others v African National Congress and Another2, the
SCA held that the test of reasonable prospects of success postulates 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. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are prospects
of suc cess.
[9]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate decision, based
on the facts and the law that the 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.’
2 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March
2021);
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[10]. In Mont Chevaux Trust v Tina Goosen3, the Land Claims Court held (in an
obiter dictum ) that the wording of this subsection raised the bar of the test that
now has to be applied to the merits of the proposed appeal before leave should
be granted. I agree with that view, which has also now been endorsed by the
SCA in an unreported judgment i n Notshokovu v S4. In that matter the SCA
remarked that an appellant now faces a higher and a more stringent threshold, in
terms of the Superior Court Act 10 of 2013 compared to that under the provisions
of the repealed Supreme Court Act 59 of 1959. The applicable legal pr inciple as
enunciated in Mont Chevaux has also now been endorsed by the Full Court of
the Gauteng Division of the High Court in Pretoria in Acting National Director of
Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance
v Acting National Director of Public Prosecutions and Others5.
[11]. I am persuaded that the issues raised by the respondent in its application
for leave to appeal are issues in respect of which another court is likely to reach
conclusions different to those reached by me. I am therefore of the view that there
are reasonable prospects of another court making factual findings and comin g to
legal conclusions at variance with my factual findings and legal conclusions. The
appeal, therefore, in my view, does have a reasonable prospect of success.
[12]. Mr Green SC, who appeared in the matter for the respondent with
Mr Ismail, also submitted that there are compelling reasons why an appeal should
be heard given its importance to the parties and other litigants. The approach
adopted by the Court , so the contention goes, encourages premature enrolment
of cases that are not yet properly prepared in order to avoid an application such
as the present one. There may very well be merit in this contention.
3 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
4 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
5 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).
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[13]. Leave to appeal should therefore be granted. In that regard, Mr Green
urged me to grant leave to appeal to the Supreme Court of Appeal due to the
importance of the issue to all the litigants . I disagree. Leave to the Supreme Court
of Appeal is not warranted in this matter as it does not implicate a question of law
of importance, whether because of its general application or otherwise.
Order
[14]. In the circumstances, the following order is made:
(1) The respondent ’s application for leave to appeal succeeds.
(2) The respondent is granted leave to appeal to the Full Court of this Division.
(3) The costs of this application for leave to appeal shall be costs in the appeal.
____________________ _______
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 26 February 2025
JUDGMENT DATE: 26 February 2025
FOR THE APPLICANT : C D A Loxton SC and
A Milovanovic -Bitter
INSTRUCTED BY: Edward Nathan Sonnenbergs Inc ,
Sandown, Sandton
FOR THE RESPONDENT : I P Green SC and R Ismail
INSTRUCTED BY: Cliffe Dekker Hofmeyr Incorporated ,
Sandown, Sandton