REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: 2023 -048927
In the application for leave to appeal :
KINGFISHER FUELS CC t/a BP BRAAMFONTEIN Applicant
and
BP SOUTHERN AFRICA (PTY) LTD First r espondent
ARBITRATOR: WARREN B PYE SC Second respondent
Summary :— Application for leave to appeal / gatekeeper application – Certain s ection
17(1)(a)(i) considerations enumerated - Requirements of section 17 not met – No reasonable
prospect of success in the appeal – No compelling reason (s) why the appeal should be heard –
Interests of justice are also not engaged – Application for leave to appeal dismissed.
JUDGMENT
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES/NO
G.W. AMM 7 APRIL 2025
2
AMM , AJ
Introduction
[1] On 29 January 2025, I handed down a judgment dismissing the applicant’s application to
review and set aside the second respondent’s arbitration award .
[2] In broad terms , the review applica tion was premised on the assertion that the second
respondent (as arbitrator) had exceeded his powers by determining a non -pleaded issue
(i.e., the termination of the head -lease) in the arbitration proceedings between the
applicant and the first respondent . Clause 42 of the parties’ sub -lease provided that the
sub-lease would terminate if the head -lease terminated.
[3] In dismissing the review application , I also granted an order striking out certain new
material matter in the applicant’s replying affidavit .
[4] The applicant now seeks leave to appeal the review judgment , and the orders granted.
The applicant seeks leave to appeal to the Full Court of this Division, alternatively the
Supreme Court of Appeal .
[5] Only the first respondent opposes the application for leave to appeal. The second
respondent did not participate in the review proceedings . He similarly does not
participate in this application for leave to appeal.
[6] For purposes of this application for leave to appeal, I have inter alia (re-)read and (re-)
considered the record in the review proceedings, my judgment ( embarrassed by certain
inadvertent and inconsequential, but regrettable , typographical errors) , and the orders
that I granted. I have also carefully considered the notice of application for leave to
appeal . In anticipation of this hearing, the parties' legal representatives filed heads of
argument. I have similarly carefully considered, weighed, and measured the parties’
respective written arguments in their heads of argument and the subsequent oral
submissions . I have done so objectively and dispassionately. I have also considered the
relevant authorities.
[7] At the risk of stating the obvious , my judg ment in the review application contains my full
reasons for the orders granted. As such, I do not intend to deal herein with each of the
grounds on which leave to appeal is sought . Nor do I intend to repeat what is contained
3
in the review judgment. I also do not repeat or traverse all of the parties’ respective leave
to appeal arguments. Nevertheless, I have evaluated and interrogated , for purposes of
this application and this judgment , each ground on which leave to appeal is sought , and
the parties’ respec tive leave to appeal arguments.
[8] In closing this introduction, I must mention that i t is ineluctably so that an application for
leave to appeal may be an uncomfortable affair; for the applicant for leave to appeal, for
the leave to appeal respondent , and for the judge him- or herself . This is because :
a. an applicant for leave to appeal is called upon to criticise , directly and with fearless
candour , the judge’s judgment and reasoning, and more importantly the orders
granted ;
b. a leave to appeal respondent ordinarily unblushingly proclaims that “the judge got
things perfectly right ”; and
c. the relevant judge - in open court - is called upon to scrutin ise his or her potential
failings and any shortcomings of their judgment , but he or she must do so with
objective introspection and humility .
[9] Yet the aforesaid is exactly as it should be. Judges and counsel are not shrinking violets.
This is precisely why an application such is this must be argued, considered, and
determined candidly and dispassionately.
Applicable principles / considerations in applications for leave to appeal
(i) Introduction
[10] In the main, the applicant seeks leave to appeal under the rubric of section 17(1)(a) (i). In
its heads of argument, and subsequent oral arguments, the applicant belatedly pursues
leave to appeal, in the alternative, under the rubric of se ction 17(1)(a) (ii).
[11] Before dealing with the merits of th is application for leave to appeal, I first traverse the
applicable requirements and tests for an application for leave to appeal.
4
(ii) The traditional leave to appeal test
[12] The traditional test applied by our courts in considering applications for leave to appea l
is whether there is a reasonable prospect that another court may come to a different
conclusion to the one reached by the court of first instance .1
(iii) Section 17 of Superior Courts Act, 2013
[13] Section 17 of the Superior Courts Act, No. 10 of 2013 now legislates the circumstances
in which leave to appeal is to be sought and granted. Section 17(1) reads (my
underlining) :
“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) the decision sought on appeal does not fall within the ambit of
section 16(2)(a);2 and
(c) where the decision sought to be appealed does not dispose of
all the issues in the case, the appeal would lead to a just and
prompt resolution of the real issues between the parties.”
(iv) Section 17(1)(a)(i): Reasonable prospects of success
[14] There is a panoply of disparate and contrasting judgments dealing with the applicable
“reasonable prospect of success ” test under section 17(1)(a) (i); mor e particularly
traversing the much debated “could” versus “would” threshold test.
1 See inter alia Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 889
2 Section 16(2)(a)(i) provides :
“When at the hearing of an appeal the issues are of such a nature that the de cision sought
will have no practical effect or result, the appeal may be dismissed on this ground alone .”
5
[15] The applicant , for its part, place s particular store on the Supreme Court of Appeal
decision in Ramakatsa ;3 more specifically the following extract from paragraph 10
thereof :
“I am mindful of the decisions at high court level debating whether the use of
the word ‘would’ as opposed to ‘could’ possibly means that the threshold for
granting the appeal has been raised. If a reasonable prospect of success is
established, leave to a ppeal should be granted. Similarly, if there are some other
compelling reasons why the appeal should be heard, leave to appeal should be
granted. 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. In other words, the
appellants in this matter need to convince this Court on proper grounds that they
have prospects of success on appeal. Those prospects of success must not be
remote, but there must exist a reasonable chance of succeeding. A sound
rational basis for the conclusion that there are prospects of success must be
shown to exist .”
[16] The Ramakatsa decision, as I read it, endorses the “could” threshold . However, at the
same time , the decision proceeds to articulate what I construe to be a “would”
threshold .4 It is not the purpose of this judgment to add to the “could” versus “would”
debate or discourse except to point out – en passant – that the Legislature express ly
used the adverb “only” , and the modal auxiliary verb “would” , in section 17(1)(a) (i). I
regard this language as peremptory .
[17] That said , I will nevertheless reconcile and apply herein the articulated test in Ramakatsa
(i.e., the applicant needs to convince this Court on proper grounds that it has prospects
of success on appeal, which prospects must not be remote ) and other precedential
judgments.
[18] A consideration of Ramakatsa and other relevant judicial preceden ts on this question
enumerate , without intending to be exhaustive, the following important section
17(1)(a)(i) considerations:
3 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021)
4 The court in Van Zyl v Steyn (83856/15)[2022] ZAGPPHC 302 (03 May 2022) considered Ramakatsa
against the background of inter alia MEC for Health, Eastern Cape supra paras 16 -18], Notshokuvu
v S (2016) ZASCA 112 para 2 , Van Wyk v S, Galela v S 2015 (1) SACR 548 (SCA) para 14, Zuma v Office
of the Public Prosector and Others (2020) ZASCA 133 (30 October 2020) para 19 , and Nwafor v
Minister of Home Affairs and Others (2021) ZASCA 58 (12 May 2021) para 25] and concluded that
Ramakatsa decision did not lower the threshold as generally applied – see Shawn v Shabalala and
Another (56880/2021) [2023] ZAGPPHC 2065 (5 September 2023) para 11
6
a. Leave to appeal, especially to the Supreme Court of Appeal, must not be granted
unless there is truly a reasonable prospect of success.5
b. A sound rational basis for the conclusion that there are prospects of success on
appeal must be shown to exist .6
c. An applicant for leave to appeal must therefore convince the court that , on
proper grounds, there is a reasonable prospect or realistic chance of success on
appeal .7
d. A mere possibility of success, or an arguable case , or a case that is not hopeless ,
is insufficient .8
[19] In summary, an appellant for leave to appeal must convince the court hearing its
application that, on a sound rational basis, its prospects of success on appeal are not
remote , but have a reasonable and realistic chance of succeeding. Equally, a mere
possibility of success on appeal is not enough.
[20] Additionally , there is authority (traversed below) for the proposition that an inquiry into
whether the appeal would not have reasonable prospect s of success requires a court to
also inquire whether it is in the interest s of justice that the appeal should be heard; an
issue in respect of which the Court has a discretion.
[21] That said, a consideration of the “ interests of justice ” ought also to feature under the
rubric of section 17(1)(a)(ii)’s “ other compelling reason” considerations , to which I now
turn .
5 Ramakatsa supra
6 MEC for Health, Eastern Cape v Mkhitha and Another [2016] JOL 36940 (SCA) para 17 Four Wheel
Drive Accessory Distributors CC v Rattan NO 2019 (3) SASA 451 (SCA) at par [34] with reference to
S v Smith 2012 (1) SACR 567 (SCA) par [7] and see 68 Wolmarans Street Johannesburg (Pty) Ltd and
Others v Tufh Limited 2024 JDR 1552 (SCA) para 32– albeit the judgment also deals with the further
requirement that ‘something more by way of special circumstances ” is needed when there is an
application for special leave to appeal the judgment of the full court - an additional requirement
not necessary for purposes of this application for leave to appeal.
7 See inter alia S v Smith 2012 (1) SACR 567 (SCA) para 7
8 Mkhitha supra
7
(v) Section 17(1)(a)(ii): Some other compelling reason
[22] Section 17(1)(a)(ii) ’s “some other compelling reason”, contemplates the existence of
compelling reasons of inter alia the following types (i) a substantial point of law, (ii)
conflicting judgments on the questions in issue; (iii) the matter being of great public
importance, or (iii) considerations of the interests of justice (e.g. instances where a
refusal of leave to appeal would likely result in a manifest denial of justice ).
(vi) The interests of justice consideration
[23] As demonstrated below, a liberal approach to granting leave to appeal is to be
discouraged. That said, I accept, without demure, that a court must be cautious when
refusing leave to appeal, particularly where there is a potential for injustice.9
[24] In the aforesaid regard , our courts have laudably adopted an approach that even if the
appeal would not have reasonable pro spect of success, the court should nevertheless
inquire whether it is in the interest of justice that the appeal should be heard.10
[25] Within this context, a n additional factor thus to be considered is that a court hearing an
application for leave to appeal ought not allow a party to be unnecessarily put through
the trauma, inconvenience, costs, and delay of an appeal that does not meet the
required thresholds.11
(vii) Conclusion
[26] In concluding this topic , it is salutary to emphasise that an appeal lies against the
decision12 of the court , and not against the reason s for the decision.13
9 Notshokovu supra
10 See Mothule Inc Attorneys v The Law Society of the Northern Cape and Another (213/16) [2017]
ZASCA 17 (22 March 2017) . Even though the appeal was granted by the court a quo, the presiding
judge had not properly investigated the interests of justice; such that the appeal should have never
been granted.
11 Four Wheel Drive v Rattan N.O. 2019 (3) SA 451 (SCA) para 34
12 Section 16 (1) (a) of the Superior Courts Act , 10 of 2013
13 Medox v Commissioner, South African Revenue Service 2015 (6) SA 310 (SCA) para 10 and Tecmed
Africa (Pty) Ltd v Minister of Health and Another [2012] All SA 149 (SCA) para 17
8
The merits of th is application for leave to appeal
(i) Section 17(1)(a)(i): Reasonable prospects of success
[27] Apropos section 17(1)(a) (i) (i.e. reasonable prospects of success), this application for
leave to appeal is pursued on several ultimately imbricated grounds. For the reasons
already mentioned, I do not intend to reference or traverse all the grounds of the
(proposed) appeal .
[28] That said, the main or central thrust of this application for leave to appeal is duplicated
and repeated in several respects in the notice of application for leave to appeal . This
main or central thrust is, however , in essence encapsulated in paragraphs 7 and 8 of the
notice of application for leave to appeal, being :
“7. The Court erred in relying on the provisions of clause 4.5.6 of the
Arbitration Agreement which clo thes the Arbitrator with the power to
determine whether a valid contract is in place between the parties.
8. Even though such “power” was afforded to the arbitrator i n terms of the
Arbitration , same could not be exercised mero muto and had to fall within
the scope of the enquiry as formulated by the pleadings. Only in
circumstances where an issue is properly placed in dispute, could the
parties to the dispute be requir ed to deal with such dispute by adducing
evidence, if necessary .”14
[29] Simply stated, the applicant contends that there are reasonable prospects that another
court will conclude that the arbitrator’s clause 4.5.6 power (i.e., the power to determine
if a valid contract was in place between the parties) was in truth a standalone power ,
which would only be triggered if the issue was expressly pleaded.
[30] Leaving aside for a moment my findings in the review judgment on whether the clause
4.2 issue was “plea ded”, f or the various reasons traversed in my judgment in the review
application, the applicant’s contentions are irreconcilable with, and do not survive, a
unitary interpretation of the arbitration agreement .
[31] In fact, the applicant’s contentions impermissibly and improperly require a reader of the
arbitration agreement to:
14 See also paragraphs 9, 10 15, 16, 18, 19, and 20
9
a. Read into clause 4.5.6 a qualification to the effect that such must be pleaded in order
for the arbitrator to exercise such power (a qualification that is simply not there and
not tacitly imposed by clause 2.1 of the arbitration agreement , as the applicant
argues ); or
b. simply disregarded the applicant’s section 12B complaints; the circumstances
resulting in the reference to arbitration, the subsequent c onclusion of the
arbitration agreement , and clause 4.5.6 ’s express terms .
[32] The applicant’s contentions also ignore the applicant’s primary obligation to have
establish ed – in the arbitration proceedings – the validity of its sub -lease ,15 and, in turn ,
the franchise agreement . Unfair or unreasonable contractual practices can only exist
within the context of a valid and extant agreement . This is especially so where the
applicant withdrew its claim 3 in the arbitration proceedings . The applicant did not
seriously, if at all, challenge this reasoning in the application for leave to appeal.
[33] Importantly, the Controller of Petroleum Products only directed the parties, in referring
the applicant’s complaints to arbitration, to “appoint an arbitrator and agree on the rules
that apply during the arbitration process”. However, the parties voluntarily and
intentionally went much further. They conc lude d a comprehensive arbitration
agreement ; traversing additional substantial and material terms (including clause 4.5.6).
[34] As such , ultimately , the questions of whether clause 42 was required to be pleaded, and
whether it in fact was pleaded, are irrelevant considerations . This is because they are
trumped by a unitary interpretation of the arbitration agreement . The sanctity of
contract requires that the applicant, like any other contracting party, be held to the
(arbitration) agreement, it volunta rily concluded .16 I am of the opinion that there is no
prospect of an appeal court finding otherwise.
[35] In any event , only to the extent that this is relevant to this application for leave to appeal,
the second respondent did not arbitrarily or mero muto exercise his clause 4.5.6 stand -
alone power. The evidence in the arbitration establishe s, on a balance of probabilities,
15 See Kriegler v Minitzer 1949 (4) SA 821
16 68 Wolmarans Street Johannesburg supra para 18
10
the fact of the head -lease’s termination ; an issue also addressed in argument before the
arbitrator.
[36] The applicant also seeks leave t o appeal in respect of the striking out orders that I
granted in the review application . It is trite that an applicant must make their case in the
founding affidavit for that is the case which a contesting respondent is called upon to
either affirm or deny .17 A respondent has thus only one opportunity to deal with the
applicant’s cause of action , and to present evidence in opposition ; and to do so in the
answering affidavit.18 A failure to strike out material new matter in a replying affidavit is
axiomaticall y prejudicial to the respondent (in this instance the first respondent).
Moreover , a striking out order of the kind in issue is a discretionary matter. As such, it is
trite that an appellate court will not readily interfere in a lower court’s exercise of a
discretion unless the discretion is exercised improperly, injudiciously, unreasonably or
based on a misapplication of the law. The applicant fails to assert , in seeking leave to
appeal, a satisfactory case in any of the aforesaid regards.
[37] Leave to appeal is also sought by the applicant against the costs order s granted. The
relevant general principles on costs are that (i) the award of costs is in the discretion of
the presiding judicial officer, and (ii) the successful party should have its costs,19 and (i ii)
appellate courts are slow to interfere with costs orders.20 That said , as I understand
matters, the challenge to the costs orders granted is tied to the merits of this application
for leave to appeal. The applicant did not argue that the costs order in issue should not
have followed the result. As such, there is nothing more to say on this score.
[38] All things considered , I am not satisfied that the applicant has made out a compelling
enough case that it enjoys reasonable prospects of success on appeal. More specifically,
the applicant has failed to convince me, on proper grounds and a sound and rational
basis, that there is a reasonable prospect or realistic chance of success on appeal or that
17 Director of Hospital Services v Mistry (272/77) [1978] ZASCA 126 (9 November 1978).
18 Gold Fields Limited and Others v Motley Rice LLC, In re: Nkala v Harmony Gold Mining Company
Limited and Others (48226/12) [2015] ZAGPJHC 62; 2015 (4) SA 299 (GJ); [2015] 2 All SA 686 (GJ)
(19 March 2015), paragraph 122.
19 Ferreira vs Levin N.O and others; Vryenhoek and others v Powell NO and others 1996 (2) SA 621 CC
para 3
20 Tebeila Institute of Leadership, Education, Governance and Training vs Limpopo college of Nursing
and Another 2015 (4) BCLR 396 (CC) paras 13 and 14 and Hotz and others vs University of Cape
Town 2018 (1) SA 369 CC in paragraphs 25 and 28
11
any other court will come to a different conclusion, or grant different orders, than I did
in the review judgment .
(ii) The applicant ’s reliance on section 17(1)(a)(ii) : Some other compelling reason
[39] As foreshadowed above, in its notice of application for leave to appeal, the applicant
relies only on section 17(1)(a)(i) (i.e. reasonable prospects of success).
[40] Yet, i n its belatedly filed heads of argument in this application for leave to appeal , the
applicant endeavours – at the proverbial last minute – to spread its bets by pursuing, as
an alternative, reliance upon section 17(1)(a)(ii) (i.e., some other compelling reason) .
[41] On this score, paragraph 3.3 of the applicant’s heads of argument simply state s, without
more, the following:
“It is submitted that this matter involves important questions of law on Section
33 of the Arbitration A ct and as well as motion court practice (Rule 6). ”
[42] As to the claimed first “important question of law” justifying the applicant’s alternative
reliance on section 17(1)(a) (ii)’s, Mr Venter , for the applicant , - after some pressing on
my part to articulate the question of law in issue - opaquely stated it to be : The
interaction , as I understood it, between section 12B of the Petroleum Products Act, 1977
and section 3 3 of the Arbitration Act, 1965 .
[43] The unclear articulation of the first “important question of law” aside, the applicant
overlooks the fact that the partie s concluded the aforesaid comprehensive arbitration
agreement (including its clause 4.5.6) . The comprehensive arbitration agreement
removes any need for an appeal court to consider the interaction between section 12B
and section 32 within the context of this matter. There is thus no important question of
law requiring determination .
[44] The applicant also baldly claims a second “important question of law” pertaining to
uniform rule 6 . In response to my enquiry, Mr Venter stated the uniform rule 6 reference
is to the striking out order that I granted in respect of the new matter raised in the
applicant’s replying affidavit . There is however no “public importance”, or important
question of law raised, in this regard . The law on this score is well-established and trite.
There is no challenge to the manner in which I exercised my discretion .
12
[45] As such , neither of the aforesaid two (additional ) grounds , raised under section
17(1)(a)(ii), are of any public importance , and do not raise any important questions of
law. I am accordingly unable to find – within the facts and circumstances of this matter
– that any questions of law or any matter of public importance exist which demands the
attention of either a Full Court o f this Division or the Supreme Court of Appeal. The
applicant’s reliance on the dicta in Sidwell NO v Du Buisson NO21 is thus misplaced.
[46] Before closing this topic, I must refer to the Pretoria High Court decision in Phiri v Phiri
and Others .22 Therein the following warning in respect of grounds of appeal being
purs ued outside of those listed in a notice of application for leave to appeal was issued :
“It does not help the Applicant to marshal grounds of appeal over the bar which
have not been set out cl early and succinctly in the notice for leave to appeal, no
matter how meritorious these might be, which is not the case in my view,
otherwise, there is no need for the Rules; vide Xayimpi v Chairman Judge White
Commission (formerly known as Browde Commissi on [2006] 2 ALL SA 44 2 E at
446 i-j.”
[47] All things considered, I am of the opinion that there is no (other) compelling reason (s)
existing under the rubric of section 17(1)(a)(ii) why the appeal should be heard.
(iii) The interests of justice consideration
[48] The applicant similarly blandly alleges , in paragraph 3.6 of its heads of argument , under
the alternative reliance on section 17(1)(a)(ii) :
“It is also submitted that the administration of justice also justifies consideration
by the Supreme Court of Appeal.”
[49] Notwithstanding that the applicant does not make any serious claims or arguments on
this score in its application for leave to appeal , I find that there is no potential for injustice
should leave to appeal be refused. It is moreover not in the interest of justice that the
appeal should be heard .
[50] If anything, g ranting the applicant leave to appeal will unnecessarily delay the interests
and administration of justice in bringing th is matter to finality. This is particularly so
where the applicants initially approached the Controller of Petroleum Products during
21 2016 JDR 2014 FB paras 11 and 12
22 (39223/2011) [2016] ZAGPPHC 341 (14 March 2016)
13
November 2020. Thereafte r, there were full -blown arbitration proceedings before the
second respondent followed by the voluminous review application before me .
[51] Addition ally, m y aforesaid views on the interests of justice consideration in this
application for leave to appeal are entrenched if regard is had to my below -mentioned
gatekeeper responsibilities.
This is also a “gatekeeper ” application
[52] An application for leave to appeal must also to be regarded and treated as a gatekeeper
application.23
[53] This is because an application for leave to appeal – requiring a peremptory formal
application to the Court handing down the judgment in issue - is a formal request to
allow an appeal against th at court's decision; requiring the applicant to demonstrate a
reasonable prosp ect of success or compelling reasons for the appeal to be heard. An
application for leave to appeal is thus the crucial first step in an appeal process.
[54] The "gatekeeper'' nomenclature indubitably signifies access control. It refers to the fact
that an application for leave to appeal is an important , necessary and unavoidable
judicially controlled filter ; promoting the interests and administration of justice by
preventing disqualifying , vapid or specious appeals from clogging -up an already
overburdened and understaffed court systems.
[55] Otherwise s tated, the "gatekeeper" function ensures that scarce judicial resources are
not wasted on appeals that are unlikely to succeed. In this regard, the Supreme Court of
Appeal in Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others24
emphasised that:
“…The need to obtain leave to appeal is a valuable tool in ensuring that scarce
judicial resources are not spent on appeals that lack merit. It should in this case
have been deployed by refusing leave t o appeal”.
23 See inter alia Moorcraft AJ ’s state ment in Lee v Minister of Safety and Security and Another (Leave
to Appeal) 2025 JDR 1114 (GJ) para 7
24 2013 (6) SA 520 (SCA) para 24
14
[56] Reid J , in Venter and another v Steyn and others ,25 in similar term s articulates th e nature
of the gatekeeper function in an application such as this as follows:
“The workload in the judiciary is ever increasing and a judge who considers any
application for leave to appeal, and specifically an appeal to the Supreme Court
of Appeal has a judicial duty to ensure that unmerited appeals do not become
part of the workload of the Supreme Court of Appeal. Appeals without merits
should simply not be granted leave to appeal. ”
[57] Shongwe JA similarly emphasised this gatekeeper -function in the following pithy terms
in Mothul e Inc Attorneys v The Law Society of the Northern Provinces :26
“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
reasonably prospects of success in an appeal. It is not whether a litigant has an
arguable case or mere possibility of success.”
[58] In considering and determining this application for leave to appeal, I am thus mindful of
the gatekeeper -function that a High Court must play in , and when , determining an
application for leave to appeal.
Additional considerations
[59] In addition to that stated elsewhere herein regarding the dicta in Phiri v Phiri , for
purposes of this application for leave to appeal , I must record two important
“concessions ” (I use the noun loosely) made by Mr Venter, for the applicant , during his
oral argument in the application for leave to appeal.
[60] First, Mr Venter confirmed the applicant’s a bandonment of its reliance on section 3 2 of
the Petroleum Products Act for purposes of the review application . Second, Mr Venter
conceded, in response to my enquiry – within the context of a unitary interpretation of
the arbitration agreement – that regard was to be had to the applicant’s section 12B
request to the Controller of Petroleum Products.
[61] The concession listed in the above paragraph thus stands directly at odds with the
applicant’s assertion in paragraph 22 of the application for leave to appeal ; namely that
25 2024 JDR 0190 (NWM)
26 Mothule Inc Attorneys supra
15
I had incorrectly placed some reliance on the applicant’s section 12B request to the
Controller of Petroleum Products.
[62] I must also mention my disquiet regarding paragraph 14 of the applicant ’s notice of
application for leave to appeal. Therein it is contended that because the applicant was
not a party to the head -lease, it “did not have any reason to investigate the validity of
the head lease … for purpose of investigating whether clause 42 of its lease agreement
might have been triggered”.
[63] As traversed in my judgment in the review application, the applicant repeatedly
references, directly and indirectly, the applicant’s concerns regarding the fate of the
head -lease and the first respondent’s conduct respect thereof , in its correspondence ,
with the Controller.
[64] In my view, the assertions in paragraph 14 of the applicant ’s notice of application for
leave to appeal thus lacks candour . The assertions are materially contradicted by the
correspondence traversed in the review judgment ; so too by the fact and content of the
claimant’s claim 3 in its statement of claim in the arbitration proceedings dealing directly
with the fate of the head -lease (irrespective of the claims’ subsequent withdraw al).
Conclusion
[65] A careful consideration of this application for leave to appeal , even with a generous
evaluation of its merits and also having regard to the applicant’s belated reliance on
section 17(1)(a)(ii) , reveals that there is no satisfactory basis made out for leave to appeal
to be granted .27
[66] The aforesaid is because I am of the opinion that neither of section 17(1)(a)’s
jurisdictional requirements for the granting of leave to appeal are met . I am unpersuaded
that the (proposed) appeal has a reasonable or realistic chance of succeeding.
Further more, no issues of law, or public importance , are implicated. No other compelling
reason why the appeal must be heard exists . The interests of justice also do not warrant
an appeal. A s such, there is no basis for me to grant leave to appeal.
27 See Fusion Properties 233 CC v Stellenbosch Municipality [2021] JOL 49443 (SCA) para 18