IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION , CAPE TOWN )
Case No : 17678 /2023
In the matter between:
ROGER BARRY SILBERBERG N .O. First Applicant
ANTHONY DAVID SILBERBERG N.O . Second Applicant
In their capacities as the Trustees of the
HELMET KURT SILBERBERG TESTAMENTARY
FAMILY TRUST
No MT 8548/1998
and
JUNE ROSE THERON N.O. First Respondent
In her capacity as executor of the Estate Late
Hildegard Erika Silberberg ,
Master Reference N o. 10944/2009
STRAUSS AND COMPANY (PTY) LTD Second R espondent
THE MASTER OF THE HIGH COURT Third Respondent
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email publication and release to SAFLII. The date for hand -down
is deemed to be on 15 April 2025 .
______________ _____ _______ ________________________________________ _
JUDGMENT (on LEAVE TO APPEAL)
___________ ________ __________________ ______ _______ ________________ _
MAPOMA AJ
Introduction
[1] This is a n application for leave to appeal against the judgment and order that I
handed down on 19 December 2024 (“the Judgment) ”. In the judgment , I found
that the applicants had failed to meet the requirements of the interdict ory relief
they sought where upon I dismissed the application .
[2] The applicants for leave to appeal are the same applicants for the application
for interdict. For this reason, the court retains in this judgment the citation of the
parties as it was in the application for interdict .
Summary of the Relevant Background facts
[3] The summary of the material facts is that the first and second applicant (“the
applicants ”) are the heirs in their mother ’s estate that comprised , inter alia , two
immovable properties each of which devolved to the applicants respectively.
The estate has a cash shortfall that needs to be settled to finalise the winding of
the estate. The executrix i dentified the movable assets of the estate and
intends to settle the cash shortfall of the estate by selling some of the movable
assets.
[4] In an endeavour to achieve the above ideal, t he executrix sought and obtained
the authority of the Master of the High Court in terms of section 47 of the
Administration of Estates Act to dispose of the listed movable a ssets as
belonging to the estate with a view to settling the cash shortfall of the estate. It
is worth mention ing that the list of the movable assets in question was compiled
with the participation and involvement of the applicants.
[5] The applica nts sought interdict ory reliefs to retrain the executrix from s elling or
disposing of the listed immovable assets pending the action proceedings they
intend ed instituting to claim the ownership of the movable assets . The
applicants ’ contention is that the movable assets in question belong to a family
trust a nd that the estate d oes not have any movable assets , which is disputed
by the exec utrix.
[6] The executrix opposed the application, mainly on the basis that the evidence
she presented showed inter alia , that the applicant’s themselves at some stage
deposed to affidavits under oath where they stated that the assets in question
belonged to the estate of their mother.
[7] After hearing the parties, I found that on the evidence placed before me the
applicants had failed to meet the requirements of the interdict and refused the
relief sought.
The test for Leave to Appeal
[8] Section 17 (1)(a) of t he Superior Court Act 10 of 2013 (“the Act”) provides that :
“(1) Leave to appeal may only be live to appeal may only be given what the
charge or charges consent of the opinion that –
(a) the appeal would have a reasonable prospect of succ ess; or ,
(b) there is some other compelling reason why the appeal should be
heard , including conflicting judgments on the matter under
consideration.”
[9] The test of reasonable prospects of success postulates a dispassionate
decision based on the facts and the l aw that a court of appeal would reasonably
arrive at a conclusion different from that of the trial court. This principle requires
the court to test the grounds on which the appeal is sought against the facts of
the case and the applicable legal principles to ascertain whether the appeal
court would interfere in the decision against which the appeal is sought.1
1 Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 SCA at para [34]
[10] In Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at
para (6) Bertelsman J, said the following :
“It is clear that th e threshold for granting leave to appeal against a judgment of
a High Court has since 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 345) . The use of the word “would” in the new
statute indicates a measure of certainty that another court will d iffer with the
court was judgment is sought to be appealed against.”
[11] The use by the legislature o f the w ords “only” in section 17 (1) o f the Act is a
further indication of a more stringent test.2 This notwithstanding, i t is noteworthy
that, while the test is stringent, it does not require the applicant for leave to
appeal t o show that the appeal will succeed. Rather, the court must establish
that there is a reasonable prospect of success based on the grounds
advanced.3
[12] The prospects of success must not be remote , but there must exist a
reasonable chance of succeeding . An applicant for leave to appeal must
convince the court on proper grounds that there is a reasonable prospect or
realistic chance of success on appeal. A mere possibility of success, an
arguable cas e or one that is not hopeless, is not enough.4 A sound rational
basis for the conclusion that the re are reasonable prospects of success in the
appeal must be shown to exist .5
Grounds of Appeal
2 Matoto v Free State Gambling and Liquor Authority (unreported FB Case No 4629/2015 dated 8
June 2017) at para [5]
3 Mabaso v National Commissioner of Police and Ano ther [2022] ZACC 13
4 MEC for Health, Eastern Cape v Mkhitha (Unreported) SCA case number 1221/2015 dated 25
November 2016
5 Ramakatsa v African National Congress and Another [2021] ZASCA 31
[13] The applicants have advanced various grounds of appeal as the basis on which
they seek leave to appeal. While I do not consider that I am called upon to
discuss all points raised , it is apposite that I deal with the main grounds that
form the bedrock of the application for leave to appeal . The first respondent has
also advanced arguments in opposition to the grounds, amongst which is that
the order sought to be appealed against is not appealable .
[14] The first issue to de termine is whether the refusal of interdictory relief sought to
be appealed against is appealable. The applicant argue d that the order is
appealable in the interest of justice. The first respondent argues that the order
is refusal of the interdictory reliefs, and that neither of the refusals was final in
effect nor disposed of substantial portion of the relief sought in the intended
action.
[15] Prior to the Constitutional Court ’s pronouncement on the appealability of interim
orders in Tshwane City v Afriforum & Another ,6 the Const itutional Court
remarked in International Trade Administration Commission v SCAW South
Africa (Pty) Ltd ,7 as follows :
“an authoritative restatement of the jurisprudence was to be found in Zweni v
Minister of Law and Order which has laid down that the decision must be final
in effect and not open to alteration by the court of first instance; that it must be
definitive of the rights of the parties; and lastly, that it must have the effect of
disposing of at least a substantial portion of the relief claim ed in the main
proceedings. On these general principles the Supreme Court of Appeal has
often held that the grant of an interim interdict is not susceptible to an appeal.
[16] In the Tshwane City v Afriforum & Another judgment mentioned above , the
Constitutional Court held that the common law test of appeal ability has since
been denuded of its somewhat inflexible nature , because common law is
subservient to the Constitution that prescribes the interest s of justice as the
6 2016 (6) SA 279 (CC)
7 [2010] ZACC 6; 2010 (5) BCLR 457 (CC); 2012 (4) SA 618 (CC) paras 49 & 50
only requirement to be met for the grant of leave to a ppeal .8 The determination
of interests of justice is a fact -specific exercise. Having considered all the
relevant facts in this matter including its history whose genesis is traceable from
2009 and the need for reaching finality , I hold the view that interests of justice
do not require that the appeal be entertained , and as such the order is not
appealable .
[17] The next issue for consideration is whether, based on the grounds advanced by
the applicants, there is a reasonable prospect of success in a court of appeal.
According to the applicants, the central feature of the grounds of appeal is the
finding of the court that their late mother ’s estate must , on the probabilities ,
have acquired owners hip of the movable property consisting of artwork ,
particularly the Maggie Loubser painting. The applicants contend that there is
no evidence to the effect that the estate must have acquired ownership of the
movab les, and on that basis another court would find differently .
[18] During the argument , the court asked counsel for the applicants to direct the
court to the part of the judgment where the court made the finding mentioned
above. Counsel for the applicants could not identify the finding of the court to
that effect . In my view the reason is simply that there is no such finding in the
judgment. The court did not make any determination regarding the title of the
movable assets. What the court found was that, based on evidence before
court , the applicants had failed to meet the requirem ents of interdict ory reliefs
sought . On that basis, the application failed.
[19] I have also carefully considered all the other grounds of appeal , the arguments
advanced by the parties , and the reasons stated in the judgment . Having done
so, I am not persuaded that there are reasonable prospects of success on
appeal in this matter .
[20] The last issue the court must determine is whether there is some compelling
reason why the appeal should be heard. While the applicant has placed
8 Tshwane City v Afriforum & Another 2016 (6) SA 279 (CC) at para 40
exclusive reliance on the first leg of leave to appeal based on section 17(1)(a)(i)
of the Superior Court Act 10 o f 2013 , namely, that the appeal would have
reasonable prospects of success, I have also taken liberty to consider whether
there is some compelling reason why the appeal should be heard. Having
carefully considered th is aspect , I do not find compelling reas ons that warrant
the hearing of the appeal in this matter .
[21] In conclusion, having carefully considered the grounds of appeal advanced by
the applicants , it seems to me that the essence of the grounds of appeal is that
in refusing the interdictory relief sought , the court incorrectly found that the
estate probably acquired transfer of the movable assets . As mentioned above,
the thrust of the court’s judgment in this matter is whether the applicants met
the requirements for interdictory relief.
[22] In the circumstances, I conclude that, based on the reasons advanced in the
main judgment and herein , there is no reasonable prospect of a success ful
appeal . I also conclude there is no o ther compelling reason why the appeal
should be heard. In the circumstances , the application for leave to appeal fails.
Further, I find no reason why costs should not follow the results in these
proceedings.
Order
[23] I therefore make the following order :
1. The application for leave to appeal is dismissed with costs .
2. Counsel’s fees are to be taxed or agreed to on High Court Scale B.
___________________
MAPOMA AJ
Acting Judge of the High Court
Appearance s
For the First and Second Applicant s : B Hack
Instructed by : Schuld Incorporated
For the First and Second Respondent : DW Gess SC
Instructed by : STBB