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IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division, Kimberley)
Case number:
Dates heard:
Date available:
In the matter of:
ANNA MARIA BRITS
and
SHOPRITE CHECKERS (PTY) LTD
GERHARD POTGIETER MAINTENANCE
SERVICES CC t/ a MR CLEAN
Coram: Van Tonder, AJ
JUDGMENT
VAN TONDER, Al 911/2016
17/09/2024
25/04/2025
Plaintiff
First Defendant
Second Defendant
1. This is an application for leave to appeal in respect of
the dismissal of an action for damages by the Plaintiff
against the First and Second Defendant s, in a delictual
claim instituted by the Plaintiff in respect of injuries
2

suffered as a result of her fall at/near the entrance to
the Checkers Hartswater, in Hartswater on the 5th of
May 2014.

2. The question of the merits and the quantum was
separated in terms of Rule 33 and the matter continued
only in respect of the merits of the action .

3. In respect of the merits of the matter, I had made the
following order on the 5th of May 2025:

Wherefore I make the following order:

1 The Plaintiff’s claim is dismissed with costs.
2 Each party is ordered to pay its own costs in
respect of the application for absolution.

4. The aforesaid order was made inter alia based on the
conclusion s reached in paragraphs [46] and [47] of my
judgment dated 5 May 2023, which paragraphs
concluded as follows:


3

“CONCLUSION

[46] The probabilities do not favour the Plaintiff’s case any
more than they do the Defendant's case, and I am
unpersuaded that the Plaintiff’s evidence is true and that
of the Defendants are false.

[47] When the evidence as a whole is considered, the Plaintiff
has failed to discharge the onus of proving that the floor
was wet and/or cleaned with a wet or damp mop,
wherefore she had failed to discharge the onus of
proving negligence on the part of the Defendants.”

5. It is against the order made, and the findings and
conclusions reached by the Court a quo that the
Plaintiff seeks leave to appeal to the full bench of this
Division.

6. The Defendants oppose the application for leave to
appeal.

FACTUAL BACKGROUND

7. The facts of the matter appear from my judgment
dated 5 May 2023, as dealt with in detail therein,
4

wherefore I do not deem it necessary to repeat it
herein .

GROUNDS OF APPEAL

8. In the Plaintiff’s application for leave to appeal, the
grounds of appeal relied upon by the Plaintiff are set
out to be inter alia the following:

8.1. The learned Judge failed to have proper regard to
the evidence of Mr Brian M akwati, an independent
witness , who testified that whilst the plaintiff was
inside the supermarket , a cleaner was cleaning the
outside three rows of the tiles with a wet mop and
that she was waving a yellow warning sign to dry
the floor .

8.2. The learned Judge failed to have proper regard to
the plaintiff’s evidence th at both her feet suddenly
slipped out from under her and that the f all was not
caused by the gradient of the passage or as a
result of her pre-existing (condition?) and that this
was not rebutted. Such evidence was consistent
with the probability that the floor was w et.

5

8.3. The learned Judge erred by failing to consider the
latent if not the patent b ias of Ms Mothibi in
weighing up the probabilities .

8.4. The learned judge failed to have proper regard to
the fact that it emerged during the trial that there
was a contemporaneous investigation of the
incident . The defendants did not present the report
nor call the in responsible investigator . Allied to
that, Ms Mothibi was not the only cleaner working
that night , she worked alongside Ms Taitai. Ms
Taitai was also not called as a witness . The learned
Judge ought to have made an adverse finding
against the defendants .

8.5. The learned J udge found that there were “a number
of contradictions ” between the evidence of the
plaintiff and that of Mr M akwati but m ade no
evaluation as to the effect . In any m atter in which
contradictions and inconsistencies arise , the aim is
not to establish which of the versions is correct but
rather to satisfy oneself that the witness could e rr,
either because of a defective recollection or
because of dishonesty . Not every error by a
witness and not every contradiction or deviation
affects the credibility of the witness . Contradictory
6

versions must be considered and evaluated on a
holistic basis . The circumstances under which the
versions were made , the pro ven reasons for the
contradictions , the actual effect of the
contradictions with regards to the reliability and
credibility of the witnesses , the question whether
the witness was given sufficient opportunity to
explain the contradictions and the connection
between the contradictions and the rest of the
witness ’s evidence amongst other factors , must be
taken into consideration and w eighed up. The
learned Judge did not undertake such evaluation .

8.6. The learned judge ought to have found that based
on the established facts and evidence, against the
underlying probabilities and the estimate of the
credibility of the witness , the plaintiff had
discharged the burden of proving that she slipped
and fell because the floor of the passage and /or the
supermarket was wet or damp .

9. As summarised in Mr van Aswegen’s heads of argument
(filed on behalf of the Plaintiff) :
“2. The grounds of appeal are, by and large self -explanatory.
The substantive order appealed against is premised on the
conclusion reached by the Court that the probabilities do not
7

favour the Plaintiff’s case more than they do the
Defendant’s case.
3. In demonstrating that the appeal would have reasonable
prospects of success and that another court may reach a
different conclusion on the facts and legal principles when
applied to the facts in relation to the order appealed
against, I address the fundamental suppositions underlying
them.”

10. The application for leave to appeal is therefore clearly
premi sed on the finding by the Court a quo , regarding
where the preponderance of probabilities lies after
having heard all the evidence of the parties, whether
the probabilities favours the Plaintiff or the Defendants ,
and whether the Plaintiff had succeeded in discharg ing
the onus of proof.

THE APPLICATION FOR ABSOLUTION

11. As stated in my judgment dated 5 May 2023, the
Defendants had applied for absolution after the
evidence on behalf of the plaintiff had been led, which
application was dismissed by me on the 24th of
February 2022, as set out in my judgment dated 5 May
2023:

8

“[31] After having heard the evidence for the Plaintiff, the First
and Second Defendants applied for absolution of the
instance, on the basis that the Plaintiff’s evidence did not
meet the threshold to establish the required elements of
negligence and causation.

[32] On the 24th of February 2022, I gave a written ruling, in
which I denied the application for absolution, and
reserved the costs of the said application.

[33] In my ruling I held inter alia that:
“[37] At absolution stage, the Plaintiff’s evidence must
be such that he has a reasonable chance of
success, and if the Court is uncertain whether the
Plaintiff’s evidence measures up to this standard,
absolution ought to be refused:
“In case of doubt at what a reasonable court
‘might’ do, a judicial officer should always…lean
on the side of allowing the case to proceed.”1
CONCLUSION
[38] I am satisfied that based on the evidence on
behalf of the Plaintiff, and the legal position as set
out above, one of the reasonable inferences that
can be drawn in the present matter favours the
Plaintiff.
[39] I find that the Plaintiff had placed sufficient
evidence before court, ”upon which a reasonable
court might reasonably find for the plaintiff .””

1 Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (4) SA 90 (RA)
9


12. Reference to the aforesaid application was made in my
judgment dated 5 May 2023 (as well as herein) to
illustrate that the Defendants had already after the
close of the Plaintiff’s case, contended that the plaintiff
had failed to present sufficient evidence to establish the
required elements of negligence and causation in order
to succeed with her claim.

13. It is trite that in deciding whether absolution should be
granted at the close of a Plaintiff’s case, it must be
assumed that, in the absence of very special
considerations, such as the inherent unacceptability of
the evidence adduced, the evidence is true.2

14. During the application for absolution, Mr. van Aswegen
also argued that the court was not required to weigh up
different possible inferences, but merely to determine
whether one of the reasonable inferences is in favour of
the Plaintiff, and if that is the case, absolution ought to
be refused.3


2 Atlantic Continental Assurance Co of SA v Vermaak 1973 (2) SA 525 € at 527C -D
3 Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 38H
10

15. Based inter alia on the aforesaid (as well as set out in
my ruling in more detail) I had refused the application
for absolution.

16. It is however trite, that the test between whether
absolution ought to be granted at the end of a Plaintiff’s
case, and the test whether a plaintiff had succeed ed to
prove a case to such an extent that he had discharged
the onus, insofar as it rested upon him, is vastly
different.

THE PARTIES ARGUMENTS

17. The Plaintiff contends that the pivotal question is, what
had caused the Plaintiff to slip? And that if it can be
established that the floor was cleaned with a wet mop,
the fact that the floor was wet becomes a compelling
likelihood.

18. In this regard Mr van Aswegen on behalf of the Plaintiff
referred to the matter of Chauke v Road Accident
Fund4, which stated the following:

4 Chauke vs RAF (A59/2022) (2023) ZAFSHC 214 (31 May 2023) at par [1 3]
11

“[13] The preponderance of probabilities standard requires
that the court be satisfied that an incident or event had
happened if the court considers that, on all the
evidence before it, the occurrence of the event is more
likely that not. Thus for the appellant to succeed the
court must be satisfied that it is more likely than not
that the incident happened as recounted by him.”

19. Mr van Aswegen in his heads of argument also referred
to the test as formulated in Stellenbosch Farmers
Winery Group Ltd and Another v Martell and Cie
and Others5, and set out in par [5] thereof.

20. Mr van Aswegen argued that the Court a quo had failed
to apply the aforesaid test in respect of the present
matter, and had failed to in its judgment deal with the
analysis of each and every step as set out in the test.

21. However, as set out in par [6] of the said judgment,
the importance of the overall probabilities cannot be
ignored , and the outcome of a case often ultimately
hinges on the evaluation of the general probabilities.


5 Stellenbosch Farmers Winery Group Ltd and Another v Martell and Cie SA and Others 2003 (1) SA 11 (SCA)
12

22. As also enunciated by the Plaintiff’s application for
leave to appeal: “Contradictory versions must be considered
and evaluated on a holistic basis.”

23. Despite the Plaintiff’s direct evidence that she had
observed Ms Mothibi, the member of the Second
Defendant’s cleaning staff on duty the night of the
incident, Mr van Aswegen argued that a negative
inference ought to have been drawn by the Second
Defendant’s failure to have called the other cleaner on
duty that night, Ms Taitai as a witness.

24. It was never seriously disputed that Ms Taitai was
nowhere near the entrance of the store when the
events forming the subject matter of the action had
taken place.

25. Similarly Mr van Aswegen also argued that in respect of
the failure by the Second Defendant to have called the
investigator and to present the report of his findings, in
respect of the investigation that was launched by the
Second Defendant, once again a negative inference
ought to have been drawn by the Second Defendant’s
failure to do so.

13

26. In this regard it has been held that the failure of a
party to call a witness is reasonable in certain
circumstances, such as when the opposition failed to
make out a prima facie case.6

27. In the headnote to Munster Estates (Pty) Ltd
Killarney Hills (Pty) Ltd7 it was confirmed that in
each instance it depends on the facts of the specific
case:
“…Where a party fails to call as his witness one who is available
and able to elucidated the facts, whether the inference, that the
party failed to call such a person as a witness because he feared
that such evidence would expose facts unfavourable to him,
should be drawn could depend on the facts peculiar to the case
where the question arises. …”

28. In the circumstances of the matter at hand, I am not of
the view that a ny negative inference ought to have
been drawn against the Defendants for not calling the
aforesaid witnesses.




6 Tshishonga v Minister of Justice and Constitutional Development and Another 2007 (4) SA 135 (LC) also
reported as [2007] 4 BLLR 327 (LC)
7 Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (AD)
14

THE PLAINTIFF’S CASE

29. Mr van Aswegen argued that in light of the evidence of
the Plaintiff, as well as Mr Makwati, in respect of the
allegations that Ms Mothibi had cleaned the floor area
in question, with a wet mop, in the absence of any
explanation as to why she would have done so, if not to
dry a wet floor, leads to the inevitable conclusion that
the Plaintiff had slipped and fallen, as a result of a wet
floor, and that there was no alternative postulate as to
what else could have caused the Plaintiff to have fallen.

30. In view of the aforesaid, Mr van Aswegen argued that
the appeal has reasonable prospects of success that
another Court would come to a different conclusion on
the facts and application of the law, than the Court a
quo.

31. The evidence presented by the respective parties, had
already been dealt with in my judgment dated 5 May
2023, although I do find it prudent to again refer to the
evidence in respect of the Plaintiff’ case.

32. The evidence presented by and on behalf of , the
Plaintiff , was inter alia to the effect that:
15


32.1. when the Plaintiff approached the entrance to the
Checkers, at about 19h30, she observed a
cleaning lady mopping the floor just inside the
Checkers, towards the left -hand side of the
entrance, as you approach it from the outside.

32.2. the Plaintiff testified that the cleaning lady had
used a wet mop with some or other fluid, with
which she had washed the floor.

32.3. the Plaintiff testified that the cleaning lady had a
trolley -bucket in which she put the mop,
whereafter she would pull out the mop from the
trolley -bucket and wash the floor.

32.4. the Plaintiff testified that when the Plaintiff exited
the Checkers approximately 15 minutes later, she
exited towards the left -hand side of the entrance,
where the cleaning lady had been mopping the
floor when she had entered.

32.5. she testified that when she exited, she did not
see the cleaning lady, and as she had exited the
Checkers, she had walked two or three steps,
16

when both her feet slipped out from under her,
and she fell on her back.

32.6. the Plaintiff also testified that her feet had slipped
out from under her approximately on the third
row of tiles outside the Checkers.

32.7. the Plaintiff had during cross examination
conceded that she did not see or know if the floor
was wet or not at the time that she had fallen .

32.8. Mr Makwati the independent witness testified that
he was approximately 16 metres from the
entrance to the Checkers, and that he had seen
the Plaintiff arrive and enter the Checkers.

32.9. as the Plaintiff entered the store, he saw a
cleaning lady mopping the floor just inside the
entrance .

32.10. he saw the Plaintiff enter towards the left -hand
side of the entrance, and the cleaning lady was
cleaning towards the right -hand side of the
entrance.
17


32.11. the cleaning lady was cleaning the floor with a
mop, wiping it with the mop and using the yellow
warning sign to dry the floor, by waiving it about
in her hand.

32.12. he had observed that the mop was wet, although
he did not see whether the floor was wet or not.

32.13. after the Plaintiff had entered, the cleaning lady
had finished cleaning the inside of the Checkers,
and was also cleaning the floor just outside the
Checkers, approximately on the first three rows
of tiles on the sloped area.

32.14. while doing this, the cleaning lady had left the
trolley bucket inside the store, as it would run
down the slope outside the Checkers.

32.15. before the Plaintiff exited the store, the cleaning
lady was done cleaning the floors.

32.16. Mr Makwat i did not see the Plaintiff exit the
Checkers, and he also did not see her fall.

18

32.17. he had however heard the Plaintiff scream,
whereafter he saw her lying on her back on the
floor just outside the Checkers.

32.18. when he saw that the Plaintiff had fallen, he saw
that the cleaning lady was standing next to the
security guard inside Checkers.

33. Neither the Plaintiff, nor Mr. Makwati had expressly
testified that :

33.1. they had seen that the floor was wet as a result
of the mopping ,

33.2. the cleaning lady was present at the entrance at
the time when the Plaintiff exited,

33.3. the cleaning lady was still busy mopping the
entrance at the time when the Plaintiff had exited
the store .

34. The Plaintiff’s application for leave to appeal, effectively
centres on the question whether I had erred in finding
that the probabilities favour the Defendants, and in
19

finding that the Plaintiff had failed to discharge the
onus of proving that the floor was wet and/or cleaned
with a wet or damp mop, w ith the resultant conclusion
that the Plaintiff had failed to discharge the onus of
proving negligence on the part of the Defendants .

35. Mr van Aswegen contends that a consideration of the
entire basket of evidence points to the fact that:

35.1. it is more likely than not that the Plaintiff slipped
because the floor was wet,

35.2. and that there is a reasonable prospect that a
Court of appeal, would find that it is more likely
than not, that the Plaintiff had slipped because of
a wet floor surface caused by the cleaning of the
floor.

THE ONUS OF PROOF

36. The principles regarding the onus of proof were
formulated by Stegman J as follows:
“…The onus is on the plaintiff to prove that his injuries and damages were caused by
negligence on the part of the defendant ie by a failure on the part of the defendant to
20

show towards the plaintiff the degree of care in his conduct which is to be expected of
the reasonable man in order to avoid causing foreseeable harm to another…
…
…The plaintiff’s evidence would therefore have to go further in order to establish
a prima facie case of negligence on the part of the defendants. Of course, once such
a prima facie case had been established, there would be an “evidentiary” onus on the
defendants to lead evidence to rebut the prima facie case, or to face judgment against
themselves. But the “overall” burden of proof always remains the plaintiff’s.
…
… In this situation the defendant does not have to go so far as to establish on the
balance of probabilities that the accident occurred without any negligence on his part:
it is enough that the defendant should produce evidence which leads to the inference
that the accident which caused harm to the plaintiff was just as consistent with the
absence of any negligent act or omission on the part of the defendant as with
negligence on his part”8

37. The interplay between credibility and the probabilities,
has been formulated as follows by the Supreme Court
of Appeal:
“…It is equally true that findings of credibility cannot be judged
in isolation, but require to be considered in the light of the
proven facts and the probabilities of the matter under
consideration. ”9
As well as:
“…However, the proper test is not whether a witness is truthful
or indeed reliable in all that he says, but whether on a balance of

8 Probst v Pick ‘n Pay Retailers (Pty) Ltd [1998] 2 All SA 186 (W) at page 195 and 198B -C
9 Snyman Bpk v Biddulph 2004 (5) SA 586 (SCA) at 589G
21

probabilities the essential features of the story which he tells are
true…”10

38. The application of the balance of probability test
includes inter alia that:
“…where the onus rests on the plaintiff as in the present case, and where there are
two mutually destructive stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version is true and accurate and therefore
acceptable, and that the other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether that evidence is true or not the
Court will weigh up and test the plaintiff's allegations against the general probabilities.
The estimate of the credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will accept his version as being probably true. If
however the probabilities are evenly balanced in the sense that they do not favour the
plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if
the Court nevertheless believes him and is satisfied that his evidence is true and that
the defendant's version is false. ”11

39. As stated in the unreported matter of Chauke vs RAF :
“[13] The preponderance of probabilities standard requires that
the court be satisfied that an incident or event had
happened if the court considers that, on all the evidence
before it, the occurrence of the event is more likely than
not. Thus for the appellant to succeed the court must be
satisfied that it is more likely than not that the incident
happened as recounted by him .”12

10 Snyman Bpk v Biddulph 2004 (5) SA 586 (SCA) at 592B
11 National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) also reported as [1984] 4 All SA
622 (E)
12 Chauke v RAF (A59) [2023] ZAFSHC 214 (31 May 2 023) at par [13]
22

40. In considering the evidence holistically and applying the
aforesaid princ iples to the facts, in my judgment dated
5 May 2023, I concluded that:
“[47] When the evidence as a whole is considered, the
Plaintiff has failed to discharge the onus of proving that
the floor was wet and/or cleaned with a wet or damp
mop, wherefore she had failed to discharge the onus of
proving negligence on the part of the Defendants. ”

41. It is this conclusion reached after the application of the
aforesaid principles to the facts of the present matter,
that the Plaintiff takes issue with, and the question
whether there is a reasonable prospect that another
Court could come to a different conclusion in this
regard, forms the crux of the matter.


THE REQUIREMENTS FOR LEAVE TO APPEAL TO BE
GRANTED

42. Section 17 of the Superior Courts Act 10 of 2013, deals
with leave to appeal and provides 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;
23

(b) the decision sought on appeal does not fall within the ambit
of section 16 (2) (a); 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.”

43. The test is now whether the appeal would have a
reasonable prospect of success , which would suggest
that the bar has been raised in respect of the merits of
the appeal.13

44. As stated by Bertelsmann J in the Mont Chevaux
Trust matter:

“It is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised by 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 & Others 1985 (2) SA 342 (T) at 343H. The use of the word
“would” in the new statute indicates a measure of certainty that another
court will differ from the court whiose judgment is sought to be appealed
against. ”14


13 The Mont Chevaux Trust (IT 2012/28) v Tina Goosen Unreported, LCC case no LCC 14R/2014 dated 3
November 2014; Notshokovu v S Unreported, SCA case no 157/15 dated 7 September 2016
14 The Mont Chevaux Trust (IT 2012/28) v Tina Goosen Unreported, LCC case no LCC 14R/2014 dated 3
November 2014 at par [6]
24

45. The aforesaid criteria were also approved by the
Limpopo Division of the High Court in the matter of
Pretoria Society of Advocates v Nthai , where it was
formulated as follows:

“[5] It was submitted by Adv Shakwane SC, counsel for Nthai , that s 17(1) sets out an
inflexible threshold to grant leave to appeal. Therefore both the JSA and LPC must
of necessity meet this stringent threshold set out in s 17 of the Superior Courts
Act in order to succeed with their respective applications for leave to appeal. That
the threshold under s 17(1) of the Superior Courts Act is now stringent, now
even more stringent than when the now repealed Supreme Court Act 59 of 1959,
was still applicable, is aptly demonstrated by S v Notshokovu and
Another [2016] ZA SCA 112 paragraph 2 [7 September 2016], where
Shongwe JA, writing for the Court, had the following to say:
"An Applicant, on the other hand, faces a higher and stringent threshold, in terms
of the Act compared to the provisions of the repealed Supreme Court Act 59 of
1959."
Section 17(1) uses the word "only". It provides that:
"(17.1) Leave to appeal may "only" be given ...."
and then proceeds to set out the circumstances under which leave to appeal may
be given. See South African Breweries (Pty) Ltd v The Commissioner of the
South African Revenue Services (SARS) [2017) 2 AGPPHC 340 (28 March
2017) par 5, in which the Court cited with approval the following passage from
the Mont Chevaux Trust v Tim Goosen and 18 Others 2014 JDR 2325 (LCC)
par 6:
"It is clear that the threshold for granting leave to appeal against a judgment of
the High Court has been raised in the new Act. The former test whether leave to
appeal should be granted was reasonable prospect that another court might
come to a different conclusion. See Van Heerden v Cornwright and Others 1985
(2) SA 342 (T) at 343 H. The use of the word "would" in the new statutes
indicates a measure of certainty that another Court will differ from the court
whose judgment is sought to be appealed against."
25

Finally, on the rigidity of the threshold, Plaskett AJA, as he then was, wrote the
following in the judgment in which Cloete JA and Maya JA, as she then was,
concurred in S v Smith 2012 (1) SACR 567 , 570 par (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."”15

46. If a Court is not persuaded of the prospects of success,
it must still enquire whether there is a compelling (i.e.
cogent; strong; convincing) reason for the appeal to be
heard.

47. In respect of compelling reasons to grant leave to
appeal, the merits of the appeal, however remain
vitally important, and are often decisive, as stated by
the Supreme Court of Appeal:

“[24] That is not to say that merely because the High Court determines an issue of public
importance it must grant leave to appeal. The merits of the appeal remain vitally
important and will often be decisive.”16

15 Pretoria Society of Advocates v Nthai 2020 (1) SA 267 (LP) at par [5]
16 Minister of Justice & Constitutional Development v Southern Africa Litigation Centre 2016 (3) SA 317 (SCA) at
330C
26


48. In the matter of CLOETE MURRAY N.O . AND
OTHERS V NTOMBELA AND OTHERS , [2022] 3 All
SA 689 (FB) the principles for adjudicating an
application for leave to appeal, has also been
enunciated as follows:

[53] The atmosphere of this case reminds of the words of the
Constitutional Court in Shinga v S and another (Society of
Advocates (Pietermaritzburg Bar ) intervening as amicus
curiae ); S v O ’Connell and others 2007 (2) SACR 28 (CC) [also
reported at 2007 (5) BCLR 474 (CC) – Ed] that defined the
judicial character of the task conferred upon a presiding officer
in determining whether to grant leave to appeal. Although
having heard the evidence and having made a ruling; the judge
is called upon to consider whether another court may reach a
different conclusion. This requires a careful analysis of both the
facts and the law that have supported the judgement a quo and
a consideration of the possibility that another court may differ
either in relation to the facts or the law or both. This is a task
that has been carried out by High Court Judges for many years
and it is a judicial task of some delicacy and expertise. It
should be approached on the footing of intellectual humility and
integrity, neither overzealously endorsing the ineluctable
correctness of the decision that has been reached, nor
overanxiously referring decisions that are indubitably correct to
an appellate court.

49. Leave to appeal may only be given if I am of the
opinion that either the appeal would have a reasonable
prospect of success , or if there is some other
compelling reason for the appeal to be heard.

27

50. Recently it has also been formulated in the Supreme
Court of Appeal in the matter of RAMAKATSA AND
OTHERS V AFRICAN NATIONAL CONGRESS AND
ANOTHER [2021] JOL 49993 (SCA) in March 2021:

[10] Turning the focus to the relevant provisions of the Superior
Courts Act (the ‘SC Act’), leave to appeal may only be granted
where the judges concerned are of the opinion that the appeal
would have a reasonable prospect of success or there are
compelling reasons which exist why the appeal should be heard
such as the interests of justice. This Court in Caratco ,
concerning the provisions of section 17(1)(a)(ii) of the SC Act
pointed out that if the Court is unpersuaded that there are
prospects of success, it must still enquire into whether there is
a compelling reason to entertain the appeal. Compelling reason
would of course include an important question of law or a
discreet issue of public importance that will have an effect on
future disputes. However, this Court correctly added that ‘but
here too the merits remain vitally important and are often
decisive’. I am mindful of the decisions at High Court level
debating whether the use of the word ‘would’ as oppose to
‘could’ possibly means that the threshold for granting the
appeal has been raised. If a reasonable prospect of success is
established, leave to appeal 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.


51. The final argument raised by the Plaintiff (as quoted
from the heads of argument filed on her behalf) is that
28

it would be in the interests of justice that leave to
appeal be granted .

CONCLUSION
52. Leave to appeal ought only to be given if I am of the
opinion that the appeal would have a reasonable
prospect of success or if there is some other compelling
reason why the appeal should be heard .

53. As formula ted by Musi JP in the matter o f Chauke v
RAF:
“[15] A court of appeal is generally reluctant to disturb factual
findings which depend on credibility. It will, however, do
so if the factual findings are plainly wrong or where the
reasons given for them is seriously flawed. It must be
underscored that credibility findings should not be judged
in isolation, but must be considered in the light of the
proven facts and probabilities of the matter. ”17

54. I am not persuaded that the factual findings in the
judgment dated 5 M ay 203, are plainly wron g, or that
the reasons given for them are seriously flawed , to
such a degree that there is a reasonable possibility of
another Court coming to a different finding .

17 Chauke v RAF (A59) [2023] ZAFSHC 214 (31 May 2 023) at par [15]
29


55. On the contrary, I am of the view that no other court
could possibly come to another conclusion but that the
Plaintiff had failed to discharge her onus of proof, and
had failed to prove her case, wherefore I am satisfied
that there are no prospects of success in respect of the
Plaintiff’s application for leave to appeal.

56. The next question to be answered is whether there is
any other compelling reason why the appeal should be
heard. Despite mentioning it in her heads of argument,
the Plaintiff has not advanced any such ground.

57. I am satisfied that the appeal would neither have a
reasonable prospect of success, nor that there is some
other compelling reason why the appeal should be
heard. The application for leave to appeal therefore
stands to be dismissed.

58. The final issue for consideration is that of the costs of
this application for leave to appeal. I believe that costs
should follow the result, and that the appropriate order
is that the application for leave to appeal be dismissed
with costs.

30
ORDER
I therefore make the following order:
1 THE PLAINTIFF'S APPLICATION FOR LEAVE TO APPEAL IS
DISMISSED WITH COSTS.
AG VAN TONDER
ACTING JUDGE
On behalf of the Plaintiff: Adv W.A. van Aswegen (oio Duncan & Rothman Attorneys.)
On behalf of First Defendant: Mrs Snyders (oio Engelsman Magabane Inc.)
On behalf of Second Defendant: Adv A.O. Olivier (oio Roux Welgemoed & du Plooy Attorneys .)