IN THE IDGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable I Not reportable
Case no: 24/2015
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL:
DEPARTMENT OF HEAL TH, FREE STATE Applicant1
and
DOLLY NTOMBIZODWA MARUMO Respondent2
Neutral Citation: MEC for Health, Free State v Marumo (24/2025)
[2025] ZAFSHC 163
Coram:
Heard:
1 Defendant a quo.
2 Plaintiff a quo. OppermanJ
5 December 2024
2
Delivered : This judgment was handed down electronically by circulation
to the parties' representatives by email and released to SAFLII. The date and time
for hand down is deemed to be 4 June 2025 at 15h00.
Summary: Application for leave to appeal -reasonable prospect of success
established -appeal granted.
ORDER
1. The application for leave to appeal on the judgment as a whole is granted
and to a full court of this Division.
2. Costs shall be in the appeal.
JUDGMENT
Opperman J
[l] The application for leave to appeal that lies before this Court relates to a
matter that served on trial before Lekhoaba AJ.3 It was ordered a quo that the
3 The presiding officer's term as acting judge lapsed and the matter is entertained in terms of s 17(2)(a) of the
Superior Courts Act IO of 20 I 3 read with rule 49(1 )(e) of the Uniform Rules of Court in that leave to appeal may
be granted by the judge or judges against whose decision an appeal is to be made or, if not readily available, by any
other judge or judges of the same Court or Division.
3
defendant shall compensate the plaintiff for 100% of her proven damages and the
defendant to pay the costs.
[2] The claim that forms the crux of the application for leave to appeal is,
succinctly, that on 19 June 2013 the plaintiff went into labour and her baby died
during the process; alternatively, she gave birth to a stillborn child. During the
delivery, the plaintiff was under the care of the personnel of the defendant and the
claim is that the personnel were negligent and acted contrary to the legal duty owed
to the plaintiff. As a result of the negligence of the personnel in the employ of the
defendant, it is claimed that the plaintiff's baby died during the process of birth,
alternatively, was still born. The plaintiff experiences emotional shock and pain and
claimed one million five thousand rand in general damages.
[3] Slotting in with the above, as gleaned from the heads of argument of the
applicant, the grounds for leave to appeal are:
'34. The learned Acting Judge erred on the facts when she states in paragraph 1 of the judgement
that the Plaintiff was in the ambulance when she went into labour and gave birth to a still born
child.
35. The learned Acting Judge erred when they found that it was not disputed that Mr Marumo
called for assistance at around 09:00.
36. The learned Acting Judge erred on a finding of fact that the Plaintiff pleaded that she gave
birth in the ambulance as a result of the negligence of the personnel at Marantha Clinic and the
paramedics.
37. The learned Acting Judge erred in making findings considerations of negligence.
38. The learned Acting Judge erred in ordering that the Defendant shall compensate the Plaintiff
for I 00% of her proven or agreed damages, when the court was only called upon to adjudicate
the issue of whether or not there was a refusal to dispatch the ambulance , or whether or not it
was dispatched timeously .
4
39. The learned Acting Judge erred in ordering the Defendant to pay the costs of Dr Kemp, when
the doctor himself conceded that he was an ill-suited expert for this matter.'
[ 4] The respondent opposes the application and on the following basis as per
their heads of argument:
'20.1 In the premises it is submitted that the notice of application for leave to appeal does not
succeed in showing proper grounds for a reasonable prospect or realistic chance of success on
appeal. The application for leave to appeal therefore stands to be dismissed with costs.
20.2 The Court a quo's order as set forth in paragraph [46.1] amounts to a patent error when
cognisance is had to the totality of the Judgment and in particular the conclusion reached by the
Court in paragraphs [ 44. J] to [ 44.3]. It is submitted that the Court may vary and correct its order
in terms of Rule 42(1)(b).'
[5] Meritless appeals may not be allowed. The test in an application for leave to
appeal is simply whether there are any reasonable prospects of success in an appeal,
not whether a litigant has an arguable case or a mere possibility of success. The
Supreme Court of Appeal (SCA) has in the past criticized the regularity with which
leave to appeal is granted in matters not deserving its attention. Marais AJ stated
that:
'The inappropriate granting of leave to appeal to this court increases the litigants' costs and
results in cases involving greater difficulty and which are truly deserving of the attention of this
court having to compete for a place on the court's roll with a case which is not.'4
[6] The right to appeal is, among others, managed by the application for leave
to appeal. It may not be abused but the hurdle of an application for leave to appeal
may never become an obstacle to justice in the post-constitutional era. Section 17
4 Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others (231/2002) [2003) ZASCA 57; [2003] 3 All
SA 123 (SCA); 2003 (5) SA 354 (SCA) (30 May 2003) para 6.
5
of the Superior Courts Act 10 of 20135 is the law. The test demands a greater
measure of certainty of a different outcome on appeal. The stipulation should not
be interpreted as setting the bar so high as to deny an applicant any chance of being
granted leave to appeal. This is not what the legislature intended. The case law that
evolved after the promulgation of the legislation was enacted was clarified in HB
(Nee D.J) v R.JB (Leave to Appeal). 6
[7] With regard to the meaning of reasonable prospects of success, it was held
in S v Smith7 that:
'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. ln 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.'
[8] The issues in casu are peculiar in that it is the case for the applicant that the
presiding judge caused, in addition, compelling circumstances by pronouncing on
issues that were not before the Court. The case of Minister of Justice and
5 '17. Leave to appeal. -( I) 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); 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.'
6 H.B (Nee D.J) v R.J.B (Leave to Appeal) (21480/2014) [2024] ZAGPPHC 401 (2 April 2024).
7 S v Smith [2011) ZASCA 15; 2012 (I) SACR 567 (SCA) para 7.
6
Constitutional Development and Others v Southern African Litigation Centre and
Others8 comes to the fore where it was ruled that:
'[23] After expressing its conclusion on prospects of success the High Court also said that it
had no discretion once it reached that conclusion to grant leave to appeal. But it failed to consider
the provisions of s 17(1 )(a)(ii) of the Superior Courts Act which provide that leave to appeal may
be granted, notwithstanding the Court's view of the prospects of success, where there are
nonetheless compelling reasons why an appeal should be heard ....
[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. Furthermore, where the purpose of the appeal is to raise fresh arguments
that have not been canvassed before the High Court, consideration must be given to whether the
interests of justice favour the grant of leave to appeal. lt has frequently been said by the
Constitutional Court that it is undesirable for it as the highest court of appeal in South Africa to
be asked to decide legal issues as a court of both first and last instance. That is equally true of
this Court. But there is another consideration. rt is that if a point of law emerges from the
undisputed facts before the court it is undesirable that the case be determined without considering
that point of law. The reason is that it may lead to the case being decided on the basis of a legal
error on the part of one of the parties in failing to identify and raise the point at an appropriate
earlier stage. But the court must be satisfied that the point truly emerges on the papers, that the
facts relevant to the legal point have been fully canvassed and that no prejudice will be
occasioned to the other parties by permitting the point to be raised and argued.'
[9] Careful reading of the papers before court shows that a reasonable prospect
of success was established by the applicant. Some issues were conflated by the
court a quo and some orders are erroneous. The whole of the judgment must go on
appeal and to a full bench of this Division. Costs shall be in the appeal.
8 Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others
(867/15) [2016] ZASCA 17; 2016 (4) BCLR 487 (SCA); [2016] 2 All SA 365 (SCA); 2016 (3) SA 317 (SCA) (15
March 2016).
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Order
In the result, the following order is made:
1. The application for leave to appeal on the judgment as a whole is granted
and to a full court of this Division.
2. Costs shall be in the appeal.
Opperman J
Appearances
For applicant:
Instructed by:
For respondent:
Instructed by: K Nhlapo-Merabe
Office of the State Attorneys
Bloemfontein
DDeKock
Webbers Attorneys
Bloemfontein 8