IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
CASE NO : 10018/2016P
In the matter of:
THULAN I ERIC SITHOLE PLAINTIFF/RESPONDENT
and
THE MEC FOR HEALTH: KWAZULU -NATAL DEFENDANT/APPLICANT
_______ ______________________________________________________________
ORDER
_____________________________________________________________________
The following order is granted:
1. Leave to appe al is refused .
2. The defendant shall pay the costs of this ap plication .
_______ ______________________________________________________________
JUDGMENT
__________ ___________________________________________________________
PIETERSEN AJ:
[1] This is an application for leave to appeal against the whole judgment and order,
which was handed down on 26 April 2024 , in which I dismissed the defendant’s
application with costs.
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[2] The defendant seek s leave to appeal on no fewer than eleven grounds of appeal.
Some, if not most, of these grounds of appeal are simply incorrect insofar as they refer
to findings in my judgment which do not exist. In a nutshell, the defendant submits that
the c ourt erred in finding that there was no written agreement between the parties tha t
the p laintiff’s claim would be determined in a trial, that the p laintiff did not waive his right
to proceed by way of default judgment in respect of quantum , and t hat the p laintiff is not
estopped from relying on the order striking out the d efendant’s defence.
[3] In terms of section 17( 1)(a) of the Superior Courts Act 10 of 2013 (‘the Act ’),
‘(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…’
Prior to the coming into effect of the Act , the test to be applied in an application for leave
to appeal was whether there were reasonable prospects that another c ourt may come
to a different conclusion .1 This position has changed under the Act, as section 17(1) (a)(i)
provides for leave to app eal to be given only where the j udge is of the opinion that the
appeal would have a reasonable prospect of success.
[4] The Supreme Court of Appeal held in Notshokovu v S2 that an appellant faces a
higher and more stringent threshold in terms of the Act , compared to the provisions of
the repealed Supreme Court Act 59 of 1959. Plasket AJA in S v Smith3 held that ‘[m]ore
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 ’. He held
further that there must ‘be a sound , rational basis for the conclusion that there are
1 Section 20 of the Supreme Court Act 59 of 1959 and Commissioner of Inland Revenue v Tuc k 1989 (4)
SA 888 (T).
2 Notshokovu v S [2016] ZASCA 112 para 2.
3 S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) para 7 .
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prospects of success on appeal ’.4 This finding was confirmed by the Supreme Court of
Appeal in Four Wheel Drive Accessory Distributors CC v Rattan NO.5
[5] In Mont Chevaux Trust v Goosen ,6 Bertelsman n J also held that the threshold for
granting leave to appeal has been raised in the Act. He found that the use of the word
‘would ’ indicates a measure of certainty that another court will differ from the c ourt whose
judgment is sought to be appealed agai nst.
[6] In argument before me , Mr Nanka n, who appeared for the defendant (it needs to
be mentioned that Mr Nankan did not appear at the hearing of the application which is
the subject of this leave to appeal and is not the author of the defendant’s notice of
application for leave to appeal), further submitted that in terms of s ection 17(1) (a)(ii) of
the Act , leave to appeal should also be granted , as a compelling reason why the appeal
should be heard exists and there are conflicting judgments on the matter under
consid eration. In this regard , Mr Nanka n referred to Ramakatsa and others v African
National Congress and another ,7 where the Supreme Court of Appeal that:
‘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 s 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 .’
[7] In building on his argument of conflict ing judgments , Mr Nanka n referred to
Motala NO v R oad Accident Fund,8 where Hitchings AJ held that a party whose defence
had been struck out is not precluded from participating at the trial in order to test the
4 Ibid.
5 Four Wheel Drive Accessory Distributors CC v Rattan NO [2018] ZASCA 124; 2019 (3) SA 451 (SCA)
para 34 .
6 Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC).
7 Ramakatsa and others v African National Congress and another [2021] ZASCA 31 para 10 .
8 Motala NO v Road Accident Fund [2023] ZAGPJHC 1323 ( ‘Motala ’).
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veracity of the plaintiff’s version by cross -examining any witnesses and that its position
is ‘analogous to that of a respondent who has filed a notice in terms of Rule 6(5)(d)(iii)
that it intends to oppose the applicant’s application on a question of law only ’.9
[8] It was further submitted on behalf of the d efendant that the p laintiff’s
representative s’ conduct by, inter alia, participating in pre-trial conferences, responding
to a request for further p articulars , the assessment of the plaintiff by the defendant’s
expert witnesses , and the experts meeting for purposes of compiling joint minutes,
created the impres sion in the mind of the d efendant that the plaintiff was no t going to
rely on the striking -out order, particularly insofar as the plaintiff at no stage delivered a
notice in terms of rule 30A of t he Uniform Rules of Court. It was submitted that t he
plaintiff’s representatives ’ conduct was consistent with that of a party who was
proceeding towards trial on the issue of quantum.
[9] Lastly, on the issue of compelling reasons to grant leave to appeal, Mr Nanka n
submitted that the order of Hadebe AJ (as she then was) of 29 November 2017 was and
remains subject to an application for leave to appeal (‘the first application for leave to
appeal ’). As a result, the d efendant submitted that the operat ion of that order remains
suspended in terms of s ection 18(1) of the Act . The defendant’s application for the
declaratory order was therefore never necessary.
[10] On the issue of the alleged written agreement, it should be noted that t he
defendant limited her case in the founding affidavit to a written agreement concluded
between the parties , which was apparently recorded in the minutes of the pre -trial
conferenc e held on 7 February 2019. The d efendant also indicated in her founding
affidavit that the written agreement prov ided for an undertaking by the p laintiff that he
would not bring an application for default judgment. However, neither such an
undertaking nor such an agreement is apparent from the pre -trial minutes.
9 Ibid para 17.
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[11] In respect of waiver, I remain unpersuaded that there was a taci t abandonment
of rights by the p laintiff involving conduct plainly inconsistent with an intention to enforce
the order of Hadebe AJ. Further more , there is no evidence before me that the p laintiff
communicated to the defendant his decisi on to abandon the right to enforce the order .
[12] Lastly, in respect of estoppel, both parties proceeded to participate in, inter alia ,
pre-trial conferences, a request for further p articulars , a response thereto , and an
exchange of medico -legal expert reports. The fact that the parties participated in the
various pre -trial procedures do es not constitute repr esentations by the plaintiff to the
defendant that the d efendant can lead evidence at the trial , notwithstanding the order of
Hadebe AJ. There fore, there is also no merit in the d efendant’s reliance on estoppel. I
am, accordingly , not persuaded that an appeal would have a reasonable prospect of
success.
[13] As previously mentioned, i n support of the argument that conflicting judgments
exist regarding the effect on the proceedings when a pleading has been st ruck out, the
defendant relied on Motala . In Motala , the c ourt held that the striking out of a defendant’s
defence is only ‘a bar to the defendant tendering evidence which had been pleaded in
its plea ’.10 It was held that ‘[t]he defendant’s position is conceptually analogous to that
of a respondent who has filed a notice in terms of Rule 6(5) (d) (iii) that it intends to
oppose the applicant’s application on a question of law only ’.11 The c ourt further held
that the d efendant is not prec luded from cross -examining the p laintiff’s witnesses but
may not ‘put a different factual version to any witness because it is barred from leading
evidence to substantiate its alternative version ’.12
[14] In making the above findings , the c ourt in Motala relied on Minister of Police v
Michillies ,13 where the c ourt, without referring to authority , held that :
10 Motala para 17.
11 Ibid.
12 Ibid para 19.
13 Minister of Police v Michillies [2023] ZANWHC 90 para 4 .
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‘On my understanding, when a plea has been struck, it does not bar the defendant from
proceeding to defend the action. The merits are not determined in favour of the plaintiff on the
striking of the defendant’s plea. The plaintiff remains with the onus to prove its case on a
balance of probabilities. These probabilities can be attacked during cross -examination of the
plaintiff in the trial and on behalf of the defendant. The same argument is applicable
to quantum. ’
[15] The court in Motala also relied on Stevens and another v Road Accident Fund ,14
where the same finding was made , also w ithout any reference to authority. In my
judgment, I had relied on Wilson v Die Afrikaanse Pers Publikasies (Edms) Bpk15 and
Langley v Williams .16 These decisions have also recently been followed in a number of
judgments ,17 supporting my conclusio n that the effect of a striking -out order means that
the d efendant has no d efence and no version before a court and the p laintiff is therefore
entitled to request judgment.
[16] It has further been held in MEC, Department of Public Works v Ikam va
Architects18 that ‘the dismissal of a claim or the striking of a defence is a drastic remedy,
and the power to grant such a remedy is discretionary, a discretion that must be
exercised judicially ’. The c ourt explai ned that the striking out of a plaintiff’s claim or a
defendant’s defence has a far -reaching impact on the right t o have a dispute resolved
by a c ourt or a tribunal in a public hearing. ‘It has the potential to deprive a litigant of a
fair trial, bringing an end to a clai m or defence. ’19 In the case of a defendant, the c ourt
held, ‘the usual effect of a striking -out is to prevent the presentation of a defence so that
judgment will be entered for the p laintiff ’. I agree with the se findings .
14 Stevens and another v Road Accident Fund [2022] ZAGPJHC 864.
15 Wilson v Die Afrikaanse Pers Publikasies (Edms) Bpk 1971 (3) SA 455 (T) at 462H -463A.
16 Langley v Williams 1907 TH 197.
17 See for instance the following judgments where either of them or both of them have been referred to:
Minister of Safety and Security and another v Burger [2015] ZAGPPHC 346; WHB v Road Accident Fund
[2024] ZAGPPHC 583; Kritzinger v Road Accident Fund [2023] ZAGPPHC 730; 2023 JDR 3187 (GP);
Mene v Minister of Police [2023] ZAECMHC 47.
18 MEC, Department of Public Works and others v Ikamva Architects and others 2022 (6) SA 275 (ECB)
para 18 . The subsequent appeal to the SCA was dismissed – see MEC for the Department of Public
Works and others v Ikamva Architects CC and others [2024] ZASCA 95.
19 Ibid.
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[17] As a result, the legal position is clear and I am not satisfied that conflicting
judgments on the e ffect of the striking -out of a d efendant’s defence constitute a
compelling reason why leave to appeal should be granted.
[18] The suspension of the effect of the order of Hadebe AJ was raised for the first
time before me at the hearing of this application for leave to appeal. Both counsel
assured me that the first application for leave to appeal has never been prosecuted or
withdrawn and that it is, therefore, still pending. I make no finding as to the correctness
of this submission in circumstances where the application for leave to appeal was
delivered during December 2017, being close to seven years ago (at the time of hea ring
this application ), and where neither of the parties took any steps to finalise the
application for leave to appeal. Both counsel also agreed that either party had the right
to enrol the first application for leave to appeal , but failed to do so.
[19] Mr Nanka n submitted that the order of Hadebe AJ thus remains suspended in
terms of s ection 18( 1) of the Act. There was thus never a need to bring the application
which served before me , as the order remains suspended until the first application for
leave to appeal has been decided. Ms Ploos van Amstel disagreed with this submission
and referred to the provisions of Uniform rule 49. Ms Ploos van Amstel submitted that
the appeal in respect of the order of Hadebe AJ had lapsed in terms of the provisions of
rule 49(6).
[20] The provisions of rule 49(6) provide for the lapsing of an appeal. It does not deal
with an application for leave to appeal. I am therefore unable to agree with Ms Ploos
van Amstel’s submission . It has to be noted that Ms Ploos van Amstel was confronted
with this argument for the first time at the hearing of this application. It was not raised in
the defendant’s notice of application for leave to appeal or in the defendant’s heads of
argument, despite such heads of argument consisting of no less than 57 pages.
[21] Regardless , it remains that the first application for leave to appeal has not been
prosecuted. That application is not before me but it is possible that a court hearing it
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may find that it had lapsed as a result of the failure to timeously prosecute it. It was held
by Notshe AJ in Absa Bank Ltd v Howell20 that it is ‘ in the public interest that finality must
be reached within a reasonable time in respect of litigation ’. I agree with Notshe AJ that
‘[t]he courts have the power, as part of their inherent jurisdiction, to regulate their own
proceedings to refuse and regarded as lapsed, an application that has not been
prosecuted after an unreasonable delay ’.21 In Benson v The Standard Bank of South
Africa and others,22 Weiner J (as she then was) stated that ‘a matter cannot be held in
abeyance indefinitely’ and that a delay in prosecuting an application for leave to appeal
must be reasonable and fully explained.
[22] As a result, whilst I make no findings in respect of the d efendant’s first application
for leave to appeal against the order of Hadebe AJ, I am una ble to agree with counsel
that I can simply accept that the application is still pending and that the suspension in
terms of section 18(1) is still in effect.
[23] It is unfortunate that the argument that the first application for leave to appeal
suspended the order of Hadebe AJ w as not raised before P Bezuidenhout J when he
directed the d efendant to bring the application , which ultimately came before me , or
raised before me when I subsequently heard the application. During argument , both
parties sought to place the blame at the other ’s door. Regardless, both parties were in
agreement that if the order of Hadebe AJ is in fact suspended , it was never necessary
to bring the application.
[24] As a result, even if it is accepted that the first application for leave to appeal is
still pending, it has the result that the order granted has no force or effect and that any
appeal will be moot as the application would have been stillborn from the outset. As
indicated above, I make no such findings in respect of the first application for leave to
appeal.
20 Absa Bank Ltd v Howell [2019] ZAGPJHC 550; 2020 JDR 1389 (GJ) para 7.
21 Ibid.
22 Benson v The Standard Bank of South Africa and others [2022] ZAGPJHC 334 ; 2022 JDR 1243 (GJ)
para 7.
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[25] In the circumstances, the application for leave to appeal must fail. There is no
reason why the usual rule that costs should follow the result shall not apply. On the
contrary, it is the defendant who brought the application after failing to raise the
argument regarding the first application for leave to appeal before P Bezuidenhout J on
13 February 2023. It was also the defendant who failed to raise the same argument
before me at the hearing of the main application. It is therefore fair and reasonable for
the defendant to pay the costs of this application .
[26] I make the following order :
1. Leave to appeal is refused .
2. The defendant shall pay the costs of this application.
_____________________
PIETERSEN AJ
Date of hearing: 2 September 2024
Date of Judgment: 27 June 2025
APPEARANCES
Applicant/Defendant: Mr Nanka n
Instructed by: The State Attorney
6th Floor, Metlife Building
10
391 Anton Lembede Street
Durban
Ref: Mr M Ngubane/vp/24/005694/15/S/P18
c/o Cajee Setsubi Chetty Inc
195 Boshoff Street
Pietermaritzburg
Plaintiff/Respondent : Ms Ploos Van Amstel
Instructed by: Malcolm Lyons & Brivik Inc
Per: T Brivik
Suite 501, 5th Floor
The Colosseum
3 St Georges Mall
Cape Town
(Ref: TB/al/S255)
c/o Morne Du Plessis Attorneys
32 Taunton Road
Wembley
Pietermaritzburg
3201
Ref: 01/M016/002/Mdp/sj