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JUDGMENT
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NOKO J
[1] The applicant launched an application for leave to appeal the whole judgment and
order I granted on 1 2 April 2024 in terms of which , first, I struck out the appellants’
answering affidavit for failure to apply for condonation for the late failing of the said
answering affidavit , secondly, I order ed the appellant to deliver documents which were
requested by the respondent s and, thirdly, I ordered applicants to pay costs on a punitive
scale.
[2] The applicant contends that I erred in striking out the answering aff idavit as the
respond ents had already agreed to the extension of the dies within which to serve the
answering affidavit. The applicant attached proof of such agreement to the application for
leave to appeal in the form of the letters exchanged between the parties. The respondent s
correctly submitted that the rules prescribe a process through which new evidence can be
introduced during the application for leave to appeal , which has not been followed by the
applicant.
[3] The counsel for the applicant further argued that the question of condonation was
not argued during oral submissions by the parties , and as such , the court should have
ignored the point in limine raised as was raised by the respondents in their replying
affidavit. Under the circum stances, the counsel continued, there are good prospects of
success and another court may come to a different conclusion.
[4] In retort , the counsel for the respondents contended that the issue of condonation
was raised in the replying affidavit and ha d not been contested by the applicant at the time
when the application was argued. The submission by the applicant’s counsel that this was
not raised during argument is of no moment as the issue served before me and require d
adjudication by the court.
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[5] The respondents’ counsel contended further that the order I made is interlocutory
and not appealable. The applicant contended that it is final and appealable , and any event
the constitutional court has decided in AfriForum1 that the det ermining factor s include
that if it is in the interest of justice the court may still grant leave to appeal an interim
order.
[6] The respondent s’ counsel submitted further that the order I granted is a default
judgment since I refused to accept the answering affidavit , which was not preceded by a
condonation application , the appeal process is not apposite instead , a rescission
application is an appropriate application to follow. In retort , the respondent s contended
that the judgment and order are appealable as the applicant attended court and argued his
case before the court made a finding to strike out the answering affidavit. This submission
fails to take into consideration that the application proceeded unopposed , as there was no
answering affidavit before me.
[7] With regard to the costs order , the applicant ’s counsel contended that I erred in
granting costs at a punitive scale which order was predicated on the assumption that there
was no need to apply for condonation unaware of the fact that the respondent ha d acceded
to the request to grant an extension to file the answering affidavit. The respondent
contended correctly that the argument regarding the alleged extension to file the answering
affidavit is based o n the evidence , which is being improperly introduced during the
application process. On that basis , the contention is unsusta inable and should be
dismissed. Furthermore, i n any event , the question of costs is discretionary and not
appealable.
[8] It is trite that where the application for leave to appeal is predicated on section 17
of the Superior Court Act2 must demonstrate that the court is, inter alia , of the opinion
that the appeal would have a reasonable prospect of success and further that the
adjudication of the app eal would be precedent -setting .
1 City of The Tshwane Metropolitan M unicipality v Afri -Forum and Anothe r [2016] ZACC 19.
2 10 of 2013.
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[9] It has been held by several courts3 (and therefore trite) that the provision section
17 of the Superior Court Act has introduced a higher threshold to be met in application
for leave to appeal , and the usage of the word ‘ would ’ require the applicant to demonstrate
that another court would certainly come to a different conclusion.
[10] The mere possibility of success, an arguable case or one that is not hopeless is not
enough.4 There must be a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal .5
[11] I will not repeat the raison d’tre underpinning my judgment and would I re-
adjudicate the main application . I am not persuaded that the order I granted is definitive
of the parties’ rights, in fact the order is interim and is not appealable . (vide Economic
Freedom Figh ters v Gordon6) The interest of justice argument is not supported by any
substantive factual or legal arguments and has just been raised just to be dismissed. The
incorrect belief that new evidence introduced was done properly compromised the
wherewithal of the applicant to mar shal a persuasive argument that the order to strik e out
the answering affidavit was without legal basis.
[12] The applicant has further failed to persu ade me with relevant authority that in
instances where the parties have not argued a point in limine during the hearing, I should
presume that the said argument has been abandoned or withdrawn. Without such authority
this argument p ales into insignificance.
Conclusion
[13] The applicant has failed to meet the threshold , and I am not persuaded that the
appeal has reasonable prospects of success , and further that another court would come to
a different conclusion. To this end , the application for leave to appeal is bound to fail.
Costs
3 Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 232 5. MEC for Health, Eastern Cape v
Mkhitha 2016 ZASCA (25 November 2016), Acting National Director of Public Prosecutions and Others
v Democratic Alliance: In Re Democratic All iance v Acting Director of Public Prosecutions and Others
2016 ZAGPPHC 489.
4 MEC for Health, Eastern Cape v Mkhitha 2016 ZASCA (25 November 2016) at para 17
5 S v Smith 2012 (1) SACR 527.
6 Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others
[2020] ZACC 10.