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This judgment has been handed down remotely and shall be circulated to the parties by
way of email / uploading on Caselines. The date of hand down shall be deemed to be
03 July 2025 .
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ORDER
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1. Leave is granted to the Full Court of this Division .
2. Costs will be costs in the appeal.
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JUDGMENT
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Bam J
1. This is an application for leave to appeal to the Full Court of this Division,
alternatively to the Supreme Court of Appeal. Applicant’s grounds of appeal
are set out in its Notice of Application for leave to appeal, filed on 13 August
2024.
2. Legislative provision for applications for leave to appeal is made in Section
17(1) (a) (i) and (ii) of the Superior Court Act1. The applicable provisions may
be summarized thus:
‘Section 17 (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
1 Act 10 of 2013 .
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(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;’
Summary of the parties’ contentions
3. Applicant advances grounds on which it contends leave may be competently
granted on both subsection (1) (a) (i) and (ii). The respondent is opposing the
application. They cite the trite principle that an appeal lies against the order
and not at the reasons. On the basis that the grounds advanced by the
applicant would not change the order granted by this court, they say leave
must be refused.
Test for leave to appeal
4. The test for leave to appeal is whether there are any reasonable prospects of
success in an appeal. It is not whether a litigant has an arguable case or a
mere possibility of success2. ‘If the court is unpersuaded of the prospects of
success, it must still enquire into whether there is a compelling reason to
entertain the appeal. A compelling reason includes an important question of
law or a discreet issue of public importance that will have an effect on future
disputes. But here too, the merits remain vitally important and are often
decisive. ’3
2 Mothuloe Incorporated Attorneys v Law Society of the Northern Province and Another (213/16) [2017]
ZASCA 17 (22 March 2017), paragraph 18.
3Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd (982/18) [2020] ZASCA 17; 2020 (5) SA 35 (SCA) (25
March 2020) .
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Applicant’s grounds
5. The applicant advances, inter alia, the following grounds in its application:
5.1 The court erred in finding that the applicant falls within the definition of
exporter;
5.2 The Court erred in finding that the respondent has legal basis to hold the
applicant liable as agent for payment of duties;
5.3 The Court erred in finding that the applicant is not the person concerned
for purposes of Section 76A;
5.4 The Court erred in finding that the amoun t demanded is deemed to be duty
for purposes of recoverability;
5.5 The Court erred in finding that liability under Section 76A arises at the time
of demand .
6. Applicant contends that as a result of misconstruing its conduct , the court
came to the incorrect conclusion , presumably as to the applicant’s liability.
7. I have carefully considered the applicant’s grounds for leave. I am persuaded
that another court may come to a different finding. Accordingly leave is
granted to the Full Court of this Division.
Order
1. Leave is granted to the Full Court of this Division.
2. Costs will be costs in the appeal.
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— —————
N.N BAM J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, GAUTENG
DIVISION , PRETORIA
Date of Hearing : 20 June 2025
Date of Judgment : 03 July 2025
Appearances :
Applicant’s Counsel : Adv J.P Vorster SC with him
Adv Adv L.K Olsen
Instructed by: EVH Inc Van Hyssteen
℅ Klagsbruin, Edelstein,
Bosman Du Plessis Inc
Nieuw Muckleneuk, Pretoria
Respondent’s Counsel: Adv J Peter SC with him Adv
K Boshomane
Instructed by: MacRobert Attorneys
Brooklyn, Pretoria