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Ss S
OF SCS
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-075293
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE SIGNATURE
In the matter between
NALEDI COAL & LOGISTICS PROPRIETARY LIMITED Applicant
And
LI COAL CLEAN COAL GASIFICATION
PROPRIETARY LIMITED Respondent
JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL
1
PEARSE Au:
iF This is an application for leave to appeal against the whole of my judgment and
order of 07 May 2025. The applicant in this application is the respondent in the
main application. The applicant in the main application opposes this application. |
refer to the parties as they were in the main application. The reader of this judgment
is taken to be familiar with the facts and issues traversed in my main judgment.
2. Although the application for leave to appeal is dated 29 May 2025, it does not
appear to have been uploaded on CaseLines and was only drawn to my attention
on 08 July 2025. By agreement between the parties and arrangement with the
registrar's office, the application was argued before me on the morning of 21 July
2025.
3. The application for leave to appeal lists nine grounds of appeal. | address each of
them briefly in paragraphs 7 to 30 below.
4. For reasons that follow, | conclude that this application does not satisfy the test for
the grant of leave to appeal and should be dismissed with costs.
2
5. Leave to appeal may only be granted if the court is of the view that the appeal
would have a reasonable prospect of success or that there is some other
compelling reason why an appeal should be heard."
6. Smith explains 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.” This test,
set out in section 17(1)(a)(i) of the Act, requires more than the possibility of
success; it demands a demonstrable prospect of a different outcome. See too the
articulation of the test in Mkitha.®
% The first ground of appeal is that | “erred in failing and/or refusing to exercise the
court’s inherent jurisdiction and powers to mero motu raise and decide on the issue
of the breach of contract by the [applicant], in that the [applicant] on 8 May 2024,
failed to deliver coal in compliance with the specifications set out in the supply
agreement on a Free On Truck (‘FOT’) basis.”
8. This ground of appeal highlights a failure on the part of the respondent to
differentiate between the supply agreement and the transport arrangement. The
terms of the former agreement were common cause on the papers before court,
1 Section 17(1)(a){i) and (ii) of the Superior Courts Act 10 of 2013
2 Smith v S 2012 (1) SACR 567 (SCA) [7]
3 MEC for Health, Eastern Cape v Mkitha and another [2016] ZASCA 176 (25 November 2016) [16]-
[18]
3