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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 24463/2013
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
= A 72
(3) REVISED: YES
—
Date: 12’AugustZ025
In the matter between:
VORSTER: SAMANTHA 41st APPLICANT
VORSTER: STEVE CHRISTIAN 2nd APPLICANT
and
MIA: DR RAFIK BALA RESPONDENT
LEAVE TO APPEAL JUDGMENT
ALLY AJ
2 —
[1] This is an application for leave to appeal to the Supreme Court of Appeal,
alternatively, the Full Court of the Gauteng Division of the High Court, against the
whole of my judgment delivered on 15 August 2024. The application is opposed.
[2] The parties were represented, as at the trial by Adv. W. Munro for the
Applicant and by Adv. S. T. Farrell for the Respondent.
[3] | The Applicants’ grounds of appeal’ which were amended without objection
will not be repeated here.
[4] It has now become trite that the test in applications for leave to appeal has
changed to one which is heightened?. The Applicant is accordingly required to
convince this Court that another Court ‘would’ come to another conclusion.
The Supreme Court of Appeal* has stated the test to be as follows:
“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. In 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
1 CaseLines: Section 0000-22
2 The Mont Chevaux Trust v Tina Goosen 3 November 2014 (unreported judgement LCC Case No:
LCC14R/2014; The Acting National Director of Public Prosecution v Democratic Alliance (unreported
case no: 19577/09 dated 24 June 2016); First Reality (Pty) Ltd v Mitchell & Others 2021 ZALCC 21
dated 23 August 2021 @ para 2
3S v Smith 2012 (1) SACR 576 SCA @ para 7
cannot be categorised as hopeless. There must, in other words, be a sourid,
rational basis for the conclusion that there are prospects of success on appeal.”
[5] It is appropriate to repeat the requirements for an application for leave to
appeal. Section 17 (1) of the Superior Courts Act’ provides as follows:
“Leave to appeal may only be given where the judge or judges concerned are of the
opinion that-
(a) (i) the appeal would have reasonable prospects of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(Ose
(o) af
[6] | have read and considered all the grounds of appeal as well as the
submissions of both Counsel for the Applicants and the Respondent and | remain
unconvinced that another Court would come to a different conclusion, the
application thus has no reasonable prospects of success.
[7] Applicants’ Counsel submitted that this Court should also consider that this
case concerns a novel point insofar as the legal duty of care is concerned as well
as what the convictions of society demand and on that basis should grant leave to
appeal. | have considered this submission and this also does not amount to a
410 of 2013, as amended