REPUBLIC OF SOUTH AFRICA


IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA


Case No: 18093/21





In the matter between:


In the matter between:

LEKOLOTA ABRAM MAKUA Applicant
AND
FIRSTRAND BANK LIMITED (FIRST NATIONAL BANK
OF SOUTHERN AFRICA LIMITED) Respondent


Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 6 August 2025.

REASONS ON LEAVE TO APPEAL

PHOOKO AJ

INTRODUCTION

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED

6/8/2025
DATE SIGNATURE

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[1] This is an application for leave to appeal against certain parts of the judgment
and order of the court a quo delivered on 02 May 2022 especially the refusal by
that Court to grant the application for postponement, and the cost order against
him.
[2] The respondent opposed the application for leave to appeal.
THE ISSUES
[3] The issue to be determined is whether there are reasonable prospects that , if
leave to appeal is granted, the appeal would succeed or there is a compelling
reason for the appeal to be heard.
APPLICABLE LEGAL PRINCIPLES
[4] The threshold for the granting of leave to appeal has been raised in that leave to
appeal may only be granted if the appeal would have a reasonable prospect of
success.1
[5] I n Mont Chevaux Trust v Tina Goosen & 18 Others it was held that “the use of
the word “would” in the new statute indicates a measure of certainty that another
court will differ from the court whose judgment is sought to be appealed against”.2
Consequently, leave to appeal should be granted only when there is “a sound,
rational basis for the conclusion that there are prospects of success on appeal”.3
[6] Section 17(1)(a)(ii) of the Superior Courts Act also provides for the granting of
leave to appeal where there is a compelling reason to do so. This was affirmed
in Minister of Justice and Constitutional Development and Others v Southern
African Litigation Centre and Others where the court held that:
“…[L]eave to appeal may be granted, notwithstanding the
Court’s view of the prospects of success, where there are

1 Section 17(1)(a)(i) of the Superior Courts Act, 10 of 2013 (“the Superior Courts Act”).
2 Ibid.
3 S v Smith 2011 (1) SACR 567 (SCA) at para 7. See also MEC for Health, Eastern Cape v Mkhitha
and Another [2016] ZASCA 176 at para 17.

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nonetheless compelling reasons why an appeal should be
heard…”
[7] In light of the above, I now proceed to evaluate the submissions of the parties to
ascertain whether the evidence and/or submissions before this Court warrant the
granting of leave to appeal on the basis that there is a reasonable prospect that
the appeal would succeed, or that there are compelling reasons why an appeal
should be heard.
APPLICANT’S SUBMISSIONS
[8] The applicant’s grounds for leave to appeal include that the court a quo erred
when it refused an application for postponement. According to the applicant, the
court erred in not finding that it was in the interest of justice to grant the applicant
a postponement to supplement his application.
[9] In addition, the applicant contended that the court a quo erred in not granting the
postponement because his dispute with the respondent was still before the
Ombudsman for Banking Services.
[10] In the alternative, the applicant averred that there is a compelling reason that the
appeal should be heard because the refusal of the application for postponement
and the costs order against him denies him an opportunity to address the court
about all the facts of the matter amongst others.
[11] Additionally, the applicant submitted that it was not in the interest of justice to
award a cost order against him thereby denying his right to resolve his complaint
as per section 129 of the National Credit Act 34 of 2005.
[12] The applicant further contended that the denial of the application for
postponement was in breach of sections 1 (c), 26 and 34 of the Constitution.
RESPONDENTS’ SUBMISSIONS
[13] The respondent inter alia argued that the applicant failed to specifically challenge

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the reasons of the court a quo and demonstrate why they are erroneous in law.
According to the respondent, this fails to meet the threshold for an application for
leave to appeal as the applicant was inter alia re-arguing his case.
[14] The respondent argued that the issues raised by the applicant, ranging from the
application for postponement and a dispute pending before the Ombudsman for
Banking Services, were adequately addressed by the court a quo.
[15] Considering the above, the respondent submitted that there was no reasonable
prospect of success on appeal, if leave to appeal is granted, and that there were
no compelling reasons as to why the appeal should be heard.
EVALUATION OF EVIDENCE AND SUBMISSIONS
[16] This Court does not intend to rewrite and/or repeat every aspect of the judgment
of the court a quo because most of the issues raised by the applicant have been
comprehensively dealt with in the decision of the court a quo. In my view, the
applicant has overlooked certain aspects of the judgment or has been selective
in his reading of the judgment of the court a quo.
[17] In Persadh v General Motors South Africa (Pty) Ltd 4 Plasket J formulated the
following principles applicable when a party seeks a postponement of an
application:
“First, as that party seeks an indulgence he or she must show
good cause for the interference with his or her opponent’s
procedural right to proceed and with the general interest of
justice in having the matter finalized; secondly, the court is
entrusted with a discretion as to whether to grant or refuse the
indulgence; thirdly, a court should be slow to refuse a
postponement where the reasons for the applicant’s inability to
proceed as (sic) been fully explained; where it is not a delaying
tactic and wher e justice demands that a party should have
further time for presenting his or her case; fourthly, the prejudice
that the parties may or may not suffer must be considered; and

that the parties may or may not suffer must be considered; and
fifthly, the usual rule is that the party who is responsible for the
postponement must pay the wasted costs.”
[18] The reasons that were advanced by the applicant for the postponement in the

4 2006 (1) SA 455 (SE).

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court a quo were made up of multiple and different versions that never formed
part of his pleadings. These were not conventionally supported by an affidavit
clearly setting out the basis for the postponement request . His case changed
from one to another. The court a quo was placed in a difficult position as to which
reason to believe. In my view, the app licant failed to show good cause for the
postponement and was far from assisting the court to help him.
[19] The changing nature of the applicant’s case did not end in the court of first
instance but also occurred in this Court. I say so because during oral argument,
a new argument that sought to interpret the content of the decision of the
Ombudsman for Banking Services emerged. This was never part of the issues
that were fully ventilated in the court a quo. This aspect also does not feature in
the notice of application for leave to appeal and the heads of argument. This also
applies to arguments related to the violation of sections 1 (c), 26 and 34 of the
Constitution which do not appear in the notice of application for leave to appeal
but somehow found their way into the applicant’s heads of arguments. While this
Court sympathizes with the applicant, it is placed in a hard position because of a
constantly changing case or arguments. This alone does not assist the
applicant’s case. This Court is aware of the exception to the general rule which
allows the introduction of new legal arguments on appeal.
5 However, for the
reasons stated above, this is not applicable in this case because of the changing
nature of the applicant’s case. It cannot be said that the interests of justice give
a litigant a licence to keep shifting his case.
[20] Furthermore, the applicant has, in my view, not shown how the court a quo erred
in fact and/or law or that the judgment of the court a quo or its order would have
been different if the court had applied the correct law or facts. Instead, the

been different if the court had applied the correct law or facts. Instead, the
applicant has gone on a fishing expedition and raised several purported errors
without identifying “the facts clearly and succinctly (with reference to the record)
and legal principles … underpinning these contentions ”.6 In other words, the

5 Moroka v Premier of the Free State Province and Others (295/20) [2022] ZASCA 34 (31 March 2022
para 36. See also Barkhuizen v Napier 2007 (5) SA 323 (CC) para 39.
6 Celliers and Others v Kleinfontein Aandeleblok (Edms) BPK and Another (Leave to Appeal)
(4755/2022) [2024] ZAGPPHC 1103 para 19.

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grounds for leave to appeal are widely expressed and give the applicant room to
argue every finding made by the court a quo and place the respondent in a
difficult position to respond to the case that they are called upon to answer . For
ease of reference, the applicant’s grounds of appeal are reproduced as follows:

“
The learned judge erred in not finding that it was in the interests
of justice to grant the applicant postponement to supplement his
application.

2 The learned judge erred in not finding that it was in the interests
of justice to postpone the respondent's exception sine die to
allow the applicant an opportunity to exhaust his dispute
pending before the Banking Ombudsman and other processes
in terms of the National Credit Act 34 of 2005 and the Consumer
Protection Act 68 of 2008.

3. The learned judge erred in not finding that the excipient's
exception was premature and inconsistent with the applicant's
referral of his complaint to the Banking Ombudsman in terms of
section 129 of the National Credit Act 34 of 2005.

4. The learned judge ought to have found that there was no factual
dispute on any of the main issues relevant to the applicant's
relief, for the following reasons:

5. One: The applicant's evidence is that the applicant was aware
that there was a pending dispute on the same facts, same
parties before the Banking Ombudsman referred by the
applicant as required in terms of section 129 of the National
Credit Act 34 of 2005 ("the NCA").

6- Two: The applicant's evidence is that the excipient was served with
applicant's referral to the Consumer Commission and thereafter
to the Banking Ombudsman. The respondent have not (and
cannot) meaningfully deny this fact. There is thus no dispute on
this issue.
7. Three: The applicant has proved that the respondent labored
under the same mistake:

8. 1 . The evidence showed that the respondent at all relevant
stages and during the argument on the 14 March 2022 that once

stages and during the argument on the 14 March 2022 that once
a referral is made to the Banking Ombudsman in terms of the
NCA, should ignore such process and proceed with litigation in
the High Court on the same issues pending before the Banking
Ombudsman.

9. The learned judge erred in not finding that the applicant had
satisfied the requirements of section 129 of the NCA in electing
to refer his compliant to the Banking Ombudsman for resolution.
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1.

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10. The appeal would have a reasonable prospect of success in
terms of section 17(1 )(a)(i) of the Superior Courts Act 10 of
2013 based on the above grounds.

14. Additionally or alternatively to the above: there is a compelling
reason why the appeal should be heard (section 17(1(a)(ii) of
the Superior Courts Act 10 of 2013 in that the orders/judgment
dismissing application to supplement applicant's
papers/application for postponement/ upholding of respondent's
exception and costs against the applicant have the
consequences that the Court all facts of the parties' dispute. It
was not in the interests of justice to order costs against the
applicant and deny him opport unity to continue exercising his
rights to resolve his complaint as required by the NCA.”
[21] To merely list what is said to be errors without pinpointing and substantiating why
they are said to be errors in the judgement is not helpful. In light of the above
exposition, I am persuaded by Vorster AJ in Celliers and Others v Kleinfontein
Aandeleblok (Edms) BPK and Another7 where he said:
“The peremptory requirement that an application for leave to
appeal must set out the grounds upon which leave is sought is
not met when incorrect findings are merely listed. Since an
appeal will not lie against the reasons for the Court’s judgment
but against the substantive order, whether a Court of Appeal will
agree with the reasoning of this Court would be of no
consequence if it cannot be shown that the result would have
been different (references omitted).

What compounds the criticism of the notice is that it does not
specify whether the grounds are based on incorrect findings of
fact or law, or whether the attack is against the Court’s failure to
act judicially. Even if the grounds can be deduced from the
notice, the defect is not cured because it is not for the Court or
the respondents to have to analyze the notice to establish what
grounds the applicants intended to rely upon but did not clearly

grounds the applicants intended to rely upon but did not clearly
set out. The rambling notice of appeal falls woefully short of the
requirement that the notice must set out the grounds upon which
leave to appeal is sought.”
[22] I have carefully considered the written and oral submissions of the parties, the
judgment of the court a quo, all the evidence that was presented before it, and
the bar for leave to appeal . I am persuaded by counsel for the respondent that
the applicant has failed to meet the requisite threshold for leave to appeal to be
granted because the appeal would not have a reasonable prospect of success
in the substantive application. There is also no compelling reason why the appeal

7 Ibid at paras 20-21.

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should be heard.
[23] In my view, the app licant’s case does not meet the requirements of any of the
categories mentioned under section 17 of the Superior Courts Act, one of them
being there being no reasonable prospects of success.
ORDER
[24] I, therefore, make the following order:
(a) The application for leave to appeal to the full bench is dismissed with costs, costs
to be on party-party scale.



_______________

PHOOKO AJ

ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA




APPEARANCES:


Counsel for the applicant: A dv R Ratshidile
Instructed by: Mmowane Attorneys


Counsel for the respondent: Adv T.E Mabayakhulu
Instructed by: Hack Stupel & Ross Attorneys


Date of Hearing: 2 4 June 2025

Date of Judgment: 6 August 2025