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Adcock Ingram Healthcare (Pty) Ltd and Another v Aspen Pharmacare Holdings Group and Another (Leave to Appeal) (017055/2025) [2025] ZAGPPHC 789 (14 August 2025)

45 Reportability
Civil Procedure
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Brief Summary

Appeal — Leave to appeal — Application for leave to appeal against judgment and order — Test for granting leave to appeal as per section 17(1) of the Superior Courts Act — Respondents failed to demonstrate reasonable prospect of success or compelling reason for appeal — Application for leave to appeal refused with costs.

Comprehensive Summary

Case Note


Adcock Ingram Healthcare (Pty) Ltd and Another v Aspen Pharmacare Holdings Group and Another

Case No. 017055/2025

Date: 14 August 2025


Reportability


This case is reportable due to its implications on the interpretation of the Superior Courts Act regarding the criteria for granting leave to appeal. The judgment addresses the standards that must be met for an appeal to be considered, particularly focusing on the necessity of demonstrating a reasonable prospect of success or compelling reasons for the appeal. The case is significant as it clarifies the procedural aspects of appeals in South African law, which can influence future litigation strategies.


Cases Cited



  • Fusion Properties 233 CC v Stellenbosch Municipality 2021 JDR 0094 (SCA)

  • Western Johannesburg Rent Board & Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A)

  • Teemed Africa (Pty) Ltd v Minister of Health & Another 2012 JDR 0821 (SCA)


Legislation Cited



  • Superior Courts Act 10 of 2013


Rules of Court Cited



  • None cited in the judgment.


HEADNOTE


Summary


The High Court of South Africa, Gauteng Division, Pretoria, addressed an application for leave to appeal against a prior judgment. The court evaluated whether the appeal had a reasonable prospect of success or if there were compelling reasons to hear it. Ultimately, the court found that the respondents did not meet the necessary criteria for leave to appeal, leading to the refusal of the application.


Key Issues


The key legal issues addressed in this case include the interpretation of the criteria for granting leave to appeal under the Superior Courts Act, the distinction between appealing an order versus the reasons for that order, and the burden of proof on the party seeking leave to appeal.


Held


The court held that the application for leave to appeal was refused, concluding that the respondents did not demonstrate a reasonable prospect of success or provide compelling reasons for the appeal. The costs of the application were awarded to the applicants.


THE FACTS


The case arose from an application for leave to appeal against a judgment delivered on 12 May 2025. The respondents sought to challenge the findings and conclusions of the previous judgment, while the applicants opposed the granting of leave. The court noted that the application was a critique of the earlier judgment but did not adequately demonstrate how the alleged errors affected the substantive order.


THE ISSUES


The primary legal questions the court had to decide included whether the respondents had established a reasonable prospect of success for their appeal and whether there were any compelling reasons to warrant the hearing of the appeal. The court also considered the procedural correctness of the application itself.


ANALYSIS


In its analysis, the court emphasized the importance of the criteria set out in section 17(1) of the Superior Courts Act. The court noted that the application for leave to appeal did not sufficiently address the merits of the order granted but rather focused on the reasons behind it. The court found that the respondents' arguments were largely unsubstantiated and did not demonstrate how the alleged errors impacted the outcome of the case. The court ultimately concluded that another court would likely reach the same conclusion, thus justifying the refusal of the application.


REMEDY


The court ordered that the application for leave to appeal be refused, with costs awarded to the applicants. The costs were to include those incurred for the engagement of two counsel, one of whom was a senior counsel, reflecting the complexity of the case.


LEGAL PRINCIPLES


The judgment established key legal principles regarding the criteria for granting leave to appeal, specifically that an applicant must demonstrate either a reasonable prospect of success or compelling reasons for the appeal to be heard. Additionally, it reinforced the notion that appeals are directed at the orders made by the court rather than the reasoning behind those orders.

1
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NO T APP LICABLE
(1) REPORTABLE. ¥ES/N O
(2) OF INTER EST TO OTH ER JUDGES : ¥ESl'NO
(3) REVISED
DA TE: 14 AUGUST 2025
SIGNATURE ....
In the matter between:
ADCOCK INGRAM HEALTHCARE (PTY) LTD
ADCOCKINGRAMINTELLECTUAL(PTY)LTD
And
ASPEN PHARMACARE HOLDINGS GROUP
PHARMACARE LIMITED
In re
Case No. 017055/2025
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT

ASPEN PHARMACARE HOLDINGS GROUP
PHARMACARE LIMITED
And
ADCOCK IN GRAM HEALTHCARE (PTY) LTD
ADCOCKINGRAMINTELLECTUAL(PTY)LTD
THE REGISTRAR OF TRADE MARKS
Coram: MillarJ
Heard on: 13 August 2025
2
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
Delivered: 14 August 2025 -This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded
to the CaseLines system of the GD and by release to SAFLI I. The
date and time for hand-down is deemed to be 09H00 on 14 August
2025.
JUDGMENT
MILLARJ
-----

3
[1] On 13 August 2025 I heard an application for leave to appeal against a judgment
and order handed down on 12 May 2025 together with an application in terms of
section 18(3) of the Superior Courts Act1 (the Act). Separate judgments will be
handed down in respect of each. This judgment is in respect of the application for
leave to appeal.
[2] For convenience I will refer to the parties as they were in the main application
save to note that it is the respondents who seek leave to appeal and the
applicants who oppose its grant.
[3] The test for the granting of leave to appeal pertinent to the present matter is set
out in section 17(1) 2 of the Act as follows:
"(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
(ii) there is some other compelling reason why the appeal should
be heard, including conflicting judgments on the matter
under consideration"
[4] The application was advanced in terms of section 17(1 )(a)(i) only. The application
is a comprehensive critique of almost all the findings and conclusions in the
judgment. It is neither necessary nor do I intend to traverse each and every one
of these.
1 10 of 2013.
2 See Fusion Properties 233 CC v Stellenbosch Municipality 2021 JDR 0094 (SCA ) at para [18].

4
[5] In its terms, the application for leave to appeal did not record that it was sought
in respect of the order granted but rather against the "judgment and the " findings
of fact and rulings of law' made in the judgment. It is well established that an appeal
lies against the order granted by a court and not against the reasons advanced.3
[6] In their heads of argument, the applicant addressed each criticism with reference
to the judgment and argued that these were without merit. It was argued that
"Adcock's application for leave to appeal is, in essence, a lengthy catalogue of alleged
errors ... , with no attempt to demonstrate how these purported errors impact or disturb
the substantive order."
[7] I have considered the grounds upon which the application has been brought and
the reasons given by me in the judgment for the order granted. I have also
considered the submissions made by counsel for the granting of leave to appeal
on the part of the respondents and those opposing the granting of leave to appeal
on behalf of the applicants together with the submissions made in each parties'
heads of argument.
[8] I am not persuaded that another court would come to a different conclusion and
for that reason the application is to be refused. The costs will follow the result.
[9] In the circumstances, I make the following order:
[9.1] The application for leave to appeal is refused with costs which costs
are to include the costs consequent upon the engagement of 2 counsel
where so employed, one of whom is a senior counsel, both on scale
C.
3 Western Johannesburg Rent Board & Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A ) at 354
and Teemed Africa (Pty) Ltd v Minister of Health & Another 2012 JDR 0821 (SCA ) at paras [16]-(17].

HEARD ON:
JUDGMENT DELIVERED ON:
IN THE LEAVE TO APPEAL
COUNSEL FOR THE 1 ST & 2ND APPLICANTS:
INSTRUC TED BY:
REFERENCE:
COUNS EL FOR THE 151 & 2nd RESPONDENTS:
INSTRUCTED BY:
REFERENCE :
5
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETOR IA
13 AUGUST 2025
14 AUGUST 2025
ADV. R MICHAU SC
ADV . J BOOYSE
BOUWERS INC.
MR. D BOUWER
ADV. C PUCKRIN SC
ADV. C PRETORIUS
KISCH AFRICA INC .
MS . T PRETORIUS

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