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legal representatives by email. The Order is further uploaded to the electronic file of this
matter on Caselines by the Judge his/her secretary. The date of this Order is deemed to
be 20 August 2025.
JUDGMENT – LEAVE TO APPEAL
ENGELBRECHT, AJ
Introduction
[1] This is an application for leave to appeal against the judgment and order handed
down herein on 8 July 2025. This application is opposed by the Respondent.
[2] The said order provides as follows
[14] Therefore, the following order is made:
14.1 The Respondent is placed under final winding up in the hands of the
Master of the High Court
14.2 The costs of the application are costs in the final winding up of the
Respondent.
[3] This application is based on the 16 grounds set out in the Notice of Appeal dated 10
July 2025.
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APPLICABLE LEGAL PRINCIPLES IN AN APPLICATION FOR LEAVE TO APPEAL
[4] Applications for leave to appeal are governed by the provisions of section 17 of the
Superior Courts Act 10 of 2013, which reads 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 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.
(b) The decision sought to appeal does not fall within the ambit of
section 16(2)(a) and
(c) Where the decision sought to be appealed does not dispose
of all the issues in case, the appeal would lead to a just and
prompt resolution of the real issues between the parties.
[5] Once a judge forms such an opinion, leave to appeal should not be refused.
Importantly, a judge hearing a leave to appeal is not called upon to decide on
whether his or her decision was right or wrong.
[6] in Kwazulu Natal Law Society v Sharma and another [2017] 3 ALL SA 264 (
KZP) (28 Aoril 2017), Judge van Zyl held in paragraph [30] that the test enunciated
in S v Smith ( 2012(1) SACR 567 ( SCA) still remains valid in terms of the new
Act. In paragraph 7 it was held that
“More is required to establish that there is a mere possibility of
success, that the case is arguable on appeal, or that the case cannot
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be categorized as hopeless. There must, in other words, be a sound
rational basis for the conclusion that there are prospects of success
on appeal”
. [6] In an orbiter dictum, the Land Claims Court Mont Chevant Trust v Tina Goosen
and 18 others( IT 2012/28) held that the test for leave to appeal is more stringent
under the Superior Courts Act of 2013 than it was under the repealed Supreme
Court Act 59 of 1959. This was confirmed in the Supreme Court of Appeal by
Shongwe JA in Notskovu v The State (157/15) [2016] ZASCA 112 ( 7 September
2016) and by Schippers AJA in Member of the Executive Council for Health
Eastern Cape v Mikitha and another , 1221/15 [2016] ZASCA 176 ( 25
November 2016) where it was stated.
“[16] Once again it is necessary to say that leave to appeal ,
especially to this Court, must not be granted unless there truly
is a reasonable prospect of success . Section 17(1)(a) of the
Superior Courts Act 10 of 2013 makes it clear that leave to
appeal may only be given where the judge concerned is of the
opinion that the appeal would have a reasonable prospect of
success or there is some other compelling reason w hy it
should be heard.
.
[7] In Ramakatsa and others v National Congress and another (724/2019) [2021]
ZASCA 31 ( 31 March 2021) , Dlodlo JA place the authorities in perspective where
the learned judge of appeals stated:
[10] “I am mindful of the decisions at the High Court level, debating
whether the use of the word “would” as opposed to “could”
possibly means that the threshold for granting the appeal has
been raised. If a reasonable prospect of success is
established, leave to appeal should be granted . Similarly, if
there are some other compelling reasons why the appeal
should be heard, leave should be granted. The t est of
reasonable prospects of success postulates 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
could reasonably arrive at a conclusion different to that of the
trial court. In other words, the appellants in this matter need to
convince this court on proper grounds that they have
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of this matter on Case Lines. The date of the order is deemed to be the 20
August 2025.
Appearances:
For the Applicant: Advocate Hollander
For the Respondent: Advocate Subel
Date of Hearing: 14 August 2025
Date of Judgment: 20 August 2025