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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 17916/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: NA
DATE: 19/8/2025
SIGNATURE:
In the matter of:
ANTHONY KILROY BEAMISH Applicant
and
MS VAN DER MERWE Respondent
JUDGMENT: LEAVE TO APPEAL
Summary: Application for leave to appeal.
DE BEER AJ
Introduction
1. In a judgment granted on 11 March 202 5, the applicant’s application was
dismissed with costs , based on the reasons detailed in the judgment . The
applicant has applied for leave to appeal , which is opposed by the
respondent.
The Test For Leave To Appeal
2. The full court held as follows:1 “This dictum serves to emphasise a vital point:
Leave to appeal is not simply for the taking. A balance between the rights of
the party which was successful before the Court a quo and the rights of the
losing party seeking leave to appeal needs to be established so that the
absence of a realistic chance of succeeding on appeal dictates that the
balance must be struck in favour of the party which was initially successful”.
3. An application for leave to appeal the judgment of this court must fulfil and
comply with the requirements stipulated in section 17 of the Superior Courts
Act, 10 of 2013 (“The Act”), which reads as follows:
“17. Leave to appeal
(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;
(b) the decision sought on appeal does not fall within the
ambit of section 16; and
1 In Democratic Alliance v President of the Republic of South Africa and Others 2124/2020 [2020]
ZAGPPHC 326 (29 July 2020) at paragraphs [4] – [5].
(c) where the decision sought to be appealed does not
dispose of all the issues in the case, the appeal would
lead to a just and pr ompt resolution of the real issues
between the parties.” (own underlining)
4. Applications for leave to appeal are governed by rule 49(1) of the Uniform
Rules of Court and sections 16 and 17 of the Act. In terms of rule 49(1)(b)
“when leave to appeal is required and it had not been requested at the time
of the judgment or order, application for such leave shall be made and the
grounds therefor shall be furnished within fifteen days after the date of the
order appealed against.”
5. In terms of section 16(1)(a)(i) of the Act, an appeal against any decision of a
division as a court of first instance lies, upon leave having been granted if
the court consisted of a single judge, either to the SCA or to a full court of
that division, depen ding on the discretion issued in terms of section 17(6).
Section 17(6)(a) of the Act provides:
“If leave is granted under subsection (2)(a) or (b) to appeal against a
decision of a division as a court of first instance consisting of a single
judge, the judge or judges granting leave must direct that the appeal be
heard by a full court of that Division, unless they consider-
(i) That the decision to be appealed involves a question of law of
importance, whether because of its general application or
otherwise, or in respect of which a decision of the Supreme Court
of Appeal is required to resolve differences of opinion; or
(ii) That the administration of justice, either generally or in the
particular case, requires consideration by the Supreme Court of
Appeal of the decision, in which case they must direct that the
appeal be heard by the Supreme Court of Appeal.”
6. Section 17 makes provision for leave to appeal to be granted where the
presiding judge is of the opinion that either the appeal would have a
reasonable prospect of success or there is some other compelling reason
why the appeal should be heard, including whether there are conflicting
judgments on the matter under consideration.
7. Considering the statutory and regulatory matrix, three questions for
consideration arise in the application for leave to appeal. These questions
are not distinct but interrelated. The first question is whether the applicant
filed a proper notice of application for leave to appeal , which concisely and
succinctly set out the gro unds upon which leave to appeal is sought. The
second question is whether the appeal would have a reasonable prospect of
success or whether there are compelling reasons that exist why the appeal
should be heard , such as the interests of justice. The third question is
whether the application for leave to appeal sets out expressly why the
default position of an appeal to a full court of the Division should not prevail,
as well as the questions of law or fact , or other considerations involved that
dictate that the matter should be decided by the SCA.
8. Previously, under the common law, the test for leave to appeal was whether
a respondent may or might have reasonable prospects of success on
appeal.
9. However, subsequent to the promulgation of the Act, the legislator has
introduced a jurisdictional requirement to applications for leave to appeal.
10. Leave to appeal may only be given when the appeal would have reasonable
prospects of success, or alternatively, if there is some other compelling
reason why the appeal should be heard.
11. The new statutory test is more stringent than its common law predecessor.
12. Section 17(1)(a)(i) of the Act amended the common law test that has been
applicable in approaching the application for leav e to appeal. The new test ,
as provided for in the Act/statute/jurisdictional requirement, replaced the
word “might” or “may” in the common law test with the word “ would”. It is
thus clear that the test that is outlined in terms of the Act/statute is more
stringent.
13. That an appeal “ would” have reasonable prospects of success is a more
searching inquiry than a mere possibility that another court might come to a
different conclusion. It is equally insufficient that an applicant’s case is
merely arguable.
14. This accords with the purpose of provisions in the Act dealing with appeals,
being a bold step by the legislator to limit unnecessarily protracted litigation
and/or frivolous applications for leave to appeal.
15. The Honourable Justice Prinsloo in E -TV v Min ister of Communications, 2
stated the following in paragraph 11 of the judgment: “It has been held that
the test to be applied before leave to appeal may be granted, is more
stringent than what it was before. The test was codified in Act 10 of 2013
which came into operation on 23 August 2013.” (own emphasis added)
16. The full bench in Minister of Justice and Constitutional Development v
Southern Africa Litigation Centre, 3 stated the following regarding the
previous test applied: “The traditional approach which our courts have
followed in the past when confronted with applications of this nature is to
determine whether there is a reasonable prospect that another court may
come to a different conclusion.” (see: Com missioner of Revenue v Tuck
1989 (4) SA 888 (T) at 890 B).
17. At paragraph 9 of this judgment, the Court stated that: “Section 17(1)(a)(i)
provides that leave to appeal may only be given where the court concerned
is of the opinion that the appeal would have a reasonable prospect of
success.” (own emphasis)
2 2015 JDR 2418 (GP).
3 2015 JDR 2102 (GP).
18. This criteria, which over many years ha s been adopted in regard to the
question of leave to appeal, has now obtained statuto ry force. To this must
be added the consideration that in this subsection, the word “would” is used
in determining the conclusion to which the judge/judges must come before
leave to appeal can be granted . In Mont Chaevaux Trust ( I[...]) v Tina
Goosen,4 the Land Claims Court held (in an obiter dictum5) that the wording
of this subsection raised the bar of the test that now has to be applied to the
merits of the proposed appeal before leave should be granted.
19. In Notshokovu v S,6 it was held7 that an appellant (in an application for leave
to appeal) faces a higher and stringent threshold, in terms of the Act (i.e.,
this subsection), compared to the provisions of the Repealed Supreme Court
Act, 59 of 1959. The SCA stated that “This Court has to decide whether or
not the Courts below, including the two judges in this Court, or to have found
that reasonable prospects of success existed to grant leave or special leave
respectively. (see S v Khoasasa [2002] ZASCA 113; 2003 (1) SACR 123
(SCA); S v Matshona [2008] ZASCA 58; 2013 (2) SACR 126 (SCA)).
20. The Honourable Justice Bertelsmann in Mont Chaevaux Trust ( I[...]) v Tina
Goosen and 18 Others8 2014 GDR 2325 (LCC) at para 6 found the following:
“It is clear that the threshold for granting leave to appeal against a judgment
of a High Court has been raised in the new Act. The former test whether
leave to appeal should be granted was a reasonable prospect that another
Court might come to a different conclusion, see Van Heerden v Cronwright
and Others 1985 (2) SA 342 (T) at 343 H. 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.”
4 Unreported, LCC Case No LCC 14R/2014 dated 3 November 2014 cited with approval by the full
4 Unreported, LCC Case No LCC 14R/2014 dated 3 November 2014 cited with approval by the full
bench in the Acting National Director of Public Prosecution v Democratic Alliance (unreported, GP
Case no: 19577/09 dated 24 June 2016) at para 25.
5 In the distin ction between ratio decidendi and obiter dicta, see Pretoria Council v Levinson 1949
(3) SA 305 (A) at 316 – 17; Santam Versekeringsmaatskappy Bpk v Roux 1978 (SA) 856 (A) at
871 H – 872 B; True Motives 84 (Pty) Ltd v Mahdi 2009 (4) SA 153 (SCA) at 168 A – F and 186C –
188D; Hardenburg v Nedbank Ltd 2015 (3) SA 470 (WCC) at 477 A – I; BSB International Link CC
v Readam South Africa (Pty) Ltd 2016 (4) SA 83 (SCA) at 87B – 89B.
6 Unreported, SCA Case no: 157/15 dated 7 September 2016.
7 At para 2.
8 2014 GDR 2325 (LCC) at para 6.
21. As was stated by the Honourable Justice Plaskett JA, in S v Smit,9 the test is
now more stringent in that: “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 a re not remote, but have a
realistic chance of succeeding. More is required to be established that there
is a mere possibility of success, that the case is arguable on appeal, or that
the case cannot be categorised as hopeless. There must, in other words, be
a sound, rational basis for the conclusion that there are prospects of success
on appeal.”
22. An appellant faces a higher and more stringent threshold, in terms of the Act,
compared to the provisions of the Repealed Supreme Court Act, 59 of 1959
(see Van Wyk v S Galela v S [2014] ZASCA 152; 2015 (1) SACR 584 (SCA)
para [14]) guides an application for leave to appeal.
23. The criteria laid down in Ramakatsa v African National Congress [2021] JOL
49993 (SCA) at par 10 guides an application for leave to appeal : “Turning
the focus to the relevant provisions of the Superior Courts Act (the SC Act),
leave to appeal may only be granted where the judges concerned are of the
opinion that the appeal would have a reasonable pro spect of success or
there are compelling reasons which exist why the appeal should be heard
such as the interests of justice. This Court in Caratco, concerning the
provisions of section 17(1)(a)(ii) of the SC Act pointed out that if the Court is
unpersuaded that there are prospects of success, it must still enquire into
whether there is a compelling reason to entertain the appeal. Compelling
reason would of course include an important question of law or a discreet
issue of public importance that will have a n effect on future disputes.
However, this Court correctly added that “but here too the merits remain
vitally important and are often decisive.” I am mindful of the decisions at High
vitally important and are often decisive.” I am mindful of the decisions at 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
9 2012 (1) SACR 567 (SCA) at para 7.
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, le ave to appeal should be granted. The test of
reasonable prospect 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 trial court. In other wor ds, the appellants in
this matter need to convince this Court on proper grounds that they have
prospects of success on appeal. Those prospects of success must not be
remote, but there must exist a reasonable chance of succeeding. A sound
rational basis for the conclusion that there are prospects of success must be
shown to exist.”
24. In MEC (Health) Eastern Cape v Mkhitha 10 the SCA stated that “An
applicant for leave to appeal must convince the court on proper grounds that
there is a reasonable prospect or realistic chance of success on appeal. A
mere possibility of success, an arguable case or one that is not hopeless, is
not enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal.
Grounds Of Appeal
25. The following are the grounds of appeal as per the notice:11
“1. In coming to the conclusion that the legal proceedings brought by the
respondent against the applicant were not instituted “without
reasonable grounds”, the Court disregarded the involvement of Mr
Ronald Bobroff and Mr Paul O’Sullivan in the institution and funding
of the proceedings.1
1.1. This was a material misdirection, as:
1.1.1. their involvement in the proceedings was not
meaningfully disputed;
10 2016 (ZASCA) 176.
11 CaseLines: 013-3 to 013-7.
1.1.2. they had a clear motive and intention to
defame, discredit, humiliate, harass and vilify
the applicant (which was also not disputed);
1.1.3. the proceedings were precipitated by the
respondent’s admitted offer to assist Mr Bobroff
to “sort out” the applicant;
1.1.4. details of and documents from the proceedings
were published on the websites of Mr Bobroff
and Mr O’Sullivan, and extensively on social
media (which was also not disputed);
1.1.5. the above facts demonstrated that each of the
three legal pr oceedings was an abuse of
process, as (in the words of the Court)
“procedures permitted to facilitate the pursuit of
the truth are used for purposes extraneous to
that object”;2
1.2. On this basis, an appeal court will hold that, on the papers, and on a
balance of probabilities, the legal proceedings were instituted for an
ulterior purpose and thus without reasonable grounds.
2. In finding that the respondent had not instituted the legal proceedings
“without reasonable grounds”, the Court relied on a doc ument signed by a
prosecutor, in which she remarked that the respondent’s “story could be
true”.3
2.1. This was a material misdirection, as:
2.1.1. the remark by the prosecutor was plainly a passing
comment and not a considered finding of fact, and was
obviously made for diplomatic rather than forensic
reasons;
2.1.2. no probative value could be placed on it in the absence of
confirmation from the prosecutor as to what she meant by
it;
2.1.3. the remark was also made without affording the applicant
audi alteram partem principle partem (sic);
2.1.4. any allegation “could be true” where there are no third
party witnesses – the remark by the prosecutor does not
take this any further;
2.1.5. the prosecutor did not have before her the material (which
this Court had), which showed that the criminal complaint
was made with an ulterior motive, and that the sexual
assault allegation was a concocted afterthought tacked
onto an affidavit addressing altogether unrelated issues.
2.2. On this basis, an appeal court will hold that the Court was incorrect
to hold that the proceedings were not instituted without reasonable
grounds.
3. The Court found that the respondent had not instituted legal proceedings
against the applicant “persistently”, solely on the bases that: (a) “a
substantial period has elapsed from the respondent's withdrawal of
proceedings until the institution of this [present] application”, 4 and (b) “there
are no current legal pro ceedings or live controversies instituted by the
respondent against the applicant”.5
3.1. This was a material misdirection, as:
3.1.1. in fact, only four months had elapsed between the
withdrawal of the last of the respondent’s proceedings
(the private p rosecution) and the institution of the
applicant’s application, which is not substantial;
3.1.2. in any event, in law, any lapse of time in the institution of
an application of this nature is not a relevant factor in the
determination of whether the respondent had, before that,
instituted proceedings “persistently”;
3.1.3. in law, the test is not whether there are “current legal
proceedings or live controversies” between the parties,
nor can that be a factor in the determination of whether
the respondent instituted legal proceedings “persistently”;
3.1.4. indeed, the purpose of the relief sought in an application
of this nature is precautionary – its function is not, and
cannot be, to put an end to “current” or “live” proceedings,
and thus it cannot be instituted until the legal proceedings
in issue have been withdrawn or dismissed;
3.1.5. the common cause fact that the respondent had initiated
three legal proceedings against the applicant, essentially
on the same facts, and then withdrawn each of them, was
sufficient to show that she had been instituting legal
proceedings “persistently”.
3.2. On this basis, an appeal court will hold that, on the papers, and on a
balance of probabilities, the respondent instituted legal proceedings
“persistently”.”
Application Of The Law To The Facts And Grounds
26. The grounds are a regurgitation of arguments advanced during the hearing
and have been considered and addressed in the judgment granted on 11
March 2025.
27. The reasons advanced for the judgment have already been addressed in the
judgment granted on 11 March 2025. The grounds for leave to appeal do not
rise to the test referred to above and duly applied herein.
28. After reconsidering the facts and the arguments advanced during argument
in this court and during the main application , the court is not convinced that
another court w ould come to a different outcome in dismissing the
application that sought final relief in terms of the Vexatious Proceedings Act,
3 of 1956.
29. There are no arguments or reasons advanced or facts presented that will
render this matter to be elevated to an appeal court , nor will it be in the
interest of justice to grant leave to appeal. This (the fact that there are no
interest of justice elements present to grant leave , i.e., the second statutory
ground) was conceded by the applicant’s counsel, correctly so. Elevating this
matter to a court of appeal will not be in the interest of justice.
30. There are essentially three grounds advanced seeking leave to appeal. The
first and second grounds contradicted each other ; the third ground does not
pass the judicial authoritative test to grant leave to appeal.
31. Ground one relies on “motive” regarding individuals not cited as parties ; they
also didn’t provide admissible evidence or the opportunity to gainsay the
applicant’s version, and the evidentiary value is weak. Be that as it may, the
first ground is not based on common cause fact.
32. Ground two is based on the contention that the version of the prosecutor has
no probative value, w hich is ironic, as it contradicts the first ground.
However, it is t he applicant who brought this report to the fore ; therefore,
unlike the first ground regarding the unsubstantiated motive inference , as
contended, the report by the prosecutor and the existence of the paragraph
referred to were common cause facts.
33. Ground three was considered comprehensively in the judgment ; it is
improbable that an appeal court would come to a different outcome.
34. In this regard, it is apposite to refer to paragraphs 43 to 45 of the judg ment
dated 11 March 2025.
35. Respondent’s counsel argued that the ostensible grounds of appeal on
behalf of the applicant provided no reasons to grant leave to appeal; I agree.
36. No other court would come to a different finding; all the grounds were
advanced during the hearing and thereafter considered in the judgment. A
different outcome advancing the same arguments on the facts duly
considered is improbable.
37. Accordingly, the application for leave to appeal should be dismissed.
Counsel for the respondent subm itted that the costs to follow should be on
the same scale granted in the previous judgment; I agree.
Order
38. In the premises, the court grants the following order:
38.1. The application for leave to appeal is dismissed.
38.2. Costs to be paid by the applicant to the respondent on the scale
between party and party, on scale C, including the costs of senior
counsel.
DE BEER AJ
Acting Judge of the High Court
Gauteng Division
Date of hearing: 7 August 2025
Judgment delivered: 19 August 2025
Counsel for the applicant: FW Botes SC
Tel: 083 770 7370
E-mail: fwbotes@law.co.za
Counsel for the respondent: P Strathern SC
Tel: 083 602 6220
E-mail: pauls@law.co.za
Attorney for the applicant: Stephen G May Attorney
Tel: 072 451 6074
E-mail: stephen@sgmlaw.co.za