IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION- MTHATHA
CASE NO: 962/2021
In the matter between:
MINISTER OF POLICE Applicant
And
LUBABALO GUNTU Respondent
______________________________________________________________________
JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
______________________________________________________________________
MHAMBI AJ
[1] This is a judgment on application for leave to appeal the judgment of this court
delivered on 18 October 2024.
[2] The applicant shall hereinafter be referred to as the Police, where necessary.
[3] In summary, the applicant’s findings of fact and the law on which this application
for leave to appeal anchored, in which the court, applicant, submits erred are:
3.1 The fact that the issue of non -service as regard the notice of set down the
taxation was canvassed in reply and was a bar to the court dealing with the
issue.
3.2 Due notice of taxation had been afforded to it in circumstances where a
challenge in the true sense requiring review, when in proper context, all that they
served to indicate was the good cause requirement for rescission.
3.3 The applicant had not willingly not participated in the taxation.
3.4 It was unnecessary to consider condonation in the light of merits.
3.5 Also, the court a quo erred in granting the orders as set out in paragraphs
1 and 2 of its judgment.
[4] The law is settled about the test to be applied in an application for leave to
appeal .
[5] The test to be applied in an application for leave to appeal is set out in section 17
(1) (a) of the Superior Court Act1 as follows: -
(i) 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) Where there is some other compelling reasons why the appeal should
be heard, including conflicting judgments on the matter under consideration.
(own emphasis added)
[6] In this application, I am not satisfied that there are compelling reasons why
appeal should be heard, nor are there conflicting judgments on t he subject of this
application and therefore this application squarely falls within the question of whether
the appeal has a reasonable prospect of success.
[7] The test to grant leave to appeal was set out by the SCA in Cook v Morrison and
Another2 as follows: -
1 10 of 2013
“[8] The existence of reasonable prospect of success is a necessary but
insufficient for the granting of special leave. Something more, by way of special
circumstances, is needed. These may include that the appeal raises a substantial
point of law or that the prospects are so strong that a refusal of leave would
result in a manifest denial of justice, or that the matter is of very great importance
to the parties, or to the public. This is not a closed list (Westinghouse Brake and
Equipment ( Pty) Ltd v Bulger Engineering (Pty) Ltd 3, Director of Public
Prosecutions, Gauteng Division, Pretoria v Moabi4”:
[8] The SCA in MEC for Health, Eastern Cape, v Mkhitha 5, emphasized the test for
the leave to appeal as follows in paragraphs -16-17] thereof: -
“[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 Superiors Court’s 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 compelling reason why it should be heard.
[17] 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 argued case or one that is not
hopeless, is not enough. There must be sound, rational basis to conclude
that there is a reasonable prospect of success on appeal”. [own emphasis
added].
In Notshokovu v S (2016) ZASCA 112 at para 2, the SCA indicated that an appellant
faces a “ higher and stringent” threshold under the Superior courts Act. Thus, in relation
2 2019 (5) SA 51 (SCA) (8 March 2019)
3 1986 (2) SA 555 (A) at 564 H- 565E
4 2017 (2) SACR 384 (SCA); [2017] ZASCA 85 para 21
5 (1221/2015) [2016] ZASCA 176 (25November 2016) paras 16-17
to the said sect ion 17, the test for leave to appeal is not whether another court “may”
come to a different conclusion, but “would indeed come to a different conclusion.
[9] In this matter the main judgment deals extensively with settled legal principle that
the allocato r is rescindable, the main judgment refers to authorities which I need not
rehearse again on this point. The main judgment dealt with service of the notice of
taxation, in this, it refers to Uniform rule 70 (4) (a), read together with sub -rule 3B of
uniform rule 70. The rule only requires the taxing master to be satisfied that the party
liable to pay the costs has received a due notice in terms of subrule 3B.The main
judgment further assessed the chronology of email communication between the
parties, befo re and after the taxation. This viewed together with the email from the
applicant’s legal practitioner requesting certain information and undertaking to settle the
impugned bill of costs. At that stage the service of the bill was never an issue,
impliedly it was not contested.
[10] The main judgment is clear and correct on this point. I see no error or
misdirection both on facts and the law as far as it relates to the service of the bill of
costs.
[11] In respect of condonation, in circumstances where the application is void of
merits, dealing with whether or not to grant condonation is simply waste of time, the
main judgment is correct to not have dealt with condonation, where merits have been
found t o be unsuccessful. The court having dealt with the material issue, it was
unnecessary to deal with condonation as prayed, the main application failed on the
principal issue.
[12] I find nothing erroneous in the main judgment finding that the applicant wi llingly
chose not to participate in the taxation process, the main judgment correctly refers to
authorities in it’s reasoning, those authorities stands as the law and principle this court
has to follow.
[13] It is the duty of this court to ensure that the meritless and hopeless application for
leave to appeal does not burden the already overloaded work of the judiciary with
scarce resources, in this case, the full bench of this division.
[14] In this application, I see no reasonable prospect of success t hat another judge
would come to a different conclusion.
[15] This application should therefore fail with costs.
[16] In the result, the following order issues: -
ORDER
1. The application for leave to appeal to the full bench of this division is
refused with costs on scale A of amended rule 67 A.
_______________
M. MHAMBI
Judge of the High Court (Acting)
APPEAREANCES :
Mr. Zilwa N.: counsel for the applicant
Instructed by : Zilwa Attorneys Inc
Mthatha
Mr. Tsipa: counsel for the respondent
Instructed by: Y. Tsipa Attorneys
Butterworth
Date heard: 11 June 2025
Date of delivery: 19 August 2025
Date heard: 20 February 2025
Date delivered: 29 April 2025