IN THE IDGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
PETER WILLE
and
THE SCHOOL GOVERNING BODY:
DRBoHMERSECONDARYSCHOOL
THE FREE STATE DEPARTMENT:
EDUCATION
Not Reportable
Case no: 2851/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral Citation: Wille v The School Governing Body: Dr Bohmer Secondary School
and Another (2851/2024) ZAFSHC 280 (5 September 2025)
Coram: Opperman J
Heard: 26 August 2025
Delivered: The judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 5 September 2025 at 15h00
Summary: Application for leave to appeal - reasonable prospect of success -
exceptions - application dismissed with costs.
2
ORDER
1 The application for leave to appeal is dismissed.
2 The applicant to pay the costs to be taxed on scale A for the first respondent
and scale C for the second respondent.
JUDGMENT
Opperman J
[1] The application for leave to appeal that lies before this Court relates to a matter
that served before Nemavhidi AJ. 1 On 14 March 2025 the court upheld some
exceptions by the first and second respondent and ordered that:
'[l] Plaintiff shall file an amendment of the particulars of claim within twenty (20) days in order
to enable the first and the second defendants to file their pleadings.
[2] Plaintiff shall pay the costs which shall include the costs of two counsel on scale A of Rule
67A.'
[2] The cause of the action arose from proceedings instituted by the applicant ( an
educator) for damages arising from 'malicious prosecution and resultant psychiatric
injury'. The applicant was accused by a learner at the school of having been sexually
harassed by him. The school governing body (SOB/first respondent) reported these
allegations to the Department of Education (the Department/second respondent). The
Department then instituted disciplinary proceedings against the applicant. The
proceedings were later discontinued.
1 The presiding officer's term as acting judge lapsed and the matter is entertained in terms of s 17(2)(a) of the Superior
Courts Act 10 of20 I 3 read with rule 49(1 )(e) of the Uniform Rules of Court in that leave to appeal may be granted by
the judge or judges against whose decision an appeal is to be made or, if not readily available, by any other judge or
judges of the same Court or D ivision.
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[3] The reasons for judgment in terms of rule 49(1)(c) by the Court indicate that
the SGB excepted (first exception) to the fact that malicious prosecution does not
extend to internal disciplinary proceedings - save in the very narrow circumstances
where the proceedings are akin to criminal proceedings. The Department excepted
(second exception) on the basis that:
'[T]he allegations pleaded in the amended particulars of claim are materially deficient and do not
support the damages claimed from the second defendant. The plaintiff failed to plead any basis in
fact and/or in law upon which a cause of action may be sustained against the second defendant.'
Imperative is the factual reality that the SGB did not prosecute the applicant.
[4] Erasmus2 depicts the matter of exceptions aptly:
(a) An exception is a legal objection to the opponent's pleading;
(b) it complains of a defect inherent in the pleading: admitting for the moment that
all the allegations in a summons or plea are true;
( c) it asserts that even with such admission the pleading does not disclose either a
cause of action or a defence, as the case may be;
( d) it follows that where an exception is taken, the court must look at the pleading
excepted to as it stands together with facts agreed to by the parties, if any;
( e) no facts outside those stated in the pleading can be brought into issue - except
in the case of inconsistency; and no reference may be made to any other document.
This is precisely the difference between exceptions on the one hand, and pleas in bar,
dilatory pleas, pleas in abatement and dilatory special pleas, on the other hand: the
latter usually introduce fresh matter which requires to be proved by evidence.
[5] On the first exception, the court ruled that the disciplinary proceedings brought
against the applicant are not analogous to a criminal prosecution by a statutorily
created tribunal that is able to impose sanctions that are punitive in nature. T he law of
created tribunal that is able to impose sanctions that are punitive in nature. T he law of
malicious prosecution does not extend to the disciplinary proceedings in this matter.
2 Superior Co urt Practice, V olume 2: U niform Rules and App endices, Rules of Co urt, 23 Exceptions and applications
to strike out, RS 26, 2025, DI Rule 23-4, Jutastat.
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Nor has the applicant pleaded any facts to support such an allegation. As such, no
cause of action exists in common law against the SGB. The court proceeded to explain
the finding with reference to the law.
[ 6] The reasons on the second exception by the court are that:
'[12] The allegations pleaded in the amended particulars of claim are materially deficient and do
not support the damages claimed from the second defendant. The Plaintiff failed to plead any basis
in fact and/or in law upon which a cause of action may be sustained against the second defendant.
The amended particulars of claim are deficient as set forth hereunder:
(i) The Plaintiff in his amended particuJars of claim alleges that in August 2018 the SGB
intentionally, maliciously, and wrongfully set a disciplinary investigation against the Plaintiff in
motion by laying a complaint of sexual harassment involving a learner at the school against the
Plaintiff with the Department of E ducation.
(ii) Because of the SGB's conduct, the Department suspended the Plaintiff on 10 September
2018 based on allegations of sexual harassment involving the said learner and instituted disciplinary
proceedings against the Plaintiff.
(iii) The Plaintiff failed to plead any facts in support of the allegation that the Department did
not have probable cause to do the aforegoing,"nor did it have any reason to believe in the truth of
the information on which it based its decision ... "
(iv) No facts are pleaded by the Plaintiff as to why the disciplinary proceedings were baseless
and that there were no reasonable prospects of securing a guilty finding.
(v) The Plaintiff claims that the charges were withdrawn on 29 August 2022 but withholds that
the reason for the withdrawal was that the learner who was the complainant had absconded.
(vi) Sexual harassment of a learner constitutes serious misconduct for which an educator must
be dismissed if he is found guilty as prescribed in sl 7(1)(b) of the E mployment of Educators Act,
76 of 1998 (the Act).
76 of 1998 (the Act).
In sl 7(2) of the Act, if it is alleged that an educator committed a serious misconduct contemplated
in subsection (1), the employer must institute disciplinary proceedings in accordance with the
disciplinary code and procedures provided for a Schedule 2 to the Act.
The second Defendant was obliged to institute disciplinary proceedings as enjoined by sl 7(2) of the
Act.
(vii) The Plaintiff failed to plead any facts and/or circumstances in terms of which the second
Defendant was entitled to ignore.
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(viii) It is not competent to bring a claim against the second Defendant based on the disciplinary
proceedings instituted against the Plaintiff where this was done in the execution of a statutory duty.
(ix) The Plaintiff failed to plead facts to support a claim for malicious prosecution.
(x) The second Defendant is not the National Prosecuting Authority, and the Plaintiff is not
competent to sue the second Defendant for malicious prosecution.
The Plaintiff failed to plead malice/animus injuriandi (sic) on the part of the second defendant.'
[7] The elaborate grounds of appeal3 as depicted in the application for leave to
appeal were summarised by counsel for the applicant in paragraphs 3 .1 to 3 .11 of their
heads of argument. It was now limited from 23 issues, in the notice for leave to appeal
to 11. The applicant contended that the court erred in its previous findings regarding
the law of malicious prosecution and related issues arising from the disciplinary
proceedings. These grounds are as follows:
(a) Malicious Prosecution and Disciplinary Proceedings
It is argued that the court erred in concluding that the law of malicious prosecution
does not apply to the disciplinary proceedings at issue in this matter. The applicant
maintains that a cause of action in common law exists against the respondents in
respect of such proceedings.
(b) Approach to Allegations in the Pleadings
The applicant submits that the court erred in law by not considering that, when
determining an exception, all allegations of fact in the particulars of claim must be
accepted as true. Furthermore, the court should not have relied on extraneous facts
3 ln Himunchol v Moharom 1947 (4) SA 778 (N) para 780 the court held: 'What the rule contemplates is that, in framing
bis grounds of appeal, an appellant shall specify the findings of fact he appeals against, and the rulings of law, and the
object is that his opponent shall be made aware of points taken by the appellant and the court of appeal shall be apprised
of the issues which it is asked to decide ... it is essential that the grounds of appeal should be framed in such a way that
the issues to be decided by the court of appeal are clear.' Also see Hing and Others v Road Accident Fund (A440/2011,
Al39 /2012) [2014] ZAWCHC 15; [2014] 2 All SA 186 (WCC) ; 2014 (3) SA 350 (WCC) (13 February 2014) para 4:
' ... The effect of the notice of application for leave to appeal was to suggest that he had misdirected himself at every
turn in making any findings adverse to their claims. In the context of his detailed and fully reasoned judgment, it could
not reasonably have been assumed by the appellants or their legal representatives that by granting leave to appeal in the
terms he did, the judge meant to be understood to be acknowledging that such wide-ranging error and misdirection on
his part might reasonably be established on appeal. On the contrary, the manifestly indiscriminate formulation of the
grounds on which the application for leave to appeal was brought brings to mind the observation ofa US Appeals Court
judge that when he sees 'an appellant's brief containing seven to ten points or more, a presumption arises that there is
no merit to any of them'.'
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outside of those pleadings.
(c) Wrongfulness of the First Respondent's Conduct
The applicant contends that the court erred in finding that the applicant failed to plead
sufficient facts to support the allegation that the first respondent's conduct was
wrongful.
( d) Vagueness of Allegations Regarding Malicious Initiation
It is further argued that the court erred in concluding that the applicant's allegation
that the first respondent intentionally, maliciously, and wrongfully initiated a
disciplinary investigation against the applicant by lodging a complaint of sexual
harassment involving a learner at the Department-was vague.
( e) Instigation Versus Institution of Proceedings
The applicant asserts that the court failed to appreciate that, for a claim of malicious
proceedings, it is sufficient for the applicant to allege that the respondent set the law
in motion, whether by instigating or instituting the proceedings. The particulars of
claim alleged that the first respondent instigated the proceedings, and it was therefore
not necessary to allege that the first respondent actually instituted them.
(f) Causation Regarding the First Respondent
The applicant submits that the Court erred by finding that the applicant did not plead
adequate allegations to satisfy the requirement for causation in relation to the first
respondent.
(g) Sufficiency of Allegations Against the Second Respondent
It is also argued that the Court erred in determining that the allegations in the
particulars of claim are materially deficient and do not support the applicant's claim
for damages against the second respondent.
(h) Facta Probantia and Particulars of Claim
The applicant contends that the Court failed to consider that the facts relating to the
reasons why the disciplinary proceedings were baseless constitute facta probantia,
which are not required to be included in the particulars of claim.
(i) Execution of Statutory Duty
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The applicant argues that the Court erred in finding that the disciplinary proceedings
were instituted against the applicant in the execution of a statutory duty.
G) Pleading Facts for Malicious Prosecution
It is further submitted that the Court erred in finding that the applicant did not plead
the requisite facts to sustain a claim for malicious prosecution.
(k) Competency to Sue the Second Respondent
Finally, the applicant argues that the Court erred in finding that, because the second
respondent is not the National Prosecuting Authority, the applicant could not
competently sue the second respondent for malicious prosecution.
[8] The first and second respondents discuss the law and facts of the exceptions
and grounds of appeal on each of the above issues in the utmost detail in their heads
of argument. Their deduction of the law and facts, as well as submissions are correct.
It negates the grounds of appeal by the applicant completely. It needs not be repeated
since it is clear and unambiguous and supported by the prevailing law and
corroborates the judgment a quo.
[9] Meritless appeals may not be allowed. The test in an application for leave to
appeal is simply whether there are any reasonable prospects of success in an appeal,
not whether a litigant has an arguable case or a mere possibility of success. The
Supreme Court of Appeal has, in the past, criticized the regularity with which leave
to appeal is granted in matters not deserving its attention. Marais AJ stated that:
'The inappropriate granting ofleave to appeal to this court increases the litigants' costs and results
in cases involving greater difficulty and which are truly deserving of the attention of this court
having to compete for a place on the court's roll with a case which is not.'4
[ 1 O] The right to appeal is, among others, managed by the application for leave to
4 Shoprite C heckers (Pty) Ltd v Bump ers Schwarmas CC and Others (231/2002) [2003) Z AS C A 57; [2003) 3 A ll SA
123 (SCA ); 2003 (5) SA 354 (SCA ) (30 May 2003) para 6.
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appeal. It may not be abused but the hurdle of an application for leave to appeal may
never become an obstacle to justice in the post-constitutional era. Section 17 of the
Superior Courts Act 10 of 2013 is the law here. The test demands a greater measure
of certainty of a different outcome on appeal. The stipulation should not be interpreted
as setting the bar so high as to deny an applicant any chance of being granted leave to
appeal. This is not what the legislature intended. HB (Nee D.J) v R .J.B {Leave to
Appeal)5 clarified the case law that developed after the legislation was enacted; I will
not reiterate it.
(11] With regard to the meaning of reasonable prospects of success, it was held, in
S v Smith, 6 that:
'What the test of reasonable prospects of success postulates is 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 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 are not remote but have
a realistic chance of succeeding. More is required to be established than 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.'
(12] The respondents are justified, given the facts in casu, the law and the judgment
a quo, in the submission that the applicant's remedy was to amend their particulars of
claim to remove the lawful complaints as ordered in the court a quo. The application
for leave to appeal must be dismissed. Costs must follow the cause and it will be so
ordered.
Order
(13] It is ordered as follows:
5 H.B (Nee D.J) v R.J.B (leave to Appeal) (21480/2014) [2024] ZAGPPHC 40 I (2 April 2024).
6 SvSmith [201 I] ZASCA 15; 2012 (I) SACR 567 (SCA) para 7.
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1 The application for leave to appeal is dismissed.
2 The applicant to pay the costs to be taxed on scale A for the first respondent and
scale C for the second respondent.
Appearances
For the applicant:
Instructed by:
For the first respondent:
Instructed by:
For the second respondent:
Instructed by:
J Els
ML OPPERMAN
JUDGE OF THE HIGH COURT
Blair Attorneys, Bloemfontein
E Webber
Horn & Van Rensburg Attorneys, Bloemfontein
RT Williams
Office of the State Attorney, Bloemfontein.