IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
RENe VAN HEERDEN NO
CHRISTIAAN WAGENAAR NO
STEPHANUS PHILLIPUS VAN HEERDEN NO
(In their capacity as trustees of the Rene Boerdery Trust,
IT1551/01)
and
ALBERTUS WYNAND PRETORIUS NO
PETRUS JOHANNES JOUBERT NO
(In their capacity as trustees of the Pretorius Familie Trust
IT1551/97)
Not Reportable
Case no: 1220/2023
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: R van Heerden NO and Others v AW Pretorius NO and Others
(1220/2023) [2025] ZAFSHC 299 (17 September 2025)
Coram: Van Zyl J
Heard: 12 September 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by e-mail and released to SAFLII. The date and time for hand down is
deemed to be 11 h00 on 17 September 2025.
Summary: Application for leave to appeal granted.
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ORDER
1 Leave is granted to the applicants to appeal to the full court of the Free State Division
of the High Court against the whole of the judgment and orders of Majosi, AJ, dated 10
June 2025.
2 The costs of the application for leave to appeal are costs in the appeal, with counsel's
fees to be taxed on scale B.
JUDGMENT
Van Zyl J
[1] This is an application for leave to appeal against the whole of the judgment and order
of Majosi AJ (as she then was), delivered on 10 June 2025.
[2] This application was allocated to me on the basis of the provisions of Section
17(2)(a) of the Superior Court's Act, 10 of 2013 ('the Act'), in terms whereof an application
for leave to appeal may be heard by any other judge of the Division when the judge against
whose decision the appeal is to be made is not readily available. Majosi's acting stint had
been concluded at the time of the hearing of this application.
[3] The applicants in this application were the plaintiffs in the action in the court a quo
and the respondents were the defendants in the said action.
[4] On the trial date, the respondents and their legal representatives were in default and
it was directed that the matter proceed on the merits in terms of Rule 39(1) of the Uniform
Rules of Court. The court a quo also granted leave to the applicants to lead expert
evidence by way of affidavit in terms of Uniform Rule 38.
General principles applicable to applications for leave to appeal:
[5] In terms of Section 17(1)(a) of the Act 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 why the appeal should be heard.
[6] In Acting National Director of Public Prosecutions v Democratic Alliance In Re
Democratic Alliance v Acting National Director of Public Prosecutions (19577/09) [2016]
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ZAGPPHZ 489 (24 June 2016), the court held (at para 25 of the judgment) that the Act
has raised the bar for granting leave to appeal and in this regard it referred to the judgment
of The Mont Chevaux Trust (IT 2012128) v Tina Goosen and 18 Others 2014 JDR 2325
(LCC), where the following was stated:
'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 & Others 1985 (2) SA 342 (T) at 343H. 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.'
See also Rohde v S 2020 (1) SACR 329 (SCA) para 8 and Fair-Trade Independent
Tobacco Association v President of the Republic of South Africa and Another
(21688/2020) [2020] ZAGPPHC 311 (24 July 2020) para 4.
[7] In Municipality of Thabazimbi v Badenhorst (66933/2011) [2024] ZAGPPHC 195 (26
February 2024) at paras 9 - 11 the court also dealt with the more stringent test for an
application for leave to appeal and held, inter alia, as follows:
'(9] ... A possibility and discretion were therefore, in the words of the legislation and consciously
so, amended to a mandatory obligatory requirement that leave may not be granted if there is no
reasonable prospect that the appeal will succeed. It must be a reasonable prospect of success;
not that another Court may hold another view.
[10) The Court a quo may not allow for one party to be unnecessarily put through the trauma and
costs and delay of an appeal. ...
(11) In MEG Health, Eastern Cape v Mkhitha (1221/2015) (2016) ZASCA 176 (25 November 2016)
the Supreme Court of Appeal held: " ... [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
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."'
The basis on which leave to appeal is being sought
[8] The applicants have filed a comprehensive application for leave to appeal which they
set out three main grounds of appeal.
[9] In the heads of argument of Mr Van der Merwe filed in the application for leave to
appeal, he eloquently summarized the applicants' three main grounds of appeal to be the
following:
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'11.1 The first ground relates to the fact that the Court a quo had misconstrued the pleadings on
which evidence was led.
11 .1.1 The applicant trust deals in detail with the ground upon which it alleges the court a quo
erred in paragraphs 1 to 1.8 of the application for leave to appeal and it is submitted that a proper
case has been made out that leave to appeal be granted in respect of the first ground of appeal.
11.2 The second and third ground of appeal relate to the applicant trust's claim which is contained
in the applicant's amended particulars of claim as 'claim two' and 'claim three', both of which were
dismissed by the Court a quo;
11.2.1 The applicant contends that the Court a quo dismissed this claim based on findings which
did not form part of the pleadings and in respect of which the respondents did not lead any
evidence. These findings were made in conflict with the principles set out in Jowell v Bramwell
Jones supra.
11.2.2 The applicant trust deals in detail with the ground upon which it alleges the Court a quo
erred in paragraphs 2 to 2.9 and 3 to 3.9 of the application for leave to appeal and it is submitted
that a proper case has been made out that leave to appeal be granted in respect of the second
and third ground of appeal.
12. At paragraph 4.2 to 4.5 of the applicant trust's application for leave to appeal, the applicant
trust refers to a number of judgments which illustrates that the Court a quo erred in respect of the
Court a quo's application of a trite legal principle regarding the enquiry as to factual causation and
the onus of establishing causation.'
Conclusion
[1 O] I have read the record of the proceedings in the court a quo, considered the
pleadings, the notice of application for leave to appeal and the arguments presented by
Mr van der Merwe .
[11] After due consideration of the aforesaid, I am of the opinion that the appeal would
have reasonable prospect of success on the basis as set out in the application for leave
to appeal.
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[ 12] The applicants are seeking leave to appeal to the full court of this Division of the
High Court and that the costs of the application be costs in the appeal. I deem same the
appropriate order to be made in the circumstances.
Order
(13) The following order is made :
1 Leave is granted to the applicants to appeal to the full court of the Free State Division
of the High Court against the whole of the judgment and orders of Majosi, AJ, dated 10
June 2025.
2 The costs of the application for leave to appeal are costs in the appeal, with counsel's
fees to be taxed on scale B.
• CVANZYL
JUDGE OF THE HIGH COURT
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Appearances
For the applicants: R van der Merwe
Instructed by: Phatshoane Henney Inc, Bloemfontein.