REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2022-046095
DATE: 15 October 2025
In the matter between:
MEDTRONIC (AFRICA) (PTY) LIMITED Applicant
and
CAPITAL ENDOVASCULAR (PTY) LIMITED First Respondent
AFRICAN HEALTHCARE INVESTMENT
SOLUTIONS (PTY) LIMITED
(formerly MANIPAL AFRICA (PTY) LIMITED) Second Respondent
Neutral Citation: Medtronic (Africa) v Capital Endovascular and Another
(2022-046095) [2025] ZAGPJHC --- (15 October 2025)
Coram: Adams J
Heard: 15 October 2025
Delivered: 15 October 2025 – This judgment was handed down electronically
by circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and
time for hand-down is deemed to be 11:30 on 15 October 2025.
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Summary: Application for leave to appeal – s 17(1)(a)(i) of the Superior
Courts Act 10 of 2013 – an applicant now faces a higher and a more stringent
threshold –
Leave to appeal granted to the Full Court –
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ORDER
(1) The first respondent’s application for leave to appeal succeeds.
(2) The first respondent is granted leave to appeal to the Full Court of this
Division.
(3) The costs of this application for leave to appeal shall be costs in the
appeal.
JUDGMENT [APPLICATION FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original application by the
applicant for inter alia an order that the Arbitration Award dated 11 July 2022 by
Mr Christopher Loxton SC be made an Order of Court . The arbitration award
incorporated a settlement agreement concluded between the first respondent
and the applicant on 29 June 2022, to be read with addendum 1 thereto dated
11 July 2022 (‘the settlement agreement’). The first respondent is the applicant
in this application for leave to appeal and the respondent herein is the applicant
in the original application. On 5 August 2025 I granted the applicant’s
application and dismissed, with costs, the first respondent’s counterapplication
for rectification. I also ordered the first respondent to comply with the settlement
agreement and to make payment to the applicant in terms thereof.
[2]. The first respondent applies for leave to appeal that portion of my
judgment and the aforesaid order of 5 August 2024 which was in favour of the
applicant and against the respondent, as well as my reasons therefor.
[3]. The application for leave to appeal is based on the provisions of sub -
section (i) of section 17(1)(a) of the Superior Courts Act 10 of 2013, which reads
as follows: -
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‘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) … … …’.
[4]. The application for leave to appeal is against my legal finding that the
settlement agreement should be interpreted such that the first respondent is
liable to pay to the applicant the amount of about R48 million, as against R32
million, as contended for by the first respondent. The Court a quo erred, so the
first respondent contends, in arriving at a conclusion that a proper interpretation
of the settlement agreement, with reference to the factual matrix, led to the
inescapable conclusion that the parties had agreed to a settlement amount of
R48 million. I should have found, so the contention continues, that there was a
patent error in the written agreement, which required to be rectified. The first
respondent furthermore submits I erred in arriving at a conclusion that during
the settlement discussions there was no mention of the R32 million between the
parties. Such matters could only be determined by oral evidence and in any
event involves reliance on pre -contractual negotiations which offends the Parol
evidence rule.
[5]. The Court a quo ought to have arrived at a conclusion , so the case on
behalf of the first respondent concludes, that its application for rectification
ought to be referred for oral evidence or trial on the issue of whether the
settlement agreement fell to be rectified by deletion of the numerical amount of
R48 million in paragraph 1.1 of the agreement and the insertion of the numerical
amount of R32 million in the place thereof or vice versa.
[6]. Nothing new has been raised by the first respondent in this application
for leave to appeal. In my original written judgment, I have dealt with most, if not
all of the issues raised by the first respondent in this application for leave to
all of the issues raised by the first respondent in this application for leave to
appeal and it is not necessary for me to repeat those in full. Suffice to restate
what I say in the judgment, namely that, in my view, the settlement agreement
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concluded between the parties, properly and purposively interpreted in context,
provided for a settlement sum of R48 million plus value added tax. I reached the
same conclusion if one is to regard the dispute between the parties as a factual
one. All things considered, and having regard to the undisputed evidence before
me, it can safely be said that the version of the first respondent can and should
be rejected on the papers as being untenable and far-fetched.
[7]. The traditional test in deciding whether leave to appeal should be
granted was whether there is a reasonable prospect that another court may
come to a different conclusion to that reached by me in my judgment. This
approach has now been codified in s 17(1)(a)(i) of the Superior Courts Act 10 of
2013, which came into operation on the 23 rd of August 2013, and which
provides 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’.
[8]. In Ramakatsa and Others v African National Congress and Another 1, the
SCA held that the test 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 trial court. These
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are
prospects of success.
[9]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate decision, based
on the facts and the law that the Court of Appeal could reasonably arrive at a conclusion
on the facts and the law that the 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
1 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31
March 2021);
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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.’
[10]. In Mont Chevaux Trust v Tina Goosen 2, the Land Claims Court held (in
an obiter dictum) 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. I agree with that view, which has also now been endorsed
by the SCA in an unreported judgment in Notshokovu v S 3. In that matter the
SCA remarked that an appellant now faces a higher and a more stringent
threshold, in terms of the Superior Court Act 10 of 2013 compared to that under
the provisions of the repealed Supreme Court Act 59 of 1959. The applicable
legal principle as enunciated in Mont Chevaux has also now been endorsed by
the Full Court of the Gauteng Division of the High Court in Pretoria in Acting
National Director of Public Prosecutions and Others v Democratic Alliance In
Re: Democratic Alliance v Acting National Director of Public Prosecutions and
Others4.
[11]. I am persuaded that the issues raised by the first respondent in its
application for leave to appeal are issues in respect of which another court is
likely to reach conclusions different to those reached by me. I am therefore of
the view that there are reasonable prospects of another court making factual
findings and coming to legal conclusions at variance with my factual findings
and legal conclusions. The appeal, therefore, in my view, does have a
reasonable prospect of success.
[12]. Leave to appeal should therefore be granted.
2 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
3 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
4 Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC
489 (24 June 2016).
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Order
[13]. In the circumstances, the following order is made:
(1) The first respondent’s application for leave to appeal succeeds.
(2) The first respondent is granted leave to appeal to the Full Court of this
Division.
(3) The costs of this application for leave to appeal shall be costs in the
appeal.
______________________ ____
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 15 October 2025
JUDGMENT DATE: 15 October 2025 – Judgment handed
down electronically
FOR THE APPLICANT: H C Bothma SC
INSTRUCTED BY: DLA Piper South Africa (RF) Inc,
Sandown, Sandton
FOR THE FIRST RESPONDENT: I Pillay SC, with I Veerasamy and
E Bredenkamp (Pupil)
INSTRUCTED BY: Maynard Menon Govind Singh Inc,
Westville, Durban, Kwazulu-Natal
FOR THE SECOND RESPONDENT: No appearance
INSTRUCTED BY: No appearance – Attorneys withdrew