SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case NO: 10481/2018
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
In the MATTER between:
D[...] N[...] APPLICANT
and
P[...] N[...] RESPONDENT
Coram: Kholong, AJ
Date of hearing: 22 September 2025
Date of judgment: 24 October 2025
Summary: Leave to appeal – requirements in terms of section 17 of the Superior
Courts Act.
ORDER
1 The application for leave to appeal is dismissed.
2 The applicant is to pay costs of this application.
JUDGMENT
KHOLONG AJ
Introduction
[1] Applicant has filed an application for leave to appeal against the judgement
and orders of this Court delivered on 6 August 2025 and rulings related thereto.
Background
[2] This application follows this Court’ s judgement granting a decree of divorce
and equitable distribution of the joint estate of applicant and respondent following the
marriage they had entered into on 10 January 2003. Respondent, who is the plaintiff
in the divorce action had prayed that she is entitled to the relief she sought in the
particulars of claim on account of irretrievable breakdown of marriage. Applicant did
not contest that the marriage had broken down irretrievably but had counterclaimed
and sought forfeiture of benefits in his fa vor on account of alleged substantial
misconduct by respondent during the marriage.
[3] This court following a trial that took some eight days found in respondent’s
favor and ordered a decree of divorce. This court declined applicant’s counterclaim
of forfeiture and ordered equitable distribution of the joint estate.
[4] Applicant now seeks leave to appeal this judgement.
[5] The respondent opposes this application.
Grounds of Appeal
[6] The grounds of appeal are divided by applicant in his application into 6 broad
components.
[7] Applicant seeks leave to appeal the order granting equal division of the
parties’ joint estate. He seeks to appeal the order relating to maintenance
arrangements for the minor child and the order directing the applicant to p ay costs.
Applicant does not seek to appeal the order granting the decree of divorce and the
order relating to the care and contact arrangements for the minor child.
[8] He submits in support of his application that the Court erred in law and fact by
fundamentally misdirecting itself on the legal test for forfeiture. He argues that the
court misapplied Wijker v Wijker 1993 (4) SA 720 (A) by failing to properly conduct
the first stage factual inquiry into whether the plaintiff would in fact be benefitted an d
the extent of such benefit. That the court incorrectly elevated the evidentiary
threshold for substantial misconduct by requiring gambling records and expert
reports when the plaintiff’s own admissions were sufficient. The applicant submits
that the cour t misinterpreted the requirement that misconduct be so gross that it
would offend the whole notion of justice to allow the guilty party to get away with the
spoils of marriage.
[9] He submits that the Court erred in paragraph 53 of its judgment by requiri ng
proof of addiction rather than applying the test of substantial misconduct. That the
court disregarded the principle that substantial misconduct includes squandering of
money and other assets of one’s estate which is prejudicial to the other spouse. He
submits that the court failed to recognize that systematic dissipation of R3.9 Million
to R5.2 Million through gambling, constitutes misconduct that is both serious and
substantial within the meaning of Section 9(1). In this regard he contends that the
court incorrectly applied the burden of proof as plaintiff had admitted to spending
court incorrectly applied the burden of proof as plaintiff had admitted to spending
between R3000 and R10 000 per session for about more or less 3 times a week for
approximately 5 years.
[10] Applicant further submits that the court erred in not conducting a meaningful
mathematical analysis of undue benefit despite clear evidence that plaintiff had
dissipated at least R3.9 million through gambling. That the I[...] C[...] restaurant
supposedly valued at R2.7 Million to R4.5 Million failed due to her alleged
mismanagement. That therefore a 50/50 division awards her approximately R11
Million from the joint estate. That this division would effectively give her R14.16
million in total benefit from the joint estate while she has destroyed R6.6 Million to
R8.3 Million in value.
[11] Applicant submits that the Court erred in paragraphs 49 to 50 by finding that
the failure of plaintiff’s restaurant was not due solely to gambling habits when plaintiff
admitted to gambling. That the court incorrectly accepted plaintiff’s explanation
without corroborating evidence and ignored that the restaurant succeeded before her
gambling escalated and succeeded again under her brother’s management.
[12] Applicant submits that the Court erred in not adequately ascribing weight to
the fact that defendant had solely maintained all joint estate properties and solely
supported the minor child. That respondent contributed nothing to property
maintenance despite properties being under her notional control as a person who
rented out properties and collected.
[13] He argues that the court made errors in factual findings in paragraphs 13 to
16 by failing to recognize that defendant paid all bonds throughout the marriage.
That plaintiff collected rental income and was entitled to retain and use surplus funds
after paying levies and municipal accounts. That this arrangement was financially
advantageous to plaintiff who effectively received income from properties for which
defendant bore financial burden.
[14] He further submits that this court erred in paragraph 16 by accepting plaintiff’s
version when there was no evidence that any substantial amount of money was
received by defendant from this sale. That debt accrued on properties because
plaintiff stopped collecting rent and paying sundry expenses. Plaintiff argues that the
plaintiff stopped collecting rent and paying sundry expenses. Plaintiff argues that the
court erred in accepting plaintiff’s evidence in paragraph 15 regarding blank cheques
when amounts referenced were deposits to secure properties, not blank cheques.
That these amounts were either returned to plaintiff or recovered from rental income.
That this mischaracterization contributed to an incorrect assessment of financial
arrangements. That the court erred in noting that defendant paid the one bond since
2018 when defendant actuall y started paying the particular bond since 2008. That
the court erred in comparing the gambling habits of the plaintiff to the habits of the
defendant in playing the lottery and his visits to the tote.
[15] He proceeds to submit that this Court erred in f ailing to accord due weight to
the fact that plaintiff concealed her gambling addiction from defendant for
approximately 6 years and did not put any money back into the joint estate despite
winnings. That the court made factual errors and did not adequatel y consider the
credibility issues regarding plaintiff’s evidence. Further that the court did not deal
with the evidence of Niranj Pather; K[...] N[...] and Kriegen Naicker properly, which
evidence bears on the credibility of plaintiff.
[16] He submits fur ther that the court failed to adequately interrogate the
suspicious circumstances where the I[...] C[...] restaurant was liquidated with debts
of approximately R400 000 and now a substantially similar business operates under
plaintiff’s brother. Further th at the court did not accord due weight to plaintiff’s
admission that she kept R1.2 Million for herself and only giving R250 000 to
defendant. He states that the court failed to place sufficient weight on the minor
child’s evidence that defendant had become primary caretaker which is relevant to
assessment of contributions.
[17] Applicant proceeds to contend that the court erred in ordering equal sharing of
the minor child’s costs without considering that plaintiff will receive approximately
R11 Million fro m the joint estate and the fact that that alters her financial capacity.
This notwithstanding the fact that defendant had been the sole financial supporter
since 2018. That equal cost -sharing is inappropriate where one parent receives a
windfall and another bears primary care responsibilities.
windfall and another bears primary care responsibilities.
[18] In respect of costs order, applicant submits that the court erred in awarding
costs against defendant despite plaintiff’s substantial misconduct being established
through her own admissions and finding that cos ts follow the result. That no reasons
were given by this court for departing from normal costs principles. That having
regard to the foregoing it would be in the interest of justice for leave to appeal to be
granted as another court would come to a different conclusion.
[19] Respondents in opposition to this application submit that defendant fails to
specify in clear unambiguous terms what the findings of fact and or law are which he
wishes to take on appeal. Respondent argues that applicant refers to vari ous errors
and failures which this court has made but fail to specify the particular findings of
facts or law which was made by this court as a result of such errors or failures. She
states that the complains, propositions and contentions contained in para graphs 2 to
19 are so widely specified and intertwined that it is impossible to discern to which
specific findings of fact or law they relate to.
[20] Respondent point to this court that applicant fails to properly specify the actual
grounds upon which he intends to found his appeal, or to properly indicate to which
findings of fact or law these grounds relate to. That the application thus does not
comply with the requirements of section 17 of the Superior Court Act of 2013 or rule
49(1) in that it is so v ague, ambiguous and confusing that respondent is not properly
informed of the case which she needs to meet in order to oppose this application for
leave to appeal. Accordingly, that for this reason alone the application falls to be
dismissed.
[21] Respondent proceeds to point out in respect of prayer 3 relating to
appointment of receiver/liquidator, that applicant fails to specify any findings of fact
or law upon which he relies in order to take this court’s decision to grant an order for
the appointment of a receiver/liquidator on appeal. He also fails to set out any
grounds why he should be allowed to do so.
[22] In regard to the minor child’s maintenance, respondent points out that the
terms of this order was made by agreement between the parties. The minor child’s
terms of this order was made by agreement between the parties. The minor child’s
maintenance was not in dispute during the trial and the relevant terms were in any
event in accordance with defendant’s prayer 8 as contained in his counterclaim. She
reminds this court that when the legal representatives addressed the court at the
commencement of the trial, applicant’s legal representative confirmed that defendant
was in agreement to the terms of paragraph 7 and 8 set out in plaintiff’s proposed
draft order. As a result, neither party presented any evidence to the court in th is
regard. That it was thus unconscionable for the defendant to now want to take an
order on appeal which he himself requested and consented to at the trial.
[23] In respect of costs respondent points out that the court granted all the orders
which plaint iff had requested and dismissed defendant’s claim for forfeiture, which
was the central issue which the court had to determine in the trial. That by granting
the cost order in favor of plaintiff, the successful party in both the action and the rule
43 appl ication, the court merely followed the principle that costs follow the result.
Respondent argues that it is thus ridiculous for defendant to state that the court
provided no reason for departing from the normal costs principle, when the court did
in fact not depart from the normal cost principle.
[24] Respondent points out that the application for leave to appeal does not
contain the standard allegation that the intended appeal has a reasonable prospect
of success. They point out that defendant has in any event failed to make out a case
upon which this court can find out that this appeal has a reasonable prospect of
success as envisaged in Section 17(2) of the Superior Court Act. That the
application is thus an abuse of the court processes and yet another a ttempt by
applicant to frustrate and further delay the division of the joint estate.
The Law
[25] Section 17(1) of the Superior Courts Act1 reads:
“(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 judgements on the matter under consideration”.
[26] The Supreme Court of Appeal in Notshokovu2 noted that an appellant faces
a higher and stringent threshold in terms of the Act compared to the provisions of the
a higher and stringent threshold in terms of the Act compared to the provisions of the
1 Superior Courts Act 10 of 2013.
repealed Supreme Court Act 59 of 1959 . Whilst Erasmus in its commentary
observed that this remark by the SCA was obitur dictum as far as it possibly rel ates
to section 17(1)(a)(i), it is significant that the Notshokovu remark was applied in
applications for leave to appeal under section 17(1)(a)(i) of the Act in Mtungwa v
Premier of Kwazulu -Natal3, Talhado Fishing Enterprises (Pty) Ltd v Firstrand
Bank Ltd t/a First National Bank 4 and Mombeeg (Pty) Ltd v Eskom Rotek
Industries SOC Ltd5.
[27] In MEC for Health, Eastern Cape v Mkhitha 6 the Supreme Court of Appeal
held that leave to appeal, especially to that court must not be granted unless there
truly is a reasonable prospect of success. The Court noted in this judgement that the
Superior Courts Act makes it clear that leave to appeal may only be granted 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 it should be heard.
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. The Court
noted that 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 ther e
is a reasonable prospect of success on appeal. A mere possibility of success is
insufficient7.
[28] Erasmus8 in its commentary observes that from this foreshadowed list of
authorities following enactment of the new Act, it follows that leave to appeal must
only be granted when there is a rational basis for doing so. This court concurs.
2 Notshokovu v S ( unreported, SCA case no 157/15 dated 7 September 2016.)
3 Mtungwa v Premier of Kwazulu Natal, unreported, KZP case no 3618/22P dated 28 February 2023
at para 5.
4 Talhado Fishing Enterprises (Pty) Ltd v Firstrand Bank Ltd t/a First National Bank, unreported ECGq
case no 1104/2022 dated 14 March 2023 at para 3.
case no 1104/2022 dated 14 March 2023 at para 3.
5 Mombeeg (Pty) Ltd v Eskom Rotek Industries SOC Ltd, unreported, Gj case no 2021/15418 dated
27 March 2023 at para 9.
6 MEC for Health, Eastern Cape v Mkhitha, unreported, SCA case no 1221/2015 dated 25 November
2016
7 Kingfisher Fuels cc t/a BP Braamfontein v BP Southern Africa (Pty) Ltd and Another 2025 JOL
68828 (GJ) para 12-19.
8 Erasmus, Superior Court Practise, vol 1 3 rd edition, service 4, 2024 at D-106.
[29] The reasons for this court’s judgement are set out in its main judgement
handed down on 6 August 2025. This court will thus not relitigate the same points or
factual matrix dealt with during the trial and judgment as appli cant sought to do in his
submissions before this court in support of his application as the reasons are set out
in the judgement on record. It is also trite that the mere fact that a point is not stated
in the judgment does not mean it was not considered. The court will thus simply
examine remaining unattended salient features of this application which are relevant,
in this court’s opinion, to its assessment of the application for leave to appeal.
[30] On the facts before this court the main issue which t he court had to determine
was the counterclaim by applicant, namely his prayer in his counterclaim that the
wife and respondent herein forfeit her benefits arising from the marriage they had
entered in community of property in 2003 because of gambling addi ction which he
submitted constituted substantial misconduct warranting forfeiture. This court
concurs with submission by respondent that there was no dispute between the
parties during the trial that lasted some 8 days about the maintenance of the minor
child. To now seek to appeal that order which was not in dispute is misplaced.
[31] At the beginning of the trial both parties indicated consensus amongst them in
respect of maintenance arrangements for the minor child. The minor child’s
maintenance was thu s not in dispute and the relevant terms were in any event in
accordance with defendant’s own prayers 11 and 12 contained in his own
counterclaim which had built on paragraph 8 thereof. To now turn around and seek
to appeal this court granting an order whic h applicant had prayed for is respectfully
an abuse of court process.
[32] This court following argument by the parties and weighing the record concurs
with respondent that when the legal representatives addressed the court at the
with respondent that when the legal representatives addressed the court at the
commencement of the tri al, defendant’s legal representative confirmed that
defendant was in agreement to the terms of paragraph 7 and 8 set out in plaintiff’s
proposed draft order. As a result neither party presented any evidence to the court in
this regard. It is indeed unconsc ionable for the defendant to now want to take an
order on appeal which he himself requested and consented to at the trial.
[33] Applicant seeks to appeal to the supreme court of appeal. The orders which
applicant seeks to appeal do not involve in this cou rt’s opinion a question of law of
importance as contemplated in section 17(6)(a) 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 or the administrati on of justice either
generally or in this particular case requiring consideration of the supreme court of
appeal.
[34] Paragraphs 2 to 19 of the notice of appeal refers to various errors and failures
of this court but fail to specify the particular findings of facts or law made as a result
of such failures. It does not set out clearly the grounds of appeal applicant actually
intends to rely on for the appeal. The various submissions made in support of the
application are so widely stated that it is difficult to establish which specific incorrect
findings of fact or law they relate to. Plaintiff correctly complains that she is n ot
properly informed of the case she needs to meet. This court thus concurs with
argument by respondent that the application does not comply with the requirements
of section 17 of the Superior Court Act.
[35] Applicant can also not seek to lift irrelevant material or evidence to the central
question he brought before this court as set out in paragraph 9 of his counterclaim as
a basis for leave to appeal. Plaintiff’s case as set out in the counterclaim is that
plaintiff had a gambling addiction which not on ly according to him led to irretrievable
breakdown of marriage but also constituted substantial misconduct within the
meaning of section 9(1) of the Divorce Act, 70 of 1979.
[36] Respondent’s conduct including financial difficulties after separation with
applicant is in this court’s view not relevant to the central question of determination of
forfeiture because of gambling addiction. Respondent never contested that she
forfeiture because of gambling addiction. Respondent never contested that she
gambled before this court as a social activity. She did not, however, admit to having
a gambling addiction as contended by applicant in its counterclaim. It follows
therefore that applicant had a duty to prove such addiction, which in this court’s view
applicant failed to do. The evidence of Mr. Kammal N[...], Kriegen Naicker and Niranj
Pather is assessed in that context. Work or business arrangements between
respondent and his brother are also not relevant to forfeiture determination but have
in any event been addressed by the order to appoint a liquidator to assess the
movement of assets by both parties. This complaint is thus misplaced.
[37] Nothing also turns in this court’s view on whether applicant started paying one
bond in 2008 or 2018 as it was common cause that applicant paid the bond. Nor the
property management arrangements desp ite the fact that the evidence put before
this court which this court accepted was that when the parties married applicant
moved into a property in 2003 then owned by respondent. This court finds that points
taken in paragraphs 8 and 9 like many other poin ts from paragraphs 2 to 19 of the
notice of application for leave to appeal are no more than attempts to relitigate the
same points considered by this court in evidence and determined. They do not set
out how the alleged errors as alleged by applicant bear relevance to forfeiture or
substantial misconduct which was the central issue put before this court.
[38] In paragraph 1 of its application, applicant contends that this court erred in its
application of the two -stage test established in Wijker v Wijker by failing to properly
conduct the first stage factual inquiry into whether plaintiff would be benefitted and
the extent of such benefit. Paragraph 32 to 35 of the judgment clearly apply the initial
test being determination of whether plaintiff would be b enefitted if an order of
forfeiture was not granted. Paragraph 44 of the judgment accepted that the burden to
prove this benefit rested on defendant. Applicant has not suggesting that the court
erred in finding that such burden of proof rested on them.
[39] This court also concurs with submission by respondent that applicant did not
contend in its application that the court erred in finding that both parties brought
assets into the marriage and that respondent’s property was used as the parties’
marital home for about 3 years into the marriage; accepting respondent’s evidence
marital home for about 3 years into the marriage; accepting respondent’s evidence
about various contributions she had made to the joint estate; that the court took into
consideration that the parties’ marriage had lasted nearly 20 years and respondent
had contribute d reasonably therein not only financially and in kind but also raising
the minor child as the child only moved in with applicant in June 2019. Applicant
failed to prove the nature and extent of the benefit which respondent would receive if
no forfeiture order was granted. In the light of applicant’s failure to prove its case the
court could not have erred by not granting the forfeiture order.
[40] The legal position is clear that unless the party asking for forfeiture was able
to prove the nature and extent of such benefit, the court could not determine whether
such benefit was undue. The court in any event gave consideration to the allegations
of misconduct. It considered the requirement that the misconduct must be so gross
that it would offend the whole notion of justice to allow the guilty party to get away
with the spoils of marriage, a requirement as set out in the judgment that has been
cited with approval by our courts in many cases dealing with the matter. Applicant
fails to indicate how this requirement was misinterpreted.
[41] Equally, the complaint to seek to appeal the costs order is without merit as
costs were awarded to the successful party in both the rule 43 and in the main
divorce action which is the respondent. This court had found that a pplicant had not
proven its case for forfeiture on account of substantial misconduct. Accordingly,
costs as a matter of established principle had to follow the result.
[42] This court finds that applicant has not only failed to aver in its application tha t
there are reasonable prospects of success but has in the light of the foregoing also
failed in setting out the grounds to satisfy this court that there are indeed reasonable
prospects that another court may come to a different conclusion.
Conclusion
[43] This Court thus concludes that leave to appeal has no merits and falls to be
dismissed.
Costs
[44] Applicant and respondents have asked for costs. This Court is satisfied that
respondents are entitled to costs including costs of Counsel.
Order
Accordingly, I would make the following order:
[45] The application for leave to appeal is dismissed.
[46] The applicant is to pay costs of this application.
__________________________
KHOLONG, AJ
Appearances:
For the Applicant: TJC Dunn Attorneys.
For the Respondent: Adv T-A. Pratt.
Instructed by: L Truter & Associates Inc.