IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CA SE NO : 16469/2023
In the application of:
NETCARE HOSPITALS (PTY) LTD Applicant
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
and (2) OF INTEREST TO OTHER JUDGE S: NO
(3) REVI SED
COMPENSATION FUND
FAKIR N.O., FARZANA
RUITERS N.O., MILDRED
THANDO N.O., JOHN-ROSS
MABUDUSHAN.O, VUYISWA
LAMATI N.O., THOBILE
First Re spondent
Second Re spondent
Third Re spondent
Fourth Re spondent
Fifth Re spondent
Sixth Re spondent
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
Page 2 of 7
NGALWANA AJ
[1] It is axiomatic that the applicable standard in applications for leave to appeal has
in the past been whether there is a reasonable possibility that another Court may or could
come to a different conclusion than that reached by the Court of first instance.
[2] Equally axiomatic, by now, is that the position is now governed by the Superior
Courts Act 10 of 2013 which says leave to appeal may be granted where:
2.1. the appeal would have a reasonable prospect of success 1 or there is some
compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration;2
2.2. the decision sought will have a practical effect or result;3 and
2.3. the appeal would lead to a just and prompt resolution of the real issues
between the parties even where the decision sought to be appealed does not
dispose of all the issues in the case4.
[3] For Acting Judges – such as I – who run relatively busy practices and so can
scarcely find time away from their demanding briefs to focus properly on an application
for leave to appeal again st their judgments, the temptation often lurks to simply grant
leave, thereby shifting their problem to the appeal court , and wander off back into the
warm embrace of – by comparison – handsomely rewarding briefs . Not only is this
approach hardly helpful; it is also a dereliction of duty not only as an officer of the court
but also as a judicial functionary. It also detracts from the court’s dignity and
effectiveness of the court system.
1 Section 17(1)(a)(i)
2 Section 17(1)(a)(ii)
3 The effect of section 17(1)(b) read together with section 16(2)(a)(i) is that where the decision sought will have
no practical effect or result, the appeal may be dismissed on this ground alone.
4 Section 17(1)(c)
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[4] On the other side of this spectrum – and this in my experience applies in equal
measure both to Acting Judges and Permanent Judges – lies the temptation to defend
one’s judgment come Hell or High Water, often driven less by objective application of
law to the facts but more by a sometimes -unacknowledged sense of one’s own
teleological rectitude. It is an insidious judicial temptation that probably causes more
harm to the rule of law than does a lazy passing-of-the buck to the appeal court that I
describe in paragraph 3 above.
[5] Between the two extremes lies a more sensible approach adumbrated by Retired
Deputy Chief Justice Moseneke . In his judicial memoir, All Rise: A Judicial Memoir ,
Justice Moseneke provides sound advice on how to approach an application that seeks
to set aside a judgment of a lower court. He says
“[T]he best route to the kernel of an appeal [is] to read the judgment appealed against
first, followed by the grounds of appeal or grievances against the order. Only thereafter
[should one] venture into the evidence. An astute judge learns quickly which e vidence
is core to the decision to be made and which is merely ancillary... .”5
[6] Although I am not sitting as a court of appeal, this is the guidance I have sought
to follow in dealing with this application for leave to appeal . Having done so, I have
concluded – on a careful consideration o f the judgment sought to be set aside, the
grounds of appeal , the heads of arguments filed at my request , and oral submissions
made by Counsel – that it would be unpardonable louche of this court to grant leave.
[7] Both in its notice of application for leave to appeal and in the written submissions
filed on its behalf, t he applicant advances ten grounds of review. All of them seek to
demonstrate – unsuccessfully – that it has reasonable prospects of success on appeal [(s
17(1)(a)(i)]. It then recycles much of the same argument advanced in the main
17(1)(a)(i)]. It then recycles much of the same argument advanced in the main
application and which this court has already determined and provided reasons for
5 All Rise: A Judicial Memoir (Picador Africa), © 2020, Ch 15: “Tenure and intellectual bonding”, p 127. As
an Acting judge, one is not confronted with “eleven to fifteen cases on the roll per term”. Still, the learning of
this reading skill and technique is vital if one is to navigate without much anxiety the not-so-placid waters that
come with voluminous special motions and experienced Counsel on both sides determined that their respective
causes are right.
Page 4 of 7
dismissing. Regrettably, n one of the argument and grounds of appeal relates to the
aspect of the compelling reason why the appeal should be heard [s 17(1)(a)(ii)]. This
aspect emerged for the first time in oral argument when the court asked Counsel to state
expressly what the argument is based on compelling reason . From the tran script of
proceedings, the following exchange appears:
“COURT : Alright. Just so that I can understand exactly your case on
the compelling reason, just summarise it for me in a paragraph, what
exactly is your case on compelling reasons?
MR STOCKWELL : The compelling reasons has got two components,
M'Lord. The position firstly where Netcare finds it and it has got to
make a decision, do we continue trading, treating workmen, injured
persons if we are not getting paid, and that on the one hand and on the
other hand section 27 and that everyone has the right to healthcare, and
bringing the two together we say it would be a travesty and there will be
constitutional issues if my client is forced to take that decision, which
he does not want to take, M'Lord, but if it comes to the end of the road
and there is no solution, then it has, then certain hard decisions may
have to be taken, M'Lord , and that is what we say there are compelling
reasons, M'Lord. ”
[8] In my view this hardly constitutes a compelling reason for the appeal to be heard.
It seems to me rather a threat that if Netcare does not get its way in the game, it will
take its toys and run away with them. From that it says workmen will be denied a right
to healthcare. This is nothing short of a constitutional issue forcibly manufactured or
shoe-horned into a crisis that Netcare threatens to create . A court should not bow to
what seems to be an inappropriate threat. There is no compelling reason for the appeal
to be heard. Netcare has itself admitted that the CompEasy System has built into it a
to be heard. Netcare has itself admitted that the CompEasy System has built into it a
system of “outgoing notifications for acknowledgement of invoices and payment
remittance advice” . Yet this is the very basis on which it founds its case for the
proposition that the CompEasy System is dysfunctional.
Page 5 of 7
[9] The applicant advances a plethora of grounds of appeal . They range from a
criticism of the main judgment as failing to recognise the ineptitude and inability of the
Fund’s officials in the implementation of the CompEasy system, including their failure
to fulfil their statutory functions;6 to the judgment failing to order that the system fulfil
the basic functions for which it was designed ;7 to the judgment failing to give
consideration to the appointment of an expert to assess the functionality of the system;8
to the judgment failing to follow the approach on disputes of fact as laid down in
Wightman.9
[10] These grounds have already been addressed in the main judgment. The argument
advanced in support of them does not do much to move the needle.
[11] The applicant’s own admission that the Fund “has in place built -in the System
outgoing notifications for acknowledgement of invoices and payment remittance
advice” is in my view a complete answer to its Wightman point. To this averment by
the Fund,10 the applicant’s reply was to admit that the functionality it seeks in prayers
2.3 and 3 of its notice of motion (pars 2 & 3 of its draft order) “is already in place”.11
6 Pars 2, 3, 4, 7, 8, 9 of the notice
7 Par 6 of the notice
8 Par 5 of the notice
9 Par 1 of the notice; Wightman t/a J W Construction v Headfour (Pty) Ltd and Another [2008] 2 All SA 512
(SCA); 2008 (3) SA 371 (SCA), par 13:
“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who
purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be
disputed. There will of course be instances where a bare denial mee ts the requirement because there is no
other way open to the disputing party and nothing more can therefore be expected of him. But even that
may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis
is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the
disputing party must necessarily possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate bu t, instead of doing so, rests his case on a bare or
ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say
‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of
which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or
understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant
factual allegations made by the other party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit
to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately
in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust
view of the matter.”
10 CL 02-242/96
11 CL 02-317/45
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If the very functionality of which it complains in the system is “already in place”, it is
hard to justify an order that the system is dysfunctional.
[12] Many of the issues raised by the applicant in relation to what it says is the
dysfunctionality of the system , relate more to the officials’ inability or failure or
ineptitude in fulfilling their statutory functions. That, as conveyed in the main judgment,
cannot reasonably and validly found a reason for declaring the system itself
dysfunctional.
[13] As regards the criticism that the judgment fails to order that the system fulfil the
basic functions for which it was designed , a court does not have the power to impose
obligations or functions or duties on an organ of state that the legislature has seen fit
not to impose. Nowhere in COIDA, the empowering legislation, or in the regulations
and rules promulgated pursuant to it, is there an obligation on the Fund or any of the
Respondents to perform the functions listed by the applicant in prayers 2 and 3 o f its
draft order that was handed up during argument.
[14] As regards criticism of the judgment as failing to give consideration to the
appointment of an expert to assess the functionality of the system, this presupposes that
there is something amiss in the system which requires inspection and assessment by an
expert. But in light of the applicant’s admission that the functionality of which it
complains “is already in place” , the appointment of an expert to confirm or disprove
that which the applicant admits in its papers would seem rather otiose.
[15] On a conspectus of all the facts as alleged by the applicant, taken together with
the facts as alleged by the first respondent which the applicant has not denied , one
cannot reasonably conclude that the CompEasy system is dysfunctional. If the system
is, on the undisputed facts not dysfunctional , there can be no warrant for a declaratory
is, on the undisputed facts not dysfunctional , there can be no warrant for a declaratory
order to that effect and the appointment of an expert to confirm or disprove what seems
common ground between the parties in the papers. In the result, I do not believe another
court would reach a different conclusion.
Page 7 of7
ORDER
In the result, I m ake the follow ing order:
1. T he application for leave to appeal is dismissed w ith costs on the ordinary scale.
I,. \ \
V N GALWANA
ACTING JUDGE OF THE IDGH COURT
GAUTENG DIVI SION OF THE IDGH COURT, PRETORIA
D elivered: This judgem ent was prepared and authored by the Judge whose nam e is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by em ail and by uploading it to the electronic file of this m atter on
CaseLines. T he date for hand-dow n is deemed to be 05 D ecember 2025.
D ate of hearing: 09 Septem ber 2025
D ate of judgment: 08 Novembe r 2025 and revised on 05 D ecemb er 2025
Appearances:
Attorneys for the A pplicant:
Co unsel for the A pplicant:
Attorneys for R espondents:
Co unsel for First Respondent:
Wha ley & Va n D er Lith Inc
R Stockwe ll SC
State Attorney, Pretoria
M D Mohlamonya ne SC
P Managa