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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO. 2024/077659
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 9/12/2025
SIGNATURE
In the matter between:
A[...] K[...] S[...] Applicant
and
T[...] M[...] First Respondent
S[...] M[...] Second Respondent
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
H G A SNYMAN AJ
INTRODUCTION
[1] I granted the application the applicant ( “Mr S[...]”) brought against the first
respondent (“Ms M[...]”) and the second respondent (“ Ms M[...]’s farther”) for
the return of his male Labrador dog called Benji. Ms M[...] and Ms M[...]’s
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father will where applicable, collectively be referred to herein as “ the
respondents”. The reasons for my judgment and order appear from my
judgment dated 6 November 2025.
[2] The respondents applied for leave to appeal on 12 November 2025. According
to the notice of application for leave to appear, the respondents apply for
leave to appeal to the Supreme Court of Appeal, alternatively the Full Court of
this Court. However, in the heads of argument and in argument before me, the
respondents only sought leave to appeal to the Full Court.
GROUNDS FOR LEAVE TO APPEAL
[3] As part of the notice of application for leave to appeal the respondents rely on
the following four grounds of appeal:
[3.1] That I made errors in findings of fact;
[3.2] That I made an error in not accepting that in terms of the divorce order
dated 27 January 2025, Benji was awarded to Ms M[...];
[3.3] That the divorce order rendered the application under this case number
moot;
[3.4] That leave ought to be granted since there are now conflicting
judgments, namely, so the argument goes, the 27 January 2025 divorce
order which awarded Benji to Ms M[...] and my judgment awarding Benji
to Mr S[...].
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[4] As I see it, although described as four separate grounds of appeal, the
grounds of appeal are in fact intertwined and I will deal with them as such. The
central theme of all these grounds is the respondents ’ contention that the
divorce order dated 27 January 2025 finally decided who owns Benji.
TEST FOR LEAVE TO APPEAL
[5] Sections 17(1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 (“ the
Superior Courts Act ”), provide that leave to appeal may only be given where
the judge or judges concerned are 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] According to Bertelsmann J in Mont Chevaux Trust (IT 2012/28) v Tina
Goosen1 the test under section 17(1)(a)(i) of the Superior Courts Act is more
stringent than what was previously the case:
“It is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in [the Superior Courts Act].
The former test whether leave to appeal should be granted was a
reasonable prospect that another court might come to a different
conclusion … . 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”.2 (emphasis added)
1 Mont Chevaux Trust (IT 2012/28) v Tina Goosen LCC14R/2014 (unreported judgment of the
Land Claims Court delivered on 3 November 2014).
2 See paragraph 6.
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[7] In MEC for Health, Eastern Cape v Mkhitha ,3 the Supreme Court of Appeal
held that:
“[16] Once again it is necessary to say that leave to appeal, especially
to this court, must not be granted unless there truly is a
reasonable prospect of success. Section 17(1)(a) of the
[Superior Courts Act] makes it clear 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; or
there is some other compelling reason why it should be heard.
[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 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.”
[8] In KwaZulu-Natal Law Society v Sharma,4 van Zyl J held at paragraph 30 that
the test enunciated in S v Smith5 still holds good. In S v Smith at paragraph 7
the Supreme Court of Appeal held that:
“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.”
3 MEC for Health, Eastern Cape v Mkhitha, unreported, SCA case no 1221/2015 dated 25
November 2016, 2016 JDR 2214 (SCA).
4 KwaZulu-Natal Law Society v Sharma 2017 JDR 0753 (KZP).
5 S v Smith 2012 (1) SACR 567 (SCA).
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[9] In Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd ,6 the Supreme Court of
Appeal held at paragraph [2] that:
“In order to be granted leave to appeal in terms of s 17(1)(a)(i) and s
17(1)(a)(ii) 2 of [the Superior Courts Act] an applicant for leave must
satisfy the court that the appeal would have a reasonable prospect of
success or that there is some other compelling reason why the appeal
should be heard. If the court is unpersuaded of the prospects of
success, it must still enquire into whether there is a compelling reason
to entertain the appeal. A compelling reason includes an important
question of law or a discrete issue of public importance that will have an
effect on future disputes. But here too, the merits remain vitally
important and are often decisive.” (emphasis added)
[10] Therefore, even if there is an important point of law, or an issue of public
importance in point, no purpose is served by granting leave to appeal, if the
prospects of interference with the judgment at first instance is remote.
DISCUSSION
[11] The respondents contend that I erred in relying on the Plascon Evans rule in
rejecting their version and describing it as being “far-fetched and
unattainable”. According to them I should have accepted their version that
there was and remains a factual dispute between the parties in so far as
ownership of Benji is concerned. I neither referred to the Plascon -Evans rule
in my judgment, nor did I describe the respondents’ version as “far-fetched
and unattainable”. After a careful analysis of what Mr S[...] said as part of his
affidavits, as compared to what the respondents said, I held at paragraph [83]
6 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA).
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of my judgment that:
“As I see it, [Ms M[...]’s] version is therefore vague in the extreme,
unsupported and changes as she sees fit. It ought therefore be
rejected.”
[12] As I see it, there is not a reasonable prospect that a court on appeal would
find differently.
[13] According to the respondents, I erred in not making the following findings:
[13.1] That Mr S[...] conceded that there is a factual dispute regarding
ownership of Benji by making numerous settlement offers during the
divorce proceedings;
[13.2] Mr S[...] did not meaningfully dispute Ms M[...]’s contention that Benji
was bestowed upon her as a gift by Mr S[...]’s parents;
[13.3] Mr S[...] did not dispute the fact that Ms M[...], as the lawful owner of
Benji, had taken out pet insurance dating back to 2021.
[14] According to the respondents, I ought to have found that even on Mr S[...]’s
version, Benji was to be dealt with in the divorce action.
[15] As I see it, all of the above is misplaced. The inquiry is not whether there was
or there still is a factual dispute regarding Benji. The inquiry is as I held at
paragraph [73] of my judgment with reference to the Supreme Court of
Appeal’s judgment in Wightman t/a JW Construction v Headfour (Pty) Ltd
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and Another 7 at para [13], namely whether on the papers before me there is
a real, genuine and bona fide dispute of fact. As I see it, it is critical that Mr
S[...]’s father and brother confirmed his version under oath. The respondents
did not even as part of their affidavits deal with what is stated in Mr S[...]’s
father and his brother’s affidavits.
[16] As I see it, the respondents therefore failed to show a real, genuine and bona
fide dispute of fact. As I see it, there is no reasonable prospect that a Full
Bench would come to a different conclusion regarding this.
[17] There is also no merit in the contention that Mr S[...] conceded that there is a
factual dispute regarding ownership of Benji by making numerous settlement
offers during the divorce proceedings. It does not appear from the papers that
Mr S[...] made numerous settlement offers. It seems that t here was one
settlement offer in which Mr S[...] reflected that he retains ownership of Benji.
It would obviously have been in everybody’s interest if they could have settled
this.
[18] When Ms M[...] did not accept that, Mr S[...]’s attorneys, days before first Ms
M[...] and then Mr S[...] signed the settlement agreement , expressly in their
letter dated 9 January 2025, confirmed the following:
“REI VINDICATIO APPLICATION
At the outset, we wish to address paragraphs 2.6 and 2.7 of your
aforementioned correspondence regarding the rei vindicatio application.
We in this regard record as follows:
7 2008 (3) SA 371 (SCA).
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1.1 As was indicated in our previous correspondence, the rei
vindicatio application in respect of Benji and outcome thereof
has no bearing on the divorce itself whatsoever. Benji is not a
subject of the divorce proceedings.
1.2 The application is pending before court under a completely
different case number for this reason.
1.3 In addition, the parties differ from the parties to the divorce
action. The application is against your client and her father and
not only your client. Our client has also at no stage withdrawn
the application against your client’s father.
To include a settlement of the application in the divorce action
would require your client’s father to also be party to the divorce
settlement agreement, which is not appropriate.
1.4 On consideration of your correspondence, and subject to what
follows below, it would appear that the parties are in agreement
with regard to the settlement of the divorce action. The
application is, however, not settled and we do not believe that
the parties are in a position to settle same due to their conflicting
versions.
We are of the view that it would therefore be in both our clients’
best interests to finalise the divorce and put it behind them.
There is no reason to force two parties to remain in a broken
marriage and carry the associated emotional burden, when there
is in essence no dispute regarding the termination of the
marriage.
1.5 In the absence of a settlement regarding the issues that form the
subject of the application, a decision cannot be made with regard
to the costs thereof. The issue of costs will therefore be
determined by the judge who eventually presides over the
matter.
We therefore urge your client to reconsider her position in anticipation of
bringing the divorce action to an end sooner rather than later.”
[19] I dealt with the above letter in paragraph [60] of my judgment. For the
respondents to notwithstanding the above contend that there was a meeting of
respondents to notwithstanding the above contend that there was a meeting of
the minds and that the parties settled the dispute regarding Benji as part of the
settlement agreement in the divorce action, must therefore be rejected.
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[20] In any event, as I see it, simply put, the ownership issue of Benji was not
before the divorce court. This at the very least follows from the fact that Ms
M[...] alleged as part of her papers, confirmed by Ms M[...]’s father under oath,
that she on gifted Benji to her farther on an uncertain date, but obviously
before the divorce order was granted. Ms M[...]’s father was not a party to the
divorce action, neither could he be. That decree of divorce therefore neither
rendered the rei vindicatio application moot , nor constituted a conflicting
judgment. As I see it, there is not a reasonable prospect that a court of appeal
would come to a different finding.
[21] In so far as t he ground of appeal is concerned that I erred in not finding that
Mr S[...] did not meaningfully dispute Ms M[...]’s contention that Benji was
bestowed upon her as a gift by Mr S[...]’s parents the following: First, Ms M[...]
never as part of her papers contended that Benji was bestowed upon her as a
gift by Mr S[...]’s parents. She first as part of the pre -litigation correspondence
stated that Benji was a gift to her by Mr S[...]’s father. This was not repeated in
the answering affidavit. Ms M[...] only later contended that Benji was gifted to
her by her in -laws, which concept includes all the relatives by marriage. This
on one interpretation could have included Mr S[...]’s brother. She even as part
of the replying affidavit in the interlocutory application stated that Benji was
gifted to her by Mr S[...]. All in all, on a conspectus of the pleadings this
ground of appeal lacks merit.
[22] In so far as the contention is concerned that Mr S[...] did not dispute that Ms
M[...] had taken out pet insurance for Benji dating back to 2021, this equally
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lacks merit. I referred to the pet insurance issue at paragraph [45] of my
judgment. I pointed out that the policy document is illegible. I held at
paragraph [80] of my judgment that the fact that Ms M[...] took out pet
insurance for Benji is not decisive. I referred in this regard to the fact that Mr
S[...] attached numerous documentation to the founding affidavit, which show
that he covered some of the expenses in relation to Benji. I held that the
highwater mark of this issue was that the spouses in happier days obviously
agreed to share the expenses in respect of Benji in the way that they did. This
is what Mr S[...] said in the replying affidavit at paragraph 11.2. I found that
nothing further can be inferred from this. As I see it, there is not a reasonable
prospect that a court of appeal would come to a different finding.
[23] In the result, I make the following order.
ORDER
[1] The application for leave to appeal is dismissed with costs.
H G A SNYMAN
Acting Judge of the High Court of
South Africa, Gauteng Division,
Pretoria
Heard on MS Teams: 5 December 2025
Delivered and uploaded to CaseLines: 9 December 2025
Appearances:
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For the applicant: Adv Mari Fabricius
Instructed by Adams & Adams Attorneys
For the first and second respondent: Adv Willie du Preez
Instructed by Goodes & Co Attorneys