Summary of Judgment

1. Introduction

This judgment concerns an application for leave to appeal brought in the High Court of South Africa, Gauteng Division, Pretoria. The proceedings were heard and decided by Botes AJ, and they relate to whether the respondent should be granted leave to appeal against an earlier urgent-court order that granted final interdictory relief (but refused contempt relief).

The parties are Y[...] V[...] (born D[...] L[...]), L[...] L[...] D[...] L[...] (Snr), and L[...] L[...] D[...] L[...] (Jnr) as the first to third applicants, and C[...] J[...] B[...] V[...] as the respondent.

The procedural history, as recorded in the judgment, is that the applicants launched an urgent application on 16 November 2022 seeking interdictory relief and an order declaring the respondent in contempt of a prior court order made on 29 September 2022 under Rule 43 of the Uniform Rules of Court. The urgent application was heard on 19 January 2023, when the court delivered an ex tempore judgment granting the relief contained in paragraph 2 of the notice of motion (interdictory relief) and ordering the respondent to pay costs on a party-and-party scale; the contempt relief was dismissed.

The respondent, being dissatisfied with that outcome, filed an application for leave to appeal on 8 February 2023, which was heard virtually on 18 November 2024. The judgment under summary (revised on 21 January 2026) determines whether leave to appeal should be granted and, if so, to which court, as well as the costs of the leave application.

The dispute’s general subject-matter, as reflected in the grounds for leave to appeal recorded by the court, concerns the propriety of granting final interdictory relief in motion proceedings arising from allegedly defamatory statements, including disputes about whether statements were made, whether they were ongoing, whether the matter was urgent, and whether factual disputes were capable of resolution on the papers. It also concerns the refusal of contempt relief and the appropriate costs order given divided success in the urgent application.

2. Material Facts

The facts material to this judgment are predominantly procedural and contextual, because the court’s task in this decision was not to reconsider the merits of the interdict or contempt application, but to apply the statutory test for leave to appeal.

It was common cause on the papers before the leave court (as recorded in the judgment) that the applicants brought an urgent application in November 2022 seeking interdictory relief and a contempt declaration arising from an existing Rule 43 order of 29 September 2022. It was also common cause that the matter served in the urgent court on 19 January 2023, where the court granted the interdictory relief sought in paragraph 2 of the notice of motion and ordered costs against the respondent, while dismissing the contempt relief.

The respondent’s application for leave to appeal was brought because he was aggrieved by the judgment and order granted on 19 January 2023. The respondent’s stated grounds for leave, as summarised in the judgment, included complaints that the court erred in holding that the requirements for final interdictory relief had been satisfied; that the respondent did not have a bona fide defence; that the respondent did not make the impugned statements; that material disputes of fact existed that could not be resolved on motion; and that the application was not urgent and should have been struck from the roll. The respondent also challenged the court’s approach to dates and incidents referred to in affidavits, the relevance and admissibility of what the children had conveyed to the first applicant on 23 October 2022, and the costs order in light of the respondent’s success in opposing contempt relief.

To the extent the judgment refers to the merits, it records that the respondent’s complaints included disputing whether the impugned statements related to an incident alleged to have occurred in the early 1990s, and whether there was an ongoing injury justifying final interdictory relief when the children were allegedly told of the statements on 23 October 2022. The judgment also records the court’s view (for purposes of leave) that it remained of the view that the applicants satisfied the requirements for final interdictory relief, but also that wilfulness and mala fides had not been demonstrated for contempt.

The court further noted, as part of the legal context relevant to leave, that “urgency” is not appealable, although it regarded that point as not decisive for the leave application.

3. Legal Issues

The central legal question was whether the respondent had met the statutory threshold for leave to appeal under section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, namely whether the court was of the opinion that “the appeal would have a reasonable prospect of success”.

Closely linked to that question was whether, in light of the respondent’s grounds of challenge to the interdict and the costs order, there existed a sound and rational basis for concluding that a court of appeal would reasonably arrive at a different conclusion from that reached by the urgent court on 19 January 2023.

This dispute, as approached by the leave court, primarily concerned a question of law and evaluative application of law to the case, namely the correct approach to the leave-to-appeal threshold post–Superior Courts Act and whether the respondent’s proposed appeal met that threshold. The court’s determination necessarily involved an evaluative judgment about the likelihood that another court might differ, rather than a definitive re-adjudication of the underlying interdict and contempt merits.

A further procedural issue was which appellate forum should hear the appeal if leave were granted, and how the costs of the leave application should be dealt with.

4. Court’s Reasoning

The court began by identifying the applicable legal standard for leave to appeal. It contrasted the “traditional” approach (reasonable prospect that another court may reach a different conclusion) with the statutory formulation in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, which requires that the judge be of the opinion that the appeal would have a reasonable prospect of success. The court treated the statutory test as governing the enquiry.

Relying on the Supreme Court of Appeal’s guidance, the court explained that “reasonable prospects of success” requires a dispassionate assessment on the facts and law of whether the appellate court would reasonably arrive at a conclusion different from that of the court a quo. The court emphasised that the prospects must not be remote and that more is required than a mere arguability or non-hopelessness; rather, there must be a sound, rational basis for concluding that success on appeal is realistically possible. The court also accepted the proposition that the statutory wording has raised the bar for leave to appeal, imposing a more stringent threshold than under the repealed Supreme Court Act 59 of 1959, and noted endorsement of this approach in a full-court decision of the same division.

The court then addressed aspects of the respondent’s grounds within the limited scope of a leave enquiry. It recorded that contempt of court is a serious offence, while also noting that it had not granted contempt relief in the underlying application because wilfulness and mala fides had not been demonstrated. It also recorded the proposition that urgency is not appealable, but treated that as not determinative of whether leave should be granted, indicating that the leave enquiry turned on the broader prospects of success in respect of the issues raised.

In applying the test, the court made an expressly evaluative assessment. It stated that it remained of the view that the applicants had satisfied the requirements for final interdictory relief and that contempt had not been established. Nonetheless, the court concluded that it was persuaded that the respondent had raised issues on which another court was likely to reach different conclusions. On that basis, the court held that the proposed appeal had reasonable prospects of success within the meaning of section 17(1)(a)(i).

Finally, on the appropriate forum, the court accepted the respondent’s submission that leave should be granted to the Full Court of the Gauteng Division. Regarding costs, the court determined that the costs of the application for leave to appeal should be costs in the appeal, rather than being immediately awarded in the leave proceedings.

5. Outcome and Relief

The court granted leave to appeal to the respondent to the Full Court of the Gauteng Division, Pretoria.

The court ordered that the costs of the application for leave to appeal would be costs in the appeal.

No further substantive relief was granted in this judgment beyond regulating the appellate process and costs.

Cases Cited

Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 (31 March 2021).

S v Smith 2012 (1) SACR 567 (SCA).

Notshokovu v S [2016] ZASCA 112 (7 September 2016).

Acting National Director of Public Prosecutions and Others v Democratic Alliance, In re: Democratic Alliance v Acting National Director of Public Prosecutions and Others [2016] ZAGPPHC 489 (24 June 2016).

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)(a)(i).

Supreme Court Act 59 of 1959 (repealed, referenced for comparative purposes).

Rules of Court Cited

Uniform Rules of Court, Rule 43.

Held

The court held that, notwithstanding its continued view that the applicants had met the requirements for final interdictory relief in the urgent application and that contempt had not been established for lack of proof of wilfulness and mala fides, the respondent’s proposed appeal raised issues on which another court was likely to reach different conclusions. Applying section 17(1)(a)(i) of the Superior Courts Act 10 of 2013 and the relevant appellate authority, the court found that the appeal had reasonable prospects of success and granted leave to appeal to the Full Court, with the costs of the leave application to be costs in the appeal.

LEGAL PRINCIPLES

The applicable test for leave to appeal under section 17(1)(a)(i) of the Superior Courts Act 10 of 2013 is whether the court is of the opinion that the appeal would have a reasonable prospect of success, assessed on a dispassionate consideration of the facts and the law.

The “reasonable prospects” threshold requires more than a mere possibility that an appeal might succeed or that the matter is arguable; it requires a sound and rational basis for concluding that an appellate court would reasonably arrive at a different conclusion, and the prospects must not be remote but must have a realistic chance of success.

The statutory formulation in the Superior Courts Act has been interpreted as raising the bar for leave to appeal compared to the pre-existing position under the repealed Supreme Court Act 59 of 1959, imposing a more stringent threshold that must be satisfied before leave is granted.

In the context of the underlying proceedings referenced in the judgment, the court recorded the proposition that urgency is not appealable, while treating that principle as not decisive of the leave-to-appeal enquiry in the particular case.