IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 22118/24
In the matter between
MOHAMED SHABIER HARRIS APPLICANT
AND
JACQUELINE STEPHANIE HARRIS RESPONDENT
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JUDGMENT delivered on 05 February 2026
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THULARE J
ORDER
[1] In an urgent application for an anti -dissipation order on 29 October 2024, this
court made an ex-tempore order in favour of the respondent against the applicant.
The court did not provide reasons for the order when it was made in the urgent
court after considering the papers and hearing the legal representatives. The
applicant did not request reasons for that order. The app licant applied for leave to
appeal. The argument was that the order restrained disposition of the entire
proceeds of the sale of the property and did not limit itself to the amount alleged to
be due by the respondent. I was persuaded by the reasons advance d by the
applicant and granted leave to appeal to the full court of this division , and written
reasons were provided.
[2] It is now, when the matter is before the full court, that the applicant approached
me with a request for reasons for the order made in the urgent court on 29 October
2024. The request is purportedly in terms of Rule 49(1)(b) of the Uniform Rules of
Court. Rule 49(1)(b) reads:
49 Civil Appeals from the High Court
(1)(b) When leave to appeal is required and it has not been requested at the time of the judgment
or order, application for such leave shall be made and the grounds therefor shall be furnished
within fifteen (15) days after the date of the order appealed a gainst: provided that when the
reasons or the full reasons for the courts order are given on a later date than the date of the order,
such application may be made within fifteen (15) days after such later date: provided further that
the court may, upon good cause shaown, extend the aforementioned period of fifteen days.
When a judgment is appealed against, written reasons are indispensable and it is
understood that failure to supply reasons may amount to a grave lapse of duty and
an impediment to the appeal process. It is also understood that ordinarily a failure
to provide reasons, especially when specifically requested when an order was made
without the reasons, may amount to a violation of a constitutional duty [ Mphahlele
v First National Bank of South Africa Ltd 1999 (2) SA 667 (CC) at para 12.
[3] I have doubts that the applicant can now approach the court, not at the tine that
leave to appeal was considered or before, but after the leave to appeal was
considered and granted and still seek to rely on Rule 49(1)(b). The first proviso to
Rule 49 makes it very clear what the order of events should be where the order was
made with no reasons provided like in the case before me . Once the order is made,
the rule anticipates that either the judge would deliver the reasons later as indicated
in their order, or in the absence of a commitment to a date, that the reasons will be
provided upon request. This explains why the date of delivery of the reasons later
than the order, in those two instances, is then the date from which the countdown
begins, for the applicant to file their application for leave to appeal. The second
proviso, for example, would apply where the applicant files the request for reasons
and the application for leave to appeal simultaneously. The court may allow the
applicant time to consider the reasons provided later and then set the application
for leave to appeal hearing to a further later date. Some circumstances may even
require a court to extend the time period for the request for reasons, before the
filing of the application for leave to appeal.
[4] Although Snyman v Crouse 1980 (4) SA 42 (O) at 45E dealt with the equivalent
rule in the Magistrates Courts Rules of Court, which also read differently, I am in
agreement with the principle set out therein that the request for a written judgment
or for reasons for an order of court is a proceeding which precedes the filing of the
application for leave to appeal. The path of travel to be followed appears in JMM v
STNM (5647/2019)[2025] ZAGPPHC 487 (9 May 2025), The request for written
reasons is the prerogative of the prospective appellant, who may or may not take
up the procedural step. The applicant is entitled to proceed with his application for
leave to appeal and argue it without the written reasons for judgment if he so
elected [Regering van die Republiek van Bophuthatswana v Van Zyl 1981 (1) SA
484 (NC) p 487D]. The applicant was able to set out the grounds for the appeal
484 (NC) p 487D]. The applicant was able to set out the grounds for the appeal
clearly and succinctly. Whilst the matter was relatively fresh in the mi nd of the
court, the court was able to consider whether there were reasonable prospects of
success and decided accordingly.
[5] The hearing of an application for leave to appeal leaves a judicial mind
immersed in the contentions advanced to urge it to conclude that another court
would arrive at a different conclusion. It revisits the factual issues relative to the
claim. Often, as is the case in this matter, especially where the initial order was in
the urgent court, the aggrieved respondent s lawyers had time to fully consider the
issues and may argue the law and advance precedent cases which were not drawn
to the attention of the urgent court. The court gives thought to the propriety and
implications of granting the leave to appeal [Van Heerden v Cronwright and Others
1985 (2) 342 (TPD) at para 343H -344E]. The question whether leave should be
granted is a higher and stringent thres hold [ Van Wyk v S, Galela v S 2015 (1)
SACR 584 (SCA) at para 14; Notshokuvu v S [2016] ZASCA 112]. I am unable, at
this stage after that test, to compartmentalize my mind and bring it to the position
as at before that immersion in the contentions. At this stage of the proceedings,
after that immersion, I have my doubts that Rule 49(1)(b) was intended to reverse
the clock and take me back in time. For these reasons the request is dismissed. No
cost order is made.
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DM THULARE
JUDGE OF THE HIGH COURT