IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 40266/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
'2. t / .:.> I J--i C 4,.
r 7
DATE
In the matter between :
GUGU FAVOURITE SKOSANA obo
TSHIMOLLO SKOSANA
and
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH,
GAUTENG PROVINCIAL GOVERNMENT
JUDGMEN T
MBONGWE J:
INTRODUCT ION
Applicant
Respondent
(1 ] This is an application for leave to appeal against the judgment delivered on
08 May 2025 , in which the plaintiff's claim was dismissed .
[2] The application is premised not on the merits of the dismissal itself, but
primarily on allegations of bias said to have arisen during the course of the
proceedings.
PROCEDURAL BACKGROUND
[3] During the trial, the plaintiff brought an application for the recusal of the
presiding judge. That application was opposed and dismissed.
[4] A meeting was held, at my, behest , in chambers the following morning with the
legal representatives of the parties, including the plaintiff's attorney, to discuss
the way forward and the possibility of an appeal against the recusal application
dismissal. I communicated the intention to recall the order dismissing the recusal
application and to proceed to recuse myself. Counsel for the plaintiff expressly
advised that it was his decision to bring the recusal application and that there
was not going to be an appeal against the dismissal thereof. Notably, he
requested that the trial continues before me.
[5] The hearing continued that morning until completion on the tenth day. The
plaintiff's claim was dismissed on the merits in the judgment that followed .
GROUNDS FOR LEAVE TO APPEAL
[6] In the present application , the plaintiff's counsel failed/refused to address the
court on the merits, notwithstanding a direct question whether tie was going to
do so, choosing , instead. fo limit his argument to:
6.1The allegation of bias and antagonism by the court (ground in the recusal
application) .
6.2 An unfounded allegation that the judge, through his secretary, had
improperly contacted the defence counsel and solicited the submission of
heads of argument in opposition to the recusal application 'to assist in
writing of the judgmenf.
6.3 Handing in a copy of a judgment of the Supreme Court of Appeal delivered in
2015, unrelated to the present matter, criticising this court's handling of that
trial.
ANALYSIS AND APPLICABLE LEGAL PRINCIPLES
[7] The predications for granting leave to appeal are set out in Section 17 of the
Superior Courts Act 10 of 2013. The main considerations are whether there is
a reasonable prospect that another court would come to a different conclusion ,
or whether there are compelling reasons why the appeal should be heard.
[8] The various bases for the alleged negligence of the Defendant espoused and
advanced on behalf of the plaintiff to hold the defendant liable have been
traversed individually in the impugned judgment , and respective reasons given
for their rejection. The absence of merit on the written grounds for leave to
appeal was exacerbated by the refusal by counsel for the Applicant to address
the court on the merits and provide clarity thereon , if any. This was evidenced
by the brief and constrained response and submissions of counsel for the
respondent.
[9] The contrived allegation that the Court had, through its secretary, solicited
heads of arguments from the defence counsel , were correctly denounced in
court by the defence counsel. This, together with the attempt to revive the
recusal application , do not satisfy the test for granting leave to appeal set out
in section 17 of the Act.
[1 0] The explicit waiver of the right of appeal against the dismissal of the recusal
application , coupled with the request by plaintiff's counsel that the matter
proceed before the same trial judge , disfranchised the applicant from reviving
the recusal application after the return of an unfavourable outcome on the
merits of the case. The case was decided on the merits/eviden~e that is on the
record.
[11] Allegations of bias must be assessed objectively, from the perspective of a
reasonable, informed observer, bearing in mind that judicial officers are entitled,
and indeed obliged, to seek clarity of the evidence in the proceedings .
ANALYSIS
[12] Findings on the merits that are at odds with clear and factually grounded
evidence of a party, or the law, underscore the basis for granting leave to appeal
in terms of section 17(1) of Act 1 0 of 2013. Conversely, a finding that the appeal
will have no prospects of success constrains the court from granting leave to
appeal. It is inimical to the provisions of section 17(1) to grant leave to appeal
in circumstances where there is absence of the prospects of success on appeal,
or of compelling reasons for the appeal to be heard.
ABUSE OF PROCESS OF THE COURT
[13] It is apparent from what is stated in paragraphs [8], [9], [1 0], and [11] that the
objective of this application was to secure the retrial of the matter before
another judge. By all accounts, this points to an abuse of the process of the
court. The explicit waiver of the right to appeal the dismissal of the recusal
application brought finality insofar as the recusal application is concerned . The
attempt to revive the grounds for recusal under the guise of a ·leave to appeal
application in terms of Section 17 of Act 10 of 2013 constitutes an impermissible
collateral attack. In Smith and Notshokovu v S1, it was laid down that leave to
appeal is not a mechanism for retrial and that an application so disguised is,
therefore , an abuse of process. In Beinash v Wixley2 the court held that an
abuse of process occurs when procedures intended for the pursuit of truth are
used for extraneous purposes.
CONCLUSION
(14] Section 17 does not avail the seeking of a retrial. This application consequent ly,
stands to fail.
ORDER
1. The application for leave to appeal is dismissed .
APPEARANCES:
For the Plaintiff:
Instructed by:
1 (2016] ZASCA 112
' (1997(3) SA 721 (SCA)
JUDGE OF THE HIGH COURT
GAUTENG DIVISION
PRETORIA
Adv JF Mullins SC; Adv F Pauer (Ms)
0 Joubert Attorneys
For the Defendant:
Instructed by:
Date of Hearing:
Date of Judgement:
Adv L Montsho-Moloisane SC; Adv C Mnisi
State Attorney , Pretoria
05 December 2025
26 January 2026
THIS JUDGEMENT WAS ELECTRONICALLY TRANSMITTED TO THE PARTIES'
LEGAL REPRESENTATIVES AND UPLOADED ONTO CASELINE ON 26
JANUARY 2026.