About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 293
|
|
Lessing v Independent Regulatory Board of Auditors and Another (2024/021979) [2026] ZAGPJHC 293 (13 February 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 2024/021979
(1)
REPORTABLE:
(2)
OF INTEREST TO OTHER JUDGES:
(3)
REVISED
In
the matter between:
THOMAS
SARE
LESSING
Applicant
And
INDEPENDENT
REGULATORY BOARD OF AUDITORS
1
st
Respondent
BARTHOLOMEW
GORMLEY
2
nd
Respondent
JUDGMENT
MOTHA
J
1.
Following the judgment handed down on 24
October 2025, the losing party, the Independent Regulatory Board of
Auditors (IRBA), lodged
an application for leave to appeal on 12
November 2025. The victorious party, Thomas Sera Lessing, opposed the
application and
filed its heads of argument on 26 January 2026,
without the benefit of having perused the applicants’ heads of
argument.
2.
It is noteworthy that the applicant failed
to file its heads of argument, necessitating the adjournment of the
proceedings on 26
January 2026, much to the court’s chagrin.
3.
From the subsequently filed heads of
argument, it became apparent that the applicant’s case rested
on Sub-Section 17 (1)(a)(i)
and (ii) of the Superior Court’s
Act, (“the Act”) 10 of 2013.
4.
In my opinion, this leave to appeal pivots
around two grounds. First, it is that the Court erred in its
interpretation of
the empowering provisions establishing IRBA's
disciplinary powers and procedures.
5.
Second, it is submitted that the Court
erred in finding that the applicant had standing. In brief,
those constituted the reasons
for the application. Accordingly,
the question before this Court is whether the applicant has made out
a case warranting
the attention of a full court or the Supreme Court
of Appeal. To answer that question, this Court must examine the
law as
set out in subsections 17(1)(a)(i) and(ii) of the
Superior
Courts Act, 10 of 2013
.
The law
6.
Leave to appeal applications are regulated
by Uniform Rule 49(1) of the Uniform Rules of Court together with
ss16 and 17 of the
Superior Court Act 10 of 2013. Uniform Rule
49(1)(a) and (b) read:
“
(a)When
leave to appeal is required, it may on a statement of the grounds
therefor be requested at the time of the judgment or order,
(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
therefore shall be furnished within fifteen days after the date of
the order appealed against: Provided
that when the reasons or the
full reasons for the court's order are given on a later date than the
date of the order, such application
may be made within fifteen days
after such later date: Provided further that the court may, upon good
cause shown, extend the aforementioned
periods of fifteen days.”
7.
With that background to leave to appeal
applications, the next focus is
sections 16
and
17
of the
Superior
Courts Act, which
set out the court that must hear the application
and the standard that must be applied in determining whether a
superior court's
attention is warranted.
8.
Section 16(1)(a)
reads:
“
An
appeal against any decision of a Division as a court of
first instance lies, upon leave having been granted-
(i)
If the court consisted of a single judge,
either to the Supreme Court of Appeal or to a full court of that
Division, depending on
the direction issued in terms of
section 17(6)
or…”
0
cm; line-height: 150%">
9.
Sub-sections 17(1)(a)(i) and(ii) read:
“
1.
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)(i) The appeal would
have a reasonable prospect of success; or
(ii)
there is some other compelling reason why
the appeal should be heard, including conflicting judgments on the
matter under consideration…”
10.
The
court in
Mont
Chevaux Trust v Goosen
,
[1]
when
examining s17(1)(a)(i) of the Act, held:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act…
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]
11.
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.
12.
In
unpacking the concept of reasonable prospects of success, the court
in
Smith v
S
[3]
held:
“
what
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. 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
.”
[4]
13.
In
Fusion
Properties 233 CC v Stellenbosch Municipality
[5]
the
court held
:
“
Since
the coming into operation of the
Superior Courts Act, there
have been
a number of decisions of our courts which dealt with the requirements
that an applicant for leave to appeal in terms
of
ss17(1)(a)(i)
and
17
(1)(a)(ii) must satisfy an order for leave to be granted.
The applicable principles
have over time crystallised and are now well established.
Section 17(1)
provides in material part that…
It is
manifest from the text of
S17(1)(a)
that an applicant seeking leave
to appeal must demonstrate that the envisaged appeal would either
have a reasonable prospect of
success or alternatively that there is
some compelling reason why an appeal should be heard.
Accordingly, if neither of these
discrete requirements is met, there
would be no basis to grant leave.
[6]
”
14.
When
examining subsections 17(1)(a)(i) and (ii), the
Supreme Court of Appeal in
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
[7]
enunciated:
“
In
order to be granted leave to appeal in terms of
s17(1)(a)(i)
and
s
17(1)(a)(ii)
of the
Superior Courts Act an
applicant for leave must
satisfy the court that the appeal would have a reasonable prospects
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.
”
[8]
15.
In
Ramakatsa
and Others v African National Congress and Another
[9]
the
court confirmed the
decision in
Caratco
and
held:
“
Turning the focus
to the relevant provisions of the
Superior Courts Act (the
SC Act),
leave to appeal may only be granted where the judges concerned are of
the opinion that the appeal would have a reasonable
prospect of
success or there are compelling reasons which exist why the appeal
should be heard such as the interests of justice.”
16.
The applicant seems to be between two
minds. First, it is submitted that the respondent lacked
locus
standi
because the issue is not of
public importance. In its prelude, the applicant writes:
“
The
court erred in finding that the first respondent, the applicant in
the main application, had asserted public interest standing
and that
the matter was public interest litigation.”
17.
A few paragraphs later in its epilogue, the
applicant submits:
“
In
light of this, it is submitted that the resolution of the issues in
the proposed appeal are of significance and public importance
and
merit the attention of the Supreme Court of Appeal.”
18.
In my view, this state of ambivalence
points to a desire to obtain legal advice on the proper
interpretation of APA as it stands.
This view is founded on the
applicant's statement that, for the reasons given above, the in rem
aspects of the judgment and order
affect not only future cases but
also potentially matters already concluded, which may be subject to
review proceedings.
19.
IRBA's view, as set out above, is that the
implementation of the judgment and order, in the event that it is
upheld on appeal or
if leave to appeal is refused, will cause fewer
matters to be resolved by way of the admission of guilt process,
which could severely
impact the IRBA's legislative mandate,
operations, and financial sustainability.
20.
In the matter of
JK
Structures, CC v City of Cape Town and Others
,
the court held:
“
The
implication in the sentence in the learned judge’s observation
in
Caratco
that
I have underlined is that appeals are primarily meant to be about
obtaining different results, not second opinions.
Even if there
is an important point of law or an issue of public importance in
point, no purpose is served by it being reconsidered
on that basis
alone by another court on appeal if the prospect of interference with
the judgment at first instance is remote.
The filtering object
of s 17(1) would be subverted were meritless questions sent on
appeal when there was no compelling reason
for the matter in question
to deserve the attention of a higher court.”
[10]
21.
Against that background, I am of the view
that the application for leave to appeal must fail. The applicant
should bear the wasted
costs on 26 January 2026 and today's costs on
Scale B.
Order:
The application for leave
to appeal is dismissed with costs, including the wasted costs on 26
January 2026, on scale B.
MP MOTHA
JUDGE OF THE COURT
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
APPEARANCES:
Date
of Hearing:
13 Febuary 2026
Date
of Judgment:
13 February 2026
For
Applicant:
ADV H. SCHOLTZ
Instructed by
JJR BOTHA ATTORNEYS
For 1
st
to 4
th
Respondents: ADV I. CURRIE
Instructed
by:
MATHOPO MOSHIMANE MULANGAPHUMA INC.
For 1
st
to 4
th
Respondents: ADV C. RIP
Instructed
by:
AJ STONE ATTORNEYS
[1]
2014
JDR 2325 (LCC).
[2]
Supra
para 6.
[3]
(475/10)
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) (15 March 2011).
[4]
Supra
para 7.
[5]
(932/2019)
[2021] ZASCA 10
(29 January 2021.
[6]
Supra
para18
[7]
(982/18)
[2020] ZASCA 17
;
2020 (5) SA 35
(SCA) (25 March 2020).
[8]
Supra
para 2.
[9]
(724/2019)
[2021] ZASCA 31
(31 March 2021)
[10]
Supra
para 15.