REPUBLIC OF SOUTH AFRICA
.... ! ..,
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025-046666
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
ob /o 3/ ?-o ?d-<===cc..-
DATE SIGNATURE
In the matter between:
ABSALOM MOLEFE
and
NATIONAL COUNCIL FOR CORRECTIONAL SERVICE
THE MINISTER OF CORRECTIONAL SERVICE
Applicant
First Respondent
Second Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 6 March 2026
JUDGMENT
SKIBI AJ
[1] Mr. Absolom Molefe, the applicant, seeks leave to appeal against the order
granted on 7 November 2025, by which the matter was removed from the unopposed
motion court roll with costs.
[2] The legal principles for leave to appeal are contained in section 17(1) of the
Superior Courts Act.1 The section, among others, reads as follows:
"(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 ... "
[3] There are several judgments dealing with the test for leave to appeal
encapsulated in section 17(1) of the Superior Courts Act. In Democratic Alliance v
President of the Republic of South Africa and Others,2 a full court judgment of this
Division considered the threshold for leave to appeal and held as follows:
"The test as now set out in section 17 constitutes a more formidable threshold over
which an applicant must engage than was the case. Previously the test was
whether there was a reasonable prospect that another court might come to a
different conclusion ... The fact that the Superior Courts Act now employs the
word "would" as opposed to "might" serves to emphasise this point. As the
Supreme Court of Appeal said in Smith v S 2012 (1) SACR 567 (SCA) at para 7;
1 Act 10 of 2013.
'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.'
[5] ...
[6] The second basis upon which leave should be granted is that
there is a compelling reason, that is apart from the existence of
conflicting judgments on the matter under consideration which
2 Democratic Alliance v President of the Republic of South Africa and Others (2020] ZAGPPHC 326.
2
require clarification from a higher court. In essence the compelling
reason is whether the case raises issues of significant public
importance ." (Emphasis in original.)
[4] The Supreme Court of Appeal in MEC for Health, Eastern Cape v Mkhitha, 3
remarked as follows:
"[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 10 of 2013 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." (Emphasis in original and
footnotes omitted.)
See also Mont Chevaux Trust v Goosen and Others,4 and Notshokovu v S.5
Background
[5] Mr Molefe has been incarcerated since 1997 and is serving his sentence at
Groenpunt Correctional Centre under the authority of the Department of Correctional
Services. In 2024, he applied for placement on parole after reaching his parole
consideration date.
3 [2016] ZASCA 176.
4 Unreported judgmen t of the Land Claims Court, Case No LCC14R/ 2014 (3 November 2014) at para 6.
5 (2016] ZASCA 112 at para 2.
3
[6] On or about 19 January 2025 and 28 January 2025, the Minister of Correctional
Services, MP Dr Groenewald (hereinafter referred to as the "Minister''), took an
administrative decision, i.e. disapprove the applicant's parole application. On 4 April
2025, the applicant aggrieved by the Minister's decision decided to launch an
application to this Court seeking an order to review and set aside the impugned
decision taken by the Minister. On 5 May 2025, the respondents filed a notice to
oppose the application. On 20 May 2025, the applicant filed a rule 30A notice calling
on the respondents to comply with rule 53(1 )(b) of the Uniform Rules of Court. On 6
June 2025, the respondents dispatched the records. On the morning of 9 June 2025,
the respondents served and filed the written reasons.
[7] According to the respondents, in the afternoon of 9 June 2025, they were
served with a notice of motion to compel them to provide the record and written
reasons. The respondents attorneys, taken aback by this move, engaged the
applicant's attorneys, stating that they already served the record and reasons. It is
alleged that the response which was received was that the applicant's attorneys cited
they wanted the reasons as stated in Phaahla v National Council for Correctional
Service and Others.6 The respondents alleged that they do not have the power to
change the reasons, as only the Minister has such authority. Despite the applicant's
attorneys not being satisfied with the reasons provided to them by the respondents,
on 18 June 2025, the applicant served the respondents with a supplementary founding
affidavit. The applicant alleges that on 30 June 2025, the period of 30 days had
expired. Thereafter, the applicant went ahead to set down the rule 53(1)(b) of the
Uniform Rules of Court application for hearing on 26 August 2025.
[8] The respondents served and filed their answering affidavit to the rule 53( 1 )(b)
application, which was followed by an application for condonation for the late serving
application, which was followed by an application for condonation for the late serving
and filing of the answering affidavit in the rule 53( 1 )(b) application and the main review
application.
6 [2025) ZAGPPHC 1061.
4
[9] On 26 August 2025, the application to compel was placed before Tolmay J,
whereby an order was granted to remove the matter from the roll, costs reserved. The
respondents allege that the matter (interlocutory application- application to compel)
was removed from the roll so that it should placed on the opposed motion court roll.
The applicant seems to dispute that the matter (the application to compel) was
removed from the unopposed motion court roll.
[1 O] On 11 September 2025, the applicant proceeded to apply for a court date to
place the review application on the unopposed motion court roll. The matter was set
down for hearing in an unopposed motion court on 7 November 2025 despite the
applicant's claim that the rule 53( 1 )(b) record had not been furnished. The
respondent's attorneys engaged the applicant's attorneys to remove 'the cause of
complaint' in terms of rule 30 of the Uniform Rules of Court. However, the applicant
persisted with the view that they have a right to enrol the review application irrespective
of the pending application in terms of rule 53(1 )(b) of the Uniform Rules of Court and
an application filed in terms of rule 30 of the Uniform Rules of Court. The respondents
filed their own rule 30 notice, in that the applicant had taken an irregular step once
there was no response or removal of the cause of complaint.
[11] The respondents' legal representative argued that even though they warned
the applicant's legal representatives to either withdraw the application in terms of rule
41 ( 1) of the Uniform Rules of Court or remove and place it on the opposed motion
court roll, they failed to do so. The applicant's legal representatives were of the view
that the matter was correctly enrolled on an unopposed motion court roll due to the
fact that the respondents failed to file their answering affidavit from May to November
2025.7
7 See Essa v Judicial Commission of inquiry into state capture and Another ZAGPJHC 1314 at paras 1-3 where
the court first dealt with the interrelated interlocutory application before dealing with the main review application.
5
[12] From the said background, I now turn to the grounds of appeal. The applicant's
legal representatives listed various grounds of appeal upon which they contend that
the threshold as set out in section 17( 1) of the Superior Court Act 10 of 2013 and the
cases cited above have been met.
Misapplication of rule 6(5)(d)(ii) of the Uniform Rules of Court
[13] It was submitted on behalf of the applicant that the review application was
issued on 16 April 2025, the respondents filed a notice of intention to oppose on 23
April 2025, and no answering affidavit was filed until the matter was heard on 7
November 2025. This is a lapse of a period of about 6 months. It was argued further
that even on the date of the hearing, the respondents never sought an indulgence from
the court to be given a stipulated time to file their answering affidavit. The applicant's
legal team rely to the provisions of rule 6{5)(d)(ii), where, amongst other things, it
states that an answering affidavit should be filed within 15 days of notifying the
applicant of his intention to oppose the application. In essence, it was argued that the
court erred in law and/or fact to conclude that the matter is opposed when no
answering affidavit was filed for a prolonged extended time of period, i.e., about 6
months.
[14] It is common cause that at least about four interlocutory applications were
pending when the applicant insisted in his argument on 7 November 2025 that the
matter is unopposed. The applicant's rule 53(1)(b) application, read with the rule 30
notice, the respondent's counter application to stay the review application and the
application for condonation for late filing of the answering affidavit in the rule 53(1 )(b)
application were pending. These applications are interlinked with the main application,
i.e., the review application. These are substantive applications, not simple points in
/imine that can be raised in the answering affidavit. I agree with the respondents' legal
/imine that can be raised in the answering affidavit. I agree with the respondents' legal
team in their argument that they could not have taken further steps, as it invoked rule
30 application so as to alert the applicant about the irregular step he took by setting
6
down the review application prematurely, while the interlocutory application rule 53 is
still pending.
[15] A holistic approach should be considered in this matter. The background shows
that the review application was enrolled prematurely whilst there were pending
interlocutory applications which had to be dealt with first, or action taken either to
withdraw, discontinue, or abandon in terms of rule 41 (1) of the Uniform Rules of Court.
The respondent did not sit and do nothing in the six months as contended. The
respondents served and filed a notice to oppose and shortly thereafter served and
filed the record in terms of rule 53(1 )(b). The applicant's legal team filed an application
to compel before sunset of the date when they received the reasons. The respondents
filed their answering papers opposing the application to compel. The respondents filed
a counter-application to stay the review application and an application for condonation
for the late filing of the answering affidavit in the rule 53 application and the main
application. The applicant's legal team was aware that all the said interlocutory
applications were still pending when they decided to enrol the review application in an
unopposed motion court. The applicant's legal team did not follow the Rules of Court,
they relied on by failing to first do something simple, i.e., file a notice to withdraw or
abandon the interlocutory application in terms of rule 41 ( 1) of the Uniform Rules of
Court or dispose of the said rule 53 application before they enrolled the main
application (review application).
The existence of an answering affidavit
[16] This ground only came to the fore in the supplementary notice for leave to
appeal. It has been argued on behalf of the applicant that I erred in concluding that
the matter is opposed based on an incorrect fact, i.e., that the respondents filed an
answering affidavit in the review application. It was argued that the correct position is
answering affidavit in the review application. It was argued that the correct position is
that the respondents filed an answering affidavit in an application to compel, not in the
review proceedings. Yes, there was an error in stating that the respondent filed an
answering affidavit in the review application when, in actual fact, that was the
respondents' answering affidavit in the application to compel. In my view, this is not
7
an error of a material nature which could be characterised as a compelling reason for
leave to appeal to be granted. This does not take away from the fact that the
application for review was prematurely enrolled whilst the interlocutory applications
were pending. The respondents notice of opposition was never withdrawn or amended
or replaced by a notice to abide. I agree with the legal team for the respondents that
the applicant should have addressed this by bringing it to the attention of the court
rather than using this as a ground of appeal.
Entitlement to set down the matter
[17] The applicant's legal representatives submitted that they were entitled to set
down the matter as they are empowered by the provisions of rule 6(5)(f)(i) which
provides amongst other things that "where no answering affidavit is delivered within
the time referred to in subparagraph (ii) of paragraph (d), the application may, within
five days after the expiry of that time, set the matter down for hearing on notice to the
respondent ." They further argued that this provision is peremptory, it does not require
the withdrawal of the notice to oppose, a court directive, a separate application, or
leave of court. Therefore, the applicant was entitled in terms of rule 6(5)(f)(i) to set the
matter down on an unopposed motion court roll after expiry of the dies as it happens
in other civil proceedings.
[18] My view is that this ground is unsustainable based on the reasons stated in
paragraph 15 above.
[19] The applicant was not supposed to simply invoke the provisions of rule 6(5) as
he (through his legal representatives) was aware that there were pending interlocutory
applications which are directly linked to the review application. The argument that
there is no directive or that he did not have to institute a separate application or seek
leave of court has no merit. Logic dictates that he ought to have either filed a notice of
withdrawal of the rule 53 application or set it down for hearing before he enrolled the
8
review application. The concession by the applicant's legal team on 7 November 2025
that the applicant is in receipt of the reasons and now satisfied with the said reasons
took the respondent's legal team by surprise, as they were not aware of such before
7 November 2025.
Misinterpretation of rule 53(5)(b)
[20] The applicant's reliance on rule 53 (5)(b ), which reads: "(5) Should the presiding
officer, chairperson or officer, as the case may be, or any party affected desire to
oppose the granting of the order prayed in the notice of motion, such presiding officer,
chairperson or officer, as the case may be, or such party shall- ... (b) within 30 days
after the expiry of the time referred to in sub-rule (4) hereof, deliver any affidavits such
presiding officer, chairperson or officer, as the case may be, or such party may desire
in answer to the allegations made by the applicant. "
[21] The applicant contended that the respondents failed to file an answering
affidavit in the review application, and the court made a glaring mistake in regarding
the review application as opposed when it was heard on 7 November 2025. It was
further contended that such an error is fatal and renders rule 53(5)(b) ineffective and
undermines the structured procedure governing the review applications .
[22] In my view, this ground goes hand in hand with the argument already dealt with
in respect of the first ground and the background above, and there was nothing wrong
in granting an order that the matter be removed from the unopposed motion court roll
and enrolled on the opposed motion court roll, where issues should be ventilated . It is
undisputed that the applicant served the respondents with a rule 53 application in the
afternoon of 9 June 2025, the very same day upon which the applicant was served
with the written reasons.
9
[23] According to the respondents, there was no time to take further steps, i.e., to
invoke a rule 30 application to alert the applicant about the irregular step taken. The
applicant took an irregular step to set down the review application without first placing
the interlocutory applications on the opposed motion court roll. Rule 30(4) provides
that until the party against whom the order was made has complied with it, he/she may
not take further steps in the main action.8 The respondents argued correctly, in my
view, that they found themselves restrained to file an answering affidavit due to the
facts alleged in rule 53 and rule 30 could not be raised in an answering affidavit as
they are separate applications which had to be raised in their own right and they
require complete set of affidavits and notice of motion from those in the main
application. The response by counsel for the applicant was that the respondents could
have factored it in an answering affidavit, but that has no merit.
Interlocutory applications do not suspend dies
[24] It was submitted that the written reasons suggest that the pending interlocutory
applications justify the removal of the matter from the unopposed roll. The applicants
contend that this amounts to a misdirection, and it is one of the grounds for leave to
appeal. It was further contended that there is no court order staying proceedings that
suspends the dies.
[25] The submission by the applicant is inaccurate. Nowhere in the written reasons
does the court state that there is an order suspending the dies. The point was made
that a pending application to stay the review application was filed, and there are
interlocutory applications that are pending. The applicant prematurely enrolled the
main review application when his legal team was well aware of the pending
interlocutory applications. This is not a question of suspending dies, but logic dictates
that. This point has been dealt with exhaustively under the other grounds above.
that. This point has been dealt with exhaustively under the other grounds above.
8 Kopari v Moeti 1993 (4) SA 184 (BGD) 188H.
10
Misinterpretation of To/may J Order
[26] The applicant contended that the court misinterpreted Tolmay J's order granted
on 26 August 2025, wherein it was ordered that the matter be removed from the roll,
costs reserved. The main contention on this ground was that the said order (by Tolmay
J) does not state that the matter should be re-enrolled on an opposed motion court
roll. The other point taken on this is that what was before Tolmay J was not a review
application but the application to compel. Yes, the order by Tolmay J does not state
that the matter should be removed and re-enrolled on the opposed motion court roll.
However, the applicant never disputed this on 7 November 2025 before a ruling was
made, i.e. interlocutory application was removed from the roll so that it may be enrolled
in the opposed motion court. It is common cause that the interlocutory application,
which was before Tolmay J, was neither finalised nor withdrawn. The applicant is
correct that the matter which was before Tolmay J was not a review application but a
rule 53 application. Be that as it may, this does not take away from the fact that the
review application was prematurely enrolled without the withdrawal of the rule 53
application, read with the rule 30 Notice.
Costs order
[27] Although on 7 November 2025, I was of the view that a costs order against the
applicant was justified, as I believed the applicant had abused the legal process by
ignoring Tolmay J's order to first deal with the interlocutory applications,
reconsidered9 this view shortly thereafter in light of subsequent developments. It
9 The reasons for this are stated in the written reasons. In addition thereto the case of Firestone South Africa
(Pty} Ltd v Genticuro A.G 1977 (4) SA 298 AD at 307 C-G laid down the following exceptions to the well-established
principle in our law that once a court has duly pronounced a final judgment or order, itself has no authority to
correct, alter or supplement it: "(i) The principal judgment or order may be supplemented in respect of accessory
or consequential matters, for exomple, costs or interest on the judgment debt, which the court overlooked or
inadvertently omitted to grant. (ii) The court may clarify its judgmen t or order, if, on proper interpretation , the
meaning thereof rema ins obscure, ombiguous or otherwise uncertain , so as to give effect to its true intention,
provided it does not thereby alter "the sense and substance" of the judgment or order .. (iii) The court may correct
o clerical, arithmetical or others error in its judgment or order so as to give effect to its true intention ... (iv) Where
counsel has argued the merits and not costs of a case (which nowadays often happens since the question of costs
may depend upon the ultimate decision on the merits) but the Court, in granting j udgment, also makes an order
concerning the costs, it may thereafter correct, alter or supplements that order (see Estate Garlick v Commissioner
of Inland Revenue, 1934 AD 499 at 502). The reason is (see 503-5) that in such a case the Court is always regarded
as having made its original order "with the implied understanding " that it is open to the mulcted party (or perhaps
11
would, however, not appear that Tolmay J directed that the interlocutory application
should be dealt with first. The matter was merely removed from the roll, costs reserved.
According to the undisputed contention of the respondents, the matter was to be set
down on the opposed motion court roll if it was not settled/withdrawn. The applicant's
legal team contended that I erred in granting a costs order against their client when
they were not in default or did not breach the rules of the court in the exchange of the
pleadings, i.e., filing of court papers. It was argued that I erred in exercising my
discretion by granting a costs order against the applicant. Counsel for the respondents
argued correctly that the issue of costs is .within the discretion of the court. It was
argued on behalf of the respondents that they have no issue even on the reconsidered
order which effectively means that costs are yet to be determined when the main
application is argued. The ancillary order of reserving costs is granted more often in
motion court proceedings where the main issue is yet to be determined. I am of the
view that granting leave to appeal either to the full bench or Supreme Court of Appeal
will cause delay in resolving the main issues on review i.e. whether the decision of the
respondents to refuse to place the applicant on parole is reviewable and/or should be
set aside.
[28] The Supreme Court Appeal has warned against grating leave to appeal in
instances where not all the issues are yet to be determined by the court of first
instance, i.e. in this case the merits in the main application. Lewis JA in Health
Professions Council of South Africa v Professional Board for Emergency Medical
Supplies and Training CC t/a EMS10 remarked as follows: "A court, when requested to
grant leave to appeal against orders or judgments made during the course of
proceedings, should be careful not to grant leave where the issue is one that will be
proceedings, should be careful not to grant leave where the issue is one that will be
dealt with in isolation, and where the balance of the issues in the matter have yet to
be determined. Of course, where a litigant may suffer prejudice or even injustice if an
order or judgment is left to stand - as would have been the case in King - then the
position will be different"11. In the instant case no finding was made on the merits of
the main application. The order is not final nor definitive of rights of the parties. It also
any party) "aggrieved" by the orde r -seep 505} ta be subsequently heard an the appropriate order as ta casts."
(underline d own emphasis).
10 2010(6) SA 469 (SCA) at para 25
11 Health Professions Council of South Africa v Professional Board for Emergency Medical Supplies and Training
CC t/o EMS at paro 25
12
does not have the effect of disposing of at least substantial portion of the relief claimed
in the main proceedings (review application); See also Government of the Republic of
South Africa and Others v Von Abo12
[29] In Von Abo case, the SCA remarked as follows "It is fair to say there is no
checklist of requirements. Several considerations need to be weighed up, including
whether the relief granted was final in its effect, definitive of the right of the parties,
disposed of a substantial portion of the relief claimed, aspects of convenience, the
time at which the issue is considered, delay, expedience, prejudice, the avoidance of
piecemeal appeals and the attainment of justice."13 (My own underlining) See also
United Democratic Movement & Another v Lebashe14
Compelling reasons
[30] It was argued that there are compelling reasons for the court to grant leave to
appeal, i.e., whether interlocutory steps suspend dies, and whether a bare notice
suspends the opposition indefinitely. It was further contended that procedural certainty
in review proceedings is fundamental to the administration of justice. Furthermore, it
was submitted that the minimum threshold of section 17 is met and leave to appeal
should be granted.
[31] The applicant in the instant matter wants to deal with this matter in piecemeal,
by seeking leave to appeal against an order that the matter ought to have been set
down in an opposed motion court roll which does not deal with substantial issues of
the review application. This is discouraged and the appellate court has held that
piecemeal appeals are undesirable and are costly. In Guardian National Insurance
Co Ltd v Searle N015 Howie JA said that "the 'piecemeal appellate disposal of the
issues in litigation' was not only expensive, but that generally all issues in a matter
12 2011 (5) SA 262 at para (17
13 Governmen t of t he Republic of South Afric a v Von Abo [2011) ZASCA 65; 2011(5 ) SA 265 at para 17
14 2023(1) SA 353(CC) at para s [34) and [45)
14 2023(1) SA 353(CC) at para s [34) and [45)
15 1999 (3) SA 296 (SCA) at 301B-C. See also Van Niekerk & anothe r v Van Niekerk & another 2008 (1) SA 76
(SCA) paras 3-7.
13
should be disposed of by the same court at the same time. Thus even if. technically,
an order is final in effect, it may be inappropriate to allow an appeal against it when
the entire dispute between the parties has yet to be resolved by the court of first
instance." (Own underlyingin).
[32] After perusing my order, written reasons, and considering submissions by
counsel, I am of the view that the appeal would neither have reasonable prospect of
success nor that there exist other compelling reason why the appeal should be heard
in respect of the order removing the matter from the unopposed motion court roll to be
enrolled in an opposed motion court.
[33] Although the general rule is that costs follow the result and the respondents
were successfully in opposition of this application for leave to appeal. However, in
this case I am of the view that the interest of justice will be served if an order is granted
that each party should pay its own costs.
Order
[34] Consequently, I make the following order:
1. Leave to appeal either to the full bench of this Division or Supreme
Court of Appeal is dismissed.
2. Each party to pay its own costs
Date of hearing
Date of Judgment
N. SKIBI
Acting Judge of the High Court
Gauteng Division, Pretoria
: 20 February 2026
: 6 March 2026
14
For the Applicant:
For the Respondent:
Adv. Mukwevho instructed by Makgopa
Attorneys
Adv. Mashabane instructed by State
Attorney Pretoria
15