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[1] The applicant (the plaintiff in the Court below) applies for leave to appeal to the
Supreme Court of Appeal against the whole of the judgment and order granted
in the Court below on 8 July 2025 in terms whereof the respondent’s (the
defendant in the Court below) special pleas of prescription against the
applicant’s 1st, 2nd, 3rd and 5th claims, as well as, the claim in paragraph 23.1
of the particulars of claim were upheld, inclusive of the cost order granted in
favour of the respondent. The respondent is opposing the application.
[2] Leave to appeal is sought in terms of the provisions of Section 17(1)(a)(i) and
(ii) of the Superior Courts Act, Act 10 of 2013 (the Act) on the ground that there
are reasonable prospect of success that the appeal would succeed and that
there is some other compelling reason why the appeal should be heard. The
parties are agreed on the principles that apply to the test for granting of leave
to appeal, that is, that leave to appeal may only be given where the judge
concerned is of the opinion that the app eal would have a reasonable prospect
of success; or there is some other compelling reason why it should be heard.1
[3] From reading of the applicant’s heads of argument and oral argument tendered
in court , the applicant has not ma de out a case of "some other compelling
reason" as contemplated in section 17(1)(a)(ii) of the Act. The applicant in its
attempt at making out a case for reasonable prospects of success on appeal
as envisaged in section 17(1)(a)(i) of the Act, also, fails dismally, as will appear
hereunder.
[4] The grounds on which the applicant relies as gleaned from the application for
leave to appeal may be categorised as follows:
4.1 Paragraphs 1 - 8 contend that the Court erred in finding that the
debt was due and the running of prescription was not deferred
until the applicant had invoiced the respondent.
1 MEC for Health, Eastern Cape v Mkhita and Another 2016 ZASCA 176 at para 16 - 17.
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4.2 Paragraphs 9 - 16 address the applicant's argument that
prescription was interrupted during June 2015.
4.3 Paragraphs 17 - 22 deal with the plaintiff's argument that
prescription was interrupted on 13 May 2016.
[5] These aspects were dealt with by th e Court below comprehensively and
extensively in its judgment and does not require a repeat in this judgment. The
Court below relied in its judgment on the legal principles established in the
Constitutional Court judgment in Trinity Asset Management (Pty) Limited v
Grindstone Investments 132 (Pty) Limited,2 in respect of the aspect of when the
debt became due and the running of prescription, and th e judgment of the
Supreme Court of Appeal in Road Accident Fund v Mothupi (Mothupi)3 and the
Cape Town Municipality v Allie NO judgment,4 in respect of the aspect of
interruption of prescription. It is not in dispute that these principles have been
properly applied.
[6] What seems however to be an issue for the applicant is the findings of fact by
the Court below and/or the manner in which the Court below interpreted the
agreements which were the subject of contention at trial. The challenge for the
applicant is that it does not in its application for leave to appeal nor in its
argument identify any factual finding by the Court below which it says would be
overturned on appeal. It does not behove the applicant to merely make the
same arguments that were made at trial and hope for a different outcome. What
the applicant ought to have done, was to point to the relevant specific findings
of the Court below and explained why those findings would be overturned by
an appeal court. This it failed to do either in the application for leave to appeal
or in argument before this Court. Having not done so, it failed to establish any
reasonable prospects that it would succeed on appeal on any of the ground
relied upon.
2 2018 (1) SA 94 (CC).
3 2000 (4) SA 38 (SCA).
4 1981 (2) SA 1 (C) 7F-G which was quoted with approval in Mothupi.