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PGC INVESMENT HOLDINGS (PTY) LTD Third Respondent
WORKERS LIFE DIRECT (PTY) LTD Fourth Respondent
In re:
PGC GROUP (PTY) LTD First Plaintiff
WORKERSLIFE MANAGEMENT
SERVICES (PTY) LTD
Second Plaintiff
PGC INVESTMENT HOLDINGS (PTY) LTD Third Plaintiff
WORKERSLIFE DIRECT (PTY) LTD Fourth Plaintiff
And
ZWILENKOSI REUBEN MDLETSHE First Defendant
ABEGAIL NTOMBIKHONA BOIKHUTSO Second Defendant
This judgment has been handed down remotely and shall be circulated to the parties by
way of email / uploading on Caselines. The date of hand down shall be deemed to be 29
April 2026.
________________________________________________________________
ORDER
________________________________________________________________
The following order is granted:
1. Leave to appeal is granted to the Full Court of this Division only in respect
of quantum of security for costs.
2. Costs will be costs in the appeal.
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________________________________________________________________
JUDGMENT
________________________________________________________________
Bam J
Introduction
1. This is an application for leave to appeal the judgment and order of this court
of 8 September 2025. That order upheld the applicant’s application for security
for costs, in the amount of R2 000 000. The application of leave to appeal is
opposed by the applicant. Prior to considering the respondents’ grounds, it is
useful to first canvass the legal principles governing applications for leave to
appeal.
Relevant legal principles
2. Legislative provision for applications for leave to appeal is found in Section 17
(1) (a) of the Superior Courts Act1 and it reads:
‘Leave to appeal may only be given where the judge or judges concerned are of
the opinion that:
(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. Our Senior Courts have on numerous occasions expressed themselves on
the meaning of the provision. In Caratco (Pty) Ltd v Independent Advisory
(Pty) Ltd, it was said that:
1 Act 10 of 2013.
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‘[An] applicant for leave must satisfy the court that the appeal would have a
reasonable prospect 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
discreet issue of public importance that will have an effect on future disputes. But
here too, the merits remain vitally important and are often decisive.’2
4. In MEC for Health, Eastern Cape v Mkhitha and Another, it was said that:
‘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.’3
5. In Mothuloe Incorporated Attorneys v Law Society of the Northern Province
and Another, the court stated that,
‘The test is simply whether there are any reasonable prospects of success in an
appeal. It is not whether a litigant has an arguable case or a mere possibility of
success.’4
Respondents’ grounds of appeal: Ground 1: The court’s failure to consider the
issue of delay
6. Firstly, the respondents cite the issue of delay and record that the request for
security was delivered on 29 September 2023, long after the pleadings closed.
They state that they had raised the issue in their answering affidavit and the
2 (982/18) [2020] ZASCA 17; 2020 (5) SA 35 (SCA) (25 March 2020), paragraph 2.
3 (1221/2015) [2016] ZASCA 176 (25 November 2016), paragraph 17.
4 (213/16) [2017] ZASCA 17 (22 March 2017), paragraph 18.
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applicant failed to deal with it in her replying affidavit. Thus, in failing to
mention the point in its judgment, this court failed to take the issue into account
in making its decision. I disagree that I failed to take the issue into account. It
is by now settled that a judgment need not deal with all the issues raised by
the parties. Importantly though, the Constitutional Court in Giddey NO v JC
Barnard and Partners 5 , has long expressed its support for the ratio in
Bookworks (Pty) Ltd v Greater Johannesburg, Transitional Metropolitan
Council and O6, that an order for security may be made at any stage of the
proceedings, and thus, in media res. The ground lacks merit.
Ground 2: The court’s finding that the particulars of claim disclose no cause of
action
7. The respondents contend that I erred in finding that their particulars of claim
disclosed no cause of action. They submit that:
(i) Their particulars disclose a cause of action.
(ii) Sufficient allegations are pleaded in respect of breach of fiduciary
duties and damages.
(iii) The claims are based on the alleged status of the applicant as a
director, the fiduciary duties allegedly owed in terms of the common
law and Section 76(2) and (3) of the Companies act, and alleged
intentional wrongful and unlawful conduct. They add that these claims
are sui generis, delictual or statutory based.
5 (CCT65/05) [2006] ZACC 13; 2007 (5) SA 525 (CC); 2007 (2) BCLR 125 (CC) (1 September 2006),
paragraph 20.
6 1999(4) SA 709 @ 807H.
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(iv) The conduct is apparent ex facie the particulars of claim, alternatively
to be established at trial.
(v) If proven at trial, the conduct would constitute a breach of fiduciary
duties and entitle the respondents to damages; and
(vi) All the elements of a sui generis claim, delictual claim, or statutory claim
were pleaded.
8. I refer to my reasoning as set out in the judgment. I see no need to repeat
same. I point out that the respondents’ submissions, far from pointing out the
respects in which the court erred, simply repeat what is in their particulars of
claim and what the court should have found. As such, the respondents fail to
engage with the reasoning in the judgment. The ground lacks merit.
Ground 3: The court’s finding on the issue of joinder
9. The respondents submit that I erred in upholding the joinder point raised by
the applicant, particularly in circumstances where the applicant had laid no
basis for the joinder of the individuals mentioned in her founding affidavit.
They state, inter alia, that:
i) The persons the applicant seeks to join are set out in the seventh,
eighth, and ninth special pleas to the applicants’ notice of amendment.
ii) The respondents objected to the proposed amendment.
iii) The refusal to join was warranted.
iv) In light of the contents of the notice of objection and heads of argument
in the application for leave to amend, the refusal to join certain parties
is warranted.
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v) The respondents were bona fide in their view that there was no need
to join the parties.
10. The respondents’ submissions appear to me to justify why they refused to join
the parties. Thus, the respondents, instead of attacking the reasoning in the
judgment, are rehashing their case. I find no merit in this ground of appeal.
Ground 4: The court’s exercise of its discretion
11. In this ground, the respondents submit that, in light of the points raised in their
Notice of Application for Leave to Appeal, this court failed to exercise its
discretion judicially and or, the court reached a decision which could not have
been reached by a court properly directing itself to the relevant facts. The
respondents further contend that the court, in so far as it found that their action
against the applicant was vexatious and frivolous, failed to exercise its
discretion judiciously. I find it difficult to entertain this ground as it is merely a
conclusion reached by the respondents.
Ground 5: Quantum of security for costs
12. The respondents submit that the court erred in setting the amount of security
at R2 million rand. They say the applicant had not justified the amount and, in
the event security had to be furnished, which they deny, the quantum had to
be set by the Registrar.
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13. On this ground, I am persuaded that another court would come to a different
finding. It follows that leave to appeal must be granted only in respect of this
ground.
Order
1. Leave to appeal is granted to the Full Court of this Division only in respect
of quantum of security for costs.
2. Costs will be costs in the appeal.
— ———
BAM J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, GAUTENG
DIVISION, PRETORIA
Date of Hearing: 25 March 2026
Date of Judgment: 29 April 2026
Appearances:
Counsel for the Appellant: Adv P Mbana
Instructed by: Fenyane and Associates Inc
c/o TIDK Incorporated, Centurion
Mall, Centurion, Gauteng
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Counsel for the Respondent: Adv L Hollander
Instructed by: LDA Incorporated
c/o Hills Incorporated
Brooklyn, Pretoria