IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-092254
DATE: 22 May 2026
In the matter between:
AFRICAN RAINBOW CAPITAL (PTY) LIMITED Applicant
and
PULA GROUP LLC First Respondent
PULA GRAPHITE PARTNERS TANZANIA LIMITED Second Respondent
AFRICAN RAINBOW MINERALS LIMITED Third Respondent
DR PATRICE TLHOPANE MOTSEPE Fourth Respondent
ARCH SUSTAINABLE RESOURCES GPCO LIMITED Fifth Respondent
BOWLINE PROFESSIONAL SERVICES (PTY) LTD Sixth Respondent
Neutral Citation: African Rainbow Capital v Pula Group and Other s (2025-
092254) [2026] ZAGPJHC --- (22 May 2026)
Coram: Adams J
Heard: 21 May 2026 – ‘virtually’ as a videoconference on Microsoft
Teams.
Delivered: 22 May 2026 – This judgment was handed down electronically by
circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and time
for hand-down is deemed to be 11:00 on 22 May 2026.
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Summary: Application for leave to appeal – s 17(1)(a)(i) of the Superior Courts
Act 10 of 2013 – an applicant now faces a higher and a more stringent threshold –
Another compelling reason for leave to appeal to be granted (s 17(1)(a)(ii)) – the
decision sought to be appealed against involves an important question of law –
Leave to appeal granted to the Full Court of the Gauteng Division of the High
Court.
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ORDER
(1) The first and second respondents are granted leave to appeal to the Full
Court of this Division.
(2) The cost of this application for leave to appeal shall be costs in the appeal.
JUDGMENT [APPLICATION FOR LEAVE TO APPEAL]
Adams J:
[1]. I shall refer to the parties as referred to in the original opposed application
by the applicant for declaratory relief in relation to proceedings presently pending
between the parties in the High Court of the United Republic of Tanzania. On
14 April 2026 I handed down a written judgment and an order in terms of which
most of the relief sought by the applicant in its application was granted with costs.
Importantly, I issued a declaratory order to the effect that, applying South African
law, the applicant has no obligations arising from the confidentiality agreement
concluded between the first respondent and the third respondent.
[2]. The first and second respondents (‘Pula respondents’) apply for leave to
appeal against the whole of the aforementioned judgment and order, including
the order for costs. The se respondents contend that I erred in granting the
aforesaid order and that I should instead have dismissed the applicant ’s
application with costs.
[3]. In a nutshell the respondents’ case in this application for leave to appeal
is that I erred in that I misapplied the applicable common -law requirements for
jurisdiction over peregrini. I erred, so the contention goes, in finding that a n
agreement on the governing law of a contract can and should, in the
circumstances of the matter, amount to a submission to the jurisdiction of that
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country’s courts. In that regard, the contention on behalf of the respondents is
that I erred in not applying the common law as set out in Bid Industrial Holdings
(Pty) Ltd v Strang and Another (Minister of Justice and Constitutional
Development, Third Party) 1, a judgement of a superior court by which I was
bound.
[4]. Mr Morrison SC, who appeared on behalf of the first and the second
respondents, submitted that I should not have found that this Court has
jurisdiction only because of the connecting factors reference d in my judgment a
quo, notably the fact that the confidentiality agreement was concluded in
Johannesburg and that it provided that its terms, application and consequences
are to be determined in accordance with the South African law. These ‘connecting
factors’, so the contention goes, ought not to have been adopted as each is
flawed in logic and in law.
[5]. Nothing new has been raised by the first and the second respondents in
their application for leave to appeal. In my original judgment of 14 April 2025, I
have dealt with most, if not all of the issues raised by the respondents in their
application for leave to appeal and it is not necessary for me to repeat those in
full. Suffice to restate the conclusion I reached in my said judgment, which is that,
as things stand at present, this Court could and should accept jurisdiction over
and take cognisance of the applicant’s suit if there is a sufficiently close
connection between the suit and the geographical area of jurisdiction of this
Court.
[6]. The traditional test in deciding whether leave to appeal should be granted
was whether there is a reasonable prospect that another court may come to a
different conclusion to that reached by me in my judgment. This approach has
now been codified in s 17(1) (a)(i) of the Superior Courts Act 10 of 2013, which
came into operation on the 23rd of August 2013, and which provides that leave to
came into operation on the 23rd of August 2013, and which provides that leave to
1 Bid Industrial Holdings (Pty) Ltd v Strang and Another (Minister of Justice and Constitutional Development,
Third Party) 2008 (3) SA 355 (SCA).
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appeal may only be given where the judge concerned are of the opinion that ‘the
appeal would have a reasonable prospect of success’.
[7]. In Ramakatsa and Others v African National Congress and Another 2, the
SCA held that the test of reasonable prospects of success postulates a
dispassionate decision, based on the facts and the law that a court of appeal
‘would’ reasonably arrive at a conclusion different to that of the trial court. These
prospects of su ccess must not be remote, but there must exist a reasonable
chance of succeeding. An applicant who applies for leave to appeal must show
that there is a sound and rational basis for the conclusion that there are prospects
of success.
[8]. The ratio in Ramakatsa simply followed S v Smith 2012 (1) SACR 567
(SCA), [2011] ZASCA 15, in which Plasket AJA (Cloete JA and Maya JA
concurring), held as follows at para 7:
‘What the test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law that the 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.’
[9]. In Mont Chevaux Trust v Tina Goosen3, the Land Claims Court held (in an
obiter dictum) that the wording of this subsection raised the bar of the test that
now has to be applied to the merits of the proposed appeal before leave should
be granted. I agree with that view, which has also now been endorsed by the
SCA in an unreported judgment i n Notshokovu v S 4. In that matter the SCA
SCA in an unreported judgment i n Notshokovu v S 4. In that matter the SCA
2 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March
2021);
3 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
4 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
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remarked that an appellant now faces a higher and a more stringent threshold, in
terms of the Superior Courts Act 10 of 2013 compared to that under the provisions
of the repealed Supreme Court Act 59 of 1959. The applicable legal principle as
enunciated in Mont Chevaux has also now been endorsed by the Full Court of
the Gauteng Division of the High Court in Pretoria in Acting National Director of
Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance
v Acting National Director of Public Prosecutions and Others5.
[10]. I am persuaded that the issues raised by the first and the second
respondents in their application for leave to appeal, are issues in respect of which
another court is likely to reach conclusions different to those reached by me. I
therefore conclude that there are reasonable prospects of another court making
factual findings and coming to legal conclusions at variance with my factual
findings and legal conclusions. The appeal, therefore, in my view, does have a
reasonable prospect of success.
[11]. Moreover, I am of the view that there is another compelling reason why
the appeal should be heard, as envisaged by s 17(1)(a)(ii) of the Superior Courts
Act, and that relates to the fact that the issues implicated in this matter are novel
insofar as they relate to recently developed common law principles relating to the
requirements for jurisdiction over peregrini.
[12]. Leave to appeal should therefore be granted. And in that regard, I do not
believe that the complexity of the legal issues raised in this matter is such that I
should grant leave to appeal to the Supreme Court of Appeal.
Order
[13]. In the circumstances, the following order is made:
5 Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489
(24 June 2016).
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HEARD ON: 21 May 2026 – ‘virtually’ as a
videoconference on Microsoft Teams
JUDGMENT DATE: 22 May 2026 – Judgment handed
down electronically
FOR THE APPLICANT: S Scott
INSTRUCTED BY: Webber Wentzel, Sandton
FOR THE FIRST and
SECOND RESPONDENTS: L J Morrison SC
INSTRUCTED BY: Nicqui Galaktiou Incorporated,
Illovo, Johannesburg
FOR THE SECOND to
SIXTH RESPONDENTS: No appearance
INSTRUCTED BY: No appearance