IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 8265/2021
In the matter between:
CRAIG BUTTON PLAINTIFF
and
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR TRANSPORT & PUBLIC WORKS 1ST DEFENDANT
PREMIER OF THE WESTERN CAPE 2ND DEFENDANT
GARDEN ROUTE DISTRICT MUNICIPALITY 3RD DEFENDANT
Neutral citation: Craig Button v The Member of the Executive Council for
Transport and Public Works & Others (Case no: 8265/21)
[2026] ZAWCHC (4 June 2026)
Coram: MAYOSI AJ
Heard: 25 May 2026
Delivered: 4 June 2026
Summary: Application for leave to appeal against the whole judgment handed
down on liability only, in a claim for damages arising from personal injury.
ORDER
1. The application for leave to appeal is dismissed.
2. Costs, including the costs of counsel, shall be borne by the first and second
defendants jointly and severally the one paying the other to be absolved, on
Scale B.
JUDGMENT
Mayosi J:
Introduction
[1] The first and second defendants seek leave to appeal against the whole
judgment of this Court dated 2 April 2026, wherein th ey and the third defendant
were found to be responsible, jointly and severally the one or the other paying the
other or others to be absolved, for 90% of such damages as the plaintiff may prove
to have sustained in an incident that occurred on 14 February 2020 . The plaintiff
fell off his bicycle whilst c ycling on a cycle path that was constructed by the
defendants, and is owned, controlled and maintained by the m. The trial proceeded
only on the issue of liability.
[2] References to the defendants hereinafter mean the first and second
defendants only, as the third defendant is not a party to this application for leave to
appeal.
[3] The notice of application for leave to appeal (the notice ) does not clearly
and succinctly set out the grounds upon which leave to appeal is sought . Instead,
the notice consists of 29 paragraphs following on from each other without
differentiation and/or distinction so as to determine the discrete issues of complaint
that the defendants have with the judgment. At the hearing of th is application,
counsel for the defendants distilled 8 grounds of appeal from the 29 paragraphs, on
the basis of which it is argued that the court a quo erred and misdirected itself and
that there are reasonable prospects of another coming to a different conclusion .
Furthermore, the defendants assert that there are other compelling reasons for the
appeal to be heard.
[4] Before address ing those grounds, the now trite legal principles relevant to
this application are summarised below.
Relevant legal principles
[5] Section 17 of the Superior Courts Act 10 of 2013 provides as follows in
section 17(1)(a)(i) and (ii) thereof:
‘17(1)(a) 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.’
[6] In a series of judgments since Mont Chevaux Trust1 in 2014, it is now clear
that2:
[a] the bar for granting leave to appeal has be en raised by the inclusion of the
word “would”, as opposed to the previous formulation of “could”, as well as by the
word “only” in section 17(1);
[b] the word “would” now imposes a more stringent and vigorous threshold
before leave should be granted; and
[c] the test now also means that there must be a measure of certainty that
another court will differ from the court whose judgment is sought to be appealed
against.
[7] In MEC for Health, Eastern Cape v Mkhitha and Another3 the Supreme
Court of Appeal held that an applicant for leave to appeal now faces a more
stringent test when it stated that:
‘[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
1 Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC), at para 6: “It is clear that the threshold for granting leave
to appeal against judgment of a High Court has bene raised by the new Act. The former test whether leave to appeal
should be granted was a reasonable prospect that another court might come to a different conclusion….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 See Erasmus Superior Court Practice RS7, 2025, D105-D106
3 (1221/2015) [2016] ZASCA 25 November 2016
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.’
[8] As regards what other compelling reasons for the grant of leave to appeal
might be, they would include the fact that the decision sought to be appealed
against involves an important question of law; that the administration of justice,
either generally or in the particular case concerned, requires the appeal to be heard;
the existence of differing interpretations , concretized in two judgments, of another
judgment; the interplay between subject -matter jurisdiction, principles of private
international law and the principle of effectiveness in relation to claims rooted in
statute and extra -territorial statutes ; and that the appeal would raise a point of
statutory interpretation.4
[9] I turn to consider the defendants’ grounds of appeal , with reference to the
paragraphs in the notice where it is said that these grounds appear.
Ground one (paras 1 to 6)
[10] According to the defendants, the court a quo erred and misd irected itself
when it found, in paragraph 53 of the judgment, that the defendants had not
engaged with the plaintiff’s case both in their pleadings and in the evidence.
[11] This finding was preceded by the court a quo’s characterisation of the case
which the plaintiff had called the defendants to answer as being the plaintiff’s
claim that: (a) the defendants had a legal duty to take steps to ensure the safety of
cyclists like himself that were using the cycle path; (b) the defendants failed to take
4 See Erasmus supra at RS6, 2025, D-108
such steps in circumstances where harm of the nature that befell the plaintiff was
foreseeable; and (c) the defendants should consequently be found to have been
negligent and liable for his damage s. It is this case, w hich was pleaded and
supported by evidence, that the defendants failed to meet. In my opinion the re are
no reasonable prospects of another court finding that the defendants met this case.
[12] The defendants ’ submission that this was not the case pleaded by the
plaintiff is incorrect. The submission is not supported by the pleadings a s well as
concessions made by the defendants.
[13] In the particulars of claim , the plaintiff alleged that , inter alia , the
defendants were negligent in that they failed to warn members of the public of the
fact that there was a drop of approximately 6.2 meters from the side of the
pavement a djacent to the road , to the culvert below. During argument of this
application Mr Titus conceded that the defendant s did not respond at all to this
specific averment in their plea , save for a generalised denial. In the face of this
concession, I see no basis upon which another court will find that the defendants
had pleaded to this crucial aspect of the plaintiff’s case , when the defendants
themselves agree with the court a quo that they did not.
[14] As for th e defendants’ evidence, the c ourt a quo found that it demonstrated
no differentiation in their approach to safety between the safety needs of
pedestrians and those of cyclists using the path, especially when regard was had to
the fact that a culvert existed at the point where the incident occurred. This culvert
was concealed by vegetation and therefore its existence was not known to cyclists
using the path , which triggered a legal duty for the defendants to have warned
users of the path, including cyclists like the plaintiff, of its existence.
[15] The defendants’ failure , in their evidence in the trial , to engage with the
question of the safety of cyclists is demonstrated even in how this aspect is
couched in the notice. The extremely brief summary of the defendants’ evidence in
regard to this aspect 5 makes no mention whatsoever of cyclists. This is how the
defendants approached the case, which involved injuries allegedly suffered by a
cyclist whilst using their cycle path. The evidence tendered by the defendants’ own
witnesses was to the effect that they saw no reason to differentiate between c yclists
and pedestrian users of the path.
Ground two (paras 7 to 10)
[16] In paragraph [52] of its judgment the court a quo recorded that at the
conclusion of the evidence the parties agreed that the issues for determination in
the case had crystallised to: (a) the adequacy of the handrail for cyclists using the
path; and (b) whether or not the culvert constituted a concealed hazard.
[17] The complaint under this ground of appeal is that the court a quo erred and
misdirected itself in proceeding on the basis that the issue stated in (b) above was
an issue for determination in the case because, as the argument goes, the issue of
the concealed hazard was not pleaded in the particulars of claim.
[18] First of all, the defendants themselves agreed during trial that, after all the
evidence had been heard, the issues in the case had narrowed to those two issues
only. Not only was this not disputed by the defendants; it was expressly agreed to
be the case. Second, the plaintiff alleged in the particulars of claim that the
5 In paragraph 5 of the defendants’ notice of application for leave to appeal.
defendants failed to warn members of the pub lic of the fact that there was a culvert
adjacent to the path, and it was the evidence of the plaintiff that the duty to warn
arose because the culvert was concealed. The question of whether or not the failure
to warn was reasonable became a pertinent issue in the trial given that the culvert
was concealed from the view of users of the path , which included in this particular
case cyclists.
[19] In any event, it was not necessary for the plaintiff to use the specific phrase
“concealed hazard” in his particulars because the words set out in the particulars
describing the failures of the defendant encompassed their obligations in relation to
a disguised 6.2m drop adjacent to the path that led to the culvert below. In
addition, the question was thoroughly canvassed in evidence and there can be no
charge that the defendants were prejudiced in their conduct of the case because the
specific phrase was not used in the pleadings.
[20] There are no reasonable prospects of another c ourt finding that the plaintiff
departed from his pleadings and relied on a new issue that was not part of the case
that the defendants were called to answer. Furthermore, in the circumstances of
this case including the conduct of the trial, there are no compelling reasons why
another court should decide whether or not the question of a concealed hazard was
one of the issues for determination in the case. It self-evidently was.
Grounds three and four (paras 11 to 16), and six (para 24)
[21] These grounds of appeal relate to the evidence of Mr Andre van
Blommenstein.
[22] In this regard the first error and misdirection that is said to have been
committed by the court a quo was in relying on the evidence of Mr Van
Blommenstein regarding how the plaintiff came to fall o ff his bicy cle given that
the former did not see the event. The complaint seems to be that by relying on his
evidence as being the most probable trigger for the fall , the court a quo elevated
Mr Van Blommenstein to the level of an expert on that score.
[23] There is no basis for this complaint, in circumstances where the court a quo
stated in terms in its judgment that Mr Van Blommenstein was a factual witness.
[24] The evidence of Mr Van Blommenstein, who had not seen the fall, was that
based on his own experience as a rider - how he himself had fallen – and the
manner in which the bik e was found (with its front wheel wedged in the grass) it
was more probable that the plaintiff came to an abrupt halt which caused him to be
propelled forward over the handlebars with moment um, and then to fall into the
culvert. There was no objection to this evidence , or the nature of it. His evidence
established probable factual causation , which was sufficient for the plaintiff to
succeed on this element of the delict at issue . Given that our law allows for a
flexible approach in determining factual causation ( Lee v Minister of
Correctional Services 6), in my opinion there are no reasonable prospects that
another court will find that the court a quo’s reliance on the factual evidence of Mr
Van Blommenstein was wrong.
[25] The second error and misdirection by the court a quo in relation to Mr Van
Blommenstein’s evidence is said to be the court’s acceptance of the evidence to the
effect that the cycle path took a slight downhill before the handrail , causing
6 2013 (2) SA 144 (CC), para 43
cyclists to pick up spee d at that point . It is said that this is not supported by the
photographs that were admitted as evidence before the court , which show that the
path is flat at that point with no downhill.
[26] First, the evidence of Mr Van Blommenstein regarding the sloping path was
not challenged at all by any of the defendants . It was in fact elicited by Mr Titus
for the defendants during his cross-examination of Mr Van Blommenstein, and Mr
Titus did not disturb that evidence.
[27] Second, there was no evidence led in the trial to the effect the photographs
now relied on in th is application show a flat path. In attacking the court a quo’s
reliance on the undisputed evidence of Mr Van Blommenstein, the defendants seek
to introduce and rely on matters that were not placed before the trial court. This is
self-evidently impermissible.
[28] In my opinion there are no reasonable prospects of an appeal court will
interfere with the court a quo on this score.
Grounds five (paras 17 to 23) and seven (para 25)
[29] According to the defendants, the court a quo erred and misdirected itself in
finding that the width of the handrail was inadequate and did not serve its purpose
without the plaintiff having tendered measurements as to what constituted an
adequate width.
[30] The plaintiff did not have to tender measurements as to what constituted an
adequate handrail, because there was a plethora of evidence from both the
plaintiff’s witnesses and the defendants ’ own witnesses that: (a) the hand rail was
not high enough. In fact the height of the handrail did not comply with the
defendant’s own specifications and the requirements by which they considere d
themselves bound ; (b) the hand rail was not wide enough to effectively protect
cyclists; (c) the defendants’ maintenance programme was limited only to ensuring
that no vegetation encroached on the path and did not include warning cyclists of
the existence of the culvert ; and (d) there were no signs warning user s, who
included cyclists, of the existence of the culvert.
[31] What emerged from the evidence was the obvious fact that cyclists use the
path differently from pedestrians. Even excluding any references to the document
mentioned in paragraph 56 of the judgment , to which the court a quo referred
merely to demonstrate a point that was already proven by the evidence led, the
handrail fell short. In order to succeed the plaintiff was required to show that the
existing hand rail was inadequate , and to lead evidence that established this on a
balance of probabilities. He succeeded in doing so.
[32] The question of what measurements (in terms of width and height) constitute
an adequate and effective adequate handrail is a matter that is distinctly within the
knowledge and expertise of the defendants’ engineers, some of whom gave
evidence at the trial.
Ground eight (paras 26 to 29)
[33] It is said under this ground that the court a quo erred and misdirected itself in
applying the principles set out in Butters7 because the facts of that case are
distinguishable from those in the present case.
[34] First of all, it is rarely the case that the facts of any one case are identical to
those of another . If Butters establishe d any principle, it is that each case must be
assessed on its own facts and no two cases are possessed of exactly the same facts.
Even so, however, the facts in Butters are not only analogous to th ose of this case,
but they raised the same legal questions as arise here.
[35] Secondly, as it clear from its judgment the court a quo was relying largely on
the binding legal authority of the principles in Butters rather than a finding that the
facts were exactly the same.
[36] This ground of appeal is accordingly without merit.
Conclusion
[37] I am of the opinion that an appeal would have no reasonable prospects of
success and furthermore that there is no other compelling reason why the appeal
should be heard.
7 City of Cape Town v Butters 1996 (1) SA 473 (C)
[38] In the circumstances, the following order is made.
[a] The application for leave to appeal is dismissed.
[b] Costs, including the costs of counsel, shall be borne by the first and
second defendants jointly and severally the one paying the other to be
absolved, on Scale B.
_____________________________
N MAYOSI
JUDGE OF THE HIGH COURT
Appearances
For plaintiff: Adv R.D.E Gordon, Cape Town
Instructed by: Sohn & Wood Attorneys
For first and second defendants: Adv Madoda Titus, Cape Town
Instructed by: The State Attorney, Cape Town
For third defendant: Adv L Matsiela, Sandton Chambers
Instructed by: Clyde & Co