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[2026] ZAGPJHC 718
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AH- Vest Limited v Fanaroff (2024/079292) [2026] ZAGPJHC 718 (19 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 2024-079292
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
19
June 2026
In the matter between:
AH-VEST
LIMITED
Applicant
and
STANLEY
FANAROFF
Respondent
Neutral
Citation
:
AH-
Vest Limited v Stanley Fanaroff (2024-079292) [2026] ZAGPJHC ---- (19
June 2026)
Coram:
Khaba AJ
Heard
:
15 June 2026
Delivered:
19 June 2026 – This judgment was
handed down electronically by circulation to the parties'
representatives by email, by being
uploaded to
CaseLines
and by release to SAFLII. The date for hand-down is deemed to be 19
June 2026.
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
–
Leave to appeal refused.
JUDGMENT
[APPLICATION FOR LEAVE
TO APPEAL]
KHABA, AJ:
Introduction:
[1]
I
shall refer to the parties as they are referred to in the main
application. This is an application for leave to appeal against
the
whole of the judgment, order and costs order delivered on 15 May
2026, in which summary judgment was granted in favour of the
applicant Stanley Fanaroff ("the applicant"), against the
respondent AH- Vest Limited ("the respondent"). In
terms of
that order, the respondent’s points
in
limine
were dismissed and the respondent was ordered to pay the applicant an
amount of R445 601.34 with interest at the prescribed
rate
thereon of 11.75% per annum calculated from 18 July 2024, and costs
on the attorney and client scale, including counsel's
fees on scale
C.
[2]
The
respondent applies for leave to appeal against the whole of the
aforementioned judgment, and order, including the order for
costs, to
the Supreme Court of Appeal, alternatively to the Full Bench of this
Court. The applicant opposes the application.
[3]
The central
question is whether the respondent has satisfied the threshold
prescribed in terms of section 17(1)(a)(i) of the Superior
Court Act
10 of 2013. The provision permits leave to appeal only where this
court is persuaded that the appeal would enjoy reasonable
prospects
of success, or that some other compelling reasons exists why the
appeal should be heard. It is against that standard
that the
respondent’s grounds of appeal must be measured.
[4]
The
respondent advances five grounds of appeal:
a.
The
respondent contends that I erred in dismissing the special plea of
prescription at the summary judgment stage by requiring proof
rather
than disclosure of a bona fide defence, and by elevating the request
for taxation into an event that interrupted the running
of
prescription.
b.
The
respondent submits that I erred in dismissing the special plea of
res
judicata
.
It is contended on behalf of the respondent that the juridical effect
of the Regional Court's dismissal of the provisional sentence
proceedings is attended by material ambiguity, more particularly in
view of the absence of any order directing the filing of a
plea, and
the admitted incompleteness of the record of those proceedings. That
ambiguity, so the argument runs, engenders a
bona
fide
triable issue. In those circumstances, I ought not to have regarded
the imperfect transcript as conclusive proof that the prior
dismissal
was founded exclusively upon procedural grounds.
c.
The
respondent contends that I erred in admitting and relying upon the
applicant’s explanatory affidavit dated 18 November
2025. The
respondent contended that Rule 32(4) prohibits a plaintiff from
adducing any evidence other than the initial supporting
affidavit,
and that the explanatory affidavit impermissibly sought to cure
substantive defects in the founding affidavit, including
an incorrect
verification of the cause of action and omitted annexures.
d.
T
he
respondent contends that I erred in finding that the applicant had
properly verified the cause of action and the amount claimed,
given
the erroneous paragraph 15 in the founding affidavit which referred
to an entirely different cause of action and different
amounts.
e.
That the award of costs on the scale as
between attorney and client scale in favour of the applicant
constituted a misdirection
and
was
inappropriate in the circumstances, despite the respondent’s
defences being
bona
fide
and legally arguable.
[11]
The test for leave to appeal is no longer whether another court might
reasonably come to a different view. It is whether
there are
reasonable prospects of success on appeal, that is, a sound, rational
basis for the conclusion that there is a realistic
chance of this
court’s decision being overturned on appeal. A mere arguability
or the possibility of an alternative finding
does not suffice. The
respondent must demonstrate that the appeal would have a tangible,
not speculative, prospect of success.
[12]
Having carefully considered the seven grounds advanced by the
respondent, I find that none, singly or cumulatively, discloses
a
reasonable prospect of success. The grounds are, in substance, a
repetition of arguments already fully ventilated and correctly
rejected in the main judgment, they identify no misdirection of law
or fact reasonably capable of yielding a different outcome
on appeal.
In truth, they seek impermissibly to re-litigate the same issues
without pointing to any palpable error or novel point
of substance.
[13]
The respondent has not identified any principle of law that this
court misapplied, nor any fact that was materially misunderstood.
In
my original judgment of 15 May 2026, I have dealt with most, if not
all of the issues raised by the respondent in its application
for
leave to appeal and it not necessary to repeat those in full. Suffice
to restate what I said in my original judgment. The application
amounts to a disagreement with the outcome.
[14] The
traditional test in deciding whether leave to appeal should be
granted was whether there is a reasonable prospect
that another court
can 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 23
rd
of August 2013, which provides that leave to appeal may only be given
where a judge concerned is of the opinion that ‘the
appeal
would have reasonable prospect of success’.
[15]
It
is trite that if a court is unpersuaded of the prospects of success,
it must still enquire into whether there is compelling reason
to
entertain the appeal. However, the merits remain vitally important
and are often decisive. In considering the existence of compelling
reasons as envisaged by
s 17(1)(a)(ii)
of the
Superior Courts Act. I
am also not persuaded that such reasons exist in this matter, when
considering in the context of prospects of success on the merits.
[16]
In
Ramakatsa
and Others v African National Congress and Another
[1]
,
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
success 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.
[17]
The ratio in
Ramakatsa
simply followed
S
v Smith
[2]
,in
which Plasket AJA (Cloete JA and Maya JA concurring), held as
follows:
“
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.”
[18]
In
Mont
Chevaux Trust v Tina Goosen
[3]
,
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 a judgment in
Notshokovu
v S
[4]
.
In
that matter the SCA remarked that an appellant now faces a higher and
more stringed 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 Others
[5]
.
[19]
As explained in
MEC
for Health, Eastern Cape v Mkhitha and Another, Schippers AJA
provided the following guidance on the test
[6]
:
“
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 Supreme Courts Act 10
of 2013 makes it 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.
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.”
[20]
I am not persuaded that the issues raised by the respondent in this
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 no
reasonable
prospects of another court making factual findings and coming to
legal conclusions at variance with my factual findings
and legal
conclusions. Therefore, in my view, the appeal does not have
reasonable prospects of success.
[21]
Having considered the papers filed on record and the submissions made
by the parties, it follows that the application
for leave to appeal,
must therefore fail. There is no reason to deviate from the normal
principle that costs follow the result.
Costs:
[22]
The applicant seeks an order that the application for leave to appeal
be dismissed with costs, on an attorney and client
scale. The
application has been opposed and has failed. There is no reason to
depart from the ordinary principle that costs follow
the result.
Indeed, there is every reason to affirm that principle.
I am not persuaded
that a punitive costs order is warranted, as sought by the applicant.
This
is justified considering the all the foregoing circumstances, the
respondent has not made out a case which justifies an opinion
that
would have reasonable prospects of success, or that there any
compelling reasons why an appeal should be heard in this matter,
costs on an attorney and client scale are not warranted.
Order:
[23]
Accordingly,
the following order is made:
1.
The
application for leave to appeal is dismissed.
2.
The respondent
is ordered to pay the applicant’s costs in this application to
be taxed on scale C.
KHABA
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
Appearances
:
For the
Applicant:
Adv. P J Kok
Instructed
by:
Petker & Associates Inc Attorneys
For the
Respondent:
Adv. E Malherbe
Instructed
by:
Stan Fanaroff & Associates
Date of
Hearing:
15 June 2026
Date of
Judgment:
19 June 2026
[1]
Ramakatsa
and Others v African National Congress and Another
[2021] ZASCA 31
(31 March 2021)
[2]
2012
(1) SACR 567
(SCA) at para 7
[3]
(LCC14R/2014)
at para 6
[4]
[2016]
ZASCA 112
(7 September 2016)
[5]
[2016]
ZAGPPHC 489 at par 25
[6]
[2016]
ZASCA 176
at paras 16-17