2
[2] Applications for leave to appeal are governed by section 17(1) of the Superior
Courts Act 10 of 2013, which provides as follows:
“(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that –
(a) (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] The applicant listed about twelve grounds of appeal. I do not intend to deal with
each and every ground raised because of the prolix nature thereof. However, the
applicant also contended that the application should be granted because the judgment
of this court is in conflict with judgments of other Divisions, including the judgment of
Khampepe J in the Constitutional Court. I have to pause here and indicate that it later
emerged that the applicant was referring to the minority judgment by Khampepe J in
Liebenberg NO and Others v Bergrivier Municipality.1
[4] The court must always be alive to the fact that an application for leave to appeal
is not a ret rial or a mechanism through which the court justifies its order. In these
proceedings the in quiry is two -fold, namely whether the appeal would have a
reasonable prospect of success or whether there is some or compelling reason why
the appeal should be heard, including conflicting judgments on the matter under
consideration.
[5] In my view the applicant failed to show what those conflicting judgments are, safe
to refer to names of judges and their divis ions. Worse, the applicant listed a
constitutional court judgment as one of those conflicting judgments. Surely, once the
constitutional court has pronounced on the issue , that pronouncement ought to be
followed by the lower courts and therefore a high court cannot contradict that
pronouncement.
1 [2013] ZACC 16; 2013(5) SA 246(CC)
3
[6] I now turn to the question whether the appeal has a reasonable prospect of success
or not. the meaning of a reasonable prospect of success was clarified in S v Smith2 as
follows:
“What the test of reasonable prospects of success postulates is a dispassionate decision
based on the facts and the law, that a court of appeal could reasonably ariive at a conclusion
different to that of a trial court. In order to succeed, the appellant must convince this court on
proper grounds that he has prospects of success on appeal and that these prospects are not
remote but have a realistic chance of succeeding. More is required to be established than
there is 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.”
[7] In these proceedings counsel for the applicant re-argued the case in an endeavour
to convince the court that the appeal has a reasonable prospect of success. The
Supreme Court of Appeal has pronounced that a mere possibility of success is not
sufficient for this court to grant leave to appeal.
[8] The Supreme Court of Appeal in MEC for Health, Eastern Cape v Mkhitha and
Another3 emphasized the following:
“[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 must 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 of success, an arguable case or one that is not hopeless, is not enough.
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 [2016] ZASCA 176 para 16 and 17.