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[2026] ZAGPJHC 734
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Phundulu v Leralla Pharmacy and Others (2025/016115) [2026] ZAGPJHC 734 (19 June 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 2025-016115
1. REPORTABLE: NO
2. OF INTEREST TO
OTHER JUDGES: NO
3.
REVISED: NO
19
June 2026
In the matter between:
ELAKANYANI
PHUNDULU
Applicant
and
LERALLA
PHARMACY
First Respondent
MOWANA
PROPERTIES
Second Respondent
VHONANI
PATRICK MUDAU
Third
Respondent
Neutral
Citation
:
Elekanyani
Phundulu v Leralla Pharmacy & Mowana Properties & Vhonani
Patrick Mudau (016115/2025)
[2026]
ZAGPJHC ---- (19 June 2026)
Coram:
Khaba AJ
Heard
:
18 May 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 on
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:
[1].
This
is an application for leave to appeal against the order granted on 25
February 2026. That order dismissed the applicant’s
condonation
application brought under Uniform
Rule 27
and directed that the
applicant’s attorney of record pay the costs of that
application on an attorney-and-client scale. The
applicant also
sought leave to appeal against the written reasons delivered on 09
March 2026, which were provided pursuant to his
request of 05 March
2026 in terms of
Rule 49(1)(c).
[2].
The applicant
applies for leave to appeal 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
second respondent opposes the application. The first and third
respondents have taken no part in these proceedings.
[3].
The
central legal question is whether the applicant has satisfied the
threshold prescribed by
section 17(1)(a)(i)
of the
Superior Courts
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 reason exists why the
appeal should be heard. It is against that standard that the
applicant’s
grounds of appeal must be measured.
[4].
The
applicant advances five grounds of appeal.
a.
The applicant contends that I erred in dismissing the condonation
application, and there are reasonable prospects that another
court
will find that it is in the interests of justice that condonation be
granted.
b.
The
applicant contends that I misdirected myself by applying the test for
joinder and determining that the applicant failed to demonstrate
that
the second respondent has a direct and substantial interest in the
litigation. The applicant contends that the issue of joinder
was not
an issue for determination at the condonation stage and that the
court’s evaluation of the applicant’s version
contained a
factual inaccuracy.
c.
The
applicant contends that I erred in opining on the contents of the
replication and the attached evidence and using such opinion
to
determine prospects of success. The applicant contends that
subjecting evidentiary material to trial-level scrutiny at the
condonation stage amounts to a material misdirection.
d.
The
applicant contends that I erred in determining that the second
respondent is prejudiced by defending proceedings to which it
is not
properly a party. The applicant contends that the issue of joinder is
for the trial court and should not have been a factor
in the
determination of prejudice.
e.
That the award of costs on the scale as between attorney and
client scale
against
the applicant’s attorney without inviting him to make
submissions, which the applicant contends violates
the
audi alteram partem
principle.
[5]
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.
[6]
Having carefully considered the five grounds advanced by the
applicant, 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
[7]
The applicant has not identified any principle of law that this court
misplaced, nor any fact that was misunderstood.
In my original
written reasons of 09 March 2026, I have dealt with most, if not all
of the issues raised by the applicant in its
application for leave to
appeal and it is not necessary to repeat those in full. Suffice to
restate what I said in my original
written reasons. The application
amounts to a disagreement with the outcome.
[8]
The traditional tests 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
written reasons. This approach has now been codified
in s 17(1)(a)(i)
of the Superior Court 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 prospects of success”.
[9]
As explained in
Notyawa
v Makana Municipality and Others
[1]
,
reaffirmed
that limited circumstances in which an appellate court may interfere
with the lower court’s discretionary decision.
In the context
of a condonation ruling, the appellate court will not lightly
interfere. The Constitutional Court held as follows
in paragraph 41:
“
The
test is whether the court whose decision is challenged on appeal has
exercised its discretion judicially. The exercise of the
discretion
will not be judicially if it is based on incorrect facts or wrong
principles of law. If none of these two grounds is
established, it
cannot be said that the exercise of discretion was not judicial. In
those circumstances the claim for interference
on appeal must fail”
[10]
These principles apply with equal force to the present application.
The applicant must demonstrate that the discretion
exercised by this
court was not exercised judicially, or that it was based on incorrect
facts or wrong principles of law. A mere
preference of different
outcome is insufficient.
[11]
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.
[12]
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 ‘could’ 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.
[13]
The ratio in
Ramakatsa
simply followed
S
v Smith
[3]
,
in which Plasket AJA (Cloete JA and Maya JA concurring), held as
follows at paragraph 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.”
[14]
In
Mont
Chevaux Trust (IT2012/28) v Tina Goosen
[4]
,
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 in
Notshokovu
v S
[5]
.
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
[6]
.
[15]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[7]
,
Schippers AJA
provided
the following guidance on the test:
“
[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 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.”
[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. There
must be a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.”
[16].
I am not persuaded that the issues raised by the applicant 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 am therefore of the view 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. The applicant has failed to demonstrate that
another court would reach a different decision and that the
first
respondent should be granted leave to appeal. In light of the all the
circumstances alluded above, it is my view that the
applicant has not
presented and facts demonstrating that it has any prospects of
success; therefore, it would not serve any interest
of justice to
grant leave to appeal to the first respondent.
[17]
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:
[18]
The
second respondent seeks an order that the application for leave to
appeal be dismissed with costs, on scale C. 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. The costs sought are on scale
C. This is justified considering the all the foregoing
circumstances,
the applicant 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.
Order:
[19].
Accordingly, the following order is made:
1)
The
application for leave to appeal is dismissed.
2)
The applicant
is ordered to pay the second respondent’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. Z Nako with Adv. N Nemakula
Instructed
by:
Lukhalimana Attorneys
For the Second
Respondent
Adv. F Sangoni
Instructed
by:
Mcedisi Ndlovu & Sedumedi Attorneys
Date of
Hearing:
18 May 2026
Date of
Judgment:
19 June 2026
[1]
[2020]
41 ILJ 1069 (CC); 2020 (2) BCLR 136 (CC) [2019] ZACC 43.
[2]
Ramakatsa
and Others v African National Congress and Another
[2021] ZASCA 31
(31 March 2021)
[3]
2012
(1) SACR 567
(SCA) at para 7.
[4]
(LCC14R/2014)
at para 6
[5]
[2016]
ZASCA 112
(7 September 2016) at para 2.
[6]
[2016]
ZAGPPHC 489 at para 25.
[7]
[2016]
ZASCA 176
at paras 16 - 17.