IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-109949
DATE: 3 SEPTEMBER 2026
In the matter between:
ENERNET AFRICA (PTY) LIMITED Applicant
and
IRONVELD SMELTING (PTY) LTD Respondent
Neutral Citation: Enernet Africa v Ironveld Smelting (2024 -109949) [2026]
ZAGPJHC --- (3 September 2026)
Coram: Adams J
Heard: 3 September 2026
Delivered: 3 September 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 12:30 on 3 September 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 –
Held that the issues raised by the respondent in its application for leave to appeal,
are issues in respect of which another court is unlikely to reach conclusions
different to those reached by the court a quo – there are no reasonable prospects
of another court making factual findings and coming to legal conclusions at
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
=
2
variance with factual findings made and legal conclusions reached by the court a
quo – the appeal, therefore, has no reasonable prospects of success –
There also do not exist other compelling reasons for leave to appeal to be granted
(s 17(1)(a)(ii)) – the decision sought to be appealed against does not involve an
important question of law –
Leave to appeal refused with costs.
3
ORDER
(1) The respondent’s application for leave to appeal is dismissed with costs.
(2) The respondent shall pay the applicant’s costs of the application for leave
to appeal on the attorney and client scale, including Counsel’s charges on
scale ‘C’ of the tariff as contemplated in Uniform Rule of Court 67A(3), read
with rule 69.
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, in which the applicant sought to enforce against the respondent
a documents disclosure clause in a cession agreement. The respondent is the
applicant in this application for leave to appeal and the applicant is the respondent
herein.
[2]. On 2 6 February 2026 I handed down a written judgment and an order
granting in effect the applicant all of the relief sought by it. I, in particular,
compelled the respondent to produce bank statements, its debtors’ book and
other financial statements and books of account to enable the applicant to perfect
the continuing general covering security it had over the debts owed to the
respondent by its debtors. The production of these documents was ordered in
accordance with the terms and conditions of the cession and in effect amounted
to no more than an order for specific performance of the cession. Ancillary relief,
as well as a costs order, were also granted in favour of the applicant against the
defendant.
4
[3]. The respondent appl ies for leave to appeal against the whole of the
aforementioned judgment and order, including the order for costs. The application
for leave to appeal is based on the provisions of sub -section (i), as well as sub -
section (ii), of section 17(1)(a) of the Superior Courts Act 10 of 2013, which reads
as follows: -
‘17 Leave to appeal
(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;’
[4]. The respondent contends that I erred in granting the aforesaid order and
that I should instead have dismissed the applicant’s application with costs. The
respondent contends, in particular, that I erred in failing to deal with and address
a point of law relating the doctrine of election, which it raised in opposition to the
main application. The mere fact that this point of law was not considered by the
Court a quo, so the respondent’s contention goes, is a compelling reason for the
appeal to be heard.
[5]. In sum, the legal point, according to the respondent, is this. From a legal
point of view, so the respondent submits, as at the time of the launching of the
main application , there was no longer a settlement agreement because, by
instituting the other action proceedings wherein the applicant is suing for the full
outstanding amount, it had ‘elected’ to cancel the agreement and sue thereupon.
This is what the applicant has in fact done, according to the respondent. This
means that the applicant, in pursuing the main application, sought to obtain
specific performance of a contract which it had cancelled.
[6]. The respondent therefore contends that t he court a quo ought to have
found that, having elected to cancel the settlement agreement and to institute
found that, having elected to cancel the settlement agreement and to institute
action proceedings for the full outstanding debt, this application constituted what
in legalese is referred to as ‘approbating and reprobating’, which is impermissible.
5
I ought to have held the applicant to its election and should have dismissed the
application with costs.
[7]. This argument by the respondent is misconceived at both a factual as well
as at a legal level. The simple fact of the matter is that this defence based
supposedly on the doctrine of ‘election’, although it was argued on behalf of the
respondent during the hearing of the application in t he court a quo, was never
pleaded by the respondent in its answering affidavit. It was therefore not a dispute
before the court a quo, which it was required to adjudicate. In any event, the
contention is baseless in that the applicant did not cancel the settlement
agreement, as alleged by the respondent. It in fact sued in the action proceedings
for payment of the sum due in terms of th at agreement. The respondent’s
argument that cancellation of the settlement agreement can be inferred from the
institution of the legal action for payment of the whole outstanding amount is
equally and singularly unsustainable.
[8]. Moreover, so the respondent contends, the approach adopted by the court
a quo in relation to the defence of lis pendens was a formalistic one. A more
relaxed application of lis pendens, taking into consideration the primary rationale
sought to be achieved by the principle itself, which is the avoidance of a
multiplicity of proceedings on the same subject matter. Therefore, so the
contention on behalf of the respondent is concluded, t he court a quo at the very
least ought to have stayed the main application on the basis of the principle of lis
alibi pendens.
[9]. Lastly, it is argued on behalf of the respondent that leave to appeal should
also be granted on the basis of s 17( 1)(a)(ii) of the Superior Courts Act as there
are other ‘ compelling reasons’ why the appeal should be heard. The mere fact
that the court a quo did not consider and deal with the respondent’s defence on
the doctrine of election, so the respondent contends, is a compelling reason why
the doctrine of election, so the respondent contends, is a compelling reason why
an appeal should be heard.
6
[10]. Nothing new has been raised by the respondent in its application for leave
to appeal. In my original judgment of 26 February 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 is not necessary for me to repeat those in full.
[11]. 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
appeal may only be given where the judge concerned is of the opinion that ‘the
appeal would have a reasonable prospect of success’.
[12]. 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 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.
[13]. 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
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
1 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March
2021);
7
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 v Tina Goosen2, 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 3. In that matter the SCA
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 p rinciple 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 Others4.
[15]. I am not persuaded that the issues raised by the respondent in its
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. The appeal, therefore, in my view, does not have a reasonable
prospect of success.
[16]. I also do not believe that there are other compelling reasons why leave to
appeal should be granted.
2 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
3 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
4 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).
9
HEARD ON: 3 September 2026
JUDGMENT DATE: 3 September 2026
FOR THE APPLICANT: (Ms) S G Dos Santos
INSTRUCTED BY: Cliffe Dekker Hofmeyr Incorporated,
Cape Town
FOR THE RESPONDENT: K I Kabinde
INSTRUCTED BY: Motlatsi Seleke Attorneys, Sandton