IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-120971
DATE: 14 SEPTEMBER 2026
In the matter between:
GAME BREEDING AFRICA (PTY) LIMITED First Plaintiff
DANIEL CHRISTOFFEL LAURENS PONT Second Plaintiff
JOHANNES JACOBUS PICKARD Third Plaintiff
and
OBARO FINANCIAL SERVICES (PTY) LIMITED First Defendant
LAND & AGRICULTURAL DEVELOPMENT
BANK OF SOUTH AFRICA Second Defendant
Neutral Citation: Game Breeding Africa and Others v Obaro Financial Services
and Another (2024 -109949) [2026] ZAGPJHC --- (14
September 2026)
Coram: Adams J
Heard on: 10 September 2026 – ‘virtually’ as a videoconference on
Microsoft Teams
Delivered on: 14 September 2026 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by being uploaded to CaseLines and by release to
2
SAFLII. The date and time for hand -down is deemed to be
10:30 on 14 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 –
Appealability – order of court a quo, being interlocutory in nature and not final in
effect, is not appealable – as was held by the SCA in Hassim v Commissioner,
South African Revenue Service – a decision in regard to discovery is not
appealable – therefore, application for leave to appeal should be refused –
Held further that the issues raised by the plaintiffs in their 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 – another court is
unlikely to make factual findings or come to legal conclusions at variance with
factual findings made and legal conclusions reached by the court a quo – the
appeal, therefore, has no reasonable prospects of success –
Leave to appeal refused with costs.
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ORDER
(1) The plaintiffs’ application for leave to appeal is dismissed with costs.
(2) The first, second and third plaintiffs, jointly and severally, the one paying the
other to be absolve, shall pay the second defendant’s costs of the opposed
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 am again referring to the parties as referred to in the main defended
action, in which the first, second and third plaintiffs (plaintiffs) seek declaratory
relief against the first and the second defendants. The plaintiffs are the applicants
in this application for leave to appeal and the second defendant is the respondent
herein.
[2]. On 28 August 2026 I handed down a written judgment and an order in
plaintiffs’ interlocutory application in terms of Uniform Rule of Court 35(7) for an
order compelling the second defendant to reply to their (plaintiffs’) rule 35(3)
notice dated 24 June 2026. The said application was dismissed by me with costs.
[3]. The plaintiffs apply 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) of section 17(1)(a)
of the Superior Courts Act 10 of 2013, which reads as follows: -
‘17 Leave to appeal
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(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 plaintiffs contend that I erred in dismissing the application and that I
should instead have granted same. To determine the dispute as to whether there
was a valid cession in existence, so the plaintiffs submit, requires an enquiry into
whether the agreements relied upon for the second defendant’s locus standi, are
indeed in fact valid and extant, under circumstances where the agreements were
subject to conditions precedent . Secondly, if these conditions precedent have
been met, whether it contained a valid cession of rights.
[5]. I therefore erred in finding, so the contention on behalf of the plaintiffs
continues, that the documents required are not relevant to the dispute between
the parties. That is so, because to enable them to prove the second defendant’s
lack of locus stand, the plaintiffs require the said documents. Furthermore, I was
wrong, so the plaintiffs submit, in concluding that they are not entitled to these
documents because it is not relevant to the separated issues, and also because
the plaintiffs are not entitled to challenge the validity of the agreements, to which
they were not party.
[6]. It is also the plaintiffs’ contention that the court a quo, in making a final
finding as to the plaintiffs’ right to challenge the validity of the underlying cession
agreement, the separated issues became res judicata . It therefore cannot be
revisited by the Court, which means that the judgment and order must be set
aside, since the Court was not called upon, and therefore lacked the necessary
jurisdiction to make a final finding on the separated issues.
[7]. This argument by the plaintiffs is misconceived for the simple reason that
[7]. This argument by the plaintiffs is misconceived for the simple reason that
no such order was made by the court a quo. The order granted was based on the
court’s view that the plaintiffs are not entitled to challenge the validity of the
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cession and on that basis refused the application for further and better discovery
for documents in support of that contention. No final order was made in that
regard and it remains open for the plaintiffs to persuade the court otherwise.
[8]. This ground on which the leave to appeal is based is similar to one of the
bases of appeal in Hassim v Commissioner, South African Revenue Service 1.
The Supreme Court of Appeal in that matter rejected the contention and held as
follows: -
‘[16] … The validity of the grounds of objection was not an issue to be decided by the
Court a quo and no order was made in this regard. The statement simply formed part of
the reasoning of the Court a quo in respect of a non -appealable order and does not
preclude the Court a quo from changing its view in this regard. It does not constitute a
“decision” let alone a final “decision” by the Court a quo in respect of the validity of the
grounds of objection. The statement is, therefore, not appealable. See Administrator,
Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 715D where
Nicholas AJA said:
“There can be an appeal only against the substantive order made by a Court, not
against the reasons for judgment”.'
[9]. I therefore reject the ground for leave to appeal that the court a quo has
made a final decision in relation to the issue which it is required to determine at
the trial.
[10]. The main difficulty with the plaintiffs’ application for leave to appeal is the
fact that my order of 28 August 2026, being interlocutory in nature and not final
in effect, is not appealable. As was held by the SCA in Hassim v Commissioner,
South African Revenue Service , a decision by the Court a quo in regard to
discovery is not appealable.
[11]. On this basis alone, the application for leave to appeal should fail.
1 Hassim v Commissioner, South African Revenue Service 2003 (2) SA 246 (SCA).
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[12]. Even if I am wrong about the appealability of my order of 28 August 2026,
the application for leave to appeal should nevertheless fail. I say so for the
reasons which follow.
[13]. Nothing new has been raised by the plaintiffs in its application for leave to
appeal. In my original judgment of 28 August 2026, I have dealt with most, if not
all of the issues raised by the plaintiffs in their application for leave to appeal and
it is not necessary for me to repeat those in full. Suffice to say what I said in the
judgment by way of a conclusionary remark, that being that the plaintiffs seek
documents which do not relate to and which cannot substantiate a pleaded
defence.
[14]. 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’.
[15]. 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
‘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.
2 Ramakatsa and Others v African National Congress and Another (724/2019) [2021] ZASCA 31 (31 March
2021);
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[16]. 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
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.’
[17]. In Mont Chevaux Trust v Tina Goosen3, 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 4. 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 Others5.
[18]. I am not persuaded that the issues raised by the plaintiffs in their
application for leave to appeal, are issues in respect of which another court is
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
3 Mont Chevaux Trust v Tina Goosen, LCC 14R/2014 (unreported).
4 Notshokovu v S, case no: 157/2015 [2016] ZASCA 112 (7 September 2016).
5 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).
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HEARD ON: 10 September 2026 – ‘Virtually’
JUDGMENT DATE: 14 September 2026 – handed down
electronically.
FOR THE PLAINTIFFS / APPLICANTS: F G Janse Van Rensburg
INSTRUCTED BY: Eugene Geyser Attorneys,
Viljoenskroon
FOR THE SECOND DEFENDANT /
RESPONDENT:
M P Van der Merwe SC, together with
(Ms) A Van der Merwe
INSTRUCTED BY: Leahy Attorneys Incorporated,
Sandton