Cross Med Health Centre (Pty) Limited v Board of Healthcare funders NPC and Others (2023/082674) [2025] ZAGPJHC 150 (20 February 2025)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, JOHANNESBURG)

CASE NO : 2023/082674

(1) REPORTABLE /NO

(2) OF INTEREST TO OTHER JUDGES /NO

(3) REVISED Yes

20 February 2025

In the matter between:

CROSS-MED HEALTH CENTRE (PTY) LIMITED Applicant and BOARD OF HEALTHCARE FUNDERS NPC First Respondent COUNCIL FOR MEDICAL SCHEMES Second Respondent MEDSCHEME HOLDINGS (PTY) LIMITED Third Respondent AFROCENTRIC INVESTMENTS CORPORATION LIMITED Fourth Respondent BARLOWORLD MEDICAL SCHEME Fifth Respondent BONITAS MEDICAL SCHEME Sixth Respondent FEDHEALTH MEDICAL SCHEME Seventh Respondent SABC MEDICAL SCHEME Eighth Respondent SOUTH AFRICAN POLICE SERVICE MEDICAL SCHEME (POLMED) Ninth Respondent SOUTH AFRICAN MUNICIPAL WORKERS’ UNION NATIONAL MEDICAL SCHEME (SAMWU MED) Tenth Respondent MEDSHIELD MEDICAL SCHEME Eleventh Respondent CHWAYITA OMGANA YONGAMA YAKO Thirteenth Respondent MUSTAFA MOHAMED N.O.(cited in his capacity as liquidator of CROSS-MED MTHATHA PRIVATE HOSPITAL (PTY) LIMITED (IN LIQUIDATION)) Fourteenth Respondent GONASAGREE GOVENDER N.O. (cited in her capacity as liquidator of CROSS-MED MTHATHA PRIVATE HOSPITAL (PTY) LIMITED (IN LIQUIDATION)) Fifteenth Respondent

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

THERON AJ:

[1] An application for leave to appeal is regulated by Section 17(1)(a)(i) and (ii) of the Superior Courts Act No. 10 of 2013 (“the Act”) which provides as follows:

“17(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;”

[2] It has been held in various judgments binding on me that the Act has raised the bar for granting leave to appeal.[1]

[3] In S v Smith[2], Plasket AJA explained the meaning of a “reasonable prospect of success” 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 arrive at a conclusion different to that of the trial court. In order to succeed, the appellant must convince this court on proper grounds that he has a prospect 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 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.”[3]

[4] A liberal approach to the granting of leave to appeal by courts is discouraged as being inconsistent with Section 17 of the Act. For instance, in Mothuloe Inc Attorneys v The Law Society of the Northern Provinces and Another[4], the Supreme Court of Appeal stated as follows regarding the trial court’s liberal approach on granting leave to appeal:

“It is important to mention my dissatisfaction with the court a quo’s granting of leave to appeal to this court. The test is simply whether there are any reasonable prospects of success in an appeal. It is not whether a litigant has an arguable case or a mere possibility of success.”

[5] After considering the submissions made in the application for leave to appeal, I find that the Thirteenth Respondent does not reach the threshold and that there is no sound rational basis to conclude that he does.

I therefore make the following order:

1. The application is dismissed with costs on scale C.

THERON AJ

Acting Judge of the High Court

Date of hearing: 13 February 2025

Date of judgment: 20 February 2025

Appearances:

Counsel for Applicant: R Blumenthal

Instructed by: Shaheed Dollie Inc

Counsel for Thirteenth Respondent: Adv D Z Kela

Instructed by: Yonela Bodlani Attorneys

[1] Acting National Director of Public Prosecutions and Others v Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24 June 2016); Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC) and S v Notshokovu [2016] ZASCA 112 at paragraph 2

[2] 2012 (1) SACR 567 (SCA)

[3] See also Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) at paragraph [34]

[4] [2017] ZASCA 17