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South Africa Order

Free State High Court, Bloemfontein

Elizabeth Johanna Liebenberg v Hendrik Johannes Christiaan Liebenberg (3254/2024) [2025] ZAFSHC 166 (6 June 2025)

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Source document

01

Holding and result

The court found that the applicant failed to demonstrate reasonable prospects of success for the appeal. The grounds of appeal did not raise any compelling reasons or conflicting judgments that would justify granting leave to appeal. The applicant is bound by the existing court order, and the conduct of non-payment is contemptuous. New issues raised in the heads of argument are not permissible. The application for leave to appeal is dismissed with costs.

Court disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs on Scale B as contemplated under rule 67A of the Uniform Rules of the Court.

02

Material facts

Parties

Elizabeth Johanna Liebenberg

Applicant Counsel: Schoeman Steyn Inc, Bloemfontein

Hendrik Johannes Christiaan Liebenberg

Respondent Counsel: Christo Faber Attorneys Inc, Kimberley c/o Stander & Associates, Bloemfontein

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Considered in Chambers

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the previous judgment was incorrect and that there are grounds for appeal, referencing new issues in the heads of argument and a pending application in the magistrate's court for variation of the order. The applicant argued that the non-payment should not be considered contemptuous due to the pending variation application.
Respondent
The respondent maintained that the applicant is bound by the existing court order and that the grounds for appeal do not raise any reasonable prospects of success. The respondent argued that the applicant's conduct amounts to contempt and that new issues raised in the heads of argument are impermissible.

05

Court’s reasoning

  1. 01

    Section 17(1) of the Superior Courts Act 10 of 2013

    Leave to appeal may only be granted where the judge is of the opinion that the appeal would have reasonable prospects of success or there are other compelling reasons, such as conflicting judgments.

  2. 02

    Hans Seuntjie Matoto v Free State Gambling and Liquor Authority and Three Others [2017] ZAFSHC 80

    The bar for granting leave to appeal has been raised; the test is whether another court would come to a different conclusion, indicating a measure of certainty.

  3. 03

    Acting National Director of Public Prosecutions and Others v Democratic Alliance (19577/2009) [2016] ZAGPPHC 489

    New issues may not be raised in heads of argument; only issues properly before the court may be considered.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to demonstrate reasonable prospects of success for the appeal. The grounds of appeal did not raise any compelling reasons or conflicting judgments that would justify granting leave to appeal. The applicant is bound by the existing court order, and the conduct of non-payment is contemptuous. New issues raised in the heads of argument are not permissible. The application for leave to appeal is dismissed with costs.

Obiter and limits

  • The judgment reiterates that the threshold for granting leave to appeal is now more stringent under section 17(1) of the Superior Courts Act.
  • The court emphasizes that parties must adhere to procedural rules and cannot introduce new issues in heads of argument.

Court disposition

Application for leave to appeal dismissed with costs.

  • The application for leave to appeal is dismissed with costs on Scale B as contemplated under rule 67A of the Uniform Rules of the Court.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment reading view

Judgment text

The complete available source text.

Source document

Free State High Court, Bloemfontein

Order

[2025] ZAFSHC 166

IN THE HIGH COURT OF

SOUTH AFRICA

FREE STATE DIVISION,

BLOEMFONTEIN

Not reportable

Case no: 3254/2024

In the matter between

ELIZABETH

JOHANNA LIEBENBERG

APPLICANT and

HENDRIK

JOHANNES CHRISTIAAN LIEBENBERG

RESPONDENT

Neutral citation: Elizabeth Johanna Liebenberg v Hendrik Johannes Christiaan Liebenberg (3254/2024) [2025] ZAFSHC 166 (06 June 2025)

Coram: Mpama AJ

Heard: In Chambers

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and released to SAFLII. The date and time for hand-down is deemed to be 14H00 on 06 June 2025

Summary: application for leave to appeal – section 17(1) of the Superior Courts Act 10 of 2013 – no reasonable prospects of success – application dismissed

ORDER

The application for leave to appeal is dismissed with costs on Scale B as contemplated under rule 67A of the Uniform Rules of the Court.

JUDGMENT

Mpama AJ

[1] This is an opposed application for leave to appeal against my judgment and the order I granted on 29 November 2024. The applicant and respondent filed their heads of argument. I directed the parties to file additional heads of argument as I intended to dispense with the hearing of oral arguments. Accordingly, the application was considered in chambers and on the papers, including the written heads of argument.

[2] Section 17(1) of the Superior Courts Act 10 of 2013 stipulates that leave to appeal may only be granted where the judge concerned is of the opinion that the appeal would have reasonable prospects of success or there are some other compelling reasons why the appeal should be heard, including conflicting judgment on the matter under consideration.

[3] The bar for granting the application for leave to appeal has been raised and leave to appeal should be granted only when there are reasonable prospects of success. This court has as per Daffue J in Hans Seuntjie Matoto v Free State Gambling and Liquor Authority and Three Others[1] at para 5 expressed as follows:

‘There can be no doubt that the bar for granting leave to appeal has been raised. Previously, the test was whether there was a reasonable

prospect that another court might come to a different conclusion. Now, the use of the word “would” indicate a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against. See Acting National Director of Public Prosecutions and Others V Democratic Alliance (19577/2009) [2016] ZAGPPHC 489(24 June 2016). The use by the legislature of the word “only”, emphasized supra, is a further indication of a more stringent test.’

[4] The grounds of appeal are set out in the notice of application for leave to appeal. I do not intend to overburden this judgment by repeating them.

[5] The existence of a valid court judgment is a matter of common cause between the applicant and respondent. The judgment dealt with the reasons why the court is of the view that the applicant is bound by the court order despite his pending application in the magistrate’s court for the variation of the order and why his conduct of non-payment is contemptuous. New issues were raised by the applicant in his heads of argument. It is trite that such is not permissible.

[6] My opinion is that there are no prospects of success. I am satisfied that there is no other court that will come to a different conclusion given this set of circumstances. It is not the case of the applicant that despite this, there are some other compelling reasons why the appeal should be heard, including conflicting judgment on the matter under consideration. In my view, the application should fail.

[7] Accordingly, I make the following order:

MPAMA AJ

Appearances For the applicant: Schoeman Steyn Inc, Bloemfontein For the respondent: Christo Faber Attorneys Inc, Kimberley c/o Stander & Associates, Bloemfontein.

[1] Hans Seuntjie Matoto v Free State Gambling and Liquor Authority and Three Others [2017] ZAFSHC 80.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Hans Seuntjie Matoto v Free State Gambling and Liquor Authority and Three Others [2017] ZAFSHC 80

Case cited

Acting National Director of Public Prosecutions and Others v Democratic Alliance (19577/2009) [2016] ZAGPPHC 489

Case cited

Superior Courts Act 10 of 2013

Legislation

Legislation referenced in the available case record.

Uniform Rules of the Court

Legislation

Legislation referenced in the available case record.

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