Member of the Executive Council for Health, Eastern Cape v Neliswa Mbola obo Asavela Mbola (4521/18) [2019] ZAECMHC 21 (18 March 2019)
The court found that the applicant failed to demonstrate more than an arguable case and did not meet the threshold of reasonable prospects of success required for leave to appeal. After considering the arguments presented, the judge concluded that there was no sound rational basis to grant leave to appeal, and the...
Source-derived case information.
- Citation
- [2019] ZAECMHC 21
- Parties
- Applicant: Member of the Executive Council for Health, Eastern Cape; Respondent: Neliswa Mbola obo Asavela Mbola
- Court
- Eastern Cape High Court, Mthatha
- Jurisdiction
- South Africa
- Case Number
- 4521/18
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment on Liability and Damages
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- S M Mbenenge
- Legal Topics
- Leave to Appeal, Reasonable Prospect of Success, Costs Order
Source-derived case record
Summary, issues, holding and outcome
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Parties
Member of the Executive Council for Health, Eastern Cape
Applicant
Neliswa Mbola obo Asavela Mbola
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Liability and Damages
Legal Issues
- 1 Whether the applicant has demonstrated reasonable prospects of success on appeal against the judgment holding it liable for damages.
- 2 Whether there is any compelling reason for the appeal to be heard.
Ratio Decidendi
The court found that the applicant failed to demonstrate more than an arguable case and did not meet the threshold of reasonable prospects of success required for leave to appeal. After considering the arguments presented, the judge concluded that there was no sound rational basis to grant leave to appeal, and the application was accordingly dismissed with costs.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
38 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION, MTHATHA
Case No.: 4521/18
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH, EASTERN CAPE
Applicant
and
NELISWA MBOLA obo ASAVELA MBOLA
Respondent
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
(EX-TEMPORE)
MBENENGE JP
[1] Even though this is an application and the parties should ordinarily be referred to as the applicant and the respondent, respectively, I will for purposes of this judgment, use the appellations by which they were referred to during the related action proceedings.
[2] The defendant seeks leave of this Court to appeal against my judgment holding the defendant liable in 100% of proven or agreed damages to the plaintiff, in her representative capacity and an order granting other ancillary relief. The judgment was delivered on 6 December 2018.
[3] The grounds of the application need no repetition as indeed they are succinctly set out in the relevant notice.
[4] In terms of section 17 of the Superior Courts Act 10 of 2013 leave may only be give 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 the appeal should be heard.
[5] In MEC for Health, Eastern Cape v Mkitha[1] the Supreme Court of Appeal held that an applicant for leave to appeal must convince the court on proper grounds that there is a reasonable 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.
[6] I listened carefully to the argument presented to me on behalf of the parties this morning. I cannot pitch the defendant’s cause in this instance as being higher than that of an arguable case. In my view, the application does not meet the requisite threshold.
[7] I am accordingly of the view that there is no reasonable prospect or realistic chance of the appeal sought being successful.
[8] In these circumstances, the application for leave to appeal is dismissed with costs.
______________________
S M MBENENGE
JUDGE PRESIDENT OF THE HIGH COURT
Counsel for the applicant (defendant): EAS Ford SC (with V Kunju)
Instructed by
: The State Attorney
Mthatha
Counsel for the respondent (plaintiff): J Wessels SC
Instructed by
: Nonxuba Inc.
Johannesburg
c/o Potelwa & CO
Date heard
: 18 March 2019
Date delivered
: 18 March 2019
[1] (1221/2015) [2016] ZASCA 176 (25 November 2016).