Minister for the Department: Communications and Digital Technologies v Mosidi and Others (Leave to Appeal) (074707/2023) [2024] ZAGPPHC 563 (12 June 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case No. 074707/2023

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

SIGNATURE:

DATE: 12 JUNE 2024

In the matter between:

MINISTER FOR THE DEPARTMENT: APPLICANT

COMMUNICATIONS AND DIGITAL

TECHNOLOGIES

and

MAKANO MOSIDI

1st RESPONDENT

RENDANI RAMABULANA

2nd RESPONDENT

OLWETHU KETSEKILE

3rd RESPONDENT

In RE:

MAKANO MOSIDI

1ST APPLICANT

RENDANI RAMABULANA

2ND APPLICANT

OLWETHU KETSEKILE

3RD APPLICANT

And

MINISTER FOR THE DEPARTMENT: 1st RESPONDENT

SITA SOC LTD

2ND RESPONDENT

KITHA SIBANDA

3RD RESPONDENT

LUCIENNE ABRAHAM

4TH RESPONDENT

LUVUYO KEYISE

5TH RESPONDENT

SHERLEE MOONSAMY

6TH RESPONDENT

NILOTHA PIETERSEN

7TH RESPONDENT

KIRUBENPILLAY

8TH RESPONDENT

LERATO PETLELE

9TH RESPONDENT

MANDLA MARTIN MNISI

10TH RESPONDENT

LAURA SEME

11TH RESPONDENT

RENISHA NAIDOO

12TH RESPONDENT

JUDGMENT: LEAVE TO APPEAL

YENDE AJ

[1] The applicants seek leave to appeal to the Full Bench of this Division, alternatively to the Supreme Court of Appeal against the judgment and order I delivered on the 2 February 2024.

[2] The grounds of appeal are encapsulated in the Notice of Application for leave to appeal and I deem it unnecessary to restate same. It is now trite that the Superior Courts Act 10 of 2013 provides for leave to appeal to be granted only in two circumstances[1]. The first envisaged circumstance is where the Judge concerned is of the opinion that an appeal would have a reasonable prospect of success. The second envisaged circumstance is when/where there are some compelling reasons why the appeal should be granted and now, I turn to consider the legal principles applicable in this application.

[3] Section 17(1)(a) of the Superior Courts Act[2] (“the Superior Courts Act”) provides that leave to appeal may be granted where the judge concerned is of the opinion that:

[3.1] “the appeal would have a reasonable prospect of success (section 17(1)(a)(i); or

[3.2] there is some other compelling reason why the appeal should be heard (section 17(1)(a)(ii)”.

[4] The Supreme Court of Appeal has held that the test for granting leave to appeal is as follows;

[4.1] In the matter of MEC for Health, Eastern Cape v Mkhitha and Another3[3] it was held (footnotes omitted)-

“[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear 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; or there is some other compelling reason why it should be heard.

[17] An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect 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”.

[4.2] The Full Court of this Division, Pretoria when dealing with section 17(1)(a)(i) of the Superior Courts Act, in the matter of Acting National Director of Public Prosecutions and Others v Democratic Alliance[4] it was held that-

“[25] The Superior Courts Act has raised the bar for granting leave to appeal. In The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others, Bertelsmann J held as follows:

‘It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion…..The use of the word “would” in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against’ ”.

[4.3] Four years later, the Full Court of this Division, Pretoria in Fairtrade Tobacco Association v President of the Republic of South Africa[5] likewise held that-

“As such, in considering the application for leave to appeal, it is crucial for this Court to remain cognisant of the higher threshold

that needs to be met before leave to appeal may be granted. There must exist more than just a mere possibility that another court, the SCA in this instance, will, not might, find differently on facts on law”

[4.4] In Fusion Properties 233 CC v Stellenbosch Municipality[6], it was held that –

“[18] Since the coming into operation of the Superior Courts Act, there have been a number of decisions of our courts which dealt with the requirements that an application for leave to appeal in terms of ss 17(1)(a)(i) and 17 (1)(a)(ii) must satisfy in order for leave to be granted. The applicable principles have over time crystallised and are now well established. Section 17(1) provides, in material part, that leave to appeal may only be granted ‘Where the judge or judges concerned are of the opinion that-

(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.’

It is manifest from the text of s 17(1)(a) that an applicant seeking leave to appeal must demonstrate that the envisaged appeal would either have a reasonable prospect of success, or, alternatively, that ‘there is some compelling reason why an appeal should be heard’. Accordingly, if neither of these discrete requirements is met, there would be no basis to grant leave……”.

[4.5] Later, eight (8) months after the decision in Fusion Properties 233 CC v Stellenbosch Municipality, the very same court in Chithi and Others; In re: Luhlwini Mchunu Community v Hancock and Others[7] held that –

“[10] The threshold for an application for leave to appeal is set out in s 17(1) of the Superior Courts Act, which provides that leave to appeal may only be given if the judge or judges are of the opinion that the appeal would have a reasonable prospect of success….”.

[5] It is worthy to observe that all the decisions mentioned supra are in accordance with the judgment of the Supreme Court of Appeal In the matter of Notshokovu v S[8] in which it was held that – “an applicant in an application for leave to appeal faces a higher and stringent threshold, in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959”.

[6] Having referred extensively to the legal precedence concerning section(s) 17(1) of the Superior Courts Act supra and its corresponding requirements it is clear that the practical effect thereof is to reduce the heavy workload of appeal courts and that the court a qou should not easily grant leave to appeal where the Applicant has not passed the litmus test referred to supra.

[7] ln this regard this court share the sentiments that were echoed by the Constitutional Court in the matter of Tiekiedraai Eiendomme (Pty) Limited v Shell South Africa Marketing (Pty) Limited[9] that:

"it is well accepted that this Court functions better if assisted by a well-reasoned judgment of the High Court or the Supreme Court of Appeal" and Nicholls AJ in the matter of S v S and Another[10] noted that "The wisdom of this logic cannot be faulted”.

I have, a qou considered all the issues raised by the applicant's counsel and arrived at a well-reasoned judgment.

[8] Comprehensive reasons were provided for the order granted and the sound written judgment delivered and I do not propose to rehash those. Having considered the grounds of appeal raised by the applicant, the submissions and/or argument raised by the applicant’s counsel in support of the application including both heads of argument, as well as the submission and/or argument by counsel for respondents. I am not of the view that on the grounds of appeal raised by the applicant, the appeal would have a reasonable prospect of success.

[9] I find that it would be counter-intuitive to grant leave to appeal in the circumstances where the applicant has failed dismally to clearly demonstrate that this court has erred and/or misdirected itself and thus came to a judgment that no reasonable Court could have made.

[10] With reference to the high threshold that has been raised in the new Act and same confirmed by the legal precedence mentioned supra I am obliged to determine whether another Court would (not might) come to a different conclusion. Notwithstanding the able arguments by Advocate Seima SC for the applicant including advocate Bhana SC for the SITA SOC LTD, I am not convinced that another Court would come to a different conclusion other than that which I have made.

[11] The argument by both Advocate Seima SC and Advocate Bhana SC to the effect that my judgment a qou including the interim orders granted have the effect of a final judgment cannot by any stretch of imagination be sustained in light of the recent judgment by Justice Van der Schyff in the matter of MEC Responsible for Economic Development, Gauteng v Sibongile Vilakazi and Others[11].

[12] I am constraint to find that the applicant has not made out a case for the application to succeed in terms of the provisions of section 17(1)(a) of the Superior Courts Act No 10 of 2013.

Order

[13] Consequently, for reasons adumbrated supra the application for leave to appeal is dismissed with costs.

J YENDE

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA.

Yende AJ prepared this judgment. It is handed down electronically by circulation to the parties or their legal representatives by e-mail, by uploading the electronic file on Caselines, and by publication of the judgment to the South African Legal Information Institute. The date of hand-down is deemed 12 June 2024.

Appearances:

Advocate for Applicant: Adv. E SEIMA SC With Adv. I HLALETHOA Instructed by: STATE ATTORNEY PRETORIA REF 2350/23/Z22 EMAIL: naqongqo@justice.gov.za Advocate for Respondent(s): (SITA SOC LTD) Adv. A RAFIK BHANA S C KERRY WILLIAMS Instructed by: NGENO AND MTETO INCORPORATED EMAIL: tando@ngenomtentoinc.co.za Advocate for Respondent(s): (1st,2nd 3rd Respondents) Adv. ME MANALA Tshwane Society of Advocates EMAIL:manlae@law.co.za Instructed by: MANALA @ Co Inc.Attorneys. thato@manala-inc.co.za REF: M&Co./T Manala/ M00020 Heard: 4th April 2024 Delivered: 12 June 2024

[1] Section 17 of Act NO 10of 2013

[2] Act no 10 of 2013.

[3] [2016] ZASCA 176 (25 November 2016).

[4] [2016] ZAGPPHC 489 (24 June 2016).

[5] (21688/2020) [2020] ZAGPPHC 311 (24 July 2020).

[6] [2021] ZASCA 10 (29 January 2021).

[7] [2021] ZASCA 123 (23 September 2021).

[8] [2016] ZASCA 112.

[9] [2019] ZACC14; [2019] JOL41705 (CC) at paras 19-20.

[10] [2019] ZACC 22 at 23.

[11] (2023-032601) [2023] ZAGPPHC 686 (14 August 2023).