Mntimba v Member of the Executive Committee for Health: Gauteng Province (Leave to Appeal) (31590/2020) [2024] ZAGPPHC 1257 (6 December 2024)
- Citation
- [2024] ZAGPPHC 1257
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Makhoba
- Case number
- 31590/2020
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Makhoba
- Case number
- 31590/2020
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that although the prospects of success on appeal are limited, the technical nature of the matter and the applicant's submissions constitute compelling reasons to grant leave to appeal. The grounds advanced by the applicant largely relate to alleged failures by the court to consider certain evidence, but the substantive order is the focus for appeal. The requirements of section 17(1) of the Superior Courts Act are satisfied, and leave to appeal is therefore granted to the Full Court of the Division.
Court disposition
Leave to appeal granted to the Full Court of the Division.
Orders
- Application for leave to appeal is granted to the Full Court of this Division.
- Costs of this application shall be costs in the appeal.
02
Material facts
Parties
Nonyaniso Mntimba
Applicant Counsel: Adv SJ Myburg SCMember of the Executive Committee for Health: Gauteng Province
Respondent Counsel: Adv T Madileng03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal to the Full Court
04
Questions and positions
Legal issues
- 01
Whether the applicant has demonstrated reasonable prospects that another court would reach a different conclusion.
- 02
Whether compelling reasons exist to grant leave to appeal despite limited prospects of success.
- 03
Whether the grounds for appeal relate to the substantive order or merely the reasons for judgment.
Party arguments
- Applicant
- The applicant contended that the Court failed to consider specified aspects of evidence presented by various witnesses and that these omissions constitute grounds for appeal. The applicant argued that the judgment overlooked material facts and that there are reasonable prospects another court may reach a different conclusion.
- Respondent
- The respondent argued that the grounds advanced by the applicant do not establish reasonable prospects of success on appeal, as they relate primarily to alleged errors in reasoning rather than the substantive order. The respondent submitted that the application does not meet the requirements of section 17 of the Superior Courts Act and should be dismissed.
05
Court’s reasoning
Legal principles
- 01
Superior Courts Act, section 17(1)
Leave to appeal may only be granted where the judge is of the opinion that the appeal would have a reasonable prospect of success.
- 02
Member of the Executive Council for Health, Eastern Cape v Mkhitha and Another [2016] JOL 36940
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 or arguable case is insufficient.
- 03
Four Wheel Drive CC v Leshni Rattan NO (1048/17) [2018] ZASCA 124
Leave to appeal should be granted only when there is a sound, rational basis for the conclusion that there are prospects of success on appeal.
- 04
Administrator, Cape v Ntshwaqela 1990 (1) SA 705 (A); Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A)
An appeal lies only against the substantive order made by the court, not against the reasons for judgment.
06
Ratio, limits and disposition
Ratio decidendi
The court held that although the prospects of success on appeal are limited, the technical nature of the matter and the applicant's submissions constitute compelling reasons to grant leave to appeal. The grounds advanced by the applicant largely relate to alleged failures by the court to consider certain evidence, but the substantive order is the focus for appeal. The requirements of section 17(1) of the Superior Courts Act are satisfied, and leave to appeal is therefore granted to the Full Court of the Division.
Obiter and limits
- A mere possibility of success or an arguable case is not sufficient for leave to appeal; there must be a sound, rational basis for concluding that there are reasonable prospects of success.
- Appeals should be directed at the substantive order, not the reasons for judgment.
Court disposition
Leave to appeal granted to the Full Court of the Division.
- Application for leave to appeal is granted to the Full Court of this Division.
- Costs of this application shall be costs in the appeal.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG HIGH COURT DIVISION, PRETORIA
Case no: 31590/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 06 DECEMBER 2024
SIGNATURE
In the matter between:
NONYANISO
MNTIMBA
Applicant/Plaintiff
And
THE MEMBER OF THE EXECUTIVE COMMITTEE FOR HEALTH:
GAUTENG
PROVINCE
Respondent/Defendant
JUDGMENT
LEAVE
TO APPEAL
MAKHOBA, J
[1] For an application for leave to appeal to be successful, it is required of the party seeking such leave to demonstrate that there are reasonable prospects that another court would come to a different conclusion to that reached in the judgment that is sought to be taken on appeal.
[2] Section 17 of the Superior Court Act regulates and legislates the circumstances under which leave to
appeal is to be sought and granted. Section 17, to a large extent codifies the common law grounds of appealable decision.
Section 17(1) reads 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.
[3] In Member of the Executive Council for Health, Eastern Capa v Mkhitha and Another [2016] JOL 36940 at paragraphs 16-17 the court applied the concept of ‘reasonable prospects of success’ as follows “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] Even an application for leave to appeal, with limited prospects of success may be granted, if there are compelling reasons for doing so. This was confirmed by the Supreme Court of Appeal in the matter of Minister of Justice and Constitutional Development and other v Southern Africa Litigation Centre (Helen Suzman Foundation as amicus curie) [2016] JOL 34472 (SCA) at par 23.
[5] The view in S v Smit was reconfirmed by the Supreme Court of Appeal in the matter of Four Wheel Drive CC v Leshni Rattan NO (1048/17) [2018] ZASCA 124 (26 Sept 2018) at par D [34] where the Court held: “There is a further principle that the court a quo seems to have overlooked – leave to appeal should be granted only when there is a sound, rational, basis for the conclusion that there are prospects of success on appeal.”
[6] In cases where the decision sought to appealed does not dispose of all the issues in the case, and the provisions of section 17 (1) (a) and (b) have been satisfied, a Court may grant leave to appeal if the appeal would lead to a just and prompt resolution of the real issues between the parties.
[7] At the outside an appeal lies only against the substantive order made by this Court, and not against the reasons for judgment. To keep on saying the court erred in this and that is not helpful. What is important is the substantive order made by the court.
[8] The majority of the grounds advanced by the applicant relate to allegations that the Court failed to take into account, or that the Court did not consider specified listed aspects of evidence by the various witnesses.
[9] In Administrator, Cape v Ntshwaqela 1990 (1) SA 705 (A) at 715C it was held that there can be an appeal only against the substantive order made by a Court, not against the reasons for judgment. See Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 355.
[10] Due to the technical nature of the matter and the submissions by the applicant, I am of the view that there are compelling reasons for granting the application for leave to appeal even though there are limited prospects of success.
ORDER
[11] Application for leave to appeal is granted to the Full Court of this Division of this Court. Costs of this application should be cost in the appeal.
MAKHOBA
J
JUDGE
OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD AND RESERVED JUDGMENT: 02 DECEMBER 2024
JUDGMENT HANDED DOWN ON: 06 DECEMBER 2024
Appearances:
For the Applicant/Plaintiff: Adv SJ Myburg SC (instructed by) We For the Respondent: Adv T Madileng (instructed by) State Attorney, Pretoria.
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