Road Accident Fund v Auditor-General of South Africa (Leave to Appeal) (1452/2022) [2022] ZAGPPHC 307 (4 May 2022)
- Citation
- [2022] ZAGPPHC 307
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- C Collis
- Case number
- 1452/2022
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- C Collis
- Case number
- 1452/2022
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, upon consideration of the written heads of argument and oral submissions, the applicant had demonstrated a reasonable prospect that another court would come to a different conclusion regarding the order dismissing the initial application. The court applied the heightened threshold for granting leave to appeal as set out in section 17 of the Superior Courts Act and relevant case law, and concluded that the applicant satisfied the requirements for leave to appeal. Accordingly, leave to appeal to the Supreme Court of Appeal was granted, with costs to be costs in the appeal.
Court disposition
Leave to appeal granted to the Supreme Court of Appeal; costs to be costs in the appeal.
Orders
- The applicant is granted leave to appeal to the Supreme Court of Appeal.
- Costs, including costs of two counsel, to be costs in the appeal.
02
Material facts
Parties
Road Accident Fund
Applicant Counsel: Adv. J.A Motepe SC & Adv. M.D StubbsAuditor-General of South Africa
Respondent Counsel: Adv. P. Pretorious SC & Adv R. Tshetlo03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Initial Application
04
Questions and positions
Legal issues
- 01
Whether the applicant has demonstrated reasonable prospects of success on appeal.
- 02
Whether there is a compelling reason for the appeal to be heard, including conflicting judgments.
- 03
Whether the threshold for granting leave to appeal under section 17 of the Superior Courts Act has been met.
Party arguments
- Applicant
- The applicant contended that the appeal has reasonable prospects of success and that there are compelling reasons for the appeal to be heard, including the existence of conflicting judgments on the matter under consideration. The applicant relied on section 17(1)(a)(i) and (ii) of the Superior Courts Act and submitted that another court would likely reach a different conclusion regarding the order dismissing the initial application.
- Respondent
- The respondent argued that the applicant failed to meet the higher threshold required for leave to appeal under section 17 of the Superior Courts Act. The respondent maintained that there is no realistic prospect that another court would come to a different conclusion and that the grounds advanced by the applicant do not warrant the granting of leave to appeal.
05
Court’s reasoning
Legal principles
- 01
Section 17(1) of the Superior Courts Act 10 of 2013
Leave to appeal may only be granted if the judge is of the opinion that the appeal would have a reasonable prospect of success or there is some other compelling reason for the appeal to be heard.
- 02
The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6
The threshold for granting leave to appeal has been raised; there must be a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.
- 03
S v Smith 2012 (1) SACR 567 (SCA) at para 7
The applicant must establish more than a mere possibility of success; there must be a sound, rational basis for the conclusion that there are prospects of success on appeal.
- 04
Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another, Case no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020) at [6]
A higher threshold applies for leave to appeal; there must exist more than just a mere possibility that another court will find differently on both facts and law.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, upon consideration of the written heads of argument and oral submissions, the applicant had demonstrated a reasonable prospect that another court would come to a different conclusion regarding the order dismissing the initial application. The court applied the heightened threshold for granting leave to appeal as set out in section 17 of the Superior Courts Act and relevant case law, and concluded that the applicant satisfied the requirements for leave to appeal. Accordingly, leave to appeal to the Supreme Court of Appeal was granted, with costs to be costs in the appeal.
Obiter and limits
- The judgment was transmitted electronically and uploaded to the Caselines system, reflecting the court's adaptation to virtual proceedings.
- Both parties were afforded the opportunity to file written heads of argument to facilitate the virtual hearing of the matter.
Court disposition
Leave to appeal granted to the Supreme Court of Appeal; costs to be costs in the appeal.
- The applicant is granted leave to appeal to the Supreme Court of Appeal.
- Costs, including costs of two counsel, to 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
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION PRETORIA)
CASE NO:1452/2022
REPORTABLE:
NO
OF INTEREST TO OTHER JUDGES: NO
REVISED
04 MAY 2022
In the matter between:
THE
ROAD ACCIDENT
FUND
APPLICANT
And
THE AUDITOR-GENERAL OF SOUTH-AFRICA
RESPONDENT
This judgment is issued by the Judge whose name is reflected herein and is submitted electronically to the parties/their legal representatives
by email. The judgment is further uploaded to the electronic file of this matter on Caselines by the Judge or his/her secretary. The date of this judgment is deemed to be 04 MAY 2022.
APPLICATION
FOR LEAVE TO APPEAL JUDGMENT
COLLIS
J
INTRODUCTION
[1] This is an application for leave to appeal against the judgment and order I made on 24 February 2022. The order of the court reads as follows:
“Consequently, the application falls to be dismissed with costs to be reserved.”
[2] The application is premised on the grounds as listed in the Application for Leave to Appeal dated 17 March 2022.
LEGAL
PRINCIPLES
[3] Section 17 of the Superior Court’s Act provides as follows:[1]
(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;
(b) the decision sought to appeal does not fall within the ambit of section 16(2)(a);
and
(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.
[4] In the present instance the Applicant seeks leave to appeal relying on section 17(1)(a)(i) and (ii); i.e. that the “…an appeal would have a reasonable prospect of success” and also that “there is some other compelling reason that the appeal should be heard, including conflicting judgments on the matter under consideration.”
[5] As to the test to be applied by a court in considering an application for leave to appeal, Bertelsmann J in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 stated the following:
‘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, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. 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.’
[6] ‘In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those 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.’[2]
[7] In Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another[3] the Full Court of this Division observed that:
“As such, in considering the application for leave to appeal it is crucial for this Court to remain cognizant 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 both facts and law. It is against this background that we consider the most pivotal grounds of appeal.”
[8] The applicant and the respondent on request by this court had filed written Heads of Argument in order to facilitate the virtual hearing of the matter.
[9] Having read the papers and having carefully heard counsel I come to the conclusion that there is a reasonable prospect that another court would come to a different conclusion on the order of the court.
ORDER
[10] Consequently I make the following order:
10.1 The applicant is granted leave to appeal to the Supreme Court of Appeal;
10.2 Costs, including costs of two counsel, to be costs in the appeal.
C.COLLIS
JUDGE
OF THE HIGH
Appearances
Counsel for the Applicant : Adv. J.A Motepe SC & Adv. M.D Stubbs
Attorney for the Applicant : Malatji & Co Attorneys
Counsel for the Respondent : Adv. P. Pretorious SC & Adv R. Tshetlo
Attorney for the Respondent : Fairbridges Wertheim Becker Attorneys
Date of Hearing
: 21 April 2022
Date of Judgment
: 04 May 2022
Judgment transmitted electronically.
[1] Act 10 of 2013
[2] S v Smith 2012 (1) SACR 567 (SCA) at para 7.
[3] Case no: 21688/2020 [2020] ZAGPPHC 311 (24 July 2020) at [6].
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