Hunter v Financial Services Board

• Jurisdiction: South Africa
• Judge: HF Jacobs AJ
• Judgment Date: 16 February 2017
• Docket Number: 3275/2016
• Hearing Date: 16 February 2017
• Court: Gauteng Division, Pretoria

HF Jacobs, AJ:

[1]

This is an application for leave to appeal brought by the unsuccessful applicant a quo where her application for amendment of her notice of motion was refused and her application for interdictory relief dismissed. The third and fourth respondents applied for leave to cross-appeal a cost order. The application for

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HF Jacobs, AJ

leave to cross-appeal is conditional upon leave being granted to the applicant. Counsel for the applicant urged me to grant leave to appeal to the Supreme Court of Appeal. I will return to the grounds upon which leave to appeal is sought presently. Before doing so, it is necessary to refer to the principles applicable to applications for leave to appeal which are set out in section 17 [1] of the Superior Courts Act 10 of 2013 ("the Superior Courts Act").

[2]

The Superior Courts Act [2] repealed the Supreme Court Act [3] and introduced according to Mont Chevaux Trust [4] and Minister of Justice and

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Constitutional Development & Others [5]a new and more stringent approach to be followed by a Court of first instance when considering an application for leave to appeal.

[3]

Unlike the Supreme Court Act, section 17 of the Superior Courts Act imposes substantive law provisions applicable to applications for leave to appeal. The following principles are distilled therefrom: First, it stipulates that leave to appeal "may only be given" if the judge is of the opinion that certain jurisdictional facts exist. The discretion of a judge sitting as a court of first instance is, therefore, fettered. Second, the jurisdictional facts which are in the "opinion" of the Judge required to be present are:

[3.1]

that the appeal would have reasonable prospects of success; [6] or

[3.2]

the existence of some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. [7]

[4]

The reasonable prospect of success-criterion is well established. Section 20(4)(b) of the Supreme Court Act and Rule 49 of the Uniform Rules of Court governed applications for leave to appeal before the advent of the Superior Courts Act. That subsection and rule contained no substantive law provisions applicable to applications for leave to appeal and dealt exclusively

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HF Jacobs, AJ

with procedural aspects of appeals and applications for leave to appeal. Over the years our Courts have, in the application of section 20(4)(b) of the Supreme Court Act, adopted the criterion of "reasonable prospect of success". The criterion appears from Baloyi, Nxumalo, Ngubane, Olivier and Paulsen. [8]

[5]

An appeal will have prospects of success if it is arguable in the narrow sense of the word. It requires that the argument advanced by an applicant in support of an application for leave to appeal must have substance. The notion that a point of law is arguable on appeal, entails some degree of merit in the argument. The argument, however, need not be convincing at the stage when leave to appeal is sought but it must have a measure of plausibility. [9]

[6]

Third, the decision sought on appeal may not fall within the ambit of section 16(2)(a) of the Act and should, therefore, not be "of such a nature that the decision sought will have no practical effect or result" and that "the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs." [10]

[7]

Fourth, section 17(6)(a) of the Superior Courts Act provides that if leave is granted under section 17(2)(a) or (b) to appeal against the decision of a court of first instance consisting of a single judge, the judge "must direct that the appeal be heard by a Full Court of that Division" unless the judge considers that the decision to be appealed involves a question of law of importance, whether

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because of its general application or otherwise, or in respect of which a decision of the Supreme Court of Appeal is required to resolve differences of opinion or that the administration of justice, either generally or in the particular case, requires consideration by the Supreme Court of Appeal of the decision, in which case the judge granting leave must direct that the appeal be heard by the Supreme Court of Appeal. [11]

[8]

Fifth, whether a Court of first instance grants or refuses leave to appeal it is required to provide reasons for its order. Furnishing reasons -

"... explains to the parties, and to the public at large which has an interest in Courts being open and transparent, why a case is decided as it is. It is a discipline which curbs arbitrary judicial decisions. Then, too, it is essential for the appeal process, enabling the losing party to take an informed decision as to whether or not to appeal or, where necessary, seek leave to appeal. It assists the Appeal Court to decide whether or not the order of the lower court is correct. And finally, it provides guidance to the public in respect of similar matters." [12]

[9]

In her notice of...