Medupe and others v African National Congress and other (Leave to Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Djaje AJP
• Judgment Date: 07 September 2023
• Citation: 2023 JDR 3432 (NWM)
• Hearing Date: 25 August 2023
• Docket Number: UM160/2022
• Court: North West Division, Mahikeng

Djaje AJP:

[1]

This is an application for leave to appeal against the whole judgment handed down on 23 May 2023 where the applicants’ application was dismissed with costs including costs of two counsel.

[2]

The test to be applied in an application for leave to appeal is set out in section 17 (1) (a) of the Superior Courts Act 10 of 2013 which provides that:

“(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;”

[3]

According to the applicants the test applicable in this matter is that the appeal would have reasonable prospect of success and not that there are some other compelling reasons why the appeal should be heard.

2023 JDR 3432 p3

Djaje AJP

[4]

The issue of prospects of success has been dealt with in our courts over a period of time. The Supreme Court of Appeal in Rex v Baloyi 1949 (1) SA 523 (A) held that: “leave to appeal should not be granted unless the applicant has a reasonable prospect of success on appeal, and that this reasonable prospect of success is not merely a fairly arguable case, or even an arguable case”.

[5]

In the matter of The Mont Chevaux Trust (IT2012dcc/28) v Tina Goosen & 18 Others (LCC14R/2014) [2014] ZALCC 20 it was held that:

“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]

The SCA in MEC for Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016) stated that:

“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.

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 if success, an arguable case or one...