The Department of Transport Roads & Public Works of the Northern Cape v London

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: MC Mamosebo J
• Judgment Date: 07 May 2021
• Docket Number: 380/2012
• Hearing Date: 15 April 2021
• Court: Northern Cape Division
• Citation: 2021 JDR 1397 (NCK)

Mamosebo J:

[1]

This is an application for leave to appeal to the Supreme Court of Appeal, alternatively, to the Full Bench of this Division, against my

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Mamosebo J

judgment handed down on 05 February 2021 in which the application was dismissed with costs. The application is opposed.

[2]

It is trite that since the coming into operation of the Superior Courts Act, [1] the test for applications for leave to appeal is governed by section 17, which stipulates:

"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; or

(ii)

There is some other compelling reason why the appeal should be heard, including conflicting judgments on a matter under consideration;

(b)

The decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c)

......."

[3]

The practical effect of section 17(1)(a) is that the threshold for determining whether to grant leave to appeal on the basis that the appeal would have a reasonable prospect of success is higher and more stringent. See Notshokovu v S [2] . Our courts have already interpreted the phrase "would", found in section 17(1)(a)(i) of the Act, as indicative of some form of certainty or realistic chance of success. See The Mont Chevaux Trust v Tina Goosen & 18 Others [3] and MEC for Health, Eastern Cape v Mkhitha and Another [4] , to name a few.

[4]

Mr Rautenbach SC, for the applicant, argued that there is no certainty in the said test because there is nothing that imputes that the bar is set higher by the substitution of the word "could" with "would". No supporting authority for this contention is proffered by

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Mamosebo J

counsel. Shongwe JA, writing for the unanimous court in Notshokovu [5] at para 2 said:

"An appellant, on the other hand, faces a higher and stringent threshold, in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959. See Van Wyk v S, Galela v S [2014] ZASCA 152; 2015 (1) SACR 584 (SCA) para 14."

[5]

It is incomprehensible therefore that counsel would still persist that the threshold remains unaltered in the face of such overwhelming authority by the Supreme Court of Appeal that binds this Court. The distinction is founded on the basis that it is not a mere possibility but there must be supporting facts that another court will differ with the...