In the high court of south africa (gauteng division, pretoria) republic of south africa



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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA
14/4/2016

CASE NUMBER: 41828/2015

Not reportable

Not of interest to other judges

Revised.
In the matter between:
JANUSZ JAKUB WALUS Applicant
and
MINISTER OF CORRECTIONAL SERVICES First Respondent
CHAIRPERSON, NATIONAL COUNCIL FOR

CORRECTIONAL SERVICES Second Respondent
THE SOUTH AFRICAN COMMUNIST PARTY Third Respondent
MRS LIMPHO HANI Fourth Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J
[1] The first respondent seeks leave to appeal to the Full Bench of this court against the whole of the judgment and the order of costs granted by this court on 10 March 2016.
[2] Section 17(1) of the Superior Courts Act, 10 of 2013, provides that a judge may only grant leave to appeal if he/she is of the opinion that the requirements set out in subsection (a) to (c) have been met. These requirements are:

"(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 on 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. "

[3] Section 16(2)(a) provides that an appeal in which a decision on the issues will have no practical effect or result, may, at the hearing, be dismissed on this ground alone. The matter under consideration does not fall within the ambit of section 16(2)(a) and consequently the first respondent meets the requirement contained in section 17(1)(b).


[4] The appeal, should leave be granted, will dispose of all the issues between the parties and as a result the requirement in section 17(1)(c) has also been met.
[5] The remaining two requirements contained in section 17(1)(a), however, requires further scrutiny.

REASONABLE PROSPECT OF SUCCESS

[6] This requirement has been the bench mark in applications for leave to appeal for many years and decisions dealing with this requirement, prior to the enactment of the Act, still apply.


[7] A useful expose of the requirement appears in S v Sikosana 1980 (4) SA 559 AD at 562 D - F:
" .......,and it must be said once more that the application should not be granted if it appears to the learned Judge that there is no reasonable prospect of success.

The trial Judge is faced with no easy task, he must exercise his power judicially.

"The mere possibility that another Court might come to a different conclusion is not sufficient to justify the grant of leave to appeal"

(per Miller JA in S v Ceaser 1977 (2) SA 348 A at 350). Nor, as it was pointed out by Centlivres JA in Baloi's case supra, is it enough that the case is 'fairly arguable."




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