Application for leave to appeal

In Land and Agricultural Development Bank of South Africa and Another v Van den Berg and Others [2022] 1 All SA 457 (FB), appeal dismissed on grounds of being diffuse and ambiguous, leave may now only be granted if there is a reasonable prospect that the appeal will succeed.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Civil procedure - Application for leave to appeal: In Land and Agricultural Development Bank of South Africa and Another v Van den Berg and Others [2022] 1 All SA 457 (FB), the first to fifth defendants in the main matter between the parties, had brought an application to compel compliance by the plaintiffs with a request for discovery made in terms of r 35(3). The court dismissed the application, finding that the information and documents that were not furnished did not have any bearing on the issues in the trial, and that the application was overly broad and would lead to ineffective orders.

In terms of r 49 of the Uniform Rules of Court read with ss 16 and 17 of the Superior Courts Act 10 of 2013, leave to appeal was sought against the findings of fact and law, as well as the whole of the order and judgment of the court.

Rule 49 of the Uniform Rules of Court dictates the form and process of an application for leave to appeal and the substantive law pertaining thereto is to be found in s 17 of the Superior Courts Act. The latter Act raised the threshold for the granting of leave to appeal, so that leave may now only be granted if there is a reasonable prospect that the appeal will succeed. The possibility of another court holding a different view no longer forms part of the test. There must be a sound, rational basis for the conclusion that there are prospects of success on appeal.

Turning to the grounds of appeal, the court found them to be framed in diffuse and ambiguous sweeping terms. The court agreed with the plaintiffs’ contentions that the application was vague, ambiguous, and confusing to the extent that the plaintiffs were not properly informed of the case, which the defendants sought to make out and which the plaintiffs had to meet in opposing the application for leave to appeal. The grounds of appeal did not comply with the requirements of r 49 and were thus fatally flawed.

Among the grounds advanced, were that the trial was not fair, with allegations of bias made against the presiding officer. Not only was that issue not raised at the material time, but the onus of establishing bias was not discharged. The defendants did not specify what acts formed the basis of their complaint.

The grounds of appeal seeking to challenge the order refusing to compel discovery were also unsustainable. There was no room for interference with that order, which was not shown to be wrong.

Concluding that there were no prospects of success on appeal, the court refused leave to appeal.

Merilyn Rowena Kader
Legal Editor at LexisNexis