Zisiwe v Naude NO and Others (KP 309/2018) [2025] ZANWHC 223 (3 November 2025)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

CASE NO: KP 309/2018

BONGANI ZISIWE APPLICANT

and

THEUNIS JOHANNES NAUDE N.O FIRST RESPONDENT

KHULEKILE JACOB MOGOROSI SECOND RESPONDENT

KEBOGILE SUZAN MOLETA THIRD RESPONDENT

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed is 3 November 2025 at 10h00.

The application for leave to appeal is dismissed with costs.

REDDY J

[1] On 23 June 2025, an application for further particulars within the provisions of rule 35 of the Uniform Rules of Court, (URC) was dismissed. What follows is an opposed application for leave to appeal this judgment.

[2] The applicant assails the dismissal of his request for further particulars on inter alia the following grounds:

‘The Court a quo has erred in finding that there has been misjoinder of the Second & Third Respondents.

The Court a quo has erred in finding that the request for further particulars is an exercise to repair deficiencies in its own case, predicated on conjecture & speculation.

The Court a quo has erred in finding that the Applicant has not fully appreciated or lost sight of the incidence of the onus of proof in the main action.

The identity, designations and full particulars of the signatories to the 2015 Will is still unknown to the Applicant:

The Court a quo has erred in finding that the absence of the further particulars as requested would preclude the Applicant from presenting his case at trial effectively and efficiently.

The Court a quo has erred in not considering, and rejecting, the Respondents' defences to the request for further particulars based on asserting privilege.’

[3] Prior to 23 August 2023, the test in an application for leave to appeal was whether there were reasonable prospects that another court may come to a different conclusion.

[4] Our law presently requires that leave to appeal must be considered within the provisions of section 17(1)(a) of the Superior Courts Act, (SCA) ¹. The section provides that leave to appeal may only be granted in statutory defined circumstances. This is where the judge is of the opinion that the appeal would have a reasonable prospect of success, or where there is some other compelling reason why the matter should be heard.

[5] Since the advent of the SCA, several judgments in our jurisprudence assayed to deal with whether the codification of s 17 of the SCA resulted in whether the bar in the test for leave to appeal had been heightened.

[6] In due course, this conundrum was resolved in Ramakatsa and Others v African National Congress and Another² where the following proposition was advanced:

‘If a reasonable prospect of success is established, leave to appeal should be granted. Similarly, if there are some other compelling reasons why the appeal should be heard, leave to appeal should be granted. The test of reasonable prospects of success postulates a dispassionate decision based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In other words, the appellants in this matter need to convince this Court on proper grounds that they have prospects of success on appeal.'

[7] In S v Smith³ the following was vocalized:

‘What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that the Court of Appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of success. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’

[8] Applying these principles leave should be granted if a reasonable prospect of success is shown, or if there are some other compelling reasons for the appeal to be heard.

[9] Prior to dealing with the pure grounds of appeal it would be apposite to address the appealability of the order dismissing the request for further particulars. The applicant claims that the foundational principle that underpins a request for further particulars is that a party is only entitled to call for such particulars as are strictly necessary to enable them to prepare for trial.⁴ To this end, the applicant states that if the applicant has met the jurisdictional requirements as proscribed in rule 21 of the URC of Court, such party would not be able to adequately prepare for trial if they do not receive the further particulars.

[10] Viewed through this lens the applicant contends that the refusal of a request for further particulars is final in effect, will not be revisited by the trial court and is not susceptible to alteration by the trial court. Moreover, the applicant advances that the refusal of a request for further particulars is appealable within the Zweni⁵ requirements.

[11] As a decisive strike the applicant avers that the refusal of a request for further particulars is appealable in the interests of justice.⁶ Importantly the applicant underscores that the apex court has conclusively held in United Democratic Movement v Lebashe⁷ that the dominant consideration is the interests of justice.

[12] The respondents submits that an appealable order must meet the attributes established in Zweni where Harms AJA explained the attributes of a non-appealable ruling as follows:

‘In the light of these tests and in view of the fact that a ruling is the antithesis of a judgment or order, it appears to me that, generally speaking, a non- appealable decision (ruling) is a decision which is not final (because the Court of first instance is entitled to alter it), nor definitive of the rights of the parties nor has the effect of disposing of at least a substantial portion of the relief claimed in the main proceeding.’

[13] The respondents continue that similarly, in Ewels v Francis and Others (WCC, case no. 6497/2022, 17 March 2025) the Court dismissed an application for leave to appeal against a refusal to compel further discovery, holding that such interlocutory rulings lack all three Zweni attributes and cannot be appealed, regardless of alleged inconvenience or prejudice.

[14] The respondents contend that the applicant’s general contentions regarding appealability (citing Kalinko v Nisbet ⁸Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service⁹ Philani-Ma- Afrika and Others v Mailula and Others¹⁰ and United Democratic Movement v Lebashe Investment Group (Pty) Ltd & others¹¹ are insufficient to overcome the established principles regarding interlocutory rulings and the high threshold for leave to appeal.

[14] Regarding interlocutory orders, lodestar is the interests of justice. ¹² In Minister of Home Affairs and Another v Vindiren Magadzire and Another¹³ Unterhalter JA (Mocumie, Mbatha JJA and Dawood, Modiba AJJA concurring), the SCA advanced the principal proposition as regards the appealability of interlocutory orders as follows:

‘ I turn first to the question as to whether the Part A order is appealable. In Lebashe, the Constitutional Court decided that an interim interdict may be appealable, even if it lacks the attributes identified in Zweni, if the interests of justice so dictate. Quite what this capacious criterion entails is a work in progress. In this matter, the Part A order does not meet the test in Zweni: it may be altered by the high court; it is not predicated on any definitive determination of the rights and obligations of the parties; and it does not dispose of the main issues that now fall for decision under the amended relief sought in Part B. However, I am nevertheless of the view that it would be in the interests of justice for this Court to entertain this appeal. That is so because the principal ground of appeal raised by the Minister poses a somewhat novel question as to whether the high court could have made the Part A order, in the face of what it ordered in the Helen Suzman case. If we do not resolve this question, the parties will be left in some doubt as to whether the Part A order can be enforced. This uncertainty would be prejudicial both to the Minister and the Zimbabwean nationals on whose behalf the Federation brought its application. For these reasons, the Part A order is appealable, and I do so find.’

[15] Applying the standard of the interests of justice, I cannot find that the interests of justice commands that leave to appeal be granted. Moreover, after a careful consideration of the grounds of appeal disjunctively and conjunctively the appeal would not have a reasonable prospect of success. Notably, there exists no other compelling reason why the appeal should be heard.

[16] Regarding costs, there is no basis to deviate from the general principle that costs follow the result.

Order

[17] In the result, the following order is made:

The application for leave to appeal is dismissed with costs.

APPEARANCES

For the Applicant Advocate S M Tisani

Instructed By Zisiwe Attorneys

For the First to Third Respondents: Mrs N Neethling

Instructed By Oelofse Attorneys

Date of hearing: 17 October 2025

Date of judgment: 3 November 2025