In the evolving jurisprudence of South African appellate procedure, the recent decision of the Supreme Court of Appeal (SCA) in Savannah Country Estate Homeowners Association v Zero Plus Trading 194 (Pty) Ltd and Others [2024] ZASCA 40 provides critical guidance on the distinction between leave to appeal and special leave to appeal under the Superior Courts Act 10 of 2013. Decided on 4 April 2024, the matter revolved around procedural deficiencies and the doctrinal threshold applicable to applications for special leave to appeal.
At the core of the dispute was the procedural mischaracterisation of the application before the SCA. Although the appellant sought to challenge a decision of a full bench, which in terms of section 16(1)(b) of the Superior Courts Act necessitates special leave, the notice of motion referred merely to an application for leave to appeal. Likewise, the founding affidavit omitted any reference to “special leave” in its headings or substantive text.
This error was not trivial. It required the applicant to consider applying for a postponement in order to amend the notice and supplement the affidavit accordingly. However, the SCA found that the application itself was substantively without merit, as the appellant had no reasonable prospects of success on appeal. On that basis, the court concluded that any postponement would be academic and declined to entertain the matter further. The appeal was struck from the roll with a punitive costs order.
While the procedural ruling was dispositive, the SCA took the opportunity to reaffirm the doctrinal importance of distinguishing between leave and special leave to appeal. The Court cited with approval the reasoning of Corbett JA in Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A), where it was held that the legislature’s use of the term “special leave” denotes not merely ordinary prospects of success, but the presence of an additional, distinguishing factor that justifies the appellate court’s intervention.
This position is supported by subsequent case law. In National Union of Metalworkers of South Africa and Others v Fry’s Metals (Pty) Ltd 2005 (5) SA 433 (SCA), the SCA held that an applicant must demonstrate more than a likelihood of a successful appeal. Rather, the applicant must identify a compelling legal or factual issue, a manifest injustice, or a matter of broader public interest.
Moreover, in Stu Davidson and Sons (Pty) Ltd v Eastern Cape Motors (Pty) Ltd [2018] ZASCA 26, Lewis JA noted that the fact that a special leave application had been granted by two judges of the SCA does not preclude the full bench from revisiting the merits of the appeal. The implication is that special leave is not a procedural formality; it is a discretionary gatekeeping function that must be judiciously exercised.
In the Savannah matter, the SCA held that none of the hallmarks required for special leave were present. The Court concluded:
“The amount in issue is minimal. There is no legal question to be determined. There is no factual dispute that requires reconsideration… where there has been no manifest denial of justice, no important issue of law to be determined, and the matter is not of special significance to the parties, and certainly not of any importance to the public generally, special leave should not be granted.”
This judgment serves as a cautionary precedent for legal practitioners. An application for special leave to appeal must be meticulously framed, both procedurally and substantively. Failure to properly characterise the relief sought, as was the case in Savannah, may render the application fatally flawed. More importantly, even where the procedural posture is corrected, the threshold for special leave remains notably higher than that for ordinary leave to appeal.
For litigants seeking to appeal decisions of full courts or appellate divisions, Savannah underscores the importance of assessing whether the matter involves a substantial legal question, a gross procedural irregularity, or an issue of wider importance. Absent these, the SCA is unlikely to entertain an appeal further.
In conclusion, the Savannah ruling reaffirms that section 17(2)(d) of the Superior Courts Act is not a procedural shortcut, but a substantive test. The case clarifies the judicial expectations placed upon litigants who pursue special leave and reinforces the critical importance of precision, merit, and jurisprudential value in appellate practice before the Supreme Court of Appeal.
