Leave to Appeal vs Special Leave to Appeal

On 4 April 2024 in the matter of Savannah Country Estate Homeowners Association v Zero Plus Trading 194 (Pty) Ltd and Others (773/2022) [2024] ZASCA 40, our Supreme Court of Appeal ("SCA") had to address the important difference between an application for leave to appeal and an application for special leave to appeal. In this article, we analyse the SCA's views in this regard.

In the Savannah-matter an application for special leave to appeal was referred for oral argument in terms of Section 17(2)(d) of the Superior Courts Act 10 of 2013. The SCA had to determine whether the Applicant had made a case for special leave to be granted to the Applicant to allow it to appeal against the order and judgment of the full court.

The first issue for the Applicant was that its notice of motion described the application as an application for leave to appeal and not special leave to appeal. The founding affidavit also did not make mention of the words "special leave" under any of the headings in the affidavit. 

In light hereof the Applicant would have had to apply for the postponement of the application for special leave to appeal in order to rectify the notice of motion and supplement the affidavit by referring to "special leave".

However, the SCA held that, on the pleadings before the SCA, the Applicant had no prospects of success on appeal, and without prospects of success a postponement would serve no purpose. The Savannah-matter was accordingly struck from the roll with costs.

Of value though was the highlighting by the SCA of the difference between leave to appeal and special leave to appeal. Section 16(1)(b) of the Superior Courts Act provides that, subject to Section 15(1) thereof, the Constitution and any other law, 'an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of Appeal upon special leave having been granted by the Supreme Court of Appeal.

The SCA specifically referred to Corbett JA in Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (AD), who dealt with the distinction between 'leave' and 'special leave':

"I have no doubt that the terms "special leave" and "leave" were chosen with deliberation by the lawgiver and that they were intended to denote different concepts. It may be accepted that the normal criterion of reasonable prospects of success applies to both the "special leave"... and the "leave"... In my view, however, the word "special" in the former subsection denotes that some additional factor or criterion was to play a part in the granting of special leave."

The SCA also referred to National Union of Metalworkers of South Africa and Others v Fry's Metals (Pty) Ltd 2005 (5) SA 433 (SCA), where the court held that the criterion for the granting of special leave to appeal is not merely that there is a reasonable prospect that the decision of the court a quo will be reversed - but whether the applicant has established some additional factor or criterion. 

Further, in Stu Davidson and Sons (Pty) Ltd v Eastern Cape Motors (Pty) Ltd (260/2017) [2018] ZASCA 26, Lewis JA mentioned in the majority judgment that the fact that two judges of the SCA granted special leave to appeal does not mean that the judges hearing the appeal "[were] not required to consider whether [they] actually should be entertaining the appeal at all". 

Accordingly, the SCA held as follows:

"[T]he amount in issue is minimal. There is no legal question to be determined. There is no factual dispute that requires reconsideration. There is no reason why an appellate court should determine any matter arising from the first appeal further. Again, it is trite that 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."

The Savannah-judgment should be kept in mind by litigants when considering an application for special leave to appeal.