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[1] The Applicant (FITA) seeks leave to appeal the judgment and order of this Court handed down on 26 June 2020.  Leave is sought to appeal to the Supreme Court of Appeal (SCA) on the grounds embodied in its notice of application for leave to appeal dated 3 July 2020.  Leave to appeal is sought in terms of section 17(1)(a)(ii) and section 17(1)(a)(i) of the Superior Courts Act[1] (Superior Courts Act).  FITA relies on a number of grounds which we refer to later.

[2] Section 17(1) of the Superior Courts Act provides that leave to appeal may only be granted where the Judge or Judges concerned are of the opinion that —

“(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”

[3] The primary case made out in support of the application is that this matter is one of significant public interest and national importance.  It is asserted that it raises novel legal questions concerning the threshold requirements for the exercise of executive power by the Minister in terms of the Disaster Management Act (the Act).[2]  As such FITA contends that leave to appeal in terms of section 17(1)(a)(ii) to the SCA should therefore be granted.

[4] As to the section 17(1)(a)(i) test, in The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others, the Land Claims Court, per Bertelsmann J, outlined how the Superior Courts Act had raised the bar for granting leave to appeal —

"It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others  1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against."[3] 

This was confirmed in Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of Public Prosecutions and Others.[4]