Automated Summary
Key Facts
Anele Mda (the applicant) applied for leave to appeal a judgment and order dated 25 August 2025 against Fikile Mbalula (the respondent). The respondent opposed the application and sought its dismissal with costs. The judge found the applicant did not meet the statutory test for leave to appeal under s.17(a)(i) or s.17(a)(ii) of the Superior Courts Act 10 of 2013. The applicant also sought to introduce new evidence (an article allegedly authored by Brian Mogotsi) and raise a new defence on appeal regarding a defamation matter, both of which were rejected by the court as lacking merit.
Issues
- The applicant challenges the order for apology and retraction, arguing that referring to Mbalula as 'belonging in jail' was an opinion rather than a statement of fact. The legal issue is whether the applicant's statements withstand the test of fair comment or public interest defence. The court examines whether the statements are based on truth, whether they are matters of public knowledge, and whether they were made without improper motive or malice.
- The applicant seeks to introduce new evidence contained in a document annexure 'X' - an article allegedly containing statements from Brian Mogotsi. The legal issue concerns whether this new evidence satisfies the requirements for introduction on appeal: (1) sufficient reasonable explanation for why the evidence was not led before the court a quo, and (2) prima facie likelihood of truthfulness that is materially relevant to the trial outcome. The court examines whether the evidence is merely regurgitation of previously tendered material or adds probative value.
- The applicant seeks leave to appeal the High Court judgment and order handed down on 25 August 2025. The legal question is whether the applicant meets the test for leave to appeal under either s. 17(a)(i) - reasonable prospect that another court would find differently - or s. 17(a)(ii) - other compelling reasons why leave to appeal should be granted. The court must determine if there is a reasonable prospect of success or other compelling reasons warranting the grant of leave to appeal.
- The applicant attempts to link the new evidence application to an application for leave to appeal by raising new defences. The legal question is whether leave to raise a new defence on appeal should be granted. The court must determine if an appeal court can consider a different case than that presented to the court a quo, or if this would turn the appeal into a rehearing rather than an assessment of the original judgment.
Holdings
The court dismissed the applicant's application for leave to appeal with costs. The applicant failed to meet the statutory test for leave to appeal under s. 17(a)(i) and/or s. 17(a)(ii) of the Superior Courts Act as there was no reasonable prospect of success on appeal. The application to introduce new evidence was also rejected as it did not meet the requirements for new evidence introduction. All grounds of appeal were dismissed including those regarding the order for apology and retraction, and the fair comment defence.
Remedies
The application for leave to appeal is dismissed with costs
Legal Principles
- Leave to appeal under the Superior Courts Act 10 of 2013 requires either a reasonable prospect that another court would find differently, or other compelling reasons why leave should be granted. An applicant must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success, not merely an arguable case. The court must find a sound, rational basis for granting leave.
- For a fair comment defense to be available in defamation cases, the comment must be based on facts that are true and clearly stated or matters of public knowledge. If a comment is made maliciously with an improper motive, rather than as an expression of an honestly held opinion on a matter of public interest, it is wrongful and the defense is not available. The court must also consider whether the statements were truthful and whether they qualify as fair comment.
- The introduction of new evidence on appeal requires: (1) a sufficient reasonable explanation why the evidence was not led before the lower court, (2) a prima facie likelihood of the truthfulness of the evidence, and (3) the evidence must be materially relevant to the outcome of the trial. Hearsay evidence alone cannot satisfy these requirements.
Precedent Name
- EFF and Others vs Emmanuel
- Rail Commuters Action Group vs Transnet Ltd t/a Metrorail
- Du Toit vs Beckett and Another
- Homi Lifestyle (Pty) Ltd and Another vs Unemployment Insurance Fund and Another
- MEC for Health, Eastern Cape v Mkitha and Another
- Buthelezii vs Poorter
- Ramakatsa and Others v African National Congress and Another
Cited Statute
Superior Courts Act 10 of 2013
Judge Name
Judge Baqwa
Passage Text
- Having considered the applicant's grounds of appeal including the application to introduce new evidence on appeal as well as submissions by counsel for the parties, I am not persuaded that the applicant meets the test for leave to appeal on any of the two statutory provisions on which she relies.
- In light of the above, I conclude that there is no sound, rational basis to conclude that there are reasonable prospects of success on appeal.
- The content of the article is a mere regurgitation of the same unsubstantiated report previously tendered before this court. The characterisation, therefore, of the alleged statement as, a more serious utterance or emanating from other serious source of evidence is plucked from the air in the sense that the credibility of such sources is untested and unknown. The new evidence seeks to tender defences which have already been advanced and/or rejected by this court. There are therefore no prospects of persuading another court on such flimsy hearsay evidence.