CIVIL PRACTICE – APPLICATION FOR LEAVE TO APPEAL TO BE ACCOMPANIED BY A STATEMENT OF GROUNDS

CIVIL PRACTICE – APPLICATION FOR LEAVE TO APPEAL TO BE ACCOMPANIED BY A STATEMENT OF GROUNDS

The applicant brought an application in terms of Rule 115 (2) of the Rules of Court for leave to appeal against an order of the court granted on 19 April 2022. The respondent opposed the application and argued that the application for leave to appeal did not comply with the provisions of Rule 115 because it was not accompanied by a statement of grounds for leave to appeal. Rule 115 (1) and (2) provides the procedure to be followed when seeking leave to appeal, which can be at the time of the judgment or within 15 days after the judgment or order. In the later instance, sub-rule (2) requires that the application for such leave must be made together with the grounds for the leave to appeal. Counsel for the plaintiff argued that it was permissible in practice to file grounds for leave to appeal in the Heads of Argument and the that the applicant in any event appealed against the entire judgment of the court.

TOMMASI J considered the provisions of Rule 115, and other decided cases and held that:

1. As stated in Hollard Insurance Company of Namibia v Minister of Finance HC-MD-CIV-MOT-REV-2018/00127) [2020] NAHCMD 247 (24 June 2020) an application can be brought on notice, for as long as it is accompanied by the grounds on which it is based.
2. Whether leave to appeal is applied for at the time of judgment or order or afterward, the applicant is required to state the grounds on which it would be seeking leave to appeal.
3. The court, when considering the application for leave to appeal, must consider whether there are reasonable prospects that a different court may come to a different decision. It would not be possible for the court to determine the prospects of success in the absence of the grounds.
4. It would also not be possible for the respondent to effectively oppose and prepare arguments if not privy to the grounds for leave to appeal.

As a result, the court could not dispense with compliance with Rule 115 (2), and the application for leave to appeal was accordingly struck from the roll.

Harases v ERONGO RED NAHCMD 6 July 2022