No Second Bite. Court Confirms the Higher Threshold for Leave to Appeal

By Zolani Dhlamini | Director and Keitumetse Khutsoane | Associate

In April 2026, the Pietermaritzburg High Court set aside a subpoena issued against the Auditor-General of South Africa (“AGSA”), finding that it had not been issued for a bona fide or lawful purpose and amounted to an abuse of process.

The matter attracted public attention because the subpoena formed part of a broader dispute involving Solbeth Security Protection Services CC (“Solbeth”), eThekwini Municipality and alleged payments for security services. The Court found that the subpoena was used to compel the AGSA to disclose information in circumstances where Solbeth had already been informed that the information sought either did not exist or was not in the AGSA’s possession.

Solbeth then sought leave to appeal. That application has now also been dismissed, with costs.

While the first judgment dealt with the lawfulness of the subpoena, the leave to appeal judgment deals with a different point. A party is not granted leave to appeal merely because it disagrees with the outcome. It must meet the higher threshold set by the Superior Courts Act.

The true test

The Court referred to section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, which provides that leave to appeal may only be granted where the Court is of the opinion that the appeal “would have a reasonable prospect of success”.

This wording is significant. The Court confirmed that the threshold for leave to appeal has been set appreciably higher since the amendment of the Superior Courts Act. It is not enough for an applicant to show that another court might possibly reach a different conclusion. The applicant must demonstrate more than a mere possibility of success. There must be a realistic prospect that another court would come to a different conclusion.

Applications for leave to appeal often fail where they repeat a party’s dissatisfaction with the judgment, but do not show why the judgment is materially wrong or why an appeal court would probably interfere.

Broad complaints do not make good grounds of appeal

One of the AGSA’s preliminary objections was that Solbeth had failed to formulate concise grounds of appeal as required by Uniform Rule 49(4).

The Court found merit in that complaint. Rather than identifying specific grounds of appeal, Solbeth advanced what the Court described as a broad and all-encompassing challenge to the judgment.

A proper application for leave to appeal must engage directly with the judgment. It must identify the specific findings being challenged, explain the alleged errors, and show why those errors are material enough to create a realistic prospect of a different result. A general attack on the outcome is not enough.

Findings of fact – not easily disturbed

The Court also emphasised that findings of fact will not lightly be disturbed on appeal unless there has been a material misdirection or the conclusion reached is clearly wrong.

In this case, the Court held that its assessment of the facts and interpretation of the affidavits were unassailable. The findings were supported by the correspondence exchanged between the parties.

The Court found that Solbeth had never been furnished with information pursuant to the subpoena. It also rejected the argument that the AGSA, by engaging with Solbeth, had somehow relinquished its statutory rights or protections.

The Court further held that Solbeth had not demonstrated that the subpoena served any legitimate forensic purpose. There was therefore no factual misdirection warranting interference by an appeal court.

Statutory protection remained unanswered

The Court also considered Solbeth’s alleged errors of law.

A central issue in the earlier judgment was section 18(3) of the Public Audit Act, which protects the AGSA from being compelled to disclose information relating to its audit functions in proceedings to which it is not a party.

In the leave to appeal judgment, the Court found that Solbeth had failed to engage meaningfully with this statutory protection. This undermined its prospects of success.

Without a proper answer to the statutory protection relied upon by the AGSA, there was no realistic prospect that another court would reach a different conclusion.

Practical implications

The judgment confirms that leave to appeal is not a second opportunity to reargue a case in broader terms.

An applicant must present clear, concise and legally sustainable grounds of appeal. It must show that the alleged errors are material and that there is a realistic prospect that another court would come to a different conclusion.

The judgment also reinforces the need to consider the statutory protections that apply to public institutions such as the AGSA, particularly where a party seeks to compel the production of information through subpoena proceedings.

For litigants, dissatisfaction with a judgment is not enough. The appeal threshold is higher than that. Where an applicant cannot demonstrate realistic prospects of success, the Court is entitled to refuse leave to appeal and bring the matter to an end.

In this matter, Solbeth failed to meet that threshold. The application for leave to appeal was dismissed with costs.