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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHER JUDGES: NO

(3)     REVISED.

CASE NO: 57639/2016

 

In the matter between:

 

MINISTER OF POLICE                                                                                             Applicant

 

and

 
NASSER MUKHWANA                                                                                             Respondent

 

JUDGMENT

KUBUSHI J,

[1]        This is an application for leave to appeal against the whole of the judgment and order handed down by Andrews AJ on 7 February 2019, including leave on the issue of costs.

[2]        I am handling this matter in terms of section 17 (2) (a) of the Superior Courts Act 10 of 2013 ("the Act") as I am not the judge who granted the judgment and order sought to be appealed.

[3]        Leave is sought to appeal to the Full Court of this Division.

[4]        The applicant has approached court for leave to appeal in terms of section 17 (1) (a) (i) of the Act. The section provides for the granting of leave to appeal where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success.

[5]        The application is founded on two opposed grounds of appeal, namely, that the court a quo erred and misdirected itself when awarding the respondent damages for future loss of income:

5.1       Firstly, in relying on the actuarial calculations submitted by the respondent in that the actuarial report state that the claimant was earning a combined profit of R11 500 per month from his two businesses whilst in essence it has been established, and the court a quo made such a finding, that the respondent was unemployed at the time of the incident.

5.2       Secondly, there was no evidence before court, oral or documentary, to prove that the respondent was self-employed as a car mechanic and a traditional herbs supplier at the time of the incident.

[6]          The parties are in essence disputing the basis of the monthly income on which the actuary based its calculations. The recommendations of the experts is that the respondent should be compensated at the very least on the basis of an unskilled labourer as per Kock's Quantum Year Book whereas the actuary's calculation is based on the monthly profit from the respondent's businesses. The question, therefore, is whether the court a quo misdirected itself in relying on the calculation provided in the actuarial report.

[7]          I have considered the grounds of appeal raised by the applicant in the application for leave to appeal. I have, also, listened to the arguments for and against such application by all the parties and considered same.

[8]          It is my opinion, that there are reasonable prospect of success on appeal and that another court would come to a different conclusion. Leave to appeal should be granted to the Full Court of this Division against the whole judgment and order of Andrews AJ handed on 7 February 2019, including leave on the issue of costs.

[9]          The application is so granted and costs of the application are costs in the appeal.

 

 

 

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

 

 

 

Appearance:

Applicant's Counsel                     : Adv. M. Vimbi

Applicant's Attorneys                 : State Attorney, Pretoria

Respondent's Counsel                 : Adv. J. Nkosi SC

Respondent's Attorneys              : C.H Ogulke Attorneys

Date of hearing                            : 16 August 2019

Date of judgment                       : 20 August 2019

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