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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE:  YES / NO.

(2) OF INTEREST TO OTHER JUDGES:  YES / NO.

(3) REVISED.

12 August 2021

                                          CASE NUMBER:   373/2017

In the matter between:

 

TUMO THEBE                                                                                                                 Plaintiff

 

and

 

ROAD ACCIDENT FUND                                                                                               Defendant

 

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

This matter has been heard in terms of the Directives of the Judge President of this Division dated 25 March 2020, 24 April 2020 and 11 May 2020. The judgment and order are accordingly published and distributed electronically. The date and time of hand-down is deemed to be 14h00 on 12 August 2021.

 

ERASMUS AJ

 

            Introduction

[1]        On 30 August 2019, and in terms of a written judgment, I granted absolution of the instance and ordered that each party pay his or its own costs in an action by the applicant against the respondent.

 

The notice of application for leave to appeal and grounds for appeal

[2]        During September 2019 the Plaintiff brought an application for leave to appeal against the whole of the judgment.  He seeks leave to appeal to a Full Court in the alternative the Supreme Court of Appeal.  The first time this application was brought to my attention was during March 2020, and I was provided with a copy of the Application for Leave to Appeal only on 22 June 2021. 

 

[3]        The Application for Leave to Appeal consists of some 7 pages.

 

[4]        I am not of the intention to repeat the 24 grounds of appeal, but it can, in my view, be summarised as follows:

 

(i)            That the test for absolution from the instance was applied incorrectly, and in failing to apply the correct test, I telescoped the test for absolution from the instance to the facts of the action in its totality;

 

(ii)          That this Court erred in the interpretation of, and application of the but for test, provided in Section 17 (1) of the Road Accident Fund Act and therefore erring to come to the finding that the injuries sustained by the applicant is as a result of the driving of a motor vehicle.  This should be read with the common cause facts and the evidence provided by the applicant;

 

(iii)         That this Court erred in not accepting the uncontested evidence of the applicant: -

 

a.    to the effect that he had sustained bodily injuries as a result of being pushed off the motor vehicle, thereby falling within the ambit of arising from or driving of a motor vehicle as contemplated in section 17 (1) of the Road Accident Fund Act;

 

b.    that as a result of being pushed off the moving vehicle, he fell on the road, hit his head and which resulted in bleeding and necessitated him being admitted to hospital for a period of 2 weeks and thereby falling within the scope of Section 17 (1);

 

(iv)         That this court erred in failing to accept the contents of the J88 medico-legal report placed before me as uncontested evidence.  And further failing to give consideration to the J88 which constitute an admissible document in terms of Section 213 (2) of the Criminal Procedure Act, placing the rebuttable onus on the respondent.

 

(v)          That this court erred in failing to come to the conclusion that the injuries sustained is as a direct or indirect result of the driving of a motor vehicle;

 

(vi)         That this court erred in requiring there to be a causal link between the negligent driving and the injury of the Plaintiff when the requirement is the negligence or other wrongful act of the driver;

 

(vii)        That this court erred in finding on the uncontested evidence of the applicant that there was no reasonable connection between the harm threatened and the harm done;

 

(viii)       By not applying the legal principles in the decision of Pillay v Santam Insurance Co. Ltd 1978 (3) SA 43 (D), but rather applying the principles laid down in Khumalo v Multilateral Motor Vehicle Accidents Fund 1997 (4) SA 384 (N);

 

(ix)         By not finding any negligence on the side of the driver of the bakkie, for inter alia the following reasons:

 

a.    not hearing and/or feeling the assault on the bakkie and/or stopping and/or noticing at some stage that the applicant was no longer a passenger;

 

b.    that a reasonable driver would not have loaded passengers in the back of an open bakkie, and in the event of uploading such passengers to ensure that they are seated and failure to do so will result in negligence;

 

c.    in contravening Section 61 of the National Road Traffic Act, 93 of 1996;  and

 

d.    in failing to comply with Regulation 250 (2) and Regulation 251 (1);

 

(x)          This court failed to separate the test and/or enquiry in to determining whether the driver of the vehicle was negligent and/or in the alternative to determine whether there had been another wrongful act;

 

(xi)         This court erred in seeking to conflate the two separate tests into one test limited solely to the question of negligent driving;

 

(xii)        On application of the incorrect test, limited to that of negligent driving of the insured driver to find that the insured driver, premised on the uncontested facts of the applicant had been negligent, in not finding that a reasonable insured driver would have noticed the argument on the rear of the bakkie and/or alternatively have noticed that the applicant was notlonger a passenger alternatively once having noticed that the applicant was no longer a passenger, returning to the scene of the incident;

 

(xiii)       This court erred in interpreting the applicant’s evidence that he had attended to the SAPS to infer that the applicant had not been injured as a result of the driving.

 

            The law

[5]        Section 17 of the Superior Courts Act 10 of 2012 governs applications for leave to appeal. This section states:

 

     “Leave to appeal

 

17. (1)     Leave to appeal may only be given 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;

 

(b)   the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

 

(c)   where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

 

[6]        The test to be applied is now higher than what it used to be. It is no longer whether another court may (might) come to a different decision than what the trial court arrived at. It is now whether another court, sitting as court of appeal, would come to a different decision.

 

[7]        The applicant does not make the necessary averment in the Application for Leave to Appeal that another Court would come to a different decision.  He merely states that:

 

            “KINDLY TAKE NOTICE that the Applicant intends to, on a day to be arranged by the Registrar, apply for leave to appeal to a Full Court in the alternative the Supreme Court of Appeal against the whole of the Honourable Acting Justice Ms Erasmus’ judgment, granted against the Plaintiff in the above matter, delivered on 30 August 2019, on the following grounds:”

 

[8]        Despite the applicant’s failure to deal with the relevant test in the Application for Leave to Appeal, I will determine the merits of the application by the applicant on the basis that another court would come to a different conclusion.

 

            The merits

 

[9]        Insofar as the grounds listed in the summary above are concerned, this Court in its judgment on the merits dealt quite comprehensively with the evidence tendered.    To avoid prolixity, it is strictly speaking not necessary to rehash what is already stated in the main judgment and same can be regarded as being incorporated herein.  I have again studied the judgment, the heads or argument that was provided to me and the Application for Leave to Appeal.

 

[10]      I am not of the intention to deal with all 24 grounds of appeal in this judgment (some of which is mere duplications), as some of the grounds simply does not have any merit in it at all.  It is also not required of me to deal with each and every ground.  I, however, wish to make the following remark, as much emphasis was placed on this by the applicant.  The applicant placed much reliance on the fact that the evidence was uncontested.  The test is not if evidence is uncontested or not.  This can never be.  In any matter before a Court the test is whether sufficient evidence have been placed before the Court in order to meet the minimum requirements for the relief sought.  In casu, the test is whether the requirements as set out in the Road Accident Fund Act has been met or not.  

 

[11]      Based on the principles laid down in the judgment of Pillay v Santam Insurance Co Ltd 1978 (3) SA 43 (D), where a passenger was pushed from a bus, the conductor having forced the person’s hand free from the handrail, the injuries suffered by that person were caused by or arose from the driving of the bus, I am of the view that another court would come to a different conclusion.  Even though there are still a remarkable difference between the facts in the Pillay judgment, and the facts that served before me, another court would come to a difference conclusion.

 

[12]      For this reason I am persuaded that leave to appeal should be granted. 

 

            Order

[13]     In the result, I make the following order:

 

                    [13.1]      The applicant is granted leave to appeal to the Full Court of this Division;

 

                        [13.2]       The costs of the application for leave to appeal will be costs in the appeal.

 

N. ERASMUS

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

Appearances (Heads of Argument prepared and filed):

 

On behalf of the Plaintiff                      :           Adv P A Venter

                                                                          Instructed by Van Zyl Le Roux Inc

 

On behalf of the Defendant                   :           Adv S Mbhalati

Instructed by Maluleke Msimang & Associates before their Notice of Withdrawal has been filed

 

Date of judgment                                 :            12 August 2021

 

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