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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: NO

        DATE      09 FEBRUARY 2022

                                     Case Number: 3473/20

 

In the matter between: 

A. RAE                                                                                                                       APPLICANT

 

AND

 

ROAD ACCIDENT FUND                                                                                      RESPONDENT

JUDGMENT

KHWINANA AJ

INTRODUCTION

 

[1]        This is an application for leave to appeal to the full bench of the above honourable court against my judgment granted on this the 27^th day of September 2021.

 

[2]       Section 17(1) of the Superior Courts Act, Act 10 of 2013 ("the Superior Courts Act"),       regulates applications for leave to appeal and provides:

'(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.'  

[3]       The test in an application for leave to appeal prior to the Superior Courts Act was whether         there were reasonable prospects that another court may come to a different conclusion. Section 17(1)[1] has raised the test, as Bertelsmann J, correctly pointed out in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para :

'It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cornwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.' 

 

[4]       The applicant’s leave to appeal is on parts of my judgment, save to say the reasons have been given in my judgment.

 

[5]       In terms of Rule 42 (1) provides that a court may mero motu or on application, rescind or vary;

(a)    An order or judgment erroneously sought or erroneously granted in    the absence of any party affected thereby;

(b)    An order or judgment in which there is an ambiguity, error or omission;

(c)     An order or judgment granted as a result of a mistake common to the parties.

 

[6]       I have noted an error on the draft order in relation to the percentage in favour of the plaintiff where it reads less 75% whereas it must read less 25% of the plaintiff’s proven or agreed claim.  I accordingly vary that portion of my judgment in terms of Rule 42 (1) (b) and rectify it to read less 25% on the draft order. I have therefore amended the draft order and marked it X.

 

            In the result:

            1. Leave to appeal is refused.

            2. Draft order is amended and marked X to read less 25%

            2. No order as to Costs.                             

                                                                                                                                                                                                                       

ENB KHWINANA

ACTING JUDGE OF NORTH GAUTENG

HIGH COURT, PRETORIA

 

DATE OF HEARING:     02 DECEMBER 2021

DATE OF JUDGMENT: 09 FEBRUARY 2022

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