South Africa: North Gauteng High Court, Pretoria

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[2022] ZAGPPHC 119
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Rae v Road Accident Fund (3473/20) [2022] ZAGPPHC 119 (9 February 2022)
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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 27th 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
[1] Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 890