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[2011] ZAGPJHC 31
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Premier of Gauteng v Khanyi obo K (29703/08) [2011] ZAGPJHC 31 (18 February 2011)
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IN THE HIGH COURT OF SOUTH AFRICA
(SOUTH GAUTENG)
JOHANNESBURG
CASE NO
:
29703/08
DATE
: 2011-02-18
REPORTABLE
(IN THE ELECTRONIC REPORTS ONLY)
In the application for leave to appeal between
PREMIER OF
GAUTENG
..........................................................
Applicant
and
KHANYI,
THEMBENI MARTHA obo
K, P
S
.........................................................................
Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
WILLIS, J
:
[1] Immediately after I
had delivered judgment in this matter, counsel for the defendant
applied for leave to appeal.
[2] I accept that the judgment which I have
delivered relates, essentially, to a factual finding. Nevertheless,
there lurk, in
the background of this case, important issues of
policy and also a great deal of emotion. After all, one would have a
heart of
stone not to have been moved by the unfortunate consequences
that arose from the mother having been admitted to hospital on 2
December
1999.
[3] These emotions could have clouded my judgment.
I believe this would have occurred, even if I had reserved. I may
have erred
in drawing inferences that may not permissibly be drawn.
[4] The case is clearly one of considerable
importance to the parties. This is indeed a case where it seems to
me only fair and
right that another court, in the calm, measured and
relaxed atmosphere of an appeal hearing, should reflect on the
judgment that
I have given. Accordingly, I am persuaded that leave
to appeal should be granted.
[5] Counsel for both sides have agreed that if
leave to appeal were to be granted, the appropriate forum would be
the Supreme Court
of Appeal. I am hesitant to refer the matter to
the Supreme Court of Appeal primarily because the case seems to be
concerned with
a purely factual inquiry. I am aware that the Supreme
Court of Appeal has, from time to time, become intensely irritated by
the
fact that that it should have been burdened with having to
consider relatively simple factual issues.
[6] Nevertheless, as I have already indicated,
there is a lot of background noise in this particular case. The case
is concerned
with the question of inferences which may be drawn. This
touches upon questions of policy. Despite the apparent simplicity of
the
case, I am persuaded that the appropriate forum to hear the
matter is indeed the Supreme Court of Appeal.
[7] Accordingly the following order is made:
1. Leave is granted to appeal against the judgment and order which I
gave in this matter on 18 February 2011.
2. The appeal is directed to the Supreme Court of Appeal.
3. The costs in the application for leave to appeal are costs in the
appeal.
_________________________
N.P. WILLIS
JUDGE OF THE HIGH COURT
C
ounsel
for the Plaintiff: Advocate AP
Bruwer
Attorneys
for the Plaintiff: Austin Jordaan
Inc
Counsel for the Defendant: Advocate V
Soni
SC, (with him Advocate D
Joubert
)
Attorneys
for the Defendant: The State Attorney
Date
of hearing: 18 February 2011
Date of judgment: 18 February 2011