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[2015] ZAGPJHC 91
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Wittuhn v Road Accident Fund (28572/2013) [2015] ZAGPJHC 91 (5 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE NO: 28572/2013
DATE: 05 MAY 2015
In the matter between:
WITTHUHN, OTTO
CARL
....................................................................................
Applicant/Plaintiff
And
ROAD ACCIDENT
FUND
.................................................................................
Respondent/Defendant
JUDGMENT
FRANCIS J
1.. This an application for leave to
appeal by the applicant against part of my judgment delivered on 10
November 2014 after I had
granted absolution from the instance in the
plaintiff’s claim for non-patrimonial (loss of income).
2. The applicant has raised several
grounds for leave to appeal which is not necessary to repeat since
these are contained in the
application for leave to appeal. I have
dealt with all the grounds for leave to appeal in my judgment and
nothing new has been
raised in this application. The application was
opposed by the respondent.
3. It is trite that the traditional
test in deciding whether leave to appeal should be granted is whether
there is a reasonable
prospect that another court may come to a
different conclusion to that reached by me in my judgment.
4. The issue in this application for
leave to appeal is whether I erred in finding that the applicant had
failed to prove his claim
for future loss of income after he was not
called to testify despite the fact that he was in court for the
duration of his trial.
It was contended by the respondent’s
counsel at the trial that the applicant’s claim for future loss
of income had
to be dismissed on the grounds that he had failed to
discharge the onus that he will suffer loss of income. It was
contended that
the applicant’s experts reports contained
hearsay evidence in that they had relied on information that was
provided by the
applicant who failed to testify.
5. In the application for leave to
appeal, it was contended that it was raised in chambers that the
applicant was not going to be
called as a witness to save on time
since there were deadlines by when this matter was to be finalised.
Respondent’s counsel
had no recollection about this. It was
further contended that the respondent had not objected to the leading
of hearsay evidence
and that by failing to do so, consented to it.
It was further contended that the respondent’s counsel had
elicited hearsay
evidence during cross examination of the applicant’s
experts which is an exception to the hearsay rule.
6. It is common cause that some parts
of the expert reports are based on information that was relayed to
the experts by the applicant
and or his employer. It would have been
necessary to call the applicant and or employer to testify about
those facts unless the
parties had agreed to admit the reports as
they were.
7.I have dealt with the issue of the
hearsay evidence in paragraphs 22 to 30 of my judgment. I had
essentially found that the issue
of hearsay evidence was raised by
the respondent’s counsel when he was respondent’s
counsel when he was cross examining
the applicant’s experts in
particular Barbara Donaldson. This was in relation to the
information about the applicant’s
father, what the source was
that she relied on when compiling her report, about the rare skill
that the applicant allegedly possesses,
the failure to call any
person from the applicant’s employer to testify about how long
the plaintiff would have continued
to work for them after he had
reached 60 years and about what their policy was in accommodating
employees who had suffered from
any disabilities and who possessed
rare skills. I would have thought that this would have alerted the
applicant that he was required
to testify to fill those gaps in his
reports.
8. The reasons provided for not calling
the plaintiff as a witness due to time constraints are rather
somewhat opportunistic to
say the least. The fact of the matter is
that even if this matter was not going to be completed in the
allocated period, the matter
would simply have become a part heard
matter and arrangement would then have been made to set the matter
down for a hearing again.
Once the respondent’s had raised the
issue with the experts about who their sources were of their
information, the applicant
should have been called as a witness.
9. I have dealt with the issue whether
the respondent’s counsel had elicited hearsay evidence during
cross examination. I
had found that he did not since some of the
information that was contained in the reports was clearly of a
hearsay nature. It
is unclear how a person could elicit hearsay
evidence when the hearsay evidence has already been led in chief.
10. I have reconsidered the matter, and
considered the arguments raised for and against leave to appeal and
do not believe that
there is a reasonable possibility that another
court will come to a different conclusion to that reached by me.
11. The application for leave to appeal
stands to be dismissed.
12. In the circumstances I make the
following order:
11.1 The application for leave to
appeal is dismissed with costs.
FRANCIS J
JUDGE OF THE HIGH COURT
FOR APPLICANT : N VAN DER WALT SC
INSTRUCTED BY JOSEPH’S
INCORPORATED
FOR RESPONDENT : M MOPANE
INSTRUCTED BY MOLOTO STOFILE
INCORPORATED
DATE OF HEARING : 29 APRIL 2015
DATE OF JUDGMENT: 5 MAY 2015