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[2018] ZAGPJHC 35
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Suriaya v Pick n Pay Retailers (Pty) Limited t/a Pick n Pay - Noorwood Hyper and Another (2012/30063) [2018] ZAGPJHC 35 (27 February 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
DATE:
27th February 2018
CASE
NO
: 2012/30063
In
the matter between:
SADER
:
DR SURIAYA
Plaintiff
and
PICK
‘N PAY RETAILERS (PTY) LIMITED t/a
PICK
‘N PAY – NORWOOD HYPER
First Defendant
NAKASANI
HYGIENE SERVICES (PTY) LIMITED
Second Defendant
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
ADAMS J
:
[1].
I shall refer
to the parties as referred to in the main action. The plaintiff is
the applicant in this application for leave to
appeal. She
applies
for leave to appeal against the whole of the judgment and the order,
as well as the reasons therefor, which I granted on
the 28
th
of October 2016. In terms of my said order I had dismissed the
plaintiff’s claim for delictual damages against both the first
and the second defendants.
[2].
In her notice of application for
leave to appeal the plaintiff had indicated that she does not seek
leave to appeal against my order
relating to the second defendant. In
my view therefore the order to the effect that the plaintiff’s
claim against the second
defendant is dismissed with cost stands.
There is no need for me deal with that part of the judgment and the
order dealing with
the second defendant.
[3].
The application for leave to
appeal is in the main against my factual findings. The plaintiff
submits that the court
a quo
erred in its finding that the plaintiff had failed to discharge the
onus resting on her to prove her case. I ought to have found,
so it
was submitted on behalf of the plaintiff, that the first defendant
and / or its employees were negligent in that they allowed
the floor
to be wet, which caused her to slip and fall.
[4].
Nothing new has been raised by the plaintiff in this
application for leave to appeal. In my original judgment, I have
dealt with
all the issues raised in this application for leave to
appeal and it is not necessary to repeat those in full.
Suffice to restate what I said in my judgment, that is that if
regard is had to the evidence as a whole, the plaintiff has not
proven
on a balance of probabilities that there was water on the
floor which caused her to slip.
[5].
The traditional test in deciding whether leave to
appeal should be granted was whether there is a reasonable prospect
that another
court may come to a different conclusion to that reached
by me in my judgment. This approach has now been codified in
s
17(1)(a)(i)
of the
Superior Courts Act 10 of 2013
, which came into
operation on the 23
rd
of August 2013, and which provides
that leave to appeal may only be given where the judge or judges
concerned are of the opinion
that ‘
the appeal would have a
reasonable prospect of success’.
[6].
In
Mont Chevaux Trust v Tina Goosen,
LCC
14R/2014 (unreported), the Land Claims Court held (in an
obiter
dictum
) that the wording of this subsection raised the bar of the
test that now has to be applied to the merits of the proposed appeal
before leave should be granted. I agree with that view.
[7].
I am not persuaded that the
issues raised by the plaintiff in her application for leave to appeal
are issues in respect of which
another court is likely to reach
different conclusions. I am therefore of the view that there are no
reasonable prospect of another
court coming to different conclusions,
be they on aspects of fact or law, to the ones reached by me. The
appeal does not, in my
judgment, have a reasonable prospect of
success.
[8].
Leave to appeal should therefore
be refused.
Order
In the
circumstances I make the following order:
The plaintiff’s
application for leave to appeal is dismissed with costs.
_________________________________
L ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
27
th
February 2018
JUDGMENT DATE:
FOR
THE PLAINTIFF:
27
th
February 2018
Adv
I J Zidel SC
INSTRUCTED
BY:
Saders
Attorneys
FOR
THE FIRST DEFENDANT:
Adv
E J Ferreira
INSTRUCTED
BY:
Botha
& Sutherland Attorneys
FOR
THE SECOND DEFENDANT:
Adv
L Grenfell
INSTRUCTED
BY:
Shannon
Little Attorneys