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[2022] ZAGPJHC 79
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Banda v Road Accident Fund (2017/22763) [2022] ZAGPJHC 79 (17 February 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2017/22763
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
DATE:
17 February
2022
In
the matter between:
BANDA,
GRACE
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
– LEAVE TO APPEAL
SIWENDU
J
[1]
The applicant seeks the courts
leave to appeal against the court’s judgment handed
on 2
December 2020. Even though the respondent (RAF) was not represented
during the hearing, it instructed Counsel to oppose the
appeal.
[2]
I am compelled to make some observations about the inordinate delay
in hearing the
appeal. The Application for leave to appeal was noted
on 23 December 2020. An endorsement on the Case Lines system reveals
that
the application was referred to the court’s then registrar
on 21 May 2021 to allocate a date for hearing.
[3]
In view of the Court’s commitments with the SIU Tribunal, it
was only on 3 January
2022 that the Court was made aware of the
pending application, hence why it was only heard on 28 January 2022.
[4]
I have considered the issues raised together with submissions made by
Mr Rudi Kok
(for the Plaintiff/ Applicant). I pause to note that the
observations made about the offer by the RAF, the exchange of emails
and
the like are
orbiter
comments about the conduct of the
matter. They did not go to the
ratio
for the decision
pertaining to the claim for loss of support. They may or may not be
considered by the LPC if the matter is referred
for investigation.
They are not appealable.
[5]
The only material issue in the applicant’s complaint is that
the court ought
to have rendered a judgment in the matter in respect
of the loss of support claimed.
[6]
Materially, it is evident from the judgment that the plaintiff’s
case was heard
by default in the absence of the RAF. In my view, the
role of the Court is amplified in such circumstances, requiring it to
take
account of all the available facts, and not solely the
unchallenged evidence and version by the applicant.
[7]
In this instance, the applicant’s claim for loss of support is
linked inextricably
with the existence of other dependents which were
not disclosed or taken into account in the reports prepared by the
experts.
[8]
I agree with Mr (Tshavhungwe) (for the RAF) that the court is
empowered to make the
order it in terms of Uniform Rule 39 (20) which
states that:
“
If
it appears convenient to do so, the court may at any time make any
order with regard to the conduct of the trial as to it seems
meet,
and thereby vary any procedure laid down by this rule”.
[9]
I am minded that as stated by the court in
City of Tshwane
Metropolitan Municipality v Afriforum and Another
2016 (6) SA 279
(CC) paras 40- 41
where the court held that:
“
Unlike
before [referring to Zweni v Minister of Law and Order
1993
(1) SA 523
(A)]
appealability no longer depends largely on whether the interim order
appealed against has final effect or is dispositive of
a substantial
portion of the relief claimed in the main application. All this is
now subsumed under the constitutional interests
of justice standard.
The overarching role of interests of justice has relativised the
final effect of the order or the disposition
of the substantial
portion of what is pending before the review court, in determining
appealability.”
[10]
Even with this test in mind, I find it is not in the interest of
justice to determine the claim
on a piece meal basis. An order for
absolution from the instance was not an appropriate order to make
given that the RAF was not
represented. The interest of justice will
be best served by determining the applicant’s entitlement to
the loss of support
in conjunction with the claims of other
claimants. The court retained supervision of the matter for this
reason.
[11]
In addition to the above, I find that the order is as it stands not
appealable. It is still open
to the applicant to pursue its claim
before the court by following the directions in the judgment.
Accordingly,
I make the following order:
a.
The application for leave to appeal is
dismissed with costs
______________
T.
SIWENDU J
Plaintiff’s
Attorney:
Mr Rudie Kok
Instructed
By:
Leon JJ Van Rensburg Attorneys
Counsel
for Defendant: Adv P Tshavhungwe
Instructed
by:
Ramulifho Attorneys