Summary of Judgment

Introduction

The judgment concerns an application for leave to appeal following a trial in the Gauteng Local Division, Johannesburg. The applicant, DLZ acting on behalf of the minor child DTK, sought leave to appeal against the court’s earlier judgment delivered on 14 April 2023, in which the applicant’s quantum claim for loss of earnings was dismissed. The respondent is the Road Accident Fund.

The application sought leave to appeal to the Supreme Court of Appeal, alternatively to the Full Bench of the Division. The application was heard on 8 June 2023, and judgment was delivered electronically on 21 June 2023.

The broader dispute arose from a Road Accident Fund claim in which the trial issue (on quantum) included whether the minor sustained a head injury and, if so, whether it would affect the minor’s future employability and thus justify an award for future loss of earnings. The present judgment is confined to whether leave to appeal should be granted against the dismissal of that loss-of-earnings claim.

Material Facts

It was common cause in the leave-to-appeal proceedings that the court had previously delivered judgment on 14 April 2023 dismissing the applicant’s claim for loss of earnings on quantum. The present application targeted that dismissal.

The judgment records that, during the trial, the question was whether DTK sustained a head injury and whether any such injury would impact future employment and lead to loss of earnings. The application for leave to appeal was directed at the court’s approach to the evidentiary material and expert opinions bearing on those questions.

A material feature for purposes of the leave application was that the court, in its earlier decision, had relied (among other things) on hospital records in rejecting the loss-of-earnings claim. In the leave-to-appeal judgment, the court noted that these hospital records had been admitted into evidence and had been relied upon by both parties, with the applicant relying on them to prove its case and the respondent relying on them to defend against the claim.

On the procedural conduct of the leave application, the respondent did not oppose the application and did not file a cross-appeal. Counsel for the respondent indicated that she had no submissions and would abide the decision of the court.

Legal Issues

The central legal questions were whether the applicant had satisfied the statutory requirements for leave to appeal, namely whether the contemplated appeal would have a reasonable prospect of success, and whether there were any compelling reasons for the appeal to be heard.

The dispute in the leave-to-appeal proceedings primarily concerned the application of the statutory leave-to-appeal standard to the record and issues arising from the trial judgment. Although the grounds advanced engaged factual and evaluative matters (including the court’s treatment of expert evidence and documentary records), the immediate task was not to re-determine the merits, but to assess whether another court could reasonably reach a different conclusion on appeal.

A further issue concerned the appropriate appellate forum, being whether leave should be granted to the Supreme Court of Appeal or rather to the Full Bench of the Division.

Finally, the court had to determine an appropriate costs order in circumstances where the application succeeded but the respondent did not oppose it.

Court’s Reasoning

The court approached the matter through the framework of section 17(1)(a) of the Superior Courts Act 10 of 2013, emphasising that leave to appeal may be granted only where the judge is of the opinion that the appeal would have a reasonable prospect of success. The applicant expressly relied on section 17(1)(a)(i) and (ii), contending both reasonable prospects of success and compelling reasons for the appeal to be heard.

In considering the applicant’s “compelling reasons” contention under section 17(1)(a)(ii), the court held that no compelling reasons had been placed before it. The court characterised the application as advancing a “wide range of grounds” and, in substance, complaints that the court should have accepted the expert evidence and the findings in the expert reports. On that aspect, the court found there was no basis to grant leave on the footing of compelling circumstances.

On the applicant’s complaint that the court had erred in admitting and relying on hospital records on the basis that they constituted hearsay, the court accepted that it had relied on the hospital records (among other material) in rejecting the claim. However, it reasoned that the same hospital records had been relied upon by both parties and had been admitted into evidence, which informed its treatment of that criticism in the leave-to-appeal context.

The court then addressed whether there were nonetheless reasonable prospects of success. While stating that it did not believe it had been wrong in exercising its discretion in relation to the acceptance of expert evidence as set out in the earlier judgment, the court was persuaded that the issues raised were such that another court might reach different conclusions. The judgment identifies, in particular, the applicant’s complaint that the court did not accept the reports and findings of the neurosurgeon, educational psychologist, industrial psychologist, and occupational therapist. On that basis, the court concluded that there were prospects of a different outcome on appeal and that leave to appeal should be granted.

As to the appropriate appellate forum, the court held that the issues concerning acceptance or non-acceptance of the expert reports and their findings were not persuasive grounds for granting leave to appeal to the Supreme Court of Appeal, and further stated that the matter was not complex for the Supreme Court of Appeal to hear. It therefore determined that leave should instead be granted to the Full Bench of the Division.

On costs, the court applied the general principle that the successful party should ordinarily receive its costs, and that this should not be departed from absent good grounds such as misconduct or exceptional circumstances. The court nevertheless declined to award costs to the applicant because the respondent had not opposed the application and had indicated it would abide the decision. The court found no justification for a costs award in favour of the applicant against the respondent.

Outcome and Relief

The court granted the application for leave to appeal and granted leave to appeal to the Full Bench of the Gauteng Local Division, Johannesburg.

The court ordered that each party bear its own costs of the leave-to-appeal application.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1)(a)(i) and section 17(1)(a)(ii).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, although no compelling reasons for an appeal were established under section 17(1)(a)(ii) of the Superior Courts Act 10 of 2013, the application nonetheless met the threshold in section 17(1)(a)(i) because there was a reasonable prospect that another court could reach a different conclusion, particularly in relation to the trial court’s acceptance or rejection of expert reports and their findings regarding the minor’s injuries and their impact on future earnings.

The court further held that leave should be granted to the Full Bench rather than the Supreme Court of Appeal. Despite the applicant’s success, the court held that costs should not be awarded against the respondent because the respondent did not oppose the application and abided the court’s decision, resulting in an order that each party pay its own costs.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal is governed by the statutory threshold in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, namely that leave may be granted only where the court is of the opinion that the contemplated appeal would have a reasonable prospect of success.

It also applied the principle that reliance on section 17(1)(a)(ii) requires compelling reasons for an appeal to be heard; a broad set of complaints that the court should have preferred certain evidence, without more, was not accepted in this matter as establishing compelling circumstances.

On costs, the judgment applied the general rule that costs follow the result, subject to departure where there are good grounds such as misconduct or exceptional circumstances. In the specific context of an unopposed leave-to-appeal application where the respondent abides, the court considered it unjustified to make a costs order against the respondent and directed that each party bear its own costs.