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[2023] ZAGPPHC 184
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A.A S obo C.M.M. S v MEC For Health, Gauteng (Reasons) [2023] ZAGPPHC 184; 13531/2018 (7 March 2023)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 13531/2018
DOH:
3 March 2023
1.
REPORTABLE: NO/YES
2.
OF INTEREST TO OTHER JUDGES: NO/YES
3.
REVISED.
DATE:
07
March 2023
In
the matter of:
A.A
S obo C.M.M. S
PLAINTIFF/
RESPONDENT
and
THE
MEC FOR HEALTH, GAUTENG DEFENDANT/
APPLICANT
REASONS
Bam
J
A.
Introduction
1.
This
is an application for leave to appeal to the Supreme Court of Appeal.
The application is brought by the defendant (now applicant)
and it is
directed against certain aspects of the order handed down by this
court on 12 October 2022. Although not specifically
set out in the
application for leave to appeal, it appears from the content thereof
that the defendant bases its application on
the two sub-provisions of
section 17 (1) (a), of the Superior Courts Act
[1]
,
namely, sub-provision (i) and (ii).
2.
The defendant’s grounds of appeal are
set out in its Amended Notice of Application for Leave to Appeal. In
the first instance,
the respondent says that the court erred in
awarding general damages to the minor child, in the amount of R2.2
million instead
of awarding R 500 000. It also points to previous
conflicting decisions and suggests that there is a need for a
superior court
to pronounce on how general damages should be dealt
with in cases of serious brain injuries that leave a person in a
vegetable
or ‘cabbage state’.
B.
The Law
3.
Section 17 (1) of the Superior Courts Act
provides that:
‘
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that:-
(a)
(i)
the appeal would have
a reasonable prospect of success; or
(ii)
there is some other compelling reason why the
appeal should be heard, including conflicting judgments on the matter
under consideration;’
4.
On the question of prospects of success,
counsel for the defendant referred the court to the case of
Ramakatsa
and Others
v
African
National Congress and Another
(724/2019)
[2021] ZASCA 31
(31 March 2021), where the court remarked:
‘
I
am mindful of the decisions at high court level debating whether the
use of the word ‘would’ as opposed to ‘could’
possibly means that the threshold for granting the appeal has been
raised. If a reasonable prospect of success is established,
leave to
appeal should be granted. Similarly, if there are some other
compelling reasons why the appeal should be heard, leave
to appeal
should be granted. The test of reasonable prospects of success
postulates a dispassionate decision based on the facts
and the law
that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In other words,
the appellants
in this matter need to convince this Court on proper grounds that
they have prospects of success on appeal. Those
prospects of success
must not be remote, but there must exist a reasonable chance of
succeeding. A sound rational basis for the
conclusion that there are
prospects of success must be shown to exist.’
5.
Counsel for the defendant suggested that
because of the circumstances of the minor child and the findings of
the various experts
as to the extent of his injuries, the questions
around his state of awareness of his circumstances, including his
projected life
expectancy, the court erred in awarding general
damages to the extent that it did. Thus, there was a reasonable
prospect that another
court would come to a different conclusion. I
refer to my findings as set out in my reasons and the bases for the
award I had made.
I am not persuaded that another court would come to
a different conclusion in this regard.
6.
However, on reflecting on the submissions
made by counsel in respect of granting leave on the basis of section
17 (1) (a) (ii) and
the decisions I was referred to, which appear to
contradict each other, there is a need for a superior court to
pronounce on the
matter. On this basis, leave must be granted.
C.
Order
7.
Accordingly, the following order is made:
1.
Leave is granted to the defendant to appeal
to the Supreme Court of Appeal only against that part of paragraph 1
of the order granted
on 12 October 2022, which relates to
general
damages
in the amount of
R2
200 000.00
(Two million two
hundred thousand rand).
2.
For the sake of clarity, the balance in the
amount of R 13 330 576,28 is not suspended by virtue of the order in
paragraph 1 (one)
above and shall be complied with in terms of the
order granted on 12 October 2022.
3.
The costs of the application will be costs
in the appeal.
N.N
BAM
JUDGE OF THE HIGH
COURT,
PRETORIA
APPEARANCES
:
PLAINTIFF’S
/ RESPONDENT’S
COUNSEL:
Adv
S.J Myburgh – 082 921 9240
E-mail:
SarelMyburg@gkchambers.co.za
Instructed
by: Boshoff
Incorporated – (012) 752 7702
E-mail:
mareli@wb-inc.co.za
DEFENDANT’S
RESPONDENTS’
COUNSEL:
Adv
A.B Rossouw SC – 083 259 2547
E-mail:
alwynrossouw@icloud.com
Adv
L.A Pretorius -
082 634 4885
E-mail:
lindap@law.co.za
Instructed
by: State
Attorney, Pretoria – 012 309 1534
Ref: Mr M
Morena/494/18/Z62
E-mail:
mmorena@justice.gov.za
[1]
Act
10 of 2013.