About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 472
|
|
Nelson v Road Accident Fund (3742/2016) [2023] ZAFSHC 472 (4 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 3742/2016
In
the matter between:
LORENZO
BEVAN NELSON
PLAINTIFF
and
ROAD ACCIDENT
FUND
DEFENDANT
CORAM:
NAIDOO J
HEARD
ON:
13 NOVEMBER
2023
DELIVERED ON:
4 DECEMBER
2023
JUDGMENT
– APPLICATION FOR LEAVE
TO
APPEAL
[1]
This is an application by the applicant, Lorenzo
Bevan Nelson, who was the plaintiff in the main action,
for Leave to
Appeal against part of the judgment and order in this matter, which
was delivered on 5 May 2023. The respondent in
the action was the
Road Accident Fund (RAF). Adv (Ms) K Petersen represented the
plaintiff and Ms K Mkhwanazi represented RAF.
[2]
The judgment was assailed on a number of grounds, which in essence,
are that the court erred in:
2.1
not determining the aspect and/or applicability of the contingency
deduction, as agreed by the parties;
2.2
making a finding in respect of the applicant’s past and future
loss of earnings and/or income, when
these aspects were not before
the court;
2.3
finding that the respondent did not accept all the applicant’s
experts reports, including that of the
actuary, Mr Wim Loots, whereas
the respondent accepted the contents of all the applicant’s
expert reports and only disagreed
with the percentages of the
contingency deductions applied by the actuary;
2.4
placing reliance on the respondent’s expert reports whereas the
latter accepted the applicant’s
expert reports;
2.5
raising concerns with the age of the applicant’s various expert
reports, as the factual findings contained
in those reports were
accepted by the respondent, the current condition of the applicant
and the impact of his injuries on his
employability;
2.6
making a finding of absolution from the instance, and
2.7
making a costs order that each party should pay its own costs, as the
applicant was substantially successful
in three of the four heads of
damages claimed.
[3]
it is by now trite that
section 17
of the
Superior Courts Act 10 of
2013
regulates the test to be applied in an application for leave to
appeal. The relevant provisions of
section 17(1)
provide as follows:
“
(1) 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;”
(my
emphasis and underlining)
[4]
An applicant was, previously, merely required to
show that there is a reasonable possibility that another
court,
differently constituted, would find differently to the court against
whose judgment leave to appeal is sought. It is clear
from
section
17(I)
, set out above, that the situation is now somewhat different,
and an applicant for leave to appeal is required to convince the
court that there is a reasonable prospect of success and not merely a
possibility of success. In the matter of
The Mont Chevaux Trust v
Tina Goosen + 18 2014 JDR LCC,
Bertelsmann J held that:
“
It is clear that
the threshold for granting leave to appeal against a judgment of a
high court has been raised in the new Act. The
former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different conclusion….The
use of
the word ‘would’ in the new statute indicates a measure
of certainty that another court will differ from the
court whose
judgment is sought to be appealed against.”
[5] The
Mont Chevaux decision was cited with approval in a number of cases,
one such matter being
Matoto v Free State Gambling and Liquor
Authority (4629/2015)
[2017] ZAFSHC 80
(8 June 2017)
, a decision
emanating from this Division, where my brother Daffue J echoed the
remarks of Bertelsmann J at paragraph 5 and remarked
that “There
can be no doubt that the bar for granting leave to appeal has been
raised…The use by the legislature of
the word “only”
emphasized supra, is a further indication of a more stringent test.”
The Full Court in
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance (19577/2009) [2016] ZAGPPHC 489 (24 June 2016)
also
cited Mont Cheveaux with approval.
[6]
In this matter, the court was informed that most of the heads of
damages had been settled and only the loss
of earnings and the
contingency deductions were in dispute. While the respondent had
accepted the applicant’s expert reports,
it appeared that the
purpose was to prevent the calling of those experts to testify. The
only expert report filed by the respondent,
which the court was asked
to disregard was that of the respondent’s actuary. This was
dealt with in the judgment, a careful
reading of which will indicate
that the mentioning of the respondent’s expert reports was
largely to outline the physical
condition of the applicant after the
accident.
[7]
The court’s assessment of the applicant’s condition and
alleged disabilities was based on
the applicant’s expert
reports. The concerns raised by the court arose from the applicant’s
expert reports. In order
to assess past and future loss of earnings
and decide on a reasonable contingency deduction (both of which were
in dispute), the
court must have recourse to what was disclosed in
the expert reports. It is therefore misguided to assert that the
court was not
entitled to raise concerns if the respondent accepted
the applicant’s expert reports. It is trite that the court is
not bound
to slavishly follow the opinions of experts if other
circumstances raise queries requiring clarification by those experts.
Hence
the court’s concerns regarding the age of the reports as
well as other concerns detailed in the judgment.
[8]
Similarly the court has a discretion in deciding the issue of
contingency deductions. This has been
settled in a number of cases in
our law, that a judge is not tied down by actuarial calculations and
has the discretion to decide
what is right [See
Legal Assurance
Company Ltd v Botes1963(1) SA 608 (A)
]. That discretion entails
considering a number of factors, for example the extent to which the
plaintiff’s injuries have
affected his employability.
[9]
As is evident from the judgment, various factors which prevented this
court from properly exercising
that discretion were detailed and
raised as concerns by the court. As pointed out in the
judgment, the court was of the view
that the applicant had not proven
that his injuries resulted in the pecuniary loss he claimed, which
entitled the court to dismiss
his claim. However, the court was
loathe to shut the door of the court to the applicant, and granted
absolution from the instance.
This was to afford the applicant an
opportunity to approach the court again with better and (in this
case, updated) information
from the experts in order that the court
could properly exercise its discretion in assessing the contingency
deductions.
[10]
The award of costs is in the discretion of the court, which may make
an award that deviates from the norm that
costs follow the result.
Although the applicant claims he was substantially successful, the
court was of the view that he proceeded
to present evidence that was
of little assistance to the court, and the costs order reflected the
court’s attitude in this
regard
[11]
This court is of the view that the applicant has not met the
threshold of showing that he has good prospects of
success on appeal,
as another would come to a different conclusion.
[12]
In the circumstances, I make the following order:
The application for leave
to appeal is dismissed with costs
_______________
S NAIDOO, J
On
behalf of Plaintiff
: Adv K Petersen
Instructed
by
: Peter Skein Attorneys
22
Captain Proctor Street
Nobel
Street
Brandwag
Bloemfontein
(Ref: PL
Skein/ba/NEL429/0001)
On
behalf of Defendant
: Ms K Mkhwanazi
Instructed
by
: The Road Accident Fund
49
Charlotte Maxeke Street
Bloemfontein
Claim
No. 502/12117730/03/2. Link 3813814
(Ms K Mkhwanazi)