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[2023] ZAECMHC 31
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Sivenene obo M.M v Member of the Executive Council for the Department of Health, Eastern Cape Province (Leave to Appeal) (605/2020) [2023] ZAECMHC 31 (13 June 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MTHATHA
CASE NO: 605/2020
In the matter between:
ANDISWA
SIVENENE obo M[…] M[…]
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR THE DEPARTMENT OF
HEALTH,
EASTERN CAPE PROVINCE
Defendant
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
Rugunanan J
[1]
In this matter I heard argument by the parties in
an application for leave to appeal. For convenience they will be
referred to by
their trial designations. At issue are the heads of
damages for architectural services, loss of income, and caregiver and
domestic
services for which post-contingency amounts of R1 371 398,
R4 154 160 and R7 427 158 were respectively
awarded to the plaintiff in my judgment of 2 March 2023.
[2]
My judgment sets out the background to the matter,
the evidence adduced by the parties and the reasons for the awards
arrived at.
[3]
The defendant argues that I erred and misdirected
myself in various respects. Its summation of the grounds of appeal is
detailed
in its application for leave to appeal.
[4]
The legislation dealing with the circumstances
upon which leave to appeal may be granted is set out in section 17(1)
of the Superior
Courts Act 10 of 2013 (the Act).
[5]
The section reads as follows:
Leave to appeal
17. (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 been 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;
(b)
the decision sought on appeal does not fall within
the ambit of section 16(2)
(a)
;
and
(c)
where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just and prompt
resolution of the real issues between
the parties.
[6]
The
test previously applied in applications of this nature was whether
there were reasonable prospects that another court may come
to a
different conclusion.
[1]
What
emerges from section 17(1) is that the threshold for granting leave
to appeal has been raised. It is now only granted in specified
circumstances. This is deduced from the word ‘only’.
[7]
In
The
Mont Chevaux Trust v Tina Goosen and 18 Others
[2]
,
Bertelsmann J held as follows:
‘
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,
see
Van Heerden v
Cronwright & Others
1985 (2) SA 342
(T)
at 343H. 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.’
[8]
Smith
J, in
Valley
of the Kings Thaba Motswere (Pty) Ltd and another v A L Mayya
International.
[3]
aptly summed up the position in this manner:
‘
There
can be little doubt that the use of the word “would” in
section 17(1)(a)(i)
of the
Superior Courts Act implies
that the
test for leave to appeal is now more onerous. The intention clearly
being to avoid our courts of appeal being flooded
with frivolous
appeals that are doomed to fail. I am, however, of the respectful
view that the “measure of certainty”
standard propounded
by the learned judge in
Mont
Chevaux Trust
may
be placing the bar too high. It would, in my respectful view, be
unreasonably onerous to require an applicant for leave to appeal
to
convince a judge – who invariably would have provided extensive
reasons for his or her findings and conclusions –
that there is
a “measure of certainty” that another court will upset
those findings. It seems to me that a contextual
construction of the
phrase “reasonable prospect of success” still requires of
the judge, whose judgment is sought to
be appealed against, to
consider, objectively and dispassionately, whether there are
reasonable prospects that another court may
well find merit in
arguments advanced by the losing party. . .’
[9]
The grounds for leave to appeal assert to a large
extent that my conclusions regarding the acceptability of the expert
evidence
was erroneous. Put otherwise, the argument is that I erred
in not accepting the evidence of the defendant’s experts; that
in doing so my reasoning was erroneous and that I failed to consider
or give sufficient weight to other factors. The experts who
testified
for the defendant, were industrial psychologist Mr Sabelo
Gumede, educational psychologist Mr Xolani Fakude, and
Mr Sikhumbuzo
Mtembu, an architect.
[10]
It is not intended to extrapolate the minute
detail of the exhaustive grounds of appeal again, or to repeat that
which is set out
in my judgment, in as much as that which I thought
was relevant was dealt with in the judgment. I am mindful of the fact
that an
appeal is solely aimed at an order of a court and not its
reasoning.
[11]
As regards the impugned awards the defendant
argued that another court would conclude differently.
[12]
What
constitutes reasonable prospects of success, has been laid down in
S
v Smith
[4]
as follows:
‘
What
the test of reasonable prospects of success postulates is 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 order to succeed, therefore, the appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote but
have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational
basis for
the conclusion that there are prospects of success on appeal.’
[13]
The applicable legal principles and case
authorities for the evaluation of expert opinion are set out in my
judgment and footnotes
at paragraphs [12] and [13]. These are not
repeated save to state, in summary, that in order to be defensible, a
conclusion arrived
at by an expert must be informed by logical
reasoning underpinned by admissible facts (see generally
Michael
v Linksfield Park Clinic
2001 (3) SA
1188
(SCA) 1200I-1201B).
Loss of Income
[14]
To begin with, it was the plaintiff’s
evidence that her family aspired that their children would attend
university to acquire
a tertiary qualification such as a degree and
that had M[...] been born a normal child she would have wanted him to
progress like
any other child to obtain a university education.
[15]
This evidence was uncontested.
[16]
Testifying for the plaintiff the educational
psychologist, Ms Zethu Gumede, explained that the above factor was
underweighted in
her initial assessment. Having given sufficient
consideration thereto she expressed the following opinion relevant to
M[...]’s
academic aptitude for the purpose of determining his
premorbid income earning potential:
‘
The
child’s premorbid estimate of at least average ability is
consistent with the ability to acquire requisite knowledge,
skills
and values age appropriately; it is also consistent with functioning
at a level where he could have progressed through the
mainstream
school system, matriculated and proceeded to obtain a tertiary
qualification, at least a 3 year university degree. However,
it is
probable that he could have done better and surpass the level of his
father achieving a university degree or better than
his father.
[17]
In his report for the defendant, Mr Fakude makes
the following observation regarding M[...]’s pre-accident
functioning:
‘
Most
of M[...]’s paternal family members have degree levels of
education. Most of his maternal family members have post-matric
levels of education. Given that M[...]’s family’s
educational backgrounds as reported, it is likely that he would have
received good support and role modelling that he too would be
expected to study through matric and tertiary education.
When considering all
relevant information in postulating M[...]’s pre-accident
potential, a case of normality must be accepted
and, therefore, [an]
assumption of low average to average range of intellectual ability is
made. Educationally, it is likely that
M[...] would have progressed
through primary and senior mainstream education [and] given the
educational profile of his family,
it is probable that he would have
passed Grade 12 with at least a Diploma endorsement. Further studying
would have been probably
at a tertiary institution where he would
have attained a diploma level of education.’
[18]
The uncontested evidence of M[...]’s family
background (both maternally and paternally), to which the plaintiff
testified,
advocates that the case for ‘normality’ is
that the expectation for M[...] would have been that he attends
university.
The weight accorded to this evidence by Ms Gumede falls
at the level of recognising M[...] to be ‘of at least average
ability’
for which she expressed the opinion that he would have
progressed to obtain a university degree.
[19]
Mr Fakude on the other hand accepts ‘a case
for normality’ albeit on the assumption of a low average to
average range
of intellectual ability.
[20]
To my mind both experts had regard to essentially
the same facts (or evidence) but arrived at different conclusions. Mr
Fakude’s
opinion, however, evidences a patent disconnect or
inconsistency. He proceeds from an acceptance of normality and
springs to a
conclusion pillared on an assumption. In the absence of
facts informing the assumption his opinion cannot be held to be
underpinned
by logical reasoning. The effect is that the illogicality
taints the evidence of the defendant’s remaining experts who
sought
reliance on his prediction/s.
[21]
I should mention that the disconnect in Mr
Fakude’s evidence is rendered all the more disquieting in the
light of numerous
concessions by the defendant’s earnings
expert Mr Sabelo Gumede – most notably that children from
poor backgrounds
and with uneducated parents may also obtain degree
qualifications, and that in general it can be expected that children
will out-perform
their parents. It is not anything farfetched to
deduce that societal attitudes, individual standards and rising
expectations may
draw upon these concessions. Moreover, M[...] has
several positives for predicting his income earning capacity such as
a stable
and well-educated family with a strong educational ethos.
[22]
Left unassailed, the evidence of the plaintiff as
a factual witness informed the concluding opinions of her expert/s.
Accordingly,
there is no latitude for contending that the applicable
legal principles were misapplied.
[23]
The track of the evidence by Ms Gumede informed
the opinion of Dr Lieselotte Badenhorst and ultimately the basis
on which actuaries
IAC calculated the loss under this head of
damages. I need not repeat Dr Badenhorst’s evidence. It
has been dealt with
extensively in the main judgment. Sequential to
the evidence of the plaintiff as a factual witness it suffices to say
that the
ultimate contingency factor of 20% determined
discretionarily, was not contested in argument.
Caregiver and domestic
services
[24]
The joint minutes between Ms Anneke Greef and her
counterpart for the defendant Ms Cheryl Rooy reflect agreement that
the services
of a caregiver and a domestic worker are required for
managing M[...]. Where they differ, is on the cost of these services.
It
is somewhat mystifying for the defendant to have submitted that
the reasonableness of the costs are placed in issue without
contending
that the 20% contingency applied thereto was the result of
an improper exercise of judicial discretion. Where the costing was in
issue it was incumbent on the defendant to have led evidence from Ms
Rooy to substantiate the challenge to the evidence put up
by Ms.
Greeff. I have dealt with the defendant’s flawed approach to
the conduct of the trial in paragraph [40] of my judgment.
Architectural services
[25]
The point of departure between the architects
respectively for the plaintiff and the defendant, Mr Lizo Macingwane
and Mr Sikhumbuzo
Mtembu, is that the former recommends renovation
and construction while the latter recommends a low-cost proposal on
the basis
that ‘alterations’ are possible to the existing
house in which M[...] lives. The plaintiff gave detailed evidence as
to the condition of the house. She testified that the house is not
adequate for tending the needs of M[...] and proffered detail
as to
its inaccessibility in his handicapped state. The detail of her
evidence is set out in paragraph [20] of my judgment. Her
evidence
was not meaningfully challenged nor materially contradicted.
[26]
The recommendations by Mr Macingwane are in line
with SABS standards (and are compliant with the proposals by
Ms Greeff). There
is no evidence to suggest that the
recommendations by Mr Mtembu are compliant with SABS standards. What
has been put forward in
argument is that the R250 000 cost
estimate by Mr Mtembu ought to have assumed preference over the
pre-contingency amount
of R1 714 247 quantified by the
actuaries in line with the recommendations by Mr Macingwane. I have
dealt comprehensively
with the recommendations by the architects in
paragraphs [44] to [48] of the main judgment and having demonstrated
the fallacy
in the reasoning employed by Mr Mtembu, I gave motivated
reasons for my finding as to whose evidence was accorded preference.
[27]
From whichever perspective one views the present
application, whether objectively and/or dispassionately, I am not
persuaded that
there is merit in the arguments advanced for the
defendant.
Conclusion
[28]
The ostensible basis on which the defendant sought
leave to appeal was under section 17(1)
(a)
(i)
of the Act, and I wish to make it clear that I have applied that test
hereto, which is whether there is a reasonable prospect
that another
court would come to a different conclusion than did I.
[29]
Although differing contentions on the merits of
the application were made, I am not minded to grant leave to appeal
as I am similarly
unpersuaded that there are some other compelling
reasons why the appeal should be heard.
[30]
In the result, the following order issues:
The application for leave
to appeal is dismissed with costs, such costs to include those
consequent to the employment of two counsel,
where applicable.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Plaintiff:
A.
D. Schoeman SC with L. L. Sambudla
Instructed
by
M.
Dayimani Inc.
Plaintiff’s
Attorneys
Mthatha
(Ref:
MD/vs/00308)
Tel:
047-532 3178 or 047-531 1983
For
the Defendant:
H.
van der Linde SC with N. James
Instructed
by
The
Office of The State Attorney
Mthatha
(Ref:
X Hanise 331/20-AH)
Tel:
047-502 9900
Dates heard: 06 April
2023.
Date delivered: 13 June
2023.
[1]
Commissioner
of Inland Revenue v Tuck
1989
(4) SA 888
(T) at 890B.
[2]
2014
JDR 2325 (LCC) para 6.
[3]
Valley
of the Kings Thaba Motswere (Pty) Ltd and another v A L Mayya
International
[2016]
ZAECGHC 137 para 4.
[4]
S
v Smith
2012
(1) SACR 567
(SCA) para 7, quoted with approval in
S
v Kruger
2014
(1) SACR 647
(SCA) para 2.