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[2022] ZAGPPHC 119
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Rae v Road Accident Fund (3473/20) [2022] ZAGPPHC 119 (9 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE
09 FEBRUARY 2022
Case Number:
3473/20
In
the matter between:
A.
RAE
APPLICANT
AND
ROAD
ACCIDENT
FUND
RESPONDENT
JUDGMENT
KHWINANA
AJ
INTRODUCTION
[1]
This is an application for leave to appeal to the full
bench of the above honourable court against my judgment granted on
this the
27
th
day
of September 2021.
[2]
Section 17(1) of the Superior Courts Act, Act 10 of 2013 ("the
Superior Courts Act"),
regulates
applications for leave to appeal and provides:
'(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;
(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.'
[3]
The test in an application for leave to appeal prior to the Superior
Courts Act was whether
there were reasonable prospects that another court may come to a
different conclusion.
Section 17(1)
[1]
has raised the test, as Bertelsmann J, correctly pointed out in The
Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325
(LCC)
at para :
'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
Cornwright & 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.'
[4]
The applicantâs leave to appeal is on parts of my judgment, save to
say the reasons have
been given in my judgment.
[5]
In terms of Rule 42 (1) provides that a court may mero motu or on
application, rescind or
vary;
(a) An
order or judgment erroneously sought or erroneously granted in
the absence of any party affected
thereby;
(b) An
order or judgment in which there is an ambiguity, error or omission;
(c)
An order or judgment granted as a result of a mistake common to the
parties.
[6]
I have noted an error on the draft order in relation to the
percentage in favour of the plaintiff
where it reads less 75% whereas
it must read less 25% of the plaintiffâs proven or agreed claim.
I accordingly vary that
portion of my judgment in terms of Rule 42
(1) (b) and rectify it to read less 25% on the draft order. I have
therefore amended the
draft order and marked it X.
In the result:
1. Leave to appeal
is refused.
2. Draft order is
amended and marked X to read less 25%
2. No order as to
Costs.
ENB KHWINANA
ACTING JUDGE OF
NORTH GAUTENG
HIGH COURT,
PRETORIA
DATE
OF HEARING: 02 DECEMBER 2021
DATE
OF JUDGMENT: 09 FEBRUARY 2022
[1]
Commissioner
of Inland Revenue v Tuck
1989 (4) SA 888
(T) at 890