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[2022] ZAGPPHC 385
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Road Accident Fund v Scholtz N.O. obo Pieterse (74689/17) [2022] ZAGPPHC 385 (6 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 74689/17
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
YES
06
June 2022
In
the matter between:
ROAD
ACCIDENT
FUND
APPLICANT
RAF
REF: 560/12431707/1024/11
ADV
L SCHOLTZ N.O.
(On
behalf of JOHANNES CASPER
PIETERSE)
RESPONDENT
JUDGMENT
- LEAVE TO APPEAL
CONRADIE
AJ
INTRODUCTION
[1].
On 24 August 2020, this Court handed down judgment, making the draft
order an order of
the court. Full reasons for the judgment were given
by the Court on 1 November 2020.
[2].
This is an application for leave to appeal which is confined to the
issue of the amount
which Court awarded to the Respondent in respect
of his loss of earnings and specifically the contingencies applied by
the Court.
It follows that the order granted for the Past Medical
Expenses and the amount granted for General Damages as well as the
postulated
income scenarios are not in dispute.
IN
LIMINE
:
[3].
The Respondent argues that the Applicant filed its notice of leave to
appeal on 27 October
2021, almost a year after the reasons for the
judgment were given and that no application for condonation for non
compliance with
Rule 49 of the Uniform Rules of Court is made by the
Applicant.
[4].
The Applicant, despite receiving a letter from the Office of the
Acting Judge President
dated 11 March 2022 regarding the late filing
of the application for the leave to appeal, did not filed an
application for condonation
neither addressed the matter of
condonation in its Application for Leave to Appeal or in its Heads of
Argument.
[5].
The Court can, on good cause shown, extend the period of fifteen days
required by Rule
46. The Applicant has though failed to make such
application and has not furnished the court with an explanation of
the extreme
late filing of the application. Based on this failure on
its own, the Court cannot grant the application for leave to appeal.
THE
MERITS:
[6].
In order to prevent any further delay in the payment of the claims of
the Respondent, I
nevertheless deal with the merits of the
Application for Leave to Appeal.
[7].
The Applicant argues that the Court made the correct finding about
the pre- accident status
of the Respondent through the medico legal
reports and in particular the finding recorded by Mr Ben Moodie,
Industrial Psychologist
who made the conclusion that in his
pre-accident status, the Respondent had pre-existing psychological
difficulties which he struggled
with
and these cannot be ignored
when making a determination of the contingency deduction on the
proposed contingencies by the Respondent.
(My emphasis)
[8].
The Applicant states in its Heads of Argument that “
the
Court does not indicate in what way and manner the contingencies
proposed by the respondent were considered to be reasonable
given the
pre-morbid difficulties and it is our contention that had the effect
of the pre-existing difficulties been taken into
consideration, a
higher contingency than the one applied by the respondent would have
been applicable in this matter.”
[9].
The Court had the benefit of the hearing of the testimony of all the
experts during the
trial and had the opportunity to question these
experts in order to satisfy itself of the substance and detail of
their evidence.
The Applicant was, by its own choice unrepresented at
the hearing.
[10].
Prior to launching its application for leave to appeal, the Applicant
did not obtain a transcription
of the record of the hearing and in
its application also does not make specific reference to the written
reasons for the judgment.
Unfortunately, I find the Application for
Leave to Appeal to be slim on substance, poorly argued and at best a
generic challenge
of the judgment without critisising any particular
reason for the judgment.
[11].
I deal extensively in paragraphs 23 – 36 of the reasons for my
judgment with Past and Future
Loss of Income and how the contingency
calculation was arrived at. The gist of the evidence of Industrial
Psychologist Moodie and
Educational Psychologist Du Plessis Emmerich,
is that the Respondent, even in his injured state was expected to
complete his studies
and thus leaves no doubt that he would have
completed his studies uninjured.
[12].
It is trite that a trial court has wide discretion when it comes to
determining contingencies. Having
explained my consideration of the
calculation of the contingency in detail in the reason for my
judgment, I find it unnecessary
to further illucidate on my
reasoning. In any event, even if a moderately higher contingency
deduction was allowed, it would be
set off by the application of the
RAF Amendment Act’s cap.
[13].
I have grave concerns about the Applicant’s motives for
launching this late application for
leave to appeal and have to
conclude that it is an attempt to further delay the payment of the
Respondent’s claims.
[14].
The Court is of the view that there is no reasonable prospect or
compelling grounds on which another
court will come to a different
conclusion than this Court.
ORDER
Having
read the papers the following order is made:
1. The application is
dismissed with costs.
T
CONRADIE
ACTING
JUDGE OF THE HIGH COURT
FOR
THE APPLICANT:
ADV
D MOSOMA
INSTRUCTED
BY:
RAMULIFHO ATTORNEYS INC
FOR
THE RESPONDENT:
ADV J BISSCHOFF
INSTRUCTED
BY:
KRITZINGER ATTORNEYS