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[2022] ZAGPPHC 792
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Marcus v Road Accident Fund (12325/15) [2022] ZAGPPHC 792 (24 October 2022)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE:
12325/15
REPORTABLE: NO
OF INTEREST TO
OTHER JUDGES: NO
REVISED: YES
24 OCTOBER 2022
In matter
between
KALI
MOTLATSI
MARCUS
Appellant
and
THE
ROAD ACCIDENT
FUND
Respondent
JUDGMENT
1.
This is an
application for leave to appeal to the Full Bench of this division
against the whole judgment and order I granted by
default on 8 July
2021.The judgment dismissed the appellant’s claim for loss of
earnings following a motor vehicle collision
against the Respondent
including the costs of the legal practitioners.
2.
This
application is continuing in default against the Respondent, the
notice of the application for leave to appeal was duly served.
It is
trite that an application for leave to appeal a decision of a single
judge of the High Court is regulated firstly by Rule
49 of the
Uniform Rules of Court. In this instance it was requested not at the
time of the judgment or oder but after the judgment
was delivered.
3.
The grounds of
appeal as captured in the notice of appeal in short without rehashing
them is that I erred in finding that the Appellant:
3.1
suffered
no past and future loss of earning or earning capacity, misquoted
principles in decided cases and further,
3.2 disregarded
the evidence as agreed upon by the experts,
3.3 not giving
due weight of experts’ s evidence presented;
3.4 ignoring the
fact that the earning capacity of the Appellant was compromised by
the head injury and the fact that the Appellant
would have furthered
his academic qualification but for the accident; and
3.5 ignoring the
actuarial calculations on both the past and future loss of earning.
4.
Secondly,
section17 of Act 10 of the Superior Court 2013, imposes substantive
law provisions
applicable to applications for leave to appeal. It stipulates that
leave “
may only be given
“where the judge or
judges concerned is/ are of the opinion that certain jurisdictional
facts exist namely: the appeal would
have a reasonable prospect of
success or the existence of some other compelling reason why the
appeal should be heard, including
conflicting judgments on the matter
under consideration.
5.
During the
oral argument, Counsel for the Applicant confirmed that the court
aquo
erred in disregarding the joint minutes of the industrial
psychologists, the neurological report even though there is no
neurophysical
impairment and the Appellant suffered mild brain
injury.
6.
Further,
Counsel confirmed that the court aquo was correct in dismissing the
Appellant’s claim for past loss of earnings as
he suffered no
such loss. Secondly, the contingency used in the calculations on the
loss of earnings with a result of R 7 519 070
for both the past
and future earnings was not correct. The submission was that a higher
contingency was appropriate as it will
bring the Appellant’s
future loss within an acceptable range of either R3 891 625
or
R 3 298 435.
7.
The
oral submissions by Counsel introduced new assertions not covered in
the grounds of appeal filed of record. Rule 49(1)(b) requires
an
Appellant to set out it’s grounds of appeal succinctly and in
unambiguous terms to enable the other litigants if there
any and the
court to understand and respond appropriately to the assertions of
the Appellant (my italics). This is not what transpired
in this leave
to appeal during oral evidence. During the oral argument Counsel
agreed with some the findings in my judgment yet
the ground of appeal
disagreed with everything in the judgment.
8.
Rule 17 of Act
10 of 2013 has raised
the
threshold for granting leave to appeal against a judgment of a High
Court
per
Bertelsmann J in The Mont Chevaux Trust v Tina Goosen & 18 Others
2014 JDR 2325 (LCC), the test on whether to
grant leave
to appeal is no longer based on the principle of a
reasonable
prospect of succes
s
but on a measure of certainty that another
court
will differ from the court whose judgment is sought to be appealed
agains
t.
9.
Clearly the
discort from both the grounds of appeal and the submission disavow
the new threshold.
10.
I accordingly
find that there is no reasonable prospect that another court would
come to a different conclusion.
I thus order as
follows:
1.
The leave to
appeal is dismissed.
2.
No order as to
cost is made
RAIKANE AJ
ELECTRONICALLY
SIGNED
Date of Hearing:
26 September 2022
Judgment:
This
judgment will be delivered electronically by email to the legal
representative. The time of hand down will be deemed to be
24
October.