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South Africa: North Gauteng High Court, Pretoria
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[2021] ZAGPPHC 233
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Xokozela v Road Accident Fund (42305/16) [2021] ZAGPPHC 233 (11 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO:
42305/16
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the
matter
between:
YOLISA
XOKOZELA
Applicant
and
THE
ROAD ACCIDENT
FUND
Respondent
JUDGMENT:
LEAVE TO APPEAL
RETIEF
AJ:
[1]
The
Applicant applied for leave
to
appeal
against the dismissal of
a
declaratory order heard,
on
an
unopposed basis,
on
the
12th
of
November
2020 ("the order").
[2]
There was no appearance for the Respondent, no
opposition was filed and the
Applicant did not
seek costs against the Respondent.
[3]
At the hearing, after hearing Counsel for the Applicant and
considering:
3.1
the
nature
and
effect
of
the
order
which
was,
as
a
result
of
the
Applicant's failure
to,
on the papers before Court, demonstrate that
he
de
facto
had
claimed
non-pecuniary
damages
from
the
Respondent as envisaged in
terms
of the
Road
Accident
Fund
Act,
56 of 1996
, as amended, the Applicant
had failed to demonstrate that he
was entitled the declaratory relief as
prayed
for;
3.2
that
such
failure
on
the
papers,
supra,
stood
irrespective
of
the
serious injury report dated the 23 May 2018;
3.3
that although the Applicant
had failed to allege and demonstrates
his
right
to
claim
non-pecuniary damages on
the
papers,
the
Applicant did claim non-pecuniary damages from the Respondent in
terms of Act.
In
this
regard,
the Court was
referred
to the initial and
amended
particulars
of
claim
forming
part
of
the
recently
updated bundles on Caselines. The
Applicant's
attorney
updated Caselines after the
order;
3.4
that the decision sought to be appealed
did not finally
dispose
of the
Applicant's
right to
claim
for
non-pecuniary
loss,
nor
for
that
matter did
it
dispose
of
all the
issues
in the
case
as between the parties.
[4]
Having
regard
to
all
the
circumstances and
the
interest
of
justice, the Applicant should be
afforded the opportunity to bring his
application afresh.
[5]
Applicant's
Counsel did not formally
withdraw
the application
for
leave
to appeal but informed the Court that the Applicant no
l
onger
wished to rely nor argue any of the grounds set out in
the leave
to appeal.
Leave
to
appeal
was incorrectly
sought.
In
the premises, the following
order is made:
1.
The Leave
to appeal is removed;
2.
The Applicant is afforded the
opportunity to bring an application afresh for appropriate
relief;
3.
No
order
as
to
costs.
L.A.
RETIEF
Acting
Judge of the High Court of South Africa,
Gauteng
Division, Pretoria
A
pp
earances:
Applicant's
Attorney: Salome Le
Roux Attorneys
Applicant's
Ref: SLR/X2334/MVA
Applicant's
Counsel: Adv Ludwig
Visser and
Adv Jana Van Der Merwe
Respondent's
attorney: Lekhu Pilson Attorneys
Date
of Hearing: 7
May 2021
Date
of Order: 11
May 2021