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[2021] ZAGPPHC 337
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Keohitlhetse v Road Accident Fund (41903/2019) [2021] ZAGPPHC 337 (31 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
Case
No: 41903/2019
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:
2021-05-31
In
the matter between:
OBAKENG
KEOHITLHETSE
APPLICANT
And
ROAD
ACCIDENT
FUND
RESPONDENT
Delivered:
This Judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
parties/their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The
date for
hand-down is deemed to be 31 May 2021.
JUDGMENT
PHAHLAMOHLAKA,
AJ
BACKGROUND
[1]
On 11 January 2021 I handed down judgment in favour of the applicant
against the Road
Accident Fund (the respondent) for payment of the
amount of R5 781 926.06 (Five million seven hundred and eighty-one
thousand nine
hundred and twenty-six rand and six cents) as
compensation for damages suffered as a result of a motor vehicle
accident.
[2]
The applicant is now applying for leave to appeal the judgement. The
application was
heard by way of video conferencing and therefore the
matter will be determined accordingly. The application is unopposed .
[3]
The leave to appeal is sought to the full bench of this division and
the grounds for
the application appear in the Notice of application
for leave to appeal dated 26 January 2021. The application was heard
on 29th
April 2021.
GROUNDS
FOR LEAVE TO APPEAL
[4]
The Applicant contends that the appeal would have reasonable
prospects of success
and that there are compelling reasons why the
appeal should be heard.
[5]
The application is premised on the following two aspects;
5.1
Firstly, it is in relation to my finding that the plaintiff suffered
no past loss because
at the time of the hearing of the matter the
plaintiff was a scholar; and
5.2
Secondly, the Applicant contends that the contingencies applied were
higher than the normal
and therefore this is a misdirection on my
part.
APPLICABLE
LAW
[6]
The principles governing the application are currently governed by
the
Superior Courts Act 10 of 2013
which would provide the statutory
matrix.
[7]
Section 17(1)
of Act 10 of 2013 provides as follows:
“
Leave
to appeal may only be granted 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 the conflicting
judgments under consideration.”
[8]
The court in Mgezeni Gasbat Nxumalo v The National Bargaining Council
for the Chemical
Industry (NBCCI) and others JR1170/2013 (unreported)
summarized the approach to an application for Leave to Appeal as
follows:
“
The
traditional formulation of the test that is applicable in
an
application
such as the present requires the court to
determine whether there is a reasonable prospect that another court
may come to a different
conclusion to that is sought to be taken on
appeal. As the respondent observe, the use of the word
“would”
in Section 17(1)(a)(i) are indicative of a raising of the threshold
since previously, all that was required
for the Applicant to
demonstrate was that there was a reasonable prospect that another
court might come to a different conclusion”.
[9]
In order to be successful, the applicant must therefore show that
another court would
come to a different conclusion.
SUMMARY
OF
ARGUMENTS
[10]
Counsel for the applicant correctly pronounced that at the time of
hearing of this
matter the plaintiff was a scholar. The aspects of
past loss of earnings are therefore a factual one and it is not an
issue for
postulation. I am not convinced that another court would
come to a different conclusion on this aspect and therefore the
application
on this ground stands to fail.
[11]
Counsel for the applicant further argued that the contingency
deduction
I applied for future loss of earning capacity were higher
than normal and therefore, counsel submitted, another court would
come
to a different contingency deduction.
[12]
It is trite that contingency deductions are within the discretions of
the court.
One must be mindful, however that the discretion must be
applied judicially. I have been referred to Robert Koch as authority
for
and appropriate contingency declaration to be applied. One should
not lose sight of the fact that Koch provides a guide on the
percentage of contingencies on the subject. The court ought to apply
its mind on what is the appropriate contingency to be applied
to
avoid being just a rubber stamp.
[13]
It is a well-established principle that contingency deductions depend
upon
a number of factors and ranges between 5% and 50% depending on
the merits of each case. I have not been criticised on the principle
but rather on the amount of the percentage of contingencies I applied
and therefore I am of the view that another court would not
come to a
different conclusion in this regard.
CONCLUSION
[14]
The applicant has not presented a convincing argument that another
court
would find that there was past loss of earnings, and on the
issue of contingencies how did I fail to exercise my discretion
judicially.
[15]
The argument by the applicant with regards to the percentage of
contingencies
to be applied is therefore not convincing.
[16]
In my view, after having carefully considered the Applicant’s
stated
grounds for leave to appeal and the submissions, there is
nothing that persuades me that another court would come with
different
conclusion.
In
the premises, I conclude that no proper case has been made out for
leave to appeal to be granted
ORDER
[17]
In the result I make the following order:
17.1
The application for leave to appeal is dismissed.
K.F
PHAHLAMOHLAKA
Acting
Judge of the High
Court,
Gauteng division,
Pretoria.
Date
of Hearing
:
29 April2021
Date
of Judgement:
:
31May 2021
Heard
on
: 29 April 2021
For
the Applicant
:
Adv. LD Haskins
Instructed
by
: Mbowane Attorneys
For
the Respondent
:
No appearance
Date
of Judgement
:
31 May 2021