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[2019] ZAGPPHC 167
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Road Accident Fund v Jacobs (21427/17) [2019] ZAGPPHC 167 (22 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
YES
CASE NO: 21427/17
22/5/2019
In
the application for leave to appeal between:
THE
ROAD ACCIDENT
FUND
APPLICANT
and
BRENDA
JACOBS
RESPONDENT
JUDGMENT
COLLIS
J:
1.
In
the present application the applicant is seeking leave to appeal the
whole of the judgment and order
[1]
granted by this court, awarding 100% of the merits in favour of the
respondent as well as costs of the proceedings. The court postponed
the trial on the issue of quantum
sine
die.
2.
The application for leave to appeal is
sought in terms of the provisions of section 17(1) (a) (i) and
section 17(1)
(a) (ii) of the
Superior Court's Act, No. 10 of 2013
.
The applicant contends that the appeal would have a reasonable
prospect of success and that there are compelling reasons why the
appeal should be heard as the decision of the court is novel given
our previous cases on point.
3.
A
court adjudicating an application for leave to appeal must be
persuaded with a measure of certainty that another court will differ
from the judgment sought to be appealed.
4.
On
17 April 2019, some 5 months after the order of the court was given,
the application for leave to appeal was served and lodged
with the
Registrar of this court. This necessitated the applicant to seek
condonation simultaneously with the filing of the application
for
leave to appeal. Both applications are opposed by the respondent.
APPLICATION
FOR CONDONATION
5.
In
terms of Uniform
Rule 49(1)(b)
an application for leave to appeal
must be made within 15 days of the date of judgment.
6.
In
this regard and more specifically para 10 to the condonation
affidavit the deponent sets out the following:
"The reason the application for leave was
not served by 14 December 2018, is because all the necessary persons
did not sign
off the instruction to the attorneys timeously. This
instruction to appeal was given to the attorneys in January. The
further delay
is that senior counsel had to study the matter and
prepare this affidavit. I am advised that if the
dies non
be
allowed the application is 23 days late."
7.
In opposition the respondent sets out
the following:
[2]
"4.6. The applicant makes bold and
unsubstantiated averments to attempt to explain the inordinate delay
and fails to attach
and provide this Honourable Court with any proof
thereof. The applicant has not taken this Honourable Court into its
confidence
as to why and how such lengthy delay came about.
4.7. The applicant has dearly not only failed
to show good cause for the delay in bringing the application for
leave to appeal,
but has furthermore completely failed to provide
reasons for the delay in launching its application for condonation.
This in itself
is fatal to the relief sought by the applicant."
8.
In
Uitenhage Transitional Local Council v South African Revenue Service
2004 (1) SA 292
(SCA) at paragraph 6, the Court stated the following:
"[6] Condonation is not to be had merely
for the asking, a full detailed and accurate account of the causes of
the delay and
their effects must be furnished so as to enable the
court to understand clearly the reasons and to assess the
responsibility. It
must be obvious that if the non compliance is
time-related then the date duration and extent of any obstacle on
which reliance
is placed must be spelled out."
9.
What
is therefore required is not only an explanation in the timeous
prosecution of the appeal, but also the delay in seeking condonation
for non-compliance. An application for condonation should be brought
without delay and as soon as possible once an applicant realises
that
he has not complied with a rule of court.
[3]
10.
The Constitutional Court in the decision
of eThekwini Municipality v lngonyama Trust
[2013] JOL 30162
(CC)
laid down the following principles in relation to applications for
condonation:
"[28] As stated earlier, two factors
assume importance in determining whether condonation should be
granted in this case. They
are the explanation furnished for the
delay and prospects of success. In a proper case these factors may
tip the scale against
the granting of condonation. In a case where
the delay is not a short one the explanation given must not only be
satisfactory but
must also cover the entire period of the delay. An
applicant for condonation must give a full explanation for the delay.
In addition,
the explanation must cover the entire period of delay.
And, what is more, the explanation given must be reasonable. The
explanation
given by the applicant falls far short of these
requirements. Her explanation for the inordinate delay is superficial
and unconvincing."
11.
In
argument Mr Fourie appearing on behalf of the respondent, submitted
to this court that the reasons given for the delay were bare
and
unsubstantiated. The reasons given lack details in as far as the
names of person(s) who give instructions to appeal and why
if such
instruction was given to the applicant’s attorneys in January
2019, the condonation application was only launched
in April 2019.
There are furthermore mere bold allegations made with reference to
counsel being briefed and when in fact such instruction
was given.
12.
During
argument Mr Williams, appearing on behalf of the applicant, conceded
that the applicant has presented a rather weak case
for condonation
as the explanation furnished lack detail. He however submitted that
the appeal has prospect of success in that
the applicant fulfils an
important function in society and that the finding of this court has
wide-ranging ramifications for the
applicant.
13.
Having
regard to the explanation tendered for the inordinate delay in
launching the condonation application and the lack of detail
given in
respect of the persons responsible to action this appeal, I am not
persuaded that the reasons given are convincing or
has merit.
14.
Consequently,
I am not persuaded that the application for condonation is merited
and is therefore refused.
PROSPECT
OF SUCCESS
15.
Albeit,
that the applicant is unsuccessful in having persuaded this court on
granting it condonation, I do find it necessary to
deal with the
applicant's prospects of success on the merits.
16.
As
per the notice of application for leave to appeal, the applicant
seeks leave against the judgment delivered by this court and
against
the consequent cost order.
17.
In the opposing affidavit and more
specifically paragraph 11 thereof
[4]
,
the deponent sets out the following:
"11.7 As
will be dealt with more fully below the delay in launching this
application has been
so long, that the bill of costs has already been
settled, and all the costs due in terms of the court order already
paid out to
all the various vested parties.
11.8
The applicant's alleged explanation in
the delay is further strange in the sense that the bill of costs was
already settled by agreement
between the applicant and the respondent
on 29 February 2019. Not to unduly overburden the papers herein, the
first and last page
of the taxed bill of costs is attached as
Annexure "TV1" hereto.
11.9
These costs were paid to the
respondent's legal representatives on 1 April 2019. Proof of payment
thereof is attached as Annexure
"TV2" thereto."
18.
On
behalf of the respondent counsel had argued that if the applicant at
all times were desirous of appealing this court's decision,
it raises
suspicion as to why they would agree and in fact pay the costs of the
hearing before this court and only thereafter decide
to appeal this
court's order.
19.
During
reply, counsel on behalf of the applicant conceded the point that it
would be futile to persist with an appeal in respect
of the costs
given the fact that it has been settled and paid already.
20.
What
then remains is whether the applicant would have a reasonable
prospect of success on the merits or whether there exists a
compelling reason why the appeal should be heard.
21.
As
per the application for leave to appeal, the applicant contends that
the evidence presented before court failed to support the
notion of
the deceased, a married man at the time, having attracted a duty to
support the respondent with whom he had been in an
extra-marital
relationship for the preceding six years prior to his death.
Furthermore, that this court made a finding of the deceased
attracting a duty to support the respondent under circumstances where
he was still married and at no stage had sought or initiated
divorce
proceedings. Furthermore, that these findings so made by this court,
were made without Mrs Steven being joined to the proceedings,
nor
this court taking cognisance of the rights of the minor children of
the deceased being protected.
22.
In
this regard Mr Williams argued that for the deceased to have
undertaken a duty to support a live-in-partner to whom you are not
married when you yourself are a married person, is contentious,
contra bonos mores
and
dilutes a spouse's duty of support. Relying on principles enunciated
both the Volks
[5]
and Paixo
[6]
matters counsel submitted that in the cited decisions there existed
no impediment on the respective appellants to marry their partners.
In Volks the deceased was a widower, before his demise. In Paixo the
deceased had divorced his former wife.
23.
In contrast Mr Fourie on behalf of the
respondent argued that this court's judgment clearly only has a
bearing on the liability
of the respondent's claim as against the
applicant.
24.
Furthermore, it was contended that the
judgment neither negates nor compromises the claim of the surviving
spouse nor the claim
of the minor children. The evidence presented
before this court is clear. Mrs Stevens made an election to merely
institute a claim
for loss of support in her representative capacity
on behalf of the minor children of the deceased and that she had
elected not
to institute a claim in her personal capacity.
25.
My view is supported by the affidavit
obtained from the surviving spouse Mrs Stevens, where she in fact
confirms this position.
In the said affidavit she re iterated
that she will not institute a claim for loss of support as the
surviving spouse of the
deceased, because prior to his death he was
living with the respondent and was in fact supporting the
respondent.
[7]
26.
In turning to the claim instituted by
Mrs. Stevens in respect of the minor children, the merits of the
minor children's claims have
already been settled by the applicant.
27.
It is for the reasons set out above that
Mr Fourie had argued that the judgement of this court does not
negates or compromise the
claim of the surviving spouse or any
potential claim of the minor children. Furthermore, in respect of the
minors' claim, a
quantum
trial
has also been set down for later this year being 23 October 2019.
28.
The arguments as presented by Mr.
Fourie, finds favour with this court.
29.
Before I conclude, one other point
requires consideration. This relates to the pleaded case and
subsequent lack of evidence presented
by the applicant. In response
to the claim instituted by the respondent, the applicant had made an
election to file a bare denial.
[8]
30.
Coupled with the above and of crucial
importance are the admissions made by the applicant during a
pre-trial conference conducted
on 7 November 2018. During the said
pre-trial conference, the applicant
inter
alia
admitted the following:
30.1
that
the deceased was by law responsible to support and/or maintain the
plaintiff;
30.2
that
the deceased and the respondent lived together as husband and wife
for a number of years;
30.3
that
the respondent was reliant on the deceased's maintenance and that the
deceased did in fact maintain and support the respondent.
31.
The bare denial filed by the applicant
and the subsequent admissions made during the pre-trail conference,
cannot simply be ignored
by this court as if it were withdrawn. It
remains part of the pleaded case presented by the applicant.
ORDER
32.
Given the conspectus of reasons alluded
to above, I am therefore not persuaded that the appeal would have a
reasonable prospect
of success or that there is some other compelling
reason as to why the appeal should be heard.
33.
It follows that the application for
leave to appeal falls to be is dismissed with costs.
COLLIS J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Appearances:
Counsel
the Applicant
: Adv. J Williams SC
Attorney
for the Applicant
: Matabane Inc.
Counsel
for the Respondent :
Adv. Fourie
Attorney
for the Respondent :
Liebenberg Attorneys
Dates
of Hearing
: 13 May 2019
Date
of Judgment
: 22 May 2019
[1]
Judgment by Collis J delivered on 23 November 2018
[2]
Respondent' s Opposing Affidavit paragraphs 4.6 and 4.7
[3]
Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited
2017 (6) SA 90
(SCA) at para [26]
[4]
Opposing Affidavit para 11
[5]
Volks N.O v Robinson & Others 2005 (5) BCLR 446 (CC)
[6]
2012 (6) SA 377 (SCA)
[7]
Opposing Affidavit - annexure "TV5"
[8]
Particulars of claim para 7 pg. 7 and Defendant' s plea para 7
pg.11.