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[2019] ZAFSHC 62
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Ferriers and Another v Wesrup Beleggings CC (1264/2012) [2019] ZAFSHC 62 (30 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates:
NO
Case
number: 1264/2012
In
the matter between:
D
KUHN FERRIERS
1st Applicant
G
E GELDENHUYS
2 nd Applicant
and
WESRUP
BELEGGINGS
CC
Respondent
In
re
:
WESRUP
BELEGGINGS CC
Plaintiff
and
D
KUHN
FERRIERS
1st Defendant
G
E GELDENHUYS
2nd Defendant
CORAM:
DAFFUE, J
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
30 MAY 2019
[1] The
applicants in this application for leave to appeal are the
unsuccessful defendants in
a delictual claim based on negligence
arising from a motor vehicle collision that occurred as long ago as
10 May 2010. The
application is opposed by the successful
plaintiff who is cited as the respondent herein.
[2] On
3 August 2017 I delivered judgment after having separated merits and
quantum
on the basis as set out in paragraph [12] of the
judgment. I held the two applicants liable, jointly and
severally, for 100%
of the respondent’s damages to be proven or
agreed upon as is apparent from the orders contained in paragraph
[37] of the
judgment.
[3] On
3 August 2018 the parties settled the
quantum
of respondent’s
claim in the amount of R590 866.05 and agreed that payment be
held over pending an appeal of the judgment
of 3 August 2017.
[4] The
application for leave to appeal was filed on 19 September 2018.
Nothing was said
in the application of the fact that the parties
settled the
quantum
on 3 August 2018 only and as a result I
insisted on a condonation application which was received on 28
February 2019. Having
read the application which is not
opposed, I am satisfied that condonation should be granted and this
is so ordered.
[5] By
agreement with the parties, heads of argument were to be filed before
the end of the first
term, but applicants’ counsel failed to do
so as he had lost all his notes and wanted the record to be
transcribed.
Problems were apparently experienced in that
regard. It has never been a requirement that an applicant for
leave to appeal
must file the record of proceedings. In any
event, applicants filed a detailed application for leave to appeal,
dealing with
all aspects that could possibly be dealt with.
Consequently I insisted that applicants’ heads be filed on or
before
15 May 2019 which was duly done. Respondent’s
heads have been filed on 25 March 2019. The parties agreed that
I may consider the application in chambers on receipt of the heads of
argument.
[6]
Section 17(1) of the
Superior Court Act,
10 of 2013 deals with
applications for leave to appeal. The section reads as
follows:
“
17.
(1) Leave to appeal may only be given 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 conflicting judgments on the
matter
under consideration;
(b) …
(c) …”
(emphasis added)
[7]
The bar for granting leave to appeal has now been raised.
Previously the test was whether there was
a reasonable prospect that
another court might come to a different conclusion. Now, the
use of the word “would”indicates
a measure of certainty
that another court will differ from the court whose judgment is
sought to be appealed against. See:
Acting National Director
of Public Prosecutions and Others v Democratic Alliance (19577/09)
[2016] ZAGPPHC 489 (24 June 2016). See also
Matoto v
Free State Gambling and Liquor Authority and Another,
case no
4629/2015, an unreported judgment of this Division delivered on 8
June 2017 at paragraph [5],
Erasmus,Superior Court Practice,
vol
1 at A2-55 and
Mont Chevaux Trust v Tina Goosen
LCC 14R/2014
(an unreported judgment of the Land Claims Court)
.
[8]
I do not intend to deal with any of the grounds of appeal in any
detail as I believe the judgment speaks
for itself. I shall
briefly refer to pertinent issues.
[9]
It is contended that respondent did not prove
locus standi
to
sue for damages. I referred in paragraph [9] of the judgment to
what was common cause on the pleadings. This must
be read with
the issues in dispute considered in paragraph [10] as well as what
was recorded in paragraph [11] together with the
evaluation of the
evidence and findings in paragraphs [20] and [21]. See also
Smit v Saipem
1974 (4) SA 121
(A) confirmed
in
Refrigerated Transport (Edms) Bpk v Mainline Carriers
1983
(3) SA 121
(A) at 125B – H.
[10] I dealt
with the versions of the two drivers and the expert witness, Mr
Grobbelaar, in paragraphs [22] – [32].
I accepted that it
would be difficult to remember much detail bearing in mind that the
collision occurred seven years earlier.
However, respondent’s
driver not only marked the area where the collision occurred with a
plastic bottle attached to the
adjacent fence, but was able to point
the area out to Mr Grobbelaar two and a half years later.
Contrary to the version of
respondent’s driver, second
applicant was quite clueless as to where the collision occurred and
in his evidence he contradicted
the respondent’s version as
pleaded which was admitted in the plea.
[11] In
paragraph [26] I pointed out that 2nd appellant made a poor
impression on me and I explained in that as well
as the next
paragraph why I came to that conclusion. Contrary thereto I
held respondent’s driver to be a credible witness.
See my
conclusions from paragraph [33] onwards. It is also reiterated
that the probabilities were analysed in paragraph [25]
of the
judgment and I found these to favour respondent’s version.
[12]
Appellants’ criticism of Mr Grobbelaar’s opinion is
without merit. He made a good impression
on the court and
although he was not in a position to inspect the damaged vehicles, he
observed photograph of the damaged vehicles
and attended the scene
where marks were observed that tied in with the version of
respondent’s driver.
[13] I
am not satisfied that the appeal would have a reasonable prospect of
success. Consequently, I have not
been persuaded that the
application for leave to appeal is meritorious, falling within the
parameters set out in s 17 of the Superior
Court Act.
[14]
Therefore the following order is made:
The application for leave to appeal
is dismissed with costs.
J
P DAFFUE, J
On
behalf of Applicants : Adv P Haasbroek
Instructed
by
:
Botha & Sutherland
c/o Jacobs Fourie
Attorneys
Bloemfontein
On
behalf of Respondent :
Adv M Naudé
Instructed
by
: Horn & Van Rensburg
Bloemfontein