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[2015] ZAKZDHC 71
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Periamthambi v Jessica Gounden t/a Jessica Gounden and Associates (8590/2011) [2015] ZAKZDHC 71 (9 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
Case no: 8590/2011
DATE: 09 SEPTEMBER 2015
In the matter between:
TITUS
PERIAMTHAMBI
..........................................................................................................
Plaintiff
And
JESSICA GOUNDEN trading as
JESSICA GOUNDEN AND
ASSOCIATES
...........................................................................
Defendant
Coram: JEFFREY AJ
Heard: 8 September 2015
Delivered: 9 September 2015
Summary: Practice – Stated case
– Application for leave to appeal – Parties bound by the
agreed facts and inferences
may not be drawn on a wholly imponderable
foundation nor may extraneous facts to those agreed upon in the
stated case be introduced
on appeal – Uniform Rule 33 and s 17
of Act 10 of 2013
JUDGMENT
Jeffrey AJ
[1] This is an application for leave to
appeal against my judgment that was delivered on 26 May 2015. I will
continue to refer
to the parties as the plaintiff and respondent
respectively.
[2] The matter came before me on 18 May
2015 as a stated case in terms of Uniform Rule 33. On the facts that
were agreed upon by
the parties I found, for the reasons stated in my
judgment, that the amount of plaintiff’s claim as against the
Road Accident
Fund, as at the date of the defendant’s agreed
breach of her mandate as an attorney when she failed to lodge the
plaintiff’s
claim timeously, would have been limited to the sum
of R25 000.00, notwithstanding the decision of the Constitutional
Court in
Mvumvu and others v The Minister of Transport and another
2011 (2) SA 473
(CC) and the provisions of the
Road Accident Fund
(Transitional Provisions) Act, No. 15 of 2012
.
[3] The plaintiff now seeks leave to
appeal against the whole of my judgment to the High Court of South
Africa, KwaZulu-Natal Division,
Pietermaritzburg, on the following
grounds:
“(a) The Court erred in finding
that if the defendant has performed in terms of her mandate, the
absence of agreement, an
inference could not be drawn on the stated
case that the plaintiff’s matter would not have been finally
determined by settlement
or judgment when the Transitional Act
commenced on 13 February 2013.
(b) The Court erred in finding that in
the absence of any agreement between the parties regarding the
seriousness of the plaintiff’s
injuries, the provisions of the
Transitional Act would not have applied for the following reasons:
(i) at the pre-trial conference, the
parties agreed that the matter would proceed on the issue of
liability;
(ii) accordingly whilst the plaintiff
had obtained expert reports regarding the nature and extent of the
plaintiff’s injuries
in terms of the provisions of Rule 36(9),
the plaintiff had not obtained such support.
(iii) the parties as at the date of
this hearing on the issue of liability would therefore not have been
in a position to agree
on the seriousness of the plaintiff’s
injuries in the stated case.
(c) The Court accordingly erred in
finding at the liability stage that because the parties had not
agreed that the plaintiff suffered
serious injuries his claim for
compensation would be limited to R25 000.00 notwithstanding the
decision of the Constitutional Court
in Mvumvu and others v The
Minister of Transport and another
2011 (2) SA 473
(CC) and the
provisions of the
Road Accident Fund (Transitional Provisions) Act,
No. 15 of 2012
.”
[4] Sub-section 17(1) of the
Superior
Courts Act, No. 10 of 2013
, sets out the approach of the Court in
applications for leave to appeal:
“(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) the decision sought on appeal does
not fall within the ambit of
section 16
(2) (a); and
(c) where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just and
prompt resolution of the real issues between
the parties leave to appeal may only be given where the judge
concerned is of the
opinion that an appeal would have a reasonable
prospect of success or that there is some other compelling reason why
the appeal
should be heard.”
[5] I am of the opinion that the
proposed appeal does not have a reasonable prospect of success for
the following reasons.
[6] First, where the parties have
agreed a stated case, it is the duty of the Court to come to a
conclusion on the case submitted
to it. Both the parties and the
Court are bound by the agreed facts as set out in the stated case.
While Uniform
Rule 33(3)
does provide that 'the court may draw any
inference of fact or of law from the facts and documents placed
before it as if proved
at a trial', the Court may not stray beyond
those parameters: see Nedbank Ltd v Pestana
[2008] ZASCA 140
;
2009 (2) SA 189
(SCA)
194C-F at para [10]. It would, in my view, undoubtedly be straying
beyond those parameters to have drawn the inference that
the
plaintiff suggests in paragraph (a) of his grounds of appeal supra,
ought to have been drawn. To draw such an inference would
have
entailed the Court basing its decision on a wholly imponderable
foundation. That, of course, would have been unsound.
[7] Secondly, it is impermissible for
the plaintiff now to seek to introduce a proviso into the stated
case, namely, that the extent
of the plaintiff’s injuries was
still an issue to be determined. As I have said, both the parties
and the Court are bound
by the agreed facts in the stated case and
this proviso was not recorded in the parties’ statement nor was
I informed of
this at the time when the stated case was argued. If
it was so recorded, or I was so informed, this would have taken to
matter
into the realms of an abstract or academic enquiry and I would
have declined to hear it. After all, the Courts exist for the
determination
of concrete enquiries and not to pronounce upon
abstract questions or to advise upon differing contentions, however
important:
see Geldenhuys and Neethling v Beuthin
1918 AD 426
at 44.
There was no application made by the parties to separate the issues
of liability and quantum. Moreover, I was not informed
by the
parties when the stated case was argued that the stated case
concerned the resolution of the issue of liability. The respondent
had expressly conceded liability in the stated case. The stated case
was concerned with the issue of quantum and, specifically,
whether or
not any damages that the plaintiff may prove would be limited by the
statutory cap of R25 000.00.
[8] I am also of the opinion that there
is no other compelling reason why the proposed appeal should be
heard. Counsel have not
drawn my attention to any conflicting
judgments on the matter under consideration. Nor am I aware of any.
[9] In the result, the application for
leave to appeal is refused with costs.
A G JEFFREY
ACTING JUDGE
Appearances
Counsel for the plaintiff : Ms R
Singh
Plaintiff’s attorneys : Nolan
Naicker & Co
Ref. NN/CC/P1522
Tel. 031 400 5983/4
Counsel for the defendant : Mr I
Pillay
Defendant’s attorneys :
Woodhead Bigby Inc.
Ref. Mr R C McDonald
14G7530A3
Tel. 031 360 9700