Road Accident Fund v Daly (LA50/04 ex 1857/2001) [2004] ZAFSHC 88 (30 September 2004)

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[2004] ZAFSHC 88
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Road Accident Fund v Daly (LA50/04 ex 1857/2001) [2004] ZAFSHC 88 (30 September 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
Nr: LA50/04
(ex 1857/2001
In
the matter between:
ROAD
ACCIDENT FUND
Applicant
and
ANDREW
HUGH ARTHUR DALY
Respondent
_____________________________________________________
CORAM:
RAMPAI,
J
_____________________________________________________
HEARD
ON:
20
AUGUST 2004
_____________________________________________________
DELIVERED
ON:
30
SEPTEMBER 2004
_____________________________________________________
[1] These proceedings
were concerned with an application for leave to appeal. The
applicant who was the defendant in the main action
applies for leave
to appeal against my judgment which was delivered on Thursday 4 March
2004. The applicant wishes to appeal against
numerous adverse
findings I made against the Road Accident Fund.
[2] There are 20 grounds
on which the application for leave to appeal is based. Mr. Camp,
counsel for the applicant contended among
others, that I erred in
holding that:
- That no causal nexus
existed between the
gouge
marks
and the collision;
- That the
black
mark
was an oil residue which originated from one of the vehicles involved
in the collision;
- That the several
exhibits allegedly relating to the blood sample extracted from the
driver of the Renault sedan were handed in with
the consent of
counsel for the defendant;
- That the driver of the
Renault had, on account of the alcohol he had consumed, driven the
sedan in a negligent manner;
- That the Court could
deduce from mr. Bernieri’s evidence that the Renault was driven in
a negligent manner shortly prior to the
accident;
- That the objective
facts militated against the scenario where the Renault was struck by
the Golf while it was travelling in its
correct lane;
- That the evidence of
mr. Badenhorst was preferred over and above that of ms. Grobbelaar;
- That the apportionment
of 70 % to 30 % in favour of the plaintiff against the respondent was
appropriate in the circumstances.
[3] On the strength of
the aforegoing grounds Mr. Camp submits that in the circumstances
there is a reasonable prospect of success
and that another Court may
differently conclude that the plaintiff’s claim ought to have been
dismissed with costs alternatively
that an equal apportionment of the
blame or negligence ought to have been considered appropriate.
[4] The application is
opposed. Mr. Ploos van Amstel, counsel for the respondent contends
that none of the aforegoing grounds of
appeal have any substance. He
contends that there was no reasonable likelihood that another Court
will differ from me on the conclusions
I reached on all the issues
raised. His main submission is that the defendant does not have a
reasonable prospect of success on
appeal. He urges me to refuse
leave to appeal and to direct the defendant to pay the cost of this
application.
[5] When I was presiding
in the original proceedings I did so from the comfort zone of a
middle man. I saw myself in that middle
position as a neutral
mediator in the eyes of the parties, the public and the law. I was
expected and required to be an objective
assessor of the dispute. On
Thursday 4 March 2004 I blew what I thought was to be the final
whistle. Like a referee in a soccer
match I thought I had signalled
the end of the match but it was not to be. I received that message
through the applicant’s application
for leave to appeal. This sort
of judicial relief comes like a storm which dethrones an umpire from
the elevated tower of comfort
on the touchline and draws the umpire
right into the tennis court. The previously neutral umpire has now
lost his via media and
is now in the camp of the successful party.
The leave to appeal sought by the unsuccessful party is a form of
protest by the unsuccessful
party that the decision of the referee is
wrong. It calls upon a Judge to acknowledge that he or she did not
correctly reason out
the judgment. Since it is only human to err
more often than not I am inclined to grant leave to appeal against my
decision. Such
an inclination is not always fair to the party in
whose favour my judgment was.
[6] The invidious
position of a Judge called upon to consider whether to grant or not
to grant leave to appeal was eloquently articulated
by Centlivres JA
in
REX
v BALOI
1949
(1) SA 523
AD on p. 524 – 525:
“
We
are aware that this Court is able to apply the proper test with
greater ease than the trial Judge. For the trial Judge must, in
the
nature of things, find it somewhat difficult to look at the matter
from a purely objective standpoint; he has a natural reluctance
to
say that his own judgment is so indubitably correct that the Judges
of appeal will concur therein.”
Brink
J appreciated the difficulty. He expressed himself as follows in the
case of
AFRIKAANSE
PERS BEPERK v OLIVIER
1949
(2) SA 890
(OPD) on p. 894:
“
Dit
is geen benydenwaardige taak vir ‘n Regter om oor die juistheid van
‘n uitspraak waarmee hy saamgestem het te oordeel nie
– hy sal
soos Appèlregter Centlivres in
BALOI
se saak opmerk, ‘n
natuurlike huiwering hê om te sê dat sy uitspraak so ontwyfelbaar
juis is dat die Appèlhof nie van hom sal
verskil nie.”
[7] Ogilvie Thompson AJA
echoed similar sentiments about half a century ago. He said:
“
From
the very nature of things it is always somewhat invidious for a Judge
to have to determine whether a judgment which he has himself
given be
considered by a higher Court to be wrong; but that is a duty imposed
by the Legislature upon Judges in both civil and criminal
matters”
(
vide
REX v
MULLER
1957 (4) SA 642
(AD) on p. 645.)
This passage was quoted
with approval by Diemont JA in
S
v
SIKHOSANA
1980 (4) SA 559
AD.
I am in complete
agreement with the aforegoing sentiments by the four distinguished
Judges. Today, more than fifty years later, we
are still grappling
with precisely the same difficulty. I may add that this difficulty
is here to stay. Seemingly it will never
go away. It is inherently
human in nature.
[8] Over many years the
requisite for leave to appeal has been held to be a reasonable
prospect of success. For instance see
REX
v NXUMALO
1939 AD 580
on p. 581;
REX
v
NGUBANE
AND OTHERS
1945 AD 185
on p. 187;
REX
v BALOI
1949 (1) SA 523
AD; HAINE v PODLASHUC &
NICOLSON
1933
AD 104
;
S
v SIKHOSANA
1980 (4) SA 559
AD. This then is the basic test. The basic rule
laid down by the Appellate Division is that leave to appeal should
not be granted
unless the applicant satisfied the trial court
concerned that he has a reasonable prospect of success on appeal.
[9] It must be readily
appreciated that the basic rule is formulated in the negative and not
positive mode. This was done deliberately.
It was done on purpose
in order to convey the message that decisions of our courts of law,
especially those of the high courts,
must generally be regarded as
correct unless the contrary can be shown; that it is incumbent upon
the applicant to discharge the
formidable duty of satisfying the
trial court that its decision is probably wrong, that the trial court
should not readily succumb
to the temptation of believing on flimsy
grounds that its judgment is wrong and that it is neither in the
interest of the victorious
litigant nor those of the general public
to have the wheels of justice slowed down by appeals which are devoid
of substantive merits.
[10] Quite often when one
is relatively a novice on the bench the temptation becomes
irresistible to simply let a matter go on appeal
so that one can see
what the full bench or for that matter a higher tribunal with
appellate competency will decide. That however
is not the proper
test to be applied. Such a temptation, however seductive, must be
avoided. The test laid down in
REX
v NGUBANE
supra
remains the only proper criterion that should always be applied in
determining whether or not to grant leave to appeal.
“
In
all the cases, no matter what form of words was used, the same thing
was, in my opinion, intended to be conveyed, namely, that
it is for
the applicant for special leave to satisfy the Court that, if that
leave be granted, he has a reasonable prospect of success
on appeal.
That was the test applied, for instance, in
BEZUIDENHOUT
v DIPENAAR
(1943, A.D.
at p. 195), and it is, in my view, the correct one.”
(per Davies AJA in
R
v NGUBANE
1945 AD 185
on p. 187.
The dominant issue of the
enquiry is whether, if leave to appeal is granted, the applicant will
have a reasonable prospect of success
on appeal. If the answer is
affirmative, leave to appeal must be granted. If the answer is
negative, leave to appeal must be refused.
[11] In the case of
S
v SHABALALA
1966 (2) SA 297
AD on p. 299 Rumpff JA gave an instructive exposition
of the basic normative rule:
“
Alleen
dan wanneer die Verhoorregter tot ‘n weloorwoë konkulsie kom dat
daar gronde is waarop die Hof van Appèl tot ‘n ander
afleiding van
die feite kan kom as wat hy gekom het, en daar dus ‘n redelike
moontlikheid van sukses vir die applikant bestaan,
behoort verlof
toegestaan te word. Bestaan daardie moontlikheid, behoort verlof ook
toegestaan te word sonder huiwering of teësin.”
[12] Our caselaw shows
that in grappling with the uneasy task of deciding whether or not
leave to appeal should be granted certain
considerations have weighed
significantly with the Supreme Court of Appeal or Appellate Division,
as you wish. I might mention some
of them.
- That leave to appeal is
not to be had for the mere asking. The legislator has not granted a
carte blanche licence to appeal as
of right to very vanquished
litigant
vide
REX v
BALOI
,
supra
on p. 523 – 524.
“
Die
vergunning van verlof om in hoër beroep te gaan is egter geen blote
formaliteit nie.”
(Per Brink J in
AFRIKAANSE
PERS BEPERK v OLIVIER
1949 (2) SA 894.)
- That a successful
litigant should not be subjected to all the procedural disadvantages
of the appeal.
“
Die
hof moet sig tevrede stel dat daar ‘n redelike vooruitsig is dat
die appèl sal slaag. Dit is onbillik teenoor ‘n party in
wie se
guns ‘n uitspraak gegee is deur ‘n hoer hof om hom te onderwerp
aan al die nadele van ‘n appèl, indien sy teenparty
geen redelike
kans op sukses het nie”
(Per Brink J in
AFRIKAANSE
PERS BEPERK v OLIVIER
supra
on p. 894.)
- That it should not be
overlooked that even if leave to appeal is refused, another grievance
avenue is still open to the applicant
to petition the SCA President
for leave to appeal. (
Vide
R v
MULLER
1957 (4) SA 262
AD per Ogilvie Thompson JA.)
- That the amount of the
claim in issue in comparison with the tremendous costs already
incurred in connection with such a claim should
not be relatively
small. (
vide
VOLLENHOVEN
v HOENSON & MILLS
1970
(2) SA 368
(CPD) at 372H – 373B per Van Wyk J.)
- That it is in the
public interest and in the interest of the successful litigant to
have litigation finalized as speedily as possible.
(
vide
VOLLENHOVEN
v HOENSON & MILLS
,
supra
at 373 B – C.)
- That the gravity of the
adverse consequences of the judgment to the applicant should not
influence the trial judge to relax the
rule of a reasonable prospect.
These then are some
additional considerations which underpin the basic rule which demands
that leave to appeal should be refused unless
a reasonable prospect
of success exists if the matter is let to go on appeal.
[13] It will now be
readily appreciated that the ground of leave of appeal is, so to
speak, an exception to the basic rule hence the
description “special
leave”. Where such leave to appeal is granted the reasons have to
be given for the benefit of the higher
tribunal whose duty it will be
to here the appeal. (
vide
S
v SIKHOSANA
1980 (4) SA 559
AD at 562 A per Diemont JA. )
If there are several
grounds of appeal as in the instant case it is expected of the trial
court to indicate those specific grounds
in respect of which leave to
appeal has been granted. In an appropriate case leave to appeal may
be limited to some particular grounds
by discarding other grounds in
respect of which a reasonable prospect of success on appeal does not
exist. (
vide
R v
JANTJIES
1958 (2) SA 273
AD at 275 per Schreiner JA and
S
v
SIKHOSANA
supra
at 363 B.)
[14] The first five
grounds of appeal as listed in the applicant’s Notice of
Application for Leave to Appeal deal with the issue
of the gouge
marks on the northern lane. I deem it necessary to quote only two
passages from the judgment challenged relating to
the gouge marks:
“
Now
I turn to the gouge marks. Grobbelaar’s evidence was that he did a
site inspection on Thursday 20 November 2003. On the northern
lane
he found two scrape marks. Those two scrape marks were identical to
the two marks which were depicted on photograph “A1”.
He came to
the conclusion that it was probable the gouge marks he found on the
tarmac on the scene
indicated the area of
impact between the two sedans. He advocated the proposition that the
gouge marks were probably caused by the
damaged metal components of
either or both vehicles such as suspension, chassis, engine or
gearbox which would have been forced downwards
at the moment of
impact to leave such gouge marks on the surface of the road. The
forced downward displacement was due to the tremendous
forces
generated between the vehicles at impact.
(
vide
par. 59
on p.46)
I have some difficulty with this
evidence. The first problem was that the alleged gouge marks
themselves were so tiny that they were
almost invisible. The witness
himself acknowledged in his chief evidence that it was very difficult
to see those marks. The second
problem was that virtually nobody, I
mean no other witness including the three police officers, Nortjie,
Van Gorkom and Du Plessis,
noticed such marks. The third critic is
that there is no evidence that any of the aforesaid vehicle
components were so damaged,
forced downwards and scraped the tarmac
as the witness assumed. My finding, therefore, is that I can find no
casual nexus whatsoever
between those minute scratches and the
accident I am here dealing with. That being the case, it follows
without saying that such
marks have to be disregarded in this complex
search for the probable
site, area or point of impact. The witness’ proposition is
juridically invalid and untenable.”
(
vide
par. 50 on p. 42)
[15] The next four
grounds of appeal as listed in the same notice deal with the issue of
the black mark on the northern lane. Here
I have selected only three
passages from the judgment challenged in connection with the black
marks:
“
Badenhorst
described the black mark on the southern lane as a definite oil
spillage. During cross-examination, however, she conceded
that it
could have been a fluid of some kind, for example brake fluid
spillage. But she denied the suggestion that the black mark
could
have been bitumen seepage from the tar. She expressed the view that
bitumen does not evaporate or disappear. It can hold
on for as long
as six years. Her conclusion concerning the black mark on the
southern lane was that it was an oil spillage and that
it probably
originated from this collision.
(
vide
par. 63 on p. 50)
Grobbelaar disagreed with Badenhorst
about the nature of the black mark on the southern lane. In his
opinion it was improbable that
the black mark was an oil spillage
which could be associated with impact between the vehicles involved
in this accident. In the
first place if the oil came from the
damaged gearbox of either of the vehicles the shape of the black mark
would have been an aerial
splatter of oil and not a circular patch of
oil. In the second place such visible splash deposit would have a
small trail of oil
droplets leading to the final rest position of the
vehicle with a damaged gearbox and not just a nicely defined single
patch of oil.
In the third place the oil patch deposited at impact
would have exhibited some directional properties and not have an
almost circular
shape. He therefore disagreed with Badenhorst that
the black mark could be related to this accident. In his opinion the
black mark
also be the bleeding of the tar, the so-called bitumen.
(
vide
par. 64 on p. 50)
In an attempt to find the probable
source of the black mark, it must be remembered that no real forensic
test was carried out in a
science laboratory to ascertain whether the
black mark was caused by an oil spillage from a car or bitumen
bleeding from the tarmac
itself; that a trail of a few smaller black
dots imprinted on the surface of the road in a westerly direction
from the original black
mark can be seen; that those smaller black
dots are approximately of equal distance apart; that the black dots
gradually fade away
the further one moves away from their original
source; that they are in a straight line almost parallel to the white
barrier line;
that they were apparently brought about by the wheel of
a vehicle which had uplifted the liquid substance from the original
spot
of the black mark and repeatedly imprinted it on the surface of
the road at regular intervals as it was rotating; that the
defendant’s
two witnesses conceded that the indications were that
the black mark could be an oil mark; that there was no concession on
the plaintiff’s
side that the black mark could be tar bleeding. The
concessions on the defendant’s side fortified Badenhorst’s
conclusion that
the black mark was probably not bitumen but one kind
of fluid or another. The black mark in question, is a crucial item
of real
evidence or physical evidence which provided a factual
foundation of Badenhorst’s view. On the strength of the available
evidence,
I find Badenhorst’s view preferable to Grobbelaar’s
view on the preponderance of probabilitie
s.”
(
vide
par. 65 on p. 51)
[16] In the aforegoing
five paragraphs I have made some rather strong findings on
credibility. I brought my reasoning to bear upon
the issues. I want
to believe that the end product of my objective reasoning or
analytical evaluation of those cardinal issues was
correct. The
strong language I chose evidences my own faith in the judgment I
handed down. Difficult though it was, I did subsequently
try to
disabuse my mind of the reality that I had previously found in favour
of the respondent in other words the plaintiff. In
addition to both
questions of law or issues of fact raised in these proceedings I have
directed myself specifically to the critical
enquiry of whether there
is a reasonable prospect of success on appeal if I were to allow the
matter to proceed to a higher tribunal
of law for the reconsideration
of the judgment currently under attack –
vide
REX
v KUZWAYO
1949 (3) SA 761
A at 765. I was at pains to re-evaluate my judgment.
Having endeavoured to adopt an objective stance, and having regard
to all
the circumstances of the case, all the grounds of the appeal
and all the valued submissions by the two counsels, I can only come
to the modest conclusion that the applicant has failed to satisfy me
that if leave to appeal be granted it has a reasonable prospects
of
success on appeal.
[17] Accordingly
I make the following order:
[17.1] The application
for leave to appeal is refused.
[17.2] The
applicant is directed to pay the costs hereof.
________________
M.H. RAMPAI, J
On behalf of
Applicant:
Adv.
A. Camp
Instructed by
Webbers
BLOEMFONTEIN
On behalf of Respondent:
Adv.
C. Ploos van Amstel SC
Instructed by
Honey & Partners
BLOEMFONTEIN
/ec