About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2024
>>
[2024] ZAECMHC 41
|
|
N.M and Another v Maziya General Construction (4538/2019) [2024] ZAECMHC 41 (27 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MTHATHA]
Case
No:4538/2019
Date heard: 23/5/2024.
Date
delivered:27 /5/2024.
In the matter of:
N[…]
M[...]
1
ST
APPLICANT
N[…] M[...]
O.B.O
A[…]
M[...]
2
ND
APPLICANT
And
MAZIYA GENERAL
CONSTRUCTION
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail. The date and
time
for hand-down is deemed to be
09
H
30
on
27 May
2024.
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
MJALI J:
[1]
This is an opposed application for leave to appeal
in terms of section 17(1)(a) of the Superior Act Number 10 of 2013 to
the full
bench of this division against the whole of my judgment
delivered on 27 March 2024 in which I dismissed the plaintiffs’
claim
for damages arising from the drowning of her six-year-old minor
son whilst swimming in a hole some distance from his home.
[2]
Apart
from the criticism levelled at the court’s remark that the
particulars of claim were not a model of clarity, what can
be gleaned
from the applicants’ notice of appeal as well as its heads of
argument
[1]
as the basis of the
challenge against the judgment and order is broadly that the court
erred on facts and law. On the facts the
criticism is that the court
erred in rejecting the plaintiff’s evidence which was
corroborated by the head woman that the
hole in which the minor child
died was dug by the defendant. Mr Mkongozeli who appeared for the
applicants argued that the evidence
led in support of the plaintiffs’
claim ought to have been accepted especially in the light of the fact
that the defendant
flew all the way from Johannesburg to visit the
scene, apologised to the applicant and contributed to the funeral
expenses. He
asked rhetorically as to why it acted in that manner if
it had not done anything wrong. Such behaviour, according to Mr
Mkhongozeli
amounted to an unequivocal admission of liability on the
part of the defendant. As such the applicant contends that the court
erred
in finding that there was no proof that the hole in which the
applicant’s son drowned was dug by the respondent.
[3]
On the question of law, what can be gleaned from
the heads of argument is that the court erred in not finding a causal
connection
between the drowning of the plaintiff’s minor child
and the failure of the defendant to safeguard the area when in the
applicant’s
view, the evidence proved that it is the respondent
that dug that hole. The confusion as regards the alleged omission is
whether
it is based on common law or failure to comply with the
provisions of the
Occupational Health and Safety Act 85 of 1993
as
the particulars of claim vacillates between the two and not in the
alternative. In Mr Mkhongozeli’s view, the court erred
in its
pronunciation that the particulars of claim are not a model of
clarity as the defendant had not filed any exception to the
particulars of claim.
[4]
The application for leave to appeal is opposed by
the respondent on the basis that there are no prospects of success
for the proposed
appeal.
[5]
The law when it comes to a consideration of
whether or not leave to appeal ought to be granted is well settled.
Section 17(1) of
the Superior Courts Act governs applications for
leave to appeal and provides that leave to appeal may only be granted
where the
judge or judges concerned are of opinion that the appeal
would have reasonable prospects of success or there is some other
compelling
reason why the appeal should be heard, including
conflicting judgments on the matter under consideration. In regard to
the question
of reasonable prospect of success, the SCA remarked as
follows:
“
Leave
to appeal should be granted only where there is a sound rational
basis for the conclusion that there are prospects of success
on
appeal”.
[2]
[6]
The sole question to be considered in such an
application is whether there is a sound rational basis that another
court would come
to a different conclusion on the same facts. The
prospects of success must not be remote but there must exist a
reasonable chance
of succeeding.
[7]
In a
consideration of an application of this nature, I am placed in
position that although I was satisfied that the order I granted
and
reasons thereof were sound, I must now reflect dispassionately upon
my judgment and decide whether there are any prospects
of success on
appeal. At this stage I am not called upon to adjudicate upon the
appeal itself. Commenting on the difficulties inherent
in the nature
of this application Ogilivie Thompson AJA
[3]
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 may 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. As regards the latter, difficult though it may be
for a trial Judge to disabuse his mind of the fact
that he has
himself found the Crown case to be proved beyond reasonable doubt, he
must, both in relation to questions of fact and
of law, direct
himself specifically to the enquiry of ‘whether there is a
reasonable prospect that the Judges of Appeal will
take a different
view’.
[8]
I have in my judgment extensively dealt with the
evidence led in support of the plaintiffs’ claim and the issue
of who dug
the hole in which the drowning took place. Apart from the
mere allegations that the respondent construction company excavated
in
that area, the witnesses could not deny that there was another
construction company that harvested soil in that area prior to the
defendant taking the over construction of the school. They also could
not deny that the respondent dug in a different site that
was fenced
and access controlled. Both witnesses were in no position to deny
that that hole was already in existence when the respondent
took over
the construction of the school. They both sought to assign blame on
the respondent on the fact that it contributed to
the funeral
expenses, an issue that was in my view sufficiently explained by the
respondent. Without establishing that it is the
respondent who dug
the hole, the question of negligence on its part did not arise.
[9]
Having carefully listened to and given the
submissions made by both counsel some careful consideration I have
not been persuaded
to think that another court would find differently
in this matter. I also cannot any compelling reason warranting the
hearing of
this matter by the appeal court.
[10]
On the issue of costs. The general rule is that
costs must follow the event. There is no reason to deviate therefrom.
In the result
10.1
The application for leave to appeal is
dismissed with costs.
10.2
10.2 The applicant shall pay the costs of this
application including those that are consequent upon the employment
of two counsel
where so employed.
GNZ MJALI
JUDGE OF THE HIGH
COURT
On
behalf of the Applicant
Mr.
Mkhongozeli
Instructed
by
Messers
Mkhongozeli Inc.
Hn.mkhongozeliattorneys@gmail.com
On
behalf of the Respondent
Adv.
J. Moller
janmoller@lawcircle.co.za
Instructed
by
Van
der Bilt Attorneys
albert@vanderbilt.co.za
[1]
Which
documents themselves are not a model of clarity.
[2]
Four
Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SASA 451
(SCA) at par [34] with reference to S v Smith
2012 (1) SACR 567
(SCA) par [7].
[3]
R v
Muller
1957 (4) SA 642
AD at page 646 paragraph E-G.