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[2024] ZAFSHC 257
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Member of the Executive Council: Police, Roads & Transport, Free State Province v Mphuthi (4143/2018) [2024] ZAFSHC 257 (23 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no:
4143/2018
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL:
POLICE,
ROADS & TRANSPORT, FREE STATE
PROVINCE
And
SAMUEL
MPHUTHI
Applicant
Respondent
In
re:
SAMUEL
MPHUTHI
and
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
THABO
MAFUTSANYANE DISTRICT
MUNICIPALITY
MEMBER
OF THE EXECUTIVE COUNCIL:
POLICE,
ROADS & TRANSPORT, FREE STATE
PROVINCE
Plaintiff
First
Defendant
Second
Defendant
Third
Defendant
Coram:
Cronje AJ
Heard:
6 June 2024
Delivered:
23 August 2024
Summary:
Application for leave to appeal. Motor vehicle accident.
Negligence apportioned – whether the Supreme Court of Appeal
restated
the test on applications for leave to Appeal in
Ramakatsa
and Others v African National Congress and Another
[2021]
ZASCA 31.
ORDER
1
.
The application for leave to appeal is dismissed.
2.
The Applicant pays the costs of the application
.
JUDGMENT
Cronje
AJ
Introduction
[1]
The Plaintiff instituted action against the Third Defendant pursuant
to a vehicle accident that
took place on 29 August 2005. I heard the
evidence in respect of the merits (quantum to be adjudicated later)
and found that:
‘
1.1
Both the Plaintiff and the Third Defendant were negligent in causing
the accident.
1.2
Negligence of 20% is attributed to the Plaintiff and 80% to the
Third Defendant.
1.3
Mr Boshanki Ernest Lelilo is declared a necessary witness.
1.4
Third Defendant is liable for payment of the Plaintiff’s costs
in respect of the merits.
Costs are not apportioned.’
[2]
Dissatisfied with the Judgment, the Third Defendant applied for leave
to appeal against the whole
of my order.
The
test for leave to appeal
[3]
The test on whether another Court would come to a different
conclusion is trite. Ms Wright,
who appeared for the Applicant,
however, referred to
Ramakatsa
and Others v African National Congress and Another
[1]
(
Ramakatsa
)
,
where
the Supreme Court of Appeal (SCA) held:
‘
[10]
Turning the focus to the relevant provisions of the Superior Courts
Act (the SC Act), leave to
appeal may only be granted where the
judges concerned are of the opinion that the appeal
would
have a reasonable prospect of success
or there are
compelling reasons
which exist why the appeal should be heard such as the interests of
justice. This Court in
Caratco
, concerning
the provisions of s 17(1)
(a)
(ii)
of the SC Act pointed out that if the court is unpersuaded that there
are prospects of success, it must still enquire into
whether there is
a compelling reason to entertain the appeal.
Compelling
reason would of course include an important question of law or a
discreet issue of public importance that will have an
effect on
future disputes
.
However,
this Court correctly added that “but here too the merits remain
vitally important and are often decisive”
. I
am mindful of the decisions at high court level debating whether the
use of the word “would” as opposed to
“could”
possibly means that the threshold for granting the appeal has been
raised.
If a reasonable prospect of
success is established, leave to appeal should be granted. Similarly,
if there are some other compelling
reasons why the appeal should be
heard, leave to appeal should be granted
.
The test of reasonable prospects of
success postulates a dispassionate decision based on the facts and
the law that a court of appeal
could reasonably arrive at a
conclusion different to that of the trial court. In other words, the
appellants in this matter need
to convince this Court on proper
grounds that they have prospects of success on appeal. Those
prospects of success must not be
remote, but there must exist a
reasonable chance of succeeding
. A
sound rational basis for the conclusion that there are prospects of
success must be shown to exist.’ (Footnotes omitted
and my
emphasis added.)
[4]
Although a reading of the relevant part in the judgment leaves the
impression that the SCA intended
to amend the test for leave to
appeal as found in section 17(1)
(a)
(i)
and (ii) of the Superior Courts Act,
[2]
I do not believe that the test as to whether another Court would
reach a different conclusion is intended. In an attempt to prevent
a
flood of applications, the Legislature probably deemed it wise to
lift the bar. The SCA stated that the appellants needed to
convince
the SCA on proper grounds that they had prospects of success on
appeal. Those prospects of success must not be remote,
but a
reasonable chance of succeeding must exist. Reference was made to
Ramakatsa
in
Manaka
v The University of the Witwatersrand
[3]
where the Court held:
‘
The
ratio in
Ramakatsa
simply followed
S
v Smith
2012 (1) SACR 567
(SCA),
[2011] ZASCA 15
, in which Plasket AJA
(Cloete JA and Maya JA concurring), held as follows at para 7: “What
the test of reasonable prospects
of success postulates is a
dispassionate decision, based on the facts and the law that the Court
of Appeal could reasonably arrive
at a conclusion different to that
of the trial court. In order to succeed, therefore, the appellant
must convince this Court on
proper grounds that he has prospects of
success on appeal and that those prospects are not remote, but have a
realistic chance
of succeeding. More is required to be established
than that there is a mere possibility of success. That the case is
arguable on
appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational basis for
the conclusion
that there are prospects of success on appeal.”
In
Mont
Chevaux Trust v Tina Goosen
,
the Land Claims Court held (in an
obiter
dictum
)
that the wording of this subsection raised the bar of the test that
now has to be applied to the merits of the proposed appeal
before
leave should be granted. I agree with that view, which has also now
been endorsed by the SCA in an unreported judgment in
Notshokovu
v S
.
In that matter the SCA remarked that an appellant now faces a higher
and a more stringent threshold, in terms of the Superior
Court Act 10
of 2013 compared to that under the provisions of the repealed Supreme
Court Act 59 of 1959. The applicable legal principle
as enunciated in
Mont
Chevaux
has also now been endorsed by the Full Court of the Gauteng Division
of the High Court in Pretoria in
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance In Re: Democratic Alliance v Acting National Director
of
Public Prosecutions and Others
.’
[4]
(Footnotes omitted)
[5]
The summary of the grounds of appeal later herein should not be
interpreted as a failure to consider
the import of all the grounds.
It is not the purpose of this judgment to expand on the findings but
to establish whether the test
for granting leave is satisfied.
The
grounds of appeal
[6]
It is stated that the test for negligence was incorrectly applied;
more specifically, that reasonableness
forms part of determining
negligence. The prevailing circumstances were not on account of any
alleged breach of any statutory duties.
A burden of proof was cast on
the Applicant.
[7]
I disagree.
The
person doing the grading and the foreman did not testify. The
worksheets showed that grading was done, but not specifically
with
respect to the portion where the potholes were located. In this
regard, I refer to
AK
v Minister of Police,
[5]
where
it was held:
‘
The
standard of a reasonable organ of state is sourced from the
Constitution. The Constitution is replete with the phrase
that
the state must take reasonable measures to advance the realisation of
rights in the Bill of Rights. In the context of socio economic
rights the availability of resources plays a major part in an enquiry
whether reasonable steps have been taken. I can think
of no
reason in principle or logic why that standard is inappropriate for
present purposes. Here, as in the case of socio economic
rights, the choice of steps taken depends mainly on the available
resources. That is why an organ of state must present
information to the court to enable it to assess the reasonableness of
the steps taken.’
[6]
The
Constitutional Court continued and held:
‘
It
is trite that even if an omission is negligent it is not per
se wrongful. Rather, whether a negligent omission
is
wrongful turns on the legal convictions of the community, as informed
by our constitutional values. Essentially, this
demands an
enquiry as to whether it is reasonable to impose liability in the
circumstances.’
[7]
[8]
It is stated that an overly cautious approach was adopted in favour
of the Plaintiff, and no consideration
was given to the negative
aspects/features of his evidence. However, I considered those, but I
also found that the accident took
place more than 8 years before the
testimony of the Plaintiff. In
S
v Khumalo and Another (Application for Leave to Appeal)
,
[8]
the Court referred to
S
v Sauls
,
[9]
where it was stated that there is no rule-of-thumb test or formula to
apply when considering single witnesses. The trial court
should weigh
the evidence and its merits (or lack thereof) and decide whether it
is satisfied that the truth has been told despite
shortcomings or
defects in the evidence.
[9]
It is stated that, merely because the road may not have been in
perfect condition, it cannot be
inferred that it was not reasonably
safe for road users. I accepted that the road was in fair condition,
but that would only be
up to the point where the potholes were
present.
[10]
It is stated that the percentage that I apportioned to negligence did
not consider the speed at which the
Plaintiff travelled, and this
speed was unreasonably fast. Mr Moloi conceded that the road speed
was 80 km/h. The Plaintiff stated
that he may have travelled between
80-90 km/h. I could not find that the speed in itself constituted
negligence when the Plaintiff
assessed the road as in a fair
condition.
[11]
It is stated that it was not considered whether the Plaintiff kept a
proper look-out and failed to apply
his brakes. However, the
Plaintiff already explained that the road was in a fair condition and
he did not expect potholes. Transposing
one to what he could and
would have seen under the circumstances, and him being the only
person present, would place me in the
position of an arm-chair
critic.
[12]
It is stated that no reliable evidence was presented that the mere
presence, size and location of the potholes
caused the accident, only
the Plaintiff’s actions and reactions. This also relates to the
discrepancy between the evidence
of the Plaintiff and Mr Makhubu,
specifically regarding a third pothole. The fact that there were
contradictions between the Plaintiff
and the two witnesses,
concessions made by the Plaintiff as well as contradictions and
improbabilities in the evidence of the Plaintiff,
impacted the
reliability of the evidence. The finding that the Plaintiff presented
the best evidence did not consider that no corroborative
evidence was
presented; alternatively, it did not prove the grounds of negligence.
[13]
The direct evidence regarding the potholes' number, size, and
location came from the Plaintiff. Mr Makhubu
was requested to take
photos of the scene much later. Regarding credibility and
reliability, I only had the Plaintiff's version
of what he
encountered on that day. I could not find that contradictions –
there were some – materially impacted on
the credible and
reliable evidence of the Plaintiff. There was, however, corroboration
in respect of potholes on the road by Mr
Lelilo.
[14]
It is stated that applying the principles of sudden emergency was
incorrect as it was not pleaded. In this
regard, I did not refer to
Sekhokho
v S
[10]
to find sudden emergency, but to what a reasonable man would have
done, and whether the error is justifiable. I applied the principles.
[15]
It is stated that I erred in accepting that the existence of the
donga and the fear of falling into the donga
was reasonable. However,
the photos and video material indicated the location of the donga and
the Plaintiff was therefore truthful
in what he considered. It formed
part of his appreciation of danger. I avoided being an arm-chair
critic.
[16]
It is stated that in placing a burden on the Third Defendant to prove
to what extent it maintained the road,
I made findings that were not
based on evidence presented by the Plaintiff. But, the road resorted
under the jurisdiction of the
Third Defendant. The Plaintiff
presented what he encountered and the Third Defendant elected to
present evidence in rebuttal of
a
prima facie
case. This is
not a ‘full’ onus, and I did not treat it that way.
[17]
It is stated that because grading of the road was done, I inferred
that the Third Defendant was aware of
the condition of the road and
that it negligently failed to comply with its legal duties. In this
regard, the Third Defendant presented
worksheets to show that grading
was actively executed. This was presented as a rebuttal of the
Plaintiff’s assertion that
there were potholes and no direct
evidence of the grader or foreman was presented to rebut the
Plaintiff’s version.
[18]
It is stated that I accepted the Plaintiff’s evidence as
undisputed because the grader and foreman
did not testify. My
expectation that they would testify was unreasonable.
[19]
The Third Defendant elected to disclose worksheets of grading being
done, however, not at the point where
the accident occurred.
[20]
It is stated that I failed to consider the distance of road to be
maintained and thereby placed an unrealistically
high and
unreasonable burden on the Third Defendant.
[21]
The Third Defendant presented evidence that grading was done on that
specific road, and it can be accepted
that it was aware of the road's
condition. I balanced the Third Defendant's duties with the
Plaintiff's in attributing contributory
negligence.
Arguments
[22]
Ms Wright relies on
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
[11]
(
Caratco
)
for
the second ground on which parties may rely for leave to appeal,
namely whether there is some other compelling reason why the
appeal
should be heard, including conflicting judgments on the matter under
consideration. In
Caratco
,
the SCA held that a compelling reason includes an important question
of law or a discreet issue of public importance that will
have an
effect on future disputes.
[12]
[23]
The merits remain vitally important and are often decisive. I do not
find such questions of law or discreet
issues of public importance. I
balanced the duties of the State with that expected from the road
user. All accidents have their
own peculiar facts that exist in a
specific context, and my findings will not impact on attributing
liability to actions by the
State, whether they be actions, omissions
or negligence. In this regard, I again refer to
AK
v Minister of Police.
[24]
Ms Wright argues that it was not proven that there was non-compliance
with a duty to maintain the road.
The Plaintiff had to prove
non-compliance by the Third Defendant. She argues that it is in
the public interest that leave
be granted, as I, for example, made
generalisations regarding what motorists can expect from the State.
In this regard, I refer
to
Henson
v MEC for Transport and Public Works, Western Cape Government
[13]
and
the cases referred to therein where the State's duties with respect
to the maintenance of roads were referred to. In that matter,
incidentally, the witness for the State was virtually in the same
position as Mr Moloi regarding the knowledge he had of the condition
of the road at the date of the accident.
[25]
Furthermore, she argues that another Court would reasonably attribute
negligence more favourably towards
the Third Defendant. The Third
Defendant did plead contributory negligence. However, I considered
the conduct of the Plaintiff
in my Judgment.
[26]
Mr Zietsman SC argues that no public issue should be considered for
appeal. He argues that the pleadings
clarify that the Third
Defendant did not act reasonably. It was pleaded that there was a
duty on the Third Defendant to monitor,
routinely inspect and
maintain the road to ensure the safety of road users. As such,
regarding contributory negligence, he
stated that Mr Moloi did not
apply his brakes and thought he would be able to safely negotiate the
potholes. Only when he was confronted
with the donga did he realise
that he had to take evasive action. He argues that there is no
prospect of success that another Court
would interfere with the
apportionment of negligence.
Conclusion
[27]
I carefully considered the dictum in
Ramakatsa
.
I do not believe that the decision should be understood to restate
the requirements. The test remains whether there is a reasonable
prospect of success or compelling reasons. The bar remains on whether
another court
would
come to a different conclusion. Even if the test has been
reformulated, I still do not find sufficient grounds to meet the
test.
Costs
[28]
There is no reason why costs should not follow the result.
ORDER:
[29]
Wherefore the following order is made:
1
.
The application for leave to appeal is dismissed.
2.
The Applicant pays the costs of the application
.
P
R CRONJÉ, AJ
Appearance
Counsel
for Applicant:
Adv
GJM Wright
Attorneys
for Applicant:
State
Attorney
Bloemfontein
Counsel
for Respondent:
Adv
PJJ Zietsman SC
Attorneys
for Respondent:
Honey
Attorneys
Bloemfontein
[1]
Ramakatsa
and Others v African National Congress and Another
[2021]
ZASCA 31
; The Constitutional Court did not reconsider this test in
Ramakatsa
and Others v Magashule and Others
[2012] ZACC 31
;
2013 (2) BCLR 202
(CC); See also:
S
v Khumalo and Another (Application for Leave to Appeal)
[2023] ZAGPJHC 1409.
[2]
Superior Courts Act 10 of 2013
.
[3]
Manaka
v The University of the Witwatersrand
[2024] ZAGPJHC 252.
[4]
Ibid paras 6-7.
[5]
AK
v Minister of Police
[2022]
ZACC 14
;
2022 (11) BCLR 1307
(CC). See also:
Mashongwa
v Passenger Rail Association of South Africa
2016
(3) SA 528
(CC)
at para [41].
[6]
Ibid para 70.
[7]
Ibid para 117.
[8]
S
v Khumalo and Another (Application for Leave to Appeal)
[2023]
ZAGPJHC 1409.
[9]
S
v Sauls
1981
(3) SA 172
(A) 180.
[10]
Sekhokho
v S
[2010] ZAGPPHC 103.
[11]
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
[2020]
ZASCA 17
;
2020 (5) SA 35
(SCA).
[12]
Ibid para 2.
[13]
Henson
v MEC for Transport and Public Works, Western Cape Government
[2023]
ZAWCHC 90.