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2024
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[2024] ZAFSHC 370
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Le Hanie v Metsimaholo Local Municipality (2409/2015) [2024] ZAFSHC 370 (15 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable / Not
reportable
Case no: 2409/2015
In
the matter between
ARMAND
ERNEST LE HANIE
APPLICANT
And
METSIMAHOLO
LOCAL MUNICIPALITY
RESPONDENT
Neutral citation:
Armand Ernest Le Hanie v Metsimaholo Local Municipality
Coram: Chesiwe J
Heard:
On the papers as per the directive with heads of argument
filed on 11 October 2024 and 18 October 2024 respectively.
Delivered:
This judgment was handed down in open court and
electronically by circulation to the parties’ representatives
by email and
released to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 15 November 2024.
Summary:
Application
for leave to appeal –
Dismissal of
Plaintiff’s claim in respect of future medical expenses and
payment for loss of earnings
-
Test to be applied as regulated by
s 17
of the
Superior Courts Act 10
of 2013
– Leave to appeal sought and to be heard by the Full
Bench of the Free State Division of the High Court.
ORDER
1.
Leave to appeal is granted to the Full Bench
of this Division against
the judgment and order dated 31 May 2024.
2.
Costs to be costs in the appeal.
LEAVE TO APPEAL
JUDGMENT
Chesiwe J
[1]
The Applicant seeks leave to appeal to the Full Bench
of this
Division against the judgement and order granted on 31 May 2024,
specifically with reference to paragraph 1 of the order,
in terms of
which the court
a quo
dismissed the Applicant’s (Second
Plaintiff in the court
a quo
) claim for future medical
expenses and payment for loss of earnings. The application is opposed
by the Respondent (Defendant in
the court
a quo
)
[2]
The Applicant listed several grounds for the leave to
appeal and
these are listed in the notice of the application and will not be
repeated herein.
[3]
The Applicant contends that he has good prospects of
success and that
another court on appeal would come to a different conclusion as the
court
a quo
erred in not considering the evidence of Dr
Agbazue (orthopaedic surgeon) and also erred in rejecting the
evidence of Dr Ziervogel
(orthopaedic surgeon) that the injuries
sustained were due to the accident and not due to sport and being
overweight.
[4]
The Respondent contends that the Applicant failed on
the balance of
probabilities the extent of the injuries and whether there was a
causal connection between the Applicant’s
pre-accident
conditions and the injuries sustained in the accident on 20 July
2014.
[5]
The test to be applied in an application for leave to
appeal is
regulated by s 17 of the Superior Courts Act 10 of 2013 (the Act).
Section 17(1)(a) provides as follows:
i. Leave to appeal may
only be given where the judge concerned is of the opinion that the
appeal would have reasonable prospects
of success or;
ii.There is some
compelling or other reason why the appeal should be heard, including
conflicting judgments on the matter under
consideration.
[6]
S 17 has changed the position somewhat in respect of
the test to be
applied. Previously, an Applicant was merely required to show that
there is a reasonable possibility that a court
differently
constituted, may come to a different conclusion from that of the
court
a quo
.
[7]
The courts have in several matters reiterated this view
(See Hans
Seuntjie Matoto v Free State Gambling and Liqour Authority
4629/2017[ZAFSHC] 8 June 2017; Wesrup Beleggings CC v Ferriers
and
Another (1264/2012)
[2017] ZAFSHC 128
(3 August 2017)
[8]
The Applicant’s injuries and sequelae were considered
in the
joint minutes of the experts, those of Dr Agbazue and Dr
Preddy. The Applicant therefore makes out a case that another
court
would come to a different conclusion different from that of the court
a aquo
as there lies two different versions from Dr Agbazue
and Dr Heyns for which this Court has taken note of.
[9]
In my view, I am satisfied that there are reasonable
prospects that
another court would find that the court
a quo
erred by
dismissing the Applicant’s claim in respect of future medical
expenses and loss of earnings.
[10]
In the circumstances, the following order is made:
1.
Leave to appeal is granted to the Full Bench of this Division against
the judgment and order dated 31
May 2024.
2.
Costs to be costs in the appeal
S. CHESIWE, J
Appearances
On
behalf of the Plaintiff:
Adv.
M D J Steenkamp
Instructed
by:
Symington
De Kok
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
L Makua
Instructed
by:
Ponoane
Attorneys
BLOEMFONTEIN