REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
(GAUTENG DIVISION, PRETORIA )
Case No: 17468/2021
Reportable: No
Of interest to other Judges: No
Revised: No
Date: 21 February 2025
__________________________
SIGNATURE
In the matter between:
H BUTHELEZI Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
JUDGEMENT – APPLICATION FOR LEAVE TO APPEAL
_____________________________________________________________ ______ __________________________________
2
MOOKI J
1 The court dismissed the plaintiff ’s claim against the Road Accident
Fund. The plaintiff seeks leave to appeal. The plaintiff argued three
primary points as to why the court ought to grant leave.
2 The first basis is that another court could find that the plaintiff had
proved her claim for future medical ex penses. That was because
experts concluded that she suffered a T-12 fracture , which will need
fixation; and that the experts also pos tulated that there migh t be a
need for future medical expenses as a result.
3 The s econd basis is that the court ought to have found that the
reports by experts cured the plaintiff ’s failure to have pleaded a
specific injury . The plaintiff contended that this was particular ly so
because the defendant was not prejudiced. The plaintiff invoked
Alberts and Others v The Minister of Justice and Correctional
Services1 as authority in this regard.
4 The third basis is that the cour t ought to have applied contingencies
in relation to the pla intiff ’s claim for loss of income , given the
absence of collateral informatio n by the plaintiff.
5 The notice to the application also raised as a ground that the court
ought to have ordered the defendant to issue an undertaking to the
plaintiff , and that the court ought to have postponed the i ssue of
general damages sine die .
1 [2022] ZASCA 25 (9 March 2022)
3
6 I am not persuaded that the court erred in relation to future medical
expenses. The submission turns on the plaintiff having suffered a T-
12 fracture. The submission did not have regar d to the court ’s
findings about the plaintiff having a pre-existing T-12 fracture, which
was described as having sclerosis with callus formation .
7 The decision in Alberts and Others v The Minister of Justice and
Correctional Services is not authority for ex cusing the plaintiff ’s
failure to plea d a spe cific injury. The fa ilure to plead an injury that
forms the basis for a claim is not a technicalit y, and a court is not
being overly formal when obliging a claimant to specify, in a
pleading, the type of injury that forms the basis to the relief being
sought. The reports by experts on injuries suffered by the plaintiff
are not a subst itute for what should have been pleaded. Those
reports would constitute evidence to substantiate the pleaded injury.
8 Counsel for th e plaintiff accepted that there was no collateral
information to substantiate the plaintiff ’s claimed loss of earnings .
The plaintiff is required to establish the loss that she suffered. I am
not persuaded that the court ought to have addressed the plainti ff’s
failure to substa ntiate her sta ted loss by the court applying
contingencies. The court does not make a case for a litigan t.
9 There were no submissions in relation to the court ’s finding that the
experts ’ evidence was hearsay. There were also no submiss ions on
the court ’s finding that the claims made in the reports were
unsupported.
4
10 The finding by the court on the merits ; which essentially was that
the plaintiff fai led to prove her case, resulted in there being no
warrant for the court to order the defe ndant to give the plaintiff an
under takin g. The finding also made it un necessary for the court to
postpone the issue of general damages.
11 The grant or otherwise of leave to appeal is stringent. I am not
persuaded that the appeal has reasonable prospect s of succes s.
12 This judgement is delayed. This was occasioned by a mishap in
Chambers. This is regretted . Litigants are ent itled to expeditious
determination of disputes.
13 I make the following order:
The appl ication is dismissed.
O Mooki
Judge of the High Court
Gauteng Division, Pretoria
Heard : 10 May 2024
Decided : 21 February 2 025
For the plaintiff : Mr Legoabe
Instructed by : S. Msomi Attor neys
For the defendant: no appearance