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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 4204/2019
In the action between:
MAGDALENA MARIA SCHAEFER Plaintiff
and
THE CITY OF CAPE TOWN Defendant
Before: The Hon. Mr Acting Justice Montzinger
Hearing: 26 March 2025
Judgment delivered electronically: 26 March 2025
JUDGMENT
(LEAVE TO APPEAL)
Montzinger AJ
Summary Introduction
1. On 17 February 2025, I delivered judgment dismissing the plaintiff’s
delictual claim against the City of Cape Town (“the City”). The claim arose
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from the plaintiff’s fall on a protruding pavement brick in Victoria Road,
Camps Bay, Cape Town.
2. The plaintiff now seeks leave to appeal to either a Full Bench of this Court
or the Supreme Court of Appeal, contending that another court would likely arrive at a different conclusion.
Requirements for leave to appeal
3. Section 17(1) of the Superior Courts Act
1 provides that leave to appeal
may be granted only where the court is satisfied that the appeal would
have a reasonable prospect of success.
4. In addition to the test laid down in the statute the case law from courts
higher up in the decision-making hierarchy have given some further
guidance on how a court hearing an application for leave to appeal should assess it. I set out what I could glean from these authorities the approach should be:
4.1 The application should be approached dispassionately and with
reference to the facts and law to determine whether an appellate
court could reasonably arrive at a different conclusion
2.
1 10 of 2013
2 Minister of Justice and Constitutional Development and Others v Southern Africa Litigation
Centre and Others [2016] ZASCA 17; 2016 (3) SA 317 (SCA);
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4.2 An applicant seeking leave must advance proper grounds that a
sound, rational basis exists3 for concluding that there is a
reasonable rather than a remote chance of success on appeal4.
This means that the merits of the case remain crucial. A bare or
speculative contention of error is insufficient . The applicant must
establish a credible premise for believing that another court could arrive at a different outcome.
4.3 Reasonable prospects will not exist if the applicant seeking leave
is focussed on the reasons of the trial court’s judgment. Reasonable prospects relate to the substantive order of the court and not the reasons given in the judgment
5. This means that
whether an appeal court’s reasoning may differ with that of the trial
court, does not necessarily mean that leave should be granted, as a different reasoning would be of no consequence, if the result remains the same
6. To rely on this ground to justify why leave
should be granted an applicant must show that the trial judge committed a clear misdirection, and the findings were clearly erroneous
7.
4.4 An application for leave that requires an interference in the findings
of fact of the trail judge must be considered in mind with the
3 Ramakatsa v African National Congress (Case no 724/2019) (“Ramakatsa”)
4 Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) par 34
5 Starways Trading 21 CC and Others v Pearl Island Trading 714 (Pty) Ltd and Another 2019 (2)
SA 650 (SCA) [10]
6 Tecmed Africa (Pty) Ltd v Minister of Health and Another [2012] 4 All SA 149 (SCA) [17]
7 A M and Another v MEC for Health, Western Cape (1258/2018) [2020] ZASCA 89; 2021 (3)
SA 337 (SCA)
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principle that Courts of Appeal are slow to interfere with findings
of fact of a trail court8, unless a demonstrable error can be shown
or that the trial court’s factual findings were plainly wrong .
5. I will therefore consider the application with the above stated
considerations in mind.
6. Furthermore, an applicant can also seek leave on the basis that there are
compelling reasons that justify leave being granted9. Compelling reasons
include, among others, the involvement of substantial public interest, an important question of law, differing judicial interpretations, or a discrete issue of statutory interpretation with implications for future cases
10.
However, where it is proposed that compelling reasons exist why leave should be granted, I am required to consider the compelling reasons also in conjunction with the merits of the appeal, which remain often decisive
11.
7. In this matter no reliance was placed on the existence of compelling
reasons to grant leave.
The plaintiff’s application for leave to appeal 8. The notice of application contains more than 30 grounds, each purporting
to show errors in the main judgment. These grounds range from
8 Bee v Road Accident Fund 2018 (4) SA 366 (SCA) [46]
9 Section 17(1)(a) of the Superior Court Act
10 Van Loggerenberg: Erasmus Superior Court Practice (3rd ed) Vol 1 D106 -108
11 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) at para 2
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challenges to factual findings I have made, such as my assessment of the
defect in the pavement and on non-pleaded issues.
9. This “scatter or shot-gun” approach has unfortunately buried the merits of
the argument in a host of repetitive points , rather than articulating a small
number of cogent misdirections. The notice also re-states or overlaps on
the same core contentions. Practitioners should note that an unduly
expansive approach can make it difficult for the court to discern precisely where the alleged misdirections lie. A scatter of grounds seldom bolsters a case; instead, it can convey uncertainty about whether any single ground truly has merit.
10. Counsel is, of course, obliged to do his or her best for the client, but clarity
and focus, rather than volume, in my view, should accompany a leave to appeal application. If there truly is an error that “would” alter the outcome, that error should be identified with reasonable precision. That was not the case in this instance.
WHY THE APPLICATION MUST FAIL 11. The plaintiff’s notice does not clearly demonstrate how my statement of
the legal principles was incorrect or how I misapplied legal precedent. As
I have found in the main judgment, the “wrongfulness” inquiry in municipal
liability cases is well-established. Nowhere in the leave to appeal
application is there a pin-pointed criticism of how I misstated or misunderstood these principles.
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12. Certain grounds complain that some issues , particularly the City ’s
resource constraints or the lack of prior notice or knowledge of the
defective pavement were not pleaded. The question of whether a plaintiff
or defendant should have pleaded a given issue is blurred in the application. However, this criticism also lacks support in the record. First, a plaintiff bears the onus to proof all the elements of delict. If notice or
knowledge was relevant to either wrongfulness or negligence, the plaintiff
should at least produce evidence that the defendant knew or should
reasonably have known of the def ective paver on the pavement. In any
event, as was pointed out during argument of the leave to appeal these
issues were pertinently raised the City’s amended plea, to which the
plaintiff did not object.
13. The main judgment held that imposing liability on the City for a single,
relatively minor pavement defect , of which it did not have knowledge and
where there was no evidence that it was previously reported, would be
undesirable. The plaintiff’s application does not address why it is
unreasonable to consider resource constraints or the broader constitutional obligations resting on local government. Nor does it show how an appellate court is likely to overturn my reasoning for arriving at a
policy-based conclusion.
14. I have found in the main judgment that the first element of the negligence
inquiry (reasonable foreseeability of harm) was not established on the evidence. Without actual or constructive knowledge of the protrusion, the City could not reasonably be expected to repair it. The plaintiff’s reliance
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Appearances:
Applicant’s counsel: Mr. P Eia
Applicant’s attorney: Batchelor & Associates
Respondent’s counsel: Mr. M De Wet
Respondent’s attorney: Regal Brown Inc