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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 039384/22
In the matter between:
KHAYIKAZI SHAYIMVUBU Applicant
and
ROAD ACCIDENT FUND Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date and for hand-down is deemed to be 30 July 2025.
Summary: Application for leave to appeal. An appeal lies against the order as
opposed to the reasons of the order. In the absence of an election made in terms
of regulation 3(3)(c) a Court lacks jurisdiction to hear a claim for non-pecuniary
loss. Making of an offer for general damages does not equate making an election
as contemplated in the regulations. Where an offer is made and rejected, there
cannot be a speak of an offer made. Where the requirements of section 17(1)(a)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
______________ ______
DATE SIGNATURE
30 July 2025
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of the Superior Courts Act are not met leave to appeal should not be granted .
Held: (1) The application for leave to appeal is refused.
JUDGMENT
MOSHOANA, J
Introduction
[1] This is an application for leave to appeal against the judgment and order made
by this Court on 30 June 2025. As it is customary, the application is unopposed
by the Road Accident Fund (RAF) . It is unnecessary for the purposes of this
judgment to regurgitate the grounds upon which leave to appeal is sought. Rule
49(1)(a) of the Uniform Rules requires a statement of the grounds to request
leave to appeal. It suffices to mention at this stage that the grounds must be of
facts and law. A recitation of grounds not predicated on any factual or legal error
is not contemplated. In an application for leave to appeal, a party is not afforded
an opportunity to re-argue as it were a dismissed claim. A party must persuade
a Court for the purpose of forming an opinion whether (a) the appeal sought
would have a reasonable prospects of success ; and (b) there is some other
compelling reason why the appeal should be heard.
Analysis
[2] It is trite that an appeal does not lie against the reasons but an order of a Court.
The order made in the impugned judgment is one of dismissing the claim for loss
of earning capacity and earnings. In reasoning its ord er, the Court referred to
general damages claim. It remarked that there was no election made by the RAF
as contemplated in section 17 read with regulation 3(3)(c) of the RAF
Regulations. The applicant persisted that this Court erred in that remark since an
offer for general damages was once made and rejected. Regarding this alleged
error, this Court concludes that the issue of general damages has nothing to do
with the order made regarding loss of earning capacity and earnings.
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[3] For the sake of posterity, this Court concludes that making an offer is not
tantamount to making an election within the contemplation of section 17 and the
regulations1. The jurisdiction of the Court to entertain the non -pecuniary loss
claim is ignited by an election and not some offer being made and rejected. It
was for that reason that this Court did not entertain the claim for general
damages. Once the RAF makes an election, the applicant may return to this
Court for the entertainment of the non -pecuniary loss claim. Seeking an appeal
is inappropriate in an instance where a Court did not exercise jurisdiction.
[4] Nevertheless, where an offer is made and rejected, there can be no speak of an
existing offer. The offer made was only valid for 30 days. Accordingly, at the time
the matter was heard by this Court, there was no offer in place, even if this Court
were to conclude that an offer equates an election contemplated in section 17
and the regulation. Assuming that this Court were to accept that making an offer
equates making an election contemplated by the section and the regulation , it
must axiomatically follow that where the offer lapses, as it was the case herein,
the election also falls away. Such would be a preposterous assertion, in the
extreme, to make.
1 See Dube v Road Accident Fund (2015-03387) [2024] ZAGPJHC 228 (6 March 2024 ) where the
matter of Mertz v Road Accident Fund 2023 (8A2) QOD 6 (GN) was distinguished because an
undertaking was made at the Pre -Trial Conference regarding the experts reports which were deemed
to be accepted. See also Erasmus v Road Accident Fund (042035/22) [2025] ZAGPPHC (12 March
2025). Compare the above with the conclusions reached at paragraph 49 of the judgment of this Court
per Davis J in Masemola v Road Accident Fund (43613/2021) [2025] ZAGPPHC 68 (21 January 2025)
para 49. In my view, the Court in Masemola did to consider the legal effect of the lapsing of an offer
made. Does it imply that once an offer is made regarding general damages, the statutory requirements
would have been m et? I have my own doubts. The provisions of the section and the regulations are
clear and require no deeming conclusions to be made. The regulation requires the fund to be satisfied
that the injury has been correctly assessed as serious in terms of the method provided in the
Regulations. Section 17(1) makes a proviso that the obligation of the Fund to compensate a third party
for no -pecuniary loss shall be limited to compensation for a serious injury as contemplated in
subsection (1A). subsection (1A) provides that assessment of a serious injury shall be based on a
prescribed method adopted after consultation with medical service providers and shall be reasonable
in ensuring that injuries are assessed in relation to the circumstances of the third party. To my mind
making an offer is different from assessing in accordance with the prescribed method. A Court is obliged
to apply the wording of a legislation and not add words not employed by the legislature. See in this
regard E Ke llaway “ Principles of Legal Interpretation (LexisNexis) Butterworths) 1995 at page 140
where the author states “A statute has no elasticity…it may not be stretched to meet a case for which
provision has clearly not been made… if the plain and unambiguous meaning of a provision in an Act
is departed from, a court does not construe it but alters it”. This statement was approved by the LAC in
Mohube v the CCMA (JA18/2022) [2023] ZALCJHB 171 (18 May 2023) at para 48.
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[5] Having considered the grounds punted for the proposed appeal , this Court is
unable to form an opinion that there are reasonable prospects of success to be
achieved. There are no prospects that an appeal Court would arrive at a
conclusion that the applicant lost earning capacity or earnings. Further, this Court
is unable to form an opinion that there is some compelling reason why the appeal
should be heard. Resultantly, as guided by section 17(1) (a) of the Superior
Courts Act, leave to appeal must be refused.
[6] Because of all the above reasons, I make the following order:
Order
1. The application for leave to appeal is refused.
____________________________
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Plaintiff: Mr Mosala
Instructed by: Sontsele Attorneys, Pretoria.
For the Defendant: No appearance
Date of Hearing 28 July 2025
Date of Judgment: 30 July 2025