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[2] During the leave to appeal there was appear ance from the State Attorney ’s
Johannesburg office. The appearance is of no consequence in determination of
the appeal as there were no experts appointed by the Respondent/Defendant
and their appearance is merely noted for record purposes.
Background
[3] The Applicant/Plaintiff in the main action, Mr Sanga, was the driver of a motorbike
involved in a collision. According to the orthopaedic report of Dr Read, the injuries
sustained included:
a. a right commuted midshaft femur fracture, managed surgically with
intramedullary nailing;
b. a head injury with a small scalp laceration;
c. a facial fracture involving the left maxillary alveolar ridge; and
d. a hospitalisation period of approximately eight days at Helen Joseph
Hospital
[4] Dr Read confirmed that the Applicant/Plaintiff experienced ongoing pain and
discomfort in the right femur, restricted mobility, and residual cosmetic and
functional sequelae. The Orthopaedic hardware remains in situ. He further
opined that the Plaintiff suffered a moderate to severe orthopaedic injury with
permanent physical impairment, together with psychological distress resulting
from the accident and its aftermath.
Grounds of the application for leave to appeal
[5] The first ground was the challenge on the award of general damages in the
amount of 650,000,00 and the second ground was not awarding generals in the
amount of R 1 500,000,00 as sought by the Plaintiff.
[6] The second ground for leave was cited as not giving sufficient consideration to
the evidence of Dr. Kelly (Neurosurgeon) that the Applicant/Plaintiff sustained a
mild traumatic brain injury.
[7] The third ground in finding that the Applicant/Plaintiff, having sustained, inter alia,
a fracture of the right femur, a fracture of maxilla bone, severe permanent
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disfiguring scarring and a mild traumatic brain injury, is not entitled to award in
respect of general damages in excess of R 650,000.00.
[8] The fourth ground raised in not finding that the Applicant/Plaintiff, having
sustained inter alia, a fracture of the right femur, a fracture of the left maxilla
bone, severe disfiguring scarring, and a mild traumatic brain injury, is entitled to
an award for general damages in the amount of R 1,500 000,00.
[9] The fifth ground raised is in not finding that the authority of Masemola v Road
Accident Fund 1 was authority for the award of R 1 500,000,00 in general
damages and lasty , not sufficiently considering the combined effect of all the
plaintiff’s injuries as referred on grounds found in the determination of the amount
of the award of the plaintiff’s general damages.
[10] Counsel for the applicants further argued that that the awarded amount of R650
000.00 for general damages is too low and not supported by comparable awards.
He further argues that the Court misdirected itself in assessing the seriousness
of the injuries and their long-term impact.
Test in application for leave to appeal
[11] Rule 49 of the Uniform Rules of Court dictates the form and process of an
application for leave to appeal and the substantive law pertaining thereto is to be
found in the provisions of section 17 of the Superior Court Act 2. The Superior
Court Act raised the threshold for the granting of leave to appeal, so that leave
may now only be granted if there is a reasonable prospect that the appeal will
succeed. The mere possibility of another court holding a different view is no
longer part of the test.
[12] The proper requirement now is that there must be a sound, rational basis for the
conclusion that there are prospects of success on appeal. The interpretation of
the Rules and the Law has changed and in various cases that have been cited
in this judgement, the prevailing view is that the threshold for granting of leave to
in this judgement, the prevailing view is that the threshold for granting of leave to
1 43613/2021) [2025] ZAGPPHC 68 (21 January 2025) (“Masemola”).
2 10 of 2013.
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appeal was raised in the Superior Court Act. Therefore, the former assessment
that leave to appeal should be granted if “ there is a reasonable prospect that
another court might come to a different conclusion” has fallen by the way side.
[13] The test to be applied in an application for leave to appeal is set out in section
17(1)(a) of the Superior Courts which provides that:
“(1) Leave to appeal may only be given where the judge or judges concerned are
of the opinion that-
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration…”.
[14] In the applicant/plaintiff’s notice for leave to appeal it is recorded that there is
reasonable prospects that another court “may” come to a different conclusion”.
Unfortunately for the applicant/respondent that is not the test as set out in terms
of the provisions of section 17 (1) (a) of the Superior Courts Act. The test is
whether the appeal “would” have reasonable prospects of success as set out
below
“The test for 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…need
to convince this Court on proper grounds that they have prospects of success on
appeal. Those prospects of suc cess 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”;3
[15] The Supreme Court of Appeal set out the application for a test to grant leave to
appeal in Cook v Morrisson and Another4 as follows:
“[8] The existence of reasonable prospects of success is a necessary but
insufficient precondition for the granting of special leave. Something more, by way
insufficient precondition for the granting of special leave. Something more, by way
3 Ramakatsa and Others v African National Congress and Another [ 2021] ZASCA 31 (31 March
2021 at para [10].
4 2019 (5) SA 51 (SCA).
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of special circumstances, is needed. These may include that the appeal raises a
substantial point of law; or that the prospects of success are so strong that a
refusal of leave would result in a manifest denial of justice; or that the matter is of
very gre at importance to the parties or to the public. This is not a closed list
(Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986
(2) SA 555 (A) at 564H – 565E; Director of Public Prosecutions, Gauteng Division,
Pretoria v Moabi 2017 (2) SACR 384 (SCA) ([2017] ZASCA 85) para 21).”
Conclusion
[16] In the main judgement of the court a quo, this court identified all the injuries that
were suffered by the Applicant/Plaintiff in meticulous details. It is therefore,
important to state that there was no misdirection in relation to the injuries as
suffered by the Applicant/Plaintiff and their sequalae as narrated by various
experts of the Plaintiff.
[17] The big elephant in the room is the award of general damages in the amount as
sought by the Applicant/Plaintiff in the suggested figure of R 1 500, 000,00
allegedly based on the decision of Masemola5 cited on the leave to appeal.
[18] It is trite law, that each and every case must be adjudicated on its own merits
and in this matter the referred authority is distinguishable. This Court dedicated
a full paragraph on general damages and set out in greater details the reasons
and case law as to why an appropriate award for general damages should be the
amount of 650 000,00 as awarded.
[19] The Applicant/Plaintiff failed to pass the test for leave to appeal as set out in the
uniform rule 49 as well as all cited binding legal authorities referred to in this
judgement. The conclusion is therefore that the award for general damages in
the main action was appropriate.
[20] Therefore, the appellant has failed to pass the rubicon for leave to appeal the
award for general damages in this matter.
[21] I accordingly grant the following order:
5 Masemola fn 1 above.
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HEARD: 23 September 2025
DELIVERED: 03 November 2025
APPEARANCES
For the Plaintiff: Mr Sean Mulligan
Instructed by: Levin Tatanis Inc.
For the Defendant: Mr Ndhlovu
Instructed by : State Attorney’s Office, Johannesburg
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