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2025
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[2025] ZANCHC 121
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Wortmann v Road Accident Fund (Leave to Appeal) (739/2023) [2025] ZANCHC 121 (5 December 2025)
THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Reportable/Not
Reportable
C
ase
no: 739/2023
In the matter between:
DENZIL
EGON
WORTMANN
Applicant
and
THE
ROAD ACCIDENT FUND
Respondent
Neutral
citation:
Denzil Egon
Wortmann
v The Road Accident Fund
(
Leave to Appeal
)
(
C
ase
no: 739/2023) 05 December 2025.
Coram:
Mamosebo J.
Heard
:
21 November 2025.
Delivered
:
05 December 2025.
Summary
:
Application for leave to appeal
–
Applicant
relies on s 17(1)(
a
)(i)
and (ii) of the
Superior Courts Act 10 of 2013
–
Whether
the envisaged appeal has reasonable prospects of success
–
Whether
there is some other compelling
reason why the appeal should be heard –
None
established
– Leave to appeal is refused.
ORDER
1.
The application for leave to appeal is
dismissed with costs.
JUDGMENT
Mamosebo J
[1]
In this opposed application, the applicant seeks leave to appeal to
the Full Court
of this Division, alternatively, to the Supreme Court
of Appeal, against the whole of my judgment and order handed down on
15 August
2025. The applicant relies on
s 17(1)(
a
)(i)
and (ii) of the
Superior Courts Act
[1
]
that his appeal would have reasonable prospects of success, and or
that there is a compelling reason for the appeal to be heard.
[2]
The Applicant filed a notice of application for leave to appeal with
the Office of
the Registrar on 29 August 2025. Whereas it is settled
that the grounds of appeal must be clearly outlined and succinct, the
applicant’s
grounds were presented in a form of argument which
is impermissible.
[2]
[3]
The following are the surmised grounds upon which the applicant
relies in alleging
that I erred in my factual findings and in the
application of the relevant legal principles in the judgment:
3.1
in finding, at paragraph 16.3, that it is of no consequence whether
the Toyota Landcruiser
was travelling straight or had already begun
executing a right turn manoeuvre when it was collided with from the
rear by the VW
kombi driven by the applicant;
3.2
applicant avers that once it is established that the insured driver
was turning right, the
Bata
Shoe
[3]
(and other relevant authorities) legal principles are applicable.
That it has been held in a long line of cases that the execution
of a
right turn is inherently hazardous due to oncoming and following
traffic. Thus, a driver undertaking such a manoeuvre owes
a stringent
duty to satisfy himself that it is safe to proceed, to do so at the
opportune moment, and to give adequate warning
to both approaching
and following vehicles. That regard being had to those
authorities
[4]
, the Court erred
in failing to find that the Applicant was entitled to material
success, with negligence apportioned in his favour;
3.3
in drawing a negative inference from the applicant’s failure to
call as witnesses
the passengers who were in the Kombi he was
driving, to corroborate his version;
3.4
that the Court erred, at paragraph 9 of the impugned judgment, in its
interpretation of
the expert evidence on stopping distance. That the
Court found that the applicant required approximately 61 – 81m
to stop,
including reaction time. However, the expert evidence was
that this distance reflected only the braking distance after brake
application.
Once reaction time is added, the total stopping distance
is approximately 131m. The Court therefore misdirected itself in
concluding
that the applicant was following the bakkie too closely to
stop if required;
3.5
having found that there was no material criticism that could be
levelled against the reconstruction
expert, I did not refer to his
crucial findings. As averred by the Applicant, those findings relate
to the expert’s evidence
that the brake marks identified in the
left-hand lane, as shown in several photographs, were deposited by
the bakkie. That the
expert further demonstrated, by reference to
other tyre marks, the respective paths of travel of both vehicles
after braking commenced.
That this evidence corroborated the
applicant’s version that the insured driver violently applied
brakes before attempting
a right-turn manoeuvre, and it was never
challenged by the defendant;
3.6
in simplifying the findings of Van der Linde J in the
Intercape
case in paragraph 25 of the impugned Judgment;
3.7
in finding, at paragraph 26.6 of the impugned judgment, that the
applicant gave poor evidence.
The Court further erred in treating as
immaterial the contradictions that emerged under cross-examination in
the testimony of both
the insured driver and his passenger. In
addition, the Court misdirected itself in paragraph 19 in holding
that the parties’
versions were mutually irreconcilable.
[4]
The test to determine whether leave to appeal should be granted or
not is trite.
[5]
Section
17(1)(a)
of the
Superior Courts Act espouses
two situations under
which a court may grant leave to appeal, namely, where the appeal
would have reasonable prospects of success
or where there is a
compelling reason for the appeal to be heard. Leave to appeal may
also be granted if it will be in the interests
of justice to do so.
The interests of justice may indeed constitute a compelling reason
for the appeal to be heard.
[6]
What stands for determination is whether the applicant has satisfied
the requirement of prospects of success, and or whether there
is some
other compelling reason why the appeal should be heard.
[5]
With reference to ground 3.1, the applicant is silent in both the
written and oral
submissions about maintaining a reasonable following
distance as dealt with in the main judgment at paragraphs 21 to 25.
The version
that this Court accepted was that of the defendant, that
the applicant approached at high speed from behind and was in the
process
of overtaking without observing the respondent’s
indicator light signalling to turn right.
[6]
In relation to ground 3.2, the applicant avers that this Court did
not deal with all
the quoted authorities in addition to
Bata Shoe.
Having analysed the evidence in its totality and having rejected
the version of the applicant, meaning that the applicant had failed
to act as a reasonable driver (see paragraphs 21 to 25 of the main
judgment), I do not see how apportioning negligence would have
served
to address the matter.
[7]
The contention made on behalf of the applicant with reference to
ground 3.3 pertaining
to his failure to call witnesses, passengers in
his kombi, as well as the other kombi, to corroborate his version, is
that the
court erred in drawing a negative inference from his failure
to call them, despite their availability. Paragraph 18 of the main
judgment deals adequately with the
Elgin
[7]
judgment and the principles it enunciates, and thus bears no
repetition. He has not proffered any reasons why they were not called
except to submit that it was neither established nor suggested by the
court or the defence during trial whether any of the passengers
could
give any reliable account of the details of the collision. He then
proffers an unhelpful proposition that passengers in vehicles
“notoriously” do not pay attention to the road in front
of them as they are not driving. This contention is misplaced
in
every material respect. The onus lies with the applicant to prove his
case on a balance of probabilities.
[8]
Other than challenging this Court for not dealing with all the
aspects that the reconstruction
expert has dealt with, the
applicant’s argument is silent in respect of the SCA’s
principle enunciated in
Representative
of Lloyds and Others v Classic Sailing Adventures (Pty) Ltd
[8]
(“
Lloyd
”)
quoted in full at paragraph 20 of the main judgment
.
As
stated in the main judgment, the applicant was a single witness who
tried to augment his version with reconstructed expert evidence.
Lloyds’
case
affirmed that where there is an eyewitness or direct evidence of an
occurrence, this may render the reconstructions of experts
less
relevant or even irrelevant.
[9]
Impliedly, the applicant also contends that the Court failed to
conduct its duty of
proper consideration as espoused by the
Constitutional Court in
Vodacom
(Pty)
Ltd v Makate and Another
[9]
where the ConCourt said:
‘
Justice and,
indeed, the court process are not about perfection; courts are not to
be held “to some abstract standard of perfection”.’
. . .
‘
Of critical
importance is that “there is no duty on a judge in giving
reasons to deal with every argument presented by counsel
in support
of [their] case”. I say of “critical importance”
because some litigants may find this statement of
the law attractive
for nitpickingly arguing that a court’s judgment failed to deal
with this or that point and that, therefore,
there was a breach of
the right to a fair hearing. Let them be warned that they will not
succeed. That is not what this statement
of the law is about. It is
about the substance of a judgment viewed holistically. So viewed,
does the judgment tell a reasonable,
if not discerning, reader that
there was compliance with the duty of proper consideration? In that
regard, it is enough if the
judgment identifies the issues that were
vital to the determination of the matter and then shows how they were
determined. One
or two issues may not necessarily be critical for
that holistic look at the substance of the judgment.’
[10]
Ultimately, no judgment can ever be perfect and all-embracing, and it
does not necessarily follow
that, because something has not been
mentioned, therefore it has not been considered.
[10]
Having carefully and dispassionately considered the application for
leave to appeal in order to determine whether there are reasonable
prospects that another court would come to a different finding than
this court had reached, I have not found any. There are, in
my view,
no cognisable prospects of success nor compelling reasons that
warrant the attention of the Full Court of this Division
or the
Supreme Court of Appeal to entertain the envisaged appeal. I am
therefore satisfied that there are no reasonable prospects
of a
successful appeal. In the result, the application for leave to appeal
to the Full Court of this Division, alternatively, the
Supreme Court
of Appeal, must fail.
[11]
Regarding costs, there is no reason why they should not follow the
result.
[12]
In the result, the following order is made:
1.
The application for leave
to appeal is dismissed with costs.
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Appearances
For
Applicant:
Adv.
CR Van Onselen
Instructed
by
:
Stefan
Greyling Inc
Kimberley.
For
Respondent:
Mr A
Mogano
Instructed
by
:
Office
of the State Attorney
Kimberley
[1]
10 of 2013.
[2]
See
Songono
v Minister of Law and Order
1996
(4) SA 384
(E) at 385I – J; see also
Hing
and Others v Road Accident Fund
2014
(3) SA 350
(WCC) para 4; see also
Mahori
and Another v Firstrand Bank Ltd and Others (Leave to Appeal)
2024 JDR 1108 (GP) para 7.
[3]
Bata
Shoe Co. Ltd (South Africa) v Moss
1977 (4) SA 16 (WLD).
[4]
Bata
Shoe
(
Supra
);
Milton
v Vacuum Oil Company of SA Ltd
1932 AD 197
;
AA
Mutual Insurance Association Ltd v Nomeka
1976 (3) SA 45
(A).
[5]
Mont
Chevaux Trust v Goosen
2014 JDR 2325 (LCC) para 6;
S
v Notshokovu
2016
JDR 1647 (SCA) para 2;
S
v Smith
2012 (1) SACR 567
(SCA) para 7;
Ramakatsa
and Others v African National Congress and Anothe
r
(724/2019)
[2021] ZASCA 31
(31 March 2021) para 10;
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA 35
(SCA) para 2.
[6]
Ramakatsa
and Others v African National Congress and Another (ibid)
para
10
;
see
also
S
v Notshokovu (ibid)
para
15.
[7]
Elgin
Fireclays Ltd v Webb
1947 (4) SA 744 (A).
[8]
2010 (5) SA 90
(SCA) para 60.
[9]
[2025] ZACC 13
(CC);
2025 (10) BCLR 1174
(CC) paras 43 and 57.
[10]
Rex v
Dhlumayo and Another
1948 (2) SA 677
(A) at 678.