THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 593/2022
In the matter between:
HULISANI VICCEL SITHANGU APPLICANT
and
CAPRICORN DISTRICT MUNICIPALITY RESPONDENT
Neutral citation: Hulisani Viccel Sithangu v Capricorn District Municipality (593/2022)
[2023] ZASCA 151 (14 November 2023)
Coram: ZONDI, MAKGOKA, CARELSE, MOTHLE and HUGHES JJA
Heard: 4 September 2023
Delivered: 14 November 2023
Summary: Application for special leave referred for oral argument in terms of s 17(2)(d)
of the Superior Courts Act 10 of 2013 – whether special leave to appeal should be granted
– interpretation of court order granting leave – full court misinterpreting court order and
deciding the appeal on issues not before it – whether respondent’s employees
responsible for applicant’s injuries – sufficiency of evidence – special leave to appeal
granted but appeal dismissed.
2
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: Limpopo Division of the High Court , Polokwane (Makgoba JP,
Kganyago J and Naude-Odendaal AJ sitting as court of appeal):
1 The application for special leave to appeal is granted with no order as to costs.
2 The appeal is dismissed with no order as to costs.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Zondi JA (Makgoka, Carelse, Mothle and Hughes JJA concurring):
[1] This is an application for special leave to appeal against the judgment and order
of the full court of the Limpopo Division of the High Court, Polokwane (the full court). The
full court dismissed, with costs, the applicant’s appeal against the judgment and order of
the high court (the trial court). The trial court (per MG Phatudi J) found that Mr Hulisani
Viccel Sithangu (the applicant ), had sued the wrong party and dismissed his delictual
claim against Capricorn District Municipality (the respondent).
[2] Aggrieved by the dismissal of his appeal by the full court, the applicant approached
this Court for special leave to appeal against the judgment and order of the full court. The
application before us was referred for oral argument in terms of s 17(2)(d) of the Superior
Courts Act 10 of 2013 (the Act). The parties were informed that , if called upon to do so,
they should be prepared to address this Court on the merits of the application.
[3] This matter has been bedevilled by two procedural missteps . The first one
occurred in the trial court during the adjudication of a special plea, and the second, during
the appeal before the full court. With regard to the first, the trial court heard arguments on
a special plea of misjoinder, in which the respondent pleaded that it was not the correct
party before court. The trial court reserved its ruling and proceeded to hear the evidence
and arguments on the merits. Thereafter, it dismissed the special plea, and at the same
3
time, relied on the fact s sustaining the special plea, to dismiss the action. As I
demonstrate later, t hese orders are mutually exclusive. As to the misstep during the
appeal, the full court misconstrued an order of this Court granting special leave to appeal,
and as a result, dealt with the misjoinder defence – an issue that was not before it in terms
of th at order. A brief background is necessary to demonstrate how these proce dural
missteps occurred and how they impeded an expeditious adjudication of the proceedings.
[4] The applicant was involved in a motor vehicle accident on the road between
Polokwane and Mankweng, when at about 21h00 and near D almada, a Toyota minibus
(minibus) he was driving, collided with a cow. He got trapped in the wreckage of his
minibus. Firefighters were called to the scene, and they used ‘the jaws of life ’ tool to
extricate the applicant from the wreckage. The J88 medico-legal report, completed by a
doctor who first examined the applicant after the accident , shows that the applicant
sustained multiple fractures on the lower part of his body involving both knees, left and
right tibia and fibula, both ankles and an open fracture of the right heel fat pad.
[5] Subsequently, the applicant instituted a delictual claim against the respondent in
the trial court claiming damages in the amount of R2 800 000. He alleged that the open
fracture of his right heel fat pad was caused by the respondent’s firefighters when they
accidentally cut his fat pad in the process of extricating him from the wreckage.
[6] The respondent defended the action and filed a special plea of misjoinder . It
asserted that the place where the accident occurred, was not within its area of authority
or operation, but fell under the Polokwane Local Municipality . Thus, it did not provide
firefighting services in that area, and that the firefighters who attended the scene would
therefore have been employees of the Polokwane Local Municipality. The respondent
thus averred that the Polokwane Local Municipality should have been sued . Essentially,
its defence was that the applicant had sued the wrong party.
[7] In due course, the matter served before the trial court. Before the trial commenced,
the parties agreed in terms of rule 33(4) of the Uniform Rules of Court that the special
4
plea should be adjudicated upon first before the merits of the claim. The trial court made
no formal ruling to that effect, but the trial nevertheless proceeded in accordance with the
agreement. The trial court heard arguments on the special plea . During the argument,
counsel for the respondent amplified the ambit of the respondent’s special plea by relying
on ss 84 and 85 read with s 83 of the Local Government: Municipal Structures Act (the
Structures Act).1 The respondent argued that, in terms of s 84 of the Structures Act, the
Member of the Executive Council for Local Government (the MEC) had, on 7 March 2003,
allocated the firefighting services responsibility to the Polokwane Local Municipality as
1 Local Government: Municipal Structures Act 117 of 1998. Chapter 5 thereof deals with functions and
powers of municipalities. Section 83 provides as follows:
‘83 (1) A municipality has the functions and powers assigned to it in terms of sections 156 and 229 of the
Constitution.
(2) The functions and powers referred to in subsection (1) must be divided i n the case of a district
municipality and the local municipalities within the area of the district municipality, as set out in this
Chapter.
(3) A district municipality must seek to achieve the integrated, sustainable and equitable social and
economic development of its area as a whole by—
(a) ensuring integrated development planning for the district as a whole:
(b) promoting bulk infrastructural development and services for the district as a whole;
(c) building the capacity of local municipalities in its area to perform their functions and exercise their
powers where such capacity is lacking; and
(d) promoting the equitable distribution of resources between the local municipalities in its area to ensure
appropriate levels of municipal services within the area.’
Section 84 provides for the division of functions and powers between district and local municipalities.
Section 84(1) enumerates functions and powers which are allocated to a district municipality. Section
84(2) and (3) provide:
‘(2) A local munic ipality has the functions and powers referred to in section 83(1). excluding those
functions and powers vested in terms of subsection (1) of this section in 45 the district municipality in
whose area it falls.
(3) Subsection (2) does not prevent a local mu nicipality from performing functions in its area and
exercising powers in its area of the nature described in subsection (1).’
Section 85 deals with adjustment of division of functions and powers between district and local
municipalities. It provides as follows:
‘85 (1) The MEC for local government in a province may. subject to the other provisions of this section,
adjust the division of functions and powers between a district and a local municipality as set out in section
84(1) or (2) by allocating, within a prescribed policy framework, any of those functions or powers vested—
(a) in the local municipality, to the district municipality; or
(b) in the district municipality (excluding a function or power referred to in section 84 (1)(a), (o) or (p)), to
the local municipality.
(2) An MEC may allocate a function or power in terms of subsection (1) only if —
(a) the municipality in which the function or power is vested lacks the capacity to perform that function or
exercise that power; and
(b) the MEC has consulted the Demarcation Board and considered its assessment of the capacity of the
municipality concerned.
(3) Subsection (2)(b) does not apply if the Demarcation Board omits to comply with subsection (4) within
a reasonable period.’
5
the respondent – a district municipality – did not have staff and firefighting vehicles. This
allocation, the respondent alleged, was published by the MEC in Provinci al Gazette No.
878.
[8] The trial court reserved its ruling on the special plea to the end of the trial on the
merits and proceeded to hear evidence. The applicant’s evidence was that , after the
collision, his minibus was extensively damaged, and his legs were trapped and this
prevented him from getting out of the wreckage. He sustained multiple injuries because
of the collision. The paramedics who arrived at the scene shortly after the accident were
unsuccessful in their attempt to get him out of the wreckage to convey him to hospital.
[9] It was common cause that, among other injuries, the applicant sustained the injury
to right heel fat pad and a deep laceration to his right foot. The question relates to what
caused that injury. Was it sustained in the collision or was it caused by the firefighters?
The applicant assert ed that the injury was caused by the firefighters in the process of
extricating him from the wreckage, whom he accused of accidentally cutting his right heel
fat pad and causing a deep laceration to his foot.
[10] The applicant’s evidence on this score is that, because of the collision, the brake
booster – a part of the vehicle located next to the steering wheel mechanism, collapsed,
and landed on his right leg. His leg got trapped and this impeded his ability to move. The
applicant stated he could not open the door on the driver’s side because it was damaged.
He remained trapped in the wreckage for one and a half hours during which time, he was
in terrible pain. At some point, he even lost sensation in his left leg. The applicant further
testified that before the firefighters arrived, he asked the onlookers to take off his shoes
because he had a burning sensation in his feet. He was unable to do it himself because
he could not reach his feet as he was trapped and could not bend. His feet were, however,
not trapped.
[11] The applicant could not say how his right heel fat pad was cut because during the
rescue operation, the firefighters told him that he ‘must not look at where they would be
6
working on [his] leg.’ Even though he had to look away, he testified that he warned them
to be careful and not to touc h the leg that was not numb, referring to the right leg. The
moment they began touching his right leg, he asked them not to do so, since he felt that
his right leg had not been injured. The next moment he heard one of the firefighters
exclaiming: ‘Sh...t. Oh Sh...t.’ The applicant testified that he did not see the firefighters
cut his right heel fat pad nor did he understand why the firefighter made those utterances.
The firefighters quickly dressed his deeply lacerated right foot with a bandage. They
placed him in an ambulance and the paramedics conveyed him to Polokwane Mediclinic.
The applicant stated that he only noticed that his right heel was badly injured when the
hospital staff removed the wound dressing.
[12] During cross -examination the applic ant was asked, with reference to a J88
medico-legal report, to explain how the firefighters cut his right heel fat pad and the
following exchange occurred between him and counsel for the respondent:
‘Now how did you come to a conclusion that the…[indistinct] was cut by the fire -fighter? ---
Because when my leg was not numb I knew that it was trapped here and I was still wearing my
shoes. And there was no, no wound whatsoever on my legs. And I even asked the people who
were outside to assist me. That is why I am saying even the shoes that I am wearing I ended up
giving them to my daughter, because they were not damaged. The shoes I was using whilst driving
that day.
I want to understand you now. You are saying you were wearing the shoes that day? ---Yes.
And the shoes were not damaged? --- Yes
But later you discovered that your heel has been cut. --- Let me maybe explain it this way. When,
whilst still trapped, because of the pain I was feeling I asked people to assist me to take off my
shoes. And after my leg was cut they immediately bandaged my leg. And because it was numb I
could not see that. I was immediately taken to the ambulance. I only realized that my leg was cut
whilst I was at the hospital when they were removing the bandage that was put on by the fire -
fighters.
Now I am now, I am now confused.
COURT: No. The way I understand is that after the accident has happened and upon arrival of
what he calls the fire-fighters he still had his shoes on’.
7
[13] Mr Thabang Letanta (Mr Letanta) , the head of the emergency management
services at the respondent since 2007, testified for the respondent. He was responsible
for fire and rescue services. Mr Letanta denied that the rescue team could possibly have
cut the applicant’s right heel fat pad off in the process of rescuing him. He explained how
the rescue operation at the scene is carried out: A rescue team usually comprises two to
five members, including a crew leader to assess the scene. This would involve securing
the scene and stabilizing the vehicle involved, to prevent it from moving during the rescue
operation and to cause further injuries to the occupants that should be rescued. Once
that is done, the team then starts cutting the big posts of the vehicle using the cutter. The
jaws of life tools are used to cut the wreckage and remove any piece of metal that may
be in their way. A ram is also used during the operation to separate the different sections
of the vehicle. It is this ram that enables the rescue crew to pull a n occupant from the
wreckage. Mr Letanta commented further that in his whole life he never had an experience
where the rescue team ‘are so reckless that [they] even touch the patient.’
[14] At the end of the trial , the trial court dismissed the respondent’s special plea and
the applicant’s claim. It ordered each party to pay its own costs. The trial court’s reasoning
for dismissing the special plea appears from the following passages in the judgment:
‘. . . [I]t was not crystally pleaded in the special plea that the defendant is constrained by a statutory
provision and that the basis of the facts upon which it would be entitled to invoke the particular
legislative measure as a defense was not set forth.
The facts pleaded giving rise to the spec ial plea did not raise among other things, the
decentralization of firefighting services by the then MEC, Local Government and Housing in the
Provincial Gazette No.5 dated 07 March 2003 from the defendant to PLM, a third part y not cited
in the present proceedings.
On a closer scrutiny of the special plea as formulated, the reasons for mis-joinder are not only
obscure, but fail to disclose the legal or factual basis upon which PLM and not the defendant
should be imputed with liability in this claim. Evidence would therefore be crucial to determine the
merits and the issue of whether or not the defendant should be held liable in the circumstances.’
8
[15] In dismissing the applicant’s claim, the trial court reasoned:
‘In the instant case, the evidence of identity as adduced was, in my view, not sufficiently reliable.
The plaintiff did not satisfy the threshold of proving the identity of the firemen who attended him
on a balance of probabilities.’
[16] Court orders are required to be clear and unambiguous. The two orders of the trial
court are mutually exclusive and confusing. It was not open to the trial court to non -suit
the applicant based on the point on which it had earlier found in his favour. The ruling of
the trial court on the special plea effectively meant that the correct defendant was before
it, and from then onwards, the identity of the defendant was no longer in issue. The order
dismissing the special plea was final in effect , and accordingly it was not competent for
the trial court to revisit it when it considered the merits .2 In relation to that issue, the trial
court had become functus officio as its authority over the subject matter had ceased.
[17] As mentioned already, although the trial court had not formally ma de an order
separating the special plea from the merits, the trial proceeded on the footing that the
issues had been separated. The dismissal of the respondent’s special plea meant that a
separated issue (misjoinder) had been finally decided. This Court, in Nu-World Industries
(Pty) Ltd v Strix Limited,3 held that:
‘The purpose of separating the issue in a suit is to deal final ly with a discrete part of it. This is
because that issue might be dispositive of the entire matter. If it proves to be dispositive , the
additional time and expense of dealing with other issues is saved. Other than on appeal, the
judgment cannot be revisited. This is why such a judgment is appealable. It is final in effect ,
despite not having disposed of all of the issues in the action.’4
[18] In Thobejane and Others v Premier of the Limpopo Province and Another,5 this
Court had occasion to consider a similar situation , incidentally also from the Limpopo
Division of the High Court. There, the respondents had raised a preliminary point of non-
2 Zweni v Minister of Law and Order [1992] ZASCA 197; [1993] 1 All SA 365(A); 1993 (1) SA 523 (A) at
536B.
3 Nu-World Industries (Pty) Ltd v Strix Ltd [2020] ZASCA 28; 2020 BIP 329 (SCA).
4 Ibid para 16.
5 Thobejane and Others v Premier of the Limpopo Province and Another [2020] ZASCA 176.
9
joinder of the two parties who, according to the respondents, had a direct and substantial
interest in the relief sought by the appellants. The judge before whom the matter served,
heard arguments on the preliminary point referred to above, and dismissed it. The merits
of the application were then argued, after which the judge reserved judgment.
Subsequently, judgment was delivered in which the judge revisited the respondents’
preliminary point of non-joinder referred to earlier and upheld the very same point which
she had earlier dismissed. This Court held that it was not open for the high court to revisit
the point it had dismissed earlier, as in relation thereto, it had become functus officio and
that its second order undermined the principle of finality of litigation.6
[19] On the facts of this case, it was not desirable to separate the special plea from the
merits. What the trial court could have done would have been to decline the invitati on to
separate issues. This is because the facts necessary to determine the special plea, and
those necessary to determine the merits, were inextricably linked. But, having agreed to
determine the special plea first, and having dismissed it, it was not open for the trial court
to revisit the issue as to whether the respondent was the correct defendant before it.
[20] The applicant, not satisfied with the orders of the trial court, sought leave to appeal
from th at court. The trial court dismissed his application with costs. Thereafter , the
applicant successfully petitioned this Court for leave to appeal. He was granted leave to
appeal to the full court on a limited basis. The order that was granted by this Court on 27
July 2021 reads:
‘1. Leave to appeal is granted to the Full Court of the Limpopo Division of the High Court,
Polokwane.
2. The costs order of the court a quo in dismissing the application for leave to appeal is set aside
AND the costs of the application for leave to appeal in this court and the court a quo are costs in
the appeal. If the applicant does not proceed with the appeal, the applicant is to pay these costs.
3. The leave to appeal is limited to the following issues:
whether the plaintiff proved on a balance of probabilities that an employee/s of the defendant
negligently cut into or removed his right heel fat pad.’ (Own emphasis.)
6 Ibid para 6.
10
It is important to emphasise at this point that the respondent did not seek and obtain leave
to cross-appeal against the order of the trial court dismissing the special plea of
misjoinder. Therefore, that order was not challenged.
[21] In due course, the appeal came before the full court. In the full court, there was a
debate regarding the interpretation of the order of this Court granting leave to appeal. The
applicant submitted that the leave to appeal was limited to the issues identified in the
order, and that on a proper construction of the order, the full court did not have authority
to go beyond the issues in respect of which leave to appeal was granted. The full court
rejected the applicant’s construction of the order . In paras 8 and 9 of the judgment it
reasoned as follows:
‘The appellant submitted that this court is limited to determine the issue of negligence only as per
the Supreme Court of Appeal’s order. This contention by the Appellant is however misplaced. It
is clear from the reading of the order that this court has to determine the following issues if the
order is broken down in to compartments, namely: -
(a) Whether the plaintiff proved on a balance of probabilities;
(b) that employees of the Defendant;
(c) negligently cut into;
(d) or removed his [right] heel fat pad.
Had it been the intention of the Supreme Court of Appeal to only limit the appeal to the
determination of negligence, surely the order wou ld have read to the effect that “The leave to
appeal is limited to the following issues: The ne gligence of the Defendant’’. The argument and
submissions made by the Appellant that this appeal should be limited to negligence only, should
therefore be rejected.’
[22] Having rejected the applicant’s construction of the order of this Court granting
leave to appeal, the full court proceeded to consider the merits of the appeal. It dismissed
the appeal and reasoned as follows:
‘This court is in agreement with the court a quo’s view that the Appellant failed to prove the identity
of the fire-fighters at the scene and by that also failed to prove that the fire -fighters at the scene
were those in the employ of the Respondent. It should be reiterated that the onus of proof lies
with the Appellant, not the Respondent.
11
It is clear that the basis of vicarious l iability is an employer -employee relationship and that the
employer is held liable for the wrongs committed by his or her employee in the course and scope
of the employee’s employment. Having said that, it is clear that the Appellant failed to prove that
the person who committed the delict was an employee of the Respondent, the scope of the
employee’s duties at the relevant time and that the employee performed the delictual act in the
course and scope of the employee’s employment.
The Appellant therefore failed to prove its basis of its claim against the Respondent and the court
a quo correctly found that the action should be dismissed. In the result the appeal stands to fail
and should be dismissed.’
[23] The question is whether t he full court’s interpretation of the order of this Court
granting leave to appeal , is correct. The basic principles applicable to construing
documents also apply to the construction of a court’s judgment or order. The court’s
intention is to be ascertaine d primarily from the language of the judgment or order as
construed according to the usual, well -known rules.7 As in the case of a document, the
judgment or order and the court’s reasons for giving it, must be read as a whole to
ascertain its intention. 8 It is now settled , that when interpreting a document including a
court order, the point of departure s hould be the language in question , read in context
while also having regard to the purpose of its provision and the background.9
[24] The language and the wording of para 3 of the order of this Court makes it clear
that the issue that was before the full court was limited to the question of whether it was
the respondent’s employees who caused the applicant’s injury to the right heel fat pad.
[25] The context in which this Court granted leave to appeal on a limited basis is that
the special plea disputing the respondent as the correct defendant had been dismissed
7 Firestone South Africa (Pty) Limited v Genticuro AG [1977] 4 All SA 600 (A); 1977 (4) SA 298 (A) at 304D-
E.
8 Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and Others [2012] ZASCA 49;
2013 (2) SA 204 (SCA) para 13.
9 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) para 18.
12
by the trial court. All that remained was to determine whether it was the conduct of the
respondent’s employees that caused the applicant’s injury. In other words, whether the
cut to the applicant’s heel fat pad was caused by the conduct of the employees of the
respondent. It was thus no longer open to the ful l court on appeal to revisit the issue
regarding the identity of the defendant. That issue was not on appeal before it.
[26] The full court’s construction of the order of this Court granting leave to appeal, is
therefore flawed. It not only failed to read the language of the court order contextually, but
it also failed to have regard to its purpose. The full court accordingly misdirected itself in
approaching the appeal in the manner that it did.
[27] Before this Court, the applicant advanced two grounds on which he relied for the
contention that the application for special leave to appeal should be granted as his appeal
has prospect of success. He submitted firstly, that the trial court having dismissed the
respondent’s special plea of misjoinder, it was no longer open to it to revisit that issue on
appeal. Secondly, the applicant submitted that when an organ of state is sought to be
held vicariously liable for the delict committed by its employees, the standard that is
applicable is that of a reasonable organ of state. He argued that the full court ought to
have found that, ‘by going to [his] foot, where there was no eminent danger, the
employees of the Respondent did not act in good faith in that they failed to take
reasonable precautions to eliminate or minimise the risk of injury which their action may
cause to [him]’.
[28] On the other hand , the respondent argued that the application for special leave
should fail as the appeal has no prospect of success and no special circum stances
justifying its grant have been demonstrated. It submitted that the onus was on the
applicant to prove, on a balance of probabilities, that the injury he sustained on the right
heel was caused by its firefighters. It argued that the evidence adduced by the applicant
failed to establish that this injury was caused by its firefighters. It asserted that the
probabilities are that the relevant injury was directly related to the accident and in support
of this proposition it referred to th e J88 medico-legal report which was completed by the
13
doctor who examined the applicant shortly after the accident. One of the many injuries
recorded on the J88 report is the open fracture of the right heel. The respondent also
referred to the statement the applicant made to the police , relating to the accident , in
which he never mentioned that one of the injuries that he sustained was caused by the
firefighters in the process of extricating him from the wreckage.
[29] I now consider whether the special leave of appeal should be granted, and if so,
whether the appeal should succeed . The granting of leave to appeal is governed by s
17(1)(a) of the Act, which reads:
‘(1) Leave to appeal may only be given where the judge or judges concerned are of the opinio n
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. . .’
[30] With regard to special leave to appeal, the test is more stringent. In Cook v
Morrison and Another, this Court held that:10
‘The existence of reasonable prospects of success is a necessary but insufficient precondition for
the granting of special leave. Something more, by way of special circumstances, is needed. This
may include that the appeal raises the 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 great importance to the parties or to the public. This is not a closed list . . .’
[31] The full court misconstrued the order of this Court granting leave to appeal to it. In
the absence of a cross-appeal, it was not open to the full court to revisit the special plea
of misjoinder after the trial court had dismissed it . Like the trial court, the full court
misdirected itself by revisiting th e issue which the trial court had finally decided . On its
proper construction, the order of this Court granting leave was clear that th e misjoinder
issue had been determined by the trial court and was not on appeal to it . The full court
therefore erred in dismissing the appeal on the basis of an issue that was not before it ,
10 Cook v Morrison and Another [2019] ZASCA 8; [2019] 3 All SA 673 (SCA ); 2019 (5) SA 51 (SCA ) para
8.
14
and without having considered its merits. The application for special leave should
therefore be granted.
[32] I then proceed to deal with the merits of the appeal. The sole basis on which it was
sought, both on the pleadings and in argument to recover damages from the respondent,
was that it was vicariously liable for the conduct of its firefighters. The conduct relied upon
was the cutting of the app licant’s right heel fat pad . The anterior question therefore, is
whether the respondent’s firefighters cut the applicant’s right heel fat pad. Put differently,
the question is whether the injury to the applicant’s right heel fat pad was caused by the
respondent’s firefighters. The applicant bore the onus to allege and prove that the harm
he sustained was caused by the respondent’s firefighters acting within the course and
scope of their employment.11
[33] The J88 medico -legal report indicates that the app licant sustained multiple
fractures on the lower part of his body involving both knees, left and right tibia and fibula,
both ankles and open fracture of the right heel fat pad . Because of this, it is not
unreasonable to assume that all the injuries sustained by the applicant that evening were
as a result of the accident. On that assumption, the applicant bore an even higher burden
to establish that the injuries to his right heel fat pad were not part of the injuries sustained
in the accident. The applicant cannot say, as a matter of fact, that the firefighters cut his
right heel fat pad as he did not witness it. He surmises that the cut to his right heel fat pad
was caused by the firefighters because before they worked on the minibus and, prior to
them doing this, he ‘had no wounds on [his] legs.’
[34] The applicant’s assumption cannot be correct, because the J88 medico-legal
report clearly shows multiple injuries on his legs, ankles, and feet. Further, in the
statement concerning the accident, which the applicant made to the police on 5 November
2014, he did not blame the firefighters for some of the injuries he sustained at the scene
11 An employer is liable for damage caused by delicts committed by an employee in the course and scope
of the employee’s employment. See, for example, K v Minister of Safety and Security [2004] ZASCA 99;
[2005] 3 All SA 519 (SCA); 2005 (3) SA 179 (SCA); (2005) 26 ILJ 681 (SCA) para 4.
15
on 17 October 2014. On the applicant’s own version, he stated that his right leg was not
numb. It is therefore improbable that the applicant would not become aware when the
firefighters cut his right heel pad. Thus, in my view, the applicant failed to discharge the
onus on him to prove that the injur y to his right heel fat pad was caused by the
respondent’s firefighters, and not by the accident. In the light of all the evidence, the
applicant’s evidence that the injury to his right heel fat pad was caused by the firefighters,
is improbable and his appeal should fail.
[35] The next issue to consider is costs. The full court dismissed the appeal with costs
including the costs of the application for leave to appeal. The applicant submitted that the
full court misdirected itself by making a costs order against him. This was a misdirection,
proceeded the argument, which entitles this Court to interfere with the order by setting it
aside. The basis for this submission was that, by bringing an action against the
respondent, the applicant did not act vexatiously, and that the litigation is against an organ
of state. The applicant contended that in his claim he was asserting his constitutional
rights and that therefore, based on the Biowatch principle12, as a private litigant litigating
against a state organ , he should not be ordered to pay costs should this application for
leave to appeal be dismissed.
[36] While I accept that the applicant should not be ordered to pay the costs of this
application I, however, disagree that the costs liability in this matter should be decided on
the basis of the Biowatch principle. In my view, the basis on which the issue of costs
should be decided is the following. T he full court misconstrued the order of this Court
granting leave to appeal. It became necessary for the applicant to bring this application.
Special leave to appeal had to be granted in order to correct the procedural misdirection
committed by the full court. It was not the applicant’s fault that the full court misconceived
the order of this Court. Had the full court considered the appeal to it in accordance with
the terms of the order of this Court granting leave, it would not have decided the matter
on the issue that was not before it. Although it dismissed the appeal, it did so on the wrong
12 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009
(10) BCLR 1014 (CC) 14 paras 21 and 23.
16
basis. None of the parties was responsible for that. Viewed in this light, it is only fair that
no order as to costs should be made.
[37] In the result the following order issues:
1 The application for special leave to appeal is granted with no order as to costs.
2 The appeal is dismissed with no order as to costs.
____________________
DH ZONDI
JUDGE OF APPEAL
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Appearances
For the appellant: S O Ravele
Instructed by: S O Ravele Attorneys, Louis Trichardt-Makhado
Phatshoane Henney Attorneys, Bloemfontein
For the respondent: M E Ngoetjana
Instructed by: N J Morero Inc Attorneys, Polokwane
Webbers Attorneys, Bloemfontein.