Sayed N.O obo S.M v Road Accident Fund (38860/2021) [2024] ZAGPPHC 1218 (27 November 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1218 | Noteup | LawCite sino index ## Sayed N.O obo S.M v Road Accident Fund (38860/2021) [2024] ZAGPPHC 1218 (27 November 2024) Sayed N.O obo S.M v Road Accident Fund (38860/2021) [2024] ZAGPPHC 1218 (27 November 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1218.html sino date 27 November 2024 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA CASE NO: 38860/2021 HEARD: 26 NOVEMBER 2024 DECIDED: 27 NOVEMBER 2024 In the matter between: ADV SAYED N.O. CURATOR AD LITEM, obo S[...] M[...] Applicant And ROAD ACCIDENT FUND Respondent This judgment has been handed down remotely and shall be circulated to the parties by way of email / uploading on caselines. The date of hand down shall be deemed to be 27 November 2024 ORDER 1. The application for leave to appeal is dismissed. RULING BAM J Introduction 1. This is an application for leave to appeal the order of this court of 24 February 2024, the reasons having been provided on 14 May 2024.  The defendant did not participate during the hearing, its defence had been struck off following its failure to comply with this court’s order [1] . The applicant’s grounds, extracted from her Notice of Appeal, are set out in paragraph 6 of this ruling. 2. The applicant is dissatisfied with this court’s award of R 3 000 000.00, in respect of the minor’s loss of earnings/earning capacity, as opposed to the amount sought of R5 774 802.00. It is apparent from the applicant’s Heads of Argument that the amount has since been reconsidered as the applicant now seeks the reduced amount of R4 685 018.50. That in a nutshell is the nub of the plaintiff’s challenge, characterised as it is in her Notice of Application for Leave to Appeal as, inter alia , errors of fact and law made by this court. 3. It will soon be shown, as the Constitutional Court has laid down the law in Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another that, in making the award, this court exercised a discretion in the true sense. In this regard, it is worthwhile setting out the court’s reasoning: ‘ [83] In order to decipher the standard of interference that an appellate court is justified in applying, a distinction between two types of discretion emerged in our case law. That distinction is now deeply-rooted in the law governing the relationship between appeal courts and courts of first instance. Therefore, the proper approach on appeal is for an appellate court to ascertain whether the discretion exercised by the lower court was a discretion in the true sense or whether it was a discretion in the loose sense. The importance of the distinction is that either type of discretion will dictate the standard of interference that an appellate court must apply. [84] In Media Workers Association, the Court defined a discretion in the true sense: “ The essence of a discretion in [the true] sense is that, if the repository of the power follows any one of the available courses, he would be acting within his powers, and his exercise of power could not be set aside merely because a Court would have preferred him to have followed a different course among those available to him.” [85] A discretion in the true sense is found where the lower court has a wide range of equally permissible options available to it. This type of discretion has been found by this Court in many instances, including matters of costs, damages and in the award of a remedy in terms of section 35 of the Restitution of Land Rights Act. It is“true” in that the lower court has an election of which option it will apply and any option can never be said to be wrong as each is entirely permissible. [88] When a lower court exercises a discretion in the true sense, it would ordinarily be inappropriate for an appellate court to interfere unless it is satisfied that this discretion was not exercised— “ [judiciously], or that it had been influenced by wrong principles or a misdirection on the facts, or that it had reached a decision which in the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles.” An appellate court ought to be slow to substitute its own decision solely because it does not agree with the permissible option chosen by the lower court.’ [2] Legal Framework 4. Applications for leave to appeal are governed by Section 17 of the Superior Court Act [3] . The relevant provisions for present purposes read: ‘ 17. (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;’ 5. In Smith v S, the court, elaborating on the test for reasonable prospects of success, had the following to say: ‘ What the test of reasonable prospects of success postulates is 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.11 In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’ [4] The applicant’s grounds 6. The applicant’s grounds are set out in her Notice of Application [5] for Leave to Appeal, supported by her Heads of Argument. I commence by setting out the grounds: 6.1 The court is said to have ‘in general’ erred by not accepting the findings and conclusions of the experts, in particular those of the Industrial Psychologist. 6.2 The court is said to have erred in relying in its own interpretation of the value of the Glasgow Coma Scale in determining the existence of a brain ‘injury in patients’.  It is said that there was no such finding before the court and the court preferred its own interpretation. 6.2 The court referred in its reasons to the ‘projections of the Industrial Psychologist’ rather than the ‘reflection of the minor’s injuries’. In this regard, the court is said to have erred. 6.3 The court erred in law and in fact in its ‘analysis of the nature and extent  [sic] discretion of a court in making a finding as to the quantum of loss of earnings, alternatively there was no sound basis for the award of R3 000 000 made by ‘the court a quo’. 6.4 The court relied on factual errors, alternatively incorrectly interpreted and/failed to properly consider the evidence of the expert, in making her determination. 6.5 The court is further said to have erred in its reasoning in stating the trite principle that previously decided cases serve as guidelines and are not to be followed slavishly. It is said that there were no such comparisons in the plaintiff’s Heads of Argument. 6.5 The court irregularly disregarded expert evidence. 6.7 Finally, the applicant states that there is a striking disparity between the award of R 3 000 000. 00 made by the court on the basis of its broad discretion, and the award which would be made by a court hearing the appeal on the basis of the actuarial calculation. Discussion 7. The applicant disregards that in the hospital records placed before the court,, the then 12 year old claimant, S[...] M[...], was referred to a physician in Madadeni Hospital on 16 January 2019, five days from the date of accident; that the physician Dr Naidoo, who interpreted the results of the CT scan, noted in his report dated 20 February 2019 that the brain is normal. [6] The plaintiff’s own neurologist’s report concluded that the minor suffered ‘non-serious injuries’ [7] . 8. It is plain from the grounds summarised in paragraph six of this ruling that the true issue is the applicant’s dissatisfaction with the award of R3 million. Applying the law set out in Trencon Construction , this court exercised a true discretion in making the award for damages. Except where the court of appeal were to find that such discretion was not exercised judiciously, there is no basis upon which a court hearing the appeal would come to a different conclusion on the issue. I should add that despite the introductory remarks in the notice of appeal, there is no case made out to sustain the claims of errors of law and fact that would lead to another court coming to a different conclusion on the facts of this case. On this basis, leave to appeal must be refused. Order 1. The application for leave to appeal is dismissed. N.N BAM JUDGE OF THE HIGH COURT, GAUTENG DIVISION, PRETORIA Date of Hearing : 26 November 2024 Date of Judgment:                                                27 November 2024 Appearances : Counsel for the Applicant: Adv K Strydom Instructed by: Ehlers Attorneys Centurion, Pretoria [1] The order was made on 6 October 2023. [2] (CCT198/14) [2015] ZACC 22 ; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (26 June 2015), paragraphs 83-,85, & 88. [3] Act 10 of 2013. [4] (475/10) [2011] ZASCA 15 ; 2012 (1) SACR 567 (SCA) (15 March 2011), paragraph 7. [5] Paragraphics 1-8. [6] Caselines 008-1. [7] See 009-11, the plaintiff’s own neurologist’s report that the minor suffered ‘non-serious injuries’. sino noindex make_database footer start