La Grange v Road Accident Fund (Leave to Appeal) [2023] ZAGPPHC 532; 2020/37879 (20 June 2023)

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 >> 2023 >> [2023] ZAGPPHC 532 | Noteup | LawCite sino index ## La Grange v Road Accident Fund (Leave to Appeal) [2023] ZAGPPHC 532; 2020/37879 (20 June 2023) La Grange v Road Accident Fund (Leave to Appeal) [2023] ZAGPPHC 532; 2020/37879 (20 June 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_532.html sino date 20 June 2023 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 2020/37879 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: NO DATE: 20/6/2023 MOKOSI SNI In the matter between: JG LA GRANGE Applicant and THE ROAD ACCIDENT FUND Respondent CASE NO : 2018/10189 KL MOTHOBI                                                        Applicant and THE ROAD ACCIDENT FUND                            Respondent CASE NO : 2019/83708 E LOMBARD obo R-L LOMBARD                        Applicant and THE ROAD ACCIDENT FUND Respondent CASE NO: 2021/6875 S SANGWENI Applicant and THE ROAD ACCIDENT FUND                                 Respondent CASE NO: 2021/7667 JB VAN NIEKERK Applicant and THE ROAD ACCIDENT FUND Respondent CASE NO: 2019/2767 El KRAFTT                                                                Applicant and THE ROAD ACCIDENT FUND Respondent CASE NO: 2019/47556 SC SMAL obo CC SMAL                                         Applicant and THE ROAD ACCIDENT FUND                              Respondent CASE NO: 2020/52669 M MEIER                                                               Applicant and THE ROAD ACCIDENT FUND                              Respondent LEAVE TO APPEAL- JUDGMENT MOKOSE J [1] The above matters were all heard by me in the default judgment court and the leave to appeal relates to the same issues being that the court disallowed the costs of expert witnesses. All the applicants have applied for leave to appeal to the Full Court of this Division against the entire orders I delivered in respect of the above-mentioned matters. [2] It is noted that the respondent in each of the matters, the Road Accident Fund, did not appear to oppose the application for leave to appeal. [3] The applicants had filed an application in terms of Rule 42(1) in each matter wherein it was requested that I amend the orders and insert the costs as requested failing which reasons for the orders were requested. The reasons were furnished to the applicants and subsequently, leave to appeal was filed with the court. [4] Further to the issue as mentioned above, the applicants contend in their leave to appeal that the application for default judgment was done on paper mero motu and that the court erred in not hearing the matters in open court or even via video conferencing. [S] The test for granting an application for leave to appeal is whether there are reasonable prospects of success. Section 17 of the Superior Courts Act 10 of 2013 ("the Act") states that leave to appeal may only be granted where the judge or judges are of the opinion that: (a) (i)         the appeal would have a reasonable prospect of success; or (ii)                      for some other compelling reason, it should be heard, including conflicting judgements on the matter under consideration. (b) the decision sought does not fall within the ambit of Section 16(2)(a) of the Act; and (c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties. [6]   The test laid down in Section 17 of the Act is now a subjective one and no longer an objective test. There must be a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against. [1] The court held in the case of The Mont Chevaux Trust v Tina Goosen & 18 Others as follows: "It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cornwright & Others 1985 (2) SA 342 (T) at 343H. the use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against. " [7] Counsel for the applicant argued that the decision not to hear the applications for default judgment had been made mero motu. It is noted that counsel did not appear in any of the matters which were dealt with by other counsel. [8]  It is, however, correct that in terms of Section 32 of the Superior Courts Act a party to court proceedings has the right to have the matter heard in open court however, the parties were notified in advance that the matters would be dealt with on paper and not in open court. If the parties required the matter to be held in open court, a request should have been made especially as this has been the practice in this division in respect of default judgment applications since the Covid-19 regulations were promulgated with the limitation on movement of people. The practice to deal with the application on paper has continued for expediency. No request to appear in respect of all the matters had been made to me. [9]   The second ground of appeal is that in terms of Item D.5 under Rule 70 of the Uniform Rules of Court, the plaintiff would be unable to recover on taxation the costs of the experts unless they are included in the order granted. [10] I had dealt in depth with the issue raised in the application for leave to appeal in my reasons which were furnished to the parties on request. However, after listening to submission by counsel for the applicants and after reading the application for leave to appeal, I am of the view that for some other compelling reason the applications for leave to appeal should be granted and that there are prospects that another court would come to a different conclusion. [11]  Accordingly, I order the following: (i)           leave to appeal is granted to the Full Court of the Gauteng Division, Pretoria; (ii) the costs of the application for leave to appeal are costs in the appeal. MOKOSE J Judge of the High Court of South Africa Gauteng Division, Pretor i a For the Applicants: Adv M Snyman SC Date of hearing: 19 June 2023 Date of judgment: 20 June 2023 [1] The Mont Cheveaux Trust (IT2012/28) v Tina Goosen & 18 Others 2014 JDR 2325 at para [6] sino noindex make_database footer start