---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)           REPORTABLE: YES/NO

(2)           OF INTEREST TO OTHER JUDGES: YES/NO

(3)           REVISED.

 

CASE NO.: 54320/2017

25/3/2020

 

 

 

In the matter between:

ROAD ACCIDENT FUND                                                                              Applicant/Defendant

 

and

MPHO IAN MAILA                                                                                        Respondent/Plaintiff

 

JUDGMENT

 

VAN DER WESTHUIZEN, J

 

[1]        A legal principle is akin to a norm. A norm is that which you measure against to determine whether you comply or not. You measure your conduct, behaviour, circumstances and the like. Conduct, behaviour and circumstances are the facts in their context to be measured. Likewise, facts, cold, clear and unambiguous, inclusive of their context, are to be measured against the particular legal principle. To ignore the relevant context of the facts would be destructive.

[2]        The applicant, the defendant in the main action, applies for leave to appeal against my judgment delivered on 13 August 2019. A number of grounds are stipulated in the application for leave to appeal. During oral argument, Ms Ferguson, who appears on behalf of the applicant, has highlighted three specific grounds. In general, those represent the classes of the specific grounds set out in the application for leave to appeal. I shall thus not deal with each individual ground, but deal with the three highlighted grounds.

[3]        This application was initially foreshadowed with an “application for condoning the lateness of the application” that is contained in the application for leave to appeal in view thereof that the application for leave to appeal was delivered out of the prescribed period. The application for leave to appeal was set down during the latter part of 2019. The manner in which that “application” was brought, leaves much to be desired. The condonation issue was raised as a ground of appeal. For that reason, this application for leave to appeal was postponed to enable the applicant/defendant to bring a proper application for condonation. The application for condonation is opposed by the applicant. The opposition is on two bases: firstly, there is no reasonable explanation for the delay in launching the application for leave to appeal, and secondly, the prospects of success in respect of the appeal in itself is less than bleak.

[4]        On its own version, the applicant/defendant had prepared a “draft” application for leave to appeal that was ready within the stipulated time period. It did not file such. The reasons advanced are administrative delays and unavailability of counsel. It is trite that the latter is no basis for condonation to be granted. Mr Beaton SC, who appears for the respondent/plaintiff, submits that a draft had been prepared by counsel who appeared in the trial, and another counsel could easily have moved the application for leave to appeal. There was no need to “wait” for counsel’s availability to move the application. There is merit in that submission. Apart from a terse submission that administrative delays were unavoidable, there is no full explanation for the delay, whether reasonable or otherwise. A period of three weeks remains unexplained.

[5]        The three grounds raised in oral argument are: firstly, the principle enunciated in respect of rear end collisions; secondly, the existence of conflicting judgments; and thirdly, the raising of a technical issue that was not preceded by a summary of expert evidence, read together with the refusal of the amendment. I dealt fully with the issue of the belated amendment in my judgment under consideration and I need not restate the issue.

[6]        The third ground raised, i.e. that of the absence of a notice of an expert summary of expert evidence, is without substance. No “expert” opinion was raised by any of the witnesses on behalf of the respondent/defendant. Factual evidence was given. No opinion was expressed.

[7]        In respect of the issue of conflicting judgments, there is equally no substance. Ms Ferguson submitted that leave to appeal should not be to the Supreme Court of Appeal, but to the full Court of this Division. That submission puts paid to the ground raised on that issue. Furthermore, the judgments relied upon include judgments of the Supreme Court of Appeal. The “conflict” is apparently between my judgment and that of other courts, including the Supreme Court of Appeal. There is no conflict. The facts in this matter are not comparable with the facts in the alleged conflicting judgments. The judgment, which I followed and dealt with in my judgment, is clearly comparable with the present matter. The facts are similar and comparable. The facts in that matter also differ from the facts in the alleged conflicting judgments.

[8]        The first ground raised, i.e. that of “principle”, is of no substance, or consequence. A principle does not exist, nor apply, in vacuo. It finds application in respect of facts in a specific context. I have fully, and at length, dealt with the facts in the present matter in my judgment. I need not restate them. Suffice to state that I found contributory negligence on the defendant’s insured driver’s evidence, the issue of contributory negligence being pled in the plea.

[9]        I am not convinced, nor satisfied, that there are reasonable probabilities that another court would come to a different conclusion than I have come to.

[10]      The issue of the costs granted in the action is also a concern of the applicant/defendant. The granting of an appropriate cost order is a discretionary matter. No grounds were raised nor proven that I have exercised my discretion in a non-judicial sense, nor that I have made a material misdirection in that regard. The issue of public funds is par for the course. There is no merit in that complaint.

[11]      It follows that the application for leave to appeal cannot succeed.

 

I grant the following order:

 

The application for leave to appeal is dismissed with costs.

 

 

C J VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

 

 

 

 

 

 

On behalf of Applicant:       Ms R Ferguson       

Instructed by:                       Mothle Jooma Sabdia Attorneys  

 

On behalf of Respondent:  R Beaton SC

Instructed by:                      Erasmus-Scheepers Attorneys                 

---