Hing and Others v Road Accident Fund
Jurisdiction | South Africa |
Judge | Griesel J, Ndita J and Binns-Ward J |
Judgment Date | 13 February 2014 |
Citation | 2014 (3) SA 350 (WCC) |
Docket Number | A 440/2011 and A 139/2012 |
Hearing Date | 29 January 2014 |
Counsel | MA Crowe SC (with A Blommaert and P Eia) for the appellants. TD Potgieter SC (with A Bhoopchand) for the respondent. |
Court | Western Cape Division, Cape Town |
Binns-Ward J (Griesel J and Ndita J concurring):
G [1] In February 2007 six sisters came to Cape Town from the disparate parts of the world in which they lived for the celebration of their brother's 60th birthday. While here they were involved in a serious motor vehicle collision, in which all of them sustained injuries. One of them, Jackie Sehinson from Toronto, Canada, died of her injuries six days later in H hospital. The surviving sisters subsequently claimed compensation in terms of the Road Accident Fund Act 56 of 1996. The late Jackie Sehinson's spouse also sought compensation, as did the couple's only daughter. The claim of one of the sisters was settled. The other claims gave rise to litigation. The ensuing six actions were tried together before I Klopper AJ in two stages during June 2010 and February 2011. It was agreed that the first appellant, who had been driving the vehicle in which the siblings had been travelling, had been equally at fault with the driver of the other vehicle in causing the collision. The matter therefore went to trial only on the issue of quantum, with the Fund accepting liability for 50% of such damages as the first appellant was able to prove, and to the J full extent of those which the other appellants could establish.
Binns-Ward J (Griesel J and Ndita J concurring)
[2] The actions of Jackie Sehinson's surviving spouse and daughter were A dismissed, while those of the four sisters were successful only to a limited degree. All six plaintiffs have come on appeal against the judgment of the trial court. The appeals are with the leave of the court a quo, granted on 26 August 2011.
Condonation B
[3] In terms of rule 49(2) the appellants were required to deliver a notice of appeal within 20 days after the date upon which leave to appeal was granted, or within such longer period as might upon good cause shown be permitted. They failed to comply with this requirement. They have C sought condonation of their non-compliance. The application for condonation was filed only in December 2013, at the same time as the appellants' heads of argument were delivered. The explanation offered for the non-compliance was that a notice of appeal would have been a supererogation, as the judge a quo had stated in his judgment granting leave to appeal that he was doing so 'on the grounds set out in their D notice of appeal dated 1 August 2011'. (The so-called 'Notice of Appeal' thus referred to was in fact the appellants' notice of application for leave to appeal.)
[4] The explanation is unacceptable. The application for leave to appeal E had listed 65 grounds on which the judge a quo was alleged to have 'erred and misdirected himself'. As the respondent's counsel justifiably observed, a number of those grounds were so vaguely formulated as to be of little or no assistance in meaningfully defining the bases of the intended appeals. [1] In any event it should have been apparent to the F appellants that the learned acting judge could not possibly have intended his words to be taken literally. The effect of the notice of application for leave to appeal was to suggest that he had misdirected himself at every turn in making any findings adverse to their claims. In the context of his detailed and fully reasoned judgment, it could not reasonably have been assumed by the appellants or their legal representatives that by granting G leave to appeal in the terms he did, the judge meant to be understood to be acknowledging that such wide-ranging error and misdirection on his part might reasonably be established on appeal. On the contrary, the manifestly indiscriminate formulation of the grounds on which the application for leave to appeal was brought brings to mind the observation of a US Appeals Court judge that when he sees 'an appellant's brief H containing seven to ten points or more, a presumption arises that there is no merit to any of them'. [2] , [3]
Binns-Ward J (Griesel J and Ndita J concurring)
A [5] The appellants, however, did not redeem their non-compliance by belatedly delivering a notice of appeal, or applying for leave to do so out of time. That was regrettable, to say the least. Only two days before the appeals were due to be heard did the appellants tender, and then only on a contingent basis, a purported notice of appeal which merely replicated B all the grounds set out in their application for leave to appeal, notwithstanding that it was evident by then that many of those grounds had been abandoned and, in fact, notice had been given that the fourth and sixth appellants' appeals were not being proceeded with at all. The very belatedly proffered notice was obviously entirely unacceptable. In effect, C we were thus called upon to hear the appeal on the grounds apparent from the heads of argument delivered by their counsel. That is indeed the basis upon which appeals to the Supreme Court of Appeal are heard, there being no provision in the rules applicable when an appeal lies to that court for the delivery of a notice setting out the grounds thereof. [4] In Mpondo v Road Accident Fund [2011] ZAECGHC 24 (9 June 2011), [5] D Dambuza J (Tshiki J and Eksteen J concurring) held that matters raised only in heads of argument could not be entertained on appeal to a full court of the high court. In that case, however, a notice of appeal had been delivered and the learned judge's remark was made in the context of an issue having been raised in the heads of argument that had not been E adumbrated in the notice of appeal. In deciding whether the appeals should be entertained in the current rather different situation I consider the purpose of a notice of appeal must be kept in view. It is to define the ambit of the appeal for the benefit of the appellate court and the respondent. The court needs to know the issues arising out of the judgment of the court a quo that it is called upon to determine, and F the respondent needs to be informed of what it has to address in argument. The respondent, which opposed the application for condonation, questioned whether, in the absence of a notice of appeal, there was in point of fact an appeal before us. It did not allege, however, that it was not able to deal with the appeals; indeed its affidavit opposing the condonation application was delivered only some weeks after it had G delivered its heads of argument in the appeals. In the absence of any complaint from the respondent that it is prejudiced in being able to argue the appeals, I am inclined to hold that the issues that the court is called on to deal with are clear enough from the appellants' heads of argument. I am thus willing, albeit with some diffidence, to entertain the appeals,
Binns-Ward J (Griesel J and Ndita J concurring)
treating the heads of argument in lieu of a notice of appeal, as counsel on A both sides acknowledged would be appropriate were we inclined to condone the absence of a proper notice of appeal.
[6] Condonation was also sought for the late filing of the record on appeal. In this connection the explanations given were also not entirely B satisfactory — certainly not with regard to the length of the delay that was involved. However, having regard to the overall conspectus of relevant considerations, I am satisfied that it would be appropriate in the interests of justice to grant the application, which includes condoning the late filing of the appellants' heads of argument.
[7] Obviously, the costs of the application for condonation must be C borne by the appellants.
[8] Turning then to address the appeals on their merits.
The first appellant (Ki-Xia Ng Pan Hing, known as Cecile)
[9] Despite it having been alleged in her amended particulars of claim D that the first appellant had sustained 'a ruptured right kidney' and 'a fracture of the left pubic ramus', the evidence established that the only physical injury actually suffered by her was some bruising to her chest ('a chest wall contusion injury'), occasioned, no doubt, by the restraining forces exerted by her seatbelt during the collision.
[10] The heads of damages claimed by the first appellant at trial were E comprised as follows: compensation for pain, suffering, disability and the loss of amenities of life (R200 000); loss of rental income (CAD 27 300 — quantified in the particulars of claim as R150 000); and loss of income due to 'delayed career or promotional prospects' (CAD 21 500). The F claims for loss of income were predicated on the argument that the appellant had sustained a psychiatric injury, which adversely affected her opportunity for promotion at work and rendered her so demotivated that she could not arrange for the rental of certain apartments that she held as investments. I say that the claim was predicated on the argument that the first appellant had sustained a psychiatric injury because no allegation G to that effect is to be found in the particulars of claim. (It bears mention in that respect that on more than one occasion during the trial the respondent's counsel complained about the discrepancies between the pleadings and the evidence being tendered. The trial judge also deprecated the shoddy drafting of the appellants' pleadings more than once in the course of his judgment.) The only basis on which the claims were H cognisable for the purposes of judgment at first instance and thus also on appeal is because both parties proceeded at trial as if the claims had been properly pleaded; cf Shill v Milner 1937 AD 101 at 105. [6]
[11] The trial court held that the evidence did not establish that the first appellant had sustained an identifiable psychiatric injury and dismissed I her loss-of-income-related claims. It awarded her R20 000 in general
Binns-Ward J (Griesel J and Ndita J concurring)
A damages, being in respect of the effects of her aforementioned very limited physical...
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...Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): applied Hing and Others v Road Accident Fund 2014 (3) SA 350 (WCC): referred Mahambehlala v MEC for Welfare, Eastern Cape, and Another 2002 (1) SA 342 (SE) (2001 (9) BCLR 890): referred to Mbanga v MEC ......
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Dancing Beauty and Hair (Pty) Ltd v Northern Centre Shareblock (Pty) Ltd and others
...at 739 B - G). The grounds of appeal must meaningfully define the bases of the intended appeal (Hing and Others v Road Accident Fund 2014 (3) SA 350 (WCC), para. 28. The application for leave to appeal in this matter fails to comply with these established principles in setting out the groun......
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