Sivenene v Memeber of the Executive Council for the Department of Health Eastern Cape Province (Leave to Appeal)
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Rugunanan J |
| Judgment Date | 13 June 2023 |
| Citation | 2023 JDR 2405 (ECM) |
| Hearing Date | 06 April 2023 |
| Docket Number | 605/2020 |
| Court | Eastern Cape Division |
Rugunanan J:
In this matter I heard argument by the parties in an application for leave to appeal. For convenience they will be referred to by their trial designations. At issue are the heads of damages for architectural services, loss of income, and caregiver and domestic services for which post-contingency
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Rugunanan J
amounts of R1 371 398, R4 154 160 and R7 427 158 were respectively awarded to the plaintiff in my judgment of 2 March 2023.
My judgment sets out the background to the matter, the evidence adduced by the parties and the reasons for the awards arrived at.
The defendant argues that I erred and misdirected myself in various respects. Its summation of the grounds of appeal is detailed in its application for leave to appeal.
The legislation dealing with the circumstances upon which leave to appeal may be granted is set out in section 17(1) of the Superior Courts Act 10 of 2013 (the Act).
The section reads as follows:
Leave to appeal
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;
(b)
the decision sought on appeal does not fall within the ambit of section 6(2)(a); 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.
The test previously applied in applications of this nature was whether there were reasonable prospects that another court may come to a different conclusion. [1] What emerges from section 17(1) is that the threshold for
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Rugunanan J
granting leave to appeal has been raised. It is now only granted in specified circumstances. This is deduced from the word ‘only’.
In The Mont Chevaux Trust v Tina Goosen and 18 Others [2] , Bertelsmann J held 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 Cronwright & 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.’
Smith J, in Valley of the Kings Thaba Motswere (Pty) Ltd and another v A L Mayya International. [3] aptly summed up the position in this manner:
‘There can be little doubt that the use of the word “would” in section 17(1)(a)(i) of the Superior Courts Act implies that the test for leave to appeal is now more onerous. The intention clearly being to avoid our courts of appeal being flooded with frivolous appeals that are doomed to fail. I am, however, of the respectful view that the “measure of certainty” standard propounded by the learned judge in Mont Chevaux Trust may be placing the bar too high. It would, in my respectful view, be unreasonably onerous to require an applicant for leave to appeal to convince a judge – who invariably would have provided extensive reasons for his or her findings and conclusions – that there is a “measure of certainty” that another court will upset those findings. It seems to me that a contextual construction of the phrase “reasonable prospect of success” still requires of the judge, whose judgment is sought to be appealed against, to consider, objectively and dispassionately, whether there are reasonable prospects that another court may well find merit in arguments advanced by the losing party. . .’
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The grounds for leave to appeal assert to a large extent that my conclusions regarding the acceptability of the expert evidence was erroneous. Put otherwise, the argument is that I erred in not accepting the evidence of the defendant’s experts; that in doing so my reasoning was erroneous and that I failed to consider or give sufficient weight to other factors. The experts who testified for the defendant, were industrial psychologist Mr Sabelo Gumede, educational psychologist Mr Xolani Fakude, and Mr Sikhumbuzo Mtembu, an architect.
It is not intended to extrapolate the minute detail of the exhaustive grounds of appeal again, or to repeat that which is set out in my judgment, in as much as that which I thought was relevant was dealt with in the judgment. I am mindful of the fact that an appeal is solely aimed at an order of a court and not its reasoning.
As regards the impugned awards the defendant argued that another court would conclude differently.
What constitutes reasonable prospects of success, has been laid down in S v Smith [4] as follows:
‘What the test of reasonable prospects of success postulates is a...
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