City of Tshwane Metropolitan Municipality and Another v P.M.N obo O.K.N (Leave to Appeal) (53972/2014) [2020] ZAGPPHC 182 (26 May 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

Case No: 53972/2014

26/5/2020

In the matter between:

CITY OF TSHWANE METROPOLITAN MUNICIPALITY

1ST APPLICANT

TIENDHLELENI PRE-SCHOOL

2ND APPLICANT

and

P[….] M[….] N[….]

obo O[….] K[….] N[….]

DEFENDANT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

BASSON J

[1] This is an application for leave to appeal against this court's judgment to the effect that the defendants (the applicants in this application) are, jointly and severally, held liable for the damages, if any, that the plaintiff (the respondent in this application) has suffered in consequence of the injuries sustained by the plaintiffs minor daughter on 18 October 2013. The matter is postponed sine die for hearing on the issue of quantum.

[2] The grounds for leave to appeal are set out in the Notice of Application for Leave to Appeal. I will not repeat same. Suffice to point out that I have taken note of these grounds in considering this application.

[3] There is also an application for condonation for the late filing of this application. I have considered the application and I am satisfied that a satisfactory explanation for the delay has been tendered. Condonation is therefore granted.

[4] In the main, the applicants take issue with the fact that the court accepted the minor's evidence particularly because her version contradicted her previous version advanced in the pleadings. There is no merit in this contention. The court has dealt with the reasons whether the version of the minor should be accepted. As a witness she made a good impression on the court and f could find no reason to reject her evidence.

[5] The applicants also take issue with the court's findings in respect of foreseeability. It is submitted that the court erred in finding that a reasonable man would have foreseen the possibility of injury and that a reasonable man would have taken steps to prevent same. In paragraph [35] of the judgment, it is concluded on the basis of the evidence of Koele who testified (although she testified that the openings on the slide were not there) that, if those openings were present, children would not have been allowed to play on the equipment. There is therefore no merit in this submission: The issue of foreseeability is borne out by the evidence.

[6]

In argument, counsel for the applicants came with a new and further ground for leave to appeal to the effect that this court took judicial notice of certain facts not borne out by the evidence. Although it was somewhat difficult to follow the argument, I have nonetheless considered whether the court took judicial notice of certain facts in arriving

at a conclusion. There is no merit in this argument. The factual findings are based on the evidence of the witnesses.

[7] In the premises, the applicants have not satisfied the requirements of section 17(1)(a) of the Superior Courts Act regarding the prospects of success on appeal.: There are no other compelling reasons for the granting of the leave applied for. Accordingly, the application for leave to appeal cannot succeed and, having regard to the considerations set out above, I find no reason why costs should not follow the event.

[8] In the event the following order is made:

The application for leave to appeal is dismissed with costs.

A.C. BASSON

JUDGE OF THE GAUTENG

DIVISION, PRETORIA

APPEARANCES

For the applicants : Adv TALL Potgieter S.C

Instructed by : Savage Jooste & Adams Inc

For respondent : Adv RB Mphela

Instructed by : MHP Malesa Attorneys