Fouriefismer Inc. and Others v Road Accident Fund and Others (Maponya Inc Intervening); Mabunda Inc. and Others v Road Accident Fund; Diale Mogashoa Inc. v Road Accident Fund (17518/2020; 15876/2020; 18239/2020) [2020] ZAGPPHC 236 (19 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG, PRETORIA

In the matter between:

Case No: 17518/2020

15876/2020

18239/2020

Case no. 17518/2020

FOURIE FISMER INC. and TWO OTHERS APPLICANTS

MAPONYA INC INTERVENING

PARTY

And

ROAD ACCIDENT FUND 1st RESPONDENT

THE CHAIRPERSON OF THE BOARD OF THE RAF 2nd RESPONDNET

THE CHIEF EXECUTIVE OFFICER OF THE RAF 3rd RESPONDENT

THE MINISTER OF TRANSPORT 4th RESPONDENT

Case no. 15876/2020

MABUNDA INC. and FORTY-TWO OTHERS APPLICANTS

ROAD ACCIDENT FUND RESPONDENT

Case no. 18239/2020

DIALE MOGASHOA INC. APPLICANT

Coram: Hughes J

Heard: 12 June 2020

Delivered: 19 June 2020

REASONS

Hughes J

[1] This is an application for leave to appeal instituted by the applicants, being the Road Accident Fund, the Chief Executive Officer

of the Road Accident Fund, the Chairman of the Board of the Road Accident Fund and the Minister of Transport. The first three applicants are represented by the same counsel, whilst the Minister has its own representative. The respondents are the applicants in the three review applications now seeking leave to appeal.

[2] The applicants have set out a host of reasons why leave to appeal should be granted, especially so with the RAF, who have numerated

twenty- three (23) paragraphs with sub-headings totalling nineteen (19) grounds upon which leave to appeal is sought.

[3] I do not propose to deal with each and every ground advanced by the applicants in this application for leave to appeal. However, what I propose to do is to is deal with, in my view, that which disposes of this application in completely.

[4] It is trite that an application for leave to appeal must be sought in terms of section 17(1) of the Superior Courts Act 10 of 2013 (the Superior Courts Act). For easy reference I set out section 17 (1) in its entirety:

‘Section 17(1)

(1) 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 16 (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.’ [My emphasis]

[5] Previously, the test applied in an application for leave to appeal was whether there were reasonable prospects that another court may come to a different conclusion. To this end I refer to Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 890B. It is now only granted in the circumstances set out above, this is gleaned from the word ‘only’ used in the relevant section 17 (1). Bertelsmann J in The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para 6 said the follow:

‘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.’ [My emphasis].

[6] As was stated by Plaskett JA in S v Smith 2012 (1) SACR 567 (SCA) at para 7 the test is now more stringent in that:

‘In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’

[7] This was reinforced by the Supreme Court of Appeal in Notshokovu v S,[1] and in my view, it emerged that the threshold required for the granting of leave to appeal in terms of section 17(1) has been raised:

‘This court has to decide whether or not the courts below, including the two judges of this Court, ought to have found that reasonable

prospects of success existed to grant leave or special leave respectively. (See S v Khoasasa [2002] ZASCA 113; 2003 (1) SACR 123 (SCA); S v Matshona [2008] ZASCA 58; 2013 (2) SACR 126 (SCA)). An appellant, on the other hand, faces a higher and stringent threshold, in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959. (See Van Wyk v S, Galela v S [2014] ZASCA 152; 2015 (1) SACR 584 (SCA) para [14].)’. [My emphasis]

[8] As is argued by the respondents, with which I agree, the grounds of review raised by the applicants are in essence purely an attack on my reasoning, in reaching the order pronounced, inclusive of that varied. Thus, it is prudent to restate that an appeal can only be noted against the order and not against the reasons for the judgment. The purpose of an appeal was pointed out by Leach JA:

‘An appeal lies against an order that is made by a court and not against its reasons for making the order. It follows that on appeal a respondent is entitled to support the order on any relevant ground and is not confined to supporting it only for the reasons given by the court below.[2] In this court, the respondent did not seek to support the order on any ground than that given by the court below, which was that the regulation under which it was made did not conform with the authorising statute and was thus invalid, subject to one subsidiary

issue that I will come to. This means that the principal issue on which the appeal turns is whether the full bench was correct in its conclusion on the invalidity of r 22(C)(1) for the reasons that it gave. If the respondent fails on that issue, and on the subsidiary issue that I referred to, then the order that it made falls to be set aside, and the challenge to the validity of the order falls to be dismissed. The remainder of the notice of motion did no more that foreshadow a review application that was yet to be brought and need not concern us’.[3] [My emphasis]

[10] Crucial to my decision as to grant or not grant leave to appeal is that of Mogoeng CJ in Afriforum and Another v University of Free State[4]:

‘Both grounds of review are so devoid of merit that the grant of leave to appeal would be an injudicious deployment of the scarce and already over-stretched judicial resources. It is thus not in the interests of justice to grant leave to appeal. This will become apparent from an analysis of the two key issues raised; namely (i) whether the University acted consistently with the provisions of section 29(2) of the Constitution; and (ii) whether, in adopting its new language policy, the University paid any or adequate attention to the ministerial policy framework on the language of instruction.’

[11] According to the founding papers of the application for leave to appeal, the applicants seek leave in terms of both section 17(1)(a) (i) and (ii). The premise of the leave sought to appeal was belatedly mentioned in the papers and this is a clear suggestion that the reasoning within the judgment was being appealed instead of the order.

[12] The applicants argue that stare decisis principle alone leave to appeal ought to be granted. The crux of this argument is that the Constitutional Court even declined to revisit the decision of the Supreme Court of Appeal decision in Nambiti.[5] In my view, the case of Nambiti and SAAB Grintek[6] are distinguishable from the current cases before this court. I am mindful that the dicta of the SanPark[7] is of relevance in this instance, where Dambuza JA states that pivotal to characterising a decision as executive or administrative is ‘ the effect that the exercise of a power sourced in a contract would have on the public and its interests’.

[13] In terms of section 172 of the Constitution this court exercised its powers accordingly and a just and equitable remedy was issued in terms of those powers permitted by the said section. The grounds of appeal which are nineteen in total are fashioned against the reasoning of the court and not the order as should be the case. I do not intend to transvers the grounds as this will in my view amount to rehashing the reasons I advanced for the order I made. I am of the view that the applicants have not set out in their application grounds relating to the order appealed against and have instead set out ground encompassing an analysis of the reason instead. Thus, the appeal against the reasons is bad:

‘[8] In the present matter, the applicant sought to circumvent the potential problem of appealing against the dismissal of an exception

by couching his application for leave as one against that part of the judgment in the High Court where he alleges it wrongly made a distinction between the requirements of section 127(2) and section 129(1) of the Act. But this does not help him. Appeals are against the decisions of courts, not the reasons for the decisions. So the appeal is inevitably in the end against the dismissal of the exception, no matter the sophistry.’[8]

[14] In the circumstances, I find that the applications for leave to appeal have no prospects of success and there are no compelling

reasons enunciated in the applications. Thus, another court would not come to a different conclusion.

[15] Turning to the issue of bias raised by the applicants at this stage of the proceedings, I am mindful of the warning echoed by the Constitutional Court in Bernert v Absa Bank[9] and De Lacy v SA Post Office.[10] Ngcobo CJ in Bernert had the following to say on the issue of raising conduct of bias timeously:

‘It thus seems to me that, in our law, the controlling principle is the interests of justice. It is not in the interests of justice to permit a litigant, where that litigant has knowledge of all the facts upon which recusal is sought, to wait until an adverse judgment before raising the issue of recusal. Litigation must be brought to finality as speedily as possible. It is undesirable to cause parties to litigation to live with the uncertainty that after the outcome of the case is known, there is a possibility that litigation may be commenced afresh because of a late application for recusal which could and should have been brought earlier. To do otherwise would undermine the administration of justice.’

[16] The applicants in my view failed to raise this issue at the appropriate time, that being before the proceedings or during the

application when duly noted by the applicants. Clearly the applicant’s reservation of the apprehension until after the judgment is improper and unacceptable. I dismiss this claim.

Order

[17] Consequently, the following order is made:

(a) The applications for leave to appeal by the Road Accident Fund, the Chief Executive Office, the Chairperson of the Board and the Minister of Transport are refused and dismissed with costs.

(b) Such costs are to be paid jointly and severally and are to include the costs of two counsel where so employed.

______________________

W Hughes

Judge of the Gauteng High Court, Pretoria

APPEARANCES:

For the RAF, Chairman of the Board of RAF & CEO: Adv. Motepe Sc

Adv. Vimbi

Adv. Manganye

For the Minister: Adv. Mphaga Sc

Adv. Magagane

For FourieFismer Inc: Adv. Labuschagne Sc

Adv. Mabuza

For Mabunda Inc: Adv. Mukhari Sc

Adv. Lithole

For Diale Mogashoa: Adv. Tsatsawane

Adv. Tisani

For the 1st Amicus: Adv. Solomon Sc

Adv. Williams

[1] Notshokovu v S (157/15) [2016] ZASCA 112 (7 September 2016)

[2] Per Trollip JA in Sentrale Kunsmis Korporasie (Edms) Bpk v N.K.P. Kunsmisverspreiders (Edms) Bpk 1970 (3) SA 367(A) at 395G-396A.

[3] The South African Reserve Bank v M G Khumalo (235/09) [ 2010] ZASCA (31 March 2010) at para 4.

[4] Afriforum and Another v University of Free State 2018 (2) SA 185 CC at 39.

[5] Tshwane City and Others v Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 (SCA).

[6] SAAB Grintek Defence v South African Police Service (316/2015) [2016] ZASCA 104(5 July 2016)

[7] South African National Parks v MTO Forestry (Pty) Ltd & another (446/2017) [2018] ZASCA 59 (17 May 2018)

[8] Baliso v FirstRandBank Ltd t/aWesbank 2017 (1) SA 292 (CC) at 296E; South African Reserve Bank v Khumalo 2010 (5) SA 449 (SCA).

[9] Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) at para 75.

[10] De Lacy v SA Post Office 2011 (9) BCLR 905 (CC) at para 120.