Premier of the Gauteng Province v Booyse and Another (16233/2013) [2017] ZAGPPHC 375 (9 June 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 16233/2013

Date: 09/06/2017

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

In the matter between:

THE PREMIER OF THE GAUTENG PROVINCE APPLICANT

and

LIZ-MARIE BOOYSE 1st RESPONDENT

JACOB JAKOBUSJONKER 2nd RESPONDENT

Coram: HUGHES J

REASONS

HUGHES J

[1] This is an application for leave to appeal against the whole of my judgment and order handed down on 17 March 2017, save for the finding that oxytocin had not been administered to the first respondent.

[2] The section which deals with circumstances upon which leave to appeal may be granted is section 17 (1) of the Superior Courts Act 10 of 2013 (the Superior Courts Act). What is specifically relevant in this case, is section 17 (1) (a). For easy reference I set out section 17 (1) in its entirety below:

"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]

[3] The test which was applied previously in applications of this nature was whether there were reasonable prospects that another court may come to a different conclusion. See Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 890B. What emerges from section 17 (1) is that the threshold to grant a party leave to appeal has been raised. It is now only granted in the circumstances set out and is deduced from the words 'only' used in the said section. See The Mont Chevaux Trust v Tina Goosen & 18 Others 2014 JDR 2325 (LCC) at para [6], Bertelsmann J held as follow:

"It is clear that the threshold for granting leave to appeal against a iudgment 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 iudgment is sought to be appealed against." [My

emphasis] .

[4] The grounds for leave to appeal both legal and factual are to a large extent asserting that this court's reasoning was erroneous and that I failed to take into consideration or give sufficient weight to other factors.

[5] What I do not propose to do is to set out the exhaustive grounds of appeal again or repeat that which is set out in my judgment, in as much as that which was relevant was dealt with in the judgment.

[6] The applicant nails its colours to the mast on section 17 (1) (a) being that 'the appeal would have a reasonable prospect of success'.

[7] The applicant submits that I erred in not appreciating the effect of not supporting the time of admission reflected in the hospital records. Whilst the respondent submitted that these hospital records on the evidence of the applicants witness could not be relied upon because the compilation of these hospital note were done ex post facto in any

event.

[8] I am of the view that I dealt with the aspect of time comprehensively in the judgment and my findings on the issue of time are well documented and substantiated. I do not believe that another court would find that I came to the incorrect conclusion in respect of time.

[9] Another issue raised is that I erred in finding that the evidence established that there was a causal link between the substandard monitoring and care given to the first respondent and baby's compromised state at birth.

[10] The respondent submitted, correctly I might add, that the applicant contends that I have erred as regards the causal link issue, however it has failed to advance in this for leave to appeal application, what outcome I should have reached other than the one presented to the court of the condition of the minor.

[11] What I am basically faced with in this leave to appeal, in my view, is submissions and contentions being made of what I should have found, should have considered critically, should have considered certain probabilities and erred in not considering factors and erred in not taking certain factors into account.

[12] In my view, the conclusion that I have reached from an analysis of the proven facts could only be that which is apparent from my judgment, no other conclusion has been prefaced by the applicant in any event.

[13] I am fortified in my view that on the facts of this case the applicant does not have prospect of success before another court.

[14] Consequently the following order is made:

[a] The application for leave to appeal must fail and is dismissed with costs, such costs are to include the costs of two counsel.

____________________________________

W. Hughes

Judge of the High Court Gauteng, Pretoria