Sarel Van Der Merwe Boerdery (Pty) Ltd v ALS Group t/a ALS Group Plant Hire (Pty) Ltd and Another (Leave to Appeal) (3599/2020) [2024] ZAMPMHC 35 (22 May 2024)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO: 3599/2020

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

DATE: 22/05/2024

SIGNATURE

In the matter between:

SAREL VAN DER MERWE BOERDERY (PTY) LTD

PLAINTIFF

And

ALS GROUP T/A ALS GROUP PLANT HIRE (PTY) LTD

FIRST DEFENDANT

ADVENT OIL (PTY) LTD

SECOND DEFENDANT

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

Langa J:

Introduction and background

[1] This is an application for leave to appeal the judgment handed down by this court on 31 January 2024 against the Second Defendant in respect of the damages claim instituted by the Plaintiff in the main action. Only the Second Defendant seeks leave to appeal. For convenience, the parties will be referred to as they are cited in the main action.

Applicable legal principles

[2] It is trite that applications for leave to appeal are now governed by the provisions of Section 17(1) of the Superior Courts Act 10 of 2013 which provides as follows:

“17 Leave to appeal

(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; (my underlining for emphasis).

(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.”

[3] The test in such applications has changed substantially from the test ordained in terms of the repealed Supreme Court Act 59 of 1959. The current standard is captured succinctly in the case of The Mont Chevaux Trust (IT2012/28) v Tina Goosen and Others LCC14R/2014, (3 November 2014) at para 6 in which the Court stated that “the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act and that in terms of the former test the question was whether or not there was a reasonable prospect that another court might come to a different conclusion, See Van Heerden v Cronwright and Others 1985 (2) SA 342 (T) at 343H. The use of the word “would’ in the new statute is indicative of a measure of certainty that another will differ from the court whose judgment is sought to be appealed against.”

[4] This position has since been confirmed in other Divisions of the High Court and it is therefore clear that the current section is now more burdensome than its predecessor. Smith J in the Valley of the Kings Thaba Motswere (Pty) Ltd [2016] ZAECGHC 137 (10 November 2016) acknowledged the new standard created by section 17 but added that the 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 argument advanced by the losing party.” See The Public Protector of South Africa v The Speaker of the National Assembly and Others (8500/2022), Western Cape Division, delivered on 3 November 2022.

[5] Leave to appeal may only be granted if the court of first instance is of the opinion that the appeal would have reasonable prospects of success or is arguable. See Hunter v Financial Services Board 2017 JDR 0941 (GP). There must therefore be merit in the applicant’s argument in support of the application for leave to appeal and the applicant must satisfy the court that the appeal would, not might, have reasonable prospects of success either on facts or the law. Furthermore, the peremptory provisions of Rule 49 (1) (b) require a litigant in an application of this nature to clearly and succinctly set out the grounds of appeal in unambiguous terms. Songono v Minister of Law and Order 1996 (4) SA 384. See also The Public Protector of South Africa v The Speaker of the National Assembly and Others (8500/2022), Western Cape Division, delivered on 3 November 2022.

[6] The Plaintiff in this matter sued the First and Second Defendants for damages arising out of the damage of its truck due to a motor vehicle collision which took place on 12 July 2019on the N11 near Middelburg. It is common cause that the collision involved the Plaintiff’s articulated truck and the First Defendant’s Quantum minibus. It was, however, not disputed that the Second Defendant’s NP200 bakkie was also at the scene of the accident at the time of the said collision. The collision was so severe that the Plaintiff’s vehicle was severely damaged and all the occupants of the minibus, except the driver, also died as a result thereof.

Grounds of appeal.

[9] Although the notice of appeal is a lengthy document, it is, however, evident therefrom that the Second Defendant’s appeal is essence anchored on a few grounds. The Second Defendant alleged inter alia that the court erred in finding that the Second Defendant’s driver Mr Ndamse’s evidence was not credible. Further, it contended that the court erred in finding that the driver of the First Defendant was confronted with a situation of sudden emergency. The Second Defendant is further obviously aggrieved by the court’s finding that it was the negligent party.

The parties’ contentions

[7] The Plaintiff contended that both Defendants caused the collision. The First Defendant denied liability and contended the Plaintiff had failed to prove its negligence on a balance of probabilities. In the alternative the First Defendant alleged that the driver Second Defendant vehicle the (NP200) Mr Ndamse, was the sole cause of the collision in attempted to overtake in the face of the oncoming traffic and by so doing created a situation of sudden emergency for the driver of the Quantum who collided with the truck while attempting to avoid the NP200.

[8] The Second Defendant also denied liability and argued that its vehicle was not involved in the collision at all even though its driver was part of the drivers who submitted statements in respect of the collision. It was submitted further that the Plaintiff failed to prove negligence on the part of the Second Defendant as its driver could not clearly testify how the collision took place. The Second Defendant further contended that its driver did not cause the collision by trying to overtake as alleged by the First Defendant and that the court should not have found that he caused a situation of sudden emergency for the driver of the Quantum mini bus.

[10] In the trial, the court had the benefit of hearing the evidence of all the drivers. It also considered the report commissioned and procured by the Second Respondent in respect of the accident. After considering all the evidential material, the court found that the driver of the Second Defendant’s vehicle was the cause the collision. The finding was in the main that he attempted to overtake the Plaintiff’s truck when it was not safe to do so and by so doing caused the driver of the First Defendant’s mini bus to take evasive action which was unfortunately unsuccessful and it resulted in the collision between the mini bus and the truck. The reasons for the finding against the Second Defendant are succinctly captured in the judgement and it is accordingly not necessary to repeat here.

[11] It suffice to state here that based on the evidence and considering the credibility of the Second Defendant’s driver, the court correctly rejected the Second Defendant’s version as improbable in the circumstances. There was no basis for the rejection of the First Defendant’s version, which was in my view consistent with the facts and credible. Concerning the issue of sudden emergency, there was also no basis for the court to conclude that the First Defendant’s driver was not placed in a situation of sudden emergency. By overtaking in the face of the on-coming Quantum mini bus, Mr Ndamse singlehandedly caused a situation of emergency for the driver of the Quantum. There were not enough grounds to conclude that the driver of the Quantum did not act reasonably under those circumstances. However, even if it is accepted that the action taken by the Quantum’s driver was not the best one in the circumstances, that however, still cannot be sufficient to conclude that he did not act reasonably. In my view the court in the end correctly made a finding that the Plaintiff had satisfied the onus of proof and established that the Second Defendant was negligent. The version of the Second Defendant’s driver was therefore in my view correctly rejected.

Conclusion

[14] I consequently conclude that the application for leave to appeal should fail as there is no reasonable prospect that another court would come to a different conclusion. There is in my judgment no reasonable prospect of success on appeal and the application accordingly ought to be dismissed with costs.

Order

[15] In the result I make the following order:

The application for leave to appeal is dismissed with costs.

MBG LANGA

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant/Second Defendant: J Gwebu, instructed by Madlela Gwebu Mashamba Attorneys For the Plaintiff: Advocate C Joubert instructed by Roach Attorneys For the First Defendant: Advocate WA de Beer Instructed by Lindsay Keller Attorneys Heard on: 24 April 2024 Delivered on: 22 May 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 22 May 2024 at 10h00.