Court dismisses appeal due to no prospect of success

August 1st, 2020
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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 (GP) (unreported case no 17518/2020, 15876/2020, 18239/2020, 19-6-2020) (Hughes J)

The Gauteng Division of the High Court in Pretoria dismissed an application for leave to appeal brought by the Road Accident Fund (RAF), the Chief Executive Office, the chairperson of the Board and the Minister of Transport after the judgment it handed down in the matter of FourieFismer Inc and Others v Road Accident Fund and Others; Mabunda Inc and Others v Road Accident Fund; Diale Mogashoa Inc v Road Accident Fund (GP) (unreported case no 17518/2020, 15876/2020, 18239/2020, 1-6-2020) (Hughes J). The court held that the RAF should fulfil its obligation to panel attorneys in terms of the existing Service Level Agreement (SLA). For a full discussion on the case see Kgomotso Ramotsho ‘Will the RAF have to fulfil its obligation to its panel of attorneys?’ 2020 (July) DR 36.

Following the judgment on 1 June, the RAF, the Chief Executive Office, the chairperson of the Board and the Minister of Transport sought leave to appeal the previous judgment in terms of s 17(1)(a)(i) and (ii). The premise of the leave sought to appeal was ‘belatedly’ mentioned in the papers submitted to the court and it was held by the court that the reasoning within the judgment was being appealed instead of the order.

The court held that the applicant argued that on the stare decisis principle alone, leave to appeal ought to be granted. That the crux of the argument was that the Constitutional Court (CC) even declined to revisit the decision of the Supreme Court of Appeal decision in Tshwane City and Others v Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 (SCA). The court said in its view the case of Nambiti and SAAB Grintek Defence (Pty) Ltd v South African Police Service and Others [2016] 3 All SA 669 (SCA) are distinguishable from the current cases before it. The court said it was mindful that the dicta of South African National Parks v MTO Forestry (Pty) Ltd and Another 2018 (5) SA 177 (SCA) is of relevance in this instance, where Dambuza JA stated 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’.

The court said in terms of s 172 of the Constitution, the court exercised its powers accordingly and a just and equitable remedy was issued in terms of those powers. The court added that the grounds of appeal (19 in total) were fashioned against the reasoning of the court and not the order as should be the case. Hughes J pointed out that the court was of the view that the applicants had not set out grounds relating to the order appealed against and have instead set out ground encompassing an analysis of the reason instead.

The court said that in the circumstances, it found that the applications for leave to appeal, had no prospects of success and there are no compelling reasons enunciated in the applications. Thus, another court would not have come to a different conclusion.

The court turned to the issue of bias raised by the applicants during the proceedings. Hughes J said that she was mindful of the warning echoed by the CC in the cases of Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) and De Lacy and Another v SA Post Office 2011 (9) BCLR 905 (CC), where Ngcobo CJ in Bernert held: ‘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.’

The court added that the applicants failed to raise the issue of bias at the appropriate time, that being before the proceedings or during the application when duly noted by the applicants. The court said the applicant’s reservation of the apprehension until after the judgment was improper and unacceptable. The court dismissed the applicants claim and made the following order:

‘(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.’

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Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2020 (Aug) DR 37.