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This article examines a recent judgment delivered by South Africa's Supreme Court of Appeal ("SCA") in which the SCA decided upon an unopposed application for special leave to appeal against the judgment and order of the full bench of the Free State Division of the High Court, Bloemfontein. In this judgment, the SCA reiterated the threshold that one needs to satisfy to be granted special leave to appeal as well as the consequences for failing to adduce sufficient evidence.
Background facts
On 7 August 2016, Ms Moloi sustained several personal injuries after being involved in a motor vehicle accident. Ms Moloi subsequently instituted action proceedings against the Road Accident Fund ("RAF") in which she claimed damages in the amount of ZAR 8 711 483.00 which included ZAR 7 611 483.00 for past and future loss of earnings. A settlement agreement was eventually reached between the parties in terms of Ms Moloi's general damages, however the issues of past and future loss of earnings were referred to trial before the Free State Division of the High Court, Bloemfontein.
The High Court ultimately upheld Ms Moloi's claim for past loss of earnings but dismissed her claim for future loss of earnings based on insufficient evidence. Ms Moloi then appealed to the full bench of the High Court who upheld the court a quo's order and refused leave to appeal. Thereafter, Ms Moloi applied to the SCA for special leave to appeal.
The matter before the SCA
The SCA noted from the outset that the threshold for special leave to appeal is trite; namely that the applicant must show reasonable prospects of success as well as the existence of "special circumstances" which may include that the appeal raises a substantial point of law, or that the prospects of success are so strong that a refusal of leave would result in a manifest denial of justice, or that the matter is of very great importance to the parties or to the public.
When assessing the reasonable prospects of success of her application, the SCA highlighted several glaring deficiencies in the expert evidence relied upon by Ms Moloi. Firstly, Ms Moloi's principal witness was Dr Fourie, an industrial psychologist, who assessed Ms Moloi's ability to continue her career as well as other future work which she might have been able to perform. It was alleged at the time of the accident that Ms Moloi would not be able to complete her Bachelor of Administration degree as a result of the accident. However, by the time the matter proceeded to trial, Ms Moloi had completed an accounting degree and secured employment at an accounting firm. The SCA accordingly held that Dr Fourie failed to prove how the accident-related injuries and consequent emotional toil affected Ms Moloi's ability to perform her job or would affect her future career advancement. This was made by worse by the fact that Ms Moloi's employer was not called as a witness during the trial proceedings.
Secondly, Dr Fourie's evidence was heavily based on evidence given by Ms Stanton, a clinical psychologist, as well as a report by Ms Gibson, an educational psychologist, both of which were found to have little probative value. This is because Ms Stanton's evidence was based on an outdated assessment of Ms Moloi which only took place 2 years after the accident and 4 years before the matter was eventually heard. Ms Gibson's report, on the other hand, was deemed as inadmissible hearsay evidence as she was not called to testify. Furthermore, none of these appointed experts sought to obtain objective evidence from Ms Moloi's current employer. The SCA accordingly concluded that Ms Moloi had failed to discharge her onus in proving the claimed loss and that there were no reasonable prospects of success on appeal.
The SCA thereafter examined the existence of any special circumstances in this matter and noted that Ms Moloi's founding affidavit failed to include the necessary grounds upon which special leave was sought. Instead, the only special circumstances listed in her founding affidavit was the substantial amount that Ms Moloi would stand to lose should special leave to appeal not be granted. The SCA held in this regard that the magnitude of the quantum claimed cannot, in itself, be inherently regarded as a special circumstance for granting leave to appeal. Rather, the quantum of a claim is a consequence of the alleged loss and not a reason to have the matter heard by the SCA. The focus should be on the legal or public importance of the issues sought to be appealed, rather than on the monetary value of the claim.
The SCA further dismissed Ms Moloi's submission that her matter is of great importance to other litigants who may find themselves in her position, and that refusal to grant her future loss of earnings is a denial of justice, which the SCA held was not supported by the facts in this matter.
The SCA concluded that Ms Moloi failed to prove reasonable prospects of success nor any special circumstances. The appeal was accordingly dismissed with no orders as to costs.
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