Introduction

Applications for special leave to appeal to the Supreme Court of Appeal (SCA) are subject to a stringent legal threshold. Unlike ordinary applications for leave to appeal, litigants approaching the SCA after refusal of leave by a lower court must demonstrate not only reasonable prospects of success but also the existence of exceptional circumstances that justify the court’s intervention.

A recent decision of the SCA provides a clear illustration of the consequences that follow when these requirements are not satisfied. The matter concerned an unopposed application for special leave to appeal against a judgment delivered by the full bench of the Free State Division of the High Court in Bloemfontein. In dismissing the application, the SCA reaffirmed the demanding standard that must be met and highlighted the evidentiary shortcomings that can undermine a claim.

Factual Background

The dispute arose from a motor vehicle collision that occurred on 7 August 2016, during which Ms Moloi suffered several injuries. Following the accident, she instituted a claim against the Road Accident Fund (RAF), seeking compensation totalling approximately ZAR 8.7 million. The largest portion of the claim, amounting to more than ZAR 7.6 million, related to alleged past and future loss of earnings.

While the parties reached agreement on the issue of general damages, the claims relating to loss of earnings were left for determination by the High Court. After hearing the evidence, the trial court accepted Ms Moloi’s claim for past loss of income but declined to award damages for future loss of earnings, concluding that the evidence presented was insufficient to substantiate the claim.

Ms Moloi sought to challenge this outcome before a full bench of the High Court. The appeal was unsuccessful, and leave to appeal was refused. She subsequently petitioned the Supreme Court of Appeal for special leave to appeal.

Requirements for Special Leave to Appeal

At the outset of its judgment, the SCA reiterated the well-established principles governing applications for special leave to appeal. An applicant must demonstrate two essential elements. First, there must be reasonable prospects that the proposed appeal will succeed. Second, the applicant must establish the presence of special circumstances that warrant the court’s attention.

Such circumstances may arise where the appeal raises an important legal issue, where the prospects of success are particularly compelling, or where refusal of leave would result in a clear miscarriage of justice. Matters of significant importance to the parties or to the public may also justify the granting of special leave.

Evaluation of the Evidence

In assessing whether Ms Moloi had demonstrated reasonable prospects of success, the SCA examined the expert evidence relied upon to support her claim for future loss of earnings. The court identified several weaknesses that undermined the reliability and probative value of this evidence.

A central component of the applicant’s case was the testimony of an industrial psychologist, Dr Fourie, who evaluated the potential impact of the accident on Ms Moloi’s future employment prospects. According to the evidence presented at the time of the accident, it had been suggested that Ms Moloi might be unable to complete her Bachelor of Administration degree due to the consequences of her injuries.

However, by the time the matter came before the trial court, Ms Moloi had completed a degree in accounting and had secured employment at an accounting firm. The SCA observed that Dr Fourie’s analysis did not adequately demonstrate how the injuries sustained in the accident continued to impair her ability to perform her professional duties or limit her future career advancement. The absence of evidence from Ms Moloi’s employer further weakened the claim, as no direct testimony was presented regarding her work performance or prospects.

The court also noted that Dr Fourie’s conclusions relied heavily on the opinions of other experts whose evidence was problematic. The report of a clinical psychologist was based on an assessment conducted several years before the trial and therefore did not reflect Ms Moloi’s more recent circumstances. In addition, the report of an educational psychologist was not supported by oral testimony, rendering it inadmissible hearsay.

Another significant deficiency identified by the court was the absence of objective evidence from Ms Moloi’s workplace. None of the experts involved had attempted to obtain information from her employer that might have corroborated the claim that her injuries affected her professional capabilities.

In light of these shortcomings, the SCA concluded that the applicant had failed to discharge the burden of proving future loss of earnings and that there were no realistic prospects that an appeal would succeed.

Consideration of Special Circumstances

The court then turned to the question of whether special circumstances existed that would justify granting leave to appeal despite the lack of prospects of success. The applicant’s founding affidavit relied primarily on the substantial monetary value of the claim, arguing that the potential financial loss justified further judicial scrutiny.

The SCA rejected this contention. It held that the size of a damages claim cannot, by itself, constitute a special circumstance warranting an appeal. The amount claimed merely reflects the alleged consequences of the loss and does not transform a matter into one of broader legal significance.

The applicant also contended that the case had implications for other litigants who might face similar circumstances and that refusal of leave would amount to a denial of justice. The court found these submissions unconvincing and unsupported by the factual record.

Outcome

Having determined that neither of the required elements had been established, the SCA dismissed the application for special leave to appeal. The court held that the applicant had failed to demonstrate both reasonable prospects of success and the existence of exceptional circumstances. The application was therefore refused, and no costs order was made.

Conclusion

This decision serves as an important reminder of the rigorous standard applied by the Supreme Court of Appeal when considering applications for special leave to appeal. Litigants must present compelling grounds that go beyond dissatisfaction with the outcome of earlier proceedings. Demonstrating both strong prospects of success and the presence of special circumstances is essential.

The case also highlights the critical importance of robust and properly substantiated expert evidence, particularly in claims involving future loss of earnings. Without reliable and contemporaneous evidence supported by objective information, such claims may struggle to withstand judicial scrutiny.

For practitioners, the judgment underscores the need to ensure that applications for special leave to appeal are supported by carefully prepared affidavits and comprehensive evidentiary foundations. Failure to meet these requirements can result in the swift dismissal of the application, regardless of the financial value of the claim.