File 3 (file reference KTMT/3/2020 - Motor Vehicle Collision) Client: Ken Tshala, Mia Tshala, on behalf of Kent Tshala (if Plaintiffs) or Crash Bandicoot, Brash Bandicoot and Sash Bandicoot (if Defendants)

Seventeen-year-old Crash Bandicoot, a recent matriculant of Sky High School in Gauteng, and the best soccer striker ever to come out of Sky High, hosted a matric farewell party on June 24, 2021 at 71 Kentucky Drive, Northville, the home of the teen's parents, Mr. and Mrs. Bandicoot. Crash had previously asked Mr. and Mrs. Bandicoot for permission to have the party at the family home. As Crash had done very well in school, was responsible and obedient, Crash's parents consented. Without the knowledge of Mr. and Mrs. Bandicoot, 20-year-old sibling Brandy Bandicoot, Crash's older sibling, arranged for the purchase of three kegs of beer from Alcohol Bottle Store located on 115 Speed Drive. At 14:00 PM on June 24th, Crash and Brandy drove to the liquor store. Crash waited in the car while Brandy went to purchase the kegs of beer. When Brandy went to pay for the kegs, the store owner, Shale Beers, asked Brandy for identification. After verifying Brandy's stated age of 20, Shale completed the sale. While making small talk, Shale asked Brandy if the beer was for a party to which Brandy answered "Yes, my parents are having a party."

Due to the bulkiness and the weight of the kegs, Shale assisted Brandy in getting the kegs to the car. While Shale was loading the kegs into the car, Shale noticed Crash sitting in the front seat of the vehicle. Shale recognised that Crash looked underage, at which point Shale asked Brandy if the beer was in fact, for Crash. Brandy answered, stating, "We will both be at the party, but the beer is our parents"

Approximately eighty people attended the party. People began arriving at the Bandicoot home around 4:00 PM. Mr. and Mrs. Bandicoot gave strict instructions to Crash that there was to be no alcohol consumed at the party. Mr. and Mrs. Bandicoot told Crash about a recent news story about parents who were found responsible in criminal and civil courts for allowing a keg party to be held at their home by their teenager. They both stated that no alcohol was to be served and anyone bringing and using alcohol was to leave the party.

In order to feel comfortable that the party was off to a good start and everyone was acting responsibly, Mr. and Mrs. Bandicoot stayed at home for the first few hours of the party. They left at about 8:00 PM. to go out to dinner with their friends, the Banners, at which point they left Brandy in charge. Upon their return at about 10:00 PM they discovered the party attendees, all of whom were underage, drinking beer. They stopped the party immediately and made sure that everyone had a sober driver to take them home.

At around 10:15 PM, as people were leaving, Crash asked to borrow the family car to take a date home. Tipsy Trotters lived about 4 kilometres away. Brash Bandicoot, Crash's father, asked if Crash had been drinking and, if so, how much. Crash answered, "One beer before 9:00 PM". Brash believed Crash, but still angry over the kegs, instructed Crash to take Tipsy home and return immediately.

At approximately the same time that Crash was preparing to take Tipsy home, 16-year-old Kent Tshala and 17-year-old Mai China were leaving a baby-sitting job at 112 Mis Street and began walking the three kilometres to Kent's home. Kent called home before leaving the baby-sitting job to tell them that they were leaving and that they should arrive in about ten minutes. As the two began to walk, a severe thunderstorm hit the area, with torrential rains, 63 kph winds and lightning. The two began to run home as fast as they could.

At approximately 10:00 PM, Kent and Mai neared the intersection of Uptha Street and Downda Street. There is a four-way stop and a marked crosswalk at the intersection. After they had slowed to look for oncoming cars, they proceeded to run diagonally through the centre of the intersection. Just as they got into the intersection and a split second before disaster, the pair saw a car speeding towards them. Mai saw the car first and tried to push Kent out of the way, but Mai slipped and fell on the roadway. Unable to get out of the way fast enough, Mai's right leg was crushed under the wheel of the car. Hit head on, Kent was thrown through the air.

At 10:45 PM, rescue vehicles arrived on the scene, about seven minutes after the police car had arrived on the scene. Kent lay semi-conscious in the middle of the street. Mai China lay immobile about 4 meters from Kent. Crash Bandicoot and passenger Tipsy Trotters were extremely shaken but appeared uninjured. Kent's more serious injuries were attended to first. Kent and Mai were rushed to Marvel Hospital. Crash and Tipsy were also taken by ambulance to the hospital to be examined for possible internal injuries.

After arriving at the hospital, waiting in the emergency room, and being examined by physicians, the police began to question Crash about the details of the accident. The sergeant asked if Crash had been drinking, how fast Crash had been driving and what direction the two pedestrians had come from. Crash told the officer that they had been coming from a matric farewell party and they couldn't have been going any faster than 40 kph because of the severe weather conditions. He said that because of the rain, no stop sign could be seen. Crash also added: "And I only had one beer over two hours ago."

Based on the circumstances surrounding the accident, Crash was asked to submit to a Breathalyzer test. Crash was advised that a refusal to take a test for the presence of alcohol would result in him being arrested. The police officer hearing Crash's statement invoked the Criminal Procedure Act 51 of 1977 and National Road Traffic Act 93 of 1996, stating that both Acts require a motorist to submit to a test for the presence of alcohol by using breath or blood as the test medium. Failure to submit to the test would result in arrest. Crash consented. The test registered a Blood Alcohol Level (BAL) of 0.32mg per 1000ml minutes after the accident (11:45 PM). The police, who are experts in extrapolating blood alcohol content using charts and graphs, determined that over the 75-minute period from the time of the accident until the time that the Breathalyzer was administered, Crash had metabolised some of the alcohol previously taken.

The chart used by the police revealed that Crash's blood alcohol content was 0.23mg per 1000ml of breath, 0.01mg less than the legal limit for establishing prima facie evidence that a motorist is illegally driving under the influence of alcohol.

However, based on the officer's interrogation and observation of Crash's behaviour both at the SCENE at the accident and at the hospital, Crash was placed under arrested for drunken driving. Kent suffered multiple internal injuries and lapsed into a coma immediately following the accident. Kent has remained in a coma and has not yet made any noticeable recovery. Doctors have informed the parents that, as with many similar comatose cases, it is simply impossible to know what the future will hold. Mai China suffered a fractured tibia but has recovered fully.

The parents of Kent, Ken Tshala and Mia Tshala, on behalf of their child, are suing Crash and his parents, Sash and Brash Bandicoot, for negligence which resulted in the injury of their child. The suit seeks damages in the amount of R15 000 000 - 00 (fifteen million rand) for future medical care of Kent, the medical injury sustained by Kent, and Kent's pain and suffering

NB: For the current part, you can assume that the Road Accident Fund was unable to compensate Kent's parents (with reference to section 21 in the Road Accident Fund Act 56 of 1996) and this is why Kent's parents are suing Crash, Sash and Brash Bandicoot directly. Kindly proceed on this basis that the defendants are being sued in their individual capacity for purposes of the present part.

QUESTION

For this question, you must refer to the set of facts that are referred to in File 3 (reference number 3/2020 - Motor Vehicle Collision).

Assume that you have already attended proceedings in the Gauteng Local Division of the High Court, Johannesburg, representing your client depending on whether you have acted for the Plaintiffs (Ken and Mia Tshala, on behalf of Kent Tshala) and for the Defendants (Crash Bandicoot, Sash Bandicoot and Brash Bandicoot).

Depending on the party that you have represented, assume that judgment was given in favour of your opponent and you have been instructed to appeal this matter to a full bench (or full court) of the High Court. You are instructed to appeal the matter by your clients on the following basis, that the single judge in the matter, Judge John Jailer, made the decision as follows:

Judgment in favour of the plaintiffs against the defendants: oThe defendants are to pay the amount of R 15 000 000 for future medical care of Kent

Tshala and for Kent Tshala's pain and suffering. oThe defendants are of the view that the learned judge erred in law in that Crash

Bandicoot was considered to have driven under the influence initially at the time that

the motor vehicle collision occurred. oThat the learned judge did not consider all the defendant's evidence before him.oThat the learned judge's decision goes against the probabilities of the case.

Judgment in favour of the defendants against the plaintiffs: o The defendants are not liable to the plaintiffs to pay the amount of R 15 000 000

(fifteen million rand) for future medical care of Kent Tshala and for Kent Tshala's pain

and suffering. o The plaintiffs are of the view that the learned judge erred in law in that the

defendants are not liable to the plaintiffs because Crash Bandicoot was found not to be under the influence at any stage before or after the motor vehicle collision occurred.

o That the learned judge did not consider all the plaintiff's evidence before him. o That the learned judge's decision goes against the probabilities of the case.

In this regard, you are also required to consult the Practice Manual of the Gauteng Local Division, Johannesburg, as it contains important practice directives concerning civil appeals. You can access this practice manual via the following link:

https://johannesburgbar.co.za/wp- content/uploads/Practice_Manual_Gauteng-Local-Division-of-the-High-Court_Johannesburg_16- October-2018.pdf.

For your respective clients, you are required, as a moot court team, to draft a legal memorandum, in which you are required to do the following:

1. Analyse the steps in civil procedure that are required when one wants to appeal a matter in the high court and then to a full bench of the high court.
2. Discuss the rules from the practice manual of the Gauteng Local Division, Johannesburg, concerning leave to appeal in civil appeals, and indicate how they may differ from or add to the procedure you have set out in point 1 above.
3. Assuming that your application for Leave to Appeal is granted by the court, draft the Notice of Appeal that you would send to your opponent.

You will be required to attach a rubric (Appendix A) to your final summative and portfolio of evidence. Make use of the rubric to assist you with constructing your answer to this question. Remember to also indicate the party that you represent, your full names and student numbers on the rubric before attaching.

NB Remember to make use of the appropriate legal memorandum format, headings, subheadings, appropriate language and referencing i