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[2015] ZASCA 48
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Terblanche v Minister of Safety and Security and Another (20006/2014) [2015] ZASCA 48; 2016 (2) SA 109 (SCA) (27 March 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20006/2014
Not
Reportable
In
the matter between:
ETTIENNE
TERBLANCHE
...........................................................................................
APPELLANT
and
THE
MINISTER OF SAFETY AND
SECURITY
..........................................
FIRST
RESPONDENT
INSPECTOR
M I
MOGALE
.......................................................................
SECOND
RESPONDENT
Neutral citation:
Terblanche v The Minister of Safety and Security and another
(20006/2013) [2015] 48 ZASCA (27 March 2015)
Coram:
Navsa
ADP, Pillay, Saldulker JJA and Fourie, Mayat AJJA
Heard:
13
March 2015
Delivered:
27 March 2015
Summary:
Delict –
claim for loss of earning capacity – farmer
with specialised skills – entitled to be compensated on the
basis of the
cost of substituted labour.
ORDER
On
appeal from:
Gauteng Division, Pretoria (Preller J with Phatudi
and Mabuse JJ concurring sitting as court of appeal):
I
The appeal against the order of the full court, Gauteng Division,
Pretoria under case number A756/2008 dated 31 October 2013 is
upheld,
with costs.
II
The order of the full court is set aside and substituted with the
following order:
‘
i)
Die appèl ten aansien van die vordering vir toekomstige
verlies aan inkomste word met koste gehandhaaf;
ii)
Paragraaf 1 van die bevel van die hof a quo gedateer 21 Februarie
2008 word aangevul deur die invoeging van die volgende as
paragraaf
1.4A
“
Die
bedrag van R 1 557 136.69 ten aansien van toekomstige verlies aan
inkomste;’’
iii)
Die appèl ten aansien van die vordering vir gelede verlies aan
inkomste word van die hand gewys;
iv)
Paragraaf 2 van die bevel van die hof a quo gedateer 21 Februarie
2008 word gewysig ten einde as volg te lees:
‘’
Absolusie
van die instansie word toegestaan ten aansien van die eiser se
vordering vir skadevergoeding weens gelede verlies aan
inkomste.”’
JUDGMENT
Mayat
AJA ( Navsa ADP, Pillay, Saldulker JJA and Fourie AJ concurring)
[1]
The only issue in the present appeal is whether or
not the appellant, Ettienne Terblanche (‘Terblanche’), a
farmer,
had proved a claim for future loss of earning capacity
against the Minister of Safety and Security and a police officer
named Inspector
M I Mogale (the first and second respondents
respectively) before the trial court (Visser AJ) in the
Gauteng
Division, Pretoria. The trial court found that Mr Terblanche had not
proved his loss of earning capacity and the full court
(Preller
J with Phatudi and Mabuse JJ concurring) upheld this finding.
The
present appeal is against the decision of the full court, with the
special leave of this court.
[2]
Terblanche’s claim for damages against the respondents
(conveniently referred to as ‘the police’) was premised
upon injuries which he sustained on 20 July 2005 as a result of
negligent conduct of the police. Pursuant to an agreement between
the
parties relating to the liability of the police to Terblanche and the
quantum of certain other heads of damages claimed by
Terblanche, the
issue before the trial court was limited to determining the amount of
Terblanche’s claim for past loss of
earnings and loss of
earning capacity. In terms of paragraph 2 of its order, the trial
court granted absolution from the instance
in relation to
Terblanche’s claims for past and future loss of earnings. The
claim for past loss of earnings was subsequently
abandoned and the
ambit of the present appeal is accordingly limited to the issue of
the quantum of Terblanche’s future loss
of earnings.
Pertinent
evidentiary framework during the trial
[3]
By way of background, it was not in dispute before the trial court
that whilst Terblanche was in police custody, he incurred
severe
injuries to his head, neck and back, as a result of being tossed
around in the back of a police van negligently driven by
police
officers over rough terrain at high speed. As regards his farming
activities, Terblanche testified that he had started farming
in 1988
and had derived his income solely from farming at the time he was
injured. Thus, he had worked as a farmer for almost 20
years when the
matter came before the trial court in 2007. As regards his
qualifications for farming, Terblanche testified that
he had
completed a two-year diploma in agriculture and had also completed a
mechanical diploma, specialising in diesel engines.
[4]
Terblanche’s farm had an extensive array of crops and he also
farmed with livestock and wild game. By all accounts, on
the basis of
the evidence before the trial court, he was a ‘hands-on farmer’
before he was injured in the sense that
he managed all aspects of the
required functions on the farm, including numerous physical tasks.
Thus, for example, his activities
on the farm included mechanical
work relating to tractors, vehicles and irrigation centre pivots,
described as ‘spilpunte’
in the evidence. He explained in
his evidence in this respect that he maintained and monitored two
centre pivots on his farm: one
with 14 towers for the purposes of
crops on 100 hectares of farmland as well as a smaller one with ten
towers for the purposes
of crops on 74 hectares of farmland. In
addition, he performed a range of other functions including
monitoring the centre pivots,
checking on related sprinklers, mending
electronic fences, repairing micro-switches for sprinklers and
measuring dipping fluids
for different sized animals. He also
indicated that he personally managed the repair of centre-pivots,
which periodically
(and unpredictably) broke down.
[5]
Terblanche further testified that after his back was injured, he was
no longer capable of continuing to do all the physical
aspects of his
farming work. Thus, for example, he could no longer remove and pick
up the gearboxes of the centre pivots for the
purposes of
maintenance. He was also forced to adjust certain physical tasks,
such as for example reducing the size of bags for
fodder for animals
from 50 kilogram bags to 12 kilogram bags.
[6]
Terblanche testified that prior to the incident in this matter, apart
from seasonal workers from time to time, he employed seven
permanent
labourers as well as a foreman, named Painter Kulela, who all lived
on the farm. He indicated in his testimony that in
light of his
injuries, he envisaged employing an additional person to assist him
with managing the farm, particularly in relation
to the physical
aspects of work he could no longer perform. He also testified that
even with supervision, Mr Kulela did not have
the ability to perform
these aspects of the work. Similarly, he indicated that his
other permanent employees were not suitable
for the additional
assistance he envisaged, simply by virtue of the fact that these
employees already had assigned job functions.
[7]
In a joint minute on record by orthopaedic surgeons appointed by both
parties, it was not in dispute that Terblanche had suffered
a severe
injury to his back whilst he was in police custody. The medical
experts also agreed that he was unfit for all physical
aspects of
farming activities previously carried out by him. In addition, they
also agreed that despite his injuries, Terblanche
was nevertheless
still capable of managing his farm and supervising an additional
employee, specifically for tasks he was no longer
fit to perform.
[8]
Dr Deodat Maré, an orthopaedic surgeon, who gave evidence for
Terblanche, reported and testified that Terblanche should
desist
totally from being a ‘hands-on farmer’ as his back
condition would progressively deteriorate. Thus, Dr Maré
opined that Terblanche was only fit for sedentary, administrative or
supervisory work in relation to physical tasks he had usually
performed. On this basis, Dr Maré anticipated that it would be
necessary for Terblanche to employ a skilled person in the
future
such as a farm foreman to assist him with functions he was not
capable of performing, post-injury.
[9]
Ms Sonet Vos, an industrial psychologist retained on behalf of
Terblanche, indicated in her testimony that future income of
a farmer
is generally difficult to predict as such income is dependent on a
number of uncertain variables such as the climatic
conditions and the
fluctuating price of commodities such as wheat. Be that as it
may, she agreed with Dr Maré that
Terblanche would need to
employ a farm foreman with technical and mechanical knowlege as soon
as possible. In this way, she
postulated that Terblanche could
continue deriving an income in a supervisory capacity for the
remainder of his days. Against this
background, she suggested that
monetary compensation to Terblanche could at the very least be
premised upon the costs of employing
a foreman at the Paterson salary
scale of C5 (alternatively C3) until the age of 65 years. The
actuaries retained by Terblanche
then calculated the costs of
employing a foreman at three levels. In the alternative, on the basis
of the averment that Terblanche
is entitled at least to the costs of
substituted labour in the form of an artisan on the B2 Paterson level
of earnings, Terblanche’s
loss was actuarially computed to be
the sum of R1 557 136.99.
[10]
An occupational therapist, Ms Dina Rocha, testified on behalf of the
police that she had conducted certain physical tests on
Terblanche,
including strength tests as well as tests for his range of movement
and agility. Significantly, whilst Ms Rocha confirmed
in her
testimony that she was not an expert in relation to farming, she
nevertheless accepted the views of Terblanche’s experts
to the
effect that he should not continue doing heavy, physical work on his
farm. She further accepted on the basis of reports
from the relevant
experts that by continuing to work on the farm, Terblanche had
accelerated the need for a future spinal fusion.
Findings
of trial court
[11]
Visser AJ found that Terblanche’s existing employees could
perform physical activities on his behalf. Thus, the trial
court
found that notwithstanding his injuries, Terblanche could still
manage his farm by delegating tasks to his existing employees.
On
this basis, the trial court accordingly held that Terblanche had not
proved and quantified his future loss of income.
[12]
A significant feature of the trial, which bears mentioning is the
fact that Visser AJ saw fit to cross-examine, debate and
canvass with
all witnesses various topics throughout the course of the trial,
apparently on the basis of the judge’s personal
knowledge and
experience as well as his own opinions on expert evidence before him.
In fact, the learned judge remarked on his
own conduct in this regard
at one stage during the trial by asserting that:
‘
.
. .dit sê ek maar vir u reguit, ek lewer nou ‘n bietjie
getuienis. . . .’
Findings
of full court
[13]
As already indicated, the full court agreed with the trial court that
Terblanche had not established on a balance of probabilities
that he
had sustained any loss of earning capacity for which he could expect
to be compensated. The full bench consequently dismissed
the previous
appeal.
Loss
of earning capacity
[14]
The difficulty with claims of this nature is generally not so much
the recognition that earning capacity constitutes an asset
in a
person’s estate, but rather the quantification of the monetary
value of loss of earning capacity by a trial court. Each
case
naturally depends on its own facts and circumstances as well as the
evidence before the trial court concerned.
[15]
As regards proof of Terblanche’s loss, the trial court relied
upon certain dicta in
Rudman v Road Accident Fund
2003 (2) SA
234
(SCA) relating to a claim for loss of earning capacity by a
mohair and game farmer, not dissimilar to Terblanche. This court
found
in the circumstances of that case that the injured Mr Rudman
had not discharged the evidentiary onus of proving a diminution in
the value of his patrimony. Similarly, Visser AJ also found that
Terblanche had not discharged the onus on him. Significantly,
the
court in
Rudman’s
case recognized that for the purposes
of establishing a claim for loss of earning capacity,
‘
[t]here
must be proof that the reduction in earning capacity indeed gives
rise to a pecuniary loss.’
It
is pertinent in my view that the farmer in
Rudman
conducted
his farming activities through a company, and the court found in the
circumstances of that case, that the devaluation
of his shares in
this company was not established by the evidence. As such, his
personal patrimony was not really at stake.
[16]
In contrast, on the basis of the undisputed evidence in the present
case, it was established before the trial court that Terblanche
would
sustain a pecuniary loss in his personal capacity if the additional,
necessary labour was used to substitute certain aspects
of his
functions. Therefore, as this court has held in
President
Insurance Company Ltd v Mathews
1992 (1) All SA 179
; SA 1992 (1)
(A) at 5E-G:
‘
There
is no reason in principle why, in an appropriate case, the cost of
employing a substitute should not form the basis of a claim
for
damages arising from a plaintiff’s inability to carry on his
pre-collision trade or profession. See Luntz
Assessment of Damages
for Personal Injury and Death
2nd edition, 259. Thus a doctor who
has been temporarily incapacitated and thereby prevented from
conducting his practice could
recover the cost of a
locum tenens
,
assuming always the costs of employing such
locum tenens
would
be less than the loss of income or profits he would otherwise have
sustained. By adopting such course he is effectively mitigating
his
damages, as he is obliged to do.’
The
principles enunciated in
Mathews
are accordingly clearly
applicable in the present case and the dicta in
Rudman
are
distinguishable.
[17]
In these circumstances, it is my view that the actuarial computations
made available to the trial court premised upon uncontroverted
evidence, constituted the most appropriate basis for the trial court
to quantify Terblanche’s diminution of his patrimony.
The
different levels of actuarial computations, which were made available
to the trial court, ranged from the computed loss in
respect of a
foreman with mechanical skills, at the highest level, to the computed
loss for an artisan on the B2 Paterson scale,
who had the potential
to be trained and supervised by Terblanche, at the lowest level.
Whilst I accept that Terblanche did not
establish a case for a
mechanically skilled foreman (at the highest level), I have no
difficulty in finding that he had established
a case for the
additional costs of an unskilled employee, who could potentially be
trained over time. Counsel for both parties
agreed in the
context of the present appeal that on the basis of the available
actuarial computations, substituted labour for an
artisan for
specified physical functions was fairly and equitably calculated to
constitute the sum of R1 557 136.69.
Conclusion
[18]
For the reasons given, the trial court as well as the full court
erred in finding that Terblanche had not established a claim
for loss
of earning capacity. The appeal relating to Terblanche’s claim
for the diminution of his earning capacity must accordingly
be
upheld.
Costs
[19]
Whilst Terblanche was represented by two counsel in this appeal, the
costs of two counsel were not justified, nor motivated.
Therefore, to
the extent that Terblanche has been successful in the present appeal
in relation to his main claim for loss of future
earning capacity
before the trial court, I propose granting a costs order in the
normal course, not specifically providing for
two counsel.
Order
[20]
The following order is accordingly made:
I
The appeal against the order of the full court, Gauteng Division,
Pretoria under case number A756/2008 dated 31 October 2013 is
upheld,
with costs.
II
The order of the full court is set aside and substituted with the
following order:
‘
i)
Die appèl ten aansien van die vordering vir toekomstige
verlies aan inkomste word met koste gehandhaaf;
ii) Paragraaf 1 van
die bevel van die hof a quo gedateer 21 Februarie 2008 word aangevul
deur die invoeging van die volgende as
paragraaf 1.4A
“
Die
bedrag van R1 557 136.69 ten aansien van toekomstige verlies aan
inkomste;’’
iii)
Die appèl ten aansien van die vordering vir gelede verlies aan
inkomste word van die hand gewys;
iv)
Paragraaf 2 van die bevel van die hof a quo gedateer 21 Februarie
2008 word gewysig ten einde as volg te lees:
‘’
Absolusie
van die instansie word toegestaan ten aansien van die eiser se
vordering vir skadevergoeding weens gelede verlies aan
inkomste.”’
________________________
H Mayat
Acting Judge of
Appeal
Appearances
For
the Appellant: J O Williams SC
L
W De Beer
Instructed
by:
Vezi
De Beer, Pretoria
Honey,
Bloemfontein
For the Respondent:
D E Meyer
Instructed by:
The State Attorney,
Pretoria
The State Attorney,
Bloemfontein