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[2019] ZAGPJHC 55
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T J v Road Accident Fund (16079/2018) [2019] ZAGPJHC 55 (28 February 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 16079/2018
In
the matter between
:
J,
T
Plaintiff
and
The
Road Accident
Fund
Defendant
J
U D G M E N T
Van
der Linde, J
:
Introduction
[1]
This is a claim against the RAF for damages arising from personal
injuries which the plaintiff says he sustained during a collision.
The defendant has conceded liability but not quantum. The
parties have also not asked me to make a finding as to the amount
that would fairly compensate the plaintiff for the general damages
allegedly suffered by him, since whether or not a serious injury
has
been sustained, has been referred to the Health Professions Council
of South Africa’s Tribunal for determination.
[2]
Exhibits C and D were handed up by agreement. These two
exhibits, described as general documents, formed part of a bundle
of
exhibits handed up, A1 through L. The usual status agreement applied,
namely that the documents are what they purport to be,
but the truth
of their contents was not admitted. Exhibits A1 and A2 were handed in
as formal admissions. What was also admitted
is the quantum of the
loss in respect of past medical expenses, in the amount of R10 000.
As regards future medical expenses,
the defendant has tendered an
undertaking in the usual statutory format.
[3]
What remained in dispute were past and future loss of earnings, the
combined claim under this head of damages being for some
R5.7
million. Costs remained in dispute.
[4]
What had happened was that the plaintiff was stationary in his motor
vehicle at an intersection when he was hit from behind
by the vehicle
in respect of which the defendant assumes statutory liability for
negligent driving, injuries and consequent damages.
The
plaintiff’s case
Dr
Visser
[5]
The plaintiff’s first witness was a Dr Visser, a psychiatrist,
who proved his report at Exhibit E. He explained
in his viva
voce evidence that although the plaintiff would appear to have
suffered no concussion in the usual sense of the word
during the
collision, he may have experienced an altered state of
consciousness. I interpose to point out that that the common
cause hospital records do not suggest that the plaintiff lost
consciousness, but only that he was “dizzy” after the
collision.
[6]
It would appear that after the plaintiff was hit from behind, his
vehicle was forced forward and he hit his head against the
steering
wheel. After a short delay at the scene of the accident, he drove
himself first to one hospital and then to another. There
were no
fractures. The injuries were all, to the extent that these were
yet to be proved, of the soft tissue type.
[7]
Dr Visser said that in some people such an injury can result in
permanent depression, with poor attention and poor memory.
He
believes that this is evident in the case of the plaintiff because he
has recurrent headaches, disequilibrium and sleep problems.
He
believes that the effect of the chronic pain suffered by the
plaintiff was to impact him functionally. The witness said
however that it was impossible for him to gauge whether the plaintiff
has been functionally impaired compared to his pre-accident
condition. He thought that the plaintiff was likely to improve
but it was impossible to say whether full recovery will eventuate.
[8]
Before turning to the cross-examination it is necessary to remark
that the evidence of the witness was given, virtually without
exception, in response to leading questions to which there was no
objection by counsel for the defendant. The court indicated to
counsel for the plaintiff that the value of answers given to leading
questions is compromised, but the leading questions nonetheless
continued.
[9]
In cross-examination the witness explained that the plaintiff had
said that he felt “
dazed
” when in consultation the
witness asked the plaintiff whether he had lost his consciousness in
the collision. The witness
also said that he thought that with
treatment the plaintiff’s chances of passing his non-academic
MBA, the first year of
which he had passed, but the second year of
which he had failed post-accident, were good. Generally, his
chances of improving
were good.
Dr
Sugress
[10]
The next witness for the plaintiff was Dr Sugress. She has a
PhD in Industrial Psychology and proved her report at Exhibit
F. She
explained that the plaintiff was in his 2
nd
year MBA at a
higher education institution when the collision occurred. He failed
that year. He had passed his 1
st
year. He did
not have matriculation exemption when he passed matric but did obtain
a Diploma in Human Resources thereafter.
Years later he
enrolled for his MBA, which is not an academic MBA, at Henley
Business School. The witness said that she had
obtained the
plaintiff’s academic transcript from Henley Business School but
she did not hand it in as an exhibit and it
was never proved.
[11]
The witness said that she did not receive confirmation of the
plaintiff’s income of R45 000.00 per month with Cell-C.
She explained that he enrolled for his MBA in 2012. In March
2012 he joined Lenovo having moved there from Cell-C where he
was a
Senior Manager. His contract of employment was proved. He
was offered a sign-on bonus of R60 000.00 at Lenovo.
At Lenovo
he was a Service Delivery Manager earning R60 000.00 per month,
and this was a 25% increase on his previous salary.
He was
travelling a lot into Africa. He was working in a
corporate sector prior to the injury, and his income
was at the
Paterson level D1, between the median and upper quartile. His
education and training was at the level of NQS level
6, yet he was
earning what a graduate could potentially earn in the corporate
sector.
[12]
The witness said that the probability was that the plaintiff would
have completed his MBA. He had, pre-morbid, a high-average
cognitive
ability. He completed his 1
st
year MBA studies
successfully and was therefore ambitious and his career was on the
rise.
[13]
Post-accident he left Lenovo in April 2015 and joined Microsoft in
May 2015. (These dates were wrong and should be one
year
earlier). The plaintiff told her that he left Lenovo because he was
not coping. Disciplinary action was threatened against
him.
Pre-accident, he did not report any period of unemployment except for
some seven months after he matriculated in 1994.
He also did
not report any period of unemployment post-accident. The witness said
that she thought that the plaintiff joining Microsoft
was an
impulsive decision on his part.
[14]In
the event he did not complete his contract at Microsoft and
complained of similar problems there as he had experienced at
Lenovo.
The Microsoft contract was renewable, but the witness did not know at
whose option. The witness thought that there was
a clear pattern
here: the plaintiff resigns pre-emptively to being dismissed.
[15]
The plaintiff’s 2016-tax returns showed an annual income of
R609 231.00 whereas his 2015-tax return showed an annual
income
of R977 924.00. At the time of the accident he was earning
R65 742.00 per month. His 2017-tax return showed an
income of
R56 276.00 per month.
[16]
The witness opined also that but for the accident she would have
expected that he would have finished his MBA and therefore
that he
would have experienced further increases. He was 36 years old and had
another ten years to increase his experience.
He would have
moved to the Middle East and would have earned in Dollars.
[17]
He was an exception in his family; his father was a driver and his
mother was unemployed. The plaintiff was now, having regard
to the
accident, earning less than he was earning before the accident.
He has been employed at Samina since April 2015. He
has had no
promotions and only inflationary increases. His career has in effect
stagnated.
[18]
The witness could not say whether the prescribed medical treatment
will improve the plaintiff’s working capacity and
deferred to
medical practitioners in that regard. However it is noted that the
witness’ report does not envisage that the
plaintiff recovers
at all. The witness believed that the plaintiff has reached his
ceiling post-accident, and his post-accident
earnings are in fact
lower than her estimate was.
[19]
It must be noted, again, that as was the case with the previous
witness, this witness was asked leading questions virtually
all along
and this was despite the attention of counsel for the plaintiff again
being drawn to that fact.
[20]
Cross-examined, the witness said that the plaintiff was from a humble
background. When employed at Cell-C he was sent to GIBS
for a
Leadership Programme. She explained that many schools offer MBA
degrees without a prior degree. She said that what she knew
of Henley
Business School she had read on the internet but was unable to give
detail as to the MBA courses offered. She did
receive his
academic transcript from Henley Business School. She said that
any relevant qualification would have advanced
the plaintiff’s
position.
[21]
The witness said that she knew that an MBA is a Master’s Degree
and although it may not be an academic Master’s
Degree it would
have improved the plaintiff’s position. She
accepted that she was not an expert at schooling
and then conceded
that she could not say whether or not the plaintiff would pass his
MBA. It was put to her that in 2012 when he
failed he was travelling
a lot in Africa and that that could have been the reason for his
failure. The witness could not exclude
it but said that his general
performance had dropped. She said that according to other
experts the plaintiff has problems.
[22]
She accepted that there were no reports from Lenovo as to why he
stopped working there and she had not been able to obtain
collateral
support for the plaintiff’s explanation why he left Lenovo.
She did speak to the previous HR Manager who
said that she could not
provide any information except to say that he was working well.
He left Lenovo in April 2012 and
joined Microsoft the very next month
in May 2012. His earnings at Lenovo were R65 742.00 per
month and at Microsoft
R72 000.00 per month. His cost to company
at Microsoft was almost the same as at Lenovo. At Lenovo his
take-home pay
was R41 588.50 and at Microsoft it was
R45 782.76.
[23]
With reference to her report Exhibit F page 117 where she wrote that
the plaintiff had “
opted
” for the position at
Microsoft, she accepts that in fact he chose to be employed on a
contract basis. She accepts that
at Sanmina his cost to company
is approximately R89 000.00 per month and that this is more than
it was at Microsoft.
His take-home pay now is R47 500.00
more than what it was at Microsoft. It was put to her that he
changed jobs post-accident
for higher salaries since in April 2014 he
was earning R41 500.00 at Lenovo, in December 2014 R45 700.00
per month at
Microsoft and in September 2018 at Sanmina, R47 500.00.
The witness thought that the increases were marginal.
[24]
The witness confirmed that she was not able to confirm that he
resigned for disciplinary reasons but said that she was inclined
to
believe the plaintiff. His increases were progressional and not
promotional.
[25]
In re-examination his tax returns were again proved and the witness
said that although the plaintiff has not had any nominal
decreases in
salary, he has not experienced any increases in real terms.
From the time of the accident he has remained stagnant.
He does
not have any performance bonus now.
Dr
Schnaid
[26]
The 3
rd
witness for the plaintiff was Dr Schnaid, an
Orthopaedic Surgeon. He proved his report at Exhibit G page
16. The witness
said that he had read Exhibit J, the
defendant’s neurosurgeon’s report and concurred with it.
In his own report
under page 18 Exhibit G he confirmed that the
“
current status
” comes from the plaintiff.
He concurred with the conclusion on page 20 paragraph 12 he concurs
with that conclusion.
Concerning the head injury, he deferred.
He stood by what he said concerning the cervical spine and the lumbar
spine.
He had regard to the report of the radiologists and
suggested that usually one starts with conservative treatment.
He opined
that if the back pain does not go away within one year, it
is likely to recur.
[27]
Concerning future medicals he thought that fusion of the lumbar spine
would have to be investigated. This would if performed
decrease
his mobility. The witness said that he stood by his conclusion
at page 22 paragraph 18. If the patient does
have a fusion he
will have to take off work. The witness said that the patient’s
work surrounds, implying physical activities
such as carrying
computers, will be compromised. He referred in this regard to
page 21 paragraph 15 of his report.
[28]
Cross-examined the witness said that paragraph 3 on page 17 he
obtained from the hospital records and what the patient told
him.
The witness could not tell whether the hospital records spoke of a
loss of consciousness. He then accepted ultimately
that the
hospital records do not refer to a loss of consciousness. He
therefore concluded that it was the patient that must
have told him
that there was a loss of consciousness.
[29]
The witness said too that it was the patient who told him that his
highest grade that he had passed was Grade 12; he must have
missed
that the patient also had a diploma. The witness said that the
plaintiff told him that he was a supervisor of computers.
[30]
Ultimately the witness said that the patient suffered an injury of
the disc and probably also a whiplash. It is to be
noted that
the report of the witness does not refer to an injury of the disc but
only to soft tissue injury; and does not refer
at all to a whiplash
injury.
[31]
When the witness was taxed concerning his assessment of the severity,
overall, of the patient’s injury and in particular
why he added
20% for the head injury when he was not qualified to express an
opinion on the head injury, he said that he had taken
a course and he
was able to express such an opinion. In questions from the court the
witness said that he could not say whether
the degeneration of the
disc is a function of the injury sustained in the collision.
[32]
It is necessary to remark that this witness created a poor
impression. He vacillated; he appeared to change his evidence,
particularly in regard to the injuries which the plaintiff in fact
suffered as indicated above, and he gave answers that in my view
were
opportunistic, such as the 20% severity assessment for the head
injury which he had inserted.
Mr
Sampson
[33]
The next witness for the plaintiff was Mr Sampson who is a Clinical
Psychologist. He has been in practice since 2010
and therefore
would have had about eight years’ experience when he
testified. He confirmed his report Exhibit
“H”.
He opined that the plaintiff suffered a frontal lobe injury. He
concluded that the plaintiff suffered
deficits as a result of the
injury but the only material he had with which to compare the
patient’s pre-accident condition,
was the evidence the
plaintiff gave him and his inferences drawn from the plaintiff’s
job descriptions.
[34]
The witness said that the maximum improvement of a person with
frontal lobe injury is within a year so that if there will not
have
been improvement within a year then the
sequelae
of his
injuries are permanent. The witness opined that the plaintiff’s
current functioning was not compatible with
his pre-accident
functioning.
[35]
It has to be said that in the case also of this witness the bulk of
the evidence that he gave in chief was the result of leading
questions put to him by plaintiff’s counsel.
[36]
Cross-examined he said that his assessment was not to look for a head
injury. And yet, as has been noted, the witness said
that indeed the
plaintiff did suffer a head injury; he re-affirmed this later in
questions from the court, despite his evidence
in cross-examination
that his assessment was not to look for a head injury.
[37]
He accepted that the plaintiff’s position pre-accident was that
he was of
high average intelligence
. He said that by
high
average intelligence
he meant that he expected of the plaintiff
to obtain an aggregate in Grade 12 in the 50% range. He was
asked in cross-examination
to describe a student who obtains 70%
aggregate and he said that this was reflective of a person with an
above average intelligence
.
[38]
He accepted that normally a person with
high average intelligence
would obtain a matric exemption. When he was pushed and it was
pointed out to him that the plaintiff did not obtain a matric
exemption,
he said that it was not the rule that a person of
high
average intelligence
would necessarily obtain matric exemption.
[39]
The witness confirmed that he obtained no collateral information from
the plaintiff’s previous employers. He said
that that
does not fall within his remit and he works with the information that
he has at hand. He said that although he did not
set out to look for
a head injury, what his function is, is to look for deviation from
expectation. He said that head injuries
tend to exaggerate a
person’s pre-morbid weaknesses. He said too that he
agreed with Dr Schnaid concerning the severity
of the plaintiff’s
injuries.
[40]
This witness too was unimpressive. He had not much practical
experience by the time he compiled his report, being limited
to some
eight years. He was unprepared to make any concessions and overall
created the impression that he would find a way partisan
to the
plaintiff, with words, to work around any perceived difficulty that
the cross-examiner would put to him.
The
plaintiff
[41]
The next witness was the plaintiff himself. He is Mr T J and
English is his first language. He is currently 41
years old and
was 36 when the collision occurred on 28 October 2013. He
described the collision. He was driving a Toyota
Yaris.
He was travelling in William Nichol Drive towards Sandton and stopped
at a traffic light-controlled intersection when
the light was red for
him. A bus hit him from behind. He remembers only glass
shattering as he was “
out
”. He heard people
around him. He found himself outside of his vehicle, across the
intersection.
[42]
He interrupted his explanation of the events by saying that at the
time he was working at Lenovo in Bryanston as a Service
Delivery
Manager for South Africa and Africa. He managed the repair
centres. He was earning between R48 000,00 and R49 000,00
per month besides benefits such as a cell phone allowance, fuel, 100%
pension contribution by the employer and 80% medical aid
contribution
by the employer. The value of these benefits took his salary
after tax to R61 000,00 per month.
[43]
Currently he is an Operations Manager for a team of thirteen people
with a company known as Sanmina. The product is to
repair
Motorola two-way radios and Zebra printers. At Lenovo he
managed 32 to 40 countries with eight to ten people in each
repair
centre. His salary now is R45 000,00 per month after tax
within which is included his pension and cell phone
allowance.
[44]
Returning to the collision itself he explained that when his car came
to a standstill people were there to assist him and to
help him out
of his car. He was “
confused
”. He spoke with the
driver of the bus who said that he was sorry. After about 30 to
45 minutes the two of them drove
separately to the SA Police Station
in Randburg, each with his own car. Each gave his version and
that appears at Exhibit
C pages 23 and 24. Thereafter they went
their separate ways.
[45]
The plaintiff went to Olivedale Hospital but it was very busy there
and he waited too long to be treated. He then drove to
Lenasia
Medi-Clinic where he was put on a drip and was given medication and
underwent scans. The information which appears in Exhibit
C pages 31
and following and particular page 39 was provided by him. He
confirmed the correctness of the information supplied
on Exhibit C
page 33. Concerning his past medical history reflected on
Exhibit C page 34, he confirmed this. He remembers
that he had pain
in the head, the back, and the chest. He phoned a friend to
come and help him.
[46]
He confirmed that X-rays were taken the same evening, and the results
of the X-rays were explained to him but he did not really
understand
it. He then began referring to the hospital accounts at Exhibit
L, as well as the detailed accounts appearing
at Exhibit L and the
X-rays at Exhibit C page 41 to 44.
[47]
At this stage the court asked the parties seriously to consider
whether the past hospital expenses could be settled, and adjourned
to
give the parties this opportunity. Subsequently the court was
informed in chambers that the parties had settled the claim for
past
medical expenses at R10 000.00.
Ms
Naidoo
[48]
On the morning of 21 November 2018 at the request of counsel for the
plaintiff, Ms Naidoo was interposed in the evidence of
the
plaintiff. She is employed at the SA Qualifications Authority
and the purpose of her testifying was to confirm that the
MBA which
is offered by Henley Business School has in fact been properly
registered in terms of the laws of this country. She explained
that
that MBA is accredited with the Council for Higher Education.
She explained that although normally an honours degree
is required by
business schools before allowing an entrant to an MBA course, by
virtue of government policy the notion of Recognition
of Prior
Learning (“
RPL
”) was introduced.
[49]
In terms of this policy, educational institutions are entitled to
allow an entrant to a course such as an MBA despite not having
the
required prior university degrees if such an entrant is able to show
that he or she has by virtue of practical experience attained
the
required NQF level. She explained that her own qualifications
are that of being a Pharmacist, with a Diploma in Marketing
and a
Certificate in Project Management. She is a Director in the
Office of the CEO.
[50]
Regrettably the leading questions persisted.
[51]
In further cross-examination she explained that an entrant to the MBA
course would, if he or she does not have an honours degree
or
equivalent, be required to be qualified at the NQF7 or 8 level.
She explained that this policy was an attempt to redress
racial
discrimination of the past. It was not a free-for-all because
the institution concerned would first assess the individual.
RPL does not guarantee ultimately obtaining the qualification
concerned.
[52]
The witness said that she could not say what the pass rate is of
those who entered the MBA course without having attained the
necessary university degrees for entrants. She thought that it
would be difficult for such a person to pass, but this depended
on
the individual. However, the likelihood of such a person obtaining
the degree was regarded as being low.
The
plaintiff (continued)
[53]
The plaintiff then continued his evidence in chief. As with the case
of Ms Naidoo, again the plaintiff was being put leading
questions. He
explained that his back was still a problem; that he experiences
headaches; that his sleeping patterns have changed,
and that his
memory has gone and has gotten worse. Nothing has become resolved.
He said that he has headaches every day that
start in front of his
head and then go to the back. He cannot sleep. He uses painkillers,
both over the counter and prescribed,
and the headaches are so bad
that he has a maximum of two, three or four hours of sleep per night.
He explained that the headaches
affect him at work in the middle of
the day.
[54]
He left Lenovo nine months after the accident because he was starting
to have issues at work. He could not function as
before.
The issues were with his Line Manager. He found that he could
no longer travel into Africa and flying was a
problem but also he was
becoming forgetful. His Line Manager said that he was not happy and
so the plaintiff decided that he would
have to leave so as to avoid
being fired resulting in a bad employment record.
[55]
He then originally agreed to do contract work with Microsoft for two
years but after nine months he saw that this was not working
out
since he was experiencing the same problems as he had experienced at
Lenovo. The option was put to him to resign with
two months’
pay and no disciplinary enquiry would be instigated, and to this he
agreed.
[56]
He could not find alternative employment for about two and a half
months. He tried everything he could and reached out to previous
colleagues. He was ultimately referred to the job that he has
now taken up with Sanmina. This was at a substantially smaller
scale
than before: at Lenovo he had 300 to 400 people reporting to him, at
Microsoft 25 were reporting to him and at Sanmina only
13. His
salary at Lenovo was R61 000.00 per month, at Microsoft
R45 000.00 and at Sanmina also about R45 000.00.
[57]
At Lenovo he had a permanent position and a written contract. He was
headhunted there. He joined them in April 2012 and
since he was
going to miss out the bonus which was due to him at Cell C, Lenovo
agreed to pay him that bonus. The salary
at Lenovo provided for
increases depending on performance. The percentage annual increase
was not stipulated but his boss said
that it would be about 8%.
The R61 000.00 per month was the end salary in 2014 when he left
Lenovo. His payslip
is at Exhibit D page 63.
[58]
He started his employment at Lenovo on 1 March 2012. After the
accident he did not go back the next day nor for a week or two.
He was paid fully for being off sick; he had received a doctor’s
note which he gave to his employer. Bonuses were payable
depending on
his KPI performances (Key Performance Indicators) and these were set
by his director. He received performance
bonuses at the end of
his first year at Lenovo.
[59]
He proved his employment contract at Exhibit D page 87. He
explained that the payment made to him which is referred to
in
paragraph 1.2 of Exhibit D page 86 was never required to be repaid by
him. Clause 2 at page Exhibit D87 refers to three months’
probation which he passed. He confirmed that he earned the
salary reflected at Exhibit D page 87 clauses 3.1.1 and 3.1.2.
Concerning the bonus requirement, he said that this was
over-achieved.
[60]
When his salary was reviewed, his salary increased pursuant to
Exhibit D page 88 clause 3.2.1. His bonus increased with
reference to Exhibit D page 88 clause 3.2.3. He confirmed his
additional employment benefits reflected at page D88 clause 4 and
said that he received all of those benefits.
[61]
He had no outside interests as was referred to at Exhibit D page 91
clause 13. As to the nature of the difficulties he
experienced
with his manager, he said that this related to his failure to achieve
his KPI’s. He was not able to ensure that
the centres in Africa
for which he was responsible were doing well; he was becoming
forgetful, and he was also experiencing problems
with travelling into
Africa.
[62]
He explained that after he finished his matric in 1994, he started
working for Telkom in 1995 earning about R6 000.00
to R7 000.00
per month gross. There he was dealing with customer service
related complaints. He was with Telkom
for 7 years and got
promoted twice from directing services, to the cell centre and later
he was promoted to the finance team dealing
with credit control.
[63]
He said that he progressed “
quite substantially
”.
He completed his National Diploma in Human Resources at Unisa.
He was then employed with Cell C in 2002 earning
between R12 000.00
and R14 000.00 per month in their cell centre. He left Cell C as
a Senior Manager earning R55 000.00
per month. He had
progressed within the first year to dealing with Customer Services
Division where he was for one to two
years. Then he was
advanced to the Insurance Division where he spent one year, before he
was appointed as an Insurance Manager
for two to three years.
He said that he was identified as a high performer which led to him
being sent on a leadership course
with GIBS.
[64]
While at Cell C he was identified as having managerial potential
which led to him enrolling at HBS for his MBA. He wanted
to
further his career. He was able to manage the demands of his
employment and his progression there, as well as his further
studies. He passed his first year MBA.
[65]
He had selected HBS, although an MBA at Wits, GIBS, or Unisa were
also mentioned. HBS was recommended, and to do the
MBA
part-time. It was internet-based although they had to spend
three days per subject in a classroom during the course of
the year.
His immediate executive at Cell C permitted him the appropriate leave
to attend the lectures. He made up for the
lost hours. He was
earning R55 000.00 per month when he left.
[66]
He proved Exhibit D page 72 which was his 2009 tax assessment at Cell
C. He was a manager then but he could not say whether
he was in
fact a senior manager. His income per annum was then
R330 448.00. He proved his diploma at Exhibit D
page 69
and his leadership programme attendance at GIBS at Exhibit D page
70. He proved the letter received from Henley Business
School
confirming that he had been registered there at Exhibit D page 71.
[67]
He says that in 2012 he was headhunted by Lenovo. His ultimate
intention was to join a multinational company so that
he was able to
“
progress out of South Africa
”. He said that
his first year at Lenovo was quite successful and that he also passed
his first year MBA.
[68]
By January 2014 he was experiencing a decrease in the level of his
professional performance. He could not understand
why this was
happening. He was experiencing a significant impact on his
memory and, later on, he realised that this was as
a result of the
accident. Initially he was able to do everything by way of his
day-to-day tasks but this had changed.
He has been married
twice. He was not aware that he had not told the experts that
he had been married before. His first
marriage broke up because
his wife had an affair.
[69]
The problems that he commenced experiencing related to his back pain,
his headaches, his neck pain and his lower back pain.
He said
that his memory was changing and so too his emotions. He could
not even recognise himself. He used to be outgoing
and now he
hated noise and cannot stand being around children. That fact
had an impact on his second marriage. He said
that he can no
longer relate to himself. He said that he has been constantly
depressed and cannot do the things he usually did
before. It
affected him also in the bedroom. That led to the breakup of his
second marriage.
[70]
Over the years his pains have gotten worse. He had never
intended leaving Lenovo but he was forced to do so. He
would
have worked until age 65 otherwise. He joined Microsoft after
he had left Lenovo and was there earning R45 000.00
per month.
He proved his payslip at Exhibit D page 64, 65, and 66, at R65 369.00
per month. There was a decrease in
salary between 2013 and 2014
but he could not say why this was. His basic salary was now
lower and also the travel allowance.
[71]
The senior certificate which he got from the Department was proved at
Exhibit D page 67. He said that at Cell C there was a
senior manager
earning R45 000.00 per month. Taxed as to how he was able
to earn that much given his low matric results,
he said that his
family and the area in which he grew up were not conducive to
attaining high matric results; the teachers were
also poor. After
matric he realised that his qualifications were not good enough and
that is why he sought to improve himself.
[72]
Asked why he did not pass his second year MBA he said that his job
had become demanding and he was not able, because of his
travels into
Africa, to write the first sitting. When he sat down for the second
sitting, he realised that he could remember nothing
that he had
studied for the examination. And he said that he had studied harder
than he did the previous year.
[73]
Now his aspiration is simply to keep down his present job. He says he
is not even coping now. He keeps forgetting things and
so he has to
write down everything. When he was at Cell C he supervised
about 100 staff members and at Lenovo about 400.
At Microsoft he
managed 25 staff members and currently even less. He has not
attempted to resume his studies because he now
realises that he no
longer has the ability to do so. That realisation hurts him a lot.
[74]
The witness proved his IRP5 returns at Exhibit D pages 73, 74, 75,
76, 77, 78, 79, 80, 81, 82, and 83. He also proved
his payslip
at Exhibit D page 85 at Sanmina. He explained that he has experienced
a drop in real terms between the position he
had at Lenovo and now at
Sanmina. This is reflected in the pension, the medical aid, and
the cell phone allowance.
The difference is from R60 000.00
at Lenovo down to R47 000.00 now. He says that he is now earning
less than he had earned
before.
[75]
He wanted, before the collision, to attain the directorship level,
but this has now not been realised. It is getting
tougher for
him to achieve. He does not have the mental ability to do so
and is in constant pain. He is no longer the
same person.
He has less energy. All of this is related to the collision.
[76]
Cross-examined he said that he had before experienced headaches but
now he experiences headaches on a daily basis. This started
about six
months after the accident. He is using more painkillers now
than before. He cannot think of anything else
that would have
caused the onset of the persistent headaches but the accident. He
says that he now has a very bad memory.
[77]
It was put to him that he had been giving evidence all day, and that
he had been able to remember numbers off the top of his
head without
them having been recorded. His response was that there were certain
things that he could remember well and others
not. He was not
able to say what the type of things were that he could remember well
and the things that he could not remember
well. He says that he
has no control over what goes in and what stays in.
[78]
It was put to him that he gave a good account of the accident.
He explained that he cannot control what he can remember
and what he
cannot remember. He said that he did remember specifically his
salaries. He was unable to say whether the
leadership programme
which he did at GIBS was accredited. He did not mention it to
some of the experts and could not say
why he had not. He accepted
that it was an important qualification.
[79]
It was put to him that the industrial psychologist had said that any
qualification post-diploma (including the GIBS course)
would have
propelled him into middle management; and yet he says he could not
explain why he forgot to tell her about that.
He simply forgot.
[80]
He said in his evidence that he had used LinkedIn, the software
programme, to progress from Microsoft to Sanmina. It
was put to
him that on his LinkedIn profile it was stated that he was registered
for an MBA between 2014 and 2017. He agreed.
It was put
to him that this was wrong and he agreed. He accepted that he
stopped his MBA in 2014 and therefore could
not have said that he was
registered for an MBA between 2014 and 2017. He did his second
year exam for the MBA in December
2013. He did not amend his
LinkedIn profile to match the fact that he was no longer doing the
MBA. He accepted that
the dates on the LinkedIn profile were
incorrect. He accepted that he failed his MBA in 2014 and got
kicked out in that year.
[81]
He could not explain why the letter Exhibit D page 71 from Henley
Business School did not report that he was kicked out of
the MBA in
2014. He accepted that the letter from HBS speaks of an MBA of four
years and seven months and yet his LinkedIn profile
speaks of him
being registered for an MBA between 2014 and 2017.
[82]
His explanation was that sometimes he does stupid things and that
fact gets to him. He said that he was still in the MBA programme
when
he amended his LinkedIn profile to reflect that he was registered for
MBA from 2014 to 2017. When he amended the LinkedIn
information, he was at that time registered for 2011 to 2014.
Amending the programme information from 2011 to 2014, to 2014
to
2017, did not - he thought - present a serious problem. He says
he thought that he was in denial and therefore anticipated
that he
would be still registered for the MBA from 2014 to 2017.
[83]
He said that he only realised that he had a problem after he left
Microsoft. When he left Lenovo he did not know that he had
a
problem. And when he left Microsoft he did not know what his
problem was. It was when he was sitting at home for
two months
in 2015 that he realised that his problems were accident-related.
[84]
His next job was with Sanmina and he then realised that something was
wrong and that it was accident-related. He has
now been with
Sanmina for three years. He accepts that Sanmina is a large
global company but said that in South Africa it
only has two
customers. He manages only thirteen people. He explained that at Cell
C they had recommended HBS and he paid his own
way at HBS.
[85]
He said that travelling did not affect his studies because his
studies were always online. Later he said that travelling
did
not impact his studies “
in a big way
”. He
explained that he had prequalified which is why he was able to sit
down for his examination. He said that he kept
most of his
reading material on his laptop hard drive.
[86]
His current problems are back pain, headaches and memory loss.
Recently he has been experiencing mood swings as well.
He went
to a doctor when he started getting the headaches and the doctor said
that these were stress-related. He however
figured out that it
was accident-related. He spoke to one of his friends about his
headache problems and then realised that
they were accident-related.
[87]
With reference to Exhibit D he said that he was earning R45 000.00
per month at Lenovo net and at Cell C R550 000.00
per year.
When he left Lenovo he was earning R65 742.00 but net it was
R45 000.00 per month. At Sanmina his gross
income is R77 498.00
and net is R47 515.00, as reflected in Exhibit D page 85.
[88]
At Microsoft in 2014 he earned R72 000.00 gross and R45 000.00
net with no other benefits. The reason why there
were no other
benefits was because he was working on a contract. He would
have been considered for a permanent job had he
been able to stay in
his contract for two years and had he been able to show a good
performance. However that did not materialise.
Between Lenovo
and Sanmina his salary decreased he said. When he started at
Sanmina his salary was R700 000.00 per year
odd or R55 330.00
per month.
[89]
In questions from the court he explained that his mood swings began
six months after the accident. It has gotten worse. His
headaches
have gotten worse. His back pains have gotten worse and his neck
pains have also gotten worse. It is painful all
the time except
for between three and four hours per night when he gets some sleep.
[90]
Before dealing with the re-examination it is necessary to record some
impressions about the witness. He testified clearly and
intelligently
throughout the day and he was standing in the witness box throughout
the day. It did not appear that headaches
were debilitating
while he was testifying. His memory was good and he was able to
remember detailed numbers.
[91]
The impression was created, when he was giving evidence about his
selective memory, that he was being opportunistic when he
said that
he could remember certain things and not others; and yet he was
unable to distinguish what he was able to remember and
what not.
It was particularly evident when he said that it was that inability
to distinguish between what he could remember
and what he could not
remember that was actually getting to him.
[92]
In re-examination leading questions were again put to him. He proved
his net salary at Exhibit D page 81 at R57 276.00.
The
plaintiff then closed his case.
Discussion:
introduction
[93]
The parties submitted helpful
heads of argument. Of particular assistance was the attention
which Ms Docrat drew in her heads
of argument to the fact that an
expert witness having expressed an opinion on an issue is not
determinative of whether the court
accepts the opinion as being part
of the reasoning of the court. She stressed, and I agree, that
the opinion of an expert
witness can only provide guidance to the
court if the opinion is based on cogent reasons for the conclusions
reached, and if the
opinion is based on facts that are found to
exist. It is also critical that an expert witness appreciates
that she or he
is there to assist the court and ought not to be
partisan.
[1]
[94]
The remaining issues in dispute
in this matter, past and future medical expenses having been settled,
and general damages being
the subject of a referral to the Health
Professions Council of South Africa’s tribunal, is that of past
and future loss of
earnings or, as has been said, loss of earning
capacity.
[2]
[95]
In
Chakela
v Road Accident Fund
[3]
I considered
Deysel
,
Rudman, Van Heerden v Road
Accident Fund
[4]
and
Prinsloo v Road Accident
Fund
[5]
and followed the following approach: that there is a conceptual
difference between the question whether a plaintiff has suffered
an
impairment of earning capacity, and the question whether a plaintiff
will in fact suffer a loss of income in the future.
The
question whether a plaintiff has suffered an impairment of earning
capacity is one which the plaintiff has to discharge on
a balance of
probabilities.
[96]
However when it gets to the question whether a plaintiff will
in fact suffer a loss of income in the future, that is a question of
assessment in respect of which there is no
onus
in the
traditional sense. This assessment involves the exercise of
quantifying as best one can the chance of the future loss
actually
occurring.
[97]
The best place to start considering whether the plaintiff has shown a
loss of earning capacity seems to me with the plaintiff’s
evidence and in particular the following five topics: Whether
the plaintiff suffered a concussion? What were the plaintiff’s
injuries? What is the extent of the current headaches, back pain and
neck pain? What is the extent of the current memory loss?
What is the
prognosis? I deal with these topics in turn.
Did
the plaintiff suffer a concussion?
[98]
It will be recalled that the plaintiff said that he lost
consciousness in the collision. That is what he told Dr
Schnaid,
Mr Sampson, Mrs Cilliers and Dr Matchana. This version is
not consistent with what he told Dr Visser nor with the hospital
records.
The most reliable evidence is the latter, given its
contemporaneity. There the plaintiff himself gave the following
account
of the accident and its sequelae:
“
Feeling dizzy –
chest pain/seatbelt. Hit in the back of my car by a bus.
”
There
is no reference to a loss of consciousness
.
[99]
The person who took the plaintiff’s report at the Lenmed Clinic
recorded the following:
“
A male patient
36 years old came in Casualty walking with the history of he was
involved in car accident. Patient verbalised
that he was
driving and safety-belt was on. Patient complaining of chest
pain, headache, neck is sore. On examination
patient looks
stable.
”
Again,
there is no reference to a loss of consciousness.
[100]
It will be remembered too that the plaintiff drove himself in his car
first to the police station, then to the Olivedale Clinic,
and then
to the Lenmed Clinic. Such action is, on the face of it, inconsistent
with loss of consciousness.
[101]
The plaintiff told Dr Matchana that he “
bumped his head
”
on the steering-wheel, not that he lost consciousness. Dr
Visser recorded the following:
“
In the process,
he struck his head on the steering-wheel and felt dazed. He got
out of his vehicle and waited, sitting on
the side of the road.
He provided no detail about this period indicative of probable
concussion.
”
There
is no mention here of a loss of consciousness.
[102]
In my view if the plaintiff had lost consciousness as a result of the
bump of his head on the steering-wheel, that is the
first thing he
would have told the staff at Lenmed Clinic. His relating of the
events to the medical experts in preparation
for this trial, to the
extent that he now says he lost consciousness is, at best, an
exaggeration.
[103]
The point is not so much whether the plaintiff was injured to a
lesser extent than he would have been had he actually lost
consciousness; the point is that this part of the plaintiff’s
evidence is already an indication, borne out by later testimony
to
which reference is made below, that the plaintiff was inclined to
exaggerate the
sequelae
of the injuries that he suffered in
the collision.
What
were the plaintiff’s injuries
?
[104]
The next issue concerns the plaintiff’s injuries. There
can be little doubt that the plaintiff suffered no fracture,
and that
his injuries were limited to soft tissue injuries. This is actually
recorded by Dr Schnaid in paragraph 3 of his report.
The injury
to the cervical spine was of a soft tissue nature; the X-rays
demonstrated a vertebral block, at the level C2/3, but
this was
congenital. As regards the lumbar spine, the X-rays
demonstrated some degeneration at the level L4/5 disc.
Although
Dr Schnaid initially vacillated about this, he conceded that he could
not say that this was accident-related.
[105]
What is one dealing with then? The agreed report of Dr
Matchana, the Neurosurgeon, speaks of a “
mild head injury
”.
Dr Schnaid remarked – although this was of course not his
expertise - that there were no neurological deficits,
but that the
soft tissue injuries have left the plaintiff with decreased right and
left lateral flexion of his neck, as well as
decreased extension.
[106]
Beyond these injuries, one has the plaintiff’s evidence that
from about six months after the accident he started experiencing
bad
headaches, neck pain and back pain and that this pain has increased
from that date to this, with no abatement, leaving him
only pain-free
during his three to four hours of sleep. It is necessary now to
consider the veracity of the plaintiff’s
evidence in this
regard.
What
is the extent of the current headaches, back pain and neck pain
?
[107]
As regards the headaches, back pain and neck pain, the plaintiff told
Dr Visser that he relies on regular combination analgesia,
and tends
to use these on alternative days. His headaches are “
often
daily
”. But, contrary to his direct evidence, he also
told Dr Visser that his condition has improved:
“
He described
how his condition has improved over the ensuing three years.
Now his sleep is adequate. He emphasised that
he takes care to
maintain good sleep hygiene. For instance, he exercises hard in
order to be sufficiently tired, prompting
sleep. His appetite
is now normal and his energy has improved.
”
[108]
In the witness box the plaintiff was examined in-chief and
cross-examined over a substantial period of time. Not once
did
he create the impression that he was unable to answer the questions
put to him fully. There was no overt debilitation.
He created
the impression with me that he was attentive and intellectually
attuned to precisely what the cross-examiner was seeking
to
establish. The plaintiff did not create with me the impression of a
person who, in stressful circumstances such as giving evidence
in the
High Court, was unable through pain properly to discharge his remit.
[109]
It is difficult to avoid the conclusion that the evidence of
incessant pain is also an exaggeration. To be true, as
will
appear more fully later on, the plaintiff’s post-accident work
performance was certainly less impressive than his pre-accident
performance. But that decrease is more probably than not a
function of his general post traumatic poor attitude issues and
low
mood. Dr Visser himself described the plaintiff’s mood as
normal, but that it was accompanied by a slightly restricted
and
serious
affect
. That signifies that the plaintiff
was burdened by an observable emotional response to the accident and
the soft tissue injury
he sustained.
[110]
So, the plaintiff has experienced headache, and back and neck pain,
but he exaggerates it, more probably than not as a result
of the
disturbance of his emotional equilibrium.
What
is the extent of the current memory loss?
[111]
The plaintiff testified to a memory loss but, as will have appeared
from his evidence particularly under cross-examination,
this evidence
was not persuasive. He was unable to explain convincingly why in some
instances he could remember challenging detail,
yet he professed
memory loss in other instances, not evident in court. He did speak
about managing to have devised a workaround
by keeping an appropriate
aide memoire, which would not have been necessary if his loss was not
real.
[112]
Some say there is no such thing as a good or a bad memory; rather,
there is only a trained or an untrained memory. Whether
this is
science of homily, the plaintiff did not, despite pertinent
cross-examination, evidence any memory loss in court. I accept
that
in the hurly burly of his normal daily life the plaintiff may from
time to time experience forgetfulness, but whether that
is a function
of the injury he sustained or of perhaps emotional distraction, has –
as I see it – not been shown on
a balance of probability.
What
is the prognosis
?
[113]
The plaintiff’s post-trauma performance certainly appears
poorer that his pre-trauma performance. He appears to have
been more
driven pre-trauma than post-trauma. The plaintiff’s case is
that, but for the accident, he would have completed
his MBA in 2015,
increased his salary by 32% in 2016 and 43% in 2017, and would
thereafter have received annual inflationary increases
in his salary.
He would have remained employed until age 65. In the
alternative it is submitted that he would have increased
his salary
in line with the Paterson scales and salary tables as articulated by
Dr Sugreen.
[114]
The plaintiff contends that post-trauma he is now on a downward
career trajectory, unable to fulfil his potential; that he
has
physical difficulties impacting his ability to work; that he is an
unequal competitor in the labour-market; and that he is
in need of
“
accommodation
” in the workplace. The
plaintiff then calculates his future loss of income by means of an
actuary who applied a 5%
contingency deduction of past income both
but for the accident and having regard to the accident; and a 5%
contingency deduction
in respect of future income but for the
accident. In respect of future loss of income having regard to the
accident, a contingency
deduction on four bases was made, being
respectively 15%, 25%, 30%, and 40%.
[115]
The calculation by the actuary was done on eight bases, and as of 29
November 2018. Calculation of the loss in basis 1 is
split into four,
and the calculation of the loss in respect of basis 2 is equally
split into four. Basis 1 accepts that but for
the accident the
plaintiff’s salary at Lenovo as at the date of the accident
would have increased annually thereafter with
earnings inflation
until retirement at age 65. In the case of basis 2 the actuary
follows through on his instruction that the plaintiff
would have
completed his MBA and would have had those two significant jumps in
remuneration, first on 1 May 2015 by some 32% and
on 1 May 2016 by
another 42%.
[116]
In other words basis 2 is on the assumption that the plaintiff
completes his MBA whereas basis 1 is not. Each of the
two bases
as I have said has four alternatives these being a function of
varying contingency deductions in respect of future income.
[117]
The calculations having regard to the accident proceeds from
assumptions made of what the plaintiff actually earned post the
accident, as salary assumptions set out in paragraph 2.3 of the
report of the actuary.
[118]
After having applied the statutory cap on future loss of earnings, it
follows that the most liberal calculation is in bases
1C, 1D, and all
of bases 2, being R5 866 918. The most conservative of the
calculations then is in basis 1A which comes
to R5 799 972.
The past loss of earnings in all of these various scenarios comes to
R909 890.
Discussion:
conclusion
[119]
I have a fundamental concern with this approach to the computation of
the plaintiff’s claim. But before that is
discussed it is
important first to consider whether the plaintiff has discharged the
onus
which rests on him to show that he has, in fact, suffered
a loss of earning capacity at all.
[120]
In this regard I have to say that the plaintiff’s witness Dr
Visser made a favourable impression upon me. His
views were
guarded and conservative. As I understand what he says, the prospect
of the plaintiff recovering is more probable than
not. The plaintiff
is nonetheless not the person he used to be, whether this is a
function of the plaintiff being overly sensitive
and affected or
not.
[121]
I therefore accept that having regard to the accident the plaintiff
has suffered a loss of earnings. Although the plaintiff
has
exaggerated his injuries and their sequelae, it does not follow that
he has not suffered injuries and sequelae at all. He has,
in my view,
as a fact suffered soft tissue injuries that have impacted him, even
if a meaningful dimension of it is ascribable
to serious affect.
[122]
But in my view the prospects of practically recovery are good. The
injuries were sustained on 28 October 2013, more than five
years ago.
In two years from now, by 28 February 2021, more than seven years
would have elapsed; and as I see it, he should by
then have
recovered if not emotionally then at least economically. Making
allowance for the difficulties of predicting the
future, it seems to
me that, on balance, the plaintiff has indeed shown that the accident
has affected him into the future, that
he is not the person he used
to be, and that that result is contributing to him now not being as
driven as he was before the collision.
[123]
The principle of loss of earning capacity having been established,
that leaves the question of the quantification. Accepting
that his
trajectory at Lenovo would have continued and that that represents
his reasonable but for the accident projected position,
having regard
to the accident he experienced a dip in income in real terms. I have
considered whether it is reasonable to argue
that that dip will
affect him for the rest of his working life.
[124]
But in my view that is too speculative. If the plaintiff recovers
practically fully, as I am projecting he will (if he wants
to), then
it seems to me very likely that in about two years from now, given
the more than five years that have already elapsed
since the
accident, he will have likely achieved for all practical purposes the
same level at which he will have been but for the
accident.
[125]
It will be evident from the above conclusions that I do not accept
that the plaintiff has been disqualified intellectually
from
achieving any level of training or academic achievement that he would
have achieved but for the accident. There ought therefore
not to be
any allowance for any differential in this regard. At the same time,
I regard as speculative the proposition that the
plaintiff would have
attained his MBA, and I have not, in arriving at an appropriate
quantum, taken it into account.
[126]
This conclusion has the consequence that the plaintiff has
established both a future and a past loss of earnings. In preparing
this judgement I requested that the plaintiff’s actuary
calculate the plaintiff’s loss on a variety of bases not
covered
in the report that was presented to court, on the bases set
out below. I notified both attorneys of the request and the response,
and although each side obviously held its trial positions, neither
had objection to the process nor the calculations and their
result.
[127]
I have assumed that but for the accident, the plaintiff would have
stayed at Lenovo (or similar) till age 65, and would have
enjoyed
inflationary increases all the way. That is obviously an assumption
favourable to the plaintiff, as it is not apparent
at all that future
income in the private sector is always, and in any event given the
current economic challenges, immune against
the ravages of inflation.
[128]
As to the having regard to scenario, I requested that the calculation
be done on the basis that the plaintiff’s future
loss continues
on the past loss trajectory assumed by the actuary, but that it
ceases at respectively 28 February 2021, 28 February
2023, and 28
February 2015. I have applied a 15% contingency deduction on the
having regard to scenario. This is higher than the
but for scenario’s
figure of 5%, but in my view fair. On the basis that the plaintiff
will likely have fully recovered economically
by 28 February 2021,
his loss of earnings and earning capacity aggregate R2 944 659.
In my view that represents a fair
computation of the plaintiff’s
loss, give the injuries and the sequelae.
[129]
I have resolved not to allow the qualifying fees of Mr Sampson on the
basis that he was not of assistance to the court. A
special costs
order against the defendant was asked, given its conduct in the
litigation. But I consider that the persistent leading
questions put
to the plaintiff’s witnesses balances the scale of
objectionable conduct.
[130]
In the result I make the following order:
(a)
The defendant is directed to pay to the plaintiff the sum of
R2 954 659 which comprises:
(i)
past and future loss of income: and/or income earning
capacity: R2 944 659;
(ii)
past medical, hospital and ancillary expenses: R10 000.
(b)
The aforesaid sum shall be paid within 30
days hereof into the trust bank account of Wadee and Wadee Attorneys
which details are
as follows :
Wadee
& Wadee Trust account
First National Bank
Branch Code: 250737
Account No: [...]
(c)
The
defendant is directed to furnish to the
plaintiff an undertaking in terms of
s.17(4)(a)
of the
Road Accident
Fund Act 56 of 1996
, for the costs of the future accommodation of the
plaintiff in a hospital or nursing home or the treatment of or
rendering
of a service to him or the supplying of goods to him
arising from the injuries he sustained in the motor vehicle collision
which
occurred on 28 October 2013 and the sequelae thereof, after
such costs have been incurred and upon proof thereof.
(d)
The defendant is directed to pay the plaintiff the costs of
the action on the High Court scale as between party and party, which
costs shall include but not be limited to:
(i)
All costs orders already made;
(ii)
The reasonable costs of the plaintiff’s following expert
witnesses: Dr Schnaid (orthopaedic surgeon);
Drs
Matisson, Scott & Tobias (radiologist); Anoett Rossouw
(occupational therapist practice) (including Ms J Cilliers
)(occupational
therapist); Dr Visser (psychiatrist); Dr Sugreen
(industrial psychologist);and GRS Actuarial Consultants (actuary).
(e) Payment of
costs is subject to the following conditions:
(i) The plaintiff shall, if costs are
not agreed, cause a notice of taxation to be served on the
Defendant’s attorney of record;
and
(ii) The plaintiff shall allow the
defendant 14 (fourteen) court days after taxation to make payment of
the taxed costs.
(f)
It is noted, for the avoidance of doubt,
that the plaintiff’s entitlement to a claim for general damages
has been referred
for consideration to the HPCSA Panel.
WHG
van der Linde
Judge,
High Court
Johannesburg
Dates
trial: 15, 16, 19, 21, 29 November 2018.
Date
judgment: 28 February 2019
For
the plaintiff: Adv. F F Docrat
Instructed
by: Wadee & Wadee Attorneys
Plaintiff’s
Attorneys
Tel:
(011) 854 2534
Ref:
WWA/786/367
Email:
joewadee@telkomsa.net
c/o
Yousha Tayob Attorneys
1
st
Floor, 7 Bonanza Street
Selby
Extension 19
Johannesburg
For
the defendant: Adv. S Vukaya
Instructed
by: T J Moadi Inc
Defendant’s
Attorneys
2
nd
Floor, Marble Towers
208-212
Jeppe Street
Cnr
Von Wielligh Street
Johannesburg
Tel:
(011) 025 4490/4991/6736
Ref:
TJM/RAF/JHB/129217
[1]
Compare
PriceWaterhouseCoopers
Inc and Others v National Potato Cooperative Limited and Another
(451/12)
[2015] ZASCA 2
(4 March 2015);
Gentiruco
AG v Firestone SA (Pty) Limited
1972 (1) SA 589
(AD) at 616H; and more recently in this Division
Twine and Another v Naidoo
and Another
(38940/14)
[2017] ZAGPJHC 288;
[2018] 1 All SA 297
(GJ) (16 October 2017).
[2]
See
Deysel v Road Accident
Fund
(2483/09) [2011]
ZAGPJHC 252 (24 June 2011).
[3]
(33599/2015) [2017] ZAGPJHC 141 (5 June 2017).
[4]
(6644/2011) [2014] ZAGPPHC 958 (5 December 2014).
[5]
(3579/06)
[2008] ZAECHC 193
;
2009 (5) SA 406
(SE) (18 November
2008).