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[2021] ZAECPEHC 66
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Van Niekerk v Road Accident Fund (2922/17) [2021] ZAECPEHC 66 (8 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH)
Case No: 2922/17
In the
matter between:-
PIETER
JAMES VAN
NIEKERK
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Coram:
Beyleveld AJ
Date heard:
6
th
October 2021
Date
Delivered: 8
th
October 2021
JUDGMENT
Beyleveld
AJ:
[1.]
The Plaintiff
instituted action against the Road Accident Fund
[1]
claiming damages resulting from motor collision which occurred on the
27
th
December 2015 in St Francis Street, Jeffreys Bay, Eastern Cape.
[2.]
The Fund filed a Plea
in response to the Plaintiff’s Particulars of Claim and at a
Rule 37 conference
[2]
the parties settled the merits of the Plaintiff’s claim
[3]
and it was further agreed that there would be an 80/20 apportionment
in favour of the Plaintiff.
[3.]
At that stage the
Defendant was represented by attorneys.
[4.]
During October 2019
[4]
an order was obtained by agreement between the parties relating to an
interim payment to the Plaintiff.
[5]
[5.]
In such agreement, it
was further recorded that the Plaintiff’s claim for past and
future loss of earnings and general damages
be postponed
sine
die
.
[6.]
As a result of the
collision referred to above, the Plaintiff sustained a fracture of
the lateral tibial plateau of the left knee
and the Fund has accepted
that the injuries sustained by the Plaintiff are “
serious
injuries
” as
defined in terms of the provisions of the Act.
[7.]
By order dated 13
th
October 2020 the Fund was ordered to furnish the Plaintiff with a
copy of a report from an Industrial Psychologist requested in
terms
of Rule 36(8)(b).
[8.]
An ancillary order was
sought entitling the Plaintiff to apply, on the same papers duly
amplified, for an order striking out the
Fund’s defence should
there not be compliance with the order.
[9.]
On the 8
th
December 2020 the Fund’s defence was struck out by virtue of
its failure to comply with the order in respect of the report
of the
Industrial Psychologist.
[10.]
The Fund, even after
the order striking out its defence, took no steps to rescind such
order and thereafter merely adopted a supine
approach to the further
proceedings.
[6]
[11.]
Regrettably the matter
was heard in the absence of the Fund.
[7]
[12.]
The
Plaintiff gave evidence
viva
voce
.
Similar
viva
voce
evidence was also given by Ms Annemarie Van Zyl, an Occupational
Therapist.
[13.]
In
addition, affidavits were handed up by various experts, in particular
affidavits by Dr Michelle Nobre an Industrial Psychologist,
an
affidavit by Dr Mahmood Aslam an Orthopedic Surgeon and an
affidavit by Mr Wim Loots an Actuary.
[14.]
Insofar
as evidence on affidavit by the aforesaid professionals are
concerned, I exercised my discretion in allowing such evidence
to be
presented on affidavit.
[15.]
Inasmuch
as Judgment was effectively sought by default, Rule 31(2)(a)
regulates the manner in which Judgment by default may be sought
in
respect of a claim which is not for a debt or liquidated amount.
[8]
[16.]
Rule
31(2)(a) provides that where the claim is not for a debt or
liquidated demand and the Defendant is either in default of an
intention to defend or has failed to file a Plea, the Plaintiff must
set the matter down for default judgment and the Court may
grant
Judgment after hearing evidence.
[17.]
In
the present instance, and as indicated, a Plea was filed. However,
the Fund’s Plea was struck out and accordingly the situation
is
comparable to where a Defendant is either in default of a notice of
intention to defend or a Plea.
[9]
[18.]
Rule
39(2) also provides that where a Defendant has by his default been
barred from pleading and a case has been set down for hearing,
the
Defendant shall not, save where the Court in the interests of justice
may otherwise order, be permitted to appear at the hearing.
[10]
[19.]
A
Court clearly has a discretion whether or not to grant default
judgment. In this regard a Court has a discretion after hearing
evidence to grant or refuse default judgment and also to make such
order as it deems fit under the circumstances.
[11]
[20.]
The
general rule is that evidence must be led if default judgment is
sought in respect of a damages claim.
[12]
[21.]
Furthermore,
it is an accepted practice and a salutary rule that a Court should
not only not dispense with the hearing of evidence
relating to
quantum but also not dispense with the hearing of evidence relating
to the cause of action.
[13]
[22.]
In
Venter
v Nel
[14]
the following was stated by Broome DJP:
“
The
practice in this division is to hear some evidence on claims for
damages, but inevitably the enquiry is not as detailed or
controversial as it would be were the matter defended, were the
Defendant represented by counsel and were evidence of the witnesses
who testified for the Plaintiff tested by way of cross-examination
and by the Defendant leading countervailing evidence
.”
[15]
[23.]
What
is envisaged as a general rule is the leading of
some
evidence.
[24.]
In
Groenewald
NO and Another v Swanepoel
[16]
Pickering J stated as follows:
[17]
“
The
counsel who appeared at the hearing for Plaintiffs, Mr Pretorius,
handed in certain affidavits and adduced certain viva voce
evidence
from both Second Plaintiff and an Auditor, a certain Mr Sahd, in
substantiation of the Second Plaintiff’s claim
for damages
.”
[25.]
The
Court
a
quo
declined to grant default judgment but the Full Bench reversed this
decision and granted default judgment in favour of the Plaintiffs.
[26.]
In
New
Zealand Insurance Co. Ltd v Du Toit
[18]
evidence regarding the quantum of damages sustained by Plaintiff as a
result of the motor collision was tendered by way of an affidavit.
This affidavit set out the nature of the injuries, the pain and
suffering and disabilities which that particular Plaintiff sustained.
[27.]
The
Court allowed the evidence by way of affidavit as, having regard to
the particular circumstances of that matter, the damages
sustained by
the Plaintiff was at least R5 000.00 and in this regard stated as
follows:
“
The
affidavit places beyond a question that the amount of damages
suffered by Fourie was, to say the least, R5 000.00 and if I insist
on verbal evidence I think I would merely be causing unnecessary
costs for which Defendant is liable. On the facts of this
case,
and bearing in mind that the Defendant was served with the Summons
and combined declaration in which his attention is drawn
to the fact
that R5 000.00 was claimed and that he has not seen fit to seek
representations to this Court, I will accordingly grant
Judgment as
prayed
.”
[19]
[28.]
Similarly,
in
Hackert
v Hackert
[20]
the Court allowed medical evidence by way of affidavit and not
viva
voce
.
[29.]
In
Havenga
v Parker
[21]
it was held that in the Transvaal Provincial Division and in respect
of applications for default judgment in actions for damages,
evidence
by experts such as medical practitioners, valuers and the like may be
tendered by way of affidavit as opposed to
viva
voce
.
[30.]
It
was stressed however that the Court retains the power to require
viva
voce
evidence where necessary.
[22]
[31.]
In
Economic
Freedom Fighters & Others v Manuel
[23]
proceedings in respect of a claim based on defamation and damages
sustained as a result thereof were brought by way of motion
proceedings.
[32.]
The
Court
a
quo
granted the relief claimed
[24]
.
The matter came before the SCA and during the course of the
Judgment
[25]
the Court extensively dealt with the question whether claims for
damages may be brought by way of motion proceedings as opposed
to
instituting action proceedings.
[33.]
In
an extensive analysis the SCA firstly reiterated that claims for
unliquidated damages by their very nature should not be brought
in
motion proceedings and secondly dealt with claims for unliquidated
damages where default judgment is sought.
[34.]
The
SCA in dealing with the cases where default judgment was sought in
respect of illiquid claims concluded as follows:
“
It
must be emphasized that in that case the court cautioned against not
requiring verbal evidence in undefended cases and was careful
to set
out its reasons for the exception in that case. New Zealand
does not dislodge the rationale for insisting on oral
evidence, as
set out earlier, so as to enable a proper determination of the
damages in undefended cases and especially in opposed
matters
.”
[35.]
The
Court, although referring to default judgments, was seized with the
question whether or not motion proceedings were appropriate
when
pursuing a damages claim as a result of defamation. The
essential
ratio
of the decision is whether or not defamation proceedings
[26]
are appropriate under the circumstances.
[36.]
What
is however apparent from the decision
[27]
is that the SCA did not discount a situation where a court in
exercising its discretion could allow evidence or at least some
evidence by way of affidavit where the quantum of damages in respect
of illiquid claims is to be determined.
[37.]
In
the present instance and as indicated, the Plaintiff testified and
gave evidence as to the effects of the accident
[28]
and identified to what extent his life amenities have been
compromised.
[38.]
Ms
Van Zyl also testified regarding the Plaintiff’s ability to
gain employment or be economically engaged subsequent to the
injuries
sustained in the collision. To some extent, Ms Van Zyl also
dealt with the views expressed by Dr Aslam which
she
corroborated insofar as it impacted on the ability to work.
[39.]
Having
regard to the fact that some evidence
[29]
was led to support the amount claimed in respect of the quantum, the
costs involved in securing medical practitioners to attend
court on a
default judgment and then simply repeat what is stated in their
summaries; the fact that some expert testimony was led
[30]
by Ms Van Zyl relating to employability of the Plaintiff and
lastly the fact that the Defendant chose not to be present at
the
proceedings, persuaded me to exercise my inherent discretion in
allowing some of the evidence to be tendered by way of affidavit.
[40.]
The
Orthopedic Surgeon Dr Aslam, stated in this report
[31]
the following:
[40.1.]
Plaintiff
sustained a fracture of the lateral tibial plateau of the left knee;
[40.2.]
Plaintiff
was treated at Livingstone Hospital from 27 December 2015 to
14 January 2016;
[40.3.]
Plaintiff
underwent an open reduction and internal fixation of the left knee,
tibial plateau on 11 January 2016;
[40.4.]
Plaintiff
has developed secondary osteo-arthritis of the left knee. There
is significant crepitus present in the left knee.
There is
stiffness which will get worse in the near future;
[32]
[40.5.]
Plaintiff
will probably require a total left knee replacement and probably a
revision at a later stage. This (the initial
knee replacement)
was estimated to occur at 2 to 4 years in 2018;
[40.6.]
Plaintiff
is at a significant disadvantage in the open labour market for
strenuous work;
[40.7.]
Plaintiff
will probably be able to perform light jobs/office jobs in the
future.
[41.]
Ms
Van Zyl confirmed her report and her evidence was to the following
effect:
[41.1.]
Plaintiff
returned to work after the collision but could not cope and resigned
from his employment;
[41.2.]
Plaintiff
complains of stiffness and pain in the left knee. He struggles
with postures like crouching and kneeling and he
finds climbing
ladders and steps very challenging and walking over uneven terrain
aggravates his pain. He is also limited
in the time he can
stand due to left knee pain;
[41.3.]
Plaintiff
struggles with physical demands of his job as an electrician;
[41.4.]
Plaintiff’s
job description of work that he was doing is that of a medium
strength;
[41.5.]
Plaintiff
demonstrated the residual capacity to manage a job with light
physical demands or a sedentary position;
[41.6.]
Plaintiff
is thus not best suited to the work as contract electrician and it is
reasonable that he resigned from this employment.
[42.]
The
Industrial Psychologist Dr Nobre
[33]
highlighted the following:
[42.1.]
Plaintiff
matriculated in 1976. He completed his N3 and N4 qualifications
and completed his wireman’s licence trade
theory and
electronics qualifications. He completed an apprenticeship and
qualified as an electrician on 23 January 1982;
[42.2.]
Plaintiff
left Telkom approximately in 1996/1997 to start his own business as
an electrical contractor in Pretoria and worked as
such for a period
of about 14 years before relocating to the Eastern Cape;
[42.3.]
Plaintiff
reported that he made a profit of around R25 000.00 to
R35 000.00 per month;
[42.4.]
In
Port Elizabeth Plaintiff secured employment as project manager for a
company where he erected wind turbines. He was physically
involved in the installation of wind turbines. He worked at
heights both inside and outside of the turbine and earned between
R30 000.00 to R35 000.00 per month;
[42.5.]
Plaintiff
thereafter worked for Suzlon wind turbines in Cookhouse from 2014 for
a period of 4 months until the project was completed;
[42.6.]
Thereafter
and until the collision Plaintiff operated as an electrical
contractor in the Jeffreys Bay area and earned between R20 000.00
and R25 000.00 per month;
[42.7.]
Plaintiff
did not have physical limitations prior to the collision. He
was offered work by Azari Wind (Pty) Limited to start
work in January
2016 as a maintenance and installation electrician. Due to the
collision he was unable to start this new
position;
[42.8.]
Plaintiff
worked for Azari Wind from 11 September 2016 as an electrical
technician. He received a basic salary of R25 000.00
per
month and lodging when he worked away from home;
[42.9.]
Plaintiff
was required to go up to the top to check the other installers work
at least twice a week and struggled to perform this
duty;
[42.10.]
Plaintiff
left the employment on his own accord on 23 January 2017 due to the
injuries and his difficulty in performing work;
[42.11.]
Plaintiff
secured employment in the project management department at Elle Spec
as escalator installers and manufacturers, about
July 2017. He
received a package of about R23 000.00 per month. He could
not cope with the physical side of the
work and resigned in March
2018;
[42.12.]
Plaintiff
has indicated that he is unable to cope physically with being self
employed;
[42.13.]
Plaintiff
has numerous complaints;
[42.14.]
From
collateral information it is apparent that Plaintiff earned
approximately R25 000.00 per month at Azari Wind;
[42.15.]
Plaintiff
had continuous employment over an extended period of time which
indicates a stable career and income;
[42.16.]
Plaintiff
has worked as a qualified electrician throughout his working life
since qualifying in 1982;
[42.17.]
Work
of an electrician is generally considered physically hands on and
active by nature. It is considered to be work of a
medium
nature
[42.18.]
In
the uninjured state, Plaintiff would probably have continued to work
in the same role as an electrician until retirement age;
[42.19.]
Plaintiff
would have been able to work until age 70, health permitting;
[42.20.]
In
the uninjured state Plaintiff would have earned about R288 000.00
per annum (2016 terms) and would have had annual increases
of CPI
plus 1% to 2% per annum throughout his career until retirement
at age 70;
[42.21.]
In
the injured state:
[42.21.1.]
Plaintiff
has been negatively impacted and rendered uncompetitive in the open
labour market as a result of injuries sustained.
He has
resigned from positions due to being physically incapable of
performing duties required;
[42.21.2.]
He
will probably not be in a position to seek alternative employment in
line with his residual physical capacity;
[42.21.3.]
He
has to compete with able bodied persons and is unlikely to secure
alternative employment in his injured state;
[42.21.4.]
It
is not anticipated that Plaintiff will be able to sustain employment
or work until age 70.
[43.]
The
affidavit by Mr Loots, the Actuary is not contentious.
[34]
In summary, he stated as follows in two summaries filed on his
behalf:
[43.1.]
[43.1.1.]
Based
on the
report of Dr Nobre Mr Loots calculated the claims for past and future
loss of earnings;
[43.1.2.]
Mr
Loots was instructed to apply a 5% contingency deduction to past loss
of earnings. It is submitted that this is the usual
contingency
deduction to past losses;
[43.1.3.]
Mr
Loots was instructed to apply a 7 ½ % contingency deduction to
future loss of earnings. It is submitted that this
is
reasonable in view of the fact that Plaintiff is 61 ½ years of
age and future losses are for a period of 8 ½ years
only;
[43.1.4.]
Mr
Loots applied the apportionment and calculated the claims
[35]
as follows:
[43.1.4.1.]
Past
loss of earnings R
934 536.00
[43.1.4.2.]
Future
loss of earnings R1 703 127.00
Total
R2 637 663.00,
[43.2.]
[43.2.1.]
Subsequent
to Dr Nobre’s report, dated 10 July 2019, and which report Mr
Loots utilised in performing his calculations, Plaintiff
has been
able to earn about R150 000.00, which work was facilitated for
him by a family member;
[43.2.2.]
The
claim for past loss of earnings is accordingly reduced to an amount
of R784 536.00;
[43.2.3.]
The
total loss of earnings is accordingly in the sum of R2 487 663.00.
[44.]
Insofar
as far as general damages are concerned the primary evidence was the
viva
voce
evidence of the Plaintiff which highlighted the disruption in his
social, sporting and work related life. In this regard,
his
evidence on these factual issues which were contained in the report
of Dr Aslam were confirmed by the Plaintiff in his testimony
and he
confirmed that he had read such report and that he confirms the
correctness of the factual content.
[45.]
Dr
Aslam’s report
[36]
,
inter
alia
,
records the following:
[45.1.]
Plaintiff
sustained a fracture of the lateral tibial plateau of the left knee
and was hospitalised from the date of the collision
until 11 January
2016.
[45.2.]
Plaintiff
has numerous complaints. These include activity related pain
episodes of the left knee, residual stiffness of the
left knee,
difficulty with prolonged standing and walking, related swelling
episodes of the left knee, difficulty walking on stairs/steps
and
uneven surfaces and inability to run.
[45.3.]
Plaintiff
has mild valgus deformity present in the left knee.
[45.4.]
Plaintiff
has muscle wasting present in the left knee.
[45.5.]
Plaintiff
has tenderness present of the left knee and crepitus in the left
knee.
[45.6.]
Plaintiff
has oesteo-arthrosis of the left knee joint;
[45.7.]
Plaintiff
sustained a severe injury to the left knee joint and received an open
reduction and internal fixation and would have suffered
from severe
pain for a period of 3 to 4 weeks and a lesser degree of pain for a
further 4 to 6 weeks;
[45.8.]
There
is residual deformity of the lateral tibial plateau articular surface
with mild residual valgus deformity of the left knee
which is also
secondary to the fracture injury;
[45.9.]
Plaintiff
has oesteo-arthritis, significant crepitus and residual stiffness of
the left knee. This is likely to get worse
and he will require
a total knee replacement 2 to 4 years from the date of his report.
[45.10.]
The
procedure will require 5 days in hospital and about 3 months for
recovery time.
[45.11.]
There
is a possibility that Plaintiff might require a revision knee
replacement procedure.
[46.]
On
the aspect of general damages Ms Van Zyl recorded the following in
her report
[37]
:
[46.1.]
Plaintiff
reports stiffness and pain in the left knee. He struggles with
postures like crouching and kneeling and his pain
is worse during
colder weather conditions. He finds climbing ladders and steps
challenging and walking over uneven terrain
aggravates his pain;
[46.2.]
Plaintiff
used to be a marathon runner and did cycling and enjoyed open water
swimming. He is no longer able to participate
in these
activities;
[46.3.]
Plaintiff
was noted to walk with a limp of the left leg;
[46.4.]
There
is wasting of Plaintiff’s left thigh;
[46.5.]
Plaintiff
reports activity and weather related pain in the left knee with
occasional swelling of the knee;
[46.6.]
It
was noted that Plaintiff struggled with uneven terrain and walking
uphill/downhill. He was able to jog for a couple of
metres but
his limp was exacerbated in doing so;
[46.7.]
Plaintiff
is unable to drive for long distances. Depressing the clutch
pedal also aggravates pain.
[47.]
Mr
Loots the Actuary applied a 7.5% contingency deduction in respect of
future loss of earnings. The Plaintiff testified that
post the
accident, he intermittently was able to perform some work related
activities for short durations.
[48.]
Having
regard to the Plaintiff’s age and the frequency of such
opportunities for short periods and bearing in mind the restricted
activities that could be performed I consider it more appropriate
under the circumstances to apply a 10% contingency deduction
in
respect of future loss of earnings.
[49.]
Accordingly
and insofar as loss of earnings are concerned, and having further
regard to some remuneration received as a result of
occasional work
performed, and applying a 10% contingency, the following constitutes
a reasonable amount in respect of this heading:
[49.1.]
Earnings
had the collision not occurred – R2 301 523.00
[49.2.]
Less
contingency of 10% - R2 071 370.00
[49.3.]
Loss
of earnings – R2 071 370.00
[49.4.]
Less
apportionment of 20% - R414 274.00
[49.5.]
Nett
loss of earnings – R1 657 096.00
[50.]
Insofar
as past loss of earnings are concerned the amount advanced in
argument on behalf of the Plaintiff (which took into account
the
apportionment) was the amount of R784 436.00 which is borne out by
the evidence adduced orally and by affidavit.
[38]
[51.]
Lastly,
and insofar as general damages are concerned, it is submitted on
behalf of the Plaintiff that the appropriate amount under
the
circumstances would be the sum of R560 000.00 (after applying
apportionment). In this regard Mr Schubart SC
on behalf of
the Plaintiff referred to the decision of
Sofute
vs RAF
[39]
.
[52.]
In
last-mentioned matter the Plaintiff also sustained similar injuries
to the injuries sustained by the Plaintiff in the present
matter and
the medical evidence there suggested that there was a 60% to 70%
chance of knee replacement. In the present instance,
the
probability of a knee replacement is more a likelihood and a further
revision procedure would in all probability also be required.
[53.]
The
general damages awarded in
Sofute
was the amount of R220 000.00 which in present day value amounts to
R506 000.00.
[40]
[54.]
I
consider an amount of R450 000.00 to be adequate in respect of
general damages.
[41]
Accordingly, I am of the view that the amounts to be awarded
[42]
to the Plaintiff are as follows:
[54.1.]
The
amount of R784 536.00 in respect of past loss of earnings.
[54.2.]
The
amount of R1 657 096.00 in respect of future loss of earnings.
[54.3.]
The
amount of R450 000.00 for general damages.
Total –
R2 891 632.00 less R500 000.00 interim payment = R2 391 632.00
[55.]
Having
regard to the above I make the following order:
[55.1.]
[55.1.1.]
Defendant
shall pay to Plaintiff the sum of R2 391 632.00.
[55.1.2.]
Such
amount to be paid into Plaintiff’s attorneys banking account
being:
Goldberg & De Villirs Inc.
Attorneys
Bank: ABSA
Account No: 712 743 638
Branch: Govan Mbeki Avenue
Branch Code: 630616
Ref: MAT6698
[55.2.]
Interest
shall accrue on the said amount at the legal rate of 7% per annum
payable as from 14 days from date of this Court until
date of
payment.
[55.3.]
Defendant
shall pay Plaintiff’s costs of suit, together with VAT thereon,
as taxed or agreed, on the party and party scale,
within 180 calendar
days from date of taxation or agreement. Such costs to include:
[55.3.1.]
The
qualifying expenses, if any, of the following:
[55.3.1.1.]
Dr
Aslam.
[55.3.1.2.]
Ms
Ansie van Zyl.
[55.3.1.3.]
Dr
Nobre.
[55.3.1.4.]
Mr
Loots.
[55.3.2.]
The
costs of Plaintiff’s counsel, including one day’s trial
fee for 6 October 2021.
[55.3.3.]
The
costs of the preparation of the heads of argument.
[55.4.]
Interest
shall accrue on the costs at the legal rate of 7.00% per annum
payable as from 14 days from date of taxation or agreement,
until
date of payment.
__________________
A BEYLEVELD
Acting Judge
of the High Court of South Africa
Appearances:
For
Applicant: Adv. Schubart SC, instructed by Goldberg & De
Villiers Inc.
For
Respondent: No appearance.
[1]
“
the Fund
”
[2]
During October 2019
[3]
In other words settled the question as to whether
the Fund is liable for any damages sustained by the Plaintiff as a
result of
the collision
[4]
Whilst the Defendant was still represented by an
attorney and counsel
[5]
The interim payment was for the amount of R500
000.00 and an undertaking in terms of
Section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
for payment of 80% of certain costs was
also furnished
[6]
The original attorneys of record are no longer on
record but at the date set down for the hearing of the matter on the
outstanding
issues a member of the State Attorney was present prior
to the matter being called but indicated that she held no firm
instructions
regarding the hearing of the matter and any further
conduct on the part of the Fund
[7]
Although in a slightly different context it
appears that the Fund (at least in this division) has adopted an
attitude which must
be deprecated, namely to allow certain defended
actions to proceed unopposed notwithstanding that they were
originally defended
by the Fund represented by attorneys.
These attorneys have all withdrawn as attorneys of record.
During this week
alone, there were several matters on the trial roll
where such an attitude was adopted by the Fund and where Judgment
was sought
by the various plaintiffs in the absence of the Fund
[8]
Rule 31(5)(a)
on the other hand deals with the
situation where default judgment is sought on a claim which is for a
debt or liquidated demand
[9]
In my view, where a defendant in such an action
for damages files a Plea but does not appear on the day allocated
for the trial,
the principles enunciated hereunder regarding
evidence by affidavit or
viva voce
are similarly applicable
[10]
The Fund in this matter has effectively been
barred from pleading as its defence has been struck out. As
indicated above,
no steps were taken by the Fund to seek permission
to appear at the hearing
[11]
See DE van Loggerenberg
Erasmus
Superior Court Practice
Volume 2,
Second Edition at D1-364
[12]
Erasmus
supra
at D1-364
[13]
Knight NO v Harris
1962
(2) SA 317
(SR);
Dorfling v Coetzee
1979 (2) SA 632
(NC). See also
Eloff
v Sprintz’s Executors
1920 TPD
93
and
Mashifane v Suliman
1931 TPD 329
[14]
1997 (4) SA 1014
(D&CLD)
[15]
At 106A to B
[16]
2002 (6) SA 724
(ECD) (the Full Bench overturning
the decision of
Groenewald NO and
Another v Swanepoel and Another
2002
(5) SA 647
(SE))
[17]
At 725 I to J
[18]
1965 (4) SA 136
(TPD)
[19]
At 137 D to E
[20]
1985 (1) SA 717
(CPD)
[21]
1993 (3) SA 724 (TPD)
[22]
In
Mkhize v Lourens
and Another
2003 (3) SA 292
(TPD) at
298 I - J the Court referred to
Havenga’s
decision
supra
and clearly, and by implication, approved the principle that in
applications for default judgment for damages, and in appropriate
circumstances, evidence may be tendered by way of affidavit
[23]
2021 (3) SA 425
(SCA)
[24]
Including certain ancillary relief
[25]
The Judgment was penned by Navsa JA and Wallis JA
[26]
And where an interdict is not sought but damages
[27]
And more specifically as the SCA dealt with some
of the decisions referred to previously in this Judgment regarding
the manner
of leading evidence in default judgment applications
[28]
More particularly the effects of the injuries
sustained as a result of the accident
[29]
Extensive evidence
[30]
Important expert testimony
[31]
And confirmed on affidavit
[32]
The report is dated March 2018
[33]
Which once again is confirmed in an affidavit.
The factual matter considered by Dr Nobre was testified to by the
Plaintiff
who of course gave
viva voce
evidence
[34]
Save to the extent of contingencies which I deal
with hereunder
[35]
After applying contingencies and the apportionment
[36]
Corroborated by the Plaintiff
[37]
Once again confirmed in oral evidence
[38]
The amount also made allowances for some amounts
received for work performed intermittently
[39]
Reported in
Corbett & Honey: Quantum of Damages in
Bodily and Fatal Injury Cases
, Volume 5 at E6 – 1 –
(2007 (5E6) QOD1 Ck))
[40]
Robert J Koch
The
Quantum Yearbook 2021
[41]
The nett amount after deduction of the
apportionment
[42]
Once again after deductions in respect of the
apportionment