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[2010] ZASCA 123
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Saayman v Road Accident Fund (329/09) [2010] ZASCA 123; 2011 (1) SA 106 (SCA) ; [2011] 1 All SA 581 (SCA) (30 September 2010)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 329/09
In the matter between
A T SAAYMAN
.................................................................................................
Appellant
and
ROAD ACCIDENT FUND
.............................................................................
Respondent
Neutral citation:
Saayman v Road Accident Fund
(329/09)
[2010] ZASCA 123
(30 September 2010)
Coram: Heher, Bosielo and Leach JJA and Majiedt and
Seriti AJJA
Heard: 6 May 2010
Corrected:
Delivered: 30 September 2010
Summary: Road Accident Fund – Third party claim
– Quantum of damages – Future loss of income –
Determining
the probable rate at which the appellant's future income
would have increased but for the accident – Pre- and
post-morbid
contingency deductions.
ORDER
On appeal from:
South Gauteng High Court
(Johannesburg), (Maluleke J sitting as court of first instance):
1. The appeal succeeds with costs including the costs
consequent upon the employment of two counsel.
2. The award of R4 295 290 as damages due to the
appellant in paragraph 18.2 of the order by the court below is set
aside and replaced
with an amount of R13 572 649.
3. The costs of the actuary, Mr Kramer, are to be paid
by the respondent.
JUDGMENT
BOSIELO JA (Heher and Leach JJA and Majiedt and Seriti
AJJA concurring)
[1] This is an appeal, with leave of the court below
(Maluleke J), against an award made in favour of the appellant in an
amount
of R4 295 290 in respect of future loss of income or earning
capacity suffered as a result of injuries sustained in a motor
collision.
[2] This is the appellant's story which I could glean
from the various witnesses who testified in this matter. The
appellant was
born on 26 May 1977. After matriculating he proceeded
to obtain a degree in Bachelor of Commerce Institutional Management
and an
Honours degree in Financial Management. After some brief
community service working as an accountant for his church, he was
employed
by Standard Bank in September 2002 as a Market Risk Analyst.
[3] According to all the evidence the appellant
impressed as an exceptionally talented person. He was a cut above the
rest. He exuded
confidence, was assertive and innovative. He was a
likeable person who made his presence felt by everybody. He enjoyed
his work
and was willing to take initiative to learn new things. His
intellect and intelligence were above average. Primarily because of
his talent and performance, in less than three months the appellant
was promoted to the position of Market Risk Manager at Standard
Bank
earning a salary of R339 166 per annum. The appellant continued to
excel to an extent that he was earmarked for a special
Career
Development Programme to develop and groom him.
[4] All the seniors who worked with the appellant at
Standard Bank are unanimous that, because of his exceptional
attributes and
abilities, the appellant appeared destined for a post
in the top echelon in the banking industry. Almost all the witnesses
who
worked with the appellant at the bank were agreed that with time
the appellant would rise to the position of Head of Market Risk.
It
is only Mr Oktay a senior Market Risk Manager who had minor
misgivings, based largely on the appellant's personality. Importantly
all the witnesses agreed that at least by 1 January 2014, the
appellant would have assumed the position of Head of Market Risk.
This was the dominant view until the accident on 13 June 2005 which
had far-reaching and tragic consequences for the appellant.
[5] Following upon the accident, the appellant was
admitted at Linksfield Clinic. He had suffered some serious head
injuries and
resultant brain injuries. As a result he was placed in
an intensive care unit. The expert witnesses (Dr Edeling a
Neurosurgeon
and Ms Adan a Counselling Psychologist) are agreed that
the appellant suffered a diffuse axonal brain injury. After he was
discharged
from hospital, the appellant returned to his original job
at Standard Bank. It is not in dispute that although he experienced
some
serious problems in adjusting, the appellant coped with his
work. With the help and support of his colleagues and some empathy
from his seniors the appellant successfully went through a
rehabilitative period at work, up to the level where he was able to
perform optimally in the same position which he held before the
accident.
[6] What is sad but crystal clear is that because of the
accident the appellant is not the same person. He is no longer as
ebullient
and effusive as before. Before the accident, Mr Blenkinsop,
Head of Risk and Compliance Rand Merchant Bank (RMB) had shown keen
interest in employing the appellant as their new Risk Manager.
Pursuant hereto, the appellant was invited for an interview where
he
made a good impression. Mr Blenkinsop is of the view that the
appellant is now less confident, withdrawn and reticent. Due to
the
appellant's present condition, he is no longer certain that RMB would
still be interested in the appellant. The appellant is
suffering from
mood outbursts. His memory and concentration have been adversely
affected. Unlike before the accident, he now requires
supervision in
his work. This is corroborated by Ms Adan who testified that the
appellant has complex problems. He is experiencing
cognitive overload
and finds multi-tasking very difficult. He is also unable to receive
and assimilate new knowledge. All these
are the results of the brain
damage which the appellant suffered in the collision.
[7] Although the appellant is now working for Liberty
Life where he is doing the same work which he did at Standard Bank,
all the
experts are agreed that the accident has affected him so
seriously that he will never be able to progress beyond his current
position.
What is worse is that because of the difficulty of coping
with a heavy workload and the stress which comes with it, the
appellant
is likely to be overtaken by his peers. All the witnesses
are agreed that the appellant has reached his ceiling. What compounds
the appellant’s problems further is that as Dr Marais, Head of
Market Risk stated, the banking environment where the appellant
works
is highly pressurised, competitive and ruthless. Everybody has to
compete for his or her position. It is a world where sympathy
has no
place. Sadly this does not augur well for the appellant.
[8] In consequence of his injuries the appellant
instituted a claim against the respondent for his damages. Suffice to
state that
all other claims, save for the one for future loss of
income or earning capacity, have been settled by agreement. The
appellant
claimed an amount of R54 310 264 for his future loss of
income or earning capacity. The learned judge in the court below
awarded
the appellant R4 295 290. The appellant contends that this
amount is far too low and points to a number of irregularities and
misdirections
which, he contends led to the incorrect award. I will
deal with the alleged irregularities hereunder.
[9] Firstly, the learned judge is accused of having
given incorrect instructions to the actuaries concerning the basis on
which
the parties had agreed for the calculation of the damages due.
It is common cause that the actuaries called by both parties had
agreed that the appellant would probably have been appointed Head of
Market Risk on 1 January 2014 at an annual income of R2,25m
calculated at the 2007 rate. However, in his instructions to the
actuaries the learned judge erroneously instructed them that the
R2,25m should be calculated at the 2009 rate. It became common cause
during argument before us that the learned judge did in fact
err in
his instructions to the actuaries.
[10] In calculating the total amount due to the
appellant from 1 January 2014 until his retirement age at 60 in 2037,
as agreed,
the learned judge found that it could not be said with
certainty that the appellant would have been appointed Head of Market
Risk.
The learned judge found that there were the usual hazards of
life which could have adversely affected the appellant's chances of
promotion and awarded a contingency of 50 percent. Although the
learned judge was entitled to consider and make room for the usual
hazards of life, this finding is not supported by the evidence. The
cumulative evidence of the witnesses is that, but for the accident,
the appellant would have been promoted to Head of Market Risk. In
recognition of this, the appellant had already been earmarked
for a
special Career Development Programme. I agree with counsel for the
respondent that, notwithstanding the general hazards and
uncertainties of life, there was a 75 percent prospect that the
appellant would have been promoted to that position, thus justifying
a contingency deduction of 25 percent. To my mind this is in
accordance with the evidence. It follows that the learned judge
erred.
[11] Concerning the appellant’s life and career
after the accident, it is clear that the appellant was no longer the
same.
The effect of the evidence of inter alios, Dr Edeling, Dr
Marais and Mr Schoombie, the industrial psychologist is to the effect
that because of his injuries and their sequelae, the appellant is
likely to find himself in a situation where his peers have overtaken
him and he will not progress beyond his present position. Evidently
this means that, contrary to the finding of the learned judge,
the
appellant's employment prospects after the accident are rather more
precarious and less secured than before the accident. On
the
conspectus of the evidence, there can be no doubt that the appellant
is more likely to lose his employment after the accident
than before
it. The learned judge erred in finding that the prospects of the
appellant losing his employment post accident are
less, thus awarding
a 10 percent contingency. To my mind a higher contingency allowance
post accident is warranted. In the circumstances,
I would award a
post-accident contingency at 30 percent as against the 10 percent
awarded by the trial judge. Maluleke J had fixed
the pre-collision
contingency at 20percent. The appellant also contended for a 20
percent pre-collision contingency. Having considered
the evidence, I
can find no fault with Maluleke J’s finding.
[12] There was a huge debate surrounding the contentious
aspects of the applicable interest and inflation rate. The appellant
argued
for inflation at 12,5 percent. Primarily this was based on an
alleged admission made by the respondent's counsel during his
address.
The respondent sought to have the admission withdrawn on the
basis that it was made in error. The appellant opposed this on the
basis that the respondent was not permitted to withdraw the admission
unilaterally and without a proper and formal application.
The learned
judge granted the application. I agree with the respondent's counsel
that this was not intended to be a formal admission.
To my mind, this
was not an unequivocal admission but a mere concession made by
counsel in the course of his address. Such a concession
may be
withdrawn at any time, particularly where such a withdrawal will not
cause the other party any prejudice. In this case the
concession was
withdrawn during the trial whilst the appellant had ample time to
call whatever witnesses he wished to call to prove
this point. As a
result the appellant cannot claim to have been prejudiced in the
conduct of his trial. Having due regard to the
context under which
this concession was made, I am of the view that there was no need for
a formal withdrawal. See
Kevin and Lasia Property Investment CC &
another v Roos NO & others
2004 (4) SA 103
(SCA) para 12.
[13] Viewed against the totality of the evidence, I
agree with the learned judge that the 12,5 percent sought by the
appellant is
unrealistic and unsustainable as it would have brought
about an unrealistic increase in the salary for the post. The learned
judge
determined the interest at 2,5 percent. I can find no fault
with this determination more so that it was based on common actuarial
practice in similar cases.
[14] In conclusion I am satisfied that the learned judge
erred in his calculation of the damages due to the appellant for his
future
loss of income. The learned judge committed a number of
irregularities and misdirections which led to an award which reflects
a
striking disparity to the amount which I would have awarded. This
entitles this court to interfere with the award by the court below
.
See
Road Accident Fund v Guedes
2006 (5) SA 583
(SCA) para
8.
[15] It should be clear that there is a need for a
proper and accurate recalculation of the damages to be awarded to the
appellant.
The parties agreed that, once we have decided on the
proper basis for the recalculation of the appellant’s damages,
the matter
be referred to an independent actuary for a correct
recalculation.
[16] Based on the above analysis, the amount due to the
appellant for his loss of future income or future loss of earning
capacity
should be calculated with effect from 1 January 2014 until
his retirement age of 60 in 2037 at R2,25m at the 2007 rate with a 30
percent contingency. Interest shall be calculated at 2,5 percent and
inflation at 6 percent per annum.
[17] Acting on the mutual agreement of the parties, Mr
Ivan Kramer, an actuary, was appointed to assist the court in
recalculating
the quantum of the appellant’s loss of earning
capacity. Mr Kramer has duly executed his mandate with admirable
promptness
and furnished the court with his report. Having done his
actuarial analysis, Mr Kramer summarised the appellant’s loss
of
income, ie the difference between the value of income ‘but
for the accident’ and ‘having regard to the accident’
as follows:
But
for the accident
having regard to the
Accident
net
loss
Gross
accrued value of income
2,267,910
2,267,910
Less
contingency
340,187
1,020,560
_________
Net
accrued value of income
1,927,723
1,247,350
680,373
Gross
prospective value of income
32,529,470
17,177,393
Less
contingency
10,189,628
7,729,827
__________
Net
prospective value of income
22,339,842
9,447,566
12,892,276
______________
_____________
__________
Total
value of income
24,267,565
10,694,916
13,572,649
(values in rands).
[18] In the result the following order is made:
1. The appeal succeeds with costs including the costs
consequent upon the employment of two counsel.
2. The award of R4 295 290 as damages due to the
appellant in paragraph 18.2 of the order by the court below is set
aside and replaced
with an amount of R13 572 649.
3. The costs of the actuary, Mr Kramer, are to be paid
by the respondent.
________________
L O Bosielo
Judge of Appeal
HEHER JA (Leach JA and
Majiedt AJA concurring)
[19] I agree with the
judgment prepared by my brother Bosielo. Although we do not differ in
the result, I deem it desirable to provide
additional reasons for
coming to my conclusions.
[20]
This is an appeal with leave of the court below (Maluleke J) against
the quantum of an award made in favour of the appellant
in an amount
of R4 295 290 as loss of earning capacity suffered as a result of
injuries sustained in a motor collision on 13 June
2005.
1
[21]
On that day the appellant had been employed by the Standard Bank as a
market risk analyst for almost three years. A head injury
with brain
damage ensured that further progress in his profession would be
permanently stayed. He commenced action against the
respondent (the
Fund) claiming compensation for his loss. The Fund conceded the
negligence of the insured driver and most elements
of the claim for
damages. The trial proceeded only on disputes around the appellant’s
future loss of earnings. Most of the
evidence for the appellant
2
was not the subject
of serious factual dispute. That the appellant was, before the
accident, a young man exceptionally talented
in the field of risk
management who had secured the confidence of his seniors and that he
possessed great potential for advancement
in banking generally, was
very clear. The award, however, fell far short of his expectations.
He was advised that the trial judge
had misdirected himself. Hence
this appeal.
[22] Before identifying
the precise issues which were argued before us, it will assist if I
refer to those findings of the judge
a quo which are not in dispute.
These include the following:
The pre-accident
position.
[23] 1. The plaintiff
would have continued in employment as a market risk manager until 31
December 2013.
2. The salary applicable
to that post was R767 200 per annum at the date of the trial in 2007.
3. The salary would have
grown with normal inflationary increases while the appellant occupied
the post.
4. From 1 January 2014
the appellant would have been promoted to the post of Head of Market
Risk in the banking and financial services
sector with a salary
package made up of salary and bonus (in approximately equal
proportions) amounting to R2.25 million in 2007
monetary terms.
5. He would have held
that post until retirement at the age of 60 years on 16 May 2037
subject to the hazards of life and such special
risks as derived from
the nature of his employment.
The post-accident
position.
[24] 1. The appellant,
who had continued to occupy the post of market risk manager, albeit
with a change of employer, between the
accident and the date of
judgment, would remain in that post or its equivalent for the
remainder of his working life.
2. The salary that he
would earn would be his 2007 remuneration of R767 200 per annum
escalated annually in accordance with normal
inflationary increases.
3. The appellant would
retire at age 60, subject to the hazards of life and the adverse
effects of the collision on his work performance
in the interim.
[25] In summary, the
appeal was directed at the following findings made by Maluleke J:
1. The learned judge
considered that, although the probabilities favoured the appointment
of the appellant to the post of Head of
Market Risk in January 2014,
that outcome fell well short of certainty. The imponderables were, in
his view such as to justify
a contingency reduction of 50 per cent,
which he duly applied.
2. The salary of the post
of Head of Market Risk carried with it the probability of increases.
The learned judge found that such
increases were on average likely to
be above the inflation rate prevailing from time to time. Assuming an
average inflation rate
of six per cent annually over the whole period
he held that the average real increase in salary would be an
additional 2.5% per
annum. (For reasons which will be explained the
appellant contended for annual increases of 12.5%, including
inflation.)
3. The pre-accident
contingency attaching to employment as a Head of Market Risk until
2037 was fixed by Maluleke J at 20%. He held,
by contrast, that ‘his
present employment is secured and is therefore a matter for less
speculation’ and imposed a
contingency of 10% against his
ability to retain his employment to the age of retirement
post-accident. In the appeal the appellant
contended that the degree
of risk of losing his job after the accident was the greater. He
submitted that contingencies of 30%
(post-accident) and 20%
(pre-accident) should have been applied.
4.
Although the parties were agreed at the trial that the salary of Head
of Market Risk should be calculated on the basis of its
2007 value of
R2.25 million, the trial judge
per
incuriam
instructed
the actuaries to use that salary as at 2009, leading to a final
calculation that was disadvantageous to the appellant.
This
misdirection was not contested by the respondent and the order which
this Court makes will rectify the error.
The contingency for
appointment as Head of Market Risk
[26] The appellant
attacked the judge’s finding on two grounds. First, he alleged
that the future promotion was admitted as
a fact and was therefore
not subject to the imposition of any contingency. Second, he
contended that the evidence bore out the
certainty of the
appointment.
[27]
As the appellant’s argument both in relation to the first
alleged misdirection and that relating to the future increases
in
salary for the post of Head of Market Risk depend to a substantial
extent on informal admissions
3
said to have been
made by the Fund’s counsel during the trial, it is convenient
at this stage to make certain observations
which affect those
submissions.
[28] In the context of
civil proceedings an admission is a statement against interest which
has the effect of binding the party
on whose behalf it is made. If
that effect is absent the statement cannot amount to an admission and
the well-established rules
relating to the withdrawal of admissions
cannot apply to it. In fact a withdrawal is, strictly, unnecessary
and prejudice to the
other party is not an issue. An admission, in
its formal sense, also requires at least an intention, explicit or
inferred, and
unequivocal, to remove a fact that depends on proof
from the field of contention.
[29]
Concessions are made by counsel in the course of a trial for a
variety of reasons without a contemplation that he is thereby
committing his client and without any intention to limit the issues.
The statement in question may, for example, be used as an
assumption
on which to found an argument or be made in a bona fide spirit of
fairness intending to convey to the court counsel’s
candid view
of the way the court should proceed. In the absence of formality the
context must necessarily be decisive of whether
an admission has been
made.
4
As will be seen, I
am of the view that it provides the answer in this case too. Although
there was some suggestion that the alleged
admissions had been made
between counsel before being communicated to the court, there was no
evidence in that regard and the issue
can be limited to statements
contained in the heads of argument and repeated in oral argument to
the court a quo.
[30]
To return to the first so-called misdirection, I can find no evidence
of any express statement by counsel for the defendant
which raised
the probability of the 2014 appointment to the level of certainty. As
to an inference to that effect, the contextual
indications are to the
contrary. The amendment which introduced 2014 as the date for that
promotion was moved after the evidence
(save for that of the
actuaries) had been concluded. It came about because the plaintiff’s
counsel plainly realized that
the strength of their case lay in the
probability of such promotion and not in the possibility of
advancement to the higher post
of Head of Risk Management where their
evidence had been indifferent. They therefore chose a date later than
the evidence merited
in order to strengthen their hand in argument.
Counsel for both parties knew that cross-examination against the
likelihood of promotion
to Head of Market Risk had been directed to
particular areas of alleged weakness
―
educational
shortcomings, character defects, unproven managerial abilities, the
unpredictability of the quality and number of competitors
for
promotion and the inherent disadvantages to the appellant in the
predicated emphasis on gender and racial diversi
ty.
Counsel were aware that such uncertainties as arose from these areas
had not been eliminated. In addition they were debating
a scenario
that was still some six years distant. There was in these
circumstances no reason for the Fund or its counsel to abandon
reliance on any degree of doubt which they had succeeded in raising.
Nor did the plaintiff’s counsel have any good reason
to believe
that they intended to do so.
[31]
In this context it is impossible to read into the argument before the
court a quo any admission that the appellant would, as
a fact, have
been appointed. That being so, the question which arises is whether
the evidence justified a reduction of 50% in the
probability of
promotion.
5
[32] Against the
contra-indications that I have mentioned, none of which was entirely
without weight, the following factors in favour
of promotion must be
taken into account-
(i) the predictable
shortage of suitably skilled persons available for such a position;
(ii) the confidence shown
by the appellant’s superiors in his ability to advance in the
company;
(iii) the appellant’s
proven competence and self-assurance;
(iv) the availability of
similar posts beyond his then employment both within and outside
South Africa;
(v) the realistic
possibility that he would have been able to compete for the post
earlier than 2014.
[33] The learned judge
commenced his assessment of this aspect with the comment ‘It is
undisputed that but for the collision
plaintiff had “a better
than 50/50 chance” to be promoted. . .‘ but, despite that
foundation, there is no indication
that the learned judge attached
any or adequate weight to these factors.
[34] In my judgment if
the court a quo had properly assessed the probabilities for and
against promotion on the stipulated date
it must have concluded that
the prospect was, although not risk-free, substantially better than
even. A 25% contingency would most
accurately reflect the balance of
the evidence. This in short means that I am of the view that there
was a 25% chance that the
appellant would not have been so promoted
(and would, in consequence, have continued to earn the salary of a
manager of market
risk) but a 75% chance that he would have been
promoted and, from 1 January 2014, earned the salary appropriate to
the post of
Head of Market Risk.
The correct rate of
increase for the post of Head of Market Risk
[35] The appellant
contended for an annual increase of 12.5% per annum. He relied upon
an admission to that effect by defendant’s
counsel at the
trial. There is no doubt that the Fund’s counsel submitted in
his heads of argument that the rate of escalation
to be applied
‘exceeds that of inflation and should be assumed to be 12.5%
per annum’ and ‘after being promoted
he would have
received increases at an average rate of 12.5% per annum’.
[36] Counsel for the
defendant later disavowed this concession. His explanation was that
the prevailing rate of inflation in the
preceding year had been some
10 per cent; in fixing on 12.5% he had intended only to submit that
the post would have carried a
real increase of 2.5% per annum.
However there are passages in the record which belie this
explanation. Once again the context
is of assistance. Counsel was not
addressing a fact so much as a prophecy: the annual rate of increase
over twenty-three years
(from 2014). That involved, at best, an
informed prediction combining many variables bearing on the economy
and market conditions.
But there was no such information available.
The ‘best evidence’ related to rates of increase over the
ten years preceding
the trial. But there was no justification for
projecting those (very substantial) rates on the period from 2014.
When counsel made
the concession the evidence had been led and its
deficiencies must have been apparent to both sides. As the actuaries
noted and
the learned judge accepted, an annual increment of 12.5%
every year for 23 years would have resulted in a massive and
unrealistic
ballooning in the salary for the post, a lack of reality
which is magnified when one remembers that the post in question is
only
one of a much larger structure within the company and nationally
from which it cannot be isolated. In the circumstances, counsel’s
concession amounted to no more than his opinion, neither intended as
the admission of his client nor designed to release the court
from
its duty to make a finding on the question.
[37] Making his finding
on this matter the trial judge preferred the evidence of actuarial
practice in such cases, in effect the
determination of the likely
average rate of inflation and the imposition on that rate of a real
increase of about 2.5%, even though
this represented no more than
doing one’s best with limited materials. I cannot find fault
with this approach and it provides
an answer which may or may not be
conservative but appeals as fair and balanced.
The pre-accident
prospect of the appellant retaining the post of Head of Market Risk
until retirement.
[38] The trial judge
allowed a special contingency of 20%. The evidence shows that risk
management is a demanding exercise that
bears its own hazards for
long-term security of tenure, particularly in difficult economic
times or in the face of decisions which
are thought by management to
be prejudicial to the interest of the company. It is not reasonable
to find that the trial judge was
wrong in the assessment he made on
this aspect. This contingency applies to the appellant’s
assumed occupation of the post
of Head of Market Risk from 1 January
2014 until retirement. It does not apply to the period 1 January 2007
until 31 December 2013
ie while the appellant would have been
employed as manager of market risk.
The post-accident
prospect of the appellant retaining the post of manager of market
risk until retirement.
[39] The evidence
established marked physical and psychological deterioration in the
appellant as early as the date of the trial.
The opinions of his
supervisors were that he would be unable to rise to the increasing
demands of the post. Nor would he long be
able to compete with
younger persons, even those who did not overtake him on the
promotional ladder. As his career stagnated, decrease
in motivation
would also tell against his desirability for continued employment. In
the circumstances the appellant was likely
to become a prime
candidate for redundancy in later life particular in an adverse
economic climate. In this instance the learned
judge’s view
that his position was more secure after the accident does not reflect
the evidence. The contingency of 10% at
which he arrived is
materially less than what I regard as appropriate. I would fix this
special contingency at 30%. This means
that the contingency will
apply to the period 1 January 2007 until 26 May 2037 ie while the
appellant occupies the position of
manager of market risk. The
difference in approach between the pre- and post-accident
contingencies arises from the different causes
that justify the
application of those contingencies.
[40] One further aspect
of clarification is required. In the pre-accident scenario I have
referred to the common cause fact that
the appellant’s salary
would have grown with normal inflationary increases while he occupied
the post of manager of market
risk (until 31 December 2013). No
consideration seems to have been given by the parties or the court a
quo to the likelihood of
real increases during that time. This
however was the essence of the question raised in relation to the
post of Head of Market
Risk (from 1 January 2014 until the
appellant’s retirement) and in respect of which I have made a
finding of an average real
increase of 2.5% per annum. As earlier
emphasised, the more senior post exists as part of a structure (which
includes the lesser).
Both common sense and logic demand that
equivalent real increases be applied to the post of manager of market
risk prior to 2014.
[41] For these reasons I
agree with the order proposed by my brother Bosielo.
__________________
J A Heher
Judge
of Appeal
APPEARANCES:
For
appellant: B Ancer SC (with him D Goodenough)
Instructed
by: Ramsay Webber Attorneys, Johannesburg
Webbers,
Bloemfontein
For
respondent: T A L L Potgieter
Instructed
by: Dyason Attorneys, Pretoria
McIntyre
& Van Der Post, Bloemfontein
1
All
other heads of damages had been agreed before the trial concluded.
2
He
himself did not testify.
3
Informal,
inasmuch as they were not recorded by the court as admissions: s 5
of the Civil Proceedings (Evidence) Act 25 of 1965.
4
In
Standard Bank of S.A. Ltd v Minister of Bantu Education
1966
(1) 229(N) Caney J said (at 242H-243G): ‘Whatever may be the
position concerning counsel’s authority to bind
his client by
admissions formally made and recorded in a civil case, it seems
undesirable that counsel’s opening of a case
should be
accorded decisive effect in regard of proof of facts necessary to a
party’s case or defence. Opening remarks
are, in common with
counsel’s closing argument, usually not recorded. If such
matters are to be used in coming to a conclusion
in a judgment, they
must be set out therein and used, in the ordinary course of events,
with considerable circumspection. No
use was made of this factor by
the court
a quo
and it is quite uncertain what its conclusion
in that regard would have been.’ I respectfully adopt the
entirety of this
reasoning. See also
Kevin and Lasia Property
Investment CC v Roos NO
2004 (4) SA 103
at para 12.
5
In
my approach to all the contingencies considered in this judgment I
have, of course, borne in mind that the trial judge was
exercising a
discretion with which this Court will not interfere unless it was
not properly exercised: see eg
Van der Plaats v SA Mutual Fire
and General Ins Co Ltd
1980 (3) SA 105
(A) at 114F-G;
De
Jongh v Du Pisanie NO
2005 (5) SA 457
(SCA) at para 47.