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[2023] ZAGPPHC 1171
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Du Toit obo Mabija v Road Accident Fund (52172/18) [2023] ZAGPPHC 1171 (11 September 2023)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 52172/18
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date:
11 September 2023
E
van der Schyff
In
the matter between:
ADV
A.J. DU TOIT obo JOYNT SHANE MABIJA
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
Van
der Schyff J
[1]
In this matter, a
previous order was granted wherein the plaintiff was, amongst others,
awarded general damages in the amount of
R1 900 000.00 and an interim
payment regarding loss of earning capacity in the amount of R3 000
000.00.
[2]
The loss of earning
capacity remains to be finally adjudicated. It is common cause that
the plaintiff suffered serious bodily injuries
and that he has no
residual earning capacity. It is also common cause that the plaintiff
was 22 years old when he was injured.
He admitted to using alcohol,
methamphetamine, and cannabis for years. The plaintiff, however,
stated that he rarely used drugs
by the time of the accident because
he was focusing on music. He was a bricklayer before the accident and
was on his way to a construction
site when the accident happened.
There is no certainty about his highest level of education, but the
plaintiff reported it as Grade
11. In the heads of argument, it is
stated, however, that it is uncertain whether he completed and passed
Grade 11. I pause to
note that the various experts' information was
inconsistent in this regard.
[3]
Despite the factual
position of the plaintiff being 22 years old at the time of the
accident and, according to the educational psychologist,
had
reportedly obtained Grade 10, she opines that before the accident,
the plaintiff had the intellectual ability to complete his
Grade 12
and at least would have been able to complete a certificate on NQF
level 5.
[4]
A person’s
earning capacity is determined by several factors, of which a
person’s general level of intelligence is but
one, albeit an
important one. Although the plaintiff possibly had a general level of
intelligence well within the average range
before the accident, his
educational history indicates that he would probably not have
completed his secondary education and not
obtained any tertiary
qualification. I am aware of the widely accepted fact that young
people have more opportunities to further
their education. Still, a
factual basis must substantiate
the
assumption that a young individual would have used such
opportunities.
The IP
correctly states that cognizance should be taken of the
socio-economic realities of South Africa in general and the
particular
circumstances of the individual involved. The current
matter is not a matter where the facts sustain a finding that the
plaintiff
would have likely been able to benefit from, amongst
others, the NSFAS bursary scheme.
[5]
The industrial
psychologist [IP] and the actuary based their calculations on the
educational psychologists’ opinion that the
plaintiff would
have been able to enter the labour market as a semi-skilled labourer.
I also consider that the IP reports that
the plaintiff held up three
part-time jobs while attending school, indicating his eagerness to
become financially more self-sufficient.
[6]
The actuary calculated
the capital value of the plaintiff’s loss in an updated report,
after having applied contingencies,
at R7 198 980. The actuary
provided for a 20% contingency deduction.
[7]
It is trite that when
earning capacity is quantified, a court has a wide discretion. I am
of the view that the actuarial calculation
can still guide me but
that a higher contingency deduction will allow for the award to be
more in line with what I regard to be
proven facts. I accept that the
past loss amounts to R 451 060.
Future:
Uninjured income:
R8 434 900.00
Less 40%
contingencies:
R3 373 960.00
R5 060
940.00
Less interim
award:
R3 000 000.00
R2 060
940.00
Add
R 451 060.00
R2 512
000.00
ORDER
In
the result, the following order is granted:
1.
The order marked X dated and signed by me
is made an order of court.
E
van der Schyff
Judge
of the High Court
Delivered:
This judgement is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
It will be emailed to
the parties/their legal representatives as a courtesy gesture.
For the plaintiff:
A. Loubscher
Instructed by:
SAVAGE JOOSTE &
ADAMS INC.
For the defendant:
F. Mostert
Instructed by:
State Attorney
Date of the
hearing:
18 August 2023
Date of judgment:
11 September 2023