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[2023] ZAGPPHC 1805
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Neves v Road Accident Fund (12843/2020) [2023] ZAGPPHC 1805 (23 October 2023)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 12843/2020
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date: 23
October 2023
E van der Schyff
In
the matter between:
NELSON
DINIS NEVES
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
Van
der Schyff J
[1]
The only contentious issue in this matter
is whether the plaintiff, a foreign national, who was living and
working in South Africa
when he was injured in a motor vehicle
accident, in circumstances where he did not possess a work permit and
was not an asylum
seeker, can claim loss of income from the defendant
(the Fund).
[2]
It is the defendant’s position that
the plaintiff cannot succeed with his claim for loss of income
because he is a foreign
national who was not issued a work permit and
was also not an asylum seeker.
[3]
The
law denies compensation where bodily injuries prevent someone from
earning money illegally.
[1]
Where a person who earns income unlawfully is injured, the fact that
he cannot recover compensation for such loss does not exclude
a claim
for the possible impairment of his lawful earning capacity. In
quantifying a claim for loss of earning capacity, proper
provision
has to be made for the fact that the plaintiff failed to employ his
lawful earning capacity or, in all probability, would
not have done
so in future.
[2]
[4]
In casu
,
the plaintiff, a foreign national, earned an income as a mechanic or
assistant mechanic. I am of the view that it is irrelevant
whether
the plaintiff was a mechanic or assistant mechanic, as his evidence
that he earned R250 per day was not challenged. Since
the
unlawfulness of the employment does not flow from the nature of the
specific activity but from the fact that the plaintiff
did not
possess a work permit, I am of the view that in the current matter,
the quantification of the loss of earning capacity
can be based on
the actuarial calculation, in that the income-generating activity
gives an indication of the plaintiff’s
income generating
capacity. The plaintiff’s income-generating activities can and
should be distinguished from scenarios like
earning a living through
theft or human trafficking, where the income derived from such
activities cannot be used as a basis for
quantifying the loss of
earning capacity.
[5]
I am of the view that a higher-than-normal
contingency deduction will address the issue of fluctuating earnings
and provide for
the fact that this claim is for the loss of earning
capacity and not a claim for loss of future income. I am of the view
that a
15% contingency deduction is sufficient.
[6]
The parties settled the issue of general
damages.
ORDER
In
the result, the following order is granted:
1.
The draft 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 judgment 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:
Adv. C Jordaan
Instructed by:
Spruyt Inc.
For the defendant:
Mr. Mabena
Instructed by:
State Attorney
Date of the
hearing:
18 October 2023
Date of judgment:
23 October 2023
[1]
Dhlamini
v Protea Ass Co
1974
(4) SA 906
(A);
Nkwenteni
v Allianz Ins Co Ltd
1992 (2) SA 713
(Ck). Visser PJ, Potgieter JM
et
al. Visser and Potgieter’s Law of Damages
2
nd
ed. JUTA 40.
[2]
Visser
and Potgieter,
supra
,
284.