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[2022] ZAMPMBHC 46
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Mdluli v Road Accident Fund (2594/2018) [2022] ZAMPMBHC 46 (24 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
CASE
NO: 2594/2018
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED:
YES
24/06/2022
In
the matter between:
MIKATEKO
HOLENI MDLULI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
This is a loss
of support claim against the Road Accident Fund emanating from an
accident that occurred on 7 November 2015 along
Plaston Road in White
River, Mpumalanga Province. The motor vehicle accident was between
motor vehicle bearing registration letters
and number
HDH
402 MR,
which
was driven by Dr Ntando Mdluli (“the deceased”) and motor
vehicle with registration letters and number
DHN
934 MR whose driver is unknown.
[2]
In consequence of the accident, the deceased sustained serious bodily
injuries of
which he subsequently died. He is survived by his widow,
the Plaintiff, and two minor children, Mpumelelo and Mncqobi (“the
minor children”) to whom, as a father and natural guardian, he
owed a duty of support during his lifetime. The action was
initially
defended but the Defendant later terminated the mandate it had given
to its attorneys. The matter has therefore become
undefended and is
proceeding on both merits and quantum. Below follows firstly, the
evidence led in respect of the merits and secondly,
quantum.
EVIDENCE
ON MERITS
[3]
The first witness to take the stand was the Plaintiff. Strictly
speaking, her evidence
had nothing to do with the merits of the
accident but it was rather on
locus standi
and partly quantum
insofar as she laid bare how much she earned. She testified that she
and the deceased were married to each other
with antenuptial
contract. She earned an amount of
R600 000.00
per annum
from two companies. Of her marriage with the deceased, the two minor
children were born. She was not present when the
accident happened
consequently everything that she knows about the accident is
hear-say.
[4]
The second witness was Ms Matau Nosizwe Nyathi. She was a front seat
passenger when
the accident took place. She said that she and the
deceased were on the Plaston Road driving into the direction of
Ka-Bokweni.
Shortly after driving pass the airport stop sign, the
road curves. She noticed a vehicle emerging from the bend driving
into the
opposite direction travelling in their lane. In an endeavour
to avoid a head-on collision with the approaching vehicle, the
deceased
swerved to his left-hand side. Seeing that doing so would
cause him to collide with a tree on the left-hand side of the road,
he
sharply turned back onto the road.
[5]
She testified that in veering back onto the road, he probably over
corrected the maneuver
because he collided with the rear end of the
approaching vehicle. On impact, the deceased’s vehicle lost
balance and overturned.
She said that it is at this juncture that her
memory fails her completely. She did not know anything about the fate
of the other
vehicle and its driver. Insofar as she was concerned,
the deceased had done everything that a reasonable driver in his
shoes would
have done to avoid the collision.
[6]
The next witness was the actuary, Mr Potgieter. He testified that he
received instructions
from the attorneys of the Plaintiff, Gama
Attorneys, to calculate the loss suffered by dependents of the
deceased. He stated that
when calculating the loss, he considered the
amendment to the Road Accident Fund Act 56 of 1996 (“the Act”)
introduced
in 2008. In short, the claims are affected by the cap
mentioned in the Act.
[7]
The information that was provided to him was that the deceased was
born in 1971 and
was therefore aged 44 when he met his premature
death. His wife, the Plaintiff, was born in 1978 and would as such,
have been thirty-seven
years old at the time when her husband, the
deceased, died in 2015. Their eldest minor child was born in 2006
while the second
in 2010. Mr Potgieter postulated two scenarios, one
where the calculations were done until the end of the respective
calendar years
during which the minor children would reach age
eighteen and the other, when they become twenty-one years old.
[8]
Mr Potgieter said that since the father of the minor children was a
medical doctor,
it would be appropriate to assume that their loss
would have extended to age twenty-one, which would encompass their
years of studying
towards the acquisition of a tertiary education.
The deceased was the owner of a medical practice known as
Ntandoyenkosi Trading
(Pty) Ltd. He testified further that he was
furnished with various excerpts of annual financial statement of the
deceased’s
medical practice. He was the sole shareholder of the
company.
[9]
For the year that ended on 31 December 2014, the previous year before
his death, he
had earned a net income of
R1 043 712.00
.
The year prior to that, however, shows a loss of an amount of
R329 000.00
. The deceased’s company having been
established in 2012, Mr Potgieter said that the loss suffered in 2013
could be attributed
to challenges associated with start-up companies.
He assumed that the 2014 income of the company would not grow but
would only
increase proportional to inflationary influences. A
further assumption that he made is that the deceased would work until
his retirement
at age sixty-five. The income as aforesaid was
projected with annual inflation until age sixty-five to which tax was
applied.
[10]
In a letter of April 2018, Mr Potgieter received confirmation of the
Plaintiff’s monthly
income of
R50 000.00
from her
accountant. Her income emanated from two companies – Z2
Consulting Services and Nthwaleng Trading. As an annual
income
therefore she received an amount of
R600 000.00
. Mr
Potgieter testified that he was not provided with any further
information concerning her income prior to April 2018 or after.
He
worked with the 2018 income to determine what the Plaintiff was
earning in November 2015 taking into account inflation. He assumed
that she would have retired at the same time as the deceased –
age sixty-five.
[11]
When the accident happened in November 2015, the applicable statutory
cap for loss of support
in any one year could not exceed an amount of
R237 850.00
. Mr Potgieter testified that his
calculations, as are, have taken into account the fact that the cap
stood at that amount. He also
allowed for normal life expectancy for
both the deceased and the Plaintiff. He was advised that the estate
of the deceased was
insolvent as it could not pay its creditors. As a
result, no deductions pertaining to inheritance became necessary to
apply.
[12]
Mr Potgieter testified that he applied the normal general
contingencies but of
5%
on the past loss. He was, however,
conservative when coming to the Plaintiff’s future loss in that
he applied
20%
instead of the commonly accepted
15%
.
The total net loss on the second scenario – one where the minor
children are assumed that they will acquire a tertiary qualification
of some sort, the loss, with the cap having been considered, comes to
R4 353 071.00
.
ISSUES
[13]
The issues for consideration here are direct and crisp. Firstly, the
Court must determine whether
or not the Plaintiff has established
that the insured driver was
1%
responsible for the collision
that ensued. In light of the fact that the Defendant did not present
any evidence before Court on
the date of hearing, the determination
of the negligent driving of the insured driver will stand or fall by
the testimony of Ms
Nyathi. Secondly and on quantum, whether or not
the Plaintiff has proved, on a balance of probabilities, the loss
sustained by
the minor children.
LEGAL
FRAMEWORK
[14]
Insofar as this involves the determination of who of the two drivers,
the deceased or the insured,
drove negligently, it may be instructive
to refer to the
locus
classicus
case
on negligence
-
Kruger v Coetzee
[1]
where
it was stated:
“
For
the purposes of liability culpa arises if –
(a)
adiligens paterfamilias in the
position of the defendant –
(I)
would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence;
and
(b)
the defendant failed to take
such steps.”
[15]
In a similar vein, the matter of
Martindale
v Wolfaardt
[2]
where
it was stated that:
“
a
driver is entitled to regulate the manner of his driving on the
assumption that another driver will not suddenly, without warning
and
recklessly, expose himself and others to danger.”
[16]
To the extent that I adopt the attitude that the Plaintiff has failed
to prove the loss suffered
by the minor children as a result of the
death of their father, it is vital to mention the law governing the
granting or refusal
of absolution from the instance. The law in that
respect is trite. The test to be applied for absolution, usually
at the end of the Plaintiff’s
case, is not whether or not the evidence levied before Court by the
Plaintiff
demonstrates what would customarily be necessary to be
proved at the conclusion of the case of both parties. Instead, a
Court should
ask itself whether or not there is evidence upon which a
Court, applying its mind reasonably to such evidence, ‘could or
might’ and not should, nor ought to’ find for the
Plaintiff were the matter to proceed to finality. See,
Claude
Neon Lights (SA) Ltd v Daniel
[3]
.
[17]
It has been said that the test entails that a Plaintiff has to make
out a
prima
facie
case
such that there is evidence relating to all the elements of the claim
to survive absolution because without such evidence no
Court could
find for the Plaintiff. See,
Marine
& Trade Insurance Co Ltd v Van der Schyff
[4]
.
Insofar as inferences from the evidence are concerned, the inference
relied upon by the Plaintiff must be a reasonable one, not
the only
reasonable one. That said, a Court should not be too eager to grant
absolution at the end of the Plaintiff’s case
unless doing so,
after a careful consideration of the circumstances, will be in the
interest of justice. See,
Gordon
Lloyd Page & Associates v Rivera
.
[5]
ANALYSIS
[18]
In the absence of evidence rebutting the version of the case of the
Plaintiff on who of the two
drivers caused the collision, this Court
finds itself in the unenviable position of having to accept the
testimony of Ms Nyathi.
She told this Court that the insured driver
emerged from the curve driving in the lane of oncoming traffic. She
testified further
that the deceased, confronted with this situation,
tried to avoid the collision by moving to the left-hand side of the
road.
[19]
As he did so, however, he noted that he was likely to collide with a
tree on the left-hand side
of the road. Avoiding a collision with the
tree, he swerved back to the road in the process of which he collided
with the rear
end of the offending motor vehicle. The impact caused
the deceased’s vehicle to lose balance. When Ms Nyathi composed
herself,
the deceased’s vehicle was lying on its side and she
could not recall what happened thereafter. Her evidence suggests that
the insured driver was the sole cause of this collision and I have no
difficulty accepting it to be the case.
QUANTUM
[20]
According to the original particulars of claim, the loss of support
suffered by the minor children
amount in all to
R4 000 000.00
.
As could be expected, the particulars of claim do not describe in
detail how that amount was computed but one would have expected
it to
be supported by
viva voce
evidence in Court. Mr Potgieter was the actuary
who was instructed to calculate the loss of the minor children and he
presented
his actuarial report in Court on the date of hearing of the
case.
[21]
His calculation without the application of the cap added up to
approximately
R6 300 000.00
.
Since this claim is affected by the statutory cap introduced in 2008,
he reduced the amount and he arrived at
R4 353 071.00
as the total loss of both minor children. This is
therefore the long and short of his evidence. It is immediately
evident that the
amount claimed in the original particulars of claim
and the amount presented to Court as representing the minor
children’s
loss do not correspond.
[22]
Confronted with this predicament, on 21 June 2022 I caused an e-mail
message to be sent to the
Plaintiff’s attorneys drawing their
attention to the fact that following the evidence levied in Court,
there should be an
amendment of the particulars of claim in the file.
The attorneys were advised to present the amendment on or before
17:00 on 22
June 2022. An amendment of the particulars of claim was
duly submitted punctually.
[23]
On perusal of the amended particulars of claim, I discovered that the
Plaintiff’s attorneys
neither make reference to the amount
claimed in the original particulars of claim nor the figure mentioned
by Mr Potgieter in the
actuarial report. The amendment submitted
reflects the amount claimed as
R6 000 000.00
.
Like the amount claimed in the original particulars of claim, there
is no account of how the amount has been calculated.
[24]
The outcome of all this is that the Court has three different
amounts. The two amounts are referred
to in the pleadings but with no
supporting evidence to explain how they have been calculated. The
amount calculated by the actuary
has been properly explained but
there is no amendment making the contents of the report or the report
on its own, part of the pleadings.
The evidence of the actuary levied
in Court cannot form part of the pleadings to resolve the predicament
in which this Court find
itself. The upshot is that none of these
amounts have been proved as loss of support of the minor children.
[25]
When faced with the issue whether to grant or refuse absolution, the
question to pose is not
whether or not the evidence levied before
Court by the Plaintiff demonstrates what would customarily be
necessary to be proved
at the conclusion of the case of both parties.
Instead, a Court should ask itself whether or not there is evidence
upon which a
Court, applying its mind reasonably to such evidence,
‘could or might’ and not should, nor ought to’ find
for
the Plaintiff were the matter to proceed to finality. See, the
Claude Neon Lights (SA)
case
above
.
[26]
It is manifest that ‘there is no evidence upon which a Court,
applying its mind reasonably
to such evidence, might find for the
Plaintiff were the matter to proceed to finality’. This is so
because neither the amendment
that refers to the amount of
R6 000 000.00
nor
the amount of
R4 000 000.00
mentioned in the particulars of claim state how
the figures were computed. Equally, the actuarially calculated amount
is not part
of the pleadings notwithstanding that Mr Potgieter gave
evidence in Court. That is to say that the Plaintiff has failed to
demonstrate
one element of the claim – patrimonial loss. Given
these facts, it is in the interest of justice that an absolution be
granted
at this stage to avoid time and resources of this Court being
squandered on a matter that is hopeless.
ORDER
[27]
In the result, the claim fails and I make the following order:
The
claim of the Plaintiff is dismissed with costs.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This
judgment was handed down electronically by circulation to the parties
and/or parties’ representatives by email. The date
and time for
hand-down is deemed to be 24 June 2022 at 10:00.
APPEARANCES:
Counsel
for the
Plaintiff: Mr
D Gama
Instructed
by:
Gama Attorneys
Counsel
for the
Respondent: No
Appearance
Instructed
by:
Date
of
Judgment: 24
June 2022
[1]
1966
(2) SA 428
[2]
1940
AD 235
at 240
[3]
1976
(4) SA 403 (A)
[4]
1972
(1) SA 26
(A) at 37G - 38A
[5]
2001
(1) SA 88
(SCA)