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[2021] ZAGPPHC 378
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Tshoane v Road Accident Fund (Leave to Appeal) (42022/2017) [2021] ZAGPPHC 378 (6 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
42022/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
TEBOGO
PRECIOUS TSHONE
APPLICANT/
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
RESPONDENT/
DEFENDANT
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
1.
1.1
The plaintiff, a 34 (thirty-four) year old
woman, instituted against the defendant for damages arising from a
motor vehicle accident
that occurred on 25 December 2015.
1.2
Judgment was handed down on the 21
st
of January 2021 against the defendant for an amount of R1,198,650.00
(one million one hundred and ninety-eight thousand six hundred
and
fifty rand only) in respect of the plaintiff's claim in respect of
loss of earnings.
1.3
On the 18
th
of February 2021, the plaintiff filed an application for leave to
appeal.
1.4
The application has not been launched
within 15 (fifteen) days from the date of judgment and there is no
application for condonation
by the Plaintiff.
1.5
I requested the Plaintiff's counsel to
indicate why there was no condonation application and the response
from the bar was that
the plaintiff struggled to obtain a copy of the
transcript of the proceedings.
1.6
The failure on the part of the plaintiff to
apply for condonation is fatal to the plaintiff's application for
leave to appeal.
1.7
I shall nevertheless proceed to deal with
the merits of the matter
TEST TO BE APPLIED IN
DECIDING AN APPLICATION FOR LEAVE TO APPEAL:
2.
2.1
In terms of
section
17
of the
Superior Courts Act 10 of 2013
:
"
17.
Leave to appeal
(1)
Leave
to appeal may
only
be given where the judge or judges concerned are of the opinion that
—
(a)(i) the
appeal
would
have a reasonable prospect of success.
"
2.2
This criterion, which
over many years had been adopted in regard to the question of leave
to appeal, has now obtained statutory
force.
2.3
To this must
be added the consideration that in this subsection the word 'would'
is used in determining the conclusion to which
the judge or judges
must come before leave to appeal can be granted.
2.4
In
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen
[1]
the
Land Claims Court held (in an
obiter
dictum
[2]
)
that the wording of this subsection raised the bar of the test that
now has to be applied to the merits of the proposed appeal
before
leave should be granted.
2.5
In
Notshokovu
v S
[3]
it
was held
[4]
that
an appellant faces a higher and stringent threshold, in terms of the
Act (i.e. this subsection), compared to the provisions
of the
repealed Supreme Court Act 59 of 1959.
2.6
The
defendant's sole basis for the application for leave to appeal is
that the appeal would have a reasonable prospect of success.
THE PLAINTIFF'S
PLEADED CASE:
3.
3.1
In terms of the plaintiff's particulars of
claim the plaintiff sought judgment against the defendant in the
amount of R2,000,000.00
(two million rand) which amount is made up as
follows:
3.1.1
Past hospital expenses
(estimate)
R 50,000.00
3.1.2
Future medical
expenses
Undertaking
3.1.
Future loss of income and
earnings
R1,250,000.00
3.1.4
General damages, pain and
suffering
R 700,000.00
Total:
R2,000,000.00
3.2
The plaintiff did not claim any amount from
the Road Accident Fund in respect of past loss of earnings.
3.3
Shortly before the trial date and more
specifically on Friday, 26 June 2020, the plaintiff gave notice of
her intention to amend
her particulars of claim. In terms of
the notice of intention to amend, the defendant was given until 13h00
on Monday, 29
June 2020 (less than 1 (one) business day later) to
object to the proposed amendment failing which the plaintiff's
amendment would
be effected.
3.4
No indication is given that this notice was
in fact served on the defendant at all. This purported notice
of intention to
amend was further defective in that it failed to
comply with the Uniform Rules of court.
3.5
If the plaintiff could not give the
requisite 10 (ten) days' notice of her intention to amend her
particulars of claim, due to the
fact that there was not sufficient
time prior to the actual trial date, then it was incumbent on the
plaintiff to provide a notice
of the plaintiff's intention to amend
her particulars of claim on the day of trial and to move the
amendment before me. Not
only did the plaintiff deliver a
defective notice of intention to amend, the plaintiff failed to move
the amendment before me and
also failed to deliver the amended pages.
3.6
It
is trite law that the actual amendment of the pleading takes place
only when the amendment is effected within the stipulated
time in
accordance with Rule Sub-Rule (7).
[5]
3.7
Given the fact that the judgment awarded in
this matter was just shy of the loss of earnings claimed in the
amount of R1,250,000.00
(one million two hundred and fifty thousand
rand), it is difficult to see how another court would come to a
different conclusion.
The amount argued on behalf of the
plaintiff in respect of loss of earnings was in excess of
R3,000,000.00 (three million rand).
This was simply not in
accordance with the pleaded case of the plaintiff and simply not the
case that the Defendant had to meet
(even thought there was no
appearance for the Defendant on the day of trial).
3.8
The failure on the part of the plaintiff's
legal representatives to ensure that the award that the plaintiff
sought was in line
with the pleaded case is similarly fatal to the
plaintiff's application for leave to appeal.
LOSS OF EARNINGS CLAIM
ADVANCED BY THE PLAINTIFF:
4.
4.1
The plaintiff's claim for past and future
loss of earnings has been fully set out in the report of the
plaintiff's Industrial Psychologist
namely, Ben Moodie.
4.2
According to this report, the plaintiff
started a catering business called Previc Trading and Projects CC in
2014. The plaintiff
supplied food at the local taxi rank in
Pankop and prepared food for the taxi association meetings. The
plaintiff set up
a stand at the taxi rank and made use of portable
gas stoves to prepare meals. The plaintiff also applied for
tenders at
the local municipality.
4.3
The plaintiff worked at the taxi rank from
Monday to Friday. All the information contained in the report of Mr
Moodie regarding
the plaintiff's earnings, what her expenses are,
what the gross profit was were all based on what the plaintiff
verbally conveyed
to Mr Moodie.
4.4
According to the report of Mr Moodie
(based on information conveyed to him by the plaintiff):
4.4.1
The plaintiff earned a gross profit of
R32,597.00 per month.
4.4.2
When a tender was awarded, she would earn
approximately a gross profit of R8,000.00 per tender.
4.4.3
The plaintiff's monthly expenses were
R21,830.00 per month.
4.4.4
The plaintiff earned a gross income per
annum of R529,570.00 and after deductions she made an average profit
of R17,300.00 per month
(R207,610.00 per annum).
4.5
According to Mr Moodie, her business could
have grown by at least 20% per annum over a period of 5 years.
This would have
resulted in doubling her personal income (i.e.
R415,220.00 per annum / R34,601.66 per month) by December 2020.
4.6
Post-morbidly the plaintiff struggled with
her business.
4.7
According to Mr Moodie following her
treatment and the appointment of an assistant, the plaintiff could
earn the same earnings
as postulated pre-morbidly.
4.8
An actuarial calculation was obtained based
on the postulations of Mr Moodie. In accordance with the
actuarial calculation,
the plaintiff's uninjured earnings (had the
accident not occurred) as at 2016, before tax, was an amount of
R207,610.00 per year
and this amount was allowed to increase to an
amount of R415,220.00 per year in December 2020.
Post-Morbidly:
4.9
The only earnings that were taken into
account post-morbidly are the earnings that appear in the limited
bank statements that were
provided to the Plaintiff’s experts.
These bank statements relate to Previc Trading and are not the
Plaintiff’s own
personal bank statements. The actuary in his
calculation assumed that the income reflected in the bank statements
of Previc Trading
was also the income of the Plaintiff personally.
The actuary further assumed that this was the only income that the
Plaintiff had
earned post-morbidly.
4.10
The post-morbid income of Previc Trading
(according to the limited bank statements provided) that was used for
purposes of calculating
the Plaintiff’s loss of income is set
out below:
4.10.1
March 2017 – R30,900.00 per year;
4.10.2
March 2018 – profit of R32,321.00 per
year;
4.10.3
March 2019 – average profit of R35.00
per month (R315.00 in total);
4.10.4
Date of calculation (25 June 2020) –
no earnings;
4.11
The future post-morbid earnings postulated
in the actuarial report are set out below:
4.11.1
Mid-September 2020 – R3,000.00 to
R4,000.00 per month;
4.11.2
September 2021 – profit of
R207,610.00 per year (2016 terms) less the cost of an assistant at
R78,000.00 per year, straight
line; to
4.11.3
September 2026 – profit of
R415,220.00 per year (2016 terms) less the cost of an assistant at
R99,832.00 per year.
4.12
Provision was made for retirement at 65
(sixty-five) years of age.
4.13
The following contingencies have been
applied in the aforesaid actuarial calculation:
4.13.1
Past loss (uninjured) 5%
4.13.2
Past loss (injured)
0%
4.13.3
Future loss (uninjured)
15%
4.13.4
Future
loss (injured) 25%
4.14
After the application of the aforementioned
contingencies, the following loss was calculated (after the
application of the CAP):
4.14.1
Past loss of earnings:
R1,039,200.00
4.14.2
Future loss of earnings:
R2,387,100.00
Total loss of
earnings:
R3,426,300.00
4.15
The aforementioned calculation is premised
on the following assumptions:
4.15.1
That the plaintiff earned the amounts as
claimed in the report of Mr Moodie (as verbally conveyed to Mr
Moodie by the plaintiff);
4.15.2
That the business had the expenses as set
out in the report of Mr Moodie (as verbally conveyed to Mr
Moodie by the plaintiff);
4.15.3
That the business had the gross profit as
set out in the report of Mr Moodie (as verbally conveyed to Mr
Moodie by the plaintiff);
4.15.4
That the plaintiff's gross profit of the
business namely Previc Trading and Projects (Pty) Ltd could be
regarded as the plaintiff's
own personal income;
4.15.5
That the business which primarily involved
selling food at a local taxi rank would have increased by 20% per
year;
4.15.6
That post-morbidly the Plaintiff was off
work for at least a year;
4.15.7
That post-morbidly the plaintiff was unable
to earn anything until March 2017;
4.15.8
That post-morbidly the Plaintiff only
earned the limited income as set out in the bank statements of Previc
Trading.
4.15.9
That even with the help of the assistant
the plaintiff could only earn negligible earnings for a period of 5
(five) years post-accident;
4.15.10
That the plaintiff would have reached
exactly the same earnings as pre-morbidly (albeit with a delay) with
the use of an assistant.
4.16
None of the aforementioned assumptions were
in fact borne out by the evidence at all.
4.17
According to the report of Mr Moodie "
there
is no proof regarding Mrs Tshoane's earnings pre-accident
"
(paragraph 6.2 of Mr Moodie's report).
4.18
According to Mr Zeeman:
"
In order to
calculate a loss of income claim, it has to be determined what can
reasonably be expected the likely income of the plaintiff
would have
been but for the accident, and what it has been and will likely be
having regard to the accident.
The
absence of independently verifiable information regarding the
plaintiff's past and future loss of earnings, make the attainment
of
the above stated objectives impossible.
"
(at paragraph 5.1 of Mr Zeeman's report).
4.19
Mr Moodie premised the elaborate breakdown
of the business's monthly income, expenses and gross profit entirely
on the say-so of
the plaintiff. The main issue was accordingly
whether the say-so of the plaintiff was reliable.
4.20
When the plaintiff was asked about the
business's monthly income, monthly expenses and monthly gross profit,
her answers in each
respect differed from that contained in the
report of Mr Moodie.
4.21
When the plaintiff was asked by me what her
monthly gross profit was, she indicated that she was not sure and
that she does not
know.
4.22
Because the plaintiff's answers pertaining
to the income, expenses and gross profit differed significantly from
the information
contained in the report of Mr Moodie (and the
ultimate actuarial calculation) this seriously affected the
reliability of the actuarial
calculation as it was not supported by
the oral evidence of the plaintiff.
4.23
Because of the differences aforesaid and
the ultimate lack of reliable proof of earnings, I enquired whether a
generic postulation
ought to be advanced in terms of which the income
of other traders in a similar field could be considered. This
suggestion did
not find favour with Mr Moodie.
4.24
To compound the difficulty for the
plaintiff, she failed to discover or present any evidence with regard
to the business's (or her
own) bank statements prior to the accident
nor did she provide the financial statements of the business that
would have been able
to demonstrate the income of the business prior
to the accident. It stands to reason that if she made as much money
as was suggested
in the report of Mr Moodie, that this money would
have been banked.
4.25
In the result, I was left with only the
say-so of the plaintiff whose version during her evidence was
different from the figures
mentioned in the report of Mr Moodie.
4.26
Moreover, the bold postulation by Mr Moodie
that the business would have grown by 20% per year, lacked any
factual or evidentiary
basis. There was simply no evidence that the
plaintiff's business grew at all.
4.27
According to most of the medico-legal
reports the plaintiff only returned to work, more than a year later.
This was also at variance
with her evidence. She testified that she
returned to work several months after the accident. Significantly for
purposes of quantifying
the plaintiff's post-morbid earnings only
amounts that appeared in the limited bank statements of Previc
Trading were taken into
account.
4.28
Accordingly, I could not and did not rely
on the actuarial calculation that I was presented with as there were
no reliable evidence
to underpin it. As set out in the
judgment, I adopted to quantify the plaintiff's past loss of earnings
by adopting a robust
approach and awarding a lump sum amount in the
amount of R200,000.00.
4.29
As there was no factual evidence that the
plaintiff's business had grown pre-morbidly at all, I could not and
did not rely on the
bold conclusion by Mr Moodie that the plaintiff's
business would have grown by 20% per year. In the result the
only future
loss of earnings component that remained was the costs of
an assistant.
4.30
Insofar as the application for leave to
appeal relates to my failure to accept the actuarial calculation I am
of the view that are
no reasonable prospects that another court would
come to a different conclusion as the evidence was at variance with
the assumptions
made in the actuarial calculation in every material
respect.
4.31
In the matter of Southern Insurance
Association Ltd v Bailey NO
1984 (1) SA 89
(A) it was emphasised that
a mathematical calculation depends on the soundness of the
assumptions made therein and this in turn
rests on the evidence.
The court further emphasised that a court is entitled, should it
consider such a course appropriate,
to award a globular amount in
respect of loss of earning capacity.
4.32
The plaintiff further alleges that I erred
by descending into the arena. I can only assume that this
refers to the clarification
that I sought at the conclusion of the
plaintiff's evidence. At the conclusion of the plaintiff's
evidence, the plaintiff
had failed to present any evidence as to who
the members where of Previc Trading. It was incumbent on the
plaintiff to demonstrate
through her evidence that she suffered a
personal loss of income as a result of the accident and its
sequelae
.
My questions in clarification actually assisted the plaintiff, as the
plaintiff failed to present this evidence during her
examination in
chief. Accordingly this ground is completely without merit.
4.33
With regard to the costs of an assistant,
counsel for the plaintiff during the hearing of the application for
leave to appeal argued
that I erred by applying a 50% contingency
deduction. He further argued that there should have been no
contingency deduction,
in fact according to him, a positive
contingency had to be added to the quantified claim of an assistant
in the amount of R1,997,300.00.
No authority has been quoted by
counsel for the plaintiff for this proposition. Moreover, the
approach suggested by counsel
for the plaintiff is at variance with
the evidence:
4.33.1
The evidence of the plaintiff was that she
needed an assistant pre-accident. This assistant helped her
with the carrying of
heavy pots and cleaning etc. According to
the available medico-legal reports, the plaintiff was still
symptomatic from another
accident and the current accident
exacerbated her previous symptoms;
4.33.2
The plaintiff employed an assistant on a
fulltime basis to assist her at the taxi rank. She paid this
assistant an amount
of R1,000.00 per month;
4.33.3
The fact that the plaintiff already had an
assistant pre-accident was not taken into account by Mr Moodie at
all;
4.33.4
The costs of an assistant that was
actuarially calculated commenced with a monthly earning of R2,500.00
which amount was allowed
to grow with inflation;
4.33.5
The purpose of the assistant recommended by
Mr Moodie was not to completely replace the plaintiff. The
plaintiff would get
the benefit of an assistant who would help her
with the heavier tasks but the plaintiff would still be present and
would still
be able to perform sedentary or lighter duties;
4.33.6
The assistant recommended by Mr Moodie, who
would be paid a fulltime salary, could be used not only for the heavy
carrying of pots,
cleaning, etc. but as well as other lighter duty
tasks that the plaintiff could do herself;
4.33.7
It stands to reason that the plaintiff will
receive an additional benefit from having a fulltime assistant and as
such and given
the fact that the plaintiff already needed an
assistant pre-accident, a higher contingency deduction was justified.
4.34
In the premises I am of the view that there
are no reasonable prospects that another court would come to a
different conclusion.
4.35
In the premises the application for leave
to appeal is dismissed.
SIGNED
AT PRETORIA ON THIS 6
th
DAY OF APRIL 2021.
MARITZ
AJ
Counsel for Plaintiff:
Adv. Phathutshedzo Tshavhungwe
On
behalf of the Defendant: Unrepresented
[1]
Unreported,
LCC case no LCC14R/2014 dated 3 November 2014, cited with approval
by the full court in
The
Acting National Director of Public Prosecution v Democratic
Alliance
(unreported,
GP case no 19577/09 dated 24 June 2016) at para 25 and also cited
with approval in
South
African Breweries (Pty) Ltd v Commissioner of the South African
Revenue Services
(unreported,
GP case no 3234/15 dated 28 March 2017) at para [5].
[2]
On
the distinction between
ratio
decidendi
and
obiter
dicta
,
see
Pretoria
City Council v Levinson
1949
(3) SA 305
(A)
at
316–17;
Santam
Versekeringsmaatskappy Bpk v Roux
1978
(2) SA 856
(A)
at
871H–872B;
True
Motives 84 (Pty) Ltd v Mahdi
2009
(4) SA 153 (SCA)
at
168A–F and 186C–188D;
Hardenberg
v Nedbank Ltd
2015
(3) SA 470
(WCC)
at
477A–I;
BSB
International Link CC v Readam South Africa (Pty) Ltd
2016
(4) SA 83 (SCA)
at
97B–98B.
[3]
Unreported,
SCA case no 157/15 dated 7 September 2016.
[4]
At
para 2.
[5]
Van
Heerden v Van Heerden
1977 (3) SA 455
(W) at 457 G – 458 A;
Fiat SA (Pty) Ltd v Bill Troskie Motors
1985 (1) SA 355
(O) at 358
C.