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[2021] ZAGPPHC 294
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Mtila v Road Accident Fund (73306/2014) [2021] ZAGPPHC 294 (12 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 73306/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
NDIPHE
ZEPHANIA
MTILA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MNGQIBISA-THUSI
J
[1]
25 July 2011 at around 06h00 on the N1
Road, between Klapmuts and Kraaifontein, a collision occurred between
a motor vehicle bearing
registration number [...] and another vehicle
bearing registration number [...]. At the time the plaintiff
was a pedestrian
and was trapped between the vehicles involved.
[2]
As a result of the collision, plaintiff
sustained the following injuries:
2.1
a right tibial plateau fracture;
2.2
open left tibia and fibula fracture;
2.3
left femur fracture; and
2.4
soft tissue injuries.
[3]
On 12 September 2016 t
he
parties reached a settlement with regard to the merits on the basis
that the defendant will be liable for 100% of the plaintiff’s
proven damages. For future medical expenses, the defendant has
agreed to furnish the plaintiff with an undertaking in terms
of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
. The
plaintiff has submitted supporting vouchers with regard to past
medical and hospital expenses in the amount of R893,631.74.
The
defendant has, however, undertaken to make an interim payment in the
amount of R663,775.96. The balance of these expenses
are still
to be reviewed by the defendant who will revert to the plaintiff.
At the hearing it was indicated that the plaintiff
gave the defendant
14 days to provide the plaintiff with a bill review. As a
result, the issue of the balance of past medical
and hospital
expenses is postponed
sine die
.
[4]
With regard to general damages, the parties
have agreed on an amount of R800,000.00.
[5]
The only issue remaining in dispute is the
claim for future loss of income and or loss of earning capacity.
The parties have
put forward two calculations prepared by Prima
Actuaries & Consultants (“Prima Actuaries”).
The main issue
in dispute is whether the amounts received by the
plaintiff as disability benefits should be deducted from the amount
determined
for future loss of income.
[6]
In their joint minute, the parties’
industrial psychologists, Mr C Schoombee and Mr T Tsiu are in
agreement that as a result
of the injuries sustained, the plaintiff’s
is unemployable and that the subsequent disability benefits he
received are due
to the injuries sustained in the collision.
The experts further agreed that after the plaintiff’s
employment with SA
Five terminated, the plaintiff has not received
any work related salary.
[7]
In their joint minute, the
orthopaedic surgeons, Dr F Liebenberg and Dr TS Bogatsu, are in
agreement that because of his injuries,
the plaintiff can only
ambulate with the aid of a crutch.
[8]
At the trial the only evidence led was that
of Mrs Michele Cloete-Collopen (“Cloete-Collopen”), head
of the Metal Industries
Benefits Funds Administrators, Permanent
Disability Division. She is responsible for overseeing the
processing of death and
disability benefits and dealing with
complaints lodged with the pension Funds Ombudsman. Her
evidence is as follows.
[9]
During the period of August 1997 to
September 2011, the plaintiff worked for several companies within the
metal industry and contributed
as a member to the Metal Industries
Provident Fund (“the Fund”). After the plaintiff
sustained his injuries as a result
of the collision, he applied for
disability benefits. Mrs Cloete-Collopen testified that after
the plaintiff’s application
was approved by the Fund, from
February 2012 to June 2013 he received disability benefits in the
amount of R4,412.20 per month.
In July 2013 the plaintiff’s
disability benefits were increased to an amount of R4,676.77 per
month, which he received from
July 2013 to March 2014. In total
the plaintiff received the sum of R117, 099.77 for the whole period
the plaintiff received
disability benefits. Thereafter the
plaintiff withdrew from the Fund.
[10]
Mrs Cloete-Collopen explained that in terms
of the Rules of the Fund, in the event of a disability, a member is
entitled to disability
benefits calculated at 75% of his or her
pensionable income. Mrs Cloete-Collopen further explained that
in processing an
application for disability benefits, there is a
prescribed form which has to be completed by the employer and the
employee before
it is submitted to the Fund’s medical advisor
who will make a recommendation. Further that disability
benefits are
approved only once an employer has discharged an
employee. In the case of the plaintiff, his employer had
confirmed that
he was discharged from work on 17 July 2011.
During the period of receiving disability benefits, the plaintiff was
a member
of the Fund since his contribution to the Fund were deducted
each month from the disability benefit he received.
[11]
She further testified that at time the
plaintiff withdrew from the Fund, his disability benefits were due
for review and he was
expected to submit certain additional documents
in order for the disability benefits to continue being paid.
Instead of submitting
the required documents, the plaintiff elected
to withdraw from the Fund because he alleged that he was in dire
straits. As
a result of such withdrawal the plaintiff was paid
an amount of R233,144.62.
[12]
Mrs Cloete-Collopen denied that the Fund
issued medical certificates for medical boarding. She testified
that what is issued
is a letter which states that a disability
benefit has been approved and that payment will begin. She
denied that the Fund
provided temporary disability benefits.
She further testified that in terms of the Rules of the Fund, a
member cannot be
over-insured. In the event that a member
receives a disability benefit and another benefit from another
source, the disability
benefit is off-set in order to make sure that
the member only receives 75% of his or her pensionable salary.
[13]
Prima Actuaries has done two calculations
of the plaintiff’s loss of earnings by ignoring the disability
benefits received
by the plaintiff (scenario 1); and deducting the
disability benefits received by the plaintiff from the amount
calculated (“scenario
2).
[14]
Before dealing with whether under the
circumstances of this case the disability benefits received should be
deducted or not, it
is apposite to note that the parties were not in
agreement as to whether the calculations done by Prima Actuaries in
2019 (exhibit
“F”) or in 2020 (“exhibit “G”)
should be considered. As correctly pointed out by counsel for
the plaintiff, it makes sense in my final analysis to consider the
latest calculations. Further, as suggested by plaintiff’s
counsel and not disputed by the defendant, I am of the view that a
contingency deduction of 5% for past loss and 10% post-morbid
appears
to be fair and reasonable and should be applied.
[15]
The only remaining issue to be decided is
whether the disability benefits received should be deducted from the
total amount awarded
for loss of income.
[16]
On behalf of the plaintiff it was argued
that the disability benefits in the total amount of R350,244.39
received by the plaintiff
before the plaintiff withdrew from the
Fund, should not be deducted from the amount awarded for loss of
earnings as they were in
the form of an insurance.
[17]
On behalf of the defendant it was argued
that since there was no proof that the plaintiff was not medically
boarded, the disability
benefits should be deducted from the amount
awarded for loss of income.
[18]
The
general rule is that
a
claimant cannot recover more than his/her actual loss. Further,
a claimant cannot receive double compensation
[1]
and the wrongdoer should not be relieved from liability on account of
the claimant’s independent efforts or the generosity
of a third
party
[2]
. From the
evidence of Mrs Cloete-Collopen it is apparent that the disability
benefit was intended to provide financial assistance
to a member who
is no longer able to work and earn a salary.
[19]
Taking
into accoount that the plaintiff was rendered unemployable as a
result of his injuries which qualified him to receive the
disbility
benefits, there is a causal link between the benefits received and
the claim for loss of earnings.
In
Dippenaar
v Shield Insurance Co Ltd
[3]
the
Appellate
Division
as
it then was held that
“
When
capacity to earn is sought to be proved by the plaintiff by means of
a contract of employment, the monetary value of the contract
can only
be assessed when one looks at the contract as a whole. In this regard
it is clear that, if in terms of such contract there
is a compulsory
deduction from salary plus a contribution by the employer in order to
pay the employee money as sick leave or as
a pension, it is the
intention of the parties that that money shall be paid when it is
due, in terms of the contract. In fact the
“income” of
the employee is in terms of the contract not confined to his salary…
but includes also sick pay
or pension when such pay or pension is
due. If monetary value is sought to be put on the earning capacity
based on this contract,
every benefit received under the contract,
such as a pension, must therefore be considered, as was done by the
trial Court in the
present case”.
[20]
Should
the disability benefits received not be deducted from the award made
would result in the plaintiff being double compensated
[4]
[21]
I am of the view that
the disability benefits received by the plaintiff should be deducted
from the award made.
[22]
In the result, an order is granted in terms
of the Draft Order marked “
X”.
NP MNGQIBISA-THUSI
Judge
of the High Court
Appearances
For Plaintiff: Adv
Mashaba (instructed by MacRobert Inc)
For
Defendant: Adv Malesa (instructed by Molaba Attorneys)
[1]
Zysset
v Santam Ltd
1996
(1) SA 273
(C) 278A-D.
[2]
Zysset
v Santam Ltd
supra:
278F.
[3]
1979
(2) SA 904
(A) at 920D-E.
[4]
See
Boutell
v RAF
2018 (5) SA 99
(SCA) a matter which dealt with whether a retirement
annuity should be deductible. In
Moropane
v RAF
,
unreported judgment, North Gauteng High Court, case number 3650/2014
ZAEPEHC 32(4 August 2016) where the court held that a State
disability grant should be ignored in the calculation of loss of
earnings.