About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 106
|
|
Lerm v Road Accident Fund (38035/14) [2019] ZAGPPHC 106 (7 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No. 38035/14
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE________________________________________
SIGNATURE__________________________________
In
the matter between
Johannes
Nicolaas Thirion Lerm
Plaintiff
and
Road
Accident
Fund
Defendant
Heard
: 6 December 2018
Delivered
: 7 March 2019
Coram
:
Munzhelele AJ,
JUDGMENT
MUNZHELELE
AJ
Introduction
[1]
Plaintiff Johannes Nicolaas Thirion Lerm was involved in an accident
while he was 64 years of age. He
was employed as a mining manager at
Rooikat Regison Mine in Giyani at the time. During the incident
plaintiff was the driver of
the Honda Goldwing motorbike registration
number [….].
[2]
Plaintiff sustained personal injuries as a result of the accident and
issued summons claiming the following
damages:
Estimated
past hospital expenses : R83 539.56
Estimated
future hospital expenses : Section 17(4) (a) of the act 56 of 1996
Accrued
loss of earnings
: R 187, 000.00
Estimated
future loss of earnings : R
600, 000.00
General
damages
: R1, 200, 000.00
Total : R2, 070,
539.56
[3]
The plaintiff’s accident related injuries, which were recorded
on the medical records, and X-Ray
report are the following:
·
Soft
tissue injury of the chest.
·
Fracture
of the vertebral body of T12
·
Abdominal
pain
·
Several
rib fracture on both sides of the lower chest
·
Neck
injury
·
Contusion
of the lower back and pelvis
·
A
non-displaced fracture of the left clavicle
·
Bladder
injury.
[4]
Defendant conceded the merits 100% in favour of the plaintiff. The
plaintiff’s claim for past
medical expenses was also conceded
in the amount of R83 539.56 (eighty three thousands five hundred
and thirty nine rand fifty
six cents). The plaintiff’s general
damages was also conceded in the amount of R 500 000(Five
Hundred Thousand Rand).
[5]
Estimated future medical and ancillary expenses were conceded by the
defendant on the basis that the
defendant shall forthwith furnish the
plaintiff with an undertaking in terms of section 17(4)(a) for 100%
future accommodation
of the plaintiff in a hospital or nursing home
or treatment or rendering of a service or the supplying of goods to
him after the
costs have been incurred and proof thereof resulting
from the accident that occurred on the 31
st
of March 2011.
Issue
for determination
[6]
The matter, which is before me for determination is the plaintiff’s
pre accident retirement age,
whether he would have retired at 65 or
75 years. Such determination would require facts led. The plaintiff
led evidence and called
an industrial psychologist Mr Wessels. The
defendant did not call any witness.
[7]
An affidavit was handed to court by Advocate Boot of a witness Mr
Freeman as evidence. It was clear
during the trial that the defendant
seemed reasonably requiring the attendance of Mr Freeman for
cross-examination. Adducing evidence
by means of an affidavit in
terms of rule 38(2) required reasons by the plaintiff for court to
make an order that such an affidavit
should be read during the trial
(see uniform rule). No sufficient reasons were furnished by the
plaintiff to enable the court to
make such an order.
Facts
of the case
[8]
The plaintiff Johannes Nicolus Lerm was a mine manager at Rooikat
Regison mine according to his evidence.
For 12 years he was working
as an expert in blasting and explosives. He claimed that he would
have worked and retired at the age
of 75 had it not been because of
this accident. He testified further that at Rooikat Regison mine
there is no policy regarding
retirement. It has been a gentlemen’s
agreement with regard to his employment contract. He testified that
at the company
there was no one who had retired at the age of 65
years.
Experts’
reports
[9]
The orthopaedic surgeon Dr D.A. Tonny Birrell said
that the plaintiff would have worked comfortably beyond
the age of 70
years; and his earlier retirement as a result of the accident is
between 9 months and a year. This clearly shows
that there is not
much difference between his pre accident and the post-accident. Dr
Birrell referred the matter to the occupational
therapist and the
industrial psychologist for further assessment on the issue of
retirement pre- accident.
[10]
Occupational therapist Carole Pretorius assessed the plaintiff and
said that plaintiff has occupational dysfunction
compared to his
premorbid competencies. He is reliant on others for carrying out
physical tasks which he used to do himself and
has compromised
vocational competitiveness in a specialised field of work. Earlier
retirement is foreseen. Mr Lerm was 64 years
old at the time of the
accident, and a person with good work ethic who valued fitness and
outdoor life and was directed towards
maintaining his worker role. It
would be reasonable and feasible to expect that he would have
remained so, even into his later
years, considering that he is in a
work environment which does not have regulations related to enforce
retirement age.
[11]
The industrial psychologist Wessel J Wessels said on his
evidence and also on his report that the plaintiff would have
remained employed until the age of 75 years. He testified that he had
consulted Mr Freeman the director of Giani Regison Mine who
informed
him that what he requires is the employee’s expertise. As such
a person could work beyond 65 years.
[12]
It had been agreed by the neuro surgeons Dr Menachem Mzabow and Dr
Amanda Peta that the plaintiff had chronic psychological
adjustment
difficulties. It was also agreed that plaintiff has cognitive
impairments.
[13]
The psychiatrists Dr D.A Shevel and Dr M. Matjane opined that Mr Lerm
is suffering from a chronic mood disorder
with associated anxiety. It
was also agreed that his psychiatric condition is secondary to the
physical injuries he sustained.
Arguments
by the parties
[14]
Arguments by Adv B Boot on behalf of the plaintiff are that the
plaintiff is still working at the age of 71 years
as such without the
accident he would have worked until the retirement age of 75.
[15]
Arguments by Adv Mulumbela on behalf of the defendant were that the
retirement age which the Road Accident Fund
recognises as normal
retirement is 65 years as such the retirement at the age of 75 is
outside the norm. The defendant objected
to the handing in of the
affidavit deposed by Mr Freeman and wanted him to have been in court
testifying viva voce for cross examination.
Discussion
[16]
There is no legal requirement in South African Labour Relation Act 66
of 1995 which stipulates the retirement age,
but the age which is
generally accepted as retirement age for mine managers is 60 to 65
years. An employer is entitled to insist
that an employee retires
when he or she reaches the retirement age, as agreed between the
employee and the employer, or when he
or she reaches the age at which
other employees of this employer normally retire.
[17]
In the absence of an express agreement between the employer and the
employee relating to the retirement age, the
employer is nevertheless
entitled to insist that the employee retires at the company’s
normal
retirement age. In
Rubin
sportswear v SA Clothing and Textile Workers Union and others
(CA8/03)
[2004] ZALAC
8
(
9 July 2004) DCJ Zondo stated on para 13 that
‘…
..
The
word normal is not defined in section 187 of the labour relations
act. It accordingly, must be given its ordinary meaning. Chambers-
Mcmillan’s South African Student Dictionary describes the word
“norm” thus: you say that something is a norm
if it is
what people normally or traditionally do.’ It further states
that norms are usual ways or accepted ways of behaving.
It described
the adjective normal as meaning usual, typical or expected’.
[18]
A retirement age that is not an agreed retirement age becomes a
normal retirement age over a certain long period.
The particular
number of employees in a particular category who have retired at that
age must be sufficiently large to justify
saying that it is a norm
for that company’s employees not to retire but to work even
over the age of 75. (see In Rubin sportswear
v SA Clothing and
Textile Workers Union and others (CA8/03)
[2004] ZALAC
8
(
9 July 2004))
[19]
Whether a company has a normal retirement age for its employees will
obviously depend on the facts. The onus is
on the plaintiff to prove
the facts that determine the normal retirement age at the company in
which he was working. The plaintiff
should inform the court through
credible evidence as to how long has this retirement norm been
practiced. The plaintiff should
further through evidence show to the
court the particular number of employees in the category of mine
managers who have retired
at that age of 75. The said employees
should be sufficiently large to justify saying that it is a norm for
that company.
[20]
There has not been enough evidence adduced to show the court that
this was a common practice, which has become
a norm at Rooikat
Regison mine for the mine managers to retire at 75 years or more. The
evidence on record by the plaintiff was
to the effect that he wanted
to retire at 75 and he indicated that there were other employees who
were working beyond the age of
75 but it was not indicated whether
they were mine managers or not .see
Rubin
sportswear v SA Clothing and Textile Workers Union and others
(CA8/03)
[2004] ZALAC
8
(9
July 2004). There has been no evidence regarding the plaintiff’s
company’ medical examination and fitness to work
assessments
reports submitted to prove that plaintiff was fit as it has been
common cause that plaintiff had lower limb or hip
problems except the
plaintiff post morbid medical assessments by the experts.
[21]
Employees are required to retire at age 65. However, South African
Mine Unions, Ten Mining Houses including Three
Gold Mining Companies
had already raised the retirement age of their employees from 60 to
between 62.5 and 65 years. Similarly,
the Chamber of Mines was urged
to bring its retirement age in line with this policy. The agreement
between the Chamber of Mines
of South Africa and the Unions regarding
the retirement age for all surface workers will be 63 years as from 1
July 2015, subject
to such employees passing company’s medical
examination and fitness to work assessment as and when required
provided that
employees who wish to retire at the age of 60 or before
63 shall be entitled to do so.
[22] The
evidence adduced by the plaintiff in court does not justify on a
balance of probabilities that the plaintiff
has discharged the onus
rested on him to prove that Rooikat Regison mine managers retire at
75 years or more.
In the premises I must find
in favour of the defendant on this issue.
[23]
Order
The
following order is made.
·
The
plaintiff would have retired at the age of 65.
·
Draft
Order marked ’
x
’
is made an order of
court.
Munzhelele M.
Acting Judge of
the High Court
For
the plaintiff: adv B.Boot
Instructed
by: Adams and Adams
For
the defendant: adv Mulumbela
Instructed
by: Tau Phalane Incorporated