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[2016] ZAGPPHC 1138
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L.H.C v Road Accident Fund (11041/12) [2016] ZAGPPHC 1138 (11 November 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
11/11/2016
CASE
NO.: 11041/12
REVISED
In
the matter between:
L
H
C Applicant/Defendant
and
ROAD
ACCIDENT
FUND Respondent/Plaintiff
JUDGMENT
NOBANDA
AJ
INTRODUCTION
[1]
The Plaintiff is a 34 year old man. Plaintiff instituted action
against the Road Accident Fund for damages arising from an incident
wherein the Plaintiff was a passenger in a motor vehicle with Reg.
No. FFB [...] MP then driven by the insured driver, which had
overturned on 2 October 2008 ("the accident'').
[2]
As a result of the accident, the Plaintiff sustained back injuries
and four of his left hand fingers were crushed which led
to their
amputation.
[3]
Plaintiff testified that he was admitted in Manteneng Hospital for
two(2) months and discharged on the third(3) month on 15
December
2010.
[4]
As a result of the injuries sustained and their
sequelae
Plaintiff
claims the following damages:
4.1. Past Hospital Expenses= R200
000.00
4.2 Estimated Future Medical Expenses
= R200 000.00
4.3 Loss of Earnings Capacity = R4 145
837.00
4.4 General Damages= R750 000.00
TOTAL = R5 295 837.00
[5]
At the beginning of the trial, I was advised that the issue of
liability has been settled at 100% in favour of the Plaintiff's
proven damages.
[6]
I was further advised that part of the quantum of damages suffered by
the Plaintiff has also been resolved between the parties
as follows:
6.1 The Defendant has issued the
Plaintiff with an Undertaking in terms
section 17
(4) (a) of the
Road
Accident Fund Act 56 of 1996
for Future Medical Expenses;
The
Defendant undertook to pay the Plaintiff General Damages in the
amount of R400 000.00.
ISSUE
IN DISPUTE
[7]
The only outstanding issue in dispute is the Plaintiff's estimated
Future Earnings or Earnings Capacity. At the beginning of
the trial,
I was advised that the only issue that now sought to be determined
was the amount that the Plaintiff was earning per
month at the time
of the accident. It became common cause that the Plaintiff was
employed at the time of the accident.
[8]
Both parties had filed their various expert reports. Plaintiff filed
the following expert reports:
8.1 Orthopedic Surgeon by Dr P.
Kumbirai
8.2 Radiologist by Drs Van Reinsburg &
Partners
8.2 Industrial Psychologist by S Vos &
Associates
[9]
The Defendant filed the following experts reports:
9.1 Occupational Therapist by Dr B.
Ngwako
9.2 Industrial Psychologist by Dr
Ramusi
9.3 Orthopedic Surgeon's by Dr D.E.
Gantz
[10]
Only the joint minute of the Industrial Psychologist dated 10 June
2016 was filed.
EVIDENCE
[11]
The Plaintiff called only one witness, his former employer Mr King
Shabangu to testify. The Defendant did not call any witnesses.
SUMMARY
OF PLAINTIFF'S EVIDENCE
[12]
The Plaintiff testified that he was employed as a senior brick layer
from 1 August 2010 by Intsaba Earth Works and Property
Developers
building houses at the time of the accident earning an amount of R10
000.00 per month at RS00.00 per day working for
5 days in a week.
[13]
Plaintiff alleged that he was paid in cash every end of the month by
Mr Shabangu (the Company's Director). Plaintiff further
testified
that he did not have a bank account. His expenses were school fees
for his child, monthly installments for his bed, mattress
and radio
at Town Talk Furnishers, household expenses and groceries.
[14]
It was further Plaintiff's evidence that during his admission in
hospital, Mr Shabangu, in the presence of his sisters continued
to
pay him his salary in cash during the end of the month of October
2010. That he continued receiving his salary until January
2011 when
it ceased. Plaintiff's evidence was that he returned to work after
being discharged from hospital but was unable to perform
his work as
he could no longer hold things with his left hand after his left four
(4) fingers were amputated.
[15]
Under cross examination regarding his registration by the company and
payment of income tax, the Plaintiff alleged that he
was registered
by the company and conceded that he was however not paying income tax
because he was not receiving his salary through
the bank. The
Plaintiff further testified that he was not aware whether or not his
employer paid UIF for him.
[16]
On questioning of how he used to safe keep so much cash without
utilizing a bank, the Plaintiff testified that he used to hide
it in
his house in a safe box underneath the floor. Plaintiff alleged his
monthly savings amounted to approximately R4000.00 per
month.
[17]
On being cross-examined on the place where the Plaintiff used to
receive his salary prior to the accident, the Plaintiff testified
that he received his salary in cash together with other employees of
the company from the company's offices every month end. The
Plaintiff
was questioned on how much the other employees were paid to which he
responded between R4 500 - R5000.00 per month.
[18]
It was put to the Plaintiff that he was not earning R10 000.00 per
month as certified by his employer, to which the Plaintiff
persisted
that he was. It was further put to the Plaintiff that he was not a
senior brick-layer because he was not qualified to
which again the
Plaintiff persisted and alleged that he was qualified as he had a lot
of experience in the work he was doing then.
Plaintiff alleged he has
been a brick-layer since the year 2002.
PLAINTIFF'S
WITNESS:
MR
KING SHABANGU
[19]
Mr. King Shabangu testified that he owns a construction company that
builds houses, schools and clinics under the registered
name Intsaba
Earth Works and Properties Developers that has been trading as such
since 1998 with physical address at Stand No.
256 Tintswalo Village,
Mpumalanga.
[20]
Mr. Shabangu confirmed that the Plaintiff was under his employment as
a brick-layer and a foreman earning Rl0 000.00 per month
since 1
August 2010. He testified that the Plaintiff was appointed foreman as
he could read a plan and set up the foundation. That
Plaintiff's
duties also included supervising other workers and checking whether
they were doing a proper job. He considered Plaintiff
a 100%
competent and fit to do that job.
[21]
Mr. Shabangu further confirmed that he used to pay the Plaintiff in
cash and that at the time of the accident they were building
another
house in Slimstone. He further confirmed that he personally paid the
Plaintiff his salary in cash whilst the Plaintiff
was still admitted
in hospital in October 2010.
[22]
It was Mr. Shabangu's evidence that he compiled and signed the
Plaintiff's Employment Certificate. Under cross examination
Mr.
Shabangu testified that the company never had a cheque book, deducted
tax from its employees nor paid any UIF for its employees.
He however
testified that the company paid tax to the South African Revenue
Services ("SARS") and has a tax clearance
certificate to
that effect.
[23]
On being crossed-examined on whether or not the company has a bank
account, Mr. Shabangu testified that it did with ABSA but
was closed
for inactivity after the company became dormant in 2014. As a result,
he could not obtain the bank statements from ABSA
after he had
requested them on 6 September 2016. ABSA advised him that it was
impossible to obtain them as the account was closed.
[24]
Mr. Shabangu was further cross examined on the reasons why the
Plaintiff's Employment Certificate did not reflect the date
the
Plaintiff commenced work with the company and the number of days that
Plaintiff worked. His response was that he made a mistake.
[25]
Mr. Shabangu was also cross examined on whether or not the company
included its employees' salaries when it submitted tax returns.
Mr.
Shabangu's response was that they (I assume the Directors) submitted
expenditure receipts and some of the company's records
to the
company's Accountant who had a duty to submit same to SARS.
[26]
Upon further questioning on whether or not the company declared to
SARS that it has employees, Mr Shabangu testified that the
company's
Accountant never requested their names and they never declared to
SARS that the company was paying salaries to employees.
According to
Mr Shabangu, the company only declared petrol expenses.
[27]
The Defendant's Counsel put it to Mr Shabangu that the arrangement of
paying the Plaintiff in cash was illegal. In response,
Mr Shabangu
stated that that is how the company's employees were paid then and
that is still the position.
ANALYSIS
OF THE EVIDENCE
[28]
I found Mr Shabangu's testimony on how the company conducted its
business especially with regard to its tax returns and declarations
or lack thereof to SARS disturbing to say the least. It is further
disconcerting that the company that has been in existence since
1998
didn't seem to have declared that it has employees, provided its
employees with pay slips and made no deductions for its employees'
income tax or UIF at least during the year 2010. I however desist
from making further comments on this issue lest I make findings
that
are beyond the scope of the issues at hand.
[29]
In any event, I was advised by Plaintiff's Counsel that some of the
documents requested at a pre-trial conference on 12 September
2016 to
wit:
29.1 the company's registration
documents;
29.2 the company's Tax Clearance
Certificate for 2015 were made available to the Defendant but the
Defendant never requested copies
thereof from the Plaintiff.
[30]
With regard to the Plaintiff, I found him to be an honest witness.
His evidence that he was earning R10 000.00 per month was
corroborated not only by the Employment Certificate but also his
employer Mr Shabangu who signed it.
[31]
The Defendant did not call any witness nor produce any documentary
proof to refute the Plaintiff's testimony other than to
put it to the
Plaintiff that he was not earning that amount.
[32]
Furthermore, it was the Plaintiff's evidence corroborated by his
employer Mr Shabangu that Plaintiff was paid in cash. There
was no
evidence placed before court that paying the Plaintiff's salary in
cash was illegal as put to Mr Shabangu during cross examination
by
the Defendant's Counsel.
CONCLUSION
[33]
In the light thereof, I find that the Plaintiff has proven on a
balance of probabilities that he was indeed earning an amount
of RlO
000.00 per month at the time of the accident.
ORDER
In
the premises I hereby make the Draft as amended an order of court
marked "X".
___________________
P.L
NOBANDA
Acting
Judge of the High Court, Pretoria
DATE
OF HEARING: 11 November 2016
DATE
OF JUDGMENT: 11 November 2016
LEGAL
REPRESENTATIVES:
Counsel
for the Appellant/ Plaintiff: Adv. J.T. Zitha
Instructed
by: Brazington & McConnell
Counsel
for the Respondent/ Defendant: Adv. Z. Mashigo
Instructed
by: Tsebane Molaba Attorneys
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Before
the Honourable Justice Nobanda AJ in Court 6F on 11 November 2016
Case
No: 11041/2012
In
the matter between:
CHILDAN
LUCKY
HENDRICK PLAINTIFF
and
THE
ROAD ACCIDENT
FUND DEFENDANT
DRAFT
ORDER
IT
IS ORDERED THAT:
1.
The Merits was already settled on the basis that the Defendant shall
pay 100% of the Plaintiff's proven or agreed damages;
2.
The Defendant shall pay to the Plaintiff the sum of R400.000.00 (Four
Hundred Thousand rand) in respect of general damages.
3.
The Defendant shall pay to the Plaintiff the sum of R3552215, 62
Three Million Five Hundred and Fifty Two Thousand Two hundred
and
fifteen rand sixty two cents in respect of past and future loss of
earnings/earning capacity.
4.
The amounts mentioned in paragraph 2 and 3 in the sum of R3952215, 62
Three million nine hundred and fifty two thousand two hundred
and
fifteen rand and sixty two cents
5.
In the event of the aforesaid amount not being paid timeously, the
Defendant shall be liable for interest on the amount at the
rate of
9% per annum, calculated from the 151h calendar day after the date of
this Order to date of payment.
6
The Defendant shall furnish the Plaintiff with an undertaking in
terms of Section 17(4) (a) of Act 56 of 1996 for payment of the
future accommodation of the Plaintiff in a hospital or nursing home
or treatment of or rendering of a service or supplying of goods
to
him resulting the injuries sustained by the Plaintiff in the motor
vehicle accident that occurred on
02 October 2010
, to
compensate the Plaintiff in respect of the said costs after the costs
have been incurred and upon proof thereof.
7.
The Defendant shall pay the Plaintiffs taxed or agreed party and
party costs on the High Court scale, subject thereto that:
7.1 In the event that the costs are
not agreed:
7.1.1The Plaintiff shall serve a
notice of taxation on the Defendant's attorney of record;
7.1.2 The Plaintiff shall allow the
Defendant 7 (SEVEN) Court days from date of allocator to make payment
of the taxed costs.
7.1.3 Should payment not be effected
timeously, the Plaintiff will be entitled to recover interest at the
rate of 0.9% per annum
on the taxed or agreed costs from date of
allocator to date of final payment.
7.2 Such costs shall include but not
be limited to:
7.2.1 The costs incurred in obtaining
payment of the amounts mentioned in paragraphs 2,3 and 7 above;
7.2.2 The costs of and consequent to
the employment of Counsel, including counsel's charges in respect of
his full day fee for 19
April 2016, as well as reasonable
preparation;
7.2.3 The costs of all medico-legal,
radiological, actuarial, accident reconstruction, pathologist and
addendum reports obtained
by the Plaintiff, as well as such reports
furnished to the Defendant and/or its attorneys, as well as all
reports in their possession
and all reports contained in the
Plaintiffs bundles, including, but not limited to the following:
7.2.3.1. .Dr. Kumbirai, Orthopaedic
surgeon;
7.2.3.2. .Ors Van Rensburg and
partners, Radiologist;
7.2.3.3. .Ms. Vos, Industrial
Psychologist;
7.2.3.4. Mr. Koch, Actuary
8.2.5 The reasonable costs incurred by
and on behalf of the Plaintiff in, as well as the costs consequent to
attending the medico
legal examinations of both parties.
8.2.6. The costs consequent to the
Plaintiffs trial bundles and witness bundles, if any;
8.2.7 The cost of holding all
pre-trial conferences, as well as round table meetings between the
legal representatives for both
the Plaintiff and the Defendant,
including counsel's charges in respect thereof;
8.2.8. The cost of and consequent to
compiling all minutes in respect of pre-trial conferences;
8.2.9. The reasonable travelling costs
of the Plaintiff, who is hereby declared a necessary witness:
9.
The amounts referred to above will be paid to the Plaintiffs
attorneys, EE Sethole Attorneys by direct transfer into their trust
account, details of which are the following:
Standard
Bank
Account
number: [...]
Branch:
Hazyview
REF:
MMF/C53/2011
10.
There is no contingency fee agreement applicable
BY
ORDER OF THE COURT
REGISTRAR
OF THE HIGH COURT PRETORIA
Adv.
J .T ZITHA
(PLANTIFF'S
ADVOCATE)
Adv
MASHEGO
(DEFENDANT'S
ADVOCATE)