About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 48
|
|
Mjezu v Road Accident Fund (3123/2013) [2015] ZAFSHC 48 (2 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No. : 3123/2013
In the application
between:-
SAMUEL
C MJEZU
…...............................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT FUND
…..................................................................................................
DEFENDANT
JUDGMENT
BY
:
MOLOI,
J
HEARD
ON:
17
FEBRUARY 2015
DELIVERED
ON
:
02
MARCH 2015
MOLOI J.
[1] This judgment is
about the determination of the plaintiff’s loss of earnings
brought about by his becoming totally incapable
of being gainfully
employed as a result of the injuries he sustained in a motor
collision that occurred on the Bloemfontein / Thaba
Nchu road on 27
March 2011. All the other aspects of the claim had been settled on 10
October 2014 and the defendant was found
to be 100% liable for the
compensation of the plaintiff. The only issue was how much did the
plaintiff earn at the time of the
accident in order to determine his
loss of earnings since the date of the collision to his retirement
age.
[2] The plaintiff
was employed as a construction supervisor and driver by one Pieter de
Bruyn (de Bruyn) who owned a construction
company building houses for
sale since 2004. There was no proof of his earnings as he was paid in
hard cash and the employer did
not keep record of the plaintiff’s
earnings. The amount claimed under loss of earnings already suffered
was R845 165-00 and
that claimed as future loss of earnings was R3,
883 650-00 both of which were disputed by the defendant.
[3] When he started
working for de Bruyn the plaintiff was paid R1 000-00 per week in
cash. Later his earnings were increased to
R8 000-00 per month as he
had increased responsibilities and saw to all work been done properly
and supervised the other employees.
He was paid when a house they
built was completed. Any loans from the employer were deducted from
the amount of the earnings, but
received no salary advice, nor did he
have a written employment contract.
[4] When he
threatened to leave for another construction company his earnings
were increased to R15 000-00pm. Of this money he would
give his wife
amounts of R9 000-00 or R10 000-00 and sometimes R11 000-00 per
month. After completing three houses in a year he
would be paid a
bonus of between R5 000-00 to R20 000-00. It took two months to
complete a standard house but three to four months
to complete a
double storyed house. The balance of the money he used for rental,
groceries, clothing etc. for himself as he was
staying in
Bloemfontein and his family lived at Verkeerdevlei. He also gave his
niece an amount of R500-00 per month and she was
staying in
Bloemfontein. The people he maintained at home were his wife and his
two children. He was in the process of extending
his house in
Verkeerdevlei. He used approximately R600-00 per week on
entertainment. His wife had accounts at shops though he could
not
remember which. His rent in Bloemfontein was R1 200-00 per month. His
groceries cost him R2 000-00 per month and transport
cost him R24-00
per day.
[5] He was
confronted with the report of Munro Forensic Actuaries to whom his
employment certificate showed that in 2011 his basic
salary was R5
000-00 per week and he earned R1 000-00 per week in overtime work and
he said if his employer made such a certificate,
then he, the
employer, was wrong. He was also confronted with a report by Dr. AC
Strydom, an Industrial Psychologist, to whom he
said he worked for
Ringside Construction being a firm owned by De Bruyn since 1996 as a
driver / foreman and that he earned R15
000-00 per month plus
overtime throughout till the date of the accident. He answered that
Dr. Strydom was wrong. He could neither
explain why he told Letitia
Delport, an Occupational Therapist, that from 2003 to 2011 he was a
self-employed contractor and contractor
for Pieter de Bruyn. He
however stated that at a stage he was unemployed and received UIF
payment but not from Pieter de Bruyn.
He insisted he was employed by
de Bruyn.
[6] Bongani Mjezu
testified that he was a nephew of the plaintiff and as a student at
the Central University of Technology in Bloemfontein
he received
financial assistance from the plaintiff until he completed his
studies. His parents could not help him. His uncle,
the plaintiff,
gave him between R2 500-00 and R3 000-00 per month to cover his
accommodation, meals, studies, transport and clothing,
needs. The
money he received from his aunt, the plaintiff’s wife, and this
was paid to him monthly. He would travel to Verkeerdevlei
to collect
the amount every month.
[7]
Pieter Sarel de Bruyn testified he was the plaintiff’s employer
from 2004 until the date of the accident. The plaintiff
was a builder
and his initial wage was approximately R1 500-00 p.m. He had been in
the business of buying stands and building houses
which he sold for
almost thirty years. The plaintiff was indispensable for the growth
of his business as he could read the plans,
lay out the foundations
and produced a complete house. His business flourished because of the
plaintiffs contribution and dedication.
Between 2009 and 2011 he
build and sold 32 houses. He would make a profit of between R25
000-00 to R150 000-00 per house sold.
He was paying the plaintiff
approximately R15 000-00 per month. When they did not have work he
would give the plaintiff R200 to
R500-00 or R10 000-00 per month,
sometimes he would give the plaintiff between R2 000-00 and R6 000-00
as he pleased. He never
kept records of payments he made to the
plaintiff but paid him R20 000-00 on average because the plaintiff
was the
“
goose
that laid the golden egg
’
for
him. His competitors wanted to entice the plaintiff to their
construction companies. In 2010 he made a turnover of approximately
R4m. His bookkeeper who kept the records for tax purposes had no
record of what he paid to the plaintiff. In 2004 the plaintiff
was
paid R1 000-00 per week which grew to R1 500-00 in due course. He
cannot recall how much the plaintiff was paid in 2005. He
never
registered the plaintiff for the Unemployment Insurance Fund (UIF)
but the plaintiff was getting a minimum of between R15
000-00 and R20
000-00 per month. Confronted with a certificate of employment he made
for the defendant’s assessor on 29 May
2014 regarding the
earnings of the plaintiff indicating that the plaintiff was been paid
R2 000-00 per week he could not give a
clear answer.
[8] Mantoa Ramaele
is married by custom to the plaintiff. They have two children aged 20
and 10 years respectively. She was not
employed and stayed with the
family at Verkeerdevlei. The plaintiff used to work as a builder /
driver for de Bruyn and used to
give her R10 000-00 every month from
his earnings. She used the money to maintain her son not born of the
plaintiff by giving him
R1 000-00 every month and bought food for him
for the amount of R400-00 per month. She also gave Bongani Mjezu R2
500-00 or R3
000-00 every month. For herself and the plaintiff’s
children she would buy groceries for the amount between R800 and R1
000-00;
for the plaintiff’s other dependants she would spend R1
500-00. She also paid R500-00 for electricity and R140-00 for
insurance.
She did not have any accounts but the plaintiff had
clothing accounts. Under cross-examination she said initially the
plaintiff
gave her R5 000-00 per month but after an increment in 2010
he gave her R10 000-00 per month. The plaintiff knew about the
payments
she made to Bongani. She reiterated that the plaintiff had
clothing accounts.
[9] A psycho-legal
by report Dr. Estelle Boshoff, an Industrial Psychologist, filed by
the defendant was admitted into evidence
by consent. The salient
aspects of the report are that the plaintiff would have earned until
the age of 65. Though she was told
the plaintiff earned R15 000-00
per month there was no proof thereof provided. She made a breakdown
table of what would be earned
in the capacity as a builder / driver
and as a supervisor. The calculations were based on the unproven rate
of earnings of the
plaintiff. The plaintiff’s disability was
reflected in this report based on the reports of Dr. Khan, an
Occupational Medical
Practitioner, and Mrs. Delport, an Occupational
Therapist, remarking about the extent of the plaintiff’s health
and indicating
that he was permanently incapable of being gainfully
employed. The plaintiff’s and the defendant’s cases were
closed.
The defendant did not lead any evidence in rebuttal of the
plaintiff’s case.
[10] The evidence of
the various witnesses for the plaintiff raises some questions that
demand the court’s attention in an
endeavor to determine the
plaintiff’s earnings at the time of the accident in order to
determine his loss had the accident
not taken place. According to the
plaintiff he received his wages upon the completion of a house. A
standard house would be completed
in two months’ time and a
double storeyed house would take three to four months to complete.
According to the plaintiffs’
wife she received an amount of R10
000-00 every single month from the plaintiff. If the plaintiff is
right that his wages were
paid after two months or even three to four
months the question that arises involuntarily is how was it possible
for him to give
his wife an amount of R10 000-00 every month. No
evidence was led as to how that was possible. Equally, according to
the plaintiff,
he would give to his wife an amount of R9 000-00
sometimes R10 000-00 or even R11 000-00 per month. His wife, however,
categorically
stated the amount she regularly received from the
plaintiff was always R10 000-00 every month.
[11] According to
the plaintiff the money he gave to his wife was for the household,
namely the wife and his two children. He did
not mention his wife’s
child not born of him nor the extended family she testified about
least of all did he refer to Bongani
who received a substantial
financial contribution of R2 500-00 to R3 000-00 per month from the
amount he gave his wife. The plaintiff
testified he would give his
niece who was staying in Bloemfontein where he also lived an amount
of R500-00 per month to cover her
schooling expenses. Bongani was
also staying in Bloemfontein where he attended school but the money
was send to Verkeerdevlei to
be fetched by Bongani every month.
According to the plaintiff’s wife the plaintiff was well aware
of the payments she made
to Bongani. Why would he allow Bongani to
incur transport expenses to Verkeerdevlei to fetch the money there
leaving the plaintiff
in Bloemfontein where they both lived was not
explained as he did with the niece because she was living in
Bloemfontein, where
he also lived and he gave the money to her
directly.
[12]
Pieter Sarel de Bruyn who employed the plaintiff did not help the
court to make sense of how much he paid the plaintiff. His
evidence
raised more questions than answers. What he claimed to have paid to
the plaintiff was throughout his evidence in approximate
terms. He
had a bookkeeper as a business with a turnover of approximately
R4million per annum should. Even his bookkeeper did not
know how much
he paid his workforce, particularly the plaintiff. Wages in a
construction business is a major overhead. He would
pay the plaintiff
in cash and did not know exactly how much he paid him but it was
between approximately R15 000-00 to R20 000-00
per month. When they
did not have work to do and in order to retain the plaintiff’s
services, he would at random give him
sometimes R200-00 or R500-00 or
even R10 000-00 or between R2 000-00 and R6 000-00. This he would do
because the plaintiff was
the
“
goose
that laid golden egg
for
him. He never kept record of what he paid. This does surely not tell
the count what the plaintiff earned and is causing more
confusion
than clearing it. The worst came when he was asked by the defendant’s
assessor to complete a certificate of service
for the plaintiff. This
was done on 29 May 2014 more than three years after the accident. At
the time he knew about the plaintiff’s
claim and knew that the
more the plaintiff earned the higher the compensation would be for
loss of future earnings. In his own
handwriting and at his own time
he stated that the plaintiff earned R2 000-00 per week with R50-00
per hour overtime. According
to the evidence only at the beginning of
his employment was the plaintiff paid per week. Since he became such
an important cog
in his operations he was paid per month. Suddenly in
2014 he started a weekly payment as per certificate of earning, when
throughout
his evidence in court he was talking about monthly
payments.
[13] In an endeavor
to show that the plaintiff earned above average and to justify his
claim, the plaintiff stated that he paid
cash for all his purchases
and services he received. He denied having had an account but his
wife did. The wife, on the other hand,
denied having had accounts as
she paid cash for everything she bought. According to her it was the
plaintiff that had accounts
to pay. One cannot ignore the possibility
of making up the story about the plaintiffs’ earnings bearing
in mind the relationship
between all the witnesses for the plaintiff.
Otherwise it would be simple to explain how much the plaintiff
earned. At any rate
these contradictions are not of assistance to the
court.
[14]
In order to succeed with a claim, the vehicle the court must resort
to is proof of a claim. The proof is based on all the evidence
placed
before the court. The argument addressed to the count is not
evidence:
Law of
Evidence:
CWH
Schmidt P.
Pillav.Krishna
1946
AD 946
at 952 and
Coch
v Lichtenstein
1910
AD 178
where it was stated that:
“
the
mere production of evidence which makes the existence of ... facts
probable does not in itself shift the onus though it may
go a long
way towards satisfying it”.
A
litigant requesting a remedy must prove that he is entitled to it by
adducing probable evidence:
Mobil
Oil Southern Africa (Pty) Ltd v
Mechin.
1965(2)
SA 706 (A) at 711.
[15] In this case,
the central issue to be decided is, in the light of the confusing
evidence, what is the probable amount the plaintiff
would earn had it
not been for the accident. This amount can only be determined by what
he earned before the accident. This evidence
must be clear and be
supported by facts. The absence of evidence in rebuttal does not make
the assertion of having earned R15 000-00
per month probable unless
one ignores the contradictions characterizing the entire evidence of
the plaintiff. Much was said about
the report of Dr. Boshoff as
indicating the basis of the plaintiff’s earning but what was
overlooked was the fact that the
assertion was made on the assumption
that the plaintiff earned R15 000-00 per month which was not proven.
In his evidence the plaintiff
stated that at a stage he earned R8
000-00 per month from R1 500-00 per week. This was when he had
greater responsibilities and
had to be compensated for that. He had
been earning R1 000-00 per week before his earnings were raised to R1
500-00 per week. Suddenly
his earnings were increased by a whopping
90% to R15 000-00 per month to prevent him from leaving the company.
The question is
how probable is that increase in the set of
circumstances where even the date of that huge leap in his income is
unknown. Although
no evidence was led or was hinted at the
unsophistication of the plaintiff and other witnesses the court was
urged to take that
lack of sophistication into account. Even if the
court would do so that cannot serve as compensating for the lack of
probable evidence.
[16] Having
considered all the evidence of the plaintiff’s rise in stature
with the company, first earning R1 000-00 per week,
next increasing
his earnings to R1 500-00 per week and later to R8 000-00 per month,
and the employer stating in the Certificate
of Service that the
plaintiff earned R2 000-00 per week, I am of the view that the
probable earnings of the plaintiff at the date
of the accident was R8
000-00 per month. It is not a coincidence that the certificate of
service mentions an amount equal to R8
000-00 per month mentioned by
the plaintiff.
[17] I therefore
make the following order:
(a) The earnings of
the plaintiff as at the date of the accident being 27 March 2011 was
an amount of R8 000-00 (Eight Thousand
Rand) per month.
(b) Costs to stand
over.
K. J MOLOI. J
On behalf of the
plaintiff: Adv. VORSTER
Instructed by:
HONEY
ATTORNEYS
BLOEMFONTEIN
On behalf of the
defendant: Adv. GROENEWALD
Instructed by:
PHATSHOANE
HENNEY
BLOEMFONTEIN