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
>>
2014
>>
[2014] ZAGPPHC 329
|
|
Masiza v Road Accident Fund (28354/2012) [2014] ZAGPPHC 329 (23 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 28354/2012
DATE:
23 MAY 2014
BEKITHEMBA
MASIZA
..................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
.............................................................................................
DEFENDANT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
This is an action instituted against the Defendant as a juristic
person
created for
the purpose of payment of compensation for damages or loss caused by
the negligent driving of motor vehicles to any
user on a road within
the borders of South Africa in terms of the Road Accident Fund
Act 56 of 1996
(“the
Act”) as now amended. The action is brought by a
Zimbabwean
national (“the Plaintiff”)
for damages arising
from personal injuries that he sustained in a motor accident on a
road between Pietersburg and Mokopane on 31
May 2008.
[2]
The Plaintiff was being transported as a passenger in a motor vehicle
with registration number T[…] when it collided
with a motor
vehicle with registration number D[…] driven by David Modise
(“the first insured driver”) and another
one bearing the
registration number T[…] whose driver was not identified.
[3]
It is common cause that Plaintiff sustained the following
injuries:
[3.1]
A fracture of the left clavicle; left shoulder injury
[3.2]
Bruised face;
[3.3]
Lacerations and abrasions;
[3.4]
Psychological stress and trauma.
and
as a result and s
equelae
thereof, received medical and
hospital treatment. He alleges that he would hereafter also require
future medical and hospital treatment
and to have suffered a temporal
and partial disability, a loss of past and future earnings and/or
earning capacity, pain, suffering,
discomfort, loss of amenities of
life, experienced shock and psychological trauma and accordingly
sustained the following damages:
[4.1]
Past Medical and Hospital related expenses: R10 000.00
[4.2]
Future and Medical and Hospital expenses
[4.3]
Loss of earnings /earning capacity: R200 000.00
[4.4]
General Damages : R200 000.00
[5]
The Plaintiff’s particulars were amended on 17 March 2014 to
increased amounts of R1 000 000.00 for loss of
earnings and
R500 000.00 for general damages.
Defendant has conceded
that the accident was caused entirely by the
negligent driving of the insured driver and the parties reached an
agreement that the
Defendant compensate the Plaintiff in an amount of
R150 000.00 for general damages and issue him with an
Undertaking in terms
of s 4 (a) for Future Medical and
Hospitalisation Expenses.
[6]
The only issue that remained in contention to be determined by the
court was in respect of what the Plaintiff referred to in
his
particulars of claim as present and future loss of earnings and
earning capacity that Defendant contested on the basis that
Plaintiff’s earnings if any, were indeterminable and illegal as
he has been at all relevant times an illegal foreigner without
a work
permit.
[7]
Consequently Plaintiff led evidence in that regard outlining his
employment history, the nature thereof and the extent of his
past and
present earnings and of Dr Pretorius to submit the assessments and
quantifications done to substantiate his claim for
loss of earning
capacity. No evidence was led by the Defendant.
[8]
Plaintiff’s testimony was that he was born on 18 April 1981 in
Zimbabwe and at the time of trial he was staying in Polokwane.
At the
date of accident he was in the country illegally and staying in
Rosettenville. He came to South Africa in 2002 and without
a work
permit secured a job with a fellow Zimbabwean, Mandla Ndlovu, the
driver of the motor vehicle in which he was a passenger
and who since
passed away succumbing to
the injuries sustained from the
collision
(herein after referred to as “the
deceased”). He had an on-job training as a boilermaker by the
deceased who was a boilermaker
by trade and in 2006 worked as an
assistant boilermaker cutting steel and iron, welding, making TV
stands, trailers and palisades.
He started working for the deceased
as a construction worker in 2002 and throughout his entire employment
as a labourer and as
an assistant boilermaker earned a steady monthly
salary of R4 500. He however occasionally would earn amounts of
between R6 000
and R9 000 if his employer had managed to
secure a big contract which happened randomly. He passed Grade 10 at
Kameroen High
School and had no formal vocational training.
[9]
The deceased paid his salary in cash in an envelope which had the
name of the company, Makhalim Engineering (“the company”),
and an amount written on it without issuing him with a payslip. He
has never opened a bank account in his life. He kept the salary
envelopes at his place of abode. He was not able to produce them at
the trial because since the accident he has not been back to
his
residence. Due to the length of time it took him to recuperate and
the extent of his injuries he has not been able to secure
another job
as an assistant boilermaker. After the accident he went back to
Zimbabwe for some time and made a leaving by selling
tomatoes with
his wife until a year to the trial when he secured his present job as
a cleaner at a small butcher in Polokwane.
Since the accident he has
had no contact with his co-workers because he lost his phone in the
accident and does not know what happened
to the deceased’s
company.
[10]
During cross examination he explained the discrepancy between his
evidence in chief that he at the time of accident stayed
in
Rosettenville and his particulars of claim that state that he stayed
in Tembisa by alleging that he rented a room at Rosettenville
only a
few months before the accident. Prior thereto he stayed with the
deceased in Tembisa. It was also his version under cross
examination
that he heard from his cousin, the wife of the deceased that the
company is no longer in operation. He also in contravention
of his
evidence in chief stated that he did go back to Rosettenville after
the accident to fetch his things and found only his
blankets which
were removed from the room and stored in the garage. He could not
find his other belongings and the salary envelopes
that he kept in
the room. He started working as an assistant boilermaker only in 2006
when he qualified and from 2002 he was just
learning. The deceased
told him that it is illegal to work without a permit and promised to
assist him with it. Then the accident
happened. He still does not
have a work permit and proof of his earnings prior to the accident.
[11]
Dr Pretorius, the Industrial Psychologist who sat throughout the
Plaintiff’s evidence confirmed that he heard the evidence
and
had sight of the reports prepared by the various experts who
consulted and conducted different assessments to determine the
aftermath of the accident on the Plaintiff. Most importantly he
confirmed to have had sight of Elsabe Krone, the Occupational
Therapist’s report before the Joint Minute (“JM”)
that he presented in his evidence was prepared. He testified
that
according to his analysis, the normal procedure of determining loss
of income is to look at the experience, type of environment,
the
earnings in the labour market and corporate sector. Now, if it is
found as a fact that the Plaintiff earned a salary of R4
500 he in
terms of this test postulated it as a factual amount he was earning,
or alternatively looked at the type of qualification
that he had as
an assistant boilermaker, the specific labour market based on his
experience and period to determine what he could
have earned as
indicated. His method is generic (standard) as people of the same age
will find work and grow their career to a
certain category that he
referred to as B1 type of earning which he said was equivalent to R6
988. He addressed Plaintiff’s
school qualifications as Form 3
(Grade 10) because that is what Plaintiff presented to him even
though to Krone he said he has
a Form 4 (Grade 11). He regarded his
job content as of a semi-skilled nature. He also did concept
variations, looking at the unskilled
with no vocational training then
the skilled when trained in that environment and licensed as
artisans, having the necessary papers
and semi-skilled if they attend
artisan training but do not qualify and since the skill is not
formally learnt there is no proof
of having had training.
[12]
According to Pretorius Plaintiff is an unqualified artisan- on a
lower scale artisan who was working under the supervision
of a
skilled and qualified artisan boilermaker. Usually the qualification
is done by OV (outcome verification). Since he was working
with
sheets of metal he would say he is graded from medium to heavy type
of work. He would not have worked in the corporate sector
but in the
informal sector. His basic salary will be on A1 in 2013 which is +-
R7 040. That type of salary when on the increasing
scale overlaps
with each other on low level semi-skilled and semi-skilled of the
scales, they will be earning the same. A boilermaker’s
assistant now earns R7 469. According to Koch table (Quantum yearbook
2014) of suggested assumptions for the non-corporate sector,
as a
semi-skilled worker he would be earning R17 400 pa in the lower
quintile medium and for the informal sector a salaried worker
in the
lower Q R earned an amount of R7 200 pa and medium quintile R29
000. However a boilermaker assistant in Witbank
with 3 years’
experience would earn R6300 in 2014 which is R1 575 per week
which translates to R40 to R55 per hour with
variations influenced by
the period.
[13]
He concluded that it is therefore reasonable to accept evidence of
the Plaintiff that in 2008 he was earning R4 500 and with
7%
inflationary increase, he could have earned an amount of R6 750
- R7 000 in 2013. By the age of 45, he could have
earned
anything between R69 500 and R77 000.00 pa. If he works on
the actual income and history as presented by the Plaintiff
looking
at him as a non- corporate, semi- skilled worker the factual position
would be R49 000 to R50 000. At age 45
in 2026 he would
have reached his pinnacle and applying the consecutive way of
calculation earning R55 000 with overtime and a
bonus not taken into
consideration as executive earnings. It can be the ceiling but not
sooner than age 30 something. R45 000 escalated
to 2014 to be
R88 000, but in calculation using a more consecutive approach it
is escalated until 2026 considering other than
expert opinion.
[14]
He pointed out that Dr Diedericks, the Industrial Psychologist did
not agree with him on the scenario where the semi-skilled
and the
skilled salary scales overlap which is of the same values and that
they reach the pinnacle of their career at 45. Diedericks
was of the
opinion that it might not be true. His viewpoint as in the JM applies
the same value with the unskilled worker due to
uncertainty in the
low level skill workers. He disagreed with the opinion of Diedericks.
In terms of his summary it was possible
that when Plaintiff started
he might have earned that amount, but does not think a boiler maker
will have worked for that kind
of money. In the assumption on his
mortality, they used the date of accident to date of calculation
being 17 March 2014. They both
proposed a high contingency to be
considered due to not being possible to determine with any level of
certainty the potential future
impact of the accident. He considered
the other experts reports and concluded that Plaintiff’s body
cannot work like before
and his work environment is more vulnerable
because of his injuries and unless he undergoes certain kind of
recommended treatment.
His
post accident scenario
[15]
Dr Pretorius indicated that the other relevant factor that indicates
the seriousness of impairment is Dr Enslin report that
equates
Plaintiff’s impairment to 15 % loss of earning capacity as he
is limited to a market where he can only perform light
work or tasks
until the age of 58 unless he finds an employer who can keep him
until age of 60. He has found that to a certain
extent Plaintiff is
accommodated by his present employer and the other employees. He
spoke to Plaintiff’s co-employee at
the butcher who confirmed
that the Plaintiff can only do light work, cleaning the butcher and
packing the meat and his employer
is sympathetic. However they are at
a threshold of accommodating him due to his periodic absence that is
causing a concern to the
employer. His work choice options are
limited to sedentary work or he might not find work. He has been told
that the business has
been sold and the employees are going to move
over to the new employer. If he does not stay with new employer he
will struggle
to find a new job. His work security will be in danger
in future due to work absence. He recommends that a 10% deduction
will be
appropriate and if 15 % premorbid. He was unemployed for 4
years after the accident during which he worked as a hawker selling
tomatoes. He was already restricted and was only able to get new work
as a result of a referral by a Mr Smit. There is 75% chance
that he
may lose his job and his condition may degenerate. The amount of R500
per week that he made as a hawker was discussed when
making the joint
minute. In the informal labour he could have made R 7 200.00 as
in 2013. The joint minute of Msiza and Krone
does not anticipate an
early retirement but at age 60.
[16]
Under cross examination Dr Pretorius agreed that there were no
collateral earnings at the time of accident and also no proof.
He
just made a comparison with what is in the labour market. When he has
to consider his true work experience, he was working as
a semi low
skilled person and his earnings were to grow whilst he was qualifying
but never grew. Even though he was earning
the same amount of
money R4 500 throughout his working experience and his qualification
as a boilermaker and that is what was indicated
at consultation, the
reported income is on his projection with the amount considered
market related and based on what he earned
from the industry. His
lack of permit and necessary papers meant he would not have had the
same salary growth opportunity. He agreed
that the earnings of
foreigners are not usually market related. He also agreed that
illegal foreigners are exploited but could
not see Plaintiff being
exploited and that
proof of actual income
instead of market
related will be his real earnings. He submitted that people pay for
skill due to shortage and the impact is in
the middle stream of semi-
skilled.
[17]
He confirmed that Diederick’s report seeks to be depended on
what he actually earned than what he could be earning in
the labour
market. The alternative scenario by Diedericks is based on that there
was no proof of earnings and therefore he could
not validate
Plaintiff’s allegations and so, he postulated that he would
have worked as a lower level semi-skilled worker.
Diedericks does not
agree that as from 2002 Plaintiff started with the process of
training until the date of accident with a lot
of growth and
development happening based on the training he got from the employer.
Whilst his (Pretorius) opinion is that a person
can learn within the
semi-skilled category, the proof of his vocational training is in
doing the work. He believes that Plaintiff
was a semi- skilled worker
dependent on the training. Koch’s report that he follows is
based on explanation how he does his
job. Diedericks and himself are
far apart with no middle ground. He would say that they should take
Plaintiff back to R50 0000
per year that can still grow over time.
Diedericks suggests that unless he can provide proof of his
exceptionally high and indeed
unlikely reported income the
calculation should be based on a level between medium and upper
quantile earnings of unskilled workers
in the non-corporate sector of
the labour market (in the region of R24 000-R36 000 per annum). He
still submits however that the
salary of R4 500 at the time of
accident and a 7% inflationary increase annually is reasonable which
roughly would have been
R6 750 p/m in 2013.
[18]
So at the end of the trial the court had only the evidence of the
Plaintiff to consider and ascertain the factual history of
his
employment and earnings prior and after the accident. The experts as
well had relied upon this evidence to compile their reports
on the
consequence of the accident to his earning capacity. Defendant’s
Counsel argued that the evidence of the Plaintiff
should be
disregarded as unreliable as a result of its discrepancy and
inconsistency. Arguing further that, Plaintiff failed to
justify the
consideration of his illegal earnings for the claim for loss of
earnings. He had no other evidence to substantiate
any of his
allegations, especially his earning history. He could not prove his
employment with the deceased since 2002, the amount
of R4 500
that he allegedly earned and his training and qualification as a
boilermaker or assistant boilermaker from 2006.
[19]
Plaintiff is the only source of information that relates to his
history of employment and earnings and has proven himself to
be an
unreliable source. There were serious discrepancies and
inconsistencies in the Plaintiff’s evidence and some
allegations
were so highly improbable that any reliability thereon
would be suspect. The Defendant’s Counsel’s arguments had
merit.
He had two contradictory versions of what was the reason why
he could not produce his salary envelopes. He first alleged that it
was because he never went back to his residence and under cross
examination alleged to have gone back but found the envelopes
missing, consequently creating doubt if they ever existed. Since the
employer is ‘deceased”, conveniently he alleged
to have
never opened an account or been able to trace his co-workers, so his
pre-accident earnings and nature of work can never
be verified. His
explanation on where he resided at the time of accident was also
suspect as well as his allegation that his employer
was a boilermaker
but he worked for him as a construction worker in 2002. A further
incongruity is with respect to the alleged
informal training and
qualification as a boilermaker and promotion to assistant
boilermaker that he strangely earned the
same salary in those
different capacities for a period of 6 years. Implying that the
alleged duration of his employment, the improvement
and acquisition
of new skills and experience did not improve or make any difference
to his earning capacity.
[20]
The evidence is of crucial importance and material relevance. Its
unreliability poses a serious problem in establishing the
resultant
loss of his earning capacity as none of these highly improbable facts
could provide a verifiable basis upon which the
court can rely on.
This was a very challenging situation. Obviously the envelopes,
co-workers, bank account statements would have
readily allayed any
doubts or difficulties that existed, even the deceased’s wife
who it came to light that she was the Plaintiff’s
cousin.
Therefore Dr Diedericks’ reservations to base any opinion on
such evidence were justified
because an
expert's opinion is only as reliable as the evidence on which it is
based. As the court could not find the facts according
to Plaintiff
legally reliable, the opinions become to that extent unusable. The
courts must ensure that the facts underlying the
experts' opinions
were sufficiently reliable. The court also has a problem with the
hearsay evidence by Dr Pretorius on the status
and environment of the
present work of the Plaintiff that he introduced through his
testimony and was not adduced to by the Plaintiff.
[21]
The evidence of the unreliability of Plaintiff’s evidence was
unquestionably remarkable. Apparently even the information
that the
other experts, besides Pretorius and Diedericks, based their
assessment on to determine the nature, extent and effect
the accident
had on Plaintiff’s capacity to earn as presented in their
reports was inconsistent and discrepant.
[22]
In illustration thereof, the first issue considered in that regard
was the information on his place of abode. He alleged that
at the
time of accident he stayed at Rosettenville and under cross
examination said in Tembisa with the deceased employer and his
wife
who was his cousin. To Dr Pretorius and Dr Birrell the Orthopaedic
Surgeon, he alleged to have been staying with a friend
in Tembisa at
the time.
[23]
On the level of his education, Plaintiff testified that he passed
Grade 10, equivalent to a Form 3, obtained at Kameroen School.
However to Dr Enselin the Orthopaedic Surgeon he said he completed
his O levels and immigrated to South Africa in 2006 and to Dr
Pretorius alleged to have completed Form 3 at Sotjean Secondary
School and not sure which year. To Krone, the Occupational Therapist,
he alleged to have completed Grade 6 (Std 4) in 1999 at Kameroen
Primary School and due to his parents being poor could not go
any
further. According to Dr J J Viljoen the neurosurgeon, Plaintiff only
obtained a Std 3 certificate and his neurological higher
function was
weighed with consideration of that fact. Both Viljoen and Krone’s
reports were annexed to Plaintiff’s
summons in support of his
claim. Dr Diedericks’s report, indicates that he completed Form
4 (Grade 11) whilst he told Dr
Birrell that he passed Form 2 that is
Grade 9.
[24]
A further a discrepancy is with regard to his employment. He
testified that he worked for the deceased from 2002 when he first
came into the country doing construction work and later trained and
qualified as a boilermaker whereafter he worked as an assistant
boilermaker in 2006, until the date of accident in 2008. According to
Krone’s report he worked on building sites in Bulawayo
where he
learned the trade of bricklaying for 2 years from 2002 and only
migrated to South Africa in 2005 and in 2006 was taught
and worked as
an assistant boilermaker at Orange Farm. According to Dr Pretorius he
worked for Bongane construction mixing dugga/dougha
and on the
construction sites in Zimbabwe. He did a similar job in Botswana
before he relocated to South Africa and in May 2008,
he was working
for the deceased as a boilermaker. Dr Pretorius is the only one to
whom Plaintiff could not furnish with dates.
Dr Birrell reported that
Plaintiff’s occupation was an assistant boilermaker since 2005.
His working experience was reported
by Dr Enselin as having started
in Zimbabwe as a cattle herder for two years, a labourer
(duggaboy) for three years working
for Bongani and a bricklayer in
Botswana for one year in 2005 then immigrated to South Africa in 2006
and worked for Mandla as
an assistant boilermaker until date of
accident. He was then from June 2012 selling vegetables making R500 a
week.
[25]
He also told Pretorius during the consultation on 29 October 2013
that he does not have contact details for Mr Ndlovu as he
lost
contact with him when he returned to Zimbabwe after the accident.
Whereas according to Krone Mr Ndlovu died in the same accident.
[26]
There is overwhelming indication that he was not in South Africa from
2002 until 2005 at least. With a few of these examples
it is obvious
that the Plaintiff’s credibility is questionable and the whole
information suspicious. What exactly is the
nature of Plaintiff’s
work experience? Was he ever trained on the job? What was his past
earning capacity? Did he work for
the deceased and how much did he
earn exactly R4 500? To an extent that it worried Diedericks and
Pretorius such that they both
proposed a high contingency to be
considered due to not being possible to determine with any level of
certainty the potential future
impact of the accident. They were both
not committed to the facts as per Plaintiff’s evidence,
Diedericks 100% and Pretorius
partially uncommitted. As a result the
key facts in his testimony that are required to profile him for a
proper assessment of his
past earning capacity and an accurate
calculation of the future loss were then understandably
deferred to factual information
by Diedericks, regrettably that has
been proven to be unreliable. It is therefore my conclusion that the
unsubstantiated evidence
of the Plaintiff cannot be relied upon. The
Defendant’s argument this far has merit.
[27]
The Defendant’s argument that the Plaintiff’s alleged
income should not be considered at all as it was illegal
is however
misguided. The illegality of his earnings may be a factor to consider
as an inhibition or an inherently diminishing
factor of his capacity
to earn but not an instant disqualifier for consideration of the
loss; see
Santam
Versekeringsmaatskappy Bpk v Byleveldt 1
973
(2) SA 146
.
It has been confirmed in the decisions mentioned hereafter that what
the court is called upon to determine is his loss as a result
of his
diminished capacity to earn vis a vis his qualifications, experience
and nature of work. Defendant’s Counsel referred
to
Dlamini
en Andere v Protea Assurance Company Ltd
1974 (4) SA 906
(A) where no concessions were made. That judgment was
criticized based on the established principle that this is in fact a
claim
for a loss of the claimant's earning capacity which is an asset
in his estate; See
Rudman
v Road Accident Fund
2003
(2) SA 234
(SCA) para [10]. In
Shield
Insurance Co Ltd v Booysen
1979 (3) SA AT 964 D-E it was said that even though some activities
may be found to be illegal, they can nevertheless be relied
upon as
an indication of a person’s earning capacity. In
Dlamini
v Multilateral Motorvoertuig Ongelukkefonds
1992 (1) SA 802
(T) where it was held that illegal earnings as in
illegal taxi-driving could be taken into account as an indication of
earning
capacity and that a deduction of 30 % should be made for the
change-over from illegal to legal taxi driving.
[28]
I accept the best case scenario projected by P Diedericks in the
joint minute that if he continued working as a boilermaker
assistant
and continued to receive on the job training, bar proof of same he
may be viewed as a low level semi-skilled worker and
unless he can
provide proof of his exceptionally high and indeed unlikely reported
income, calculations on his income at the time
of accident should be
based on a low level between the lower median and upper quantile
earnings of unskilled workers in the informal
labour market sector
(that is in the region of R29 000-R36 000 p.a) and the
appropriate discount applied for having to
speculate on his past
earnings. It would therefore be projected at R213 594.00 less
fifteen percent. Nevertheless on that
scale his present earnings
surpass the threshold as it is to be projected for the future
earnings. He is presently earning R42 600.
He also confirmed
under cross examination that he still does not have a work permit.
The income earned presently not guaranteed
and a chance that he would
have continued to stay in the country under the same circumstances
working without a work permit is
speculative.
[29]
It is trite law that an award of damages for the loss of a claimant's
earnings or earning capacity is intended to place him
in the
financial position he would have been in, had it not been for the
delict, to allow him to enjoy financial benefits equal
to the quantum
of the earnings lost by him. It is not intended to be a lucrative
business or a money making scheme as it has turned
out to be. In
Rudman
para [11] of the judgment, it was made quite clear that a reduction
in earning capacity only results in a loss if it gives rise
to a
pecuniary loss. ‘Similarly, and on grounds of public policy, a
South African court would not make an award for diminution
in earning
capacity if the only way in which the earning capacity could remain
productive was by a failure on the part of the claimant
post-accident
to comply with his legal duties’ see
Heese
NO v Road Accident Fund
(A
586/2012)
[2013] ZAWCHC 157
;
2014 (1) SA 357
(WCC) (23 October 2013).
It seems illegality will still pervade Plaintiff’s earnings
into the future.
There is also
the other issue of tax as well that would have to be considered. On
the level that is recommended by Diedericks that
of R29 000-R36
000, past earnings would in my view be appropriately discounted at
15%. I am of the view that Plaintiff has
not proven that at the time
of the accident he had an enduring capacity to legal earnings with a
value that potentially would have
in the future, exceeded his present
earning capacity.
[31]
As a result, I hereby make the following order:
[31.1]
The Plaintiff’s claim for future loss of earnings is dismissed.
[31.2]
Plaintiff’s claim for loss of past earnings is granted
[31.3]
The Defendant is to pay to the Plaintiff:
[31.3.1]
in respect of past loss of earnings R181 282.52
And as agreed
between the parties:
[31.3.1]
in respect of general damages - R150 000.00
TOTAL
R331 282.52
the
total amount shall be paid within 14 days to the credit of the trust
account of the Plaintiff’s attorneys of record, Savage
Jooste &
Adams Inc. Pretoria, whose trust account details are as follows:
Nedbank: NEDCOR –
ARCADIA
Account type:
Trust Account
Branch Code:
16-33-45-07
Account no:
1[…]
[31.4]
the Defendant is ordered to furnish the Plaintiff with an undertaking
in terms of
Section 17
(4) (a) of the
Road Accident Fund Act, No 56
of 1996
, to compensate Plaintiff for 100% of the costs of future
accommodation in a hospital or nursing home or treatment of or
rendering
of a service or supplying of goods to Plaintiff resulting
from injuries sustained by him as a result of an accident that
occurred
on 31 May 2008;
[31.5]
The Defendant is ordered to pay the Plaintiff’s taxed or agreed
party and party costs, on the High Court scale including
costs up
until and including 19 March 2014, inclusive of the trial from 17
th
March 2014 until 19
th
March 2014. These costs will
include inter alia the following:
[31.5.1]
Dr Viljoen, Neurosurgeon;
[31.5.2]
H B Enslin, Orthopaedic Surgeon;
[31.5.3]
Dr J D Erlank, Plastic and Reconstructive Surgeon;
[31.5.4]
Dr Willie Pretorius, Industrial Psychologist (inclusive of
reservation fees and attendance fees to give evidence in Court)
[31.5.5]
Human & Morris, Actuaries;
[31.5.6]
Elsabe Krone, Occupational Therapist;
[31.5.7]
The costs incurred of all of the experts of the Plaintiff that had to
provide joint minutes;
[31.5.8]
Costs of Senior –Junior Counsel;
[31.5.9]
The costs of pretrials and attendance by Counsel;
[31.5.10]
No interest will be payable on the capital sum, provided that payment
is made 14 days after the Court Order, Should payment
not be made
timeously, the Defendant will pay interest at the rate of 15.5% per
annum from date of the stamped allocator to date
of payment;
[31.5.11]
The Plaintiff shall in the event of the coasts not agreed upon
between the Plaintiff and the Defendant’s attorneys,
serve a
notice of taxation on Defendant’s attorney of record;
[31.5.12]
Following agreement on or taxation of the costs, the Plaintiff shall
allow the Defendant seven Court days after the allocator
has been
made available to the cost, whereafter interest will be charged at
15.5% per annum from date of the stamped allocator
to date of
payment.
[31.5.13]
The Plaintiff did not enter into any contingency fee agreement
with attorneys of record.
______________________
N
V KHUMALO J
JUDGE OF THE HIGH
COURT GAUTENG DIVISION:
PRETORIA
For the Plaintiff:
Adv P J Vermeuleng
Instructed by:
Savage Jooste & Adams Inc
Hayes/MS/RP2733
Pretoria
For Defendant: Adv M
M Kgwane & S Zulu
Instructed by:
Iqbal Mahomed Attorneys
M20198/Martins/Raf