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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 8042/2007
In the matter between:
NOSISANA MERCY TEKETE First Plaintiff
NTOMBIZODWA JENNETE VAROYI Second Plaintiff
TSHEPHISO JAMES TEKETE Third Plaintiff
and
MINISTER OF SAFETY AND SECURITY Defendant
JUDGMENT
Andrews AJ
Introduction
[1] The Plaintiffs instituted action against the Defendant for damages arising out of
a shooting incident which occurred on 2 October 2005 in Khayelitsha, Cape Town,
Western Cape when Mr Johannes Tekete (“the deceased”), was shot by a member of
the South African Police Service and who later died on 31 December 2005 as a
consequence of his injuries. The deceased, at the date of his death, was married in
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community of property to the First Plaintiff and was the father of the Second and Third
Plaintiffs.
[2] The parties previously agreed that the issues of liability and quantum were to
be separated, which was accordingly directed in terms of Rule 33(4) of the Uniform
Rules of Court at the outset of the trial. Judgment on liability was handed down on 12
December 2019 where Samela J found the Defendant to be liable to the Plaintiffs f or
loss of support as a consequence of the shooting of the deceased, by a member of
the South African Police Service at Site C, Khayelitsha on 2 October 2005.
[3] The matter proceeded before this Court for the determination of quantum.
The Plaintiffs’ Claims
[4] It is alleged that the deceased was legally obliged to maintain and did maintain
the Plaintiffs as at the time of his death. In terms of the amended particulars of claim,
the Plaintiffs claim damages against the Defendant as a result of the death of the
deceased as set out below together with interest on the said amounts a tempore more:
First Plaintiff
[5] It is alleged that First Plaintiff suffered damages as follows:
(a) Funeral expenses R10 270.00
(b) Estimated past loss of support R383 411.00
(calculated from date of incident / date of demise of
the deceased to date of summons)
(c) Estimated future loss of support: R622 007.00
(calculated from date of issue of summons until the age
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at which the deceased would have retired)
Subtotal R1 015 688.00
[6] It is further alleged that t he First Plaintiff, in her capacity as Master’s
representative, suffered damages in the sum of R1895.00 for medical and hospital
expenses incurred prior to the death of the deceased.
Second Plaintiff
[7] It is alleged that Second Plaintiff suffered damages in her personal capacity as
follows:
(a) Estimated loss of support R137 792.00
(Calculated from date of the incident /
date of demise to date of summons).
Subtotal R137 792.00
Third Plaintiff
[8] At the time when the action was instituted, the Third Plaintiff was a minor. The
First Plaintiff instituted action against the Defendant in her representative capacity as
mother and natural legal guardian of the minor. The Third Plaintiff has since turned 18
years. The pleadings were duly amended prior to the commencement of the
proceedings to reflect the changed status of Third Plaintiff.
[9] According to the particulars of claim damages suffered by the Third Plaintiff is
set out as follows:
(a) Estimated past loss of support R344 028.00
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(Calculated from the date of the incident /
date of demise to date of summons).
(b) Estimated future loss of support R23 331.00
(Calculated from date of summons until the
age at which the minor reaches the age of 18 years).
Subtotal R367 359.00
Issues for determination
[10] The crisp issue for determination is the amount of damages, more particularly
in relation to loss of support, the Defendant is liable to pay to the Plaintiffs. There is no
dispute regarding the actual loss in respect of the claim for funeral expenses.
The Evidence
[11] The following evidentiary material was relied upon by the Plaintiffs:
(a) Plaintiffs’ bundle of documents – Exhibit “A” consisting of:
(i) Johannes Tekete’s employer’s certificate and
(ii) Sitsila’s Funeral Services C.C. receipt;
(b) An extract from the Quantum Yearbook by Robert J Koch – 2005, Exhibit
“B” and
(c) An extract from the Quantum Yearbook by Robert J Koch – 2024, Exhibit
“C”;
[12] The Plaintiffs called three witnesses, namely:
(a) Ms Mamakoetlane Magdelinah Sekepane;
(b) Dr Hannes Swart and
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(c) Ms Nosisana Mercy Tekete.
[13] The Defendant called two witnesses, namely:
(a) Ms Moeneebah Roberts and
(b) Ms Olivia Hendricks.
Summary of the Evidence
[14] Ms Mamakoetlane Magdelinah Sekepane (“Ms Sekepane”), the biological
sister of the deceased mapped out her career path which was also confirmed by Dr
Hannes Swart (“Dr Swart”), the expert Industrial Psychologist, in his report and during
his viva voce testimony. Ms Sekepane stated that she commenced work at PEP stores
as a sales person and was promoted to the position of store manager in Lesotho.
Thereafter, she took up employment at Pirates, Crisps & Snacks as a supervisor. Ms
Sekepane then commenced working as a chef for French Corner after which she was
employed at Anatoli’s Restaurant as an assistant chef. She then commenced work at
Het Bakhuys from 2001 until 2006 as head cook . Ms Sekepane went on to work at
Waterblommetjie Restaurant as a chef and ultimately became Head Chef at
Seidelberg Wine Estate. She stated that she is currently employed as the Head Chef
at Hemelhuis. As she took the court through her culinary journey, Ms Sekepane
explained what she earned at the different places of employment.
[15] According to Ms Sekepane, the deceased was previously employed as a
police officer, but lost his job. She then managed to arrange casual employment for
the deceased at Het Bakhuys around 2003 / 2004. According to Ms Sekepane, t he
deceased, although employed on a casual basis, would work 3 days a week when
they were not so busy and between 3 to 5 days a week when they were busy. They
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were mostly busy according to Ms Sekepane as they catered for many big functions
at Het Bakhuys. She orated that the deceased was employed as a kitchen hand and
was able to assist with various duties and had the ability to cook well. She further
explicated that the deceased worked with the meat and performed duties as a griller .
Ms Sekepane elucidated that he was taught the skills he acquired and although he did
not receive any formal training; he was able to perform a variety of duties from cooking
to setting up events. Ms Sekepane orated that the deceased earned R250 per day at
the time.
[16] During cross -examination, Ms Sekepane was challenged about her work
history in light of the fact that she did not receive formal training as a chef. Ms
Sekepane, explained that they are a family who enjoy cooking and that is where her
love for cooking was birthed. She reiterated that she is mostly self -taught. Ms
Sekepane stated that all the siblings matriculated. Ms Sepekane, wasn’t able to
comment on the suggestion that the Spaza shop business that the deceased had was
unsuccessful.
[17] Dr Hannes Swart holds a PHD in Industrial Psychology and has been
practising since 1995. He was instructed by the Plaintiffs to provide an opinion
regarding the deceased’s probable career path. Dr Swart testified that he had
compiled three reports. From the collateral information in respect of the deceased, he
established that the deceased matriculated and went on to become a police officer.
According to his source information, the deceased was suspended from the police
force and thereafter commenced employment at the Castle of Good Hope with the
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assistance from Ms Sekepane on a casual basis where he earned R250 per day. 1 Dr
Swart was confident that Ms Sekepane would have looked out for a work opportunity
for the deceased no matter where she was employed. Dr Swart opined that in current
terms, the deceased would have been earning between R5000 and R6000 per month.
He explained the factors that he considered for him to derive at the conclusion that the
deceased would have progressed to a semi-skilled level.
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[18] Dr Swart was referred to the Joint Minute where the issues that he and Dr
Crous agreed on were recorded as well as the issues they did not agree on, especially
on the view by Dr Crous that the deceased would always have been unskilled. 3 Dr
Swart maintained the view that the deceased was more than unskilled as he was
employed as a police officer, had grade 12 and functioned at a lower semi-skilled level.
Dr Swart further opined that the deceased would have been where Ms Sekepane is
today, earning in the region of R9 500 per month which was , in his view, not
inconceivable. His calculations were based on the retirement age of 65 years.
[19] During cross-examination it was suggested that the requirement standard to
enter the police force would not have been high. Whilst Dr Swart was unable to
comment on the actual requirements that had to be met, he opined that there had to
have been a minimum threshold requirement for selection as a policeman at the time.
Counsel for the Defendant further suggested that the work ethic of the deceased was
problematic as he was dismissed twice and was re- appointed. Dr Swart stated that
based on the personal file of the deceased, he was reinstated because he was a good
1 Dr Swart Report, para 10 pages 100 – 101.
2 Dr Swart Report, para 3, page 111.
3 Joint Minute, pages 204 – 2017.
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detective. He conceded that a factor to consider would be someone’s propensity to
lean towards crime, however he stated that he doesn’t work on the basis that the
deceased would have a propensity to lean towards crime for the rest of his life.
[20] During cross -examination Dr Swart was challenged for not considering the
collective agreement for the purposes of his report. Dr Swart indicated that he was not
sure whether Het Bakhuys was party to a collective agreement. He conceded that he
did not check and orated that there is no evidence that they stuck to a wage
agreement. He was confronted about not going into detail about the deceased’s Spaza
shop endeavour and retorted that there was no evidence that the Spaza Shop had
failed. Dr Swart retorted that the Spaza Shop happened somewhere at the beginning
of his career in 1990 when he was 20 years of age. It was suggested to Dr Swart that
he was indulging in objective professional speculation.
[21] Nosisana Mercy Tekete (Mrs Tekete), testified that she was married to the
deceased. She confirmed that he passed away on 31 December 2005 as a
consequence of being shot. She confirmed the names and dates of births of the
Second and Third Defendants, she confirmed that she was employed at JM Services
at the time of the death of the deceased where she earned approximately R1300 per
month and at times R1500 with overtime. As at 2005 she held the position as cleaner.
According to Mrs Tekete, the deceased was the main breadwinner as he earned more
than her at the time. She testified that both the Second and Third Defendants did not
finish school. She confirmed that she provided for their needs. According to Ms Tekete,
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the Third Defendant is still dependent on her. She also confirmed that she paid the
funeral expense in the amount of R10 270.4
[22] Two witnesses were called to testify on behalf of the defendant. Moeneeba h
Roberts (Ms Roberts), testified that she is employed at Het Bakhuys at the Castle,
where she has been employed for approximately 30 years. She currently holds the
position of Events Manager for the last approximately 10 to 15 years. She stated that
her current monthly salary is R10 150 which translates into approximately R121 000
per annum. She described what her job entails and explained that she works with 2
other permanent staff members and between 5 to 15 casual staff members, which
depends on the size of the event that is being catered for.
[23] Ms Roberts confirmed that she knew the deceased, the late Johannes Tekete
who worked at Het Bakhuys, during the period of 2001 to 2004, as a scullery assistant
as a casual employee. She described what his job entailed, inter alia, the cleaning of
the kitchen area and the prepping of meals. According to Ms Roberts, Mr Tekete’s (the
deceased) job description did not change over this period and neither did his salary.
He was paid R250 per day with no increase in 5 years.
[24] During cross-examination Ms Roberts confirmed that Mr Herman Kotze, who
has subsequently also passed on in 2011, was her former boss and manager. She
also confirmed that Ms Sekepane was an accomplished Head Chef, who trained under
Cass Abrahams. Ms Roberts further confirmed that the hospitality industry has
fluctuating periods of business, for example, in winter they would be busy for 2 to 3
4 Exhibit “A”.
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days and in summ er between 4 to 5 days per week and at times there may be no
events. Ms Roberts stated that she encountered Mr Tekete as a pleasant gentleman
with who m they didn’t have problems. She also confirmed that Ms Sepe kane, the
deceased’s sister left Het Bakhuys in the period of 2006 to 2007 as she followed Cass
Abrahams.
[25] Ms Roberts testified that the increment in her salary was slow over the years ,
receiving no benefits as they worked for a club which fell under the umbrella of the
SANDF. According to Ms Roberts, casual workers would come and go.
[26] Olivia Hendricks (Ms Hendricks), testified that she is employed at Het
Bakhuys since 2000 with approximately 24 years’ service. She explained that she
started off on a casual basis as a scullery assistant, earing R250 per day when work
was available. Ms Hendricks explained that she is now permanently employed at Het
Bakhuys as the Head Chef even though she has no formal training or qualification.
She stated that she earns a monthly salary of R5 500. She further confirmed that she
has people working under her, but the number would be dependent on the size of the
event.
[27] Although she expressed her disquiet about her salary, Ms Hendricks stated
that she lacks the paper-work to enable her to find employment elsewhere and receive
the salary on par with what she currently does. Ms Hendricks further confirmed that
she worked with Mr Tekete the deceased in 2001. She described the extent of their
job description, which essentially was that of assisting the Head Chef with preparing
meals and cleaning. She furthermore confirmed that they earned a salary of R250 per
day in 2005.
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[28] During cross -examination she confirmed the seasonal business of the
industry. She confirmed what Ms Sepekane testified in relation to the deceased
helping with preparing the meat. Ms Hendricks confirmed that despite Ms Sekepane’s
lack of qualifications, she landed a job at Seidelberg where she earns R16 000 per
month, reaffirming that she was being underpaid for what she does. She also
confirmed that no- one had any problems with the deceased and that the trend has
been that people leave for better pay.
Considerations in Assessing Loss of Support
[29] It is undisputed that the deceased was the breadwinner at the time of his
demise. It is further undisputed that the Plaintiffs’ loss of support commenced at the
time of the demise of the deceased, being 31 December 2005. The crisp issue for
determination as previously identified, is the amount of damages that the Defendant
is liable to pay the Plaintiffs, with the view to financially placing the dependants as far
as practicably possible in the same position they would have been in had the deceased
not been killed. In other words, a determination is to be made with regard to the loss
of past and future support of the deceased’s wife and their two children.
[30] In assessing the loss of support the following considerations will be paramount:
(a) The deceased’s income at the time of death and his probable career path;
(b) The portion of the deceased’s income to be allocated for the loss of support
claim;
(c) The First Plaintiff’s income to be allocated to the loss of support claim;
(d) The age of dependency in respect of the Second and Third Plaintiffs;
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(e) Any remarriage contingencies to be applied and
(f) General Contingencies.
[31] It is trite that a c ourt has a very wide discretion with regard to contingencies.
The court in Smart and Others v South African Railways and Harbours 5 applied
the guiding considerations considered in Jameson’s Minors v C.S.A.R 6, where the
following was held:
‘…the difference between what the dependents of the deceased would now enjoy
if no compensation were awarded and what they may reasonably be expected to
have enjoyed if the deceased had continued to live must be a main factor in
arriving at a determination. That involves a consideration in the first place of what
source of income, if any, has accrued to the dependents consequent on the death
of the deceased which they did not have before.’
The deceased’s income at the time of his death and probable career path
[32] Ms Sekepane, the First Plaintiff, Ms Roberts and Ms Hendricks assisted with
the collateral information that Dr Swart used to compile his reports. The evidence on
record is that the deceased was working at Het Bakhuys at the time of his death,
earning R250 per day as confirmed by way of an Employer’s Certificate, received into
evidence as Exhibit “A”. The witnesses called by the Defendant, Ms Moeneebah
Roberts and Ms Olivia Hendricks also confirmed that the deceased’s earnings as per
Exhibit “A”, is a true reflection of what the deceased earned at the time of his death.
5 At page 363.
6 1908 TS 575
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[33] According to Ms Sekepane, she assisted many of her family members with
employment and speculated that she would have been able to assist the deceased
with employment at the places where she worked. Ms Sekepane confirmed that the
plan was always to secure a permanent position for the deceased as she had done
for her other family members. Ms Sekepane foreshadowed that the deceased would
in all likelihood have followed her after she left the employ of Het Bakhuys.
[34] Ms Sekepane’s evidence, was furthermore corroborated by Ms Roberts and
Ms Hendricks insofar as it relates to the seasonal periods akin to the catering industry.
In this regard, it is apparent that casual workers would work approximately 5 days a
week during the busier summer months and about 2 to 3 days per week during the
quieter winter months.
[35] It is manifest that Ms Roberts and Ms Hendricks are the only remaining
employees at Het Bakhuys. Of seminal importance is the fact that they conceded that
casual staff, more often than not leave for better remuneration. It is noteworthy that
both Ms Roberts and Ms Hendricks lamented about their current income at Het
Bakhuys which was not on par with what others are earning in similar positions at other
entities.
[36] Dr Swart confirmed that he had established that at the time of the demise of
the deceased, he was working at Het Bakhuys for a period of 4 years from 2001 to
2004. Based on the collateral information received, Dr Swart stated that he accepted
that the deceased was earning R250 per day. According to Dr Swart, the deceased
would only have been employed for a period of 8 months of the year, if regard is to be
had that the catering industry is seasonal. He stated that the deceased would have
earned an income of approximately R6000 per month as earlier stated, which accords
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with the evidence of Ms Sekepane who testified that the deceased had earned
between R5000 and R7000 per month. Dr Swart testified that in his opinion, the
deceased would have at least earned a minimum salary of R41 500 per annum during
2005.
[37] During the course of the trial, additional information came to hand regarding
the employment of the deceased, more particularly at the time when he was a police
officer. Dr Swart was recalled and stated that he had insight into the full personal file
of the deceased. The deceased was employed as a Special Constable on 22
September 1990 until 26 July 1994 when he was dismissed. The deceased was again
appointed in 24 November 1995 until 09 October 1996 as a Special Constable. On 10
October 1996 until 09 March 1998 the deceased was appointed as a Constable. The
deceased was on salary level 04 with Notch of R30 396 per annum.
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[38] According to Dr Swart, based on the new information received, he opined that
the deceased would have functioned at a semi-skilled level. Dr Swart testified that he
would be satisfied to accept that the deceased would have earned a lesser income,
which equates to what a Constable would have earned on level 4 during 2005 as
confirmed by the Quantum Yearbook, marked Exhibit “B”. Dr Swart demonstrated
this conclusion in reference to the Quantum Yearbook, 2005, where the following was
illuminated:
1. Using the salary scales for government departments, a Constable would have
earned, R49227 at level 4 per annum.
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7 Index, page 39A.
8 Exhibit “B”, page 106.
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2. According to the approximate earnings levels table for non- government
workers, a semi-skilled worker would earn in the region R26 000 – R42 000 -
R74 000 per annum.9
3. In terms of the earning scales for Paterson grades, semi-skilled workers would
earn a basic salary of between R41300 – R54800 per year.10
[39] According to Dr Swart, it would be unlikely that the deceased would have
remained at semi-skilled level. The deceased would have been 34 years old in 2005
and his projected retirement age is 65 years. The deceased after leaving the police
force, entered the labour market. Dr Swart also projected that the deceased’s career
would have plateaued at the age of 45 years at which stage it would be foreshadowed
that he would have featured on an upper-semi-skilled level.
[40] Dr Swart opined that the deceas ed would have at least progressed to the
Upper Quartile semi-skilled level, earning R218 000 per annum as per the 2024 values
at the age of 45 years and that he would thereafter have earned an income on a similar
level but with increases as per earning inflation up until the retirement age of 65 years.
In considering the current earning guidelines, the Quantum Yearbook, 2024 “Exhibit
“C”, was referenced where the following was highlighted in support:
1. The earnings of non-corporate workers on a semi-skilled basis, earned between
R83 000 and R218 000 per annum (Median Upper Quartile), which equates to
an amount of R150 000 per annum on average.
11
9 Exhibit “B”, page 107.
10 Exhibit “B”, page 108.
11 Exhibit “C”, page 131.
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2. The starting salary of a constable, based on salary scales for government
employees would be in the region of R216 033 to R262 707;12 bearing in mind
that the deceased at the time of his dismissal was at level 4.
[41] The Defendant challenged Dr Swart ’s findings on various grounds which
included the scope of what he did at Het Bakhuys. It was put to Dr Swart during cross-
examination, that there is no job description of a kitchen hand and suggested that a
kitchen hand is essentially nothing other than “ a glorified labourer”. The Defendant ,
relying on the evidence of Ms Roberts and Ms Hendricks, argued that the deceased
was never a chef, never cooked, but helped peel potatoes and onions and cleaned
the scullery. It was furthermore highlighted that the evidence of Ms Roberts and Ms
Hendricks contradicted the evidence of Ms Sekepane who testified that the deceased
would have worked 5 days per week for 8 months of the year.
[42] The Defendant also challenged the calculation by Dr Swart and proposed that
a mathematical calculation be applied to determine what the deceased’s income would
have been, based on Dr Swart’s report that the deceased would have earned R250
per day as a casual employee, working 5 days per week during summer and 3 to 4
days per week in winter. In this regard, it was suggested that the following calculation
be applied:
‘5. If one takes a month comprising 22 working days even working for a full summer
month this translates to R5 500.00 per month. In (sic) one takes a winter month
where the deceased would have worked 3 to 4 days per week and one takes t days
per week instead of 3, one arrives at a figure of R4 500.00 per month.
12 Exhibit “C”, page 132.
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6. If one favourably splits the year into 2 being 6 months of winter and 6 months of
summer, based on the above the deceased would have earned:
6 x R5 000.00 (Summer)
6 x R4 500.00 (Winter)
Total: R57 000.00 ÷ 12 months = R4 750.00 per month’13
[43] It was furthermore contended that Dr Swart offered no explanation as to how
he arrives at his calculation that the deceased earned “at least R6000.00 – R7 000.00
per month” 14. It was further mooted that whilst the difference appears small, once
actuarially calculated the difference is significant.
[44] Inconsistencies in Dr Swart ’s reports were raised by the Defendant. In this
regard the following was contended referring to the report dated 12 October 2021:
‘Here he reports at p 4 that the deceased “was a very good chef” and further down the
same page reports that the deceased worked “3½ days for 4 months of the year and 5
days per week for the remaining 8 months of the years (sic)”. The relevance hereof is
that in his previous report alluded to above the deceased only worked 5 days per month
during the summer months which was just over a year increased inexplicably. However,
even more curiously, despite this dramatic increase in working time, her still at p 5
reports the deceased as earning “at least R6 000.0(sic) – R7 000.00 per month. This too
is inexplicable…’15
[45] Furthermore, Counsel for the Defendant challenged Dr Swart’s prognosis that
the deceased would have reached a semi -skill level. This contention is based on the
evidence that Mrs Hendricks commenced working at the same place as the deceased
prior to him working there; that she is still currently employed there in her capacity as
a cook and still earns an amount of R250 per day, approximately 23 years later. In
13 Defendant’s Heads of Argument, paras 5 – 6, page 2.
14 Dr. H Swart Report, dated 20 August 2020, page 11.
15 Defendant’s Heads of Argument, para 11.
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further amplification, it contended that the court is to consider that Mrs Hendricks has
a clean record and was never dismissed form her employ, as was the case with the
deceased when he was employed as a police officer.
[46] In addition, Counsel for the Defendant requested that the Court considers the
concession made by Dr Swart that unemployment in South Africa is currently running
at 40%. Counsel for the Defendant argued that the “deceased’s meteoric rise in
income in the labour market as forecast by Dr Swart is what he termed as a leap of
faith.”
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[47] It was furthermore argued that the evidence of the Ms Sekepane regarding the
deceased’s postmorbid career path is to be cautiously approached and as her
testimony does not serve as a basis for contending that the deceased was an
exceptional performer in his socio-economic category.
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[48] Counsel for the Defendant submitted that the C ourt is to adopt a common -
sense approach when determining the deceased’s career path, considering the socio-
economic conditions at the time, the lack of the deceased’s formal qualifications , his
employment record with SAPS as well as the current employment circumstances of
Ms Roberts and Ms Hendricks.
[49] The Defendant did not call its expert, Dr Crous to testify, but attempted to place
reliance on the findings of Dr Crous in its Heads of Argument. Counsel for the Plaintiff
argued that because the evidence of Dr Crous was not led, the court cannot have
16 Defendant’s Heads of Argument, para 17, page 5.
17 Defendant’s Heads of Argument, paras 20.1 – 20.2, page 7.
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regard to his report or the submissions made insofar as it relates to the report compiled
by him. It was argued by Counsel for the Defendant that the Court does not give up its
duty to consider the basis of the conclusions reached by Dr Crous. Even if the Court
is to have regard to the report by Dr Crous, some of his findings which differ to that of
Dr Swart, could not be tested or challenged through cross-examination.
[50] To suggest that the deceased would have been or should be assessed on the
same level as Ms Roberts and Ms Hendricks is , in my view, a blinkered approach as
their circumstances are unique. On their own evidence, many casual employees have
come and gone, mostly seeking greener pastures financially. Their decision to stay at
Het Bakhuys is a personal choice, based on their own unique circumstances and
considerations.
[51] It is trite that a Court is not bound to accept an expert’s evidence and is free to
reject it and to decide for itself where the expert’s evidence is not of “appreciable
help”.
18 However, this court, cannot find any persuasive reason why the expert opinion
of Dr Swart should not be followed. This court having regard to the evidence of the
expert witness Dr Swart, is enjoined to consider this matter on a balance of
probabilities, which includes the evidence in its entirety. Dr Swart places reliance on
an assessment on a non-corporate level. I am satisfied that Dr Swart considered the
necessary factors to support his conclusion that the deceased would have been
employed at a semi -skilled level, which in my view was reasonable and properly
considered.
18 Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 616H; Michael and Another v Linksfield Park
Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA) at para 37.
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[52] Having regard to the evidence in its entirety, in the exercise of my discretion, I
am of the view, based on the balance of probabilities, that the deceased’s income and
probable career path would have been as follows:
(a) The deceased would have earned R41 500 per annum as at 31 December
2005;
(b) The deceased’s income would have progressed to a current amount of
R150 000 per annum as per the 2024 values;
(c) The deceased’s income would have progressed to an income of R218 000
per annum as per the 2024 levels at the age of 45 years;
(d) Increases would have been coupled with earnings inflation and that
(e) The deceased would have retired at the age of 65 years.
The portion of the deceased’s income to be allocated for the loss of support
claim
[53] It is not in dispute that the deceased was the breadwinner. It is generally
accepted that the total income of the breadwinner is to be apportioned between the
family members. It is trite that the allocation will be dependent on the facts of each
case.
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[54] It was contended that one-half of the deceased’s income should be allocated
to the First Plaintiff and the other half to the Second and Third Plaintiffs proportionately;
in other words, 25% for each of the children. There is nothing on record to persuade
the Court why this allocation would not be fair, reasonable and equitable and as such,
the proposed allocation, in my view ought to be followed.
19 Smart v SAR & H (1928) 49 NPD 361.
21
The First Plaintiff’s income to be allocated to the loss of support claim
[55] In Ongevallekommissaris v Santam Verseekeringsmaatskapy Bpk 20
Vieyra J it was held that:
‘What a wife loses as a result of the death of her husband is the support which the
deceased would have been able to afford and would probably have afforded his wife
had he not been killed (cf. Hulley v Cox, supra at pp 213-214. It derives from the marital
relationship.’21
[56] Dr Swart, referring to his report, stated that at the time of the deceased’s
passing, the First Plaintiff worked at J & M Cleaning Services. She left the employ in
2009. At the time when he interviewed t he First Plaintiff could not recall what her
income was at the time. He opined that had she still been employed as a cleaner, she
would have earned approximately R4500 per month. In 2010 she commenced
volunteer work and is still employed in this capacity w here she earns R2400 per
month.22 He explained, how he was able to derive at his projection using the Koch
Quantum YearBook, which set out the earnings guidelines for the year 2005.23
[57] Dr Swart went on to explain what factors he had considered to form an opinion
regarding the First Plaintiff’s post traumatic income. He also indicated that the First
Plaintiff augmented her income by rendering cooking services to Eliso Care Society.24
[58] The First Plaintiff testified that at the time of her husband’s death, she was
earning approximately R1350 per month. Dr Swart proposed that the amount of R1667
20 Ongevallekommissaris v Santam Verseekeringsmaatskapy Bpk 1965 (2) SA 193 (T).
21 At 205H.
22 Dr Swart Report, para 7.1 pages 96 – 97.
23 Koch RJ ‘The Quantum Yearbook’, page 106 – 109.
24 Dr Swart Report, para 5 page 121.
22
per month be utilised for the calculation, which would be in line with the income stream
of a Cleaner at the time of the deceased’s demise. In augmentation hereof, Dr Swart
referenced Exhibit “B”.
[59] Although Dr Swart based his calculation on the earnings guideline for the year
2005, it is my view that the best evidence approach should be adopted, which is the
viva voce evidence of the First Plaintiff who testified that she was earning
approximately R1350 per month. Therefore, in the exercise of my discretion, it is my
view that the amount as per the testimony of Mrs Tekete is to be accepted.
The age of dependency in respect of the Second and Third Plaintiffs
[60] The First Plaintiff testified that the Second and Third Plaintiffs were still residing
with her. According to the First Plaintiff, the Third Plaintiff is currently 20 years old and
still financially dependent on her. Dr Swart orated that the Second Plaintiff is
unemployed and did not progress beyond grade 11.
25 According to Mrs Tekete, both
children did not finish school. Dr Swart also confirmed that he made provision in his
calculation in respect of the children up until the age of 18 years . This is one of the
issues on which both Dr Swart and Dr Crous agreed on as contained in the joint expert
report.
[61] Counsel for the Plaintiff argued that young people are more dependent
on their parents these days contending that the C ourt should adopt a fair and
reasonable approach and rule that the dependency age of the Second and Third
Plaintiffs is to be set at 21 years.
25 Dr Swart Report, para 7.2 page 97.
23
[62] It is the Defendant’s contention that the Second and Third Plaintiffs are both
adults. It was submitted that in light of the fact that neither of them was called to testify
regarding their dependency age, the age of dependency should be 18 years, which is
the age of majority.
[63] In Mfomadi and Another v Road Accident Fund26 it was held that:
‘A parent's duty to support a child does not cease when the child reaches a particular
age but it usually does so when the child becomes self-supporting. Majority is not the
determining factor (see Smith v Smith).’
[64] Hulley v Cox 27 refers to the possibility of a dependant becoming “self -
supporting.” In Kekana Tshegofatso obo Motshwaede Mmapula Lorraine Vs.
Road Accident Fund28 it was pointed out that:
‘… all the facts of the matter must play a role in reaching a just and equitable decision.29
Measuring compensation for loss of support is an exercise of judicial discretion in the
interest of justice, taking into account the difference between the current position and
the position that the minor child would have been in, had the deceased not died.
30
[65] This court is ever mindful that it is to reach a just and equitable decision. In
doing so, this court is to have regard to the evidence currently on record. The Second
and Third Defendants did not testify. Inasmuch as this court is to have regard to the
fact that the deceased would still have been in a position to support the Plaintiffs
financially up until the age of 21 years, had it not been for his demise, there is not
26 (34221/06) [2012] ZAGPPHC 152 (3 August 2012) at para 30.
27 Hulley v Cox 1923 AD 234 at 244 ‘A father for instance would cease to maintain a son who became self -
supporting, or a daughter who married; and allowance would have to be made for those contingencies in
assessing compensation.’
28 (Case No: 2019/26724) [2023] ZAGPJHC 495 (16 May 2023) at para 36.
29 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 535.
30 RAF v Monani 2009 (4) SA 327 (SCA) at paras 2-6
24
much information on record regarding the Second and Third Defendants for the Court
to conclude that the age of dependency ought to be 21 years.
[66] Therefore, based on Dr Swart’s expert opinion, in the exercise of my discretion,
I find that it would be reasonable that the Second and Third Plaintiffs’ dependency age
is to be set at 18 years.
Any remarriage contingencies to be applied
[67] It is trite that our jurisprudence recognises two types of contingencies, namely,
a general contingency for the vicissitudes of life and an additional contingency for the
possibility of remarriage or re- partnering.31The Plaintiff is, at the time of writing this
judgment, currently 56 years old. The evidence on record is that she has not remarried.
[68] In Peri-Urban Areas Health Board v Munarin
32 it was held that:
‘A widow is therefore entitled to compensation for loss of maintenance consequent upon
the death of her husband, but any pecuniary benefits, similarly consequent, must be
taken into account. To suggest that she is obliged to mitigate her damages by finding
employment is to mistake the nature of her loss. What she has lost is a right – the right
of support. She cannot be required to mitigate that loss by incurring the duty of
supporting herself. If she does obtain employment, it is more appropriate to regard her
earnings as being the product of her own work than as consequent upon her husband’s
death. Marriage prospects are relevant because marriage would reinstate her right of
support…’
[69] In Ongevallekommissaris v Santam Bpk33 it was held that:
‘In South Africa the contingency of remarriage is usually taken into account. If the
purpose of an award for damages for loss of support if borne in mind the possibility of
31 Kekana Tshegofatso obo Motshwaede Mmapula Lorraine Vs. Road Accident Fund (supra), para 59.
32 1965 (3) SA 367 at 376.
33 Ongevallekommissaris v Santam Bpk 1999 (1) SA 251 (SCA).
25
the plaintiff remarrying is a very real consideration. The possibility of a young widow
remarrying shortly after the death of her husband and receiving damages for loss of
support calculated over a period of 40 years is completely unrealistic. Allowing for the
contingency is obviously realistic. [Hulley v Cox 1923 AD 234 at 244]’34
[70] The various approaches provide useful guidance in terms of the development
of the jurisprudence on the application of contingencies. The “attributes approach”
takes into consideration a general contingency for the vicissitudes of life and an
additional contingency that considers the individual claimant’s prospects of remarriage
or re-partnering which may be financially beneficial.35
[71] The “actuarial calculation approach” is based on generalised statistical norms
to determine the financial implications occasioned by the possible reacquisition of
remarriage or re- partnering.36 The “actuarial calculation approach” applies both a
general contingency for the vicissitudes of life and an additional contingency based on
actuarial statistical normative calculations. The actuarial normative standards have
been criticised in LD v Road Accident Fund
37 because of outdated data statistics
and adopted the approach applied by the Australian court:
‘Unless the facts of a particular case clearly demonstrate that a higher than normal, and,
special contingency for remarriage is to be deducted, such further contingency ought
not to be deducted.’38
34 See also Members of the Executive Council Responsible, for the Department of Road and Public Works, North
West Province v Oosthuizen A671/07) (2009) ZAGPPHC 16 (2 April 2009) at para 45.
35 Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A) at p.376; Constantia Versekeringsmaatskappy
Bpk v Victor NO 1986 (1) SA 601(A) at 615A and YK v Road Accident Fund [2020] JOL 46847 (FB) at para 44.
36 Esterhuizen and Others v Road Accident Fund 2017 (4) SA 461 (GP) (6 December 2016).
37 (14606/2016) [2018] ZAGPPHC 181 (5 February 2018) paras 33-35.
38 At para 37.
26
[72] Having regard to the age of the First Plaintiff, I am of the view that it is unlikely
that she will remarry in the future and as such, do not deem it necessary to consider
a remarriage contingency.
General Contingencies
[73] The “one general contingency approach”, applied by the court in MV and
Others v Road Accident Fund
39 applies only one contingency for the general
vicissitudes of life except where the facts clearly demonstrate a higher than normal,
special contingency for remarriage or re-partnering.
‘In considering the aspect of remarriage, I am of the view that there are no special
circumstances to warrant a further deduction. Remarriage is part of the vicissitudes of
life and should not be considered separately in this case.’
[74] The “one general contingency approach” applies only one contingency for the
general vicissitudes of life except where the facts clearly demonstrate a higher than
normal, special contingency for remarriage or re-partnering.
There appears to be no guidelines as to what factors constitute special circumstances.
In my view, a Court ought to be guided by the unique facts of each case as a one size
fits all approach would be too rigid and unrealistic.
[75] In RAF v Kerridge40 it was held that:
‘Some general rules have been established in regard to contingency deductions, one
being the age of a claimant. The younger a claimant, the more time he or she has to fall
prey to vicissitudes and imponderables of life. These are impossible to enumerate but
as regards future loss of earnings, they include inter alia, a downturn in the economy
leading to reduction in salary, retrenchment, unemployment, ill -health, death, and the
myriad of events that may occur in one’s everyday life. The longer the remaining working
life of a claimant, the more likely the possibility of an unforeseen event impacting on the
39 (1705/2017) [2019] ZAFSHC 131 (25 July 2019) at para 14.
40 2019 (2) SA 233 (SCA) at para 44.
27
assumed trajectory of his or her remaining career. Bearing this in mind, courts have, in
a pre-morbid scenario, generally awarded higher contingencies, the younger the age of
a claimant. This Court, in Quedes, relying on Koch’s Quantum YearBook 2004, found
[that] the appropriate pre-morbid contingency for a young man of 26 years was 20%
which would decrease on a sliding scale as the claimant got older . This, of course,
depends on the specific circumstances of each case but it is a convenient starting point.’
[76] Robert J Koch in The Quantum YearBook 2024, regards the sliding scale as
half (½) per cent contingency deduction per year to retirement age which equates to
25% for a child, 20% for a youth, and 10% in the middle age. According to Koch,
deductions of 5% for past loss and 15% for future loss, r emain the so-called “normal
contingencies”.
[77] Based on these guidelines , the Plaintiffs proposed that general contingency
deductions of 5% for past loss of support and 10% for future loss of support would be
appropriate. After careful consideration I am of the view that the Plaintiffs’ proposal ,
based on Dr Swart’s expert opinion, regarding the contingencies appear to be fair and
reasonable.
Costs
[78] At the outset of the hearing the Court’s attention was drawn to the fact that the
Plaintiffs had previously provided the Defendant with a Calderbank O ffer. It was
submitted that the said offer will be disclosed to the Court, if so required, following the
judgment in this matter. The Plaintiffs indicated that argument will be presented, in the
event that the amount awarded by the Court is in excess of the Calderbank O ffer, to
motivate why the Plaintiffs would be entitled to costs on the attorney and client s cale
as from when the Calderbank Offer was served on the Defendant.
28
[79] Both parties addressed the court on the issue of costs. However, in light of the
fact that this matter has not yet reached its conclusion and in light of the fact that the
Court has not made a final determination on the issue of quantum, it is my view that
the issue of costs is to be held over for later determination. The parties will be afforded
an opportunity make final submissions on the issue of costs as the previous addresses
on costs did not deal with the amended Rule 67A considerations.
Order
[80] In the result, the following order is made:
1. The matter is adjourned sine die;
2. The Court directs the parties to instruct ARCH Actuarial Consulting CC to
calculate the loss of support in respect of the First, Second and Third
Plaintiffs on the following terms:
(a) That the Plaintiffs were dependent on the deceased’s income at the
time of his death on 31 December 2005;
(b) The Plaintiffs’ dates of birth are:
(i) First Plaintiff: 29 April 1968;
(ii) Second Plaintiff: 16 October 1995;
(iii) Third Plaintiff: 23 May 2003.
(c) The deceased’s income and probable career path would have been
as follows:
(i) The deceased would have earned R41 500 per annum as at 31
December 2005;
(ii) The deceased’s income would have progressed to a current
amount of R150 000 per annum as per the 2024 values;
29
(iii) The deceased’s income would have progressed to an income
of R218 000 per annum as per the 2024 levels at the age of 45
years;
(iv) Increases would have been coupled with earnings inflation;
(v) The deceased would have retired at the age of 65 years.
(d) The First Plaintiff’s income at the time of the deceased’s death is
determined to be R1350 per month.
(e) The Second and Third Plaintiffs ’ dependency age is determined to
be 18 years;
(f) General contingencies of 5% for past loss of support and 10% for
future loss of support are to be applied;
3. The matter is to be re-enrolled upon receipt of the actuarial report to deal
with the remaining issues on quantum and costs;
4. Costs are to stand over for later determination.
__________________________-
ANDREWS, AJ
30
APPEARANCES:
Counsel for the Applicant: Advocate E Benade
Instructed by: Lester and Associates
Counsel for the Respondent: Advocate Van J van der Schyff
Instructed by: The State Attorney
Heard on: 23 and 30 November 2023; 13 and 14 March 2024; 17 and 22 April 2024
Delivered: 07 May 2024 – This judgment was handed down electronically
by circulation to the parties’ representatives by email.