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[2024] ZALMPPHC 42
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Mahadulula and Another v MEC for Education Limpopo Province (HCAA05/2023) [2024] ZALMPPHC 42 (3 May 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO:HCAA0S/2023
In
the matter between:
ZWIVHUYA
SONIA
MAHADULULA FIRST
APPELLANT
ZWAVHUDI
CLEMENT MAHADULULA SECOND
APPELLANT
and
MEC
FOR
EDUCATION
,
LIMPOPO
PROVINCE RESPONDENT
JUDGMENT
NAUDE-ODENDAAL
J:
[1]
This
is an appeal and
cross-appeal
against
certain
portions of
the order granted by Semenya DJP on the 19
th
of
August
2022.
The
appeal
is
with
leave
from
the
court
a
quo
,
granted on
17 January 2023.
[2]
Before
dealing with
the
appeal
,
it
needs
to be stated
that at
the
time
of
hearing of the appeal, the
Appellants
failed
to
file
a
Power
of Attorney.
It is
however
clear that the Appellants
were
represented
throughout the
trial in
the
court a
quo
by S
.
O.
Ravele
attorneys.
Both the
Appellants'
legal
representative
,
as well as the
Respondent's legal representatives
requested
this
court
to condone
the
failure
to
file
the
Power
of
Attorney
and proceed to
hear the appeal.
Having
considered the history
of
the matter and
in light
thereof that
there was
no
objection
that
the appeal
proceed and
this
court
condoning
the
failure to file a power
of
attorney,
this
court proceeded to
hear
the appeal as
it
deemed
it
in
the
interest of
justice
that
this
matter
be
brought to finality
considering
that
the
incident took place
already
in 2015
and
summons was
already issued in
2016
.
[3]
The
relevant
portions
of the order granted
in
the
application
for
Leave to
Appeal is as
follows only:-
(iii)
The
Second and Third Applicants/Plaintiffs' application for leave to
appeal is granted
;
(iv)
The
cross
-
appeal
in
respect
of
the
award
on
future
medical
expenses
is
granted
;
(v)
Costs
to be
costs
in
the appeal
."
[4]
The
facts
are
briefly that Mrs. Azwindini Angelina Mahudulula
(the
1
st
Plaintiff in the court
a
quo)
was
the
mother
of the deceased.
Th
e
deceased
tragically
passed away by
drowning in a swimming pool at her school at Mopani Intermediate
School on 25 October
2015.
The two
Appellants
are
twins
.
They
were
the deceased's
siblings and
attended
the
same school
and boarding
school
as
the
deceased
on
the
date
of
the
incident.
[5]
The
Respondent (Defendant
in
the court a
quo) conceded 100%
l
iability
for the
First
Plaintiff
in
the
court
a
quo,
as
well
as
the
Appellants'
proven
or
agreed
damages. The
court a
quo
therefore
only had to
determine the
quantum
of
damages.
[6]
The
court
a
quo
made
the following order on 19
August
2022:
"
ln
the
result
the following
order
is
made
:
-
1.
The
defendant
is ordered
to
pay the
plaintiffs the following amounts in
respect
of
general damages:
1.1
Angelinah
Azwindini Mahadulula:
R350
000.00;
1.2
Zwinvhuya
Sonia Mahadulula:
R400
000.00;
1.3
Zwavhudi
Clement Mhadulula:
R400
000
.
00.
2.
The
defendant
is
ordered
to pay the first plaintiff an amount of
R91200.00
in respect off uneral costs;
3.
The
defendant is ordered to pay the plaintiffs the following amounts in
respect of
future
medical
expenses
:
3.1
Angelina
Azwindini Mahadulula
:
For
Ms Sebapu (Occupational
Therapist)
R21 158
For
Ms Sivhabu
(Occupational
Therapist) R19
586
3.2
Zwavhudi
Clement
Mahadulula:
Ms
Sebapu
:
1.
Occupational
therapy R9088
2.
Psycho
emotional
group (initial)
R47
258
3.
Psycho
emotional
(subsequent)
R11
814
4.
Family
counseling
R9088
TOTAL:
R77
248
Ms.
Sivhabu:
(Occupational
therapist) R19
503
3.3
Zwivhuya
Sonia
Mahudulula:
Ms
Sebapu
(Occupational Therapist)
1.
Occupational
therapy R19395
2.
Vocational
guidance R8816
3.
Work
visits
(allowing
for
3
visits) R2645
4.
Occupational
Therapist travel cost for work visits
(allowing
3
hours)
R1818
TOTAL
R32674
Ms.
Sivhabu R19503
1.
Occupational
Therapy
4.
It
is ordered that the initial amount paid to the plaintiffs
in
respect
of general damages and
funeral
costs
should be deducted from the amount to be paid
in
respect
of this order;
5.
The
plaintiffs'
claim
for
loss
of
earning is
dismissed
.
6.
The
defendant is ordered to pay the plaintiffs
'
costs
."
[7]
The
court a
quo,
in
granting the
app
l
ication
for leave to appeal conceded that
the
award
was
erroneously granted
in
terms of
the
recommendations
of
the
two
occupational
therapists appointed by both parties instead of granting the order on
the basis
of
the opinion of
one of the experts.
This amounted
to a double award. The Appellant also conceded that this was a patent
error and that
the
appeal
in
this
regard should
be
upheld
.
[8]
The
Respondent submitted that the future occupationa
l
therapy
expenses
recommended
by Ms. Sebapu
should
be
set aside, which are as follows:-
(i)
R21
158.00 in respect of the 1
st
Plaintiff;
(ii)
R19
395.00 in
respect
of the 1
st
Appellant;
and
(iii)
R9088
in
respect
of
the 2
nd
Appellant.
[9]
The
Appellants legal representative submitted that the
1
s
t
Plaintiff and
1
st
and
2
n
d
Appellants
are
willing
to
abandon
the
amounts
of
R19586.00
in
respect
of
Ms.
Mahadulula,
the amount of R19395.00 in respect of the 1s
t
Appellant and
the amount of
R9088
in respect of
the 2
nd
Appellant.
[10]
I
do not agree
with the Appellants'
nor the
Respondent's submission in this regard. It is clear from the amounts
chosen by the Appellants' to be abandoned and the amounts
chosen by
the Respondent to be set aside that each party nit picked the amounts
which
are
more
favourable for the irrespective parties
instead
of
considering the practicality and effect of the services of the
respective Occupational
Therapists
they chose to
abandon or apply to be set aside.
[11]
In
my view
all
t
h
e
Occupational
therapy
expenses
fo
r
Ms Sivhabu
sho
u
ld
rather
be set aside
as certain awards were made for certain treatments which fall under
Ms
.
Sebapu
and for which expenses no provision was made under Ms
.
Sivhabu.
Therefore
,
it
would be practical and sensib
l
e
to rather set aside the Occupational therapy expenses unde
r
Ms
.
S
i
vhabu
as follows:-
(i)
In
respect of the 1
s
t
Plaintiff
R19586
(ii)
In
respect of the 1
st
Appe
l
lant
R19503
(iii)
In
respect of the 2
nd
Appellant
R19503
TOTAL:
R58
592
[12]
This
court now turns to deal with the appeal by the Appellants'
against order
5 of the judgment
and
order
delivered
on
19
August
2022
by
the
court
a
quo.
The
Appellants
'
submitted that
the question to be answered by th
i
s
court is whether the Appellants proved that the reduction in
their income
earning
capacity
resulted in actual loss of income.
According to
the Appellants
'
the court a
quo
misdirected
itself when it found that the Appellants failed to prove a reduction
in their capacity to earn income which has the
effect
of
diminishing
their estates
and further
erred in d
i
smissing
the Appellants claim for loss of earn
i
ng
capacity.
THE
1
st
APPELLANT:
[13]
The
1
s
t
Appellant
was
17
y
e
ars
old
at
the
t
ime
of
the
acc
i
dent.
She
pass
e
d
Grade 11
,
but according
to her
testimony,
she
did not perform as well as she would have
,
had the
incident not occurred.
She used to
end around 20
th
in her class or year
group at the school, but after the incident she ended around 50
th
in
her
grade.
She
testified that
she
wanted
to become
an auditor.
She attained
her Higher
Certificate at
the end of her Grade 12, but
went
back
during
the year
2017 to
improve
her
results.
In 2017 she
passed Grade 12 with a Bachelor Certificate after she
received
treatment to
assist her to concentrate.
[14]
After
passing Grade 12, the 1s
t
Appellant enrolled
for
a
Higher
Certificate in music at the University of Venda.
She managed to
complete her Higher Certificate in music after two years.
She was
admitted
to
study a
BA
degree at
the
University.
According to
her
she
will
complete
her
studies.
[15]
The
Educational Psychologist's view in respect of the 1
st
Appellant is that, if she can attend therapy
,
she will
retain her premorbid functionality.
The
Occupational Therapists' joint view is that the 1
s
t
Appellant aspires to
follow the same occupations as before the incident and therefore,
they are of the opinion that the claimant
has suffered only a
loss
of
competitiveness in the open labour market due to the emotional
fallouts of the incident should they remain unresolved.
Overall,
functionally, she should be able to cope with the demands of working
as a teacher or any other similar occupation.
Her
employability or vocational capabilities will be directly related to
the level of education that she is able to achieve.
[16]
The
Industrial
Psychologist's
view
is
that
the
1
s
t
Appellant
will
probably
still
be
able to
complete
her
Bachelor
'
s
degree
and
qualify
as
an
Educator as
was
postulated
pre-incident.
THE
2
nd
APPELLANT:
[17]
The
2
nd
Appellant
was 17
years
old
when
the accident
occurred.
He
was
in
Grade 11 at
school. He passed Grade 11 and proceeded to
register
for
Grade 12
in
the
following
year
,
2016.
He
passed
Grade
12
and
registered
at
the
College
for
a course in
Business Management during 2017.
He passed
3
(three)
of
his
4
(four)
subjects
that he
had
registered.
He
however
discontinued
his studies
because
he
lost
interest in
the Business Management Course.
[18]
It
should
be noted
that Mrs.
Mahadulula
,
the
1
st
Plaintiff
in
the
court
a
quo
and
the
2
nd
Appellant's mother,
testified that the 2
nd
Appellant
has
always
performed
poorly academically compared to the
1
st
Appellant.
The
1
s
t
Appellant
excelled
according to
her
in
mathematics,
whereas the
2
nd
Appellant performed
very
poor
in
mathematics.
[19]
The
Educational Psychologist stated
that
it may be apt
to
consider
that he would
have had a similar academic functioning as noted post-incident.
Therefore
,
it may be apt
to reason that he
would
have had a
Grade
12
with
a Certificate
pass pre
incident.
He would have
been able to
continue
his
studies
(with Career Guidance
and
Psychotherapy) at a
FET
College with a
NQF 5.
[20]
The
Occupational
Therapist's
view
is
that
there
are
no
objective findings that
the
2
n
d
Appellant's
potential
to
be
gainfully employed has
been
curtailed.
In
add
i
tion
,
the
Industrial
Psychologist's view
is
that, despite mild
symptoms
of
depression
and with
the
appropriate interventions
,
the
2
nd
Appellant's
career will
probably
progress
as
per
the
pre-incident career postulation.
THE
LAW:
[21]
In
Rudman
v Road
Accident
Fund
2003 (2)
SA
234
(SCA)
the court
recognized
that
for the
purposes of establishing
a
claim
for loss of earning capacity
,
"
there
must be
proof that the
reduction
in
earning capacity
indeed
gives
rise
to
a
pecuniary
Joss."
[22]
In
Hendricks v
President Insurance Co Ltd ZASCA 2014 182
at
paragraph 11,
Selikowitz J
held
that:
"
The
principle
app
licable
to
the
assessment
of
damages
has
as
its
ratio
the
policy
that
the
wrongdoer
should
not
escape
liability
merely
because the
damages
he
caused
cannot
be
quantified
readily
or
accurately.
The
underlying
premise upon
which
the principle
rests
is
that
the victim
has,
in fact
,
suffered
damages and
that
the
wrongdoer
is
liable
to pay compensat
i
on
or
solatium."
[23]
It
is
trite
that the
Appellants
had
to prove
the extent
of
their loss
and
damages on
a
balance
of
probabilities. In
Mvundle
v RAF
(63500/2009)
[2012]
ZAGPPHC
57
(17
April 2012)
the following
was stated:-
"lt
is trit
e
that
the
damages
for
loss
of
income
can be
granted
where
a
person
has in
fact
suffered
or will suffer
a
true
patrimonial
loss
in that
his
or
her employment
situation
has
manifestly
changed.
The
Plaintiffs
performance
can
also
influence
his
or
her
current job
and/or
be l
i
mited
in
a
number
and
quality
of
his
or
her
c
hoices
should
he
or
she
decide
to find other
employment
."
[24]
In
order to
determine a plaintiff's claim for future loss of
income
the
court
must
compare
what the
plaintiff would have
earned
'
but
for'
the
accident with
what he or she
would likely
have
earned
after
the accident.
The future
loss
represents the difference between the pre-morbid and post-morbid
figures after the
application
of the
appropriate contingencies.
[25]
In
Southern
Insurance Association Ltd v Bailey NO 1984 (1) SA 98 AD it was said:-
"Any
enquiry into damages for loss of
earning
capacity
is to
its nature speculative
,
because
it
involves
a
prediction
as
to
the
future
without the benefit of crystal balls, soothsayer,
augers
or
oracles.
All
that
the court can do is to make
an
estimate, which
is
often
a
very rough
estimate of the present value of
a
loss
."
THE
APPLICATION OF THE LAW TO THE FACTS:
[26]
There
is no evidence to suggest that the 1s
t
and 2
nd
Appellant's psychological conditions are permanent -
any condition
present is reversible with therapeutic
intervention.
There
is
no evidence
that the Appellants
'
conditions are
not
reversible
with therapeutic intervention.
[27]
There
is no evidence to suggest that the Appellants' psychological
trauma
would
disadvantage
them
from
competing
for
employment
in
the
labour
market
in
any capacity.
There
is
further no evidence to suggest that the Appellants are not likely to
achieve
their
objectives of
following a
career
choice
in
consequence
of
the
traumatic
experience.
To the
contrary,
the evidence
shows
that the 1s
t
Appellant
has overcome
her adversities and continued with her studies.
There is
further no
evidence to suggest that the psychological sequelae of the death of
their sister, had compromised the 2
nd
Appellant's career path
.
[28]
In
addition, the
Appellants failed to prove a reduced capacity to
earn income.
The mere fact that they suffered psychological
trauma in
consequence
of
the accident does not mean they suffered a reduction in their
capacity to earn an income.
In fact, the
evidence is
to
the contrary -
both the
Appellants proceeded to pass their Grade 12, both
Appellants
enrolled
for
a
higher
education
and even
a
degree.
It
was
the 2nd
Appellant's
choice no to
proceed with his studies as he lost interest, despite the fact that
he passed
3
of his 4
subjects.
The 1
s
t
Appellant
in all
probability
has finished
her degree by now.
[29]
Since
the Appellants failed to prove their loss of earning capacity,
assessment of damages is not necessary
.
In this
court's view, the court
a
quo
was
correct
in
finding that
the 1
st
Appellant continued
to pass post-incident. She will be able to achieve her pre-incident
qualifications. The court
a
quo
further
correctly found that the 2
n
d
Appellant passed
matric post-incident and went on to pass three subjects at tertiary
level.
This
is
proof that he still has his pre
-
incident
capacity to achieve his pre-incident qualification. All he has to do
is to go through counseling to deal with his PTSD
and
his
emotions
and
go
back
t
o
school
if
he
wishes
to
do
so.
[30]
The
court
a quo
therefore
,
in our view
,
correctly
found that the Appellants
failed
to prove a
reduction
in
their
capacity
to
earn an
income which
has
the effect
of
diminishing
their estates.
In
the
result
the
Appellants' appeal against order 5 of the Court a
quo
'
s
judgment
and order stands to fail.
[31]
The
only
issue
remaining
is
the costs of
appeal. There
was
no argument
made by either party why the general
rule
tha
t
costs should
follow the event
should
not be
applicable and in our view
.
no
grounds
exist
in
the
present
matter to
deviate
from
the general
rule.
[32]
The
Respondent applied for costs of two counsel, where so employed.
There is
no
reason
not
to
grant
the cost
of
two counsel where so employed.
ORDER:
[33]
Accordingly,
this
court
therefore
makes the following
order:-
1.
The
Appellants
'
appeal
in
respect
of future
loss
of
earnings
(Order
5
of
the Court
a quo
'
s
order)
is
dismissed.
2.
The
Respondent's
cross-appeal
is
upheld
and
the
Occupational
therapy
expenses under
Ms. Sivhabu is
set
aside
,
as follows:-
(i)
In
respect of
the
1
st
Plaintiff
R19586
(ii)
In
respect of the
1
st
Appellant
R19503
(iii)
In
respect
of
the
2
nd
Appellant
R19503
TOTAL:
R58 592
3.
The
court
a
quo's
order is
substituted
with the
following
order:
"ln
the
result
the
following
order is made:-
1.
The
defendant is ordered to pay the plaintiffs the following amounts in
respect of general damages:
1.1
Angelinah
Azwindini Mahadu/ula:
R350
000.00;
1.2
Zwinvhuya
Sonia Mahadu/ula:
R400
000.00;
1.3
Zwavhudi
Clement Mhadulula:
R400
000.00.
2.
The
defendant
is ordered to pay the
first
plaintiff an
amount
of
R91200.00
in respect of funeral costs;
3.
The
defendant is ordered to pay the plaintiffs the following amounts in
respect of future medical expenses:
3.1
Angelina
Azwindini
Mahadulula:
For
Ms Sebapu (Occupational Therapist)R21 158
3.2
Zwavhudi
Clement Mahadulula:
Ms
Sebapu:
1.
Occupational
therapyR9088
2.
Psycho
emotional group (initial) R47 258
3.
Psycho
emotional (subsequent)R11
814
4.
Family
counseling R9088
TOTAL:R77
248
3.3
Zwivhuya
Sonia
Mahudulula:
Ms
Sebapu (Occupational Therapist)
1.
Occupational
therapy
R19
395
2.
Vocational
guidance
R8816
3.
Work
visits (allowing for
3
visits)
R2645
4.
Occupational
Therapist travel
cost
for
work
visits
(allowing 3
hours)
R1818
TOTAL
R32
674
4.
It
is
ordered that the initial
amount
paid to
the plaintiffs in respect of
general
damages
and
funeral
costs
should
be
deducted
from
the
amount
to
be
paid in
respect
of this
order;
5.
The
plaintiffs
'
claim
for
loss of earning is
dismissed.
6.
The
defendant
is
ordered
to pay
t
he
plaintiffs
'
costs."
4.
The
Appellants
are
ordered
,
jointly
and
severally,
the
one
to
pay
,
the
other
to be absolved
to
pay
the
Respondent's
costs
of
the appeal
and
cross-appeal on
a
scale as
between
party
and
party
,
which
costs
are to
be
taxed
on
Sca
l
e
B
of
the
Cost
Scales,
and which
costs are
to
include the
costs of
two
counsel
where
so employed.
M.
NAUDE-ODENDAAL
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE
I
AGREE:
E.M. MAKGOBA
JUDGE
OF THE HIGH COURT
,
LIMPOPO
DIVISION,
POLOKWANE
I
AGREE:
G.C. MULLER
JUDGE
OF THE HIGH COURT
,
LIMPOPO
DIVISION
,
POLOKWANE
APPEARANCES:
HEARD
ON
2
FEBRUARY
2024
JUDGMENT
DELIVERED
ON
3 MAY 2024
This
judgment
was
handed
down
electronically
by
circulation
to
the parties
'
representatives
by email. The date and time for hand-down of
the
judgment is
deemed to be
3
MAY 2024 at 10h00
FOR
THE
APPELLANTS
Mr.
S.O. Ravele
INSTRUCTED
BY
S
.
O
.
Ravele
Attorneys
C/O
Kuaho Attorneys
Polokwane
s
.
orave
l
e@
gm
ai
l
.
com
FOR
THE RESPONDENT
Adv.
M
.
S
.
Phaswane
Adv.
RT Tshikorolo
INSTRUCTED
BY
The
State Attorney: Thohoyandou
C/O
The State Attorney
:
Polowkane
phaswane@rsabar.com
RKLetsoa
l
o@justice
.
gove.za
Mk
g
opa@jus
t
ice
.
gov
.za