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2024
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[2024] ZAMPMBHC 2
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Siyenga v Road Accident Fund (2046/17) [2024] ZAMPMBHC 2 (1 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION
(MAIN SEAT)
Case no.2046/17
(1)
REPORTABLE:
(2)
OF INTEREST TO OTHER JUDGES:
(3)
REVISED.
DATE: 01/02/2024
SIGNATURE
In the matter of:
SIYENGA
MAXWELL MLUNGISI
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGEMENT
PICK, AJ
This
Judgement was handed down electronically by circulation to the
parties and/or the parties’ representatives by e-mail.
The date
and time for hand-down is deemed to be 01 February 2024 at 10h00.
INTRODUCTION:
1
This is a claim against
the Road Accident Fund. The merits in this matter were settled 90/10
in favour of the Plaintiff on 24 July
2023. The Defendant provided
the Plaintiff with an undertaking for future medical, hospital and
related expenses in terms of Section
17(4)(a) of the Road Accident
Fund Act, Act 56 of 1996 (as amended). The Plaintiff conceded that
there were no past medical expenses.
The only question to be
determined by this Court was that of general damages and loss of
earning capacity.
2
The Court granted a
Rule 38(2) Application on the day of trial, enabling the Plaintiff to
lead his Evidence on Affidavit. The Court
was requested to decide on
the papers.
FACTS OF THE MATTER:
3
The Plaintiff was a 19 year old scholar attending grade 12 when he
was run
over by an unidentified motor vehicle. The accident occurred
on 01 January 2016 at 01h30 on the main road by Powerhouse Tavern.
The Plaintiff sustained the following injuries: Fracture of mandible
(jawbone), lacerations on both cheeks, abrasions on the right
knee
and right arm, and forehead hematoma (swelling) and painful teeth.
(P73, P108 of the Bundle)
4
The Plaintiff was transported to Kanyamanzane Clinic where he was
stabilised
and then transferred to Rob Ferreira Hospital. (P228, P282
of the Bundle) On admission his GCS was 15/15. (P210 of the Bundle)
The lacerations and abrasions were treated on the 01
st
of
January 2016 and the fracture was treated by open reduction and
internal fixation of the mandible on 12 January 2016 when two
teeth
were extracted as well. The Plaintiff was admitted to hospital on the
01
st
and discharged on the 13
th
of January
2016. (P108 of the Bundle). The matter was reported to the Pienaar
branch of the SAPS CAS No. 202/01/2016 on 18 January
2016. (P70-P79
of the Bundle).
5
The Plaintiff went on to finish grade 12 in 2016. In 2017 he studied
at
the Agricultural College but did not write the final exam due to
strikes at the college and financial constraints. In 2018 he worked
as a gardener for 4 months. In 2019 he was unemployed. In 2020 he
worked as a general worker at Leanne-Ann and in 2021 at PAR
Electrical Engineering Company. (P209 of the Bundle) In May 2022 the
Plaintiff started working at Monday Tavern. (P285 of the Bundle)
6
The matter was referred to the Defendant by submission of a RAF1 form
and
the Plaintiff’s accompanying Section 19F Affidavit on 24
May 2017. (P100-P111; P91 of the Bundle). In its Summons dated 27
September 2017, the Plaintiff claims R30 000, 00 for past
medical expenditure, R 170 000 for past loss of earnings, R
200 000 for future loss of earnings and R350 000 for general
damages, costs of the suit and interest. The Plaintiff also claims
an
Undertaking in terms of Section 17(4) (a) for future medical
expenses. (P6 of the Bundle). The Summons was never amended to
make
provision for the higher claim amount as reflected in the Actuarial
Reports.
7
The Defendant seeks either Absolution of the Instance, or a lessor
award
as provided for in the Actuarial Reports.
RULE 38(2) EVIDENCE
ADDUCED TO COURT:
8
In substantiation of its case, the Plaintiff relies on no less than 9
Experts.
(P138 – P301 of the Court Bundle). I sorted the
Experts in accordance with the dates of their assessing the
Plaintiff.
8.1
The Occupational Therapist, Mr. Dlamini practices in Nelspruit. He
assessed the Plaintiff on 10
September 2018 and brought out his first
Report on 08 March 2020. (P226 – P 247 of the Bundle)
8.2
Dr Tlholoe, the Maxillofacial & Oral Surgeon, who practices in
Pretoria. The date of assessment
and Report coincides as 16 May 2019.
(P56 – P62 of the Bundle)
8.3
The Educational Psychologist, Mr Mthimkulu assessed the Plaintiff on
18 June 2021, her Report followed
on 25 June 2021. She practices in
Pretoria. (P204 – P223 of the Bundle)
8.4
Dr Ajay Maharaj, a Specialist Neurosurgeon, who has his address in
Midrand.
The consultation
took place in Arcadia, Pretoria on 07 April 2022. (P158-P183 of the
Bundle)
8.5
A neuropsychological assessment by Clinical Psychologist, Ms Mlungisi
who has her practicing
address in Pretoria and assesses the Plaintiff
on 07 April 2022. The place of the interview is not disclosed. Dr
Mlungisi brought
out a Report on 10 April 2022. (P140-P155 of the
Bundle)
8.6
An Addendum to the original Report dated 08 March 2020 was brought
out by the Occupational
Therapist, Mr Dlamini. The date of assessment
on the Report still reads 10 September 2018. The Report is dated 28
April 2022.
(
P 250 – P274 of the Bundle). The
Occupational therapist in this Report simply added the other Experts’
Reports to her
collateral and amended her Report accordingly.
8.7
An Addendum to the original Industrial Psychologist’s Report
was brought out by Dr
Kheswa on 20 May 2022. The date of Assessment
on the Report reads 10 September 2018. (P277 – P293 of the
Bundle) The original
Report was not made available to Court.
8.8
Two Actuarial Reports by Munro Actuaries from Cape Town was filed on
25 May 2022 and 17
October 2023 respectively. (P296 – P301 of
the Bundle; Annexure “A” to “BM 13” of the
Plaintiff’s
Practice Note dated 17 October 2023.)
9
Rule 38(2) reads as follows: “
The witnesses at the trial of
any action shall be orally examined, but a court may at any time, for
sufficient reason, order that
all or any of the evidence to be
adduced at any trial be given on affidavit…”
It is trite that an Expert Witness Report may not be accepted into
evidence without an accompanying Affidavit, verifying
at least the
identity and qualifications of the Expert, the identity of the
Plaintiff and the purpose of the Report.
10
The Affidavits to all the Plaintiff’s Expert Reports were added
as Annexures to his
Counsel’s Practice Note, filed on 18
October 2023.
11
The Affidavit of the Orthopaedic Surgeon, Dr Kumbirai forms Annexure
“BM6”
to the Practice Notes. The Affidavit is a copy. It
does not state where or the date it was signed by Dr Kumbirai. The
commissioning
clause reads that the Affidavit was signed before the
Commissioner of oath in Mbombela and notwithstanding the Affidavit
being
a copy, an original signature and stamp appears on the
Affidavit dated 18 October 2023.
The same trend follows
with the Affidavits by the Clinical Psychologist, Ms Muvhangu
(Annexure “BM7”); the Specialist
Neurosurgeon from
Midrand (Annexure “BM8”); the Maxillofacial and Oral
Surgeon (Annexure “BM9”); the Educational
Psychologist
(Annexure “BM10”) and the Industrial Psychologist
(Annexure “BM12”).
Annexures “BM11”
and “BM13” being the Affidavits of the Occupational
Therapist and the Actuary are copies
signed in Mbombela and Cape Town
respectively, before different Commissioners of Oath.
12
The Orthopaedic Surgeon Dr Kumbirai who practices in Pretoria
completed the RAF 4 form
on 16 May 2019. Although no further and/or
complete Report was made available to Court, the Affidavit discredits
his evidence as
well. (P56-P62)
13
The Experts’ evidence is not before Court if the Affidavits of
the Experts are
not proper. The Court is left with the RAF1 and
Section 19F Affidavit, Content of the Police Docket, and the Reports
of the Occupational
Therapist and the Actuary for consideration in
adjudicating on general damages and loss of earnings and/or earning
capacity.
14
The Occupational Therapist’s Report cannot be considered in
isolation. The Industrial
Psychologist’s Reports, at least, are
needed to establish the prospects of employability of the Plaintiff
going forward.
The impact of the Plaintiff’s injuries cannot be
established without proper evidence. The Actuarial Report is of no
use in
the absence of proper motivation.
CONCLUSION
15
In the absence of substantiating evidence, it follows that the Court
is not in a position
to adjudicate upon general damages and/or future
employability of the Plaintiff. This Court is however of the view
that dismissing
this case on the basis of the Section 38(2)
Affidavits not being proper, would not be in the interest of justice.
It is evident
that the Plaintiff sustained injuries and should at the
least be afforded an opportunity to make out his case for
compensation
as stated in Section 3 of the Road Accident Fund Act,
Act 56 of 1996, as amended.
16
In Osman Tyres and Spares CC and Another v ADT Security (Pty) Ltd
(1174/2018)
[2020] ZASCA 33
;
[2020] 3 All SA 73
(SCA) (3 April 2020),
Judge Koen, AJA held:
[23] A court must not
evaluate a plaintiff’s evidence at the absolution stage, but
must accept the evidence as true. (Atlantic
Continental Assurance Co
of SA v Vermaak
1973 (2) SA 525
at 527C-E.) Nor should a Court weigh
up different inferences, it must rather determine whether any one
inference, from a range
of possible reasonable inferences, might
favour the plaintiff. (Gandy v Makhanya
1974 (4) SA 853
(N) at
856B-C; Marine & Trade Insurance Co Ltd v Van der Schyff
1972 (1)
SA 26
(A) at 39.”
17
As stated by Harms JA in the matter of Gordon Lloyd Page &
Associates v Rivera
and Another (384/98)
[2000] ZASCA 33
;
2001 (1) SA
88
(SCA);
[2000] 4 All SA 241
(A) (31 August 2000)
“
[2]
The test for absolution to be applied by a trial court at the end of
the plaintiff’s case was formulated in Claude Neon
Lights (SA)
Ltd v Daniel
1976 (4) SA 403
(A)at 409G-H in these terms:
“…
.
when absolution from the instance is sought at the close of the
plaintiff’s case, the test to be applied is not whether
the
evidence led by plaintiff establishes that would finally be required
to be established, but whether there is evidence upon
which a Court,
applying its mind reasonable to such evidence, could or might (not
should, nor ought to) find for the plaintiff.
(Gascoyne v Paul and
Hunter,
1917 T.P.D. 170
at p 173; Ruto Flour Mills (Pty) Ltd v
Adelson (2)
1958 (4) SA 307
(T)).”
…
..
Having said this, absolution at the end of a plaintiff’s case,
in the ordinary course of events, will nevertheless be granted
sparingly
but
when the occasion arises a court should order it in the interest of
justice.”
(my emphasis)
18
The Court is satisfied that the Plaintiff at least made out a prima
facie case.
ORDER:
1
Absolution from the instance is granted.
2
No Order as to costs.
PICK, AJ
Acting Judge of the High
Court of South Africa
Mpumalanga Division,
Mbombela Main Seat
Appearance for the
Plaintiff:
Ms Banyele Mphokane
Instructed by Mphokane
Attorneys
Mbombela, Mpumalanga
Ref no. Not provided
E-mail:
mphokaneattorneys@telkomsa.net
Mmavuso@mphokane.co.za
Ngomanenokulunga12@gmail.com
Appearance for the
Respondent:
TB Mlope
The Office of The State
Advocate
Instructed by The Road
Accident Fund
Mbombela, Mpumalanga
Link no. 4145766