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[2024] ZAMPMBHC 33
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Ubisi v Road Accident Fund (A 40/2023) [2024] ZAMPMBHC 33 (28 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION (MAIN SEAT)
Appeal
Case No. A 40/2023
Court
a quo Case No. 310/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
28/03/2024
In
the matter between:
ATTEMPT
UBISI
Appellant
and
ROAD
ACCIDENT FUND
Respondent
JUDGMENT
This
Judgment 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 28 March 2024 at 12h00.
CORAM:
RATSHIBVUMO J, GREYLING-COETZER
et
PICK AJJ:
INTRODUCTION
[1]
The Appellant
appeals the whole of the judgment and order by Mashile J of this
Division (“Court
a
quo
”),
who dismissed the Appellant’s claim against the Respondent.
Leave to appeal was granted to the
full court by the Supreme Court of Appeal on 8 June 2023, after it
was refused by the court
a quo
.
[2]
The
Appellant’s claim was one for compensation in terms of the Road
Accident Fund Act, 56 of 1996 (“RAF Act”).
The Appellant
sought compensation in respect of future medical expenses, past and
future loss of income in an amount of R 8 608 900
and
general damages in an amount of R1 800 000.
[3]
The Respondent
did not enter appearance to defend and the matter was adjudicated
upon as a trial by default.
PROCEEDINGS
IN THE COURT
A QUO
[4]
In
support of his claim, the Appellant tendered
viva
voce
evidence by himself and sought to introduce two affidavits. The first
was that of Mr Ndlovu who, according to the Appellant transported
him
to the hospital and assisted the South African Police Services to
draw up a sketch plan. Mr Ndlovu did not witness the accident,
but
arrived at the alleged scene afterwards. The second was that of Ms
Ngobeni, the Appellant’s girlfriend at the time
(Ms
Ngobeni),
who
was in his company shortly before the alleged collision. In respect
of quantum the Appellant relied on the medico-legal reports
and
viva
voce
evidence of six expert witnesses.
[5]
The
Appellant’s evidence in respect of the merits was
disconcertingly brief. It engaged one A4 folio of an approximately
100-page transcribed record. He testified that on 8 February
2020 and whilst walking alongside the road, accompanying Ms Ngobeni
home, a white NP200 bakkie stopped right in front of them (“the
insured vehicle”). When a voice coming from the vehicle
asked,
“
What’s
happening here
?”
Ms. Ngobeni ran away. The Appellant started to walk back home.
Initially he was walking and then started running on a tar
road. The
insured vehicle kept following him. Notwithstanding that he picked up
the pace, the insured vehicle collided into him
and ran him down. The
Appellant lost consciousness; only to regained it in hospital. He
testified that he had since learned that
the driver of the insured
vehicle was his girlfriend’s husband.
[6]
In respect of
the quantum, the Appellant testified that he passed matric and
obtained two national diplomas in policing prior to
the accident and
was volunteering at the Mhala Police Station at the time of the
accident. He had ambitions of studying public
management but did not
pursue it, as after the accident his “
thinking
capacity was somewhat compromised
”.
[7]
The Court
a
quo
sought
clarity from the Appellant on various issues, more particularly how
the accident occurred. The necessity is evident
from the
constricted manner in which the evidence of the Appellant was lead.
In answering the Court
a
quo’s
queries the Appellant testified that the insured vehicle came at him
at the “
maximum
of the car’s speed because it was really really fast as it
approached.
”
He was intentionally run over by the insured vehicle which was the
same vehicle which caused Ms Ngobeni to run away. This
vehicle was
according to the Appellant a “
white
Corsa NP 200
”.
The driver of the insured vehicle was charged with reckless and
negligent driving and the outcome of the criminal case
was not known
to him at the time of trial before the Court
a
quo
.
[8]
According
to the Appellant he had an open wound to the right side of his head.
He had a fracture between his right ear and his right
eye and had to
undergo an operation on his eye.
[1]
[9]
The Appellant,
though his legal representative, sought to introduce the two
affidavits as evidence. The manner elected by the Appellant’s
legal representative to achieve this, set the tone for that which
then followed. The Appellant’s legal representative did
not lay
a proper foundation for the admission of the affidavits, nor did he
specifically place reliance on the rules of court or
a statutory
provision for the admission of the affidavits into evidence. Even
after being prompted thereto by the Court
a
quo,
he
did not apply in terms of the Uniform Rules more particularly Rule
38(2).
[10]
The
Appellant’s legal in an attempt to persuade the Court a
quo
that a Rule 38(2) application was not necessary or applicable,
submitted that admission of the affidavits would save time and there
being no need to call the witnesses to adduce
viva
voce
evidence as their affidavits are available.
[11]
Following what
can be described as a ‘to and fro’ engagement as to the
scope and application of Rule 38(2), the affidavits
were read onto
the record without any ruling by the Court
a
quo
in
terms of Rule 38(2) or otherwise. Pursuant thereto and after the
Court
a quo
sought clarity as to what he was to be do with the affidavits having
been read onto the record, the Appellant’s legal
representative’s
responded as follows:
“
MR
TSHAVHUNGWE:
My Lord these affidavits should be accepted as evidence in terms of
Rule 38(2) My Lord…..
…
COURT
:
You want them to be
admitted into evidence?
MR
TSHAVHUNGWE
:
That is correct My Lord.
COURT
:
Okay, they are so admitted as EXHIBIT A and B…”
[12]
Further to
this, two medical experts testified in respect of the injuries
sustained by the Appellant. The remainder of the evidence
is dealt
with later herein.
[13]
Dr Mkhonza, a
Neurosurgeon, testified that the hospital records indicated the
Appellant had a complex fracture on his zygomatic
bone, this being
the upper cheekbone just below and to the side of the eye socket. He
suffered periorbital edema, being swelling
under the eyes and soft
tissue injuries on his lumbar spine, being his lower back . No scars
as a result of lacerations or abrasions
were recorded. He
opined that it was possible that the Appellant fell forward and
fractured his face when the vehicle hit
him from behind. He further
testified that the X-rays showed “no low bone fractures”.
The Appellant’s injuries
were not unique to a motor vehicle
accident. He was informed that the injuries were as result of a motor
vehicle accident.
[14]
Dr
Molomo, a maxillofacial and oral surgeon, testified that he examined
the Appellant on 17 March 2021. He noticed scars on the
right lower
eyelid and the brow. Perusal of the hospital records indicated
swelling around the eye, and a fracture of the right
cheekbone. He
testified that the injuries were consistent with blunt trauma and not
unique to a motor vehicle accident.
[2]
,At the time of his examination the Appellant’s anatomy and
function has been restored.
[15]
In its
judgment, the Court
a
quo’s
held
that the Appellant’s legal representative improperly sought to
introduce the affidavits, the introduction was not preceded
by an
application and was therefore inadmissible and valueless. It further
found that the Appellant failed to demonstrate on a
balance of
probabilities that the insured driver was negligent and thus, the
Appellant failed to proof his claim.
ISSUES
ON APPEAL
[16]
As evident
from the record of proceedings, the pleaded case in the particulars
of claim, the presentation of the case as a whole
during the trial
and preparation of the notice of appeal, lack fluency of expression.
Although this was the catalyst to the end
result, it should not be
allowed to fuddle the true issues in this appeal.
[17]
This appeal
turns on whether the Court
a
quo
erred
in finding that the evidence sought to be introduced by affidavits
was inadmissible and whether it incorrectly found that
the Appellant
failed to prove that the Respondent was liable to compensate him.
The Court
a
quo
,
having come to this finding, it did not even consider the quantum of
the Appellant’s claim.
APPLICABLE
PRINCIPLES
The
RAF Act
[18]
Section 17 of
the RAF Act sets out when the Respondent (and its agents) would be
liable to compensate claimants.
‘”
17
.
Liability of Fund and agents
(1)
The Fund or an agent shall-
(a) subject
to this Act, in the case of a claim for compensation under this
section arising from the driving
of a motor vehicle where the
identity of the owner or the driver thereof has been
established
;
(b) subject
to any regulation made under section 26, in the case of a claim for
compensation under this section
arising from the driving of a motor
vehicle where the identity of neither the owner nor the driver
thereof has been established,
be
obliged to compensate any person
(the third party) for any loss or
damage which the third party has suffered as a result of any bodily
injury to himself or herself
or the death of or any bodily injury to
any other person,
caused by or
arising from the driving of a motor vehicle
by any person at any place within the Republic,
if
the injury or death is
due to
the negligence or other wrongful act of the
driver
or of the owner of the motor vehicle or of his or her employee in the
performance of the employee's duties as employee: Provided
that the
obligation of the Fund to compensate a third party for
non-pecuniary loss shall be
limited to compensation for a serious injury
as contemplated in subsection (1A) and shall be paid by way of a lump
sum.
(1A)(a) Assessment
of a serious injury shall be based on a prescribed method adopted
after consultation with medical service
providers and shall be
reasonable in ensuring that injuries are assessed in relation to the
circumstances of the third party.
(b) The
assessment shall be carried out by a medical practitioner registered
as such under the Health Professions Act,
1974 (
Act 56
of 1974
).
(2)
......” (own underlining)
[19]
The
underlying basis of the RAF Act is the common law principles of the
law of delict. A claimant must therefore prove all
the elements
of a delict before it can succeed with its claim in terms of the
Act.
[3]
All
five
elements of a delict must generally be present,
[4]
namely;
(a) conduct; (b) wrongfulness; (c) fault; (d) causation; and (e) harm
or loss.
[5]
[20]
Considering
the above elements through the prism of the RAF Act and its liability
to compensate a claimant, it equates to
(a) the loss resulting
from bodily injury; (b) arising from the driving of a motor vehicle;
(c) caused by the negligence or other
wrongful conduct (d) of the
insured driver.
[6]
Trial
by default
[21]
When a party
to litigation (like the Respondent in this instance) is in default of
entering appearance to defend, and a matter is
adjudicated upon by
the Court on a default basis, Rule 31(2) and Rule 39 of the Uniform
Rules of Court find application.
[22]
Rule 31(2)
provides:
‘’
(2)(a)
Whenever in an action the claim or, if there is more than one claim,
any of the claims is not for a debt or liquidated
demand and a
defendant is in default of delivery of notice of intention to defend
or of a plea, the plaintiff may set the action
down as provided in
subrule (4) for default judgment and the
court
may, after hearing evidence
,
grant judgment against the defendant or
make
such order as it deems fit.’
[7]
(own
underlining)
[23]
Rule 39
provides:
“
(1)
If, when a trial is called, the
plaintiff appears and the defendant does not appear, the
plaintiff
may
prove his claim so far as the burden of proof lies upon
him
and judgment shall be given accordingly,
in
so far as he has discharged such burden
. Provided that
where the claim is for a debt or liquidated demand, no evidence shall
be necessary unless the court otherwise orders.
…
(5)
Where the burden of
proof is on the plaintiff, he or one advocate for the plaintiff
may
briefly outline the facts intended to be proved and the plaintiff
may
then proceed to the proof
thereof.” (own underlining)
[24]
Procuring of
evidence by affidavit on trial is also dealt with in the Practice
Directives and the relevant paragraphs read:
“
Procuring
evidence for trial through affidavits
5.4
As contemplated in rule 38 (2),
evidence during trial in unliquidated or damages claim
cases shall be
procured through witnesses
who shall be examined viva voce.
5.5
Evidence procured by way of
affidavits in the unliquidated claims or damages claims may
only be
so procured
with the leave of the court
and on such terms and
conditions as the trial court may seem meet.
5.6
As contemplated in rule 39 (1),
if the defendant does not appear when a trial is called,
the
plaintiff may prove his or her unliquidated claim or debt or may
discharge the burden resting on him or her by way of viva
voce
evidence.”
[25]
The
term “trial” in the context of Rules 38 and 39 includes
applications for default judgment where evidence is led
in support of
the pleaded claim.
[8]
[26]
Rule 38(2)
provides:
“
(2)
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 or that the affidavit of
any witness be
read at the hearing, on such terms and conditions as
to it may seem meet: Provided that where it appears to the court that
any
other party reasonably requires the attendance of a witness for
cross-examination, and such witness can be produced, the evidence
of
such witness shall not be given on affidavit.” (own
underlining)
[27]
A
plaintiff is still required, even in the absence of a defendant on
trial, to adduce admissible evidence in support of his or her
pleaded
case. Although the Court in a default trials will only have one
version before it, it will not always follow that the pleaded
case
would be proven. A plaintiff seeking damages in delict, is still
required to prove the elements of a delict on a balance of
probabilities.
[9]
In its
determination as to whether the evidence supports a finding in the
plaintiff’s favor, the Court is still required
to apply the
applicable rules and principles, as it would have done in a defended
matter.
[10]
[28]
In
Mnisi
v Road Accident Fund and Seven Similar Matters
[11]
the Court in respect of Rule 38(2) held as follow:
‘
The
subrule provides a mechanism whereby the court may on application and
if sufficient reason is shown, allow that evidence be
given on
affidavit. Firstly, there must be an application to adduce evidence
by affidavit. Secondly, there must be sufficient reason
for doing so
and thirdly, the court may lay down the terms and conditions for the
evidence to be adduced. In Madibeng Local Municipality
v Public
Investment Corporation Ltd
2018 (6) SA 55
(SCA) at 25, the Supreme
Court of Appeal expressed itself over subrule 38(2):
‘
The
approach to rule 38(2) may be summarised as follows. A trial court
has a discretion to depart from the position that, in a trial,
oral
evidence is the norm. When that discretion is exercised, two
important factors will inevitably be the saving of costs and
the
saving of time, especially the time of the court in this era of
congested court rolls and stretched judicial resources. More
importantly, the exercise of the discretion will be conditioned by
whether it is appropriate and suitable in the circumstances
to allow
a deviation from the norm. That requires a consideration of the
following factors: the nature of the proceedings, the
nature of the
evidence, whether the application for evidence to be adduced by way
of affidavit is by agreement, and ultimately,
whether, in all the
circumstances, it is fair to allow evidence on affidavit.’”
[29]
The Court
a
quo
was
therefore entitled to prompt the Appellant’s legal
representative to seek admission of the affidavits in terms of Rule
38(2). Equally the Court
a
quo
was
not obliged to accept the evidence presented on the affidavits absent
an application thereto in terms of Rule 38(2).
[30]
However,
pursuant to the affidavits being read onto the record, the Court
a
quo
was
requested, to admit the affidavit as evidence in terms of Rule 38(2).
The Court
a
quo
acceded,
received the affidavits as evidence and marked them as exhibits. We
are of the view that for the court
a
quo
to
later hold that the affidavits it had earlier allowed to be read into
the record, were inadmissible was a misdirection. Having
received
them as exhibits, it was not open to it to hold otherwise in its
judgment. What remained was for it to assess the probity
of the
evidence and the weight to be attributed thereto. This misdirection
entitles us to interfere with its finding and proceed
to consider the
Respondent’s liability for the claim.
LIABILITY
OF THE RESPONDENT
[31]
The
Appellant’s pleaded case was that:
“
On
or about the 08
th
of February 2020 at or near Tintswalo, Acornhoek, Plaintiff was a
pedestrian while trying to cross the road when a White Opel Corsa
motor vehicle bearing registration numbers and letter
D[...]
(herein referred to as (sic) insured motor vehicle) driven by one
Mr.
Billy Mokgotho
(herein referred
to as (sic) insured driver) came at a high speed in (sic) a gravel
road without observing pedestrians crossing
on the road and knocked
down the plaintiff.
…
The
aforesaid collision was caused by the sole and exclusive negligence
of the driver of the insured motor vehicles (sic), who was
negligent
in one or more or all of the following respects:
5.1
He failed to keep any proper look-out (sic) pedestrian more
specifically (sic)
Plaintiff;
5.2
He executed an inherently dangerous maneuver without exercising the
degree of
a skilled reasonable person required under the
circumstances;
5.3
He failed to avoid the accident by the exercising of the skill of a
reasonable
person (sic) skill he could and should have done so; and
5.4
He failed to apply the brakes of the motor vehicle either timeously
or at all,
alternatively he drove the said motor vehicles (sic) with
defective brakes.
…
As
a result of the aforesaid collision and negligent driving….”
[32]
While the
Appellant’s
viva
voce
evidence before the Court
a
quo
may
not have been aligned with the pleaded case and grounds of
negligence
he relied on, this cannot be said to be in contrast to warrant its
rejection. The case seems to shift from the negligence,
which was
pleaded, to intentional knocking down with a motor vehicle after
hearing the Appellant’s evidence. Whether negligent
or
intentional, it is beyond any doubt that such conduct was wrongful
and covered by the RAF Act for which the Respondent is liable.
[33]
Ms Ngobeni’s
affidavit on the other hand
confirms
that the Appellant was involved in a motor vehicle accident in that
he was knocked down by a motor vehicle driven by her
husband. Her
affidavit does not support the Appellant’s version, as pleaded
.
One remains unsure of whether she was in the company of her husband
(the insured driver) or her lover (the Appellant) at the time
of the
accident. The variance is unsurprising given the nature of
relationship she had with both men, which puts her in an awkward
position. After all, the Appellant’s undisputed evidence is
that he lost consciousness at that stage.
[34]
We
are mindful that a party has a duty to allege in the pleadings the
material facts upon which it relies. It is impermissible for
a
Plaintiff to plead a particular case and seek to establish a
different case at trial. It is equally not permissible for a trial
Court to have recourse to issues falling outside of the pleadings
when deciding a case.
[12]
The whole purpose of pleadings is to bring, clearly to the notice of
the Court and the parties to an action, the issues upon which
reliance is to be placed.
[13]
[35]
It
is generally accepted that a party will and should be kept strictly
to his or her pleaded case. This is however not inflexible,
provided
the circumstances justify a departure from the pleadings. This is so
as pleadings are made for the Court, not the Court
for the pleadings.
A departure from the aforesaid general position is justified provided
that the departure would not cause prejudice
or would
prevent
a full enquiry. Within those limits, the Court has a wide
discretion.
[14]
[36]
In
Du Toit obo Dikeni v Road Accident Fund
[15]
at
paragraph [43]
the
court quoted with approval the following extract from
Erasmus
Superior Court Practice
:
“
The
object of pleading is to define the issues so as to enable the other
party to know what case he has to meet. The parties are,
therefore,
limited to their pleadings: a pleader cannot be allowed to direct the
attention of the other party to one issue, and
then at the trial
attempt to canvas another. However, since pleadings are made for the
court . . . it is the duty of the court
to determine what are the
real issues between the parties and,
provided
no possible prejudice can be caused to either party, to decide the
case on these real issues
. . .
.The general principle is that the parties will be held to the issues
pleaded unless there has been a full investigation of
the matter
falling outside the pleadings. . . .” (own underline)
[37]
In the present
matter there can be no prejudice to the Respondent who elected not to
be part of the proceedings before the Court
a
quo
, and
never defended the Appellant’s claim. Given that the Appellant
was at liberty to seek an amendment to his particulars
of claim after
evidence was led and once it has become clear that the evidence was
not in line with the pleaded case, the failure
to do so cannot be
placed before the door of the Appellant himself. That insight should
have befallen the Appellant’s legal
representative, who failed
to appreciate same.
[38]
Absent any
prejudice to the defaulting Respondent and in the circumstances of
this specific case, it is justified to allow a departure
from the
pleaded case. The Appellant notwithstanding a foregoing, proved on a
balance of probabilities that he sustained injury
as a result of a
wrongful act of the insured driver. The Appellant should thus be
compensated.
EVALUATION
OF EVIDENCE
[39]
In
Principles of Evidence, Schwikkard PJ
et
al
, observed:
[16]
“‘
In
civil cases the burden of proof is discharged as a matter of
probability. The standard is often expressed as requiring proof
on a
“balance of probabilities” but that should not be
understood as requiring that the probabilities should do no
more than
favour one party in preference to the other. What is required is that
the probabilities in the case be such that, on
a preponderance, it is
probable that the particular state of affairs existed.
In
Miller v Minister of Pensions, Lord Denning expressed the civil
standard of proof as follows: “It must carry a reasonable
degree of probability but not so high as is required in a criminal
case. If the evidence is such that the tribunal can say ‘we
think it more probable than not’, the burden is discharged, but
if the probabilities are equal it is not.” Miller v
Minister of
Pensions was adopted by the Appellate Division in Ocean Accident and
Guarantee Corporation Ltd v Koch.” (footnotes
omitted
)
[40]
The
dictum in
National
Employers’ General Insurance Co Ltd v Jagers
,
[17]
although held in the context of a defended case, finds equal
application in default of the defendant. Eksteen AJP, held the
following, at 624-5:
‘…
in
any civil case, as in any criminal case, the onus can ordinarily only
be discharged by adducing credible evidence to support
the case of
the party on whom the onus rests. In a civil case the onus is
obviously not as heavy as in a criminal case, but nevertheless
where
the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only
succeed if he
satisfies the Court on a preponderance of probabilities that his
version is true and accurate and therefore acceptable,
and that the
other version advanced by the defendant is therefore false or
mistaken and falls to be rejected. In deciding whether
that evidence
is true or not, the Court will weigh up and test the plaintiff’s
allegations against the general probabilities.
The estimate of the
credibility of a witness will therefore be inextricably bound up with
a consideration of the probabilities
of the case and, if the balance
of probabilities favours the plaintiff, then the Court will accept
his version as being probably
true. ..”
[41]
It
was held in
S
v Sauls and Others
[18]
that there is no rule-of-thumb test or formula to apply when it comes
to the consideration of the credibility of a single witness.
The
trial court should weigh the evidence of the single witness and
should consider its merits and demerits and having done so,
should
decide whether it is satisfied that the truth has been told despite
shortcomings or defects or contradictions in the evidence.
[42]
The
Appellant’s
viva
voce
evidence and the expert evidence of Drs. Mkhonza and Molomo proves
that
the Appellant could have sustained injuries, resultant from a motor
vehicle collision.
QUANTUM
[43]
Considering
the finding above, the quantum stands to be dealt with next. The
viva
voce
evidence of the Appellant was summarised in paragraph 6 above. The
expert evidence before the Court
a
quo
was
summarized under paragraphs 14 and 15 above.
[44]
An MRI was
done and confirms previous bruises and small bleeding on the right
temporal region of the brain. This side of the brain
is responsible
for memory. The Appellant’s Glascow coma scale (GCS) was 8/15
on being admitted, and later improved to 14/15.
The neurosurgeon
diagnosed a moderate to severe traumatic brain injury with the
Appellant. He testified that that post-concussion
symptoms can
include headaches, amnesia and personality changes and that most
patients recover within a year of a traumatic head
injury. 15% of
patients may take 3 to 4 years to recover. He made provision for
headache medication for a period of two years post-accident.
He
concluded that opposed to the normal 5% chance of developing
epilepsy, the Appellant has a 17% chance of developing epilepsy.
If
developed it would probably be treated with medication. It was opined
that no future neurosurgical intervention was anticipated.
[45]
The
maxillofacial and oral surgeon, Dr Molomo testified that he examined
the Appellant on 17 March 2021. Function has to a great
extent been
restored. He confirms scars on the right lower eyelid and the brow.
He testifies that the injuries are consistent with
blunt trauma.
There might be a future risk of infection although the risk of same
developing is not high. The plates and screws
might lead to pain in
extreme weather conditions and might have to be removed in case of
infection. He testified that the
Appellant’s possibility
for future surgical removal of the implants or prosthetic devices
cannot be completely eliminated.
[46]
Dr Modiba is a
Clinical Psychologist. She opined that the Appellant tested within
the mild intellectual disability range. She concluded
that it seemed
that this was a decline from his pre-morbid functioning. The
Appellant seems to present with moderate non-verbal
short term memory
deficit, moderate planning and organizational deficit, mild verbal
short term and working memory deficit, mild
attention deficit, mild
learning ability deficit, mild anxiety and mild trauma.
[47]
Ms Sebaku, an
Occupational therapist, concluded that the Appellant’s
residual physical aptitude within the mid-range
of medium work
demands. She reports that his cognitive and emotional fallouts are
sufficient to impose on his scholastic aptitude
and his productivity
in an open labour market. It translates into a reduction of his
competitiveness in the open labour market
.
[48]
Ms
Baloyi, an industrial psychologist opined that the Appellant’s
occupational functioning had been compromised. His post
morbid
employment prospects are precarious as his career choices had been
truncated and he may suffer productivity and efficiency
challenges in
the workplace. She concluded that the Appellant is a poor match for
his desired employment. She opined that the Appellant,
pre-accident,
had the ability to progress to the status of a colonel in the police
force at the age of 45 as she assumed he would
be promoted every five
years. To a question by the Court, Ms. Baloyi replied that the
intervals for promotion are the general guideline
and were not
verified with the police service.
[19]
[49]
An actuarial
report compiled by Mr Choi was relied on by the Appellant. Mr Choi
testified that in compiling the report he relied
on the information
per the Industrial Psychologist’s report dated 30 November
2020. More specifically, his report was based
on the Appellant being
unable to secure employment and that the Appellant would remain
unemployed in the future. Mr Choi opined
that various assumptions had
to be made as the available information left room for interpretation.
The report reflects that the
Capital Value of the Loss of earnings,
before contingencies amounted to Past: R 278,200.00 and Future:
R 9,229,900.00. Totaling
R 9,508,100.00.
Damages
[50]
The
object of the allotment of damages is to place the Appellant in the
same position (or as close thereto as possible) as he would
have
been, but for the accident.
[20]
The award of damages falls squarely within the Court’s
discretion,
[21]
Court hears
the relevant evidence and considers the object and effectiveness of
the compensation, the principles of fairness and
conservatism and
previous awards as set out in the precedents.
[51]
Damages are
generally dealt with under various heads. So too, a distinction is
made between pecuniary and non-pecuniary losses in
the RAF Act.
Non-pecuniary
damages : General damages
[52]
Section
17(1)(b) thereof reads: ‘……
Provided
that the obligation of the Fund to compensate third parties for
non-pecuniary loss shall be limited to compensation for
a serious
injury…’
In
terms of section 17(1A) of the Act, seriousness shall be assessed by
a registered medical practitioner.
[53]
Regulation
3(1)(b)(ii) and (iii) states what shall be considered as a serious
injury for the purposes of compensation. Where the
WPI (Whole Person
Impairment) is less than 30%, a serious injury will also include (i)
a serious long-term loss of a bodily function,
(ii) permanent serious
disfigurement; (iii) severe long-term mental or severe long-term
behavioral disturbances and (iv) the loss
of a fetus, may also be
qualified by using the AMA guides.
[54]
There
was no indication as to whether the Respondent considered the
Appellant’s RAF4 and found the sustained injuries
to be
serious enough to warrant the payment of general damages
[22]
.
Once the Respondent RAF 4 Form was submitted, the Respondent should
have reacted thereto within a reasonable time. Regulation
3(3)(d),
3(3)(e), 3(4), 3(5) and 3(8) to 3(8) to 3(13) set out the procedure
to be followed should the Respondent reject a claimant’s
injuries as serious. In terms of the Regulation, the claimant would
be referred to further medical investigations on the Respondent’s
expense. On the Respondent again rejecting the injuries
as serious, the appropriate mechanism would be to engage the
appeal
tribunal at the Health Professionals Council of South Africa (“the
HPCSA”). Should the Respondent fail to make
a decision the
Appellant stands to compel same.
[23]
[55]
Without a finding to the effect that the Appellant’s injuries
are considered to be serious by
the Respondent, this Court has no
jurisdiction to make an assessment of the Appellant’s injuries
or an allocation in general
damages. As was held by the Supreme Court
of Appeal in Road Accident Fund v
Duma
and
three related cases
[24]
‘
[18]
… the High Court’s judgments … seem to set out
from the premise that it is ultimately for the Court to
decide
whether the plaintiff’s injury was ‘serious’ so as
to satisfy the threshold requirement for an award in
general damages.
Proceeding from that premise, these decisions assume that if the Fund
should fail to properly and timeously reject
an assertion to that
effect by a third party, the rejection can be ignored. If the medical
evidence before the Court then shows,
on balance, the plaintiff was
indeed seriously injured, the Court can proceed to decide the issue
of general damages.
[19]
That approach, I believe, is fundamentally flawed. In accordance with
the model that the legislature chose to adopt, the decision
whether
or not the injury of a third party is serious enough to meet the
threshold requirement for an award of general damages
was conferred
on the Fund and not on the Court….”
[56]
In the result this court does not have the jurisdiction to award any
general damages to the Appellant
until the legislature prerequisite
as dealt with above has been complied with.
Loss
of Earnings
[57]
Future loss of earnings is the difference between what the Appellant
could potentially have earned
before the damaging causing event, and
what he will earn now that the damage causing event has taken place.
Past loss of earnings
on the other hand, represents the income the
Appellant lost from date of accident to date of judgment. The
difference between the
two represents the Appellant’s actual
loss of income. The Court is assisted by the actuarial calculations
to determine the
monetary value to be awarded in respect of the loss
of earnings or earning capacity. As the whole exercise of determining
same
is in essence speculative in nature and devoid of any certainty,
contingencies are applied by the Court to align the actuarial
calculation with the circumstances of the case and life as it happens
in general.
[58]
The application of contingencies falls within the Court’s
discretion. It was held in
Southern
Insurance Association Ltd v Bailey NO:
[25]
‘
Where
the method of actuarial compensation is adopted in assessing damages
for loss of earning capacity, it does not mean that the
trial judge
is ‘tied down by inexorable actuarial calculations.’ He
has ‘a large discretion to award what he
considers right’.
One of the elements in exercising that discretion is the making of a
discount for ’contingencies’
or differently put the
‘vicissitudes of life’. These include such matters as the
possibility that the plaintiff may
in the result have less than a
‘normal’ expectation of life; and that he may experience
periods of unemployment by
reason of incapacity due to illness or
accident, or to labour unrest or general economic conditions. The
amount of any discount
may vary, depending upon the circumstances of
the case.’
[59]
Expert reports and expert evidence are mechanisms utilised to come to
the assistance of the Court in
making its determination. The expert
reports and evidence presented to the Court a
quo
were not as
clear and without error as one would have hoped. Brief examples
include the report by the Maxillofacial and Oral Surgeon,
recorded
the Appellant’s age and date of accident wrong, held under the
heading summary and recommendations that the claimant
alleged he was
involved in a pedestrian vehicle accident, reported loss of
consciousness, was transferred from one hospital to
another and
sustained orbital rim fracture which were operated on. The former is
plainly non- sensical. The report by the Occupational
Therapist hold
that the Appellant will require a smart phone, smoke detectors, large
print calendar and self-lock with no indication
why these are to be
regarded as required. The report by the Industrial Psychologist fails
to deal with the age at which the Appellant
started his formal
schooling, the fact that he was progresses year after year and the
impact this has on the pre-morbid capacity
of the Appellant. The
Industrial Psychologist deferred the Appellants residual intellectual
capacity to an Educational Psychologist,
yet no evidence of an
Educational Psychologist was placed before the Court a quo. Be that
as it may, same does not make the expert
reports valueless, but does
diminish their reliability. All the expert reports are older than 2
years, which is normally the period
for which they are regarded to be
current or accurate. Their diminished value can adequately be
addresses by this Court through
application of contingencies.
[60]
Holistically considered, the following appears relevant for the
purpose of the just contingency deduction.
The Appellant commenced
with grade 1 in 2003 at age 9 years. There is no indication that he
passed each grade since then. The report
of the Industrial
Phycologist records he ‘progressed’ each year and failed
grade 10,11 and 12. He was again progressed
to grade 10 and 11 and
only passed grade 12 the second time around. The reason for his
progressing might be due to his age,
but there is no clarity in this
respect
.
He obtained his matric qualification during
2015 with a “D” symbol at the age of 21 years. He
completed a two-day practical
training course in management and
handling of crime scenes and defensive restraining techniques in
2016. In 2017, he obtained a
National Certificate: Resolving Crime
being a NQF 5. In 2018, he obtained a National Diploma: Policing
being a NQF 6.
[61]
At the time of the accident in 2020 the Appellant was unemployed. He
had thus not secured employment
at the age of 26. He had limited
career experience other than contract work as a waiter. Six months
after the accident, in his
injured state, he started volunteering,
for the South African Police Services, doing admin work and he
remained so volunteering
at the time of the various expert
assessments.
[62]
The Industrial Phycologist projected that the Appellant would, in his
uninjured state, have secured
employment as a Constable during
2020/2021. He would have progresses at a 5-year interval from
Constable to, Sergeant, to Warrant
Officer, to Captain, to Lieutenant
Colonel and finally to Colonel. The Industrial Psychologist did not
consider the requirement
that the Appellant had to successfully
complete a training course with the South African Police Force. The
Industrial Phycologist
suggests that he will be a mismatch to his
desired career path and testified that he will be a “undesirable”
employee
in the open labour market. No conclusion was reached that he
was unemployable. He was found by the Occupational Therapist to be
able to attend to a mid-range to medium range of work demand.
This was however not postulated on by the Industrial
Phycologist. The result was that no provision was included for any
future earnings post-morbid.
[63]
The calculation of future loss of earnings will generally bear a
larger contingency deduction where
the facts the actuary depended on
at the time were farfetched or simply incorrect. The role of the
industrial psychologist in providing
accurate information to the
actuary cannot be emphasised enough. It was held in
MT
v Road Accident Fund; HM v Road Accident Fund:
[26]
‘
[50]
The report of the industrial psychologist is pivotal to the actuarial
calculations. This is because the actuarial calculation
must be
performed on an accepted scenario as to income, employment,
employment prospects, education, training, experience and other
factors which allow for an assessment of the likely career path pre-
and post-the injuries.
[51]
It thus stands to reason that, if the base scenarios adopted by the
actuary are fallacious, the actuarial calculation
is of no value to a
court or to the RAF officials engaged in negotiating a settlement.
’
[64]
A contingency of 40% was applied where it was found in
Schmidt
v Road Accident Fund
[27]
that the Plaintiff still had the ability to work, rather than being
completely unemployable as suggested. In
Gwiba
v Road Accident Fund
[28]
a contingency of 50% was applied where the Plaintiff had an
inconsistent employment record and the company where she worked at
the time of the accident, closed a few months thereafter.
[65]
Considering the above factors in combination, the diminished value of
the expert reports relied on,
the Appellants age, assumptions relied
on by the Actuary and unemployment rate generally, a contingency
deduction of 60 % is fair
and reasonable in respect of both past and
future loss of earnings.
[66]
The Appellant’s loss of earnings were calculated on the
following basis:
Total
Loss of earnings as calculated by Actuary
R9 508 100
Less
60% Contingency deduction
R5 704 860
Actual
Future Loss of Earnings
R3 803 240
Future
Medical Expenses
[67]
All the experts confirm that provision be made for analgesics to
treat the Appellant’s headaches.
An Order should be made to
compel the Respondent to bear the costs of the Appellant’s
future medical expenses.
CONCLUSION
[68]
For the reasons set out above, the appeal has to succeed. That said
the appeal could potentially been avoided had
more care and attention
been given to drafting of the pleadings, the approach adopted by the
Appellant’s legal representative
in presenting the evidence and
focused instruction to the experts in preparing their reports.
ORDER
The
following order is proposed:
1.
The Appeal is upheld and the Appellant is entitled to 100% of his
proven damages.
2.
The determination of general damages is postponed pending compliance
with 2.1 below:
2.1
The Appellant is ordered to serve the RAF 4 on the Respondent and
re-enroll the matter of general damages once the seriousness
of the
injuries has been determined either by the respondent or the Health
Professions Council of South Africa.
3.
The Respondent is ordered to compensate the Appellant’s in
respect of loss of earnings
in an amount of R3,803,240.00
4.
The Respondent is to provide the Appellant with a Section 17(4)(a)
undertaking;
5.
The Respondent is ordered to pay the Appellant’s legal costs on
a party and party scale,
as agreed or taxed, limited to the
discretion of the taxing master. Such costs shall include the costs
associated with the transport
of the Appellant, consultations,
reports, reservation and fees associated with the testimonies
in the Court
a quo
of Dr Mkhonza, The Neurosurgeon; Dr Molomo,
the Maxillofacial and Oral Surgeon; Dr Modiba, the Clinical
Psychologist; Ms. Sebapu,
the Occupational Therapist; Ms. Baloyi, the
Industrial Psychologist, and Mr. Choi, the Actuary.
6.
All amounts payable in terms hereof shall bear interest at 11, 75%,
should payments not be made
within 120 days from date of Order.
7.
The Appellant is ordered to serve a copy of this judgment upon the
Respondent at its head office
as well as provincial office within 7
days from date of judgment.
TV
RATSHIBVUMO
Judge
of the High Court of South Africa
Mpumalanga
Division, Mbombela Main Seat
D
GREYLING-COETZER
Acting
Judge of the High Court of South Africa
Mpumalanga
Division, Mbombela Main Seat
D
PICK
Acting
Judge of the High Court of South Africa
Mpumalanga
Division, Mbombela Main Seat
Date
of hearing: 24 November
2023
Date
of Judgment: 28 March 2024
Appearance
for the Appellant:
Mr.
Tshavhungwe
Instructed
by Ngomana & Associates Attorneys
Mbombela,
Mpumalanga
File
Ref: Ms. Ngomana/M311/NST/MP
E-mail:
mvanst1@ngomana-attorneys.co.za
[1]
Page 304 of
the Record
[2]
Page 333 of the Record
[3]
Septoo
obo Septoo and Another v Road Accident Fund
(058/2017)
[2017] ZASCA 164
(29 November 2017)
[4]
Law
Society of South Africa and Others v Minister for Transport and
Another
2011 (1) SA 400
(CC) par [25]
[5]
Neethling
and Potgieter
Law
of Delict
4, See also
MTO
Forestry (Pty) Ltd v Swart NO
2017
(5) SA 76
(SCA) at par [12]
[6]
Mnisi
v Road Collision Fund and Seven Similar Matters
(1823/19; 2538/18; 315/20; 208/20;4082/19;4423/19;2382/19;4067/19)
[2022] ZAMPMBHC 23 (1 April 2022), par [17]
[7]
See
Practice Directives for this Division where Paragraph 5.3
it
provides, “[a}s
contemplated
in rule 31 (2) (a,) there
shall
be no default judgment
in any claim which is not for a debt or liquidated demand like
damages claim matters
without
hearing evidence
and only after the court shall have heard evidence, will the court
consider whether to grant default judgment or not.
5.3.1
Hearing of evidence shall mean tendering of evidence viva voce on
all relevant and unresolved factual basis of the case
.
5.3.2
Failure to adduce evidence as provided in the rules may lead to
dismissal of the action or to absolution from the instance”
[8]
Saunders
v Butt
1906 EDC 17
[9]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A) at 548 A
[10]
Siffman
v Kriel
1909 TS 538
[11]
Mnisi
v Road Accident Fund and Seven Similar Matters
(1823/19; 2538/18; 315/20;208/20; 4082/19; 4423/19; 2382/19;
4067/19) [2022] ZAMPMBHC 23 (1 April 2022) at par 52
[12]
Minister
of Safety and Security v Slabbert
2
010
(2) ALL SA 474
(SCA) par [11]
[13]
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA
94 (A) 107C-H
[14]
Robinson
v Randfontein Estates GM Co Ltd
1925
AD 173
at 198
[15]
2016
(1) SA 367
(FB)
[16]
paragraph 32 7
Civil Standard of Proof, page 628
[17]
National
Employers’ General Insurance Co Ltd v Jagers
[1984] 4 All SA 622 (E)
[18]
1981 (3) SA 172
(A) at 180 E-F
[19]
Pages 347 to 349 of
the Record
[20]
Dippenaar
v Shield Ins Co Ltd
1979 (2) SA 904
(A) at 917
[21]
De
Jongh v Du Pisanie
2005 (5) SA 457 (SCA)
[22]
Regulation 3(3)(c)
and 3(3)(d) to the Act
[23]
Makuapane
v Road Accident Fund
(9077/2022) [2023] ZAGPPHC 15 (19 January 2023)
[24]
2013 (6) SA 9 (SCA)
[25]
Southern
Insurance Association v Bailey
1984 (1) SA 98
(A) at 116G to117A
[26]
MT
v Road Accident Fund; HM v Road Accident Fund
(37986/2018)[2020] ZAGPJHC 286;
[2021] 1 All SA 285
(GJ);
2021 (2)
SA 618
(GJ) (16 November 2020)
[27]
Schmidt
v Road Accident Fund
(4835/05)
[2006] ZAGPHC 64
;
[2007] 2 All SA 338
(W) (23 June 2006)
[28]
Gwiba
v Road Accident Fund
(6468/2017)
[2023] ZAFSHC 58
(3 March 2023)