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2024
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[2024] ZALMPPHC 141
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Tumelo v Road Accident Fund (1436/2022) [2024] ZALMPPHC 141 (8 October 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:1436/2022
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
Signature:
Date: 08/10/2024
In the matter between:
MASIPA
TUMELO
PLAINTIFF
And
ROAD ACCIDENT
FUND.
DEFENDANT
JUDGMENT
MONENE AJ
[1]
The plaintiff instituted action proceedings
against the defendant for damages arising from a motor vehicle
accident which occurred
on 20 July 2020. The plaintiff was a
passenger in a motor vehicle at the time of the accident
[2]
The defendant did not defend this action at all
leading to the plaintiff approaching this court on default and
seeking to be heard
per cover of affidavit in terms of uniform rule
38(2).
[3]
It being so that the jurisdiction of this court is
unfortunately as per precedence hampered by the defendant’s
failure to
make an election on the seriousness of the injuries
involved
in casu
and
further noting that liability was finalized 100% in the plaintiff’s
favour per court order of M G Phatudi J(as he then
was) dated 25
November 2022, what stands to be determined before this court
the plaintiff’s loss of earnings with
general damages having to be postponed sine die.
[4]
Under cover of affidavit the plaintiff adduced the
following uncontested evidence in brief:
[4.1] Regarding the
injuries suffered by the plaintiff resulting from motor vehicle
collision, an Orthopaedic surgeon, Dr F C Baloyi
as well as the
radiographer, Dr J R Sibiya’s evidence is that the plaintiff
suffered from mid-tibial and fibula fractures
which resulted in 5%
whole body impairment. She experiences continuous leg pains arising
from those injuries.
[4.2] MAF Mashala, an
occupational therapist, testified that the plaintiff was a grade 10,
who post the accident, suffers from forgetfulness,
headaches,
left-side chest pains radiating down to the left hand and right leg
pain exacerbated by inclement weather. It was this
witness’s
further evidence that the plaintiff’s physical capacity could
meet the open labour market physical requirements
for occupations in
the labour market that fails within the full range of light type work
category. The witness further opined that
due to sympathetic
employment she may be able to work until retirement.
[4.3] Glory Manamela an
educational psychologist opined that the plaintiff suffers from
traumatic memory impairments and struggles
to concentrate when
studying. Her ceiling academic qualification which could have been a
degree but for the accident was post the
accident now only at post
matric college certificate.
[4.4] Herbert Kanengoni
an industrial psychologist agreed that pre-morbid the plaintiff was
an NQF Level 6 candidate but had post
morbid been reduced to an NQF
Level 4. This witness found the plaintiff to be compromised in her
physical capabilities and had
already suffered a delay in career
progression as her employment was delayed by the accident and its
sequelae. This witness further
testified that the plaintiff would
suffer future loss of earnings until retirement even if it be that he
had limited residual work
capacity.
[4.5] Tsebo Actuaries,
informed by the industrial psychologist’s report, postulated a
net future loss of earnings at R6 760
670.75 having factored
contingencies at 5 percent for past loss and a spread of 15 to 35
percent spread to arrive at that amount.
[5]
The approach in assessing loss of earnings can be
put no better than it was stated in
Southern
Insurance Association v Bailie v NO 1984(1) SA 98(A) at 112E-114F
where the following was stated:
“
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augururs 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 the loss...”
[6]
This court is not inclined to deviate from the
uncontested expert evidence tendered before it, more so the actuarial
computations.
To so deviate I would need something better or a
counterview or at least a reasoned view that the expert evidence led
is irrational
or otherwise not to believed for another reason. All
that is lacking in casu.
I thus cannot
fault any of the experts in casu in any manner. Furthermore, having
regard to the facts and expert opinions already
referred to above,
particularly the plaintiff’s relatively young age of 23 years
and consequent expected long life expectancy,
I am persuaded that the
15 percent and 20 percent contingencies for past and future loss of
earnings contingencies factored by
the actuaries are fair and
reasonable.
[7]
Accordingly, I am persuaded to award the plaintiff
loss of earnings in accordance with the submissions made by counsel
in the plaintiff’s
Heads of argument and viva voce before me,
where factoring in contingencies different to those of the actuarial
scientists, to
wit 15 and 25 percent, the computation settled at R6
273 911.75.
[8]
In the result, I make the following order:
[8.1] The defendant shall
pay an amount R 6 273 911.75(
SIX MILLION, TWO HUNDRED
AND
SEVENTY-THREE
THOUSAND,
NINE
HUNDRED
AND
ELEVEN
RANDS,
SEVENTY-FIVE
CENTS
ONLY
)
in
respect
of
loss
of earnings.
[8.2] The said amount
shall be paid into the infra-mentioned trust account by direct
transfer within 180 days of this court order
being delivered:
ACCOUNT HOLDER:
MACHAKA SEKWALA ATTORNEYS
BANK: FNB
ACCOUNT NUMBER: 6[...]
BRANCH CODE: 250655
BRANCH: JORRISEN
STREET
REF: SJM/RAF/0014
[8.3] The defendant shall
pay the plaintiff’s taxed or agreed to party and party costs on
a high court scale which costs shall
include the costs attendant to
obtaining expert reports and the costs of counsel on scale B
[8.4] Should the
defendant fail to pay the amount in 8.1 above within the 180 days
and/or the agreed to or taxed costs within 30
days; the plaintiff
shall be entitled to recover interest thereon on the prescribed rate
of interest from the date of allocator
to date of final payment.
[8.5] The issue of
general damages is postponed sine die.
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 10 June 2024
Judgment delivered
on
: 08 October 2024
For the
Plaintiff
: Adv. Z S Rasekgala
(Heads
prepared by Adv. Hlakudi Mpe)
:
Instructed by Machaka Sekwala Attorneys
:
Tel: - 068 110 0430
:
Email:
sekwalamachaka@gmail.com
For the
Defendant
: No appearance