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2024
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[2024] ZALMPPHC 148
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Maripa v Road Accident Fund (1893/2023) [2024] ZALMPPHC 148 (22 October 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO:1893/2023
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
Signature:
Date:
22 OCTOBER 2024
In
the matter between:
MARIPA
MALOSE PHILLIMON
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
MONENE
AJ
[1]
On 16 October 2021 the plaintiff, then a 41-year-old man, was a
passenger in a motor
vehicle it was involved in a motor vehicle
accident arising from which he, in the main sustained a left
scapula
fracture, an injury accounted for in the uncontested evidence of Dr M
N Kgoedi, the Orthopaedic surgeon.
[2]
Consequent upon the plaintiff instituting action proceedings against
the defendant
the defendant filed a plea which was prefixed by a
special plea of premature issuance of summons and unenforceability.
[3]
Earlier, that is, prior the matter was set down the plaintiff had per
consequential
effects of an order of Kganyago J dated 20 March 2024
been deemed to qualify for general damages, it being so that the
defendant
had, despite that court order calling on it to make a
determination on the seriousness of the plaintiff’s injuries
laid possum,
thus effectuating the deeming parts of the order. Hence
this matter proceeded before me on merits, general damages and loss
of
earnings with the defendant having, save for the special plea,
offered absolutely no defense to the plaintiff’s claim
characteristically
filling no expert reports and leading no evidence
to assist with the determinations to be made in this matter.
[4]
Unlike in many other matters where the defendant consistently does
not show up for
trial, in this matter Mr Mafiri came on record to
argue the point
in limine
as well as to challenge, without
counter evidence, the foundations of the expert evidence of the
plaintiff’s industrial psychologist.
I shall shortly return to
these two issues which were eloquently argued by Mr Mafiri, counsel
for the defendant.
[5]
Save for the two issues raised by Mr Mafiri the matter served before
this court in
default with the plaintiff praying that I determine
liability, general damages and loss of earnings as they arise from
the injuries
sustained in the said motor vehicle collision and their
sequelae.
[6]
To attend to the issues which lay before me for determination the
plaintiff sought
and was granted leave to prosecute his case on paper
in terms of Uniform rules 38(2). This meant that all evidence, save
for that
of the plaintiff’s industrial psychologist as disputed
by the defendant, was presented under cover of affidavit.
THE
POINT
IN LIMINE
[7]
The technical point taken by the defendant as per its plea was that
the plaintiff’s
summons was unenforceable owing to them having
been issued “prematurely”. The said prematurity as per
the plea and
address by counsel before me was that the defendant had
in terms of section 24(5) of the Road Accident Fund objected to
plaintiff’s
claim for compensation and to date that objection
had not been cured.
[8]
The factual foundations of the objection were that the cause of
action having arisen
on 16 October 2021, the plaintiff had lodged his
claim on 18 August 2023 which was objected to by the defendant on 13
September
2023.
[9]
I dismissed this point
in limine
and proceeded to hear the
matter on the merits on account of the following considerations:
9.1
It is factually incorrect to state that the plaintiff’s claim
was lodged on 13 August
2023. Emblazoned on the plaintiff’s
lodgment notice dated 19 July 2022 is the date stamp of the
defendant’s lodgment
letter with a clear date of lodgment being
26 July 2022.
9.2
In terms of
section 24(5)
of the
Road Accident Fund Act 56 of 1996
as
amended the defendant had 60 days from date of lodgment to register
an objection. The objection date of 13 September 2023 was
made more
than a year after the claim was lodged making the objection by the
defendant itself an unenforceable legal curiosity.
9.3
Furthermore, at
rule 37
conference at least as evidenced by the
pre-trial minute which
ex facie
was attended by Mr Mafiri
himself; the issue of the special plea was not reflected upon with
the defendant recording itself to
have suffered no prejudice. I would
have expected the defendant to, at the pre-trial conference, magnify
the alleged pre-maturity
of the summons as highly prejudicial and
deserving of being noted. This was not done and this, to me, suggests
an abandonment of
the special plea. However, even if I be wrong in
inferring abandonment of the special plea, it is clear that simply on
the factual
basis of when lodgment was done as against the objection
notice, the point
in limine
, is a none-starter.
9.4
Additional to all the above on this special plea is this court’s
general lack of appetite
to uphold overly technical points which tend
to be merely dilatory and circuitous stratagems in the extreme.
Clearly, the intention
of the defendant in arguing that there is
technically no summons before me is to push towards the plaintiff
having to issue new
summons to which it will then most probably plead
most prescription. This will then see the matter recycled with
technicalities
around whether the first summons interrupted
prescription or not. In the meantime, the merits are ignored and put
on the backburner
as a usually recalcitrant litigant not itself known
for strict compliance with prescripts like the defendant in casu
calls out
a plaintiff for non- compliance. Such legal gymnastics and
ringside sideshow litigation sparring are, despite often being
preferred
by legal practitioners as some form of masterful erudite
display, in my view, generally not in the interests of justice and
should
generally be discouraged. Where disputes are placed before a
court of law it is the determination of the core of those disputes
which must, where humanly possible, be prioritized and focused on and
not the unhelpful escapist kicking of the can down the road.
At any
rate I do not understand the legislature in providing for an
objection route in
section 24
of the Act to have intended to put the
Fund in the driving seat of the determination of when lodgment and
summons are deemed acceptable
or not. The Fund holds no special
position than any other litigant before court.
LIABILITY
[10]
To prove liability the plaintiff relied on his 19(f)-affidavit
incorporating the police accident
report both of which prove
conclusively that he was a passenger in one of the motor vehicles
which collied on 16 October 2021.
[11]
The defendant did not lead any evidence to counter the plaintiff’s
version. I have no reason
to doubt the uncontested evidence of the
plaintiff as to liability and accordingly accept it.
[12]
The proverbial one percent negligence needing to be proven by a
passenger plaintiff has been
proven and there being no shred of
evidence to gainsay the plaintiff’s version that he did nothing
to contribute to the causation
of the accident, I am unhesitant in
finding the defendant liable for 100 percent of the plaintiff’s
proven damages in casu.
QUANTUM
(LOSS OF EARNINGS]
[13]
According to the evidence of NM Ramuhulu, the occupational therapist,
the plaintiff who has only
a grade 11 level of education and was
builder cum carpenter cum hair dresser at the time of the accident
the sequelae of the injuries
suffered by the plaintiff render him a
struggler in regard to performing erstwhile non-problematic motor
skills such as lifting,
carrying, pushing, squatting, walking and
standing for long periods. These rendered him unfit to do the
carpentry and building
jobs and to have difficulties with the rigors
of the hair dressing or barber job given the deficiencies he suffers
post-morbid.
And whereas he used to be capable of doing medium to
very heavy jobs prior the accident, opined this expert, he can now
only do,
albeit with difficulty still, sedentary to light jobs.
[14]
Orapeleng Oscar Sechudi, the industrial psychologist, testified viva
voce before this court and
spoke to his report in sum as follows:
14.1
The plaintiff’s efficacy to perform pre-morbid jobs was
negatively affected by injuries sustained in
the accident and the
sequelae thereof.
14.2
But for the accident the plaintiff would have continued to generate
income of about R11 000.00 per month
and stood a good chance of
improving his income up to the upper quartile of semi-skilled workers
projected at R178 000.00
per year by Robert Koch in 2021.
14.3
The plaintiff’s continued generation of income post-morbid was
on a very limited scale as he can only
work, at a limited level
still, as a barber/hairdresser given the lightness of that work as
opposed to the full spectrum of his
pre-morbid capacities which
allowed him to be a builder and carpenter.
14.4
The plaintiff is, because his pre-morbid work capacity has been
diminished, no longer a fair competitor in
the open labour market.
14.5
Given the hostile economic environment of this country and given his
limited educational background it is
unrealistic to expect the
plaintiff to get sympathetic employment anywhere.
14.6 It
is more likely than not that the plaintiff may lose his tenuous
current source of income as a disabled
barber and become fully
unemployed and unemployable.
14.7
The plaintiff’s income generation capacity gloom may persist
until he reaches a retirement age at 70
years.
14.8
Owing to the injuries and their sequelae the plaintiff incurred past
loss of earnings deserving of compensation
and will also suffer
future loss of income.
[15]
As I understood the cross-examination of this witness by Mr Mafiri on
behalf of the defendant,
the high watermark of contesting his version
was that there having been no collateral information to support the
plaintiff’s
contention that he, pre-morbid earned R11 000.00 a
month from his barber-carpenter-builder jobs, the industrial
psychologist should
not have relied simply on the plaintiff’s
say so because such information from the plaintiff was unreliable. To
this the
industrial psychologist replied that while he could have
found good use for collateral information regarding the plaintiff’s
pre-accident earnings, there was nothing wrong in relying only on the
plaintiff’s report about how much he made per month
as the
plaintiff remains the primary source of information.
[16]
When counsel for the defendant queried the industrial psychologist on
how the plaintiff’s
reported earnings compared to recognized
scales used to determine general income levels, the clearly
competent, well-read, assured
and persuasive Mr Orapeleng Oscar
Sechudi replied that he had used the 2021 scale and had found the
plaintiff’s stated monthly
income to, according to that scale,
be comparable to those of semi-skilled labourers of the plaintiff’s
ilk, remarking further
that; “You may be unskilled but earn
like a semi-skilled or even a skilled worker.” All this rang
true in this court’s
ear as it resonates with its knowledge
about many a semi-skilled childhood and school friends of this court
who smile wider than
this court on pay day.
[17]
On being challenged by counsel for the defendant that the retirement
age
in casu
ought to have been postulated at 65 years of age,
the irrepressible Sechudi countered that it is standard to postulate
the retirement
age of self-employed people at 70 years as opposed to
the 65 years of employed people. Asked whether at the time of the
accident
the plaintiff had reached his career ceiling or not this
expert witness replied that career ceilings are for employed people
only
and that in the context of the self- employed like the plaintiff
there is no career ceiling.
[18]
This court was most impressed by the industrial psychologist’s
clear and educative evidence
and even post cross-examination found
his postulations and reasoning behind them unassailable.
[19]
Armed with the industrial psychologist’ report Koch Consulting
Actuaries computed a total
loss of earnings at R1 716 061.00
comprised of past loss of earnings at R213 651.00 and R1 502 410.00
as future loss of earnings.
This was arrived at having factored in 5
percent pre-morbid and 5 percent post morbid contingencies on past
loss and 20 percent
pre-morbid and 15 percent post-morbid
contingencies on future loss of earnings.
[20]
In the backdrop of the above uncontested expert evidence I must
determine loss of earnings suffered
by the plaintiff in respect of
which the lodestar to a proper approach remains, in my view,
Southern
Insurance Association v Bailie v NO 1984(1) SA 98(A) at 112E-114F
where the following was said:
“
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. It has
open to it two possible approaches. One is for the judge
to make a
round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork, a blind
plunge
into the unknown. The other is to try to make an assessment, by way
of mathematical calculations, on the basis of assumptions
resting on
evidence. The validity of this approach depends upon the soundness of
the assumptions, and these may vary from the strongly
probable to the
speculative.”
[21]
This court has previously, in the unreported matter of
Makgoba
Malesela Freddy and Road Accident Fund (2121/2023) out of this
division and heard on 22 May 2024 and delivered on 28 August
2024
,
made the following remarks by which it still stands:
“
I am a layman
to all the disciplines of the experts who testified. While I may not
and should not merely rubberstamp their recommendations
and must
subject them to a test of looking into the reasoning which went into
their opinions, I should not and will not allow myself
to be swayed
by maudlin alarmist sensitivities in the public domain emanating from
either the defendant in casu which has literally
abandoned and
absconded from defending these actions which flood our court rolls
daily or that of defendant’s apologists
whose common mantra is
to see any amount having six figures as undeserved or as an attempt
by plaintiffs to deceptively and greedily
milk the “cash-cow”
that is the Road Accident Fund.”
[22]
I see no reason not to accept the evidence of the industrial
psychologist which having been informed
by the reports of the
Orthopaedic surgeon and the occupational therapist formed the basis
of the actuarial calculations. Equally
I must accept the actuarial
computations arrived at by the experts.
[23]
It being trite that there are no fixed rules regarding the
determination of general contingencies
and there being, in my view,
no illogical basis nor manifestly out of syn with established
practice on contingency computation
in the actuaries’ report
and further regard being had to the current uncertain situation
regarding the plaintiff’s
employment fortunes against the
unknown variables such as life expectancy and national economic
fortunes, I find no fault with
the contingencies applied by the
actuary.
[24]
Accordingly, I am inclined to award the plaintiff total loss of
earnings at R1 716 061.00.
QUANTUM
(GENERAL DAMAGES)
[25]
As already alluded to
supra
this court is clothed with
jurisdiction to determine general damages, that is absent a
determination on the seriousness of the
offence by the defendant,
because the plaintiff previously obtained an order dated 20 March
2024 per Kganyago J of this division
which order read inter alia
that, ”The respondent is ordered to make a decision on whether
the Plaintiff’s injuries
are serious in light of the RAF4 form
reports by Dr MN Kgoedi, failing which the Applicant’s injuries
are deemed to be serious
and the Applicant is deemed to qualify for
general damages”. The deeming provision of this order kicks in
because the defendant
has not made the decision on the seriousness of
the injuries as ordered.
[26]
I am alive to Mr Mafiri’s submissions to the effect that the
defendant intends to appeal
that order previously made by Kganyago J
but without any process served towards or pursuant to an appeal, the
defendant’s
“intentions to appeal” are of no moment
to me as they carry no force of law compared to a court order which
must be
complied with until lawfully set aside.
[27]
The Supreme Court of Appeal in De Jongh v Du Pisane
[2004] 2 All SA
565(SCA)
at 682l stated that fairness is achieved if an award is made
consistent with previous awards in matters of a similar nature. The
same court in Road Accident Fund v Marunga 2003(5) SA 164 SCA at 169
E-F stated this principle further when it remarked that previous
comparable awards adjusted to reflect current values are a key
consideration in ensuring reasonability and fairness of general
damages awards. Carrying through this principle, I was ably referred
to the following guiding decisions by the plaintiff’s
counsel:
27.1
Silombo v Road Accident Fund (3062/2019) [2022] ZAMPMBHC 81(24
October 2022)
where a plaintiff who had suffered a right
clavicle fracture was awarded general damages of R 425 000.00 in 2022
which when given
a 2024 value is about R473 000.00.
27.2
Mlalandle v Road Accident Fund (1496/2007) [2010] ZAECGHC
124(17 December 2010)
where fracture of the right scapula
blade plus three-ribs fracture and partial paralysis of an arm
attracted a general damages
award of R325 000.00 in 2010 amounts in
current value to R669 000.00 according to the 2024 Quantum Yearbook.
[28]
On the strength of the above, Mr Magagane counsel for the plaintiff
submitted that a fair and
reasonable general damages award
in casu
would be R450 000.00.
[29]
Given the fact of the fracture of the scapula as testified to the
orthopaedic surgeon and already
alluded to
supra
and the
debilitating sequalae of continuous shoulder pain and inadequate
endurance and further regard being had to the fact that,
in my view,
both matters referred to as comparators the injuries and sequelae
were more pronounced than in casu, I find that a
proper general
damages award would be R400 000.00.
[30]
In all the afore going premises, I make the following order:
30.1
The defendant is liable for 100 percent of the plaintiff’s
damages arising from injuries and sequelae
of the accident on 16
October 2021.
30.2
The defendant shall pay the plaintiff a total sum of R2 116 061.00
(
TWO MILLION ONE HUNDRED AND SIXTEEN THOUSAND FOUR HUNDRED AND
SIXTY-ONE RANDS ONLY
) in respect of general damages and total
loss of earnings being damages suffered by the plaintiff in relation
to the motor vehicle
accident
in casu
which occurred 16
October 2021.
30.3
The amount in order number 30.2 above shall, within 180 days from
date of this order, be paid by direct transfer
into the trust account
the details of which shall be nominated by the Plaintiff’s
attorneys of record within 14 days of this
court order.
30.4 In
the event of the above capital amount not being paid timeously, the
defendant shall be liable for interest
at the prescribed rate of
interest per annum, calculated from the date of mora to date of
payment.
30.5
The defendant is ordered to pay the cost of this suit on a High Court
scale inclusive of the costs attendant
to obtaining the expert
reports relied upon in evidence and the costs of counsel on scale B.
30.6
The plaintiff shall, if the parties disagree as to the costs referred
to supra, serve a notice of taxation
on the defendant and shall allow
the defendant 14 court days post taxation to make payment of the
taxed costs.
MALOSE.S.
MONENE
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 12 July 2024
Judgement
delivered on
: 22 October 2024
For
the Plaintiff
: Adv. P Magagane
: Instructed by M E
Hloka Attorneys
: Tel: - 015 023
5302/072 508 4749
: Email:
info@mehlokaattorneys.co.za
For
the Defendant
: M C Mafiri
: Instructed by The
State Attorney, Polokwane
: Tel: 015 230 6317
: Email:
moshabanem@raf.co.za