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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO:368/2017
In the matter between:
LENTSOANE MOTLALEPULE JOHANNA PLAINTIFF
And
ROAD ACCIDENT FUND. DEFENDANT
________________________________________________________-
________________
JUDGMENT
MONENE AJ
[1] The plaintiff an adult female person instituted action proceedings against the
defendant for damages arising from a motor vehicle accident which occurred on 05
February 2016. Already the merits in this matter have per court order dated 15 May
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO THE JUDGES: YES / NO
(3) REVISED.
Signature …………………….
Date…………………….
DATE………… SIGNATURE:……
2023 been settled 100 perc ent in favour of the plaintiff. The same court order saw
general damages settled in the amount of R500 000.00.
[2] Having initially filed the routine generally bare denial plea to this matter the
defendant partook no further in the long evolution of the matter such that when this
matter was set down for determination of loss of earnings, as it now is being heard, only
the plaintiff had filed relevant expert reports.
[3] The plaintiff proceeded before this court per default, sought and was granted leave
to prosecute her case in terms of Uniform Rule 38(2).
[4] Under cover of affidavit the plaintiff adduced the following uncontested evidence in
brief:
4.1 Dr Mphele Tladi, an orthopedic surgeon’s evidence was that the plaintiff
sustained an open medial malleolar fracture which left her with residual ankle
instability and lateral heel sensation loss. It was testif ied further that although the
plaintiff’s injury does not pass the 30% rule, they however pass the narrative test
for serious long-term impairment or loss of a body function.
4.2 An occupational therapist, M O Mashishi’s testimony was th at the plaintiff
who was an unemployed university graduate at the time of the accident
presented with residual work capacity for sedentary light to low level medium
work. She was after the accident, it was testified, suited for occupations where
she was re asonably accommodated owing to her physical deficiencies arising
from the accident. It was further opined by this witness that from a functional
perspective, the plaintiff has suffered a decline in earning capacity, particularly in
physically demanding occupations that require the use of the lower limbs.
4.3 J Buitendach, the industrial psychologist, observed the following:
4.3.1 That the pre -accident unemployed university graduate that is the
plaintiff managed to secure employments as media monitor and lab
assistant post the accident but was unable to cope with those jobs due to
her compromised physical capacity.
4.3.2 That she has since remained unemployed.
4.4 This expert concluded that the plaintiff’s employment prospects are
significantly reduced. It was opined further that she also has emotional
dysfunction sequalae which further diminished her employment potential in an
already hostile employment space even if one is able-bodied.
4.5 Wim Loots, an actuarial scientist, informed in the main by the industrial
psychologist’s report which itself had factored in the orthopedic and occupational
therapist reports, computed total loss of earnings at R3 693 843.00 to which
amount no contingencies were factored in.
4.6 In very helpful heads of argument counsel for the plaintiff, Adv. S S Masina
factored in 10% contingencies for past loss and 20 -30% on future loss to
ultimately arrive at a total loss of R3 169 009.00.
[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 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 cou rt
can do is to make an estimate, which is often a very rough estimate, of the
present value of the loss...”
[6] In Hersman v Shapiro and Co 1926 TPD at 379 it was held as follows:
“Monetary damage having been suffered, it is necessary for the court to
assess the amount and make the best use it can of the evidence before it.
There are cases where the assessment by the court is little more than an
estimate; but even so, if is certain t hat pecuniary damage has been
suffered, the court is bound to award damages.”
[7] I n my view the expert evidence which was led before me is solid and informed .
These experts represent for this court present day soothsayers and oracles providing a
very useful service to the court in its determination of loss of earnings. To needlessly
compute outside their evidence where their evidence has not been gainsaid by any
opposing view and where it cannot be faulted would, in my view, be a misdirection.
[8] The summary of expert evidence led before me above, which evidence I have no
reason nor inclination to deviate from is, in my view, sufficient determinant of the
quantum opined on loss of earnings. Given the well -documented sequalae of the
injuries suffered by the plaintiff, particularly the back pain and ankle problems as well as
the actual proof of the plaintiff’s relative unemployability seen in the two post -accident
failed attempts at working and her youthfulness at 34 which suggests relatively a much
longer life expectancy, I am unable to fault the computations arrived at by the actuary.
[9] Accordingly, I am persuaded to award the plaintiff g loss of earnings in accordance
with the computation of the actuarial scientist and on the contingencies suggested by
counsel for the plaintiff.
[10] In all the above premises, I make the following order:
[10.1] The defendant shall pay an amount R 3 169 009.00(THREE MILLION ONE
HUNDRED SIXTY-NINE THOUSAND AND NINE RANDS ONLY) as loss of
earnings.
[10.2] The amount stated supra shall be paid by direct transfer into the following
trust account within 180 days of this order:
ACCOUNT HOLDER: KOMANE ATTORNEYS
NAME OF BANK: FIRST NATIONAL BANK
ACCOUNT NUMBER: 6[...]
BRANCH CODE: 250655
ACCOUNT TYPE: CHEAQUE
10.3 The defendant shall pay the plaintiff’s taxed or agreed to party and party
costs on a high court scale within 30 days of taxation or agreement which costs
shall include the costs attendant to securin g expert reports and the costs of
counsel on scale B.
10.4 Should the defendant fail to pay the capital amount and/or the taxed costs
timeously; the plaintiff shall be entitled to recover interest thereon on the
prescribed rate of interest from the date of mora to date of final payment.
_________________________
M S MONENE
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard on : 24 June 2024
Judgment delivered on : 04 November 2024
For the Plaintiff : Adv S S Masina
: Instructed by Komane Attorneys
: Tel: - 013 265 1156
: Email: makgotso@komanelaw.co.za
For the Defendant : No appearance