REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO:1794/2020
In the matter between:
RASAL ALAM MIAZI PLAINTIFF
And
ROAD ACCIDENT FUND. DEFENDANT
______________________________________________________________________
JUDGMENT
MONENE AJ
[1] The plaintiff an adult male person instituted action proceedings against the
defendant for damages arising from a motor vehicle accident which occurred on 12
March 2019. Already the merits in this matter have per court order dated 22 May 2023
been settled 100 percent i n favour of the plaintiff. The same court order saw general
damages settled in the amount of R700 000.00.
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO THE JUDGES: YES / NO
(3) REVISED.
Signature …………………….
Date…………………….
DATE………… SIGNATURE:……
[2] Having initially filed the routine generally bare denial plea to this matter the
defendant partook no further in the long evolution of the matte r 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 his 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 Reginald Moetji, an orthopedic surgeon’s evidence was that the plaintiff
suffered tenderness around T10 until T12 on the thorac ic spine, scars on the
chest, forehead and arm with sequelae of pain, migraine headache and severe
back pains.
4.2 A neurosurgeon , Dr Akhona Mazwi’s testimony was th at the plaintiff on
examination exhibited poor memory and concentration difficulties and further that
he had an overall whole -body impairment of 22%. It was this witness’ further
evidence that going forward the plaintiff might need physiotherapy and
psychotherapy as medical interve ntions. The doctor further stated that in his
view, the plaintiff had fallen victim to a moderately severe head injury. The
plaintiff was found to have chronic post concussive headaches, poor memory
and incomplete quadriplegia. Curiously, this witness referred to a history of the
plaintiff having suffered a rib injury in circumstances where the Orthopaedic
surgeon, better qualified for such diagnosis, did not testify of such an injury.
4.3 A major take home from the evidence of Ms Zaheerah Faki r, an industrial
psychologist opined that because most pre -accident capacities had been
compromised the plaintiff’s businesses would suffer major losses and conclude d
that, “While it is not envisaged that Mr Miazi will suffer a total loss of earnings, he
has suffered a partial loss of earnings to date and will continue to suffer this,
likely till he reaches retirement age. Mr Miazi should be compensated for the
reported loss of earnings suffered following the accident, for the decreased
income earned follo wing his return to work, for all recommended treatment, and
for the loss of earnings that he stands to face in the future because of the
accident in question.”
4.4 The evidence of the industrial psychologist spoke a language similar to that
of the Occupa tional Therapist whose evidence can best be summed in the
following way:
4.4.1 The plaintiff’s occupational dysfunctions demoted him from being a
skilled worker in the medium to heavy demands category to medium with
reasonable accommodations.
4.4.2 He will be highly disadvantaged in the open labour market.
4.4.3 He is unlikely to cope with more cognitively demanding jobs owing to
cognitively deficiencies arising from the accident.
4.5 Itai Karidza of Tsebo Actuaries premised actuarial calculations in the main on
the following quote from the industrial psychologist’s expert report:
“The writer is of the opinion that his business would have been subject to
market related competition and average business cycles. The writer
opines that he would have worked towards expanding his business,
however it is realistic to expect that his income may have fluctuated…Mr
Miazi was only 32 years old when the accident occurred and would have
been able to continue working and earning as he had, with annual
inflationary increases. It is realistic to expect that as he already had a few
stores opened, he would have likely been able to continue in this way and
possibly opened more stores.”
4.6 The actuarial expert computed a capital loss of earnin gs of R 4 907 086.00
factoring in contingencies on a spread of 5% -10% on uninjured and 5% to 30%
injured.
[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 i ts 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] I n my view the expert witnesses which are solid and informed are 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 it cannot be
faulted and is unopposed would, in my view, be to act arbitrarily.
[7] 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 cognitive and semi quadriplegia and in
the light of the plaintiff’s youthfulness at 34 at the time of the accident and further regard
being had to the fact that he was a businessman with no less than three shops and
could like all self -employed people have run his businesses up to at least 70 years of
age, I cannot fault the computations arrived at by the actuary.
[8] Accordingly, I am persuaded to a ward the plaintiff general loss of earnings in
accordance with the computation of the actuarial scientist and on the contingencies
applied there.
[9] In all the above premises, I make the following order:
[9.1] The defendant shall pay an amount R 4 907 086.00(FOUR MILLION NINE
HUNDRED SEVEN THOUSAND AND EIGHTY-SIX RANDS ONLY) as loss of
earnings.
[9.2] The amount stated supra shall be paid by direct transfer into a trust account,
as shall within 14 days of this order nominated by the plaintiff’s attorneys of record,
within 180 days of this order.
9.3 The defendant shall pay the plaintiff’s taxed or agreed to party and party costs
on a high court scale which costs shall include:
9.3.1 Costs of Counsel on scale B
9.3.2 The costs attendant to obtaining the expert reports employed in this
matter.
9.4 Should the defendant fail to pay the amount 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 :
Judgment delivered on : 04 November 2024
For the Plaintiff : Adv M D MATSHETHE
: Instructed by HLM Mamabolo Attorneys
: Tel: - 015 297 7005
: Email: hlm@hlmlegal.co.za
For the Defendant : No appearance