SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 35054/20
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
DATE: 17 JANUARY 2025
SIGNATURE OF JUDGE:
In the matter between:
MCUNUKELWA MVUSELELO PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGEMENT
FLATELA J
[1] The Plaintiff instituted an action against the Road Accident Fund for damages
suffered by him as a result of the injuries sustained by him in a motor vehicle
accident that occurred on 25 October 2019 due to the negligent driving of the insured
driver.
[2] On 23 October 2024, the matter was served before me . The plaintiff sought a
default judgment against the defendant. It was informed that both the merits of the
case and the amount of damages are still in dispute. An order to separate the issues
of merit and quantum was granted in accordance with Rule 33(4). Additionally, I was
informed that the defendant had disputed the seriousness of the injuries suffered by
the plaintiff; therefore, the issue has been deferred to the Health Professions Council
of South A frica for determination . The only matters that need to be determined are
the loss of earnings and the terms of the undertaking under Section 17(4) of Act 56
of 1996.
[3] I heard the plaintiff's arguments regarding past and future income loss.
[4] The plaintiff submitted that prior to the accident, he owned two taxis. He
operated one himself and hired a driver for the other. He claims that he earned
between R9000 and R17,000 per week from the taxi he was driving. As a result of
the accident, he was unable to continue driving and subsequently sold the taxi he
had been operating. The accident has led to a loss of earnings and reduced earning
capacity; therefore, the defendant must compensate him for both past and future lost
income until his retirement age of 70.
[5] In terms of the amended particulars of the claim dated 26 July 2024 , on 25
October 2019 at approximately 17H00 at or near R 61, Southport, Sea View location,
Bizana, Eastern Cape Province , a collision occurred between a motor vehicle with
registration number M[...] [...] Z[...] [...] driven by Mongi S Goniwe (the insured
vehicle) and a motor vehicle with registration numbers N[...] 8[...] , driven by the
Plaintiff. The negligent driving of the insured driver caused the accident .
[6] As a result of the accident, the Plaintiff sustained a head injury, neck injury
and right ar m. As a direct consequence , Plaintiff has suffered, continues to suffer,
and will suffer the following sequelae in the future. The plaintiff was forced to
undergo hospital and medical treatment and will be forced to undergo it in the future .
The Plaintiff has experienced pain and suffering and will , in the future, experience
pain and suffering .
The Plaintiffs injuries
[7] The initial entry of the hospital records, which describes the mode of arrival
and condition on admission, amongst other information, recorded that on 25
October 2019, at about 19H35, the Plaintiff came in a stretcher from the scene. His
injuries are described as forehead, right arm and spine. Dr Ntombela saw the
plaintiff at 20:50, who recorded the injuries as head, neck, upper limb, chest, back,
right hip, plus loss of consciousness. Lacerations +12cm frontal, and the provisional
diagnosis was recorded as head injury, C -spine and chest trauma . His Global Coma
Score (GCS) was 15/15 when he arrived at the hospital, meaning that he was
conscious and fully alert.
[8] The Plaintiff received the following treatment – ATT injection , Voltaren and
suturing of laceration, neck collar, X -ray and Neuro observatio n. C-spine cleared by
orthopaedics. The plaintiff complained about neck stiffness with the painful left
shoulder, inability to turn the neck to the left, and painful neck muscles. The Plaintiff
was treated with analgesics and antibiotics.
[9] The p laintiff claims that the Defendant is liable to him in an amount of
R9,900,000 (Nine Million Nine Hundred Thousand Rand), detailed as follows:
i. Future medical treatment R200 000
ii. Past. loss of earnings R1 700 000
iii. Future loss of earnings R7 000 000
iv. General damages R1 0 00,000.
v. Total amount R9 900 000
[10] Munro Forensic Actuaries prepared loss of earnings calculations on the basis
that Plaintiff received an income of R9 000 -R17 000 per week. The capital value of
loss of earnings is calculated as follows:
a. Past loss of income R 1 390 375
b. Future loss R 4 950 540
c. Total R6 340 915
The contingency deduction of 5% on the past loss of earnings and 15% on the future
loss of earnings was applied. The Plaintiff submitted that an amount of R4 638 800 is
fair and reasonable.
[11] As proof of income, the plaintiff submitted the following collateral evidence:
i. A three -month bank statement from ABSA bank for the period of
2 July 2019 - 1 August 2019; 2 August 2019 -1 September 2019
and from 2 September 2019 - 1 October 2019;
ii. a letter from Uncedo Taxi Association -Flagstaff confirming his
membership and;
iii. A photo of a licence disc and operator card for a motor vehicle
F[...] lapsing on 30 September 2025.
[12] An application was made under Rule 38 of the Uniform Rules to admit the
expert evidence tendered without recourse to oral testimony. The order was granted.
However, I ordered that the plaintiff present his evidence.
[13] It is prudent first to address the legal principles that govern the claim for loss
of earnings, which will serve as the basis for evaluating this case .
Legal principles applicable to loss of earnings
[14] The legal principles applicable to restitution of loss of future earnings and/or
earning capacity have been firmly established. In Goldie v City Council of
Johannesburg1 The above pri nciple was expressed as follows:
“Mr Hart, who argued the case for the defendant, quoted a number of
cases, such as Union Government (Minister of R & H) v Clay (1913 AD
385), Hulley v Cox (1923 AD 234) and Craig v Franks (1936 SR 41) in
support of the proposition that it is wrong to calculate the amounts to be
awarded under these heads of damage on the basis of annuity, and that
1 1948(2) SA 913(W) .
whilst such actuarial calculations affords useful guidance, the true basis
is what the court considers, under the circumstances of the case, to be
fair and reasonable amount to be awarded the plaintiff as compensation.
This may be so, but in the case where it is necessary to award
compensation for loss of future earnings, I have difficult in appreciating
what better starting point there can be than the present value of the
future income which the plaintiff has been prevented from earning. From
this point proper allowance must be made for contingencies, but if the
fundamental principle of an award of damages under lex Aquilia is
compensation for patrimonial loss, then it seems to me that one must try
to ascertain the value of what was lost on some lo gical basis and not
impulse or by guesswork.”
[15] The principle derived from this dictum is that the fundamental tenet of
awarding damages under lex Aquilia is to provide compensation for patrimonial loss.
The aim is to restore the plaintiff to the position they would have occupied had the
injury not occurred. This requires a logical assessment of the loss of earnings
resulting from the accident, rather than relying on impulse or guesswork.
[16] This principle was approved in Dippenaar v Shield Insurance Co Ltd 2
Where Rumpf JA said that:3
‘In our law, under the lex Aquilia , the defendant must make good the
difference between the value of the plaintiff's estate after the
commission of the delict and the value it would have had if the delict
had not been committed. The capacity to earn money is considered to
be part of a person's estate , and the loss or impairment of that capacity
constitutes a loss if such loss diminishes the estate. This was the
approach in Union Government (Minister of Railways and Harbours) v
Warneke 1911 AD 657 at 665 , where the following appears :
2 Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A)
3 Ibid, at 917 B – D.
‘In later Roman law property came to mean the universitas of
the plaintiff's rights and duties, and the object of the action was
to recover the difference between the universitas as it was after
the act of damage, and as it would have been if the act had not
been committed ( Greuber at 269)… ’
Onus
[17] The onus of proof lies on the plaintiff to prove his case o n a balance of
probabilities . He is required to adduce sufficient evidence of his income to enable the
court to assess and quantify his past loss and future loss of earnings.
Plaintiff’s evidence
[18] The plaintiff testified that he was involved in an accident on October 25, 2019.
Before the accident, he was self -employed and owned two taxis. On the day of the
accident, he was driving his private car. After the accident, he lost consciousness
and was transported by ambulance to Port Shepstone Hospital, where he received
treatment and was discharged two weeks later.
[19] Following the accident, he was unable to return to work due to the injuries he
sustained. He spent a year recuperating at home but could not continue his previous
job. He mentioned that another driver was hired to operate the taxi he was driving
but was fired due to unprofessional behaviour. The driver was always drunk, and the
taxi was operating at a loss. Ultimately, he was forced to sell the taxi because it was
not generating enough income. The plaintiff testified that he was earning about
R13 000.00 - R15 000 per week from the taxi he was operating. On the other hand,
he earned about R 1500 - R2000 per week on the other ta xi, and he paid the driver
between R500 and R700 per week. He lost that income due to the accident.
[20] The applicant appointed several medical -legal experts, who submitted their
reports, which were admitted as evidence . The following experts examined the
Plaintiff :
a. Dr Mafeelane – Orthopaedic surgeon
b. Dr Mazwi – Neurosurgeon
c. Dr J. F Mureriwa – clinical Psychologist
d. Dr Selahle – plastic and reconstructive surgeon
e. Dr Nhlapho -Ophthalmologist
f. Ms N Ndzungu – occupational therapist – on 18 January 2023
g. Talifhani Ntsieni – industrial psychologist
h. Munro Forensic Actuaries
Dr. Mafeelane – Orthopaedic surgeon
[21] Dr Mafeelane examined the Plaintiff on 29 June 2021. Referring to the
hospital notes and the RAF form, Dr Mafeelane states that the Plaintiff sustained a
neck injury, left shoulder and head injury . He deferred the head injury to a
Neurosurgeon .
[22] Dr. Mafeelane examined the Plaintiff and found a reduced range of motion in
the left shoulder due to pain. He opined that this is a positive indicator of a rotator
cuff tear, along with intrascapular tenderness.
[23] The X -ray from Dr Ismail Farzanah's final report dated 29 June 2021
recorded th at no fractures, dislocation, or subluxation and normal radiographic
findings of the left shoulder were noted. The gleno -humeral and acromion -
clavicular joint spaces are normal. There is a type 11 acromion present. There are
no abnormal calcifications or radio opacities in the surrounding soft tissues. There is
generalised maintenance of normal bone density. The scapula is intact.
[24] The doctor noted that the Plaintiff suffered severe pain after the accident and
continues to suffer the inconvenience and discomfort of chronic pain from the injured
areas. He has never been pain-free since the accident. As a result, the plaintiff
suffered headaches, left shoulder pain, neck pain, an 8 cm scar on the right parietal
region, difficulty carrying and lifting heavy objects and difficulty doing overhead
activities . It is recorded that the plaintiff completed his education up to grade 8. At the
time of the accident, he was self -employed as a taxi driver.
[25] Dr Mafeel ane opined that the plaintiff needs arthroscopic rotator cuff repair
surgery and a new line. The cost of such a procedure is R100,000 and includes
hospitalisation , surgical fees, implants, theatre and rehabilitation . A new period of
eight weeks post -surgery for recovery and rehabilitation is reasonable, but he will
need to consult an Orthopaedic surgeon and physiotherapist. He will need to
purchase prescription analgesic gel 6 to manage the pain. The doctor recommend ed
that provisions be made for f uture medical expenses . Although the WPI was
calculated at 8%, it is the experts' opinion that the injuries have resulted in a serious
long-term impairment as per the narrative test 5.1. These recommendations are
relevant for the assessment of general damages and future medical expenses
Dr Mazwi – Neurosurgeon
[26] Dr Mazwi assessed the Plaintiff on 22 March 2022 and opined that the
Plaintiff experienced head trauma and also had scalp lacerations, with the loss of
awareness. The Plaintiff had a brief loss of consciousness and amnesia with 15 /15
GSC and amnesia in keeping up with the mild head injury.
[27] The Plaintiff now presents post-concussive headaches, difficulty with
concentration, memory disturbances, poor memory and recall, a 2% risk of epilepsy,
chest pains, and cervical. Neck pains, left arm, shoulder pains, head scar. Loss of
amenities of life. Amenities of normal living were lost during the period of
hospitalisation ; activities of daily living and mental function have been affected; he
has lost amenities due to headaches and permanent mental disturbances. He
assessed the plaintiff to have 20% whole -person impairment, and the injuries
sustained have resulted in permanent serious disfigurement and significant long-
term mental disturbance under the narrative test.
[28] On retirement and employability. The doctor stated that the Plaintiff is
unemployed and the injuries he sustained will make it difficult for him to compete
fairly in an open labour market. He deferred to the Occupational Therapist to
comment in more detail on the practical effect of this impairment and his ability to
work in an open market.
Tabisa Caga – Occupational Therapist
[29] On 30 June 2021, Ms Caga assessed the Plaintiff, who reported experiencing
pain on the left side of his neck, shoulder, and upper back. He also mentioned
suffering from headaches, dizziness, and muscle spasms. Additionally, he reported
decreased strength and movement in his left arm and hand, as well as vision
impairment. Other issues included difficulty lifting heavy objects, trouble sleeping on
his left side, increased irritability, and forgetfulness.
Pre-morbid profile of the Plaintiff
Personal circumstances of the Plaintiff and family background
[30] Ms Caga summarised the educational and work history as follows: “At the
time of the accident in October 2019, the claimant was a taxi driver, and he owned
two taxis. The claimant stated that after the accident occurred, he was unable to
drive and hired another driver to drive his second taxi. He indicated that the new taxi
driver was performing poorly, and he , therefore, did not make sufficient profit . His taxi
was repossessed as he could not afford his monthly instalments. The claimant
continued to operate as a taxi owner until August 2022 ; he stated that his taxi broke
down and that he is unable to operate currently . Mr Mcunukelwa is currently
unemployed.
Previous work analysis
[31] As a taxi driver, Mr Mcunukelwa worked from Monday to Sunday from 06:00
to 19:00 . His duties and work included sitting and driving for most of the day, driving
a manual vehicle /taxi, mainly driving local trips, driving about 8 hours a day,
performing long-distance trips about four times a month , e.g. From Mthatha and
Johannesburg, occasionally assisting his passengers with their luggage and
groceries . Ms. Caga concluded that the plaintiff is only suited for sedentary and light
occupations. However, his jo b prospects are limited due to his education and work
history. While he may manage local taxi driving for short distances, he is unable to
handle long -distance driving or tasks that involve lifting heavy items. Frequent
movements, such as changing gears or assisting passengers, would increase his
pain and reduce his productivity.
[32] These issues hinder his chances of finding new employment and restarting
his taxi business due to various financial factors. He will need to implement pain
management strategies and cannot compete effectively in the labour market. The
expert recommended future treatment options, including occupational therapy,
physiotherapy, and assistive devices, leading to anticipated medical expenses.
[33] The presence of cognitive and psychosocial limitations may further curtail his
ability to be trained in sedentary or light work in the future. His injuries will make him
a lesser competitor in the open labour market compared to his peers. He would thus
require an understanding employer who will be willing to accommodate his physical
limitations . Due to the accident -related challenge , the Plaintiff’s job options are likely
to be curtailed as he will not be able to cope with physically demanding jobs. He
does not retain enough physical vocational capacity to compete in the open labour
market. His physical challenges preclude him from medium to heavy occupations or
any work duties which require prolonged standing, walking, dynamic posturing,
climbing, and driving.
Dr Selahle – Plastic and Reconstructive Surgeon
[34] Doctor S Selahle assessed the plaintiff on 16 July 2024 and made these
findings: a 10 cm Scar on the frontal scalp and forehead . Dr Selahle concluded that
the Plaintiff’s scars have no features, but they are cosmetically unsightly and
disfiguring. They are permanent, with little prospect of scar improvement by scar
revision techniques. He has a 5% WPI. He suffered from considerable physical pain
and is still suffering from emotional pain due to his cosmetically disfigured scar.
Dr JFL Mureriwa – Clinical Psychologist
[35] Dr Mureriwa assessed the plaintiff on 1 July 2021 . The Plaintiff reported to Dr
Mureriwa that since the accident, he has had dizziness, a painful neck, painful left
shoulder and arm, forgetfulness and easily distracted, blurred vision, irritability,
depression, tiredness or fatigue, and poor, disturbed sleep.
[36] Status Examination Findings: He is easily distracted and requires redirection
during the tests. His recent memory appears to be moderately impaired. He has a
reduced capacity to inhibit responses and sustained attention, mild obstructing
thinking deficits, and he appears depressed and mildly anxious.
[37] Impact of the Accident: He cannot turn his head to the left and struggles with
heavy lifting. He needs help with household tasks and has stopped exercising due
to pain. His business is suffering as he can't work as much as before, leading to
financial anxiety. He experiences pain when sitting for long periods, making him
afraid to travel by car or taxi. He often misplaces items and has difficulty finding
things. His impatience and irritability are straining relationships. He has low
motivation, no longer e njoys his hobbies, and is socially withdrawn, preferring to be
alone. He often misplaces items, which causes frustration, and his impatience strains
relationships. He lacks motivation, no longer enjoys hobbies, feels socially
withdrawn, and tires himself easily.
[38] Activities of daily living and amenities: he no longer engages in exercise
sessions like he used to, and he has stopped doing weightlifting and going to the
gym. His interpersonal relationships have been negatively affected by irritability, low
mood, and social withdrawal. His work capacity is impaired due to cognitive issues,
pain, and low endurance, impacting his functional and community mobility.
Additionally, he struggles with some basic activities of daily living, including proper
breathing and sleeping, which are disrupted by persistent pain. As a result, he
requires more assistance with heavy tasks than he did before.
[39] Whole -person impairment : The plaintiff has a 20% whole -person impairment,
as concluded by the doctor. The plaintiff also suffered a mild traumatic brain injury,
resulting in moderate overall disability. The rest of the opinion pertains to future
medical treatment and general damages.
Talifhani Ntsieni – Industrial Psychologist
[40] Mr Ntsieni assessed the plaintiff on 17 October 2022. It was reported to Mr
Ntsieni that after the accident, the Plaintiff could not no longer drive, cannot do
chores such as gardening, is forgetful, experiences headaches and dizziness,
especially in hot weather, is anxious about driving, and experiences left shoulder
pains. Especially when doing heavy duties and during cold weather, he cannot carry
or lift heavy objects using his arm.
Employment prospects and earning potential.
[41] Mr Ntsieni prepared his report based on all the reports of other experts
available at the time of assessment. He opined on the following possible scenario :
[42] Pre accident. The plaintiff has a grade 4 education, a firearm certificate, a
loco driver certificate, and a plumbing certificate. At the time of the accident, he was
self-employed as a taxi driver, and the owner earned between R9 000 and R17 000
per week. He heavily relied on his physical health, strength and capabilities for
gainful employment. His reported earnings at the time of the accident ranged above
the upper quartile of the 2019 Taxi Driver/Owner of the Driver employees scale in the
informal sector.
[43] Considering his level of education , work experience, and age, it is probable
that he would have likely managed to increase his profit at CPI plus 3% per annum
for about 7 years and, thereafter, maintained his earnings with future growth as a
result of inflation. Inflationary -related increases to retirement age. He would have
mostly likely wept beyond the normal retirement age of 65 years in a self -
employment capacity. Thus, retirement up to age 70 at most, with his health
permitting.
Loss of earnings
[44] It was reported that f ollowing the accident and hospitalisation , the plaintiff
stayed at home , recuperating for a year. He lost income as he was the driver of the
other taxi. He resumed his job as a taxi owner but did not return to his driving duties.
He sold the tax i that he used to drive as he could not drive due to pain and anxiety.
He now has one taxi and is only generating R1500 profit per week. Thus, bus iness
loss is noted.
[45] It is evident from the expert's opinion that injuries sustained from the accident
had a negative and restrictive impact on the plaintiff's level of psychological,
neurosurgical, cognitive, psychological and occupational functioning. His post -
accident career is one likely to be characterised by restrictions, pain and discomfort,
as well as the risk of loss of income. His progression through his career is
considered restricted and compromised as a result of the impact of the accident -
related injuries. His wor k choices are reduced , and he has been rendered
vulnerable.
[46] In competing with other able bodies, self -employment, individual. He is no
longer performing at his pre-accident potential as a result of the accident. And has
been rendered unequal to the competitor gainfully employed. He is likely to reach his
pre-accident potential. He has , therefore, suffered the loss of earning capacity,
translating into a loss of enemies. These risks should be fair and should be dealt with
by much higher than normal pre -accident contingencies for possible unemployment .
The condition deteriorates.
[47] Collateral information is addressed in paragraph 8 o f the report . Mr Ntsieni
says, “Mr Mcunukelwa was self -employed pre -accident, and this remains the same
post-accident .
[48] Ms. Jele, on behalf of the plaintiff, applied for the default judgment on past
loss and future loss of income as projected by Mr Ntsieni and calculated by Munro's
actuaries.
[49] I raised a concern regarding the sufficiency of the collateral evidence
submitted to the court in support of the proof of earnings. The plaintiff provided a
three -month bank statement from before the accident and a letter from the Uncedo
Taxi Association confirming his membership. It was argued that the bank statement
confirmed his pre -morbid earnings. The ABSA bank statement indicated deposits
ranging from R16,000 to R18,000 and a recurring deduction of approximately
R10,000 at the end of each month.
[50] The evidence provided was not sufficient for me to quantify the past and
future loss of earnings. However, I afforded the plaintiff an opportunity to supplement
the information regarding th is claim . Specifically, I directed the plaintiff to provide
proof of ownership for the taxis, details of the sale of the taxi he was operating
(including the purchase price), a spreadsheet from the bank statement that shows
the profit derived from the taxi the plaintiff was driving, and copies of the bank
account statements following the accident, particularly the stateme nt from 2024.
Additionally, I requested the plaintiff's SARS income tax registration. Consequently, I
postponed the matter to give the plaintiff’s attorney enough time to collect this
information .
[51] The plaintiff later submitted a certificate of registration to prove ownership of
the taxi operated by a hired driver, along with a Professional Driving Permit (PDP) for
the taxi he was driving. However, he did not provide a spreadsheet detailing the
income generated from the taxi. No explanation was provided for this failure to
comply with the directives.
[52] The plaintiff provided a bank statement from his FNB Premier Current Account
covering the period from August 2, 2024, to October 31, 2024. The statement
indicates a balance of R98,167.99. Additionally, it was noted that the plaintiff was not
registered with the South African Revenue Service (SARS). It was stated that the
plaintiff operated his taxi business informally, similar to other informal traders, and,
therefore, was not registered with SARS.
[53] The plaintiff was unable to provide any documentation related to the sale of
his taxi. It was argued on his behalf that he lacked documentation because the sale
was an informal cash transaction. Furthermore, the buyer has since passed away,
and the plaintiff does not know the current whereabouts of the taxi's documentation.
[54] I enquired with counsel regarding the date or year of the taxi sale. Ms. Jele,
after conferring with her instructing attorney, informed me that the taxi was sold in
2023. This new information regarding the year of the sale is fundamentally at odds
with what the plaintiff had previously communicated to his expert. As early as 2021,
the plaintiff communicated to all his experts that that he sold his taxi after dismissing
the driver he had hired. It is questionable whether the taxi was sold at all. I will revert
to this later.
[55] Ms Jele, on behalf of the plaintiff, acknowledged that the court will find it
difficult to assess the damages regarding the collateral evidence provided. Ms Jele
proposed that the court should deal with this pre dicament in the following:
a. The expert noted that, like most self -employed people in the informal
sector, there was no record -keeping; however, his earnings were within
the self -employed person’s scale .
b. The plaintiff’s loss may be accepted as a loss of incapacity , and the
uncertainty of earnings can be addressed by the application of a much
higher than normal contingency where the pre -morbid and the post -
morbid are considered the same.
c. In this way, the loss of capacity to drive the taxi again will be
compensated while the much higher -than-normal contingency
discharges the court uncertainties .
[56] The Plaintiff proposed that the court should resolve the issue by applying
contingencies as follows:
Uninjured Injured Loss
Past R 1 696 500-35%=
R 1 102 725 R2221 300
R881 425
Future R6 521 400 -20%
= R5 543 190 R6 521 400-50%
= R3 260 700
R1 956 420
TOTAL LOSS R2 837 845
[57] The Applicant submitted that an amount of R 2 837 845 would be fair to
compensate the plaintiff in respect of the loss of earning capacity. It was submitted
further that the plaintiff would accept a much higher than normal contingency to his
past and future earnings as there is not enough satisfactory collateral evidence yet
before the court.
[58] Ms Jele referred to the matter of Southern Insurance Association v Bailey4
Where it was held that “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 …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.
[59] It was further submitted that if the Court does not accept the proposals, the
plaintiff would require and request a further period to gather all collateral evidence to
satisfy the court.
[60] I informed the plaintiff’s counsel that I needed time to consider the
supplementary information and supplementary heads of argument and would provide
my decision on 15 November 2024. After careful consideration, I concluded that it
would be more appropriate to write a formal judgment rather than simply issuing an
order. I now deal with the principles applicable to loss of earnings and contingencies .
[61] The first issue the C ourt must determine is whether the plaintiff has prove n
that he has a valid claim for lost income on the balance of probabilities.
[62] The difficulty of quantifying the monetary value of loss in claims of this nature
is clearly articulated in the case of Terblanche v Minister of Safety and Security and
Another5 . The SCA held :
“The difficulty with claims of this nature is generally not so much the
recognition that earning capacity constitutes an asset in a person’s estate, but
4 1984(1) SA 98 (A) at 112E -114F
5 (20006/2013) [2015] 48 ZASCA (27 March 2015) at para 14
rather the quantification of the monetary value of loss of earning capacity by a
trial court. Each case naturally depends on its own facts and circumstances
as well as the evidence before the trial court concerned. ”
[63] The actuarial calculations submitted are based on a report by the Industrial
Psychologist, which states that the plaintiff was earning between R9000 and
R17,000 per month. However, the Industrial Psychologist did not verify these
amounts and relied solely on the plaintiff's statements. The report indicates that the
plaintiff has no record -keeping, so the court must accept his word regarding his
income.
[64] The plaintiff, despite working in the informal sector, has multiple bank
accounts . He manages his bank account independently. I found it odd that he lacked
any documentation related to the sale of his taxi; there was no paper trail or money
trail.
[65] There is another challenge in quantifying the plaintiff's claim. The plaintiff
provided contradictory information regarding the circumstances of the taxi he
claimed was in operation. He informed Ms Caga that the taxi had been repossessed
by the bank, as noted in paragraph 2.4 of Ms Caga's report.
[66] The report states: "At the time of the accident in October 2019, the claimant
was a taxi driver and owned two taxis. The claimant indicated that after the accident,
he was unable to drive and hired another driver for his second taxi. However, he
reported that the new driver was performing poorly, resulting in insufficient profits to
cover his monthly instalments. Consequently, the taxi was repossessed. The
claimant continued to operate as a taxi owner until August 2022, when his taxi broke
down and has since been unable to operate. The plaintiff is currently unemployed."
[67] The plaintiff informed Mr. Ntsieni that he spent a year recuperating from his
injuries. During this time, he lost income because another taxi he owned was not
operational, as he was the driver. He mentioned that he resumed his job as a taxi
owner but did not return to driving. He tried to hire someone else to drive the taxi;
however, the individual was unprofessional and often intoxicated. As a result, he
decided to sell the taxi he had been driving. He can no longer drive due to anxiety
and persistent pain in his left shoulder. As a result, he is now left with only one taxi
and is reportedly generating R500 in profit each week. Since he sold his other taxi
and is currently operating with just one, his profits have decreased. Consequently,
there has been a significant loss of income from the time of the accident up to now.
[68] During the proceedings, the plaintiff testified that he sold his other taxi while
recuperating at home. I instructed the plaintiff to provide the court with details of the
sale, including the purchase price. It was stated that the transaction was informal
and conducted in cash, and, unfortunately, the buyer is now deceased , and the
plaintiff has no available documentation regarding the sale.
[69] The plaintiff has presented conflicting information regarding the taxi incident.
Any effort to quantify the plaintiff’s claim for past and future loss of earnings is likely
to be speculative without any factual basis .
[70] In the circumstances, I make the following order :
i. The defendant is ordered to pay 100% of the plaintiff’s proven
damages;
ii. The defendant shall furnish the plaintiff with an undertaking for
future medical expenses in terms of section 17(4)(a) of Act 56 of
1996, limited to 100% for the cost of future accommodation of
the patient in a hospital or nursing home or the treatment of or
rendering of service or supplying of goods to him arising out of
injuries sustained by the patients in a motor vehicle which
occurred on 25 October 2019.
iii. The g eneral damages are postponed sine die
iv. Absolution from the instance is granted in respect of the claim
for the past and future loss of earnings ;
v. The defendant shall pay the costs of this plaintiff’s taxed costs
on party and party scale .
vi. The defendant shall pay the costs of the counsel subject to
scale B of sub -rule (3) of rule 67A
FLATELA LULEKA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This Judgment was handed down electronically by circulation to the parties’ and or
parties’ representatives by email and by being uploaded to CaseLines. The date and
time for the handed down is deemed to be 10h00 on 17 January 2025
Counsel for Plaintiff :Adv D Jele
Instructed by : : Sotshi ntshi Attorneys
Date of the Hearing : 23, 25, October 6 and November 202 4
Date of the Judgement : : 17 January 2025