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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 22151/17
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 11-12-2024
Signature:
In the matter between:
PHILLIP NTAMBO NHLAPO PLAINTIFF
AND
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
THIS JUDGEMENT HAS BEEN HANDED DOWN REMOTELY/ELECTRONICALLY
AND SHALL BE CIRCULATED TO THE PARTIES BY WAY OF E-MAIL/
UPLOADING ON CASELINES AND/OR COURT ONLINE. ITS DATE OF HAND
DOWN SHALL BE DEEMED TO BE DECEMBER 10, 2024
NTANGA AJ:
Introduction
[1] Plaintiff instituted an action against the Road Accident Fund (“the Defendant”)
for damages suffered as a result of injuries he sustained in a motor vehicle
accident which occurred on May 8 , 201 6, a long Moagi Road Spruitview,
Germiston, Gauteng. At the time of the accident, Plaintiff was a pedestrian
when an unknown motor vehicle, driven by an unknown driver collided with
Plaintiff.
[2] It is not in dispute that as a result of the collision, the Plaintiff sustained the
following injuries:
2.1 amputation of the left toe.
[3] Prior to trial proceedings, Plaintiff filed a notice in terms of Rule 38(2) seeking
an order in the following terms:
3.1 that reports and affidavits and/or affirmations of the following experts,
notices of which were furnished in terms of Rule 36(a) of the Uniform
Rules of the Court, be admitted into evidence at the hearing on affidavit
in terms of Rule 38(2):
3.1.1 Dr E.A. Mjuza (Orthopaedic Surgeon);
3.1.2 Dr Z. Radebe (Clinical Psychologist);
3.1.3 L. Mashishi (Occupational Therapist);
3.1.4 T. Tsiu (Industrial Psychologist); and
3.1.5 GW Jacobson (Actuary).
[4] Plaintiff’s application in terms of Rule 38(2) was not opposed to by the
Defendant and an order was granted as prayed for in terms of Plaintiff’s notice
of motion.
[5] Defendant conceded merits at one hundred percent and an offer was made by
the Defendant in the sum of R350 000.00, which offer was accepted by the
Plaintiff.
[6] What is left for determination is whether there has been any Past and Future
Loss of Earning Capacity, if so, quantification of damages in respect thereof.
The sequelae of the injuries
[7] Plaintiff engaged five experts to support his claim. The Orthopaedic Surgeon
noted that Plaintiff suffered traumatic amputation on his left big toe as a result
of the injury. The Clinical Psychologist noted that Plaintiff’s intellectual function
is within the borderline range. Plaintiff presented emotional difficulties which
may have existed prior to the accident and exacerbated after the accident.
Plaintiff demonstrated a feeling of being disabled and this affected his
psychological well-being. The Clinical Psychologist recommended that Plaintiff
be compensated.
[8] The Occupational Therapist report states that Plaintiff has physical difficulties.
These include: (i) observed body scars; (ii) restricted active range of
movement; (iii) inability to balance on and bear weight through one leg; (iv)
protective extension reactions were delayed to the left; and (v) lower tolerance
for prolonged standing and walking.
[9] From a functional perspective, the Occupational Therapist opined that Plaintiff
has suffered a decline in earning capacity, particularly in physically
demanding occupations.
[10] The Industrial Psychologist report states that given his age of 54 years at the
time of the accident , his Grade 11 level of education, work experience and
current labour trends, it is projected that in uninjured state, Mr Nhlapo may
have continued working in his pre -accident rol e or similar occupations,
receiving his premorbid earnings with annual inflationary increases until
retirement age of 65.
[11] The Industrial Psychologist report concludes by stating that:
“Mr Nhlapo is likely to find it difficult to secure suitable employmen t in his
current form. He is likely to remain unemployed with a total loss of past and
future earnings indicated until the end of his working life”.1
Submissions
[12] Plaintiff’s Counsel argued that Plaintiff was 53 years old when he was injured.
The Past loss of income is calculated at 7.5% of R308 096 and the amount
claimed is R 150 000.00. Contingency has been calculated at a higher amount
and this is enough penalty for the Plaintiff. She further argued that Plaintiff has
been penalised by higher contingency of 10% for Future Loss of Income
calculated at R103 963.00. She argued that the contingency of 10% is higher
than normal. In total, Plaintiff argued for an amount of R412 059.00 for both
Past and Future Loss of Income.
[13] It is important to note that as at the time that the matter appeared on trial,
Plaintiff’s particulars of claim were not amen ded. Notice of intention to amend
particulars of claim was uploaded on Caselines on the date of hearing and
after the matter was heard. The amended particulars of claim were uploaded
on Caselines on the same day and after the matter was heard.
[14] In any event, when Plaintiff’s Counsel indicated intention to amend the
particulars of claim from the bar without any notice, Defendant’s Counsel
objected and indicated that Defendant is not waiving its rights in terms of Rule
28 of the Uniform Rules of the High Court.
[15] This attempted amendment of particulars of claim is not in compliance with
Rule 28 of the Uniform Rules and is irregular. The amount claimed in the
particulars of claim for Past Loss of Income is R150 000.00 and R1 000
1 See page 033-133 on Caselines.
000.00 for Future Loss of Income. There is no effective amendment of the
amounts claimed as I have indicated that there is no amendment of the
particulars of claim in terms of Rule 28 of the Uniform Rules of the High Court.
[16] Defendant’s Counsel argued that Plaintiff was unemployed at the time of the
accident and was receiving a government disability grant in the sum of R1680
per month from 2006 to date of accident which was ten years before the
accident. She argued that it is not the accident that made him not to work,
instead, he was unable to work because of his disability. Consequently,
Plaintiff h as not suffered any loss of earnings as he had difficulties to work
prior to the accident. She argued further that as Plaintiff did not provide
collateral information to support his claim, the court should apply a 50%
contingency as was applied in A.A. Mut ual Insurance Association Ltd v
Maqula.2 She further argued that t here is no supporting information to
substantiate the claim that Plaintiff was employed from 2006 to 2016 when the
accident occurred. She further argued that there was no information
supporting what Plaintiff earned when working for Dr Nhlapo in 2003.
Past and Future Loss of Income
[17] The Occupational Therapist report states that Plaintiff sustained a broken left
lower limb in 1981 and w as admitted at Chris Hani Baragwanath Hospital. He
was also diagnosed with a chronic illness, but he was never admitted in
hospital for this.
[18] The Industrial Psychologist report states that Plaintiff was involved in a motor
vehicle accident in the mid -1980s and sustained an injury to his left thigh. He
had to undergo surgery to his left thigh to insert internal fixations. He denied
ever being diagnosed with chronic conditions prior to the accident.
[19] Regarding Plaintiff’s employment history, the Industrial P sychologist reported
that Plaintiff completed Form 3 in 1980 at Senaoane Secondary School. He
2 A.A. Mutual Insurance Association Ltd v Maqula 1978 (1) (A).
then acquired informal skills training in Electrical Engineering in 1981 during
his employment at Thon Lighting. He does not have a drivers’ licence. He first
entered employment in 1981 and worked as an Assistant Electrician at Thon
Lighting. In 1982 he secured employment as a Machine Operator at Bic Ball
Pens. Vocational analysis of these positions indicates that his work required
prolonged standing, frequent walk ing, frequent lifting and carrying of medium
loads, as well as frequent below the knee level and above shoulder level
reach. The Industrial Psychologist reports that due to his poor standing and
walking endurance, the claimant does not possess the physical capacity to
execute any of these duties.
[20] The Industrial Psychologist records Plaintiff’s next employment to be in 1983
to 1991 where he worked as an Inserter at The Star Newspaper, it is however
unclear as to how long did he continue with this position. The last employment
is when Plaintiff worked for Dr Nhlapho as a General Worker from 2003 until
2004 when Dr Nhlapho passed away.
[21] There is also an indication in the Industrial Psychologist report that Plaintiff
worked as a Casual General Worker from 19 92 to date of accident and he
earned R500.00 to R700.00 per week. What is not clear is how did Plaintiff
work as a Casual General Worker while he worked for Dr Nhlap ho. This is
also in contrast with the Occupational Therapist report which states that at the
time of the accident the Plaintiff was unemployed and was actively job -
seeking.3
[22] The Actuarial report has taken note of other expert reports indicating that
Plaintiff was unemployed at the time of the accident.4 The report indicates that
Plaintiff received disability grant from 2006 and that this was converted to old
age pension when he turned sixty years old.
[23] Taking into account the contradictory reports on whether Plaintiff was
employed or unemployed at the t ime of the accident, I have a difficulty in
3 See page 033-77 on Caselines.
4 See page 033-135 on Caselines.
accepting a version that he was employed. It appears that the Actuary whilst
acknowledging these contradictions, he proceeded to make calculations for
Past Loss of Income. There is no evidence to support that Pla intiff was
employed at the time of the accident. There is no reliable evidence of what
services he rendered, amounts charged and received. The amount indicated
as Plaintiff’s income is not supported by any evidence. There was no evidence
at all to substant iate existence of this income. It is important to indicate that if
this amount is based on casual or part time jobs, this does not make it regular
income. The Court was not placed in a position to determine existence of this
income. The amount indicated as weekly income appears to be a thumb suck
amount. Considering that this would have been a casual work, there is no
certainty of whether Plaintiff would receive this amount every week. The
probabilities are in my view very slim.
[24] Section 9 of the Social Assistance Act No. 13 of 2004 provides that:
“…
9. A person is, subject to section 5, eligible for a disability grant, if he or she-
(a) has attained the prescribed age; and
(b) is, owing to a physical or mental disability, unfit to obtain by virtue of any
service, employment or profession the means needed to enable him or
her to provide for his or her maintenance”.5
[25] In order for Plaintiff to qualify for the government disability grant, he should
have met the requirement of Section 9 of the Social Assistance Act. He should
have suffered disability that qualified him for the social security grant.
Secondly, this disability should have made him unfit to obtain employment
which would enable him to provide for his maintenance. The argument that he
was still able to find employment is illogical as this is in contrast with the
statutory requirements for a person to be eligible for disability grant.
5 Social Assistance Act No. 13 of 2004.
[26] In Dippenaar v Shield Insurance Co Ltd6 the Court stated that:
“In our law, under lex Acquilia 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”.7
[27] The Court in Dippenaar v Shield Insurance Co Ltd accepted the argument that
“the Court must calculate, on the one hand, the present monetary value of all
that the plaintiff would have brought into his estate had he not been injured,
and, on the other hand, the total present monetary value of all that the plaintiff
would be able to bring into his estate whilst incapacitated by his injury”.8
[28] In Rudman v Road Accident Fund9 the Supreme Court of Appeal stated that:
“…
A physical disability which impacts upon capacity to earn does not necessarily
reduce the estate or patrimony of the person injured. It may in some case s
follow quite readily that it does, but not on the facts of this case. There must
be proof that the reduction in earning capacity indeed gives rise to pecuniary
loss”.10
[29] In Z.P.M v Road Accident Fund 11 the Court followed the matter of Grewal v
Nauman where the Court of Appeal for British Columbia stated that:
6 Dippenaar v Shield Insurance Co Ltd 1979 (2) (AD).
7 See note 6 supra at page 917 para A-B.
8 See note 6 supra at page 917 para E.
9 Rudman v Road Accident Fund 2003 (2) SA 234 SCA.
10 See note 9 supra at page 241-243 at para H-I.
11 Z.P.M v Road Accident Fund (29281/22) [2024] ZAGPHC 421 (6 May 2024).
“The essential purpose of an award for past loss of opportunity diminished
earning capacity is to provide the plaintiff with full compensation for all of his
pecuniary losses, subject to rules of remoteness…
As an initial threshold issue, the plaintiff must demonstrate both impairment to
his or her earning capacity and that, in this case there is a real and substantial
possibility t hat diminishment in earning capacity will result in a pecuniary
loss”.12
[30] The court in Z.P.M V Road Accident Fund followed the decision of Mvundle v
Road Accident Fund13 where the court stated that:
“It is trite that damages for loss of income can be gr anted where a person has
in fact suffered or will suffer a true patrimonial loss in that his or her
employment situation has manifestly changed. The plaintiff’s performance can
also influence his/her patrimony if there was a possibility that he/she could
lose his/her current job and/or be limited in the number and quality of his/her
choices should he/she decide to find other employment”.14
[31] Regarding future Loss of Income, it is reported that Plaintiff was 54 years old
at the time of the accident. He was left with few years before attaining
retirement or old age pension stage. When dealing with how Plaintiff’s Past
and Future Loss of Income i s calculated , the actuarial report states th at
having regard to the accident the income is taken as nil, since it is assumed
that Plaintiff would also have collected the same social grant pre -morbidly due
to his low level of income. They calculated Plainti ff’s loss as the difference
between the value of his income but for the accident and the value of his
income having regard to the accident and his life expectancy.
[32] I have a difficulty in accepting existence of additional income arising from
casual general work performed by Plaintiff prior to the accident. As indicated
12See note 11 supra at para 24.
13 Mvundle v Road Accident Fund (63500/2009) [2012] ZAGPHC 57 (17 April 2012) at para 42. See
also Scheepers v Road Accident Fund (893/2021) [2023] ZAFHSHC 248 (20 June 2023).
14 See note 13 supra.
above, there is no evidence provided to substantiate this claim of additional
income to the disability grant.
[33] As indicated above, Plaintiff was a recipient of disability grant for a perio d of
ten years before being involved in an accident. Other than the disability grant,
there is no evidence to substantiate a claim that Plaintiff was doing casual
work at the time of the accident. I struggle to understand how the actuary
concluded that Pla intiff is entitled to a Past and Future Loss of Income,
considering the conflicting report from the Industrial Psychologist, one part
saying he was unemployed and job seeking at the time of the accident and
the other part saying Plaintiff was doing casual general work at the time of the
accident.
Conclusion
[34] In my view there is insufficient evidence to sustain the claim for Past and
Future Loss of Income. The Industrial Psychologist and Actuarial reports were
of no assistance to the resolution of the Past and Future Loss of Income
claim.
[35] Plaintiff has failed to adduce ev idence demonstrating that his income earning
capacity was diminished because of the accident.
[36] In the result I make the following order:
1. Plaintiff’s application in terms of Rule 38(2) of the Uniform Rules of the
Court is granted.
2. The claim for Past and Future loss of earning capacity is dismissed.
3. Defendant is liable to the Plaintiff for 100% of the damages suffered by
Plaintiff arising from the motor vehicle collision which occurred on May 8,
2016.
4. Defendant shall pay Plaintiff the amount of R350 000.00 (Three Hundred
and Fifty Thousand Rands) in respect of General Damages.
5. The amount referred to in paragraph 3 and 4 above shall be paid into the
Trust Account of Plaintiff’s Attorneys of record being SS Ntshangase and
Associates, Account Number:
Account Holder: SS Ntshangase Attorneys
Bank : Nedbank
Branch : Business Eastrand
Branch Code : 128842
Account Type : Trust Account Number: 1[…]
6. The Defendant shall furnish the Plaintiff with a n undertaking up to 100% in
terms of section 17(4)(a) of Act 56 of 1996 to pay the costs of future
accommodation in a hospital or nursing home and such treatment,
services or goods as he may require , as a result of the result injuries that
he sustained as a result of the accident, upon proof thereof.
7. Defendant shall pay Plaintiff party and party either as taxed or agreed, in
the High Court scale B, which costs shall include the costs of counsel for
13-14 November 2024 and qualifying experts if any.
8. In the event that costs are not agreed Plaintiff and Defendant, Plaintiff shall
serve a notice of taxation on the Defendant’s attorneys of record.
9. Plaintiff shall allow the Defendant 180 (One Hundred and Eighty) court
days to make payment of the taxed costs.
10. There is no contingency fees agreement between the Plaintiff and his
attorney.
___________________________
M NTANGA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date of Hearing: 14 November 2024
Date of Judgement: 11 December 2024
Appearances:
Plaintiff’s Counsel: Adv Z Buthelezi
Instructed by: S.S. Ntshangase Attorneys
Defendant’s Counsel: Ms Nziyanziya
Instructed by: State Attorney - Johannesburg