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[2025] ZAGPJHC 138
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Ntsapo v Road Accident Fund (31932/2004) [2025] ZAGPJHC 138 (22 January 2025)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: 31932/2004
DATE
:
22-01-2025
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES /
NO.
(3) REVISED.
In
the matter between
PHINDIWE
ELIZABETH NTSAPO
Plaintiff
and
THE ROAD ACCIDENT
FUND
Defendant
JUDGMENT
WEIDEMAN,
AJ
:
Matter number 40 on this week’s
roll is Phindiwe Elizabeth Ntsapo and the Road Accident Fund, case
number 31932/2004. The
accident from which this claim arose occurred
on the 24
th
of January 2000. The plaintiff was born on the
2
nd
of October 1957. The plaintiffs claim as per the
Particulars of Claim consists of the following:
1.
future loss of earnings R250000,
2.
future medical expenses R300000,
3.
general damages R300000,
Total
R850000.
Counsel was asked whether the
particulars of claim had been amended, and the answer was in the
negative. As far as the aspect of
negligence and/or liability is
concerned same had been conceded in favour of the plaintiff on or
about the 9
th
of June 2022, 22 years after the accident.
Summons in this matter was issued,
according to the registrar’s stamp on the front of the summons,
on the 30
th
of December 2004.
Without having to consider and deal
with the plaintiff’s injuries in any detail, the injuries as
per paragraph 7 of the Particulars
of Claim consisted of the
following: head injury, head and scalp laceration, a lumbar spine
injury. Those were the injuries which
the plaintiff reported in 2004
when summons was issued.
The matter commenced with a debate
between the bench and counsel on the applicability of the
Mvumvu
decision on the plaintiff’s claim for general damages.
Subsequent to a discussion of that issue and in particular the
Constitutional
Court judgment, it was agreed that the matter must be
dealt with in terms of the Transitional Provisions Act and after
taking instructions,
counsel advised that the aspect of general
damages will be dealt with in accordance with the written offer of
settlement that had
been received from the defendant. This offer of
settlement was made on or about the 3
rd
of June 2010 and
it was for an amount of R25 000.
On the 22
nd
of January when
the matter continued, counsel moved an application in terms of Rule
38(2.) This application dealt only with the
evidence of the
plaintiff’s experts. The application was granted.
As far as the various heads of damage
were concerned, the plaintiff did not claim any past hospital medical
expenses, so that was
not discussed. As far as future medical
expenses are concerned, an Undertaking was tendered in 2010. The
aspect of future medical
expenses will accordingly be dealt with on
the basis of the awarding of an Undertaking in terms of section
17(4)(a) of the Road
Accident Fund Act.
As I have indicated, the aspect of
general damages is no longer in dispute as the plaintiff has accepted
the tendered amount of
R25000.
What is left is the plaintiff’s
claim for loss of income. Effectively, the totality of the argument
that was presented falls
outside the ambit of the Particulars of
Claim. The particulars of claim makes no provision for a claim
for past loss of income,
it only addresses a claim for future loss of
income. The plaintiff is retired and receives a pension. In the
circumstances there
ought to be no future loss of income.
Counsel was however provided with an
opportunity to present argument in respect of loss of earnings. The
difficulty in addressing
the argument is that there is no
documentation before Court setting out the plaintiff’s
employment history from the time
of the accident to date. There is no
evidence as to whether the plaintiff worked, and if so when and at
what wage. To the extent
that summons had been issued as far as back
as 2004, 21 years ago, one would have thought that the legal
representative of the
plaintiff would have asked her to keep a record
of her employment to enable proper documentation to be placed before
Court. The
value of the actuarial calculation is solely dependent on
the accuracy of the documentation on which it is based. That
documentation
is not before Court. There is, therefore, no evidence
as to how or where the actuaries obtained the time periods or figures
used
in their calculation. The claim for loss of income insofar as it
is necessary to do so, is accordingly dismissed.
The order reads as follows:
1
The
plaintiff is entitled to 100% of such damages as she may be able to
substantiate.
2
In respect
of the plaintiff’s claim for future medical expenses she is
entitled to an Undertaking in terms of section 17(4)(a)
of the Road
Accident Fund Act, for such future hospital, medical or ancillary
expenses as she may require.
3
The
plaintiff’s claim for general damages is limited to the sum of
R25000.
4
The
plaintiff, having been substantially successful is entitled to her
party and party costs as taxed or agreed. Counsels’
fees will
be on scale A.
ORDER
In matter number 40, the matter was
presented, and
ex
tempore
ruling was given. That has
now been reduced to writing. I have that order in front of me, I mark
it X for identification.
WEIDEMAN, AJ
JUDGE OF THE HIGH COURT
DATE
:
……………….