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Delivered : This judgment was handed down electronically by circulation to the
parties' representatives by email . The date and time for hand -down is deemed to be
on 24 March 2025 at 10H00.
[1] Introduction .
This is a claim for loss of earnings following a motor vehicle accident in which
the Plaintiff was involved, which took place on 05 June 2021 . Merits were
conceded 100% by the Defendant and future medical expenses were settled . The
Court was informed that the general damages claim was rejected by the
Defendant and that has since been referred to the HPCSA. The trial proceeded
for the determination of loss of earnings. According to particulars of claim, the
Plaintiff claims R147 065 in past loss of income and R1 398 855 in future loss
of income. This figure changed through the heads of argument, without
amendment of the particulars of claim, following the amended actuarial
calculations to R 1 960 816. The Defendant agreed to the handing in of expert
reports contained in the affidavits in terms of Rule 38(2) of the Uniform Rules .
The Plaintiff and the Industrial Psychologist were also called to testify , at the
Defendant’s request. The D efendant di sputes that the Plaintiff suffered loss of
earnings as a result of this accident.
[2] Evidence:
Tebogo Nelson Sealetsa : He is the Plaintiff. He testified that he was involved in
a motor vehicle accident on 05 June 2021. At that time , he was working at
McDonal d in Acornhoek as maintenance officer . His duties involved recei ving
deliveries, clean ing the premises and the equipment and he was also in charge
of allocating shifts and work to staff members. Following the accident he was
admitted at Tintswalo Hospital with injur ies to his head, right arm , and to his
spinal cord. He was discharged after one week. He returned to work after three
months. He did not receive a salary during this period.
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[3] Upon his return to work , he tried doing the duties he did before the accident, but
he could not. It was decided at work that he would be allocated light duties until
his full recovery. He could no longer lift heavy objects and was too forgetful
making it difficult for him to run the shifts. He suffer s constant pain s every now
and then, forcing him to consult medical ly from time to time. Prior to the
accident, t here were prospects for him to becom e a shift manager which
prospects were dashed by the accident as his employer is not always happy with
his performance. At some stage, he was even asked by his employer as to why
he did not resign after the acciden t to which he responded saying , he could not
afford to resign.
[4] Under cross examination, the Plaintiff testified that he started working at
McDonald in 2018 as a crew member before he was promoted to maintenance
officer . He confirmed having consulted an Industrial Psychologist on 2 7 August
2022. He conceded that the said promotion is not reflected in the Industrial
Psychologist ’s report. He attributed this to the fact that he did not divulge this
information as he was not asked. He confirmed that according to the Industrial
Psychologist ’s report, his duties prior to the accident, were identical to those
after the accident. The reason for this was that it was only later after the
employer realised his difficulties that his duties were changed to lighter .
[5] At the time of the accident, he was earning R6 480 per month as his salary. This
was increased after the accident to R7 252 per month. This was a s a result of a
standard annual salary increase and not because of any promotion. When
confronted with salary slips that were discovered between the parties, he
confirmed that they reflect that he received his salaries for the months, June ,
July and August 2021, which are the months he spent away from work while
recuperating after the accident. These were the very months during which he
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claimed to have received no salary. He testified that he must have forgotte n that
he was paid when he testified that he was not paid. He conceded that he also
informed the Ind ustrial Psychologist that he was not paid for three months he
was away from work . He testified that he was still working at McDonald
although he now worked at the till while he also trains someone on maintenance.
[6] He conceded that the report received from his employer by the Industrial
Psychologist was positive about him and not reflective of an employer who
wanted him to resign. He also admitted that he was involved in another motor
vehicle accident in March 2022 and that this accident took place prior to his
consultation with all the expert witnesses. As a result of th e second accident, he
was out of work from March to December 2022 and he was not paid a salary
during this period . He has lodged a claim against the Defendant as a result of
the second accident and the claim is being handled by a different firm of
attorneys.
[7] Patricia Gaungalelwe Baloyi : She is the Industrial Psychologist . She is the one
who prepared the report referred to in the cross examination of the Plaintiff . She
received collateral information from the Jerry Mathebe, the Plaintiff’s boss (the
employer), to the effect that had it not been for the accident, the Plaintiff had
the potential to be promoted to the level of a shift manager in November 2021.
She produced the said report on 26 Oct ober 2023 after she had assessed the
Plaintiff on 27 August 2022. Before producing the report, she consulted with
the Plaintiff’s employer, to check if the Plaintiff’s employment status has
changed. The late production of the report was due to the late request from the
attorneys . No additional information was received necessitating the report to be
reviewed both at the time of p roduction and at the time she gave evidence in
court .
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[8] She confirmed what she wrote in the report to the effect that the report was valid
for 18 months and that should the matter not be settled in 18 months , a follow
up assessment of the Plaintiff would be necessary . That follow up assessment
did not take place as the information about the Plaintiff remained the same. On
the day she received the subpoena to come to give evidence , she called the
Plaintiff to confirm if he was still with the same employer and he confirmed.
She also confirmed this with his employer.
[9] She testified further that contrary to what the Plaintiff told her, the salary slips
she had at her disposal reflected that he was paid during the three months he
was not working , following the accident . He however did not receive the salary
on the level of a shift manager as he was not promoted . She prepared two
scena rios reflecting the postulations of the earnings he would have earned
without and with the promotio n as Scenario 1 and 2.
[10] Under cross examination, she conceded that it was an error on her part to
write in her report that the Plaintiff suffered past loss of income as he was paid
for the months he was not at work. She testified that she should have just
indicated that he suffered future loss of income due to the fact that he was not
promoted as envisaged by his boss. The report should have indicated that the
Plaintiff suffered no past loss of income. She testified that had the Plaintiff been
promoted to the position of a manager, he would be super vising the staff
members at the store. She admitted that such would be a light duty job compared
to what he was doing before.
[11] Although she was informed that the Plaintiff missed an oppo rtunity to be
promoted to a position of a shift manager, she did not ask if there was such a
vacancy at the store or if it has since been filled or who filled it . At the time she
prepared a report or consulted, she had not had sight of the Plaintiff’s
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employment certificate. She only saw it shortly before giving evidence in court .
She also conceded that t he collateral information she received from the
employer did not tally with the information in the employment certificate
especially when it comes to benefits of a manager.
[12] She testified further that she was aware that at the time she consulted the
Plaintiff, he was a victim of two motor vehicle accidents. The Plaintiff told him
that the second accident caused him a leg fracture . Her assessment was to focus
on the first accident. She did not even have the medical records of the second
accident. For these reasons, she could not tell the court as to what impact the
second accident had on the Plaintiff’s loss of earnings.
[13] She confirmed that the Plaintiff’s employment certificate reflected that he
did not go to work from 26 March 2022 to 31 Dec ember 2022 as a result of the
second accident and was not paid a salary for this period. She also admitted that
it was only after the second accident that the Plaintiff suffered the past loss of
income. She admitted that her report contained errors on this aspect and that this
affected the actuarial calculations negatively as the Actuary relie d on her report
to compile the actuarial rep ort. She was also critical of the Actuary’s references
in his report to a period from March to December 2022 during which, the
Plaintiff was said to be on leave. She indicated that the Actuary should have
focused on the impact of the first accident only.
[14] Before closing the case for the Plaintiff, affidavits by the following experts
were handed in in terms of Rule 38(2) : Affidavit by an Orthopaedic Surgeon ,
a Neurosurgeon , a Clinical Psychologist , an Occupational Therapist , an
Industrial Psychologist and an Actuary. The Plaintiff ’s counsel referred to a
document called an “addendum ” which was prepared by the Actuary , the
contents of which differ drastically from th ose in the affidavit handed in in
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terms of Rule 38(2) . Unlike the “addendum,” all the reports handed in as
exhibits were discovered by the Plaintiff in terms of Rule 36(9) . The
Plaintiff’s counsel argued that the “addendum” was an attempt to rectify the
errors exposed in the Industrial Psychologist’s report to which she admitted
during the trial . The “addendum” was only prepared while the trial was
underway and that is the reason it was not discovered in terms of Rule 36(9).
I will deal with the weight to be attached to the “addendum” later .
[15] With this evidence, case for the Plaintiff was closed and the Defendant also
closed its case without leading evidence.
[16] Closing a rguments .
In closing arguments, t he Plaintiff ’s counsel submit ted that the Court should
award R1 960 816.00 in future loss of earnings based on Scenario 2 , in favour
of the Plaintiff, in view of the promotion possibility contained in collateral
information referred to in the Industrial Psychologist ’s report . He submitted
further that the moment the Defendant conceded the merits, there was no need
for the Plaintiff to lead evide nce. It was unfair therefore, for the Defendant to
have raised question s about the impact of the second accide nt during the trial,
as they had not pleaded that defence in the plea. He further submitted that t he
discrepancies around the Plaintiff ’s possible promotion and the benefits he
would have received compared to the employment certificate should be
addressed by the application of contingencies by the Court .
[17] The Defendant ’s counsel on the other hand submitted that the Court should
attach no weight to the reports prepared by the Actuary and the Industrial
Psychologist saying they were prepared based on the outcomes of second
accident which is not the subject of the current claim. He further submitted that
there was no sufficient evidence to sustain the postulation that the Plaintiff
would have been promoted in November 2021 . Contingencies, he argued,
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cannot be used to address inconsistencies and discrepancies in the reports. For
these reasons, he submitted that the Plaintiff’s claim should be dismissed.
[18] It is trite that in claims for unliquidated damages the Plaintiff is expected
to lead evidence to prove its loss.1 This is the norm irrespective of whether the
claim is defended or not. Regardless of the pleadings or concessions , the
Plaintiff has a duty to prove damages by leading evidence .
[19] The role of experts .
Two issues are determinative of the outcome of this action: They are the impact
of the second accident on the person of the Plaintiff and the expert reports . The
second issue involves the weight to be attached on the experts’ reports in light
of the inaccurate or inadequate facts presented to their authors . This issue is
intertwined with the first in respect of the impact of the second accident.
[20] Before unpacking the impact of the second accident, it is imperative to first
explain the role of the experts in a trial. In Michael and Another v Linksfield
Park Clinic PTY LTD2 the Supreme Court of Appeal held ,
“[I]t is perhaps as well to re -emphasise that the question of r easonableness and
negligence is one for the Court itself to determine on the basis of the various, and
often conflicting, expert opinions presented. As a rule, that determination will not
involve considerations of credibility but rather the examination of the opinions and
the analysis of their essential reasoning, preparatory to the Court's reaching i ts own
conclusion on the issues raised .” This essential difference between the scientific
and the judicial measure of proof was aptly highlighted by the House of Lords in
the Scottish case of Dingley v The Chief Constable, Strathclyde Police 200 SC
(HL) 77 and the warning given at 89D - E that:
‘(o)ne cannot entirely discount the risk that by immersing himself in every detail
and by looking deeply into the minds of the experts, a Judge may be seduced into
a position where he applies to the expert evidence the standards which the expert
1 See Knight v Harris 1962 (2) SA 317 (SR) and Economic Freedom Fighters v Manuel 2021 (3) SA 425 (SCA) .
2 2001 (3) SA 1188 (SCA) para 34 & 40.
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himself will apply to the question whether a particular thesis has been proved or
disproved - instead of assessing, as a Judge must do, where the balance of
probabilities lies on a review of the whole of the evidence. ’ [My emphasis].
[21] Talking of about a role of an expert, Fisher J said the following in MS v
Road Accident Fund ,3
“Actuaries rely on look -up tables which are produced with reference to statistics.
Such statistics are derived, inter alia, from surveys and studies done locally and
internationally in order to establish norms, representativeness, and means. From
these surveys and studies, baseline predictions as to the likely earning capacity of
individuals in situations comparable to that of the plaintiff are set. These baseline
predictions are then applied to a plaintiff’s position using various assumptions and
scenarios which should properly be gleaned from proven facts .
The general approach is to posit the plaintiff, as he is proven to have been in his
uninjured state and then to apply assumptions as to his state with the proven
injuries and their sequela. The deficits which arise between these scenarios (if any)
are then translated with reference to the various baseline means and norms used.
These exercises are designed with the aim of suggesting the various types of
employment which would hypothetically be available to the plaintiff in both states.
The loss would then be calculated as the difference in earnings derived between
the pre - accident (or pre morbid state as it is often called) and post - accident or
post morbid state.
41. In this exercise, uncertainty as to the departure from the norms, such as early
death, the unemployment rate, illness, marriage, other accidents, and countless
other factors unconnected with the plaintiff’s injuries which would be likely, in the
view of th e court, to have a bearing both on the established baseline used by the
actuary and on the manner in which the plaintiff, given his particular
circumstances, would fare as compared the established norm are dealt with by way
of “contingency” allowances. Given the purported mathematical and percentage -
based inquiry of the actuarial assessment, these contingencies are expressed in
percentages which are brought to bear on the mathematical reflections which have
3 [2019] 3 All SA 626 (GJ) para 36 -41.
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been derived from the assumptions used. In essence the platform for assessment is
no more than one a technique which is offered to the court in a bid to allow it to
exercise its discretion. This mechanism should not be understood as being
prescriptive or confining of the assessment that the court is called on to make. The
court has a wide discretion as to the assessment of loss. This task is judicial and is
founded to a large extent on experience, intuition, and general right -thinking. ” [My
emphasis].
[22] The challenge the experts faced in this claim is that at the time of the ir
examination, they consulted a person who had been through two car accidents
one of which was the subject of their examination, and the other was not . A
period of nine months separated the two accidents . This claim is about loss of
income , allegedly suffered by a person who at the time he was examined by the
experts, he was himself the product or outcome of two accidents. The two
accidents appear to have been very serious, with the first keeping him out of his
job for at least three months, while the next one kept him away for about nine
months.
[23] While each accident impacted the Plaintiff differently, the person who was
examined by the experts had already been through all two accidents. The experts
did not just complete the reports speculating how the Plaintiff could have
performed, reacted and managed after the first accident. As demonstrated
hereunder, they evaluated the Plaintiff’s “current status,” meaning, his
performance at the time of examination. Therefore, it was rightly argued for the
Defendant that the loss of earnings that the Plaintiff presented at the time he was
examined by the experts, could have been the results of the first, the second or
both accidents.
[24] To demonstrate the above assertions, the Plaintiff was examined by the
Orthopaedic Surgeon on 15 April 2023. This was 22 months after the first
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accident and 13 months after the second one. Although the medical records from
the second accident are not before this Court, it was placed on record by the
Industrial Psychologist and echoed by the Plaintiff ’s counsel that the injuries
thereof involve left humerus fracture . The first accident impacted the Plaintiff
on the head and the shoulder . Upon consultation with the Plaintiff, the
Orthopaedic Surgeon noted in his reports, “left humerus fracture ” as one of the
injuries reflected in the medical records presented to him .4
[25] Under a heading, PRESENT MAIN COMPLAINTS, the Orthopaedic
Surgeon noted amongst others the following: “ 1. Painful left shoulder and neck,
2. Aggravated by standing and walking for prolonged periods, 3. Struggles with
lift[ing] any heavy objects. ”5 He went on to note that the Plaintiff was unable to
walk for longer distances.
[26] It appears to me then, that the same reports that the Plaintiff received to
process this claim, could still be relevant in respect of the other claim he lodged
following the second accident , at least for purposes of loss of earnings, as they
are the reports prepared after examining the person who has been through the
two car accidents. The approach in respect of this type of claim needs to be
distinguished from the approach in respect of a claim for general damages
wherein the damages suffered fro m each incident can be isolated. Here, the
Court is seized with a claim for loss of earnings that are postulated on
assumptions of what the Plaintiff would have earned until his retirement, had it
not been for the accident. The two accidents did not produce two claimants in
respect of loss of earnings, but one. They may however have produced two
different bases for the claim in respect of that loss of which one person, being
the Plaintiff, would have earned .
4 See paragraph 3.3.2 on p. 535 of the paginated bundle.
5 See paragraph 6.1 on p. 537 of the paginated bundle.
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[27] The Plaintiff argues that his current claim for future loss of income has
nothing to with the second accident . In Choane v Road Accident Fund6 a case
involving a claim in which the Plaintiff had been through two different motor
vehicle accidents, the Court held that ‘the expert s had the obligation to give the
Court the comfort that the earlier accident had no influence [on the current status
of the claimant , whose claim was premised from the second accident ].’ Without
this, the claim for future loss of earnings could not be sustained. I align myself
with these sentiments. In casu , the experts would have to exclude the possible
influence or role of the latter accident, something they could not even attempt
to do without the medical records before them.
[28] Beside the approach above, to the extent that it may be argued or presumed
that the possible loss of earning suffered from the first accident could be
separated from the second one , I am of a view that such loss would have been
suffered only up to the date of the second accident. This would entail that any
calculation for the loss of earning would culminate with the second accident, as
opposed to culminating on the date the Plaintiff retires . The calculation of
possible loss of income from the second accide nt is the one that may culminate
in the Plaintiff’s retirement. Failure to do this may result in what the Plaintiff’s
counsel cautions against when he says in his heads of argument, ‘it is a principle
of the South African law that a person should not receive a compensation twice
for the same loss.
[29] It is thus not surprising that c laimants who find themselves in the position
of the Plaintiff where their claims could be based on two separate accidents,
consolidat e their claims, to avoid situations where the possible result from one
accident cannot be excluded as the cause of claim – see for example Kruger v
Road Accident Fund7. In circumstances of this case where the Plaintiff chose
6 (25807/2014) [2024] ZAGPJHC 1138 (7 November 2024) .
7 (30579/2008) [2014] ZAGPPHC 682 (3 September 2014) .
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not only to make separate claims, but to also lodge them using different
attorneys, it makes it near impossible to consolidate the claims. I understand the
reasoning behind the Defendant’s argument that to deal with a possibility that
there could be basis of a loss of income from the first accident, the Plaintiff may
have to alert the court in respect of the claim based on the second accident about
the outcome in the current claim, since he would have missed the opportunity
to consolidate the claims.
[30] Evaluation of facts: Loss of income .
The closest that the facts of this case came to proving loss of earnings was when
through collateral information, the Industrial Psychologist established from the
Plaintiff’s employer that due to his injuries, he missed out on an opportunity to
a position of a shift manager in November 2021 . This information was however
not verified against the employment certificate. Had this been done, it would
have reflected that the collateral information does not correspond with that in
the employment certificate. No information was made available as to whether
this position was vacant at any stage and whether it was to be filled in November
of 2021 . Similarly, no information was availed on whether it was filled and who
filled it.
[31] It can be assumed , though that there was no such vacancy at the Plaintiff’s
place of work as he testified that he is the one currently training the staff at his
employment , something that should be expected to be done by a manager , if
there was one . According to the Industrial Psychologist, the Plaintiff worked for
McDonald since 2018 without any promotion . Collateral information in the
reports sugge sts that he missed out on an appointment to a managerial position ,
that was waiting to take pl ace in the nine months’ period between the two
accidents, which appointment, for unexplained reasons did not happen . This
version sounds to be too remot e to be probable . To the extent that it could be
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probable , applicable contingenc ies and the duration before the second accident
would render the calculation of any possible loss of income, a futile exercise.
[32] At the commencement of the trial, and according to the particulars of
claim, the claim against the Defendant is not just for future loss of income, but
the past loss of income too. Counsel for the Plaintiff seems to still argue for
these even though the existence of the basis for this claim was recanted by the
Industrial Psychologist . The claim by the Plaintiff that he suffered such was
false as it was disproved by his payslips. Not only did the Plaintiff mislead the
Industrial Psychologist, but this Court too. The consequential result is that the
Actuary was handed a report with wrong information causing him to make
wrong calculations. It is immaterial to establish, for present purposes if the
Plaintiff was deliberate in misleading the Court and the Industrial Psychologist
as it is not about to make credibility findings. It suffices, rather to state that no
evidence was led that establishes that there was past loss of income suffered by
the Plaintiff.
[33] The value of expert reports .
The last aspect deserving the Court’s attention is the weight to be attached to
the reports prepared by the experts . All the expert reports handed in by the
Plaintiff, were prepared following the consultations conducted after the second
accident. While the se reports remain relevant for the claim s as a whole, the
Court cannot attach the necessary weight to them as they are not able to exclude
the impact of the second accident from the Plaintiff’s current status being the
status he was in at the time they consulted him .
[34] Over and above that , it appears that these reports were built on factual
inaccuracies and improbabilities . The Industrial Psychologist testified that she
was informed by the Plaintiff as much as he also testified, that he was not paid
a salary for the period he was not at work following the first accident. For this
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reason, the Industrial Psychologist concluded in her report that he suffered a
past loss of income . As indicated above, t his was false . The Plaintiff explains
himself by saying he had just forgotten about this aspect. His explanation comes
way too late as the Industrial Psychologist’s report was already penned down
and handed over to other experts who prepared their own reports based on hers.
[35] There is more reason to attach less weight to the Industrial Psychologist’s
report. The Industrial Psychologist indicated in the report that the report was
valid for 18 months only and that should the claim not be settled in this period,
a follow up assessment of the Plaintiff would be necessary. At the time she gave
evidence, the 18 months’ period had long lapsed, and there had not been a follow
up assessment of the Plaintiff, which is a condition to revive the validity of the
report.
[36] Clause s of this nature make sure that the information contained in the
report remains accurate and talking to the present situation of the patient. This
clause means that the Court cannot receive information in the report unless the
condition to revive the validity is met. The fact that the author of the report gave
a phone call to establish if the Plaintiff was still working for McDonald does not
mean that the Plaintiff has been reassessed, unless the reassessment meant
making a phone call to establish the aspect of change in the employment, in
which case the condition should have stipulated that.
[37] When conditions are put in place, they bind even those who authored them .
The Industrial Psychologist was authorise d to change the rules while the game
was on. She put in the condition under which the report may still be valid if the
18 months’ expires, and she should adhere to it . The only difference is that she
gave evidence under oath, but she made reference to the expired report .
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[38] The Actuary on the other hand prepared his report based on inaccurate
information presented to him in the Industrial Psychologist’s report. He also
made reference to the Plaintiff’s circumstances after the second accident. Since
he did not testify in person, nothing of the criticism levelled against him by the
Industrial Psychologist could be verified. As indicated above, Plaintiff’s counsel
made reference to an “addendum” prepared by the Actuary, which was not made
under oath. It could not as such be consi dered as evidence tendered in terms of
Rule 38(2). There is equally no explanation in this document as to why the
calculations in it differ drastically from those handed in by way of affidavit, by
the same Actuary .
[39] The affidavit received as evidence prepared by this Actuary puts the total
loss of income under Scenario 1 (semi -skilled worker) at R1 299 155 and under
Scenario 2 (supervisor) , at R1 545 920. From the addendum, the figure under
Scenario 1 is now R975 089 whereas the figure under Scenario 2 is now even
higher at R1 960 816. The differences are not explained. The date on the
addendum, is 18 February 2025 and it reflects the calculation date as 01 March
2025, which suggest s that the addendum was prepared rece ntly.
[40] Same information that laid before the Actuary when he prepared the report
dated 30 October 2023 was laid before him when preparing the addendum,
including the Industrial Psychologist’s report dated 26 October 2023. He also
had t he instruction email from the attorneys dated 18 February 2025, the
contents of which are to the Court unknown. But the instruction email was also
part of what the Actuary received when preparing the 2023 report. In actual fact,
the addendum does not do what it is supposed to do which is to supplement,
correct or clarify the earlier report. It instead gives a different information
witho ut any explanation thereto.
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FOR THE PLAINTIFF : ADV. S MBHALATI
INSTRUCTED BY: NGOMANA & ASSOCIATES ATT
MBOMBELA
FOR THE DEFENDANT MR. FG SILIGA
INSTRUCTED BY : STATE ATTORNEY
MBOMBELA
DATE S HEARD : 17, 19 & 20 FEBRUARY 2025
DATE HEADS OF ARGUMENT
WERE SUBMITTED : 04 MARCH 2025
JUDGMENT DELIVERED: 24 MARCH 2025