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2025
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[2025] ZAGPJHC 581
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Nyasha v Road Accident Fund (019792/2023) [2025] ZAGPJHC 581 (13 May 2025)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: 019792/2023
DATE
:
13-05-2025
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
In
the matter between
CHIKODZA
NYASHA
Applicant
and
ROAD ACCIDENT
FUND
Respondent
JUDGMENT
WEIDEMAN,
AJ
: The accident from which this
claim arose, occurred on or about 21 October 2021 at which stage the
plaintiff was a pillion passenger
on a motorcycle. The plaintiff's
statutory section 19(f) affidavit in respect of the circumstances of
the accident may be found
on CaseLines 18-522. Having heard counsel
and having considered the documentation, I am confident that the
plaintiff was indeed
involved in the accident as averred and that the
insured driver was the predominant cause of the accident. The
required degree
of negligence is therefore present and the plaintiff
is entitled to 100% of such damages as he may be able to
substantiate.
In paragraph 10 of the particulars of
claim the plaintiff's injuries are recorded as follows:
1. a right distal femur fracture;
2. deep lacerations to the right lower
leg;
3. disfigurement and psychologically
sequelae.
The claim as reflected in paragraph 14
of the particulars of claim consists of the following:
Past hospital and medical expenses:
R 50 000
Future hospital and medical
expenses: R 136 244.63
Past loss of
income:
R 51 562
Future loss of
income:
R 1 077 964
General
damages:
R 650 000
In presenting the plaintiff's case,
counsel at the outset brought a rule 38(2) application, which was
granted in respect of paragraphs
1 and 2 thereof.
Counsel confirmed, from the bar, that
the claim for past hospital and medical expenses was not being
pursued any further and that
the claim for general damages must be
postponed
sine die
. The claim for general damages will
accordingly be separated from the other heads of damage and postponed
in terms of rule 33(4).
As far as future hospital medical
expenses are concerned, the medico legal reports filed of record
confirm future treatment and
as such it would be appropriate for the
defendant to provide the plaintiff with the standard statutory
undertaking in terms of
section 17(4)(a) of the Road Accident Fund
Act.
This brings us to the remaining issue
of loss of income. As far as the plaintiff's claim for past loss of
income is concerned, the
amount of R51 562 being claimed
represents the income that had been forfeited as a result of the
period of hospitalisation
and recovery after the accident and which
the plaintiff could have earned had the accident not occurred. There
is, as was also
debated with counsel, ample case law to confirm that
the earning capacity of an individual is unaffected by the legality
of his
or her status when it comes to the consideration of past or
accrued income. As such there is no impediment and it is in line with
the existing case law to allow the claim for past loss of income as
substantiated, being in the sum of R51 562.
The aspect of future loss of income or
impairment of earning capacity is more complicated. In the first
instance, the contract that
the plaintiff sought to engage in, in
coming to South Africa from his country of origin would have, had the
accident not occurred,
enabled him to earn approximately R215 000
per annum. However, the plaintiff is not an ignoramus and has a
number of qualifications
that enabled him to successfully start a
business in South Africa and which, three years after the accident in
2024, resulted in
him being able to record an annualised income of
R691 200, approximately triple that he would have earned had he
not been
in the accident and the original contract came into play.
Counsel valiantly attempted to present
evidence from the bar on the steps taken by the plaintiff to legalise
his stay in South Africa.
There is no reason to doubt the submissions
made by counsel. Factually, at the time when this matter came before
this court, the
plaintiff was not in possession of the required
documentation which would enable the court to award an amount for
future loss of
income on a quantifiable basis.
It does not matter whether the
calculation and consideration is done in South Africa or in the
plaintiff's country of origin, what
is factually true is that the
injuries and its sequelae would have an impact on the plaintiff's
ability to conduct his future business
affairs in either country. As
such this court is competent to deny the claim for future loss of
income on the basis that it is
not substantiated on the documentation
available, but to accept a claim for impairment of capacity as such a
claim would be unaffected
by the country in which the loss is
suffered. Having considered the documentation, the injuries and its
sequelae, it is the view
of this court that an appropriate reward for
the claim for future impairment of earning capacity is R600 000.
ORDER
1. The plaintiff's application in
terms of rule 38(2) is granted.
2. The plaintiff's claim for general
damages is separated from the other hits of damage in terms of rule
33 (4) and postponed
sine die
.
3. The defendant shall be liable to
the plaintiff for 100% of such damages as the plaintiff may be able
to substantiate in that
the required degree of negligence is present.
4. The defendant shall provide the
plaintiff with an unlimited Undertaking in terms of Section 17(4)(a)
of the RAF Act for such
future hospital, medical or ancillary
expenses as the plaintiff may require as a result of the injuries
sustained in the accident
of the 21
st
October 2021.
5. The defendant shall pay the
plaintiff the sum of R51 562 in respect of past loss of income.
6. The defendant shall pay the
plaintiff the sum of R600 000 in respect of impairment of
earning capacity.
6. The plaintiff is entitled to his
party and party costs as taxed or agreed, with counsel's fees to be
on scale B.
WEIDEMAN, AJ
JUDGE OF THE HIGH COURT
DATE
:
……………….