Introduction
[1] This matter was on the default judgment roll for the 27 May 2025. When the
matter was called, Ms Ameersingh was there on behalf of the Defendant.
[2] There is an Court Order granted on 11 June 2024 by the Honourable Judge
Raubenheimer (AJ) dealing with the striking out of the Defendant’s defence in the
event of non-compliance of the Respondent to attend a pre-trial conference.
[3] The court asked Plaintiff's Counsel, Mr. Manzi, whether the State Attorney,
Ms. Ameersingh, could participate in the proceedings. He confirmed that he had
no objection to her making submissions in the matter.
[4] The Plaintiff served the Defendant with a Rule 28 notice of intention to amend
on 12 September 2024. No formal amendment was effected following the
aforementioned notice. The State Attorney did not raise any objections in this
regard. Therefore, the matter will proceed on this basis.
[5] The Plaintiff’s applied in terms of Rule 38(2) of the Uniform Rules of Court for
the expert affidavits to be admitted into evidence. The Rule 38(2) application was
not served on the Defendant (“the RAF”). Under rule 38, the plaintiff seeks an
order:
5.1 That the application will be made to the above Honourable Court on the
date of 29th October 2024.
5.2 That the factual evidence of the Plaintiff and witnesses as well as the
reports of the following experts, ……… be admitted into evidence at the hearing
on affidavit in terms of Rule 38(2)
5.3 The costs of this application shall be costs in the cause.
[6] I have no doubt that, given the current state of the defendant, it would most
likely be convenient and justifiable for the plaintiff to lead evidence by way of
affidavit. However, I do not agree that it is justifiable not to comply with the
Uniform Rules of Court insofar as giving the defendant a reasonable notice of
such an application under rule 38, even when it is inevitable that the defendant is
not participating in the legal process.
[7] According to the Rule 38(2) application, the hearing date is stated as
29 October 2024, which is incorrect. Furthermore, in prayer 2, the applicant
seeks that costs be costs in the cause, despite the fact that this application was
never served on the defendant.
[8] It must be noted that two experts testified during the trial, namely the
Educational Psychologist and the Industrial Psychologist; however, I will address
this at a later stage in the judgment.
[9] At the start of the trial I was informed that the merits have become settled in
that the defendant offered a concession on merits 100% in favour of the plaintiff
and the plaintiff accepted the offer. Also the issue of General Damages was
settled previously between the parties for the amount of R950 000,00
[10] The only issue for determination by this court is therefore the quantum of
past and future loss of earnings/ earning capacity.
[11] In the particulars of claim at paragraph 6 the plaintiff alleges that as the result
of the said accident, the plaintiff sustained the following injuries:
11.1 Laceration on the left knee
11.2 Head injury with GCS of 7/15
Quantum
Dr M F Mkhonza (Neurosurgeon)
[12] Dr Mkhonza assessed and examined the plaintiff on 19 February 2020 and
served the report on the Defendant on 2nd November 2021. This means the
report is five years old and outdated. The issue was raised with the Plaintiff's
Counsel; however, according to Dr. Manzi, the Plaintiff has since served an
addendum report from the Clinical Psychologist. Dr. Manzi states that the
claimant sustained a severe traumatic brain injury, facial lacerations, and soft
tissue injuries to the left knee and right leg.These injuries were not included in
the Particulars of Claim, as noted in paragraph 8 above (except of the soft tissue
injury of the right knee). A further addendum report is required, and Dr. Manzi
must also address the need for the appointment of a Curator ad litem.
Lugano Modipa (Clinical Psychologist)
[13] Ms Lugano Modipa assessed the Plaintiff on 18 February 2020 and an
addendum report was done on 8 October 2024. According to Ms Modipa she had
smell of alcohol and mentioned that she took alcohol a day before. Ms. Modipa
noted in her report, at paragraph 6.5.7, that the claimant reported an increase in
alcohol consumption since the motor vehicle accident. The claimant admitted to
having consumed alcohol the day before the assessment. This issue raises
concerns for the court. Ms. Modipa’s findings are based on Dr. Manzi’s report,
which is outdated.
Ms Portia Molepo (Educational Psychologist)
[14] Ms Molepo assessed the Plaintiff on 13 May 2022 and an addendum report
was done on 3 October 2024. According to paragraph 3 of the report, the
documents received and reviewed included the report of Dr. Mkhonza
(neurosurgeon) and that of Dr. Modipa (clinical psychologist); however, only the
original report was considered—not the addendum. Therefore, the addendum
report by Ms. Molepo is also outdated, as it was based on old expert reports. As
such, the court cannot accept this report or her testimony as evidence to assist in
quantifying the loss of earnings.
Mr Talent Maturure (Industrial Psychologist)
[15] Mr Maturure assessed the Plaintiff on 25 February 2020 and served the
report on the defendant on 26 September 2024. This means the report is five
years old and outdated. According to paragraph 1.3 of the report, the supporting
documentation provided for the purpose of the evaluation included reports by Dr.
Mkhonza (Neurosurgeon – 2020), Mr. Makananisa (Occupational Therapist –
2020), and Ms. Modipa (Clinical Psychologist – 2020). As these reports are more
than five years old, they are outdated. Consequently, his testimony cannot assist
the court in quantifying the loss of earnings, based on the reasons mentioned
above.
[16] In Tshuma, the court referred to Twine and Another v Naidoo and
Another (38940/14) [2017] ZAGPJHC 288; [2018] 1All SA 297 (GJ), where the
court held that the admission of expert evidence should be guarded as it is open
to abuse. The court held that expert testimony should only be introduced if it is
relevant and reliable. A court is not bound by, nor obliged to accept the evidence
of an expert witness. The presiding officer must base his findings upon opinions
properly brought forward and based upon foundations which justified the
formation of the opinion. The court should actively evaluate the evidence. The
cogency of the evidence should be weighed "in the contextual matrix of the case
with which (the Court) is seized.
[17] There is insufficient evidence before the Court in respect of the quantum of
the Plaintiff’s claim.
In the circumstances I make the following order:
1. This matter is hereby removed from the default judgment roll,
2. The issue of loss of earnings is postponed sine die;
3. There is no order as to costs.