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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A326/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED:
DATE 2.10.2025
SIGNATURE
In the matter between:
THE MEMBER OF THE EXECUTIVE COMMITTEE
FOR HEALTH, GAUTENG PROVINCE Appellant
and
A[...] A[...] S[...] obo
C[...] M[...] M[...] S[...] Respondent
Coram: Raulinga J, Mokose J and Hassim J
Raulinga J
[1] The appellant appeals against the judgment of the count a quo and part of its order
handed down on 24th June 2024.
[2] It seems to me that the appeal is against the award to the respondent in their
personal capacity in respect of loss of earnings suffered by her personally as
JUDGMENT
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reflected in the paragraphs 1 and 1.1 of the order. There is no appeal against the
cost order.
[3] It is apparent that the appellant on appeal is submitting that they are willing to pay
R436 066.00 (four hundred and thirty thousand sixty -six rands) to the plaintiff
(respondent in this judgment) in her personal capacity calculated as R400 000.00
(four hundred thousand rands) for general damages plus R36 066.00 ( thirty-six
thousand sixty-six rands) future loss.
[4] In essence, their argument seems to be in the form of a question, whether the
respondent has a claim for loss of earnings (i.e. whether the appellant is liable to
compensate her for a loss – this was not raised in the appellant’s heads of argument,
because liability for loss had been conceded).
[5] In order to demystify this issue, a short factual background may suffice.
[6] The respondent, on behalf of her son C[...] (referred to as ‘C’) previously instituted an
action for claim for damages against the appellant arising from the negligent conduct
of the employees of the appellant, which conduct resulted in C suffering from
cerebral palsy.
[7] The liability issue was disposed of on the 27 th January 2020, when the appellant was
ordered to pay 100% of the plaintiff’s proven or agreed damages, both in her
personal and representative capacity. The claim on behalf of C was finalised.
[8] The issue before the court a quo was only for quantification of the respondent’s
damages in her personal capacity, for general damages, past and future medical
expenses as well as past and future loss of damages. It was not about wh ether the
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appellant is liable to compensate her for a loss because the issue of liability has
been settled.1
[9] By agreement between the parties at the hearing before the court a quo, the
application in terms of rule 38 (2) of the Uniform Rules of Court regarding the
admission of the plaintiff’s expert reports as constituting evidence were granted. The
respondent’s reports were accepted as admissi ble hearsay evidence in terms of the
provisions of section 3 of the Law of Amendment Act 2 and section 34 of the Civil
Proceedings Evidence Act3.
[10] The health condition and diagnosis of C is common cause. He was born on 18
October 2015 and was diagnosed with cerebral palsy. He is entirely dependent on
this mother for all his needs. He is incontinent of bladder and bowel functioning and
has to be kept in a nappy at all times. He cannot sit, walk, speak or respond.
Medication does not control his seizures, which he experiences numerous times a
day. His feeding is by way of an abdominal feeding tube as he has problems
swallowing.
[11] In arriving at an award for general damages , the court a quo relied on comparable
decided cases in their response such as MNK and Another v MEC for Health,
Gauteng Province 4 where an amount of R350 000.00 (three hundred and fifty
thousand rands) was awarded for general damages and Mngomeni obo Zangwe v
MEC for Health, Eastern Cape Division 5 where an amount of R300 000.00 (three
hundred thousand) for emotional shock and severe depression due to cerebral palsy
of the child was awarded.
1 See case lines 0015-2, para 2 of special trial note; trial dated 31 October to 14 June 2022 – issues in dispute were
identified as “quantification of claim”.
2 45 of 1988.
3 25 of 1965.
4 (9407 /2017) [2022] ZAGPJHC 175 (25 March 2022).
5 (1972/2014) (20 June 2017) (unreported)
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[12] In this case, both the resp ondent and the appellant agreed that an award in the
amount of R400 000.00 (four hundred thousand) would be fair and reasonable.
[13] The respondent’s future medical and other related expenses were calculated based
on the reports of Dr Romains and Dr Van der Ryst, as per the actuarial report dated
29 September 2022. According to the report, the respondent would require psycho -
therapeutic consultations with a clinical psychologist once weekly plus travel
expenses. Both parties agreed it would be fair and reasonable to award an amount
of R 36 060.00 to the respondent for future medical expenses.
[14] Pertaining to the loss of income and earning capacity, the respondent never
repeated a grade. She obtained her grade 12 senior certificate in 2010. From 2011 to
2014, she managed to secure employment. She consequently decided to upgrade
her grade 12 marks in 2015 to meet the minimum requirements to study for a degree
qualification and improve her chances of securing employment. During that year, she
became pregnant and due to birth complication s, her baby was born with Hypoxia
Ischaemic Encephalopathy, which resulted in Quadriplegic Cerebral Palsy with
mental enfeeblement, seizures and cortical blindness.
[15] Since then, she has been mainly responsible for his therapies and interventions. At
the time of the hearing of the action by the court a quo, he was five years old and
she wanted to find a suitable LSEN to proceed with further studies. However, as he
is so young, she presen ted that for the present time, her mother took care of the
child. The respondent was 29 years old at the time.
[16] Having scrutinized the report of the Educational Psychologist (Dr Van der Ryst) and
that of the Industrial Psychologist (Dr Kotze) where after a number of scenarios were
proposed, her counsel argued that scenario 2, where she would have upgraded her
matric in 2015 an d obtained a higher certificate (NQF5), is the appropriate scenario.
matric in 2015 an d obtained a higher certificate (NQF5), is the appropriate scenario.
Based upon this postulation, she would have a total capitalised loss of earning
capacity.
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[17] Counsel for the appellant then referred the court a quo to the matter of Road
Accident Fund v Guedes 6 where the Supreme Court of Appeal stated that the
calculation of the granting of a future amount, such as loss of earning capacity, is not
a matter of exact mathematical calculation . By its nature, such an enquiry is
speculative and a court can only estimate the present value of loss, which is often a
very rough estimate. The court necessarily exercises wide discretion when it
assesses the quantum of damages due to loss off earning capacity and has
considerable discretion to award what it considers suitable. Courts have adopted the
approach that in order to assist in such a calculation, an actuarial computation is a
helpful basis for establishing the quantum of damages. Even then, the trial court has
a wide discretion to award what it believes is just.7
[18] It is also trite that the determination of the general contingency deduction to be made
falls squarely within the discretion of the court , which must decide what is fair and
reasonable.8
[19] Equipped with these authorities and considering the respondent’s circumstances
which influenced its assessment of the general contingencies to be applied and the
content of the experts reports, the court a quo accepted the deduction of 5% on the
past loss of earning capacity for pre -mobid earning capacity as fair and reasonable.
Concerning future loss of earning capacity , the court a quo determined a 15%
contingency deduction on gross from pre-morbidity earning capacity and a 50%
contingency deduction on post -mobidity earning capacity as being fair and
reasonable.
[20] The court was also satisfied that a deduction of 20% as contended by the
respondent was justified. The respondent’s loss of earning capacity must be
6 2006 (5) SA 583 (SCA).
7 See Southern Insurance Association Ltd v Bailey N.O 2003 (5) SA 164 (SCA) at para 23; See also Van der Plaats v South
African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114F-115D.
8 Fulton v Road Accident Fund 2012 (3) SA 255 (GSJ) at para 95-96.
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adjusted, resulting in a total capitilised value of loss of earning capacity of R4 786
091.00 (four million seven hundred and eighty-six thousand and ninety-one rands).
[21] The issues raised in the appeal by the apellant are at variance with what the court a
quo dealt with. The court a quo didn’t deal with the issue as to whether the
respondent has a claim for loss of earnings against the appellant in her personal
capacity in respect of loss of earnings suffered by her personally. Further, the
apellant doesn’t deal with the issues dealt with by the court a quo in its judgment.
[22] In the circumstances, this court finds nothing untoward in the judgment and order of
the court a quo. In the result, the appellant’s appeal is dismissed with costs.
The following order is made:
1. The appellant’s appeal against the judgment and order of the court a quo fails.
2. The appellant is ordered to pay the costs of the appeal including costs of 2
counsel in this application.
J RAULINGA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I agree,
S MOKOSE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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I agree,
S HASSIM
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For Appellant: Adv AB Rassouw SC &Adv L A Pretorius instructed by State Attorney
Pretoria.
For Respondent: Adv S Myburgh SC & Adv C Jacobs instructed by Werner Boshoff
Incorporated.
Date heard: 30 August 2025
Date of Judgment: