IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: A167/2025
In the matter between:
DIERK ROBERT INGE RECKLIES Appellant
And
THE ROAD ACCIDENT FUND Respondent
Coram: Da Silva Salie, J et Holderness, J et Njokweni, AJ
Heard on: 21 January 2026
Delivered on: 04 June 2026
Summary:
Road Accident Fund – Loss of earnings and earning capacity – Assessment of pre -
morbid earnings where income derived from salary and profits generated through
closely-held business – Significance of expert joint minutes – Majority holding business
profits formed part of earning capacity and should be included in actuarial assessment –
Dissenting judgment on inclusion of business profits in the assessment of the
appellant’s pre -morbid earnings and earning capacity – Appeal upheld in part and
substituted order granted.
ORDER
1. The appeal is upheld with costs on Scale C, including the costs of two
counsel where so employed.
2. The order of the court a quo relating to the appellant’s claim for loss of
earnings is set aside and substituted with the following:
“(b) The Defendant shall pay the Plaintiff the amount of R1 726 100.00 in
respect of past loss of earnings arising from the motor vehicle collision
which occurred on 3 October 2017.
(c) The Plaintiff’s claim for future loss of earnings shall be actuarially
recalculated by the actuary, Mr Boshoff, within 15 days of this order, on the
following basis:
(i) the Plaintiff’s pre -morbid earnings comprise both his salary
income and the net profits generated through Trotex;
(ii) the Plaintiff’s retirement age is 65 years;
(iii) the statutory cap in terms of the Road Accident Fund Act 56 of
1996;
(iv) t he contingency deductions a s set out in the actuarial report
dated 14 August 2024 of 2.5% and 7.5% applied on the past and
future earnings respectively.”
3. The actuarial recalculation shall be filed with the Chief Registrar of this Court,
within 15 days of this order. Upon receipt thereof, the recalculation shall be
placed before this Court for consideration, whereafter a further order
determining the amount payable in respect of the appellant’s future loss of
earnings shall be issued.
MAJORITY JUDGMENT
DA SILVA SALIE J: (NJOKWENI, J CONCURRING)
Introduction:
[1] This is an appeal against certain findings made by Mthimunye AJ in a judgment
delivered on 21 August 2024 concerning the quantification of damages arising from a
motor vehicle collision which occurred on 3 October 2017. The appeal serves before
this Court with leave granted by the Supreme Court of Appeal on 14 April 2025.
[2] Liability and general damages were settled between the parties before the court
a quo. The dispute proceeded only in respect of the appellant’s claim for loss of
earnings and earning capacity. The court a quo awarded the appellant an amount of R2
437 806.00 in respect of both past and future loss of earnings.
[3] The principal issue on appeal is whether the court a quo erred in its assessment
of the appellant’s pre -morbid earning s, his pre-morbid retirement age, as well as his
post-morbid earning capacity and retirement age. If so, this Court is to determine the
extent to which such misdirection impacted upon the calculation of the appellant’s past
and future loss of earnings.
Factual background
[4] On 3 October 2017 the appellant was involved in a high -impact motor vehicle
collision in the Paarl area. The medico -legal reports and the joint minutes of the
neurosurgeons and orthopaedic surgeons, recorded that the appellant sustained
extensive multi -system injuries, including a severe traumatic brain injury with a right
occipital fracture, bilateral fractures of the mastoid air complexes, multiple intracranial
haemorrhages including subdural, intraventricular and traumatic subarachnoid
haemorrhage, fractures of the left inferior and superior pubic rami, lumbar spinal
fractures involving the transverse process of L2, posterior rib fractures and associated
abdominal trauma.
[5] The medical experts agreed that the appellant suffered enduring neurocognitive,
physical and psychological sequelae. Although he attempted to resume work following a
period of recuperation, his ability to function at his pre -accident level became materially
compromised.
[6] The appellant did not testify in the trial court. His historical narrative is as set out
in the expert report and the evidence led at trial. The appellant is a German national,
born on 13 July 1966. He completed his secondary school education in Germany in
1982. He undertook a two -year in-service training in the German Post Office, followed
by compulsory military service and a further two -year internship at a machine
engineering company, where he acquired skills in fitting, turning and welding.
[7] After qualifying, the appellant started working in a technical position at a food
factory in Germany. He later started his own business in home renovation while
simultaneously working part-time at a shade installation business. As a result of a work-
related injury, he suffered a broken shoulder which rendered him out of work for a period
of 16 months. During this time his father passed away. H e left Germany and relocated
to South Africa.
[8] The appellant arrived in South Africa in August 2008. He initially secured
employment at a telesales German call centre . During 2009 he commenced
employment at Trotex Engineering Cape CC (“Trotex”), a German -owned business
manufacturing and servicing machines used in the food processing industry. He was
employed as a mechanical engineer/engineering technician and held a South African
residence visa which permitted him to work at Trotex. This business was owned and
operated by Mr. and Mrs. Schonau (“the Schonaus”)
[9] During 2013/2014, Trotex undertook a large -scale project which resulted in
significant losses to Trotex of approximately R2.4 million in the 2014 financial year. This
loss was funded by loans from the owners to the business. During April 2016 the
Schonaus wished to retire and offered to transfer the business to the appellant in lieu of
the R100 000 debt owing to the appellant. Given that his visa condition only permitted
him to work, he could not take transfer of the business into his own name. The
him to work, he could not take transfer of the business into his own name. The
appellant had a permanent life partner, Ms. Keenan Klinker (“Klinker”) with whom he
had been in a relationship since 2010. They have one child together, born in 2011 and
she has two older children from a previous relationship. Given his visa restrictions, the
100% shareholding in Trotex was transferred into the name of his life partner. She held
the shares on his behalf as a nominee. H owever, he had complete control o ver the
business which had since become profitable. T he profits were used at the appellant’s
discretion. Klinker testified that she was not involved in the day -to-day running of the
business and that for all intents and purposes, the business was owned by the appellant
and that he had full control over the business and profits.
[10] Although the shareholding in Trotex was registered in Klinker’s name, the
appellant remained actively involved in and exercised effective control over the
business. The business itself generated net profits. The proverbial fork in the road is
whether the appellant’s pre -morbid earning capacity properly comprised both his
salaried remuneration and the net profits generated through Trotex, or whether, on the
evidence presented, his comp ensatory loss ought to be confined only to the salary
component reflected in his IRP5 certificates, in other words that his loss of earnings only
comprises his salaried income.
[11] Following the accident, the appellant attempted to continue operating the
business. The business however struggled as the appellant’s injuries materially
impaired his ability to perform the technical, managerial and operational functions upon
which its continued success depended. Consequently, the business ceased trading
during November 2019. Thereafter, the appellant engaged in limited self -employment
through a smaller business known as Blue Eagle. That venture likewise proved
unsustainable in light of his enduring sequelae of his injuries and ceased trading during
2020.
Issues on appeal
[12] The issues requiring determination on appeal are crisp, namely:
[12.1] Whether the court a quo erred in confining the appellant’s pre -morbid earnings to
his salary reflected in the IRP5 documentation;
[12.2] Whether the court a quo correctly excluded the net profits generated through
Trotex from the appellant’s earning capacity;
[12.3] Whether the court a quo erred in adopting a retirement age of 65 years; and
[12.4] The consequential impact of those findings on the actuarial calculation of the
appellant’s past and future loss of earnings.
Appellant’s submissions
[13] It was submitted on behalf of the appellant that the court a quo materially
misdirected itself in restricting his pre -morbid earnings to his salaried income alone. It
was contended that the uncontested evidence of the forensic accountant, Mr Edwards,
established that the appellant’s remuneration structure comprised both a salary
component and the net profits generated through Trotex.
[14] It was further argued for the appellant that the court a quo failed to accord proper
weight to the joint minute of the industrial psychologists, Dr Swart and Ms Pieters, who
expressly accepted the remuneration structure analysed by Mr Edwards for purposes of
assessing the appellant’s earning capacity and employability.
[15] Counsel for the appellant argued that the trial court did not apply the principle
enunciated in BEE v Road Accident Fund 2018 (4) SA 366 (SCA) , which holds expert
witnesses bound to the agreed issues in joint minutes . On the facts of this matter, it is
argued that the trial court failed to properly have regard to the agreement reached
between the industrial psychologists in their joint minute that the appellant’s earnings
comprised both his salary income and the net profits generated through Trotex. That
agreed remuneration structure was thereafter applied by the forensic accountant in
quantifying the appellant’s pre -morbid earnings and, so it was contended, had
effectively become a settled issue before the trial court.
[16] The appellant further submitted that the court a quo erred in adopting a
retirement age of 65 years and that the evidence supported a probable retirement age
of 70 years.
Respondent’s submissions
[17] The respondent submitted that the judgment a quo was sound and properly
grounded in the evidence presented at trial and further contended that the appellant
failed to establish, on a balance of probabilities, that the profits generated through
Trotex accrued to him personally as opposed to the registered shareholder of the
company.
[18] It was further argued that the court a quo correctly exercised caution in
evaluating the expert evidence and was entitled to reject aspects thereof where the
underlying factual foundation had not, i n the trial court’s view, been sufficiently
established.
[19] The respondent also supported the court a quo’s determination of a retirement
age of 65 years, particularly in light of the absence of viva voce evidence from the
appellant himself concerning his intended retirement trajectory.
Discussion
[20] Mr Edwards assessed the appellant’s pre -morbid earning capacity as comprising
two distinct components, namely a salary component reflected in the appellant’s IRP5
documentation in the amount of R275 160 per annum, together with net profits derived
through Trotex in the amount of R308 881 per annum. On that basis, the appellant’s
total pre-morbid earning capacity was assessed at R584 041 per annum.
[21] Mr Edwards explained that the net profits generated through Trotex were derived
predominantly from the appellant’s own labour, technical expertise, managerial
oversight and active involvement in the business. His evidence in this regard was not
materially contradicted. Klinker’s evidence was likewise not materially challenged. She
testified that the net income generated by the business was ut ilised by the appellant at
his discretion and formed the basis of their household income. Her evidence was
consistent with that of Mr. Edwards, namely that the profitability of the business was
substantially dependent upon the appellant’s own labour, expertise and active
involvement.
[22] It is important to bear in mind that the present enquiry is not directed at
determining ownership of the profits generated through Trotex as a matter of company
law as holding separate juristic personality. The issue is rather whether, on the
evidence before the trial court, those profits formed part of the appellant’s earning
capacity prior to the collision. Damages for loss of earnings are concerned with the
economic value of what a plaintiff was capable of earning before the injury and not
necessarily the legal form in which such earnings were received.
[23] The appellant further relied heavily on the principles articulated in BEE v R AF,
contending that the court a quo departed from an agreed factual platform reflected in
the joint minute of the industrial psychologists. In that matter, the SCA reaffirmed that
agreements reached between suitably qualified experts on matters falling within their
respective fields of expertise are not light to be disregarded. Whilst a court retains the
ultimate responsibility of determin ing the issues before it, parties ar e ordinarily entitled
to proceed on the basis that matters agreed by experts are not longer contentious,
absent a proper evidential foundation for departing from such agreement.
[24] In their joint minute, Dr Swart and Ms Pieters recorded that the remuneration
particulars and the interpretation thereof were clearly documented in the report of Mr
Edwards and “to be applied as indicated”. The experts further agreed that the appellant
had been self -employed for a major part of his immediate pre -traumatic years and that
he had been able to secure substantial work and sustain the business notwithstanding
its inherited debt burden.
[25] As I see it the significance of the joint minutes lies in the fact that both industrial
psychologists expressly deferred to the opinion of Mr. Edwards in relation to the
appellant’s remuneration. They recorded that the remuneration particulars and the
interpretation thereof were documented in his report and were to be applied as
indicated. The inclusion of both the appellant’s salary and the net profits generated
through Trotex therefore formed part of the agree d factual foundation upon which their
opinions were based.
[26] The industrial psychologists, on this aspect, did not seek to formulate
independent opinions regarding the composition of the appellant’s earnings. To the
contrary, they expressly recorded in their joint minute that the remuneration particulars
and the interpretation thereof were documented in the report of Mr. Edwards and were
to be applied as indicated. This must be viewed against the fact that the experts did not
reach agreement on all issues and expressly recorded areas of disagreement
elsewhere in th e joint minute such as retirement age. Their consensus regarding the
remuneration structure was therefore neither incidental nor equivocal. It reflected a
deliberate acceptance of the remuneration analysis undertaken by the forensic
accountant as the factual platform upon which their respective opinions concerning
earning capacity and employability would be based.
Purpose of joint minutes:
[27] The purpose served by a joint minute is not merely procedural convenience. It
serves as a substantive issue in that it is intended to identify and narrow issues
genuinely in dispute, to promote the efficient administration of justice and to assist the
court by establishing areas of agreement between suitably qualified experts. Once
experts have reached agreement on matters falling within their respective fields of
expertise, a trial court is ordinarily entitled to proceed on a basis that those matters are
no longer contentious. Whilst a court is not boun d to accept such agreements ,
particularly where they are unsupported by the evidence or plainly incorrect, a departure
therefrom should ordinarily be approached with caution. Where a court entertains
concerns regarding an agreed expert platform that has not been placed in issue by the
parties, fairness may require that those concerns be raised during the cour se of the
proceedings to afford the parties an opportunity to address them.
[28] The appellant was therefore entitled to approach the trial on the footing that the
[28] The appellant was therefore entitled to approach the trial on the footing that the
composition of his pre -morbid earnings, comprising both his salary and the net profits
generated through Trotex, was no longer a live issue requiring further evidential support.
This was particularly so where the industrial psychologists, acting within their own field
of expertise relating to earning capacity and vocational functioning, expressly accepted
the remuneration structure identified by the forensic accountant and recorded that it was
to be applied as indicated. They were not purporting to determine the appellant’s
remuneration themselves. Rather, they accepted the specialist acco unting opinion of
Edwards as the factual platform upon which their own opinions were based. In those
circumstances, the appellant was entitled to assume that the composition of his
earnings had become a settled issue for purposes of the trial and to conduct his case
accordingly. To the extent that the trial court had reservations about the agreed platform
and was minded to depart therefrom, considerations of trial fairness would ordinarily
have required that the issue be raised during the course of the pr oceedings so as to
afford the parties, and in particular the appellant, an opportunity to address the court’s
concerns and, if necessary, elect whether to adduce further evidence on the issue.
[29] The difficulty in the present matter is that the evidence of Edwards, concerning
the composition of the appellant’s remuneration , was not materially contradicted. The
mere fact that the shareholding structure reflected the appellant’s life partner as
shareholder did not, without more, justify the exclusion of the business profits from the
assessment of earning capacity, particularly where the evidence demonstrated that the
appellant was central to the running of the business and the generation of its income.
[30] In these circumstances, the court a quo was entitled to interrogate the factual
basis upon which the business profits were attributed to the appellant . However, the
evidence of Mr. Edwards on this issue was not materially challenged. When that
evidence of Mr. Edwards on this issue was not materially challenged. When that
evidence is considered together with the agreement recorded in the joint minute of the
industrial psychologists, the conclusion that the appellant’s pre -morbid earnings
comprised only his salary cannot be sustained. The evidence established that the
appellant was the driving force behind the business , that the net profits were generated
though his efforts and that those profits formed part of the remuneration structure
accepted by the experts. In the same way, without the wherewithal of the appellant,
post-accident, the business failed. The exclusion of the net business profits from the
assessment of the appellant’s earning capacity accordingly constituted a material
misdirection.
Retirement age:
[31] The position regarding retirement age stands, however, on a different footing.
The appellant did not testify. Questions concerning his intended work trajectory, lifestyle
choices and probable retirement beyond the conventional retirement age fell peculiarly
within his own knowledge.
[32] In the absence of viva voce evidence in that regard, this Court cannot conclude
that the court a quo misdirected itself in adopting a retirement age of 65 years. The
determination fell within a reasonable range on the evidence before it and does not
warrant interference.
[33] The actuarial evidence further demonstrated that the operation of the statutory
cap imposed in terms of section 17(4)(c) of the Road Accident Fund Act materially
constrained the extent of the appellant’s recoverable future loss. As confirmed by the
actuary, Mr Boshoff, the appellant’s annual loss exceeded the statutory ceiling in most
of the relevant years. The consequence is that increasing the magnitude of the loss or
extending the retirement age does not necessarily translate into a proportionate
increase in the capitalised award, particularly where the additional years arise towards
the latter part of the actuarial calculation and carry diminished present value.
[34] The significance of this finding should not , however, be overstated. Whilst the
statutory cap operates as a limiting mechanism, the appellant’s pre -morbid earnings
nevertheless constitute the foundation upon which the calculation is performed. Once it
is accepted that the appellant’s pre-morbid earnings comprised both his salary income
and the net profits generated through Trotex, the actuarial calculation necessarily falls to
be revisited on the corrected basis . The recalculation must occur subject to the
continued application of the statutory cap and the contingency deductions adopted by
the trial court.
[35] In my view the appellant has succeeded in demonstrating a material misdirection
in relation to the composition of his pre -morbid earnings, but not in relation to the
retirement age adopted by the court a quo.
Order
[36] In the result, the appeal ought to succeed to the extent as proposed in the order
below:
1. The appeal is upheld with costs on Scale C, including the costs of two
counsel where so employed.
2. The order of the court a quo relating to the appellant’s claim for loss of
earnings is set aside and substituted with the following:
“(b) The Defendant shall pay the Plaintiff the amount of R1 726 100.00 in
respect of past loss of earnings arising from the motor vehicle collision
which occurred on 3 October 2017.
(c) The Plaintiff’s claim for future loss of earnings shall be actuarially
recalculated by the actuary, Mr Boshoff, within 15 days of this order, on the
following basis:
(i) the Plaintiff’s pre -morbid earnings comprise both his salary
income and the net profits generated through Trotex;
(ii) the Plaintiff’s retirement age is 65 years;
(iii) the statutory cap in terms of the Road Accident Fund Act 56 of
1996;
(iv) t he contingency deductions a s set out in the actuarial report
dated 14 August 2024 of 2.5% and 7.5% applied on the past and
future earnings respectively.”
3. The actuarial recalculation shall be filed with the Chief Registrar of this Court,
within 15 days of this order. Upon receipt thereof, the recalculation shall be
placed before this Court for consideration, whereafter a further order
determining the amount payable in respect of the appellant’s future loss of
earnings shall be issued.
__________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
I AGREE:
_____________________________
P. NJOKWENI
ACTING JUDGE OF THE HIGH
COURT
WESTERN CAPE DIVISION
IT IS SO ORDERED:
_____________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
DISSENTING JUDGMENT
______________________________________________________________________
HOLDERNESS, J:
[1] I have read the judgment of the majority and cannot concur in its reasons or
inclusions regarding the issue of the calculation of the quantum to be awarded to the
appellant in respect of his pre -morbid earnings, in particular the inclusion of the Trotex
profits.
[2] The appellant did not testify at the trial. Mr. Edwards evidence was that he was
told by the appellant that he used Trotex’s profits ‘at his discretion’ is based on his
expert report. This however was not borne out by the accounting record attached to Mr.
Edwards’ report. There was no evidence whatsoever placed before the court a quo
indicating that Trotex profits were paid to the appellant, either before or after the
accident.
[3] In his report Mr. Edward opines that considering the ‘evidence’, which is in fact
his reporting on what the appellant told him when interviewed, that:
‘…it seems reasonable to conclude that the past and projected future profits of Trotex
should be treated as belonging to the Plaintiff when quantifying his claim for damages.
This contrary to the actual ownership of the shares, but in line with the substance of the
matter as opposed to the form.
[4] The reasoning underpinning this conclusion is difficult to understand. There is no
factual foundation upon which Mr Edwards could conclude that the profits should be
treated as ‘belonging’ to the appellant, nor was there any evidentiary basis for such a
finding. Mr Edwards appears to rely solely on the statement by the appellant, which
constitutes unconfirmed hearsay, that he used all the profits of Trotex at his discretion to
fund his personal expenses.
[5] In examination in chief Mr. Edwards testified, when asked what the appellant’s
future loss of earnings (should be earning capacity) would be:
‘MR EDWARDS : Yes, the future loss of earnings is essentially just based on the
continuation of this. So, it is based on the assumption that were it not for the accident
his salary as well as the profits of the business would continue being earned until his
eventual retirement in the uninjured and inured scenarios respectively…’
[6] In his report, Mr. Edwards, seemingly alive to the flaw in this finding, noted that
‘this finding is possibly contrary to the relevant case law in respect of these matters,
Rudman/RAF in particular. He went on to say, ‘I therefore defer to the courts to make a
final determination in regard to the treatment of these profits in determining the
Plaintiff’s loss of earnings.’
[7] The court a quo, after carefully assessing the evidence of Mr Edwards and the
submissions advanced in argument, found that the appellant’s statement to Mr Edwards
that he was using the profits of the company at his discretion is contrary to the evidence
of the financial statements attached to his report. Put differently, the facts which appear
from source documents upon which Mr. Edwards relied do not support the findings he
made.
[8] There was no evidence showing that Trotex’s profits were in fact paid to or ‘used
by’ the appellant. The court a quo’s factual findings in this regard, in particular that there
is no evidence of any fringe benefits or business profits having been paid to the plaintiff,
are, in my view, unassailable.
[9] It is trite that a private company is a distinct legal entity separate from its owners,
the shareholders. The assets, liabilities, and profits belong to the company, not to the
individuals or entities holding its shares. In casu the appellant was not even a
shareholder. He was merely an employee of Trotex who alleged that his partner, Ms
Klinker, held 100% of the shareholding on his behalf as his nominee. Even if he was a
shareholder, the appellant would have no direct proprietary right or claim to the profits
generated by Trotex’s business activities.
[10] In terms of section 46 of the Companies Act, before ‘profits’ can be paid to
shareholders the board of directors must formally declare a distribution and ensure that
there is compliance with the further provisions in section 46.
[11] The only facts supporting the appellant’s claim to the profits of Trotex arise from
the hearsay statements made by the appellant to the various experts, including Mr
Edwards and Dr Swart, who merely repeated what he told them. The failure by the
appellant to testify in this regard (or at all) is unexplained.
[12] I respectfully disagree with the finding by the majority that because the industrial
psychologists (Dr Swart for the appellant and Ms Pieters for the RAF) experts in their
joint minute expressly accepted the remuneration particulars contained in the forensic
accountant report the appellant was entitled to assume that the composition of his
earnings had become a settled issue for purposes of the trial and to conduct his case
accordingly.
[13] There was no joint minute filed by forensic accountants. The agreement by the IP
experts merely deferred to the finding of Mr Edwards.
[14] It is well established that courts are not bound by an expert’s opinion. In Bee v
Road Accident Fund (Bee )1 the Supreme Court of Appeal held that even where expert
evidence is proffered, the court has a duty to satisfy itself that the opinion is supported
by accurate facts and sound reasoning.
[15] The legal position is the same in respect of a joint expert minute, save that the
parties are not at liberty to repudiate the agreement if placed before the court. The
expert opinion or evidence, whether uncontested or by agreement, is still subject to the
court’s scrutiny.
[16] To properly evaluate expert evidence, the court must be apprised of and analyse
the process of reasoning which led to the expert's conclusion, including the premises
from which that reasoning proceeds. 2 The court must be satisfied that the opinion is
1 Bee v Road Accident Fund 2018 (4) SA 366 (SCA).
2 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schadlingsbekampfung mbH 1976 (3) SA 352 (A) at
371F – G.
based on facts and that the expert has reached a defensible conclusion on the matter. 3
Even a purported admission by the other party cannot, and does not, absolve the court
from this duty. Even if experts agree on a matter within their joint expertise, that is
merely part of the total body of evidence. The court must still assess the joint opinion
and decide whether to accept it.4
[17] In NSS obo AS v MEC for Health, Eastern Cape Province the SCA held that if
the court was bound by a part y’s admission regarding the correctness of an expert's
opinion, then:
‘Despite being the arbiter of the dispute, the court may then not reject the expert's
opinion, even if it is wholly indefensible. Such an approach is untenable, and at odds
with the rule that experts have a principal and overriding duty to the court, not to the
party by whom they are retained, to contribute to the just determination of disputes.’5
[18] No explanation was proffered for why the appellant did not testify in his own case
and in particular with regard to how the ‘profits’ of the business were treated by him and
the payment of the fringe benefits included in his remuneration by Mr Edwards. There
was no indication that he was not available or competent to testify, and these facts
could clearly have been elucidated by him. This leads to the ineluctable inference that
such evidence would expose facts unfavourable to him.6
[19] In my view the opinion expressed by Mr Edwards, namely that the appellant’s
earning capacity included the profits of Trotex, is not grounded in fact and is
indefensible. Mr Edwards himself appeared to recognise this shortcoming in his own
report. The deference by the industrial psychologists to the opinion of Mr Edwards is not
3 HAL obo MML v MEC for Health, Free State 2022 (3) SA 571 (SCA) ([2021] ZASCA 149) (HAL) para 220.
4 Id para 229. This however is subject to the qualification that where experts agree on factual issues and the
applicable approach to technical analysis, the litigants are bound by such agreement, unless it has been withdrawn
and no prejudice results, or any prejudice caused can be cured by a postponement or an appropriate costs order.
See Bee para 73; HAL above n13 para 229. See NSS obo AS v MEC for Health, Eastern Cape Province 2023 (6) SA
408 (SCA) at para 25.
5 At para 26. Citing National Justice Compania Naviera SA v Prudential Assurance Co Ltd: 'The Ikarian
Reefe' [1993] 2 Lloyd's Rep 68 at 81 – 82.
6 Elgin Fireclays Ltd v Webb 1947 (4) SA 744 (A) at 749 – 750; Munster Estate (Pty) Ltd v Killarney Hills (Pty)
Ltd 1979 (1) SA 621 (A) at 624B – H, cited with approval in HAL.
binding on the court. There is no joint minute by forensic accountants which is sought to
be repudiated and for this further reason the principles in Bee are inapposite to the
present matter.
[20] The court a quo, correctly in my view, found that the joint minute of the industrial
psychologists, insofar as it purported to accept Mr Edwards’ finding that all business
profits of Trotex accrued to the appellant) was based on an incorrect factual premise,
and was unpersuasive in the absence of further evidence or documentary proof.
[21] An appeal court should proceed on the presumption that the trial court's factual
findings are correct in the absence of demonstrable error. To overcome this
presumption, an appellant must convince the appellate court on adequate grounds that
the trial court's factual findings were plainly wrong. If the appellate court is merely left in
doubt as to the correctness of a factual finding, then it will uphold that finding.7
[22] In Road Accident Fund v Guedes 8 the SCA confirmed that an appeal court is
generally slow to interfere with the award of the trial court where the quantum of
damages is a matter of estimation and discretion, and may only interfere once it
concludes that there has been an irregularity or misdirection, for example taking into
account irrelevant facts or ignoring relevant ones, or where the appeal court is of the
opinion that no sound basis exists for the award made by the trial court or where there
is a’ substantial variation or a striking disparity between the award made by the trial
court and the award which the appeal court considers ought to have been made’.
[23] The trial court’s wide discretion in assessing the quantum of damages due to loss of
earning capacity 9 should not really be interfered with save for any circumstances
outlined above.
7 HAL at para 72.
8 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) at para 8.
7 HAL at para 72.
8 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) at para 8.
9 See Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114f-115D.
[24] In my view the trial court’s finding that the appellant’s remuneration comprised
only his salary from Trotex in the calculation of his pre -injury earnings and that the
profits of Trotex were excluded in the calculation of his patrimonial loss cannot be
faulted.
[25] For the reasons set out above, I would have upheld the award of damages by the
court a quo in respect of the appellant’s pre-morbid earnings.
______________________
M. HOLDERNESS
JUDGE OF THE HIGH COURT
WESTERN CAPE PROVINCE
Appearances
For Appellant: Adv. JH Roux SC
Adv. E Benade
Instructed by: DSC Attorneys
For Respondent: Adv. A Montzinger
Instructed by: The Office of the State Attorney