IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)
Not Reportable
Case no.: A139/2025
In the matter between:
MINISTER OF POLICE Appellant
(Defendant in court a quo)
and
EDMUND SOYIZELA MDZINWA Respondent
Coram:
Hearing date:
Additional notes:
Judgment delivered:
(Plaintiff in court a quo)
Da Silva Salie J, Thulare J and Pangarker J
6 February 2026
9 February 2026 (appellant); 12 February 2026
(respondent)
1 September 2026
Summary: Appeal against award for past and future loss of earnings -
Respondent lost his eye in a shooting incident - Grounds of appeal attack the wide
1I Page
discretion of the trial court to award damages - Appellant proposes that trial court's
application of 30% contingency differential should be replaced with 20% in respect of
future loss of income - No misdirection committed by trial court- Appeal dismissed.
ORDER
The appeal is dismissed with costs which include the costs of the application for leave
to appeal in the court a quo, and including costs of counsel on scale C.
JUDGMENT
PANGARKER J (DA SILVA SALIE Jet THULARE J CONCURRING)
Introduction
[1] The appellant appeals, with the leave of the Supreme Court of Appeal (SCA),
the order of the trial court which awarded the respondent damages for past and future
loss of earnings in the sum of R1 967 425. The damages claim arose from an incident
in 2011 in which the respondent was seriously injured by members of the South African
Police Services (SAPS), with the result that he lost his right eye.
Amended Notice of Appeal and grounds of appeal
[2] The notice of appeal dated 3 April 2025 sought an order that the appeal be
upheld and that the trial court's order be replaced with an order that the respondent's
claim be dismissed with costs. Subsequently, in mid-January 2026, the appellant
applied to amend its notice of appeal by deleting paragraphs 1 and 2 thereof and
2I Page
replacing it with an order that paragraph 1 of the trial court' s order be replaced as
follows:
1. An order upholding the appellant's appeal with costs.
2. An order that paragraph 1 of the order of the trial court should be
replaced with the following:
'1.1 The defendant is to pay the plaintiff the sum of R31156.92 in respect of
past loss of earnings;
1. 2 In respect of future loss of income, the defendant used to pay the plaintiff
an amount equal to 20% of the capitalised value of his future earnings
calculated at 80% of Paterson A2 equating to R147 200 per year, from
March 2024 (age 35) to March 2054 (age 65) allowing for earnings
inflation until age 65 (as per the second bullet point of paragraph 6. 1 of
Report A).'
[3] The application for leave to amend the notice of appeal as well as the filing of
the additional volume 13A as part of the appeal record were not opposed by the
respondent The result was that the application to amend was granted at the
commencement of the appeal and volume 13 A was admitted as part of the appeal
record.
[4] The appeal centres solely on the trial court's quantification of damages. During
the hearing, an opportunity was afforded to the appellant to formulate possible
instructions to actuaries to recalculate the respondent's past loss of earnings pursuant
to its arguments raised during the appeal. In this regard, counsel for the parties filed
additional notes on this aspect for the court's consideration should it be minded to
interfere with the quantification of damages for past and future loss of earnings.
3j Page
[5] The appellant raises the following grounds of appeal:
[5.1 J The trial court erred by relying on the respondent's evidence regarding his poor
performance as a waiter at Grand West Casino, which did not align with the objective
evidence and the court's reservations about his credibility.
[5.2] The trial court wrongly relied on the opinion of the respondent's expert, Dr
Bredekamp, that the respondent suffered serious psychological sequelae.
[5.3] The trial court's assessment of the respondent's past loss of income as a full
time waiter was a misdirection.
[5.4] The evidence did not support a finding on the factual assumptions made by the
trial court in respect of the respondents' past and future loss of income as a part-time
DJ.
[5.5] The trial court overcompensated the respondent for future loss of income and
applied an excessive contingency differential to the respondent's pre and post injured
earnings which were not supported nor justified by the evidence.
Approach of appeal court
[6] An appeal lies against the order and not the court's reasons1. In respect of the
assessment of damages for loss of earnings, the Appellate Division recognised that
such assessment involves inherent uncertainty.2 Furthermore, in Road Accident
1 Tavakoli andAnotherv Bantry Hills (Pty) Ltd 2019 (3) SA 163 (SCA) par [3]
2 Generally, see Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A)
41 Page
Fund v Guedes', the SCA set out the principles applicable to an appeal court's
approach to awards of damages by the trial court, as follows:
"[8] It is trite that a person is entitled to be compensated to the extent that
the person's patrimony has been diminished in consequence of another's
negligence. Such damages include loss of future earning capacity (see for
example President Insurance Co Ltd v Mathews). The calculation of the
quantum of a future amount, such as loss of earning capacity. is not, as I have
already indicated, a matter of exact mathematical calculation. av its nature such
an enquiry is speculative and a court can therefore only make an estimate of
the present value of the loss which is often a very rough estimate (see for
example Southern Insurance Association Ltd v Bailev NO. The court
necessarily exercises a wide discretion when it assesses the quantum of
damages due to loss of earning capacity and has a tame discretion to award
what it considers right. Courts have adopted the approach that in order to assist
in such a calculation, an actuarial computation is a useful basis for establishing
the quantum of damages. Even then, the trial court has a wide discretion to
award what it believes is iust (see for example the Bailev case and Van der
Pfaats v South African Mutual Fire and General Insurance Co Ltd. As pointed
out bv the learned authors Erasmus and Gauntlett with reference to a number
of reported cases, the prqper approach of an appeal court in appeals against
awards of damages has often been set out and the principles have been stated
in different ways, some appearing to favour appellants, others respondents.
Some of these princjples which are of application in this matter are well
summarised, again with reference to reported cases, by the learned authors in
these succinct terms:
'(c) Where the amount of damages is a matter of estimation and discretion.
the appeal court is genera/Iv slow to interfere with the award of the trial court -
the appeal court is genera/Iv slow to interfere with the award of the trial court -
an appellate tribunal cannot simply substitute its own award for that of the trial
court. However, once it has concluded that interference is iustified in terms of
the principles set out in (d) below, the appeal court is entitled and obliged to
interfere.
3 2006(5) SA 583 (SCA)
SI Page
(d) The appeal court will interfere with the award of the trial court:
(0 where there has been an irregularity or misdirection (for example.
the court considered irrelevant facts or ignored relevant ones: the court
was too generous in making a contingency allowance: the decision was
based on totally inadequate facts):
(ii) where the appeal court is of the opinion that no sound basis
exists for the award made by the trial court:
(iii) where there is a substantial variation or a striking disparity
between the award made b v the trial court and the award which the
appeal court considers ought to have been made. In order to determine
whether the award is excessive or inadequate, the appeal court must
make its own assessment of the damages. If upon comparison with the
award made bY the trial court there appears to be a "substantial
variation" or a "striking disparity1'. the appeal court will interfere."'
(footnotes omitted)
[7] In Bee v Road Accident Fund4 , the majority judgment emphasised two
interrelated principles which an appeal court should observe in an appeal against an
award of damages. The first is that the trial court's factual findings are presumed to be
correct in the absence of demonstrable error. The onus is thus on the appellant to
convince the appeal court that the trial court's factual findings were clearly wrong. The
appeal court will thus only interfere in the trial court's assessment of oral evidence in
exceptional circumstances5.
[8] Secondly, where damages are a matter of estimate, an appeal court will not
interfere with the trial court's assessment unless that court committed a misdirection
or there is a substantial variation between the trial court's award and what the appellate
court would have awarded, or unless there is no sound basis for the award.6
4 2018 (4) SA 366 (SCA) para [46]-(47)
5 Bee supra, par (46) and references ; Roux v Hattingh 2012(6) SA438 (SCA) par [12]
6 Bee supra, para [46)-[47)
6I Page
[9] It is thus evident from the above authorities that the SCA has made it clear that
room to interfere in the award of damages by a trial court is very limited. This court
would first have to come to a finding that it is entitled to interfere in the damages award
for past and future loss of income and in the event that it were to conclude that none
of the bases or circumstances as set out above arise, then the appeal is to be
dismissed.
The respondent's pre-incident circumstances
[1 OJ When the incident occurred in September 2011, the respondent was very young
and employed as a full time waitron at Grand West Casino from Mondays to
Thursdays. He was regarded as one of the top performers, according to a colleague,
Ms Mlotywa, and had a good rapport with customers. There was all-around positive
feedback in relation to his work periormance. The respondent was working in the Prive
or VIP section of the Casino and he would earn between R800 to R2 500 per shift. As
indicated during the trial, these sections of the Casino were frequented by the "high
rollers".
[11] Prior to his employment at Grand West, the respondent worked at a call centre,
but this seemed to have interfered with his dreams of becoming a DJ. He did not enjoy
this work, thus further employment in a call centre was not pursued. While training as
a waitron and bartender, the respondent developed an interest in becoming a DJ. At
the time of the incident, he worked part-time as a regular DJ on Fridays through to
Sunday nights.
[121 The evidence from his co-workers and the industrial psychologists (IPs)
established that the respondent had undertaken short courses aimed at improving his
marketability in the hospitality and entertainment job-market. The IPs agreed that the
respondent displayed entrepreneurial qualities by working as a self-employed DJ and
had used his wages earned at the Casino to purchase music and/ DJ equipment. Pre
morbidly, the respondent was a well-functioning individual.
71 Page
The shooting incident and its consequences
[13] The respondent's evidence was that on 18 September 2011, while he was
working as a DJ, members of the police (SAPS) arrived at the event and began
shooting indiscriminately into the crowd. One of the police officers fired a rubber bullet
at the respondent with the result that he suffered a severe injury which caused the loss
of his right eye. Three months later he was fitted with an ocular prosthetic eye. One of
the consequences is that the respondent has severe sunken eye appearance.
[14] The evidence was that because of the incident and an occurrence at his
mother's house after the incident which involved the police, the respondent
experienced a deep-seated fear of the police. He struggled to accept his altered
appearance which caused him to become self-conscious and ashamed. The testimony
of a fellow DJ, Mr Mkosana, was that after the shooting incident, the respondent was
no longer approachable and was easily upset and irritated.
[15] The respondent would become emotional and moody, would fight with and
shout at customers and took long breaks, often worrying about the discharge caused
by the prosthetic eye. He would be tardy, had difficulty sleeping, arrive late at work and
would spend long periods in the bathroom attending to a discharge caused by wearing
of a prosthetic eye. The impact and consequences of the incident and injury had
affected his self-confidence and emotional state and cumulatively, these factors
affected his work performance.
[16] The evidence was that the respondent's fellow waitrons were burdened by
serving more tables or more waitrons would be employed in order to fill the gap left by
the respondent's under performance. His performance had declined to the point where
he had become one of the poorest performers in the workplace and he was thus
moved from the Prive section to working day shifts in the non-smoking Sun lounge
where he served refreshments to elderly patrons and made poor tips.
81 Page
[17] The respondent sought help7, attended medical appointments where he
expressed that he was stressed and experienced headaches due to a lack of sleep
and nightmares. The evidence was that the employer, Grand West, was sympathetic
to the respondent's plight, tried to accommodate him and did not formally reprimand
him. As for the weekend DJ job, the respondent considered that it had ruined his life.
(18] The evidence indicates that the injury and loss of his eye affected the
respondent immediately and had enduring consequences for his comfort, self-esteem,·
ability to engage with customers tolerate a busier and rowdier crowd on the casino
floor at night.
The joint minutes of the industrial psychologists (IPs)
[19] In terms of the first joint minute of the IPs of February 2020, and despite having
differing views on whether the respondent would have continued with part-time DJ and
movie-extra work, the experts nonetheless agreed that in respect of his permanent
employment, as a waitron, the respondent would in all likelihood have advanced to
supervisory level aVaround the median age of 35 years8. They also agreed that had
he remained at Grand West he would have qualified for a salary of R120 000 per
annum. The IPs were ad idem that the salary band for supervisors falls within the
semi-skilled band for non-corporate employees, specifically between the median and
upper quartile earnings.
[20] In their second joint minute compiled in October 2023, the IPs agreed that pre
morbidly (uninjured earnings], the respondent's monthly income comprised of tips and
basic salary, which would have been R7 600 per month in 2019, made-up as follows:
R4 400 basic salary plus R3 247 tips. Ms Colley noted that this excluded corporate
benefits, while Mr Swart was of the view that it included a housing subsidy. The
7 At the Trauma Centre, Woodstock
8 Ms Colley, the respondent's expert IP, and Mr Swart, the appellant's expert, could not agree on the
ages that the respondent would likely have reached supervisory level. Ms Colley proposed 30 - 40
years and Mr Swart was of the view that the age of 35 was considered the median age.
9! Page
respondent also qualified for Provident fund and healthcare benefits, as well as a 13th
cheque.
The trial court's acceptance of the respondent's evidence
[21) The appellant is of the view that the trial court erred when it accepted the
respondent's evidence regarding his work performance at Grand West as it did not
align with the objective evidence and that court's reservations about his credibility.
There is no mistaking the fact that the trial court's 7 4-page judgment is detailed and
reflects a comprehensive engagement with the evidence, its assessment thereof, the
parties' submissions and the reasons why the court accepted the testimony of the
respondent.
[221 The trial court certainly did not shy away from criticising the respondent where
such criticism was warranted. For example, the trial court found that the respondent's
version was not favourable in all respects and set out in which respects it considered
that he exaggerated his evidence or that his testimony was not borne out by the
objective facts.
[23) It is important to note, and as correctly submitted by the respondent's counsel
during the appeal, that the trial court did not find the respondent to be either untruthful
or an unreliable witness. He did not strike the court as completely dishonest nor was
it persuaded that all his testimony should be disregarded. The trial court found that
the expert evidence plus the evidence provided by collaterals, corroborated the
respondent's version that he had suffered serious psychological seque/ae as a result
of the incident but that he had failed to satisfactorily explain the 'tipping point' which
caused him to resign from Grand West 8 Y,ears after the incident.
10 I P age
[24] While he had attended a trauma centre after the incident, the respondent had
not sought professional psychological treatment nor accessed any state facilities or
taken up the offer through Life Assist provided by the employer. In this regard, the trial
court found that he had failed to adequately explain his approach especially where the
employer accommodated him in respect of shifts and moving him to a less busy area
of the Casino.
[251 The trial court was of the view that at times, the respondent tended to
exaggerate certain facts in order to suit his case and that he had adopted a supine
attitude after his resignation from Grand West which did not accord with the view that
he was taking steps to mitigate his damages. In this regard, the trial Court, having
regard to the evidence of Dr Bredekamp, was of the view that there was an element
of malingering even though it was not pleaded by the appellant.
[26] In my view, the trial court reasonably and correctly held the view that the
respondent had exaggerated and embellished certain parts of his testimony9. In
addition, his professed indication that he did not wish to work with customers directly,
was inconsistent with his application to work as a guest relations officer at Grand West
and the City of Cape Town. The trial court also rejected the testimony that he was
constructively dismissed, which was not borne out by the evidence and expert reports.
[27] There were certainly shortcomings in the respondent's testimony, which the trial
court had regard to in the overall assessment of the evidence. It's finding that the
incident directly affected his physical and psychological capacity to perform his waitron
function at the same level as he did pre-morbidly, was correct. The respondent's
testimony was in large borne out by the expert reports as well as the evidence of a
colleague.
[28] The trial court weighed up and tested the respondent's version against the
colleague.
[28] The trial court weighed up and tested the respondent's version against the
probabilities and found that it favoured his version. Thus, despite the questionable
exaggeration on certain aspects as highlighted in the judgment, in my view, the trial
court was correct not to reject the respondent's testimony in totality.
9 For example, that the police approached him with AK47s.
11 I P age
[29) It bears emphasising that in order for an appeal court to interfere with the trial
court's findings which depend upon the credibility of a witness, it would have to be
convinced that such findings are "plainly wrong'110. In this regard, one must bear in
mind that the trial court had the advantage of seeing and appraising the respondent
during the trial, and was clearly alive to his shortcomings, as expressed in its judgment.
[30] It is evident from the record and the judgment , that the trial court's analysis and
assessment of the respondent's evidence, and its credibility findings, were correct. In
the result, I find that the appellant has failed to discharge the onus of showing that the
trial court's factual findings in relation to the respondent were clearly wrong11.
[31] The appellant took issue that the respondent had applied to work at the police,
despite the evidence that he expressed a deep-seated fear of the police. In my view,
this action should be seen in the context of the respondent's psychological diagnosis
post-incident and his belief that were he to work for SAPS, he would eventually
overcome his fear of the police. While the respondent has been criticised, my view is
that this action or decision does not taint his evidence as being largely truthful and
acceptable.
The acceptance of Dr Bredekamp's testimony
[31] The appellant also takes issue with the trial court's reliance, unreservedly so in
its view, on the testimony of Dr Bredekamp, counselling psychologist. The first point
to make is that the trial court recognised that the appellant, which was the defendant
in the action, elected not to call a psychologist as an expert to provide an opinion
regarding the respondent's post-morbid psychological functioning. Thus, the testimony
of Dr Bredekamp and her diagnosis of the respondent as suffering from post-traumatic
stress disorder (PTSD), mild depression and adjustment disorder, was therefore not
gainsaid.
10 Sanlam Bpk v Biddulph 2004(5) SA 586 (SCA) par [5]
gainsaid.
10 Sanlam Bpk v Biddulph 2004(5) SA 586 (SCA) par [5]
11 Roux v Hattingh supra, par (12)
121 Page
[32] The criticism of the trial court's acceptance of Dr Bredekamp's testimony must
also be seen in the light of the dicta in Ad Hoc Central Authority for the Republic of
SA and Another v Koch N.O. and Another12, where the acceptance of an expert's
testimony came under the spotlight, as follows:
"[110] As stated, Ms Pettigrew's evidence stands uncontroverted. That does
not mean that it must simply be adopted. As in the case of any expert opinion
evidence, it remains the task of a court to examine the evidence in order to
detennine whether it should be accepted. Whilst the court would not subject
an uncontroverted expert report to the same kind of scrutiny as when evaluating
a contested report, the opinion must be reasoned and be supported by the
evidence on which it is based. If the unchallenged opinion is on the face of it
based on sound logical reasoning, the expert has reached a defensible position
supported by the basic facts and the probabilities, and there is no other reason
not to accept the evidence, " . .. it is difficult to envisage a situation in which it
would be appropriate to decide that it is wrong"."
(footnotes omitted)
[33] It is apparent from the above paragraph in Koch NO, that the Constitutional
Court was clear that in respect of expert opinion evidence, it was the court's task to
examine the evidence to determine whether it should be accepted or not. Dr
Bredekamp's report was not contested nor was an alternative opinion provided by the
appellant. It must also be remembered that at the time she testified, Dr Bredekamp
already had 30 years' experience in the psychology field and her mandate was to
provide a self-report analysis, which she duly fulfilled.
[34] Dr Bredekamp confirmed that she had not tested the respondent for malingering
but the evidence and her report indicate that she had consultations with the
respondent and observed him. In respect of her observations, her expert opinion was
respondent and observed him. In respect of her observations, her expert opinion was
12 2024 (3) SA 249 (CC). It is noted that paragraph (11 O] is part of the dissenting judgment. However,
on reading the entire judgment, it is apparent that the general approach to an expert witness's
testimony is not disputed in the majority judgment.
131 P a ge
that there was no evidence to show that there was malingering. She had assessed the
respondent twice and found that he was not feigning any mental disorders nor
purposefully exaggerating any symptoms.
[35] Furthermore, her expert view that the respondent's psychological symptoms
would render him vulnerable in the work environment, was also not challenged. She
recognized that he would require psychiatric intervention, psychotherapy, career
counselling and a new career to suit his disability, personality and interest.
[36] As with the respondent's testimony, the judgment of the trial court assessed Dr
Bredekamp's oral testimony, report and thus her expert opinion. A psychologist
provides an opinion based on observations of human behaviour and "in response to a
certain set of circumstances, which as a matter of logic must have an inherent
uncertainty to it"13. Dr Bredekamp was qualified and experienced to treat a mental
health disorder, to diagnose the respondent and to furnish her professional opinion on
the psychological disorders which he suffered as a result of the traumatic shooting
incident and loss of his eye.
[37] Another significant point is that when considering the record and the reports, it
it is apparent that what the respondent had reported to Dr Bredekamp was consistent,
on the whole, with what he had reported to the two industrial psychologists.
Furthermore, his sister and fellow work collaterals also corroborated that he was
suffering from significant psychological and behavioural problems after the incident
and because of the self-consciousness, low self-esteem and pre-occupations with
having to wear a prosthetic eye.
[38] Dr Bredekamp administered standard psychological tests and the respondent
was required to complete a self-reporting questionnaire, which he did. Her testimony
that he provided a true account of his psychological issues and was not over
exaggerating his symptoms, was not countered during the trial, even in circumstances
exaggerating his symptoms, was not countered during the trial, even in circumstances
where a test for malingering had not occurred. In those circumstances, it is indeed
13 Koch NO supra, par (111]
141 Page
questionable, as the respondent's counsel submits, as to the motivation and need to
conduct a test for malingering.
[39] Furthermore, Dr Bredekamp diagnosed the respondent's psychological
disorders based on the diagnostic criteria contained in the Diagnostic and Statistical
Manual of Mental Disorders14. In respect of a cognitive impairment test, it was
accepted that the psychologist was not performing a neuropsychological assessment
on a person with a traumatic brain injury. The respondent's diminished cognitive
function was a result of psychological symptoms.
[40] In my view, the trial court cannot be faulted on its approach and assessment of
Dr Bredekamp's testimony. The judgment reflects a thorough consideration of the
expert evidence, a clear indication that it was not considered in isolation, the
psychologist's observations and the fact that a test for malingering was not done
separately. The trial court also considered the testimony of the respondent's sister and
co-worker, which in summary, sketched a picture of the marked decline in the
psychological functioning of the respondent after the shooting incident, which was by
all accounts, generally consistent with the doctor's diagnosis. Considered holistically,
these factors and assessment, militated against a potential conclusion that the
respondent's resignation and failure to obtain new employment could solely be
contributed to malingering.
[41] In the circumstances, I thus agree with the respondent's submission that the
trial court's finding insofar as Dr Bredekamp was concerned, was based on that court's
view that the expert's opinion was based on sound logical reasoning, supported by
material facts, probabilities and collateral evidence. There was no sound reason why
the court should have rejected Dr Bredekamp's evidence and the submission that the
trial court accepted Dr Bredekamp's opinion unreservedly, is certainly incorrect. To
conclude this ground of appeal, in my view, the trial court committed no error when it
conclude this ground of appeal, in my view, the trial court committed no error when it
accepted Dr Bredekamp's testimony.
14 See respondent 's heads of argument
15j Pag e
Past loss of income from full-time employment
[42] The appellant did not call an actuary nor was issue taken with the actuarial
reports presented by the respondent. Munro Forensic Actuaries were requested to
provide two further reports to recalculate the respondent's loss of income. There is
nothing problematic about the trial court's request in this regard15.
[43] The trial court set out the basis upon which the updated actuarial reports were
prepared and the adjustments to the respondent's future injured income 16 . The actuary
was instructed to apply a contingency deduction of 7.5% on past uninjured income
from the date of the incident to date of the updated calculation, based on Koch's sliding
scale of 0.5% contingency deduction per year 17.
[44] The judgment considered the actuarial reports and the three scenarios
postulated therein in respect of the respondent's full-time employment. The trial court
found the most realistic and fair scenario to be scenario 3. It did not agree with the
respondent's proposed contingency deduction of 7.5% on past uninjured income but
was of the view that a 15% contingency deduction was more appropriate. Overall, the
increase in the contingency deduction took account of the fact that the respondent's
cash tips would have been variable, and this reasoning cannot be criticised.
[45] The trial court applied various assumptions. For instance: (i) for the period 17
September 2011 to 1 May 2024, the respondent's injured income was based on the
assumptions that he earned a level basic monthly salary from the date of incident until
his resignation; (ii) from the date of incident until resignation in December 2019, the
respondent earned less tips per month compared to the monthly tips which he would
have earned in the uninjured scenario; (iii) there was a total loss of income from
January to March 2020 due to his resignation and having remained unemployed until
the end of March 2020; (iv)there was no claimable loss of income for the period April
the end of March 2020; (iv)there was no claimable loss of income for the period April
2020 to end December 2020 due to COVID; and, (v) there would be a further total
15 See, for example, Southern Insurance Association Ltd v Bailey NO1984(1) SA 98 (A) p99
16 Judgment para 237-238
17 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) par (9)
16I Page
loss of income from the beginning of January 2021 until 1 May 2024 which was the
date of actuarial calculation.
[46] The appellant takes issue with the assumptions which the trial court relied upon
to arrive at a contingency deduction. It must be stated that the respondent's uninjured
basic salary of R4 400 per month was based on an agreement which the IPs had
reached in the joint second minute. In this regard, the majority in 8ee18 made it clear
that experts' joint minutes limit the issues on which evidence is required and absent
fair notice of repudiation of such minutes, the other party is entitled to proceed on the
basis that those matters agreed between the experts, are not in issue between them.
There was no repudiation of the joint minutes, and the court was entitled to accept the
amounts as per the minutes to calculate the respondent's uninjured monthly salary as
a waitron .
[47] The appellant accepted that but for the incident occurring, the respondent would
have earned a basic salary of R4 400 per month plus tips of R3 247 per month.
According to the actuarial report, the monthly salary of the respondent as a waitron
after the incident was R2 973 per month. This amount was derived from the payslips
for the period 2016 to 2019 with an inflation adjustment.
[48} The trial court correctly assumed the basic monthly salary of R2 973 per month
in the injured scenario as it was based on the respondent's actual post-incident salary.
On the question of cash tips earned after the incident, the trial court accepted that the
amount would have reduced particularly as the respondent was moved from the Prive
or Premium area of the Casino to the Sun lounge, and working day shifts would have
impacted on his earnings.
[49] The trial court was also correct to rely on the assumption in the actuarial report19
that but for the incident, the respondent would have earned cash tips of R3 247 per
month, and after the incident, he earned tips of R246 per month20. On the question of
18 Supra, par [66]
18 Supra, par [66]
19 8 April 2024 report
20 Average per month based on pay slips from 2016-2019
171 Page
his resignation, the trial court recognised that the respondent was not coping at work
and under-performing, and that the employer was accommodating him.
[50] The submission by the respondent's counsel that by resigning in 2019, the
respondent attempted to mitigate his damages, rather than inflate it (in which case, he
most probably would have resigned earlier), has merit. Having regard to the matter, in
my view there was no error in the facts and assumptions relied on by the trial court
which would call for a recalculation of the respondent's past loss of income from full
time employment.
Respondent's loss of earnings as a DJ
[51] The appellant's further ground of appeal is that the trial court misapplied the
principles related to the respondent's decision to stop working part-time as a DJ and
questions its calculation of loss of earnings under this stream of income. It is common
cause that being a DJ was part-time work and a secondary source of income at the
time the incident occurred. The trial court found21 that the respondent's decision to
cease work as a DJ after the incident was reasonable and understandable.
[52] The appellant submits that there was no cogent evidence that the respondent's
psychological functioning was impacted to such an extent that he could no longer
perform as a DJ and that his version that he struggled with crowds and had difficulty
with his self-awareness was contradicted by the fact that he had sought work as an
extra in adverts, which would involve crowd scenes. Furthermore, he had indicated to
Ms Colley that he had still worked as a DJ in 2019. It is further submitted on the
appellant's behalf that the respondent failed to prove that his injury rendered him
incapable of performing as a DJ and hence, he failed to prove damages in respect of
loss of income from this secondary source.
21 Judgment, par 193
181 Page
[53) The first point to make is that the appellant does not take issue with the method
of calculation adopted by the trial court in respect of the loss of income as a part-time
DJ. A contingency deduction of 20% was applied to the respondent's past uninjured
income, and a 35% contingency deduction to his future uninjured income as a DJ. The
trial court's rationale was that the latter was a higher contingency deduction as these
earnings were more speculative than the respondent's full-time earnings as a waitron .
Furthermore, there was no guarantee that he would have continued to work every
weekend as a DJ until he reached the age of 40.
[54] The appellant contends that the loss of his eye and vision would not have
prevented the respondent from working part time as a DJ. The difficulty with the
appellant's argument, however, is that it ignores the evidence from other witnesses
and Dr Bredekamp that after the incident, the respondent became self-conscious; he
had difficulty with his appearance and his sunken eye; he did not like people looking
at him; he was preoccupied with his looks, and that his psychological functioning was
impacted to such an extent that he could not perform any longer as a DJ.
[55] Clearly, the impression gained from the evidence presented during the trral is
that as time passed, it became more difficult for the respondent to cope in certain
environments, including loud and busy areas, and that the DJ job was a reminder of
the traumatic incident and how, according to the respondent, his life was ruined by the
shooting incident.
[56] The post-traumatic stress disorder had impacted on him in the workplace and
significantly, a fact that cannot be downplayed, it was while operating as a DJ in 2011,
that the police attack occurred which rendered him injured to the extent that he lost his
right eye in toto. The evidence that performance as a DJ reminded him of the incident,
cannot be ignored. Dr Bredekamp's view that his psychological function was severely
cannot be ignored. Dr Bredekamp's view that his psychological function was severely
diminished by the incident was, as mentioned above, not gainsaid.
(57] The trial court clearly took account of the evidence that post-incident, he was
moody, lost self-confidence, was angry, suffered from an inferiority complex, had
191 Page
difficulty in his personal relationship, and suffered from anxiety and fear. All these
behavioural changes would not fit the picture of a DJ who is required to be energetic,
entertaining and engaging with crowds. In my view, the appellant's IP could not offer
an alternative view as to why the respondent had ceased performing as a DJ.
[58] The trial court was alive to the significance of the severity of the incident and
injury and its sequelae which had far reaching consequences and effect on the
respondent who was very young at the time. In my view, the trial court correctly found,
after considering all the evidence, that the psychological effects of the loss of his eye
were ongoing and had rendered the respondent incapable of performing as a DJ. The
trial court's calculation of this stream of income is not erroneous, and I am satisfied
that the respondent had indeed proved his damages during the trial.
Contingency differential applied to future loss of earnings
[59] The trial court found that the respondent's future loss of income from full-time
employment was calculated by using differential contingencies. In this regard, the trial
court had regard to the actuarial report A22. The respondent's postulated future pre
morbid earnings of R3 330 70023 was accepted and used as the base figure in the pre
and post-morbid scenario, then applying differential contingencies of 15% and 45%24
in the uninjured and injured scenarios which resulted in a 30% contingency differential.
This amounted to a net future loss of earning capacity/earnings from full-time
employment of R999 21025.
[60] The appellant agrees that the trial court's overarching methodology of
determining the loss of future income and application of a differential contingency to
22 Volume 13A, p1312.35
23 Report A, par 6.5
24 In respect of the future uninjured income, the trial court applied a 45% contingency deduction based
on a sliding scale of 1.5% per year to retirement 30 years x 1.5% per year% =45%
on a sliding scale of 1.5% per year to retirement 30 years x 1.5% per year% =45%
25 Future uninjured income: R3 330 700 - 15% contingency deduction= R 2831 095
Future injured income: R3 330 700-45% contingency deduction = R1 831 885
30% contingency differential - future loss of earning capacity = R999 210
Judgment, par 242
20 I P age
the same assumed future income stream was in line with established authority as well
as the approach of the IPs. The appeal, however, is directed at the contingency
differential of 30% which the court applied and which it says was not justified .
[61J The appellant maintains that the psychological sequelae pursuant to the injury
sustained in the incident, is questioned/questionable. This aspect, which overlaps with
the ground that the trial court accepted Dr Bredekamp's testimony unreservedly, has
already been considered and as stated, the trial court did not misdirect itself when it
accepted Dr Bredekamp's diagnosis.
[62] It is trite that general contingencies encompass a wide range of considerations
which differ from case to case26. As is evident from the authorities referred to at the
outset of the judgment, contingency deductions lie within the discretion of the trial court
and also depends upon the judge's impression of the case. The judge's assessment
is grounded on the assumptions rooted in the evidence before it. These assumptions
would vary from "strongly probable to speculative"27. Ultimately, the trial court has a
wide discretion to award what it considers right28.
[63] During the trial it was submitted on behalf of the appellant that it would be fair if
the trial court applied a 25% contingency differential to calculate the respondent's
future loss of income. On appeal, however, the argument is that a 20% contingency
differential would be in line with Mr Swart's expert opinion that a slightly higher than
normal post-injury contingency should be applied.
[64] In Road Accident Fund v Ke"ldge29, referring to Koch's The Quantum
Yearbook, the SCA stated that a 5% to 15% contingency is generally a normal
contingency for past and future loss of earnings, respectively. The trial court evaluated
the evidence, considered the actuarial calculations provided by the actuaries, the
variables and assumptions applicable to the matter and was of the view that a higher
variables and assumptions applicable to the matter and was of the view that a higher
26 The Quantum Yearbook RJ Koch (2017) at p126
27 Bailey NO supra, 113G-H
28 Legal Assurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614F
29 2019 (2) SA 233 (SCA) par [30)
211 Page
contingency differential would be fair and reasonable in light of the respondent's
employment history, his age and the uncertainties inherent in the projection of future
earnings.
(65] While much is made of the fact that the respondent continued working for a
period of about 8 years after the incident before he resigned from Grand West,. this
fact does not impact on his post-incident vulnerability. He was accommodated at work
but the evidence supports a view that there were declining performance, tardiness and
lateness.
[66] The trial court's assumptions regarding the respondent's career advancement
were not speculative but thoroughly deliberated and due regard was given to all the
views presented in the trial, and the actuarial calculations. In all the circumstances, I
am satisfied that the 30% contingency differential applied in the specific circumstances
of the respondent did not fall outside the range of what is fair and reasonable. I agree
with the respondent's counsel that the trial court considered the matter holistically.
(67] The criticism that the trial court did not explain how it arrived at a 30%
contingency differential is unjustified as the judgment sets out its reasoning for the
application of the contingency differential and its calculation of damages for past and
future loss of earnings/income in respect of full-time and part-time DJ employment3°.
The trial court had a wide discretion when it assessed the claim for loss of earning
capacity and I am satisfied that the discretion was exercised fairly and reasonably31.
[68) This court is not inclined to interfere with the trial court's award where the
difference suggested by the appellant in respect of the contingencies percentage may
be 5% or 10%. Furthermore, none of the factors or circumstances mentioned in
Guedes and Bee32 (as referred to earlier in the judgment) which would warrant an
30 Judgment, p71-73
31 Guedes supra, par [8]
32 Supra
22 I P age
interference in the trial court's award, present itself in this appeal. Accordingly, I find
that there is thus no room to interfere with the trial court's exercise of its discretion.
Costs
(69] The appeal initially sought a dismissal of the respondent's claim and as
indicated, the grounds of appeal were amended. A further calculation was suggested
during the appeal and this meant that the parties were afforded an opportunity to
provide a further note on the newly suggested actuarial calculation by the appellant.
In view of the above findings, the appeal shall be dismissed and there would be no
need to consider alternative actuarial calculations. Lastly, costs shall include costs of
the leave to appeal application with counsels' fees on scale C.
Order
[70] In the result, I would grant the following order:
The appeal is dismissed with costs which shall include the costs of the application for
leave to appeal in the court a quo, and including costs of counsel on scale C.
JUDGE OF HIGH COURT
231 Page
I agree.
I agree and it is so ordered.
Appearances:
For appellant:
Instructed by:
BDJ Gassner SC
State Attorney
Cape Town
Per: S Shaik
For respondent: WS Coughlan
Instructed by: DSC Attorneys
Cape Town
Per: C Smit
241 Page