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Reportable

IN THE HIGH COURT OF SOUTH AFRICA

(Witwatersrand Local Division)

Matter heard 21-23 November 2007

Judgment: 27 November 2007

Case no: 06/26259

In the matter between:

NYANDENI PLAINTIFF

and

ROAD ACCIDENT FUND DEFENDANT

Loss of maintenance of deceased’s wife and children. Claim against Road Accident Fund. Quantum of damages in dispute. Mutually destructive versions in evidence. Plaintiff’s evidence accepted as likely and, in any case, also as credible. Defendant calling Human Resources and Administration Manager – not best evidence of operations, which falls under a different manager, who should have been called.

Hostile witness – application by defence to declare father of plaintiff to be a hostile witness dismissed. Previous inconsistent statement not sufficient in the circumstances to justify such a declaration. Father of plaintiff found to be a credible witness.

Future earnings – loss of determined on evidence of industrious nature of deceased

Van Rooyen AJ

[1] This matter was brought before me so as to establish the quantum of a claim of a widow, Mrs. Nyandeni and her three children against the Road Accident Fund. Mrs. Nyandeni is 48 years old and the children are respectively 19, 15 and 11. Mr. Nyandeni was run over by a motor vehicle and died as a result of injuries sustained on the 23^rd July 2005. He was 48 years old. So as to enable the final actuarial quantification of her damages, the income and earning capacity of the deceased have to be determined. Definite lines were drawn by the actuaries as to how the amount should be computated.

Evidence

[2] Mrs. Nyandeni testified that her husband earned R3000 per month from her father by driving one of his taxi omnibuses on weekday evenings. They were used to transport the employees of a firm, PG Bison, which paid the father R16000 per month for the services rendered. She also testified that the deceased was involved in selling goods on behalf of Tianshi (South Africa) (Pty) Ltd. The business style of Tianshi is to involve members of the public to sell their products. Mrs. Nyandeni testified that her husband’s profit per month from Tianshi was R2000 per month and, at times, R2300 or R2400. She mentioned that the annual school fees paid for the three children amounted to R7450. The plaintiff was recalled to hand in a document which she had discovered in her home the evening after she testified. The document (Exhibit “B”) is an invoice for a sale to a Gladys Mdlalose( Tianish distributor no 82457096) and was handed in as evidence from which it could be inferred that the deceased would, at times, buy goods under the name of someone else. It is dated 5 October 2004.The document categorizes itself as a “pink copy,” which is the copy of the distributor. Mrs. Nyandeni also testified that the deceased had daily been going out to conduct seminars and sales in respect of Tianshi products.

[3] The plaintiff then closed her case and made the plaintiff’s father, Mr. Nkwane, available to the defendant as a witness.

[4] The first witness for the defence was Mr. Nkwane. He testified that he paid the deceased R3000 per month for acting as a driver and that he was paid R16000 per month by PG Bison, at R8000 per vehicle, per month. He conceded that he had, incorrectly, told the RAF assessor, Mr. Baloyi, that he only received R4000 per vehicle from PG Bison. When necessary, his private vehicle would also be used. The costs of petrol were covered by the income during the day. Repairs of the vehicles were paid for in the ordinary course.

[5] Mr. Bhayat, the Human Resources Manager of Tianshi, also entrusted with administration, testified that his investigation into the operations of the deceased showed that the account had only been operative up to the end of September 2004. This meant that at the stage when he passed away in July 2005, there had been no income on the account. However, the deceased had been classified as a “four- star” distributor, which was indicative of good selling. When a distributor reached the “six-star” status, he or she would earn points. On average, distributors with a four-star rating would earn between R2000 and R6000 per month in commission on the sales of the persons within their recruited group. That would be over and above profits which were made from personal sales. Mr. Bhayat confirmed the practice whereby a distributor could purchase products with the distributor number of another distributor. He agreed that since exhibit “B” was in the possession of the plaintiff, the purchase could have been affected by the deceased, although with the number of another distributor. There was a “huge” decrease of the number of distributors in their first year.

[6] The RAF assessor, Mr. Baloyi, testified that Mr. Nkwane told him that he received R4000 per vehicle per month. He also, at first, told him that he paid the deceased R3000 per month. He, however, later on conceded that he only paid him R200 per week. In cross-examination Mr. Baloyi confirmed that he had made it clear to Mr. Nkwane that he was an assessor and that he had approached the assessment objectively. He then wrote a statement for Mr. Nkwane to sign. The statement, which was read into the record by Mr. Baloyi, read as follows:

“I know the deceased (Aaron Nyandeni). He was my son in-law. The deceased was only working on a temporary basis. I asked him to drive my private vehicle to transport only four people to work each day. This vehicle transported four people. I am paid R4000 per month by the Company. I was paying the deceased R200 per week. This statement was made by me and is the truth. Statement signed by William Nkwana.” The typed statement from which Mr. Baloyi read was not signed.

Asked why he had not mentioned that Mr. Nkwane had first stated that he paid the deceased R3000 per month, he answered that he had included that in his report.

At the end of the day Mr. du Plessis, acting on behalf of the plaintiff, said that he would conclude his cross-examination after having studied the relevant file of Mr. Baloyi and that the file should be handed to him. I acceded to this request. When cross-examination resumed the next morning, Mr. du Plessis asked Mr. Baloyi whether he had had contact with a Ms Herman from PG Bison, as would appear from the file. He confirmed that that had been the case and that she had told him that PG Bison paid Mr. Nkwane R16000 per month. Asked why he had omitted this amount from his report, he answered that the aim of his meeting with Mr. Nkwane was to establish whether he had indeed paid the deceased R3000 per month. And, as stated earlier, he ultimately established that he only paid him R200 per week. This was more realistic to him in the light of the fact that Mr. Nkwane was only receiving R4000 per vehicle and that a monthly stipend of R3000 would then lead to no profit for him.

[7] The last witness for the defendant was Ms Herman from PG Bison. She confirmed that she paid Mr. Nkwane a flat rate of R16000 per month. The number of vehicles used was irrelevant.

Evaluation

[8] In several respects the evidence for the plaintiff and the defendant is mutually destructive. The Plaintiff testifies that the income of her husband as a driver was R3000 plus R2000 per month from Tianshi, whilst the RAF would have the first amount, according to the assessor, at R800 and the second as non-existent at the time of the death of the deceased. Mr. Nkwane, called for the defense, however, testified that the first amount was R3000 per month.

In National Employers’ General Insurance v Jacobs¹ Eksteen AJP (as then was) said at 440D-E:

“In a civil case the onus is obviously not as heavy as it is in a criminal case but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive versions, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and the defendant’s version is false…It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses…and then, having concluded that enquiry to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact, as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities.” (emphasis added)

[9] Before I consider the evidence, it is necessary to deal with the reasons why I dismissed the application of the RAF to have Mr. Nkwane declared a hostile witness so that Mr. Viljoen, on behalf of the RAF, could cross-examine him. Findlay AJ says the following in City Panel Beaters v Bhana & Sons 1985(2) SA 155(D):

“I agree with KING AJ in Jabaar's case supra that a previous inconsistent statement is one of the factors to be taken into account in this enquiry (at 555D). The mere fact that the witness has given evidence different from what was expected does not per se render him hostile. (Farmer & Farmer's Trustee v McMillan 1905 TH 134 at 135.) In other words, there is in my view a distinction between the witness not giving evidence favourable to the party who called him and his being adverse in the sense of being hostile. (Cf R v Saqwashula 1930 AD 437 at 440.) It may well be that the nature of the statement and the inconsistency are such that the inference of hostility is very strong and that no more is required to establish this. I agree with KING AJ at 555A, with respect, that this is the interpretation of what was meant by MUNNIK CJ in Dolo's case supra. In Meyer's Trustee v Malan 1911 TPD 559, quoted by KING AJ in the passage above, the Court also came to the conclusion that the fact that the witness was the son-in-law of the defendant did not necessarily make him adverse to the plaintiff. I point out that in the present case the defendant called the witness Harrypersadh, apparently in the knowledge of his indirect business relationship to the plaintiff, and I do not consider that this carries much weight. In Keyter v Terblanche 1935 EDL 186 at 195 and Potgieter v Cape Dairy and General Livestock Auctioneers (1) 1942 WLD 130 at 133 - 134, both also cited by KING AJ, the declarations of hostility were founded upon the hesitating, contradictory and evasive nature of the replies given by the witness. I must of course bear in mind, when considering those authorities which pre-dated s 7 of the Civil Proceedings Evidence Act of 1965, that previously in our law a witness could not be confronted by the party who called him with a prior inconsistent statement until he had been declared hostile. (Jabaar's case supra at 553H - 554A.) The section of course does not alter the position that a party can only cross-examine his own witness after the declaration of hostility. (Jabaar's case supra at 554B.)

It seems to me from these authorities that, in order to be satisfied that a witness is hostile, the Court will evaluate that witness' stance towards the party calling him. It is clearly undesirable to lay down any rigid formula to be applied, since what is under consideration is, by its very nature, the attitude of the witness, which obviously requires an entirely subjective assessment of that witness in the given circumstances of the case before the Court. Accordingly the general guidelines derived from the authorities such as the witness being shown to have made a previous inconsistent statement, his demeanour, his position towards the party calling him, his relationship to any party and what are loosely described as "the general circumstances of the case" (which necessarily preserves a measure of flexibility in the enquiry) are no more than factors, no one of which will necessarily be decisive, which the Court will take into account when deciding the question.”

Also see Schwikkard and Van der Merwe Principles of the law of Evidence (2002) 428.

Mr. Viljoen argued that I should declare Mr. Nkwane a hostile witness since he had made a previous inconsistent statement to the assessor. Mr. Nkwane conceded this in his evidence, but explained that he did not know who the assessor was. Even if I accept in favour of the RAF that the assessor did declare to Mr. Nkwane who he was, the general demeanour of Mr. Nkwane was that of an honest witness who took the Court into his confidence. I listened to his evidence both in Zulu and in translation and I was impressed by the sincerity of this seventy-one year old man. The mere fact that he had previously made a contradictory statement was, in the circumstances, insufficient to declare him a hostile witness.

[10] As to the R3000 paid for the driving per month I will accept in favour of the RAF that Mr. Nkwane was not that clear as to whether he was the owner of two commuter omnibuses or one, but what was clear was that he did use two such buses and, on occasion, his private car for the transportation of the PG Bison employees. For this service he was paid R16000 per month, as confirmed by Mrs. Herman from PG Bison. He might, on occasion, have used a further car or cars, which would have increased his costs, but the payment of an amount of R3000 per month to the deceased was not unlikely in the light of the income of R16000 per month. Mrs. Nyandeni testified that on average the driving took the deceased three hours per day for five days a week. To have paid him a mere R200 a week was unlikely. Although I need not apply the second guideline as set out by Eksteen AJP above, I may add that Mrs. Nyandeni impressed me as a sincere and honest witness. I need not reject the evidence of Mr. Baloyi that Mr. Nkwane ultimately stated to him that he paid the deceased R200 per week, since Mr. Nkwane openly admitted in Court that he had not given him the correct details. It would amount to speculation to conclude why Mr. Nkwane gave the incorrect information, but I do not find it extraordinarily strange that he did not give him the correct information. It is not uncommon for lay persons as to the law to be suspicious of inquisitors. In fact, Mr. Nkwane testified that he did not know who the assessor was. This vague statement was not attacked in cross-examination, but it probably meant that he did not trust the assessor or understand his precise function. Mr. Nkwane made a good impression on me and I accept his evidence as likely in the circumstances and as having come from an honest man.

[11] As to the income from Tianshi Mrs. Nyandeni testified that the deceased received R2000 and, at times, R2003 and R2400 per month as profit. He continued selling up to his death. Although he was not selling at the same level as before, he had people selling on his behalf. He was 48 years old when he died and in very good health. If he no longer worked for Tianshi, he would have done something else to gain income. He also assisted her father, Mr. Nkwane, in his (taxi) business, due to the advanced age of her father. She knew what his income was, since this was very important for them as the only source of income, her health having deteriorated to such an extent that she could no longer work. The school fees of R7450 plus food etc all had to come from that source. In conflict with her evidence, Mr. Bhayat testified that the account of the deceased was no longer operational after September 2004. He had established this in October 2006.

[12] The problem with Mr. Bhayat’s evidence is that although he is obviously knowledgeable as to the business of Tianshi generally, he is the Human Resources and Administration Manager and not the Operational Manager. Commissions fall under the Operations department. He confirmed that the deceased had a four-star rating, which is two stars from the six-star rating which adds points in favour of a distributor. Although Mr. du Plessis, in argument, stated that the Operations Manager sent Mr. Bhayat to testify for what seems to have been an English language problem, which the Chinese speaking Operations Manager has, Mr. Bhayat never explained this in his evidence. He, however, testified that commissions fall under Operations. Mr. Bhayat, most certainly, was not the best source of information in this respect. There are 60 000 distributors within the South African network of Tianshi; a large operation by South African standards. Mr. Bhayat did not demonstrate to the Court how he had ascertained that the account of the deceased was no longer operational. He did not hold himself out as a financial or operational expert and the mere fact that Mrs. Nyandeni produced an October 2004 commission document which had been in their home, tends to support the inference that the deceased, though under another name and number, was operational after September 2004.

[13] As a four-star operator for Tianshi, it is unlikely that the deceased would have stopped his activities. There was no evidence that he had taken up different work during the day. If Mrs. Nyandeni wished to lie about the Tianshi income, she could easily have increased it to any amount up to R6000, which was said to be a likely income from commission by Mr. Bhayat. Yet she limited it to R2000 per month. This contributes to my conclusion that if the likelihood test fails, the credibility test adds to the scale in favour of Mrs. Nyandeni. I therefore conclude that on a balance of probabilities it has been proved that the deceased earned R2000 a month from Tianshi.

[14] The next question is what the future earning capacity of the deceased was. As Prof Boberg² convincingly points out, future loss of support is an immediate loss of the prospect of support. He also points out, rightly, that it must be established as a probability that such loss will occur, for otherwise the plaintiff has failed to prove the damnum. Mr. du Plessis argued that in the light of the evidence of Mrs. Nyandeni that he constantly went out during the day to conduct seminars relating to Tianshi, the probabilities favoured the conclusion that his earning capacity from commission was a minimum of R2000 per month. Mr. Bhayat testified that distributors could make between R2000 and R6000 per month from commission alone. Of course, Mr. Bhayat also testified that on the facts the deceased was no longer active after September 2004. I have already indicated why the evidence of Mrs. Nyandeni is to be preferred to that of Mr. Bhayat. That finding applies with equal force as to his future earning capacity. Even if it is accepted that he might have changed his business activities, there is no evidence which contradicts the industrious character of the deceased as described by Mrs. Nyandeni. Here was a person who worked every week night for more or less 3 hours, who had reached a four-star level at Tianshi and was also actively involved in furthering the business of Tianshi during the day by holding seminars with distributors in his network or potential network. That the industrious character of a person is relevant in determining future earning capacity appears from Road Accident Fund v Delport NO 2006(3) SA 172(SCA).³ Although the latter judgment deals with a person who had become physically incapacitated, the principle applies with equal force to the earning capacity of a person who passed away. I also have no doubt that the accident in which he was killed as a pedestrian caused the loss of his earning capacity and a diminution of his estate – see Rudman v Road Accident Fund 2003(2) SA 234(SCA).

[15] There was no dispute between the parties that once I had determined the actual and prospective income of the deceased, a statement from an actuary as to the total amount which should be awarded would be accepted. Two alternatives were handed in by the plaintiff: one without future commission and one with future commission. The future commission was taken at the lowest amount, R2000 per month, in line with what Mr. Bhayat said about commission (that it could range between R2000 and R6000 per month). The first calculation came to R436, 328 and the second to R526, 972. I have already found that it is likely that the deceased would have continued working industriously and, accordingly, I regard the R2000 for the commission to be reasonable. The same principle applies to the other income: either produced from the same work or from an alternative source. I have already rejected the evidence from the plaintiff that the deceased received R200 per week for the driving and nothing from Tianshi after September 2004 and need not deal with the actuarial statement based on the R800 per month. In conclusion I should mention that the recent legislative adjustment of the age of majority to eighteen years is irrelevant when it gets to dependency of the children. The issue is whether they are dependent and for how long into the future this will be the position. The actuarial statement has taken this into consideration and I need not dwell on this aspect further.

I have no reason to interfere with the actuarial conclusion. See in this regard the doctoral thesis of Prof Catharina J Davel Die Dood van `n Broodwinner as Skadevergoedingsoorsaak (University of Pretoria 1984) 514 and 626.

Order

I, accordingly, determine the quantum payable by the defendant to the plaintiff to be R526, 972 with interest at a rate of 15,5% per annum as from 15 December 2007. Costs of suit are awarded to the plaintiff. It is so ordered.

…………………………………. 2007-11-27

JCW van Rooyen

Acting Judge of the High Court

For the Plaintiff adv APJ du Plessis, instructed by Raphael Kurganoff, Johannesburg

For the Defendant Mr. D Viljoen from Mabunda INC, Johannesburg

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