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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

                                                                               CASE NO: 62890/2018

(1)REPORTABLE: NO

(2)OF INTEREST TO OTHER JUDGES: NO

(3)REVISED

Date: 22/11/2024

 

In the matter between:
KHOSA ALLEN MUZANKOMO	PLAINTIFF
And
ROAD ACCIDENT FUND	DEFENDANT

 

FLYNOTES-Loss of income-Onus of proof-Conveyor belt operator injured in a motor vehicle accident- Doggy collateral evidence produced-Failure to produce educational qualifications, professions and earnings profile-Onus on the plaintiff to ensure that the court has all the necessary and relevant evidence-Absolution from the instant grant for the claim on loss of earnings.

 

JUDGMENT

 

MATSEMELA AJ

[1]   This is an action in which the plaintiff sues the defendant for loss of earnings as a result of a motor vehicle accident. On the 12 May 2014 the plaintiff was the driver of the motor vehicle bearing the registration number and letters NYF[…] when he attempted to avoid a head on collusion with a motor vehicle bearing unknown registration number and letters driven by an unknown insured driver.

 

[2]   The matter was set down for hearing on 21 August 2024 for loss of earnings. Merits and General damages were previously settled in a form of an offer and acceptance as follows:

 

      2.1. Merits -90 /10% in favour of the plaintiff;

      2.2. General damages -R810 000.00 (Eight Hundred and Ten Thousand Rands).

 

[3]    I was informed that the plaintiff did not furnish the defendant with vouchers nor receipts in respect of his pass hospital expenses and accordingly should abandon this aspect of his claim. The defendant has furnished the plaintiff with an undertaking in terms of section 17 (4) (a) of the Road Accident Fund Act limited to 90%, to cater for the costs of his future hospital and medical expenses.

 

[4]   The Court stood the matter down to the 3 September 2024 for further evidence. I requested that the plaintiff and the industrial psychologist to come and testify.

 

      LEGAL ISSUE

[5]   The issue which was left before the Court was whether the plaintiff suffered any

past and future loss of earnings.

 

      BACKGROUND

[6]   A pre-trial was held between the parties on the 11 March 2024 in terms whereof the defendant admitted to have not appointed experts. The defendant has admitted to the expertise of the plaintiff’s experts in their reports but not to their findings.

 

[7]   The plaintiff’s experts filed their affidavits affirming the contents of the reports.  The defendant has not procured any expert witnesses and therefore the plaintiff’s experts are accordingly uncontested, except the industrial psychologist report. However, an application that his evidence be allowed into evidence on affidavit and respect of the issue of quantum in terms of Rule 38 (2) of the Uniform Rules of Court was never sought by the plaintiff.

 

[8]   It was agreed between the parties that the plaintiff will have to produce prove of   earnings before an offer can be made in this regard.

    

 COMMON CAUSE

[9]   The injuries sustained by the plaintiff are the following:

 

(a) Fracture of the thoracic spine;

(b) Displaced fracture of the left tibia plateau;

(c) Fracture of the right clavicle;

(d) Moderate head injury with loss of consciousness.

The plaintiff was admitted and treated in Mapulaneng Hospital for a period of about four months.

 

 EVIDENCE- PLAINTIFF

[10]   The plaintiff testified that on 12 May 2017, was driving the motor vehicle bearing registration letters and number NYF […] when he was involved in an accident. He was no longer working at the time of the accident. He was employed by Anglo Gold Ashanti from 2009 and until he was a retrenched in 2016. He was retrenched around November, December 2016. He has been unemployed for a period of six months when he was involved in this accident.

 

[11]  He attended school until he matriculated. While employed by Anglo Gold Ashanti he was occupying the position of conveyor belt operator. He has a certificate in first aid. He does not have any other certificate or training.

 

[12]  His employer never informed him as to why he is retrenching him. He did get a  letter of retrenchment but never brought it to court. He does not know the finer   details of his retrenchment. He was in possession of “certificate of service” only,

 which was handed in as exhibit A.

 

[13]  He seeked employment before he was involved in this accident, however he was not successful. One of the places where he looked for work was in Impala Platinum in Rustenburg. After he was discharged from hospital, he did not look for work because he was crippled. He is at the moment unemployable.

 

[14]   He does manage to survive as he is staying at his parental home. He applied for disability grant. He earned it for some time and at some point, it was stopped.

 

 CROSS EXAMINATION

[15]   Under cross examination he was confronted with the issue that he told the occupational therapist that he started to work at Anglo Ashanti in February 2009 as a conveyor belt operator and his earnings were R7000.00. Today in court he says that he started to work in January 2009 and he earned R6000.00. His response was that he is forgetful. He told the Court that he did not start working as conveyor belt operator as the industrial psychologist says in her report however was promoted to the position.

 

[16]  He was asked about the two conflicting versions of the industrial psychologist   and occupational therapist. He informed the occupational therapist that, at the time of the accident he was unemployment and actively seeking employment. He was called in for a fitness test at a certain mine in the North West. However, upon his assessment with the industrial psychologist, he denied being called for a fitness test at a mine.

 

[17]  He started by denying that he was called for a fitness test.  However, he later admitted that pre-accident, he secured employment with a certain company and was called for a fitness test. He was unable to start work as a result of the accident.

 

[18]   He did admit that this company sent him letter appointment, however he was   not able to produce it in court.

 

[19]   He could not explain as to why he could not bring the original certificate of service to Court nor have the copy certified.

 

[20]   He did not bring the collaterals when he consulted with the industrial psychologist because she never asked for them.

 

  INDUSTRIAL PSYCHOLOGIST

[21] The industrial psychologist testified that the plaintiff informed him that he completed grade 12 in 2008. He completed a two-week conveyor belt training in 2009. He completed another two-week training for first aid. He has code driver’s licence which he obtained in 2017.She was never furnished with a senior certificate at the time of writing the report.

 

[22] The plaintiff informed her that he commenced employment at Anglo Ashanti as a conveyor belt operator in February 2009. He was employed on a permanent basis, working from 8H00 AM to 18H00 PM every day. He was earning R7500 per month.

 

[23] The plaintiff told her that he was a retrenched in December 2016. He was not aware of their reasons for his retrenchment. At time of the accident, he was unemployment and actively seeking for employment.

 

 CROSS-EXAMINATION

[24] Under cross examination industrial psychologist did confirm that she compiled   the report without the collaterals (senior certificate, conveyor belt certificate and the first aid certificate). She received the certificate of employment via whatsapp

 

   ONUS

[25]   The onus is on the plaintiff to prove his case on a balance of probabilities. In the matter of Mlotshwa v Road Accident Fund (9269/014) [2017] ZAGPPHC 109 (29 March 2017) Peterson AJ, says the following:  [14]   ‘The onus is on the plaintiff to prove his case on a balance of probabilities.  He is required to adduce sufficient evidence of his income to enable the court to assess and quantify the loss of past earnings and future loss of earnings.

 

 EVALUATION OF THE EVIDENCE  

[26]  It is trite that the earning capacity may constitute an asset in a person’s patrimonial estate if loss of earnings is proven. The loss maybe compensate if these quantifiable as a diminution in the value of the estate.

 

[27]   In Terblanche v Minister of Safety and Security and Another 2016 (2) SA 109 (SCA) at para 14, the following was said: ‘The difficulty with claims of this nature is generally not so much the recognition  that the earning capacity constitutes an asset in a person’s estate, but rather  the quantification of the monetary value of the loss of earning capacity by a  trial court. Each case naturally depends on its own facts and circumstances, as well as the evidence before the trial court concerned.’

 

[28]   The plaintiff testified that the industrial psychologist never asked for collateral documents. If the industrial psychologist requested the collateral documents, he could have made them available to the industrial psychologist. However, the industrial psychologist testified that, she did request the collateral documents to no avail. Eventually she received certificate of service via WhatsApp.

 

[29] The plaintiff told the occupational therapist that he started to work at Anglo Ashanti in February 2009 as a conveyor belt operator and his earnings were R7000.00. When he testified in Court, he said that he started to work in January 2009 and he earned R 6000.00.

 

[30] In this matter, the plaintiff was supposed to produce collateral evidence in order to prove his case. However, this did not happen. The suggested loss of earnings is not supported by proper evidence. The industrial psychologists and occupational therapist had no collateral evidence when compiling their reports. They relied on self- reporting by the plaintiff.

 

[31] The recommendation by the industrial psychologist regarding the loss of earnings in relation to the plaintiff was not informed by proper evidence. It follows therefore that the actuarial projections, are also based on   unsubstantiated assertions.

 

[32] In the matter of Hersman v Shapiro and Co 1926 TPD 367 at 379 the following was said: ‘Monetary damages having been suffered, it is necessary for the court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the court is little more than an estimate; but even so, if it is certain that the pecuniary damages have been suffered, the court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances the Court is justified in giving and does give absolution from the instance. (My emphasis)

 

[33] The plaintiff failed to make available collateral evidence when such evidence was required. There were several sources available to the plaintiff to produce in support for his claim however, he chose not to do so. He could have produced bank statements, tax returns, salary slips, certificate of employment and/or confirmatory affidavit that he indeed was employed prior to the accident.

 

[34] The certificate of employment that he produced in Court appeared to be dodgy in that it was a copy which was not certified. It looked like a document manufactured on the internet.

 

[35] Having said that I am of the view that the plaintiff has failed to prove his case on a balance of probabilities. I therefore make the following order:

 

ORDER

 

(a) Absolution from the instance is granted in respect of the plaintiff’s claim for loss of earnings.

 

(b)  The plaintiff is to pay the costs.

 

J M MATSEMELA

Acting Judge of the Gauteng High Court, Pretoria

 

This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for hand-down is deemed to be 10h00 on  22 November 2024

 

HEARED ON 24 /08/2024; 9/92024 &16/92024

 

APPEARANCES
FOR THE PLAINTIFF	ADV R L KAYINGO
INSTRUCTED BY	K X MKHWANE ATTORNEYS
FOR THE DEFENDANT	ADV C MOTHATA
INSTRUCTED BY	STATE ATTORNEY

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