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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO LOCAL DIVISION, THOHOYANDOU)

 

CASE NO: 827/2020

REPORTABLE: YES/NO

OF INTEREST TO OTHER JUDGES: YES/NO

REVISED

Date: 06/02/2024

 

In the matter between:
SADIKI MURENDENI	PLAINTIFF
And
ROAD ACCIDENT FUND	DEFENDANT

 

JUDGMENT

 

MONENE AJ

 

[1]               In the unreported matter of Mukhotho v RAF (Case No 1041/2018) delivered in this Local Division in January 2024, this court made the following remarks which, in my view, deserve repetition and emphasis in casu:

 

“[1] Beyond the unnecessary legalese and uncalled for jargon-laced strife between the Defendant and so-called RAF legal practitioners, the simple unadulterated truth is that as its naming suggests, the Road Accident Fund is a government revenue funded social security or insurance fund founded with purpose of ameliorating the plight of victims of road accidents in a third world milieu characterized by high levels of underinsurance or no insurance at all.

 

[2]            The fund was purposed neither at being a cash cow for legal practitioners to a point of some being referred to as RAF specialist lawyers nor at being an ultra- miserly everyday litigant whose sole aim is to save money while legally qualifying motor vehicle accident victims are left languishing for years and sometimes for life without compensation.

 

[3]            It seems to me unfortunate that what is essentially clerical administrative work in an insurance for road accident victims has been elevated to be the key part of what is regarded as “law” by many of us and occupies too much court time than is necessary for courts characterized by heavy under resourcing as regards judges. Indeed, the reason why the RAF roll constitutes probably seventy percent of all our civil court rolls in the country is beyond my comprehension because like other insurances road accident victims must routinely be paid upon submission of claims, with litigation reserved for a few disputes. It certainly should not be the norm nor the default position that RAF matters are always all disputed and always bogged down in red tape by the fund, by legal representatives and by courts with routine settling being the exception. Maybe the RAF Act itself is cumbersome and unhelpful and needs a relook if generally suffocating bottlenecks are to be straightened out. Maybe the court rules need fixing. But certainly, something must change. We cannot all keep pretending that compensating a road accident victim is a very elaborate and involved rocket science project.”

 

[2]              In these proceedings like in thousands of others in our courts around the country, the plaintiff appears unopposed per default judgement application seeking compensation for injuries and sequelae thereof arising from a motor vehicle accident.

 

[3]              In the unnecessarily belated wake of the merits in this matter having been settled 100% in the plaintiff’s favor per court order dated 4 March 2021 and general damages having been settled at R800 000.00 per court order dated 14 March 2022, what remains to be determined in casu is loss of earnings in the form of past income loss and future loss of income.

 

[4]              This being lamentably yet another matter where the defendant has not bothered to file expert reports to assist the court in arriving at a just compensation amount, the plaintiff sought and was granted leave by this court to proceed in terms of Uniform rules 38(2) the trite effect of which was the admission of the plaintiff’s expert witnesses’ evidence under cover of affidavit and the plaintiff being permitted to prove her case, in the defendant’s absence so far as the burden lies on her.

 

[5]              In brief and for context the evidence available is to the effect that the plaintiff, who on alighting from a motor vehicle in which she had been a passenger on 9 February 2019 tripped and fell, suffered the following physical injuries:

 

5.1         Head injury with facial abrasions and lacerations

 

5.2         Left ankle fracture

 

5.3         Right shoulder soft tissue injuries

 

[6]              Pursuant to discharging her onus regarding her loss of earnings the plaintiff led evidence which can best be stated as follows in sum:

 

6.1. M B Koko, a clinical psychologist’s evidence was that the sequalae of the plaintiff’s injuries was neurocognitive impairments, neuropsychological deficits and depletion in intellectual functioning. It was this witness’ further testimony that the plaintiff generally has deficiencies regarding abilities which are necessary for daily execution of learning and work tasks; such abilities as concentration for prolonged periods, working and thinking fast and following instructions. Further evidence is to the effect that the plaintiff suffers from epilepsy, a condition she did not have prior the accident.

 

6.2            G Dama, an educational psychologist opined that due to epileptic fits, mood swings and forgetfulness caused by the accident the plaintiff struggles academically, such that her failing some modules of her Unisa Abet degree studies in 2020 is directly linked thereto. This witness expertly opined further that although the plaintiff was functioning at an average to below average level, she is likely still to finish her degree although probably a year later than normal.

 

6.3             Lungile Langa, an industrial psychologist’s evidence was to the effect that following the accident, the plaintiff had been rendered an unequal competitor in the open labour market. This witness corroborated failure of some degree modules as having been caused by the accident.

 

6.4             R S Mathegu, an occupational therapist, testified that the accident has negatively impacted on the plaintiff’s day to day occupational performance. Observing that she remained employed as a cashier even post the accident, this witness opined that the accident had negatively affected her promotion prospects.

 

6.5            One Pangea Actuaries provided expert evidence on the computation of past loss of income and future loss of earnings postulating a total loss of R6 309 163.00 in the first scenario which was premised on the plaintiff being having been employed with a diploma qualification and a total loss of R9 557 029.00 in the second scenario which postulation arose from if the plaintiff had proceeded to attain a degree qualification. In both scenarios the actuaries had made allowances for contingencies of 5 percent for past loss of income and 15 percent for future loss of income

 

[7]              As I understand the evidence before me, the plaintiff’s head injury and sequelae thereof are not the most extreme. In fact, it is referred to as mild or moderate. No wonder the plaintiff remains employed although with limited promotion prospects. Similarly, her academic potential will not be abandoned or become undoable because of the accident. Expert opinion is that she will complete her degree studies albeit later than most people.

 

[8]              It is of course true that the epileptic fits and general discomforts and a certain level of cognitive impairment will affect her earning potential to an extent, but she is and will still be employable.

 

[9]              These considerations both for or against the plaintiff feature a lot in my assessment of loss of earnings and in contextualizing the actuarial calculations.

 

[10]            Indeed, the test for assessing loss of earnings can be put no better than it was stated in Southern Insurance Association v Bailie v NO 1984(1) SA 98(A) at 112E-114F where the following was said:

 

“Any enquiry into damages for loss of earning capacity is of its nature speculative, because it involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augururs or oracles. All that the court can do is to make an estimate, which is often a very rough estimate, of the present value of the loss...”

 

[11]            I may be without the benefit of soothsayers and prophets as I make a prediction of a future loss in the present day but at least I have the benefit of expert opinions to assist me in that speculation and make it one guided by education. To deviate therefrom I need something better or a counterview which, as stated supra, is lacking in casu. It does not of course mean I am tied down to slavishly follow the expert actuarial calculations without questioning manifestly wrong premises of the expert opinion evidence if there be any. Hence Nicholas JA in the timeless matter of Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 114C-D stated inter alia as follows:

 

“...while the result of an actuarial computation may be no more than an “informed guess”, it has the advantage of an attempt to ascertain the value of what was lost on a logical basis; whereas the trial judge’s “gut feeling” as to what is fair and reasonable is nothing more than a blind guess. (cf Goldie v City Council of Johannesburg 1948(2) SA 913(W) at 920.)”

 

[12]            Accordingly, the point of departure must be the two scenarios postulated by the actuaries in casu as I cannot simply thumb suck amounts or rely on my “gut feeling” so to speak. At the same time expert opinions must still be premised on what the court finds to be defensible reasoning if the court is to accept cogency thereof and attach thereto any definitive probative value.

 

[13]            Unlike in general damages, precedence in terms of awards for loss of earnings would, in my view, not be of much use because even in similar type of injuries, additional factors such as age, income level and employability will never be the same. There are just too many subjective variables attendant to loss of earnings to ever have a reliable body of reference points or guiding tools. The best bet is to be guided by evidence led by experts in this computation field, a field in which courts should, while retaining their discretionary powers and avoiding being rubberstamps, still accept their layperson status.

 

[14]            At the outset, I am disinclined to go with the second scenario of R9 million plus because I understand the evidence to be that the plaintiff’s attainment of a degree is not an ‘if’ but rather a ‘when’. The accident will not disable the plaintiff from attaining a university degree. Expert evidence says she will get there if only late by a year, a commonplace occurrence to students even without being victims of motor vehicle accidents. Accordingly, very little turns on the attainment of a degree issue as whether she attains it or not, the snag would be promotion prospects and not per se employment prospects.

 

[15]            But I remain alive to the need to be guided by precedence in broadly similar injuries particularly about the key injury in casu, the mild brain injury. Indeed, I need not completely and obstinately shut my eyes to the trite principle that previous awards are guidelines which need not be slavishly followed but should be given due regard to, if only to ensure some consonancy in similar matters. (See NK obo ZK v MEC for Health, Gauteng ZASCA 13(15 March 2018). Indeed, on this score the court in Protea Assurance Co Ltd v Lamb 1971(1) SA 530(AD) at 536 stated that comparable cases should be used to afford some guidance towards assisting the court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases. In this regard I take note of the following:

 

15.1 In M.I v Road Accident Fund (16384/2013)[2023] ZAGPPHC 585(14 July 2023)(“M.I”) a plaintiff who had, almost like the plaintiff in casu, suffered mild head injury with lacerations but was, at the time of the accident, unlike the plaintiff in casu, still en route to attaining a diploma, had epilepsy as a sequelae, was although unemployed still employable and was, as a matric student, younger than the plaintiff in casu, was awarded loss of earnings in the tune of R8 285 820.20.

 

15.2. In Legodi v Road Accident Fund (50948/17)[2021]ZAGPPHC 566( 2 September 2021) (“Legodi”)a plaintiff slightly older than the plaintiff in casu at 32 years of age, but presenting with more serious brain injury sequalae than our plaintiff, and although unemployed was still employable at medium demand level, attracted loss of earnings in the amount of R3 155 200.00 where actuarial computations had put a lower projection of R2 597 550.00 and a higher one of R6 698 400.00.

 

[16]               The long lifespan that the plaintiff still must traverse having been injured at 25 years of age, is another factor worth magnifying in the determination of loss of earnings. In that context amounts like R9 million rands in the second scenario, which appear at first blush to be undeserved windfalls are not much if spaced out over a long period in years still to be lived. In that regard R9 million rands divided by 40 years, being the approximate number of productive years, the plaintiff still has, amounts to an annual income of R225 000.00 which equates to approximately R18 750.00. That, in my view, is a reasonable income in the context of our economy even if it be the sole source of income.

 

[17]               But the plaintiff continues to have another source of income as, despite the accident and sequelae thereof, she remains employed in her cashier job of pre- accident days.

 

[18]             R6 million rands, in the first actuarial calculation scenario, spread over 40 years equates to R150 000.00 a year which translates to R12 500.00 a month; hardly a pittance as compensation for one who continues to earn as she did pre- accident and may continue to so earn for a long time if her cognitive impairments do not worsen and take her out of employment.

 

[19]               I do not have to unnecessarily burden this judgement with long erudite- sounding phrases about the sequelae of the injuries in the context of the plaintiff’s age and employment history. The expert evidence led before me as summarized above, save for that of the actuary, is to me, sound and unassailable. I have no reason nor inclination to critique that evidence which, in my view, is sufficient and pregnant with persuasion.

 

[20]             My reading of the actuarial report in casu is that it was premised on only one source document, to wit, the industrial psychologist’s report. The actuary did not have the benefit of educational psychologist’s report nor the occupational therapist, hence the lack of emphasis in the actuarial report on the fact, import and effect of the plaintiff, who worked as a cashier pre-accident, continuing to be employed in the same position of cashier post the accident.

 

[21]            Looking at the above analysis on what the first scenario equates to in terms of monthly income to the plaintiff and juxtaposing that to what compensation was awarded in almost similar matters in M.I and in Legodi referred to supra, I am persuaded that even the first scenario is a bit on the excessive side it being so that compensation should be about the extent to which one’s estate has been diminished by the accident and its sequelae and not per se be akin to some lottery windfall. Continued employment in the same position as prior the accident suggests to me very little income interruption. That that does not, however, mean, given the accident sequelae, that employment will be up to the ideal retirement age at all and this then needs to be factored into the vicissitudes of life which may or may not occur.

 

[22]               On the strength of all the foregoing, I am persuaded that neither the first nor the second scenario accord with my considered sense of what is just compensation in this matter, as they both are too high regard being had to the key fact of the plaintiff continuing to be gainfully employed post the accident. Six million plus would be uncomfortably too close to the eight million awarded to the plaintiff in M.I when the plaintiff in M.I was significantly much younger than the plaintiff in casu. On the other extreme, the three million plus awarded in Legodi is, in my view, a bit too low for this plaintiff as Legodi was significantly much older than the plaintiff.

 

[23]            Given all the considerations afore going I am inclined to locate the plaintiff somewhere towards the middle of the two awards of M I and Legodi. In this regard I find a cumulative amount of R3 800 000.00 most apt in the circumstances of this case, that is, when the guidance of the actuarial report and comparable authority is considered.

 

[24]            As regards a section 17(4)(a) undertaking I understand from the plaintiff’s heads of argument that it has already been settled upon by the parties. Somewhat unintelligibly it sounded to me like I was being asked to “confirm” that undertaking. I have no qualms about complying with that request even if can effectively ex abudante cautela.

 

[25]            In all the above premises the following order is made:

 

25.1.            The defendant shall pay the plaintiff a total amount of R3 800 000.00 being damages suffered by the plaintiff arising from a motor vehicle accident which occurred on 9 February 2019. This amount is broken down as R263 249.00 for past loss of income and R3 536 751.00 for future loss of earnings.

 

25.2.            The amount mentioned in order 22.1 above shall, within 180 days of this order, be paid into the trust account of NKP Manamela Attorneys Inc, the details of which are the following:

 

Bank: FIRST NATIONAL BANK

Account No: 6[…]

REF: MVA/15/20

Link No: 505 0740

 

25.3          In the event of the aforesaid amount not being paid beyond the 180 days referred to in order 22.2 above, interest at the prescribed rate of interest shall immediately begin to run until date of final payment.

 

25.4           The defendant is ordered to pay all the plaintiff’s costs on a High Court scale which costs shall include the costs attendant to securing all expert reports in casu and the costs of counsel.

 

25.5           The defendant shall furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 in respect of the costs of all future medical costs and related costs arising from the motor vehicle accident in casu.

 

M S MONENE

ACTING JUDGE OF THE HIGH COURT,

LIMPOPO LOCAL DIVISION, THOHOYANDOU

 

APPEARANCES
Heard on	:16 October 2023
Judgment delivered on	:06 February 2024
For the Plaintiff	:Adv. H D  Munzhelele
Instructed by	:NKP Manamela Attorneys Inc
	:TEL: 015-291 1174
	:Email: civil@nkpattorneys.co.za

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