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

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO LOCAL DIVISION, THOHOYANDOU)

CASE NO: 678/2021
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
Date: 2024/01/12

In the matter between:

MUENDA LUTENDO PORTIA	PLAINTIFF

and

ROAD ACCIDENT FUND	DEFENDANT

JUDGMENT

MONENE AJ

[1]	The plaintiff instituted action proceedings against the defendant for damages arising from a motor vehicle accident which occurred on 20 October 2019.

[2]	The merits in this matter were disposed of per court order informed by settlement between the parties on 21 February 2022, in terms of which the defendant accepted 100 percent liability for the plaintiffs damages.

[3]	General damages in this matter were settled between the parties.

[4]	What lends itself for determination before me is, in the main, the plaintiffs loss of earnings. An ancillary relief sought by the plaintiff is that the defendant be ordered to issue a section 17(4)(a) undertaking certificate to the plaintiff.

[5]	Together with the order settling the merits was an order putting the defendant on terms to file its expert reports on or before 25 June 2022. None such reports were filed by the date ordered nor by the time the matter served before this court as a default judgement application on quantum or loss of earnings to be more precise.

[6]	In brief and for context the evidence available is to the effect that the plaintiff, who was a passenger in a motor vehicle at the time of the accident, suffered the following physical injuries from the motor vehicle accident:

6.1	Right top abdomen fracture

6.2	Head injury with scalp lacerations

6.3	Right leg/clavicle fracture

6.4	Right leg/clavicle fracture.

6.5	Left pneumothorax injury

[7]	It being so that the defendant has characteristically not filed any expert reports even despite a court order to that effect, the plaintiff sought and was granted leave by this court to proceed in terms of Uniform rules 38(2) and 39(1) the trite effect of which was the admission of the plaintiffs expert witnesses' evidence under cover of affidavit and the plaintiff permitted to prove her case, in the defendant's absence so far as the burden lies on her.

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

8.1. Dr M B Koko's evidence was that the plaintiff suffered mild neurocognitive disorder due to traumatic brain injury. As a result, she can no longer engage in work activities, it was led into evidence. She deserves compensation because it is the accident which led to her neurocognitive impairment, it was testified by Dr Koko.

8.2	R Sheila Mathegu, an occupational therapist's evidence was that the injuries were serious to an extent where the conclusion was that her quality of life has been heavily compromised. She will, because of the injuries suffered remain incompetent in the open labour market and will not be able to engage in remunerative activities, so opined the occupational therapist.

8.3	Lungile Langa, an industrial psychologist's evidence was to the effect that but for the accident the plaintiff would have continued to be self-employed as a vendor up to a maximum of 75 years of age. It was the industrial psychologist's further evidence that the injuries sustained in the accident have affected her vocational life to an extent where her pre-accident career as a self-employed person was no longer doable while at the same time her employment chances in the open labour market are virtually non-existent in part due to her poor level of education but in the main due to the sequalae of the accident.

8.4	Taking counsel from the expert opinions of the occupational therapist and the industrial psychologist Tsebo Actuaries provided expert evidence on the computation of past loss of income and future loss of earnings postulating a total loss of R2 151 753.00 in the first scenario which was premised on the plaintiff being self-employed and a total loss of R2 348 695.00 in the second scenario which postulation arose from if the plaintiff had proceeded to be a security officer, one of the jobs she qualified for with a Grade C certificate and had previously done. 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

[9]	In both the plaintiff's supplementary Heads of Argument and in submissions made before me, Mr Musetha, counsel for the plaintiff, nudged me towards moving in terms of the first scenario, that is despite the second scenario appearing more "lucrative" than the first. It was a submission not only well­ argued but one which displayed exceptional levels of integrity as he went on to tutor this court on the intricacies of this field of practice about which this court is not most au fait as it features not in the court's normal practice, it being so that this court was in an acting stint.

[10]	I agree with counsel for the plaintiff that the starting point should be scenario one and not two because the first scenario is based on what the plaintiff was doing at the time of the accident and not on the speculative basis of what she could potentially do pivoting on what she was certificated to do.

[11]	I take note of the plaintiff's reference to Kanenberg v Road Accident Fund (45549/16)(2018] ZAGPPHC where more than four years ago injuries of an almost similar nature attracted an award of R650 000.00 which would be equivalent to R828 067.03 today. So too am I mindful of Mpelo v Road Accident Fund (838/2014) [2016] ZAFSHC 211 where a plaintiff who was, unlike the plaintiff in casu, able to perform some of his pre-accident duties was awarded R850 000.00 which equates to R1 190 445.52 in today's values.

[12]	All that taken note of, I am equally aware of the trite principle that previous awards are guidelines which need not be slavishly followed but should be given due regard to ensure some consonancy in similar matters. (See NK obo ZK v MEC for Health, Gauteng ZASCA 13(15 March 2018).

[13]	I am also counseled by Nkateko v Road Accident Fund (73865/17) ZAGPPHC 69 ("Nkateko"), decision I was referred to by the plaintiff's counsel particularly in so far as loss of earnings arising from injuries with lesser debilitating sequalae on a middle-aged person in the plaintiff's age group engaged in unskilled work much like the plaintiff in casu attracted loss of earnings of R1 030 750.00 (R 1 372 439.09 in 2023). It certainly focuses this court's computation on some relevant direction, it being so that the impediment on employment in casu is more permanent than it was in Nkateko.

[14]	I contextualize the plaintiff's loss of earnings within the following considerations:

14.1	At 40 years of age the plaintiff is relatively very young and still has, barring negative contingencies, a long life ahead of her.

14.2	Evidence before me paints her as virtually unemployable for the rest of that life.

14.3	She is a mother and although it is not her children's claim before me, I cannot affect blindness to that reality.

14.4	An amount more than 2 million rands may appear to be quite a lot at first blush but is not really a lot if one, for example, considers that if general life expectancy be 70 years, dividing an amount of 2 million rands by 30 years amounts to a meagre R67 000.00 a year, which in turn amounts to about a mere R2 000.00 a month.

14.5	The guidance of the comparative jurisprudence referred to supra directs my computation in the computation of the plaintiff's actuary's first scenario, that is, regard being had to passage of time from the dates of those authorities as well as the severity of the sequalae in this matter compared to the plaintiffs in those other matters.

14.6	There is no evidence to countervail that of the plaintiff's experts and in particular to cast any doubt on the plaintiff's actuary's evidence, which evidence I have no reason not to go by.

[15]	In the result the following order is made:

15.1. The defendant is ordered to pay to the plaintiff an amount of R2 151 753.00 as loss of earnings.

15.2	The defendant is ordered to pay to the plaintiff agreed or taxed costs of the action on a High Court party and party scale, which costs shall include travelling costs, costs attendant to procuring medico-legal reports and the costs of counsel. The costs of relating to medico-legal reports shall be the costs of the following experts:

15.2.1	Dr M O Mudau, an orthopedic surgeon,

15.2.2	M B Koko, a clinical psychologist,

15.2.3	RS Mathegu, an occupational therapist,

15.2.4	L Langa, an industrial psychologist
15.2.5	Dr N D Chula, a neurosurgeon

15.2.6	Tsebo Actuaries

15.3	The defendant is ordered to pay the amount referred to in order 15.1 above within 180 days from date of this order into the plaintiff's attorneys of record's trust account the details of which are as follows:

Account Holder: NKP Manamela Attorneys
Bank: First National Bank (FNB) 
Account Number: 6[…]
LINK NO: 505 0740
Account Type: Commercial Attorneys 
Trust Ref: MVA/04/20

15.4	It is ordered that interest on the amount referred to in order 15.1 supra and payable by the defendant to the plaintiff shall run at 7% per annum computed from a day after the expiry of the 180 days referred to in order 16.3 above to the date of final payment.

15.5	The defendant is ordered to, within 14 days from date of this order, furnish to and in favour of the plaintiff an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 for the costs of future treatment and accommodation of the plaintiff in medical centers, or any treatment and provision of medical services and goods to the plaintiff, arising out of the injuries and sequelae thereof sustained in a motor vehicle accident which occurred on 20 October 2019 after such costs have been incurred and upon proof thereof.

MS MONENE
ACTING JUDGE OF THE HIGH COURT, 
LIMPOPO DIVISION, THOHOYANDOU

APPEARANCES

Heard on	16 October 2023
Judgment delivered on 	....January 2024

For the Applicant 	Adv M Musetha
	Instructed by NKP Manamela Attorneys
	: TEL: 015 2911174
	: Email: civil@nkpattorneys.co.za

For the Respondent	: Adv. Matjeke
Instructed by	State Attorney, Thohoyandou
	: Tel: 015 962 2633