Bheme v Road Accident Fund (5089/2023) [2025] ZAMPMBHC 43 (29 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,

(MBOMBELA MAIN SEAT)

FOURIE AJ 

[1]        
This is an appeal against the Judgment and Order by Mazibuko AJ
(Court a quo) granted on 25 April 2024 whereby the Court a
quo granted an order as per Draft Order. In the draft
order, the Defendant was by agreement held liable for payment of
100% of agreed or proven damages of the Plaintiff. It was further
recorded
that the issue of General Damages in the amount of
R450 000.00 was previously disposed of between the parties as
detailed
in the offer of settlement as accepted by the Plaintiff,
dated 15 April 2024. The Defendant was ordered to furnish the
Plaintiff
with an undertaking in terms of Section 17(4)(a) of Act 58
of 1996. The matter proceeded on trial only in respect of loss of
income
damages, whereafter the Defendant was ordered to pay the
Plaintiff the sum of R927 265.15 in respect thereto, with
interests
at 11,25% per annum plus costs on party and party Scale A.

[24]     
It is a matter of logical reasoning that all the factors mentioned by
the experts and summarized in
paragraph 17 above, will probably
result in future in a reduction of the Appellant’s patrimony
(earnings) having regard to
the injuries, in comparison to what he
would have earned, for example, due to less incentive remuneration,
delays in promotion
and/or career progression, lower career ceiling
etc, all as a result of lower productivity. The Appellant’s
loss may not
be calculable according to the method proffered in the
matter of Prinsloo v Road Accident Fund 2009 SA 406 (SE)
referred to in the court a quo’s judgment, but it can be
quantified applying different contingencies (a higher post-accident

contingency) which method is applied on a daily basis in the courts
over many years.

[25]     
Having regard to the facts emanating from the various expert reports
referred to above there is a
clear nexus between those facts and the
conclusions reached.”

[16]     When
confronted with expert reports the Court is to be guided by the
reasoning of the Supreme Court
of Appeal in the matter of RAF
v Zulu [2011] ZA SCA 223 in
which matter the Court reaffirmed the principle of Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3)
SA 1188 (SCA):

“[36]
    That being so, what is required in the evaluation
of such evidence is to determine whether and to what extent
their
opinions advanced are founded on reasoning. That is the thrust of the
decision of the house of lords in the medical negligence
of Bolitho
v City and Hackney Health Authority [1997] UKHL 46”.

[17]     While
having regard to what the Court held in the matter of IM
v Road Accident Fund 2023 (1) SA 573 (FB)
at paragraph 21 that:

“The
common thing is that courts must jealously protect their role and
powers. Courts are the ultimate arbiters in any court proceedings.

The facts that caused the experts’ opinions in this case are vital.
They were supplied by the Plaintiff and corroborated by experts
and
surrounding evidence. They are logical and sound.”

This Court further remains guided by a
decision of this Court, also sitting as a full bench in the matter of
Zodwa Nono Ngwenya v Road Accident Fund (Case Number: A104/2019
delivered on 10 March 2022) held that:

“The acceptance of reports
without their authors giving oral evidence in Court is not unheard of
in civil trials.” 

[18]     A
challenge to the content of an expert report under circumstances
where no rebutting evidence has
been provided should accordingly be
dealt with, with caution and not merely at a Defendant’s asking, who
had the opportunity of
leading evidence and elected not to do so. 

[19]     From the
evidence led in the Court a quo evaluated together with the
transcribed record of appeal and the judgment of the Court a quo
it is evident that the first portion of the test, whether a
diminishment of or reduction of earning capacity existed, the Court

already found in favour of the Appellant in that it does and as such
it is not necessary for this Court to rule upon that aspect. 

Similarly, it was not seriously contested in the Court a quo and
as is evident from the Notice to Abide the Respondent does not oppose
same herein.

[20]     As such,
all that remains is for this Court to establish whether it ought to
interfere with the award
for damages awarded by the Court a quo
in respect of loss of income. 

[21]     I align
myself with what the Appellant Division (as it then was) found in the
matter of Southern Insurance Association v Bailey NO.  1984
(1) SA 98 A, where it stated that:

“It is well settled that this
Court does not interfere with awards of damages made by the Trial
Court unless there is substantial
variation or a striking disparity
between the award of the Trial Court and what this Court considers
ought to have been awarded;
or the Trial Court did not give due
effect to all the factors that properly entered into the assessment;
Or the Trial Court made
an error in principle or misdirected itself
in a material respect.”

[22]    
The object of the Road Accident Fund, shall
at all times be repayment of compensation in accordance with the Act
for loss or damage
wrongfully caused by the driving of a motor
vehicle (See in this regard: Section
3, Road Accident Fund Act, 56 of 1996 as
amended).

[23]    
The Plaintiff needs to be compensated
sufficiently full, as he/she will not have an opportunity at a later
stage to amend their
claim once their claim has been finalised (See
in this regard: Jacobs v Cape
Town Municipality (1935) CPD 478).

[24]    
The evaluation of the amount to be awarded
for the loss, does not involve proof on a balance of probabilities. 
It is a matter
of estimation. Where a Court is dealing with damages
which are depending upon uncertain further events, which is generally
the
case of claims for loss of earning capacity, the Plaintiff does
not have to prove on a balance of probabilities and is it entitled
to
rely on the Court’s assessment of how they should be
compensated for their loss (See in this
regard: MS v RAF (10133/2018) [2019] ZAGPJHC at 84).

[25]    
 The trial judge shall not be tied
down by inexorable actuarial calculations.  He has a large
discretion towards what he considers
right.  One of the elements
in exercising this discretion, is the making of a discount for
contingencies, or differently put,
the uncertainties of life (See
in this regard: Southern Assurance Association Ltd v Baily N.O 1984
(1) SA 98 (A)).

[26]    
In assessing damages for loss of earnings
or support, it is usual for a deduction to be made for general
contingencies for which
no explicit allowance has been made in the
actuarial calculation.  The deduction is the prerogative of the
Court
(See in this regard: RAF v
Guedes 2006 (5) SA 583 (SCA)).

[27]     Having
found that the earning capacity of the Appellant was reduced and that
there was a need for compensation
in respect of same to be paid to
the Appellant the Court a quo needed to evaluate an amount
which it found to be just under the circumstances with the evidence
presented to it.  Whilst
the court would have been guided by the
expert reports filed by the Appellant and the report specifically by
the actuarial accountant,
it is by now a settled principle that a
court will not be tied down by actuarial calculations when ordering
damages that the court
believes to be just and justified. 

[28]     The
Appellant’s actuarial report and the confusion that arose at
the hearing of the matter in
the Court a quo can be regarded
as central to such confusion as the actuarial report and specifically
page 360 of the indexed Appeal bundle sets
out the loss the Appellant
avers to have suffered as an amount of R 5 827 657.00 (Five million
eight hundred and twenty-seven thousand
six hundred and fifty-seven
Rand) but which amount did not have regard to any contingencies being
applied. I pause to state this
can only be because the Appellant did
not instruct the Actuary to apply any contingencies. Actuaries do not
decide which contingencies
to apply; they make such an application
based purely on the instructions provided to them. 

[29]    
Contingencies are a helpful mechanism to account for the
eventualities of life, and I am unaware of
a legal precedent where no
contingencies were applied in matters such as the matter at hand. 
By approaching the Court a quo without a proper actuary report
wherein justified contingencies were applied, the approach by the
Appellant needs to be frowned
upon as it was not at all helpful for
the Court to come to a just conclusion in respect of what would be a
just order. During argument,
the Appellant’s counsel agreed
that higher-than-normal contingencies ought to be applied and
submitted that it would be just
if the Court orders, in respect of
past and future loss of income that an amount of R 3 183 420.15
(Three million one hundred
and eighty-three thousand four hundred and
twenty rand and fifteen cents) be awarded to the Plaintiff.  The
Plaintiff made
such a statement in the absence of an updated
actuarial report indicating the calculations of the Plaintiff to be
correct. 

[30]     The
Defendant, in keeping with the reasoning that higher than usual
contingencies ought to be applied
requested a contingency of 5% in
respect of past loss and 40% in respect of future loss to be
applied. 

[31]     The fact
that no proper calculations were at hand when the matter was heard
should be indicative to
the litigants of the importance of actuarial
calculations and the accuracy thereof in order to guide the Court to
come to a just
conclusion in respect of matters such as this. 

[32]     From the
appeal record, it is noted that the Court a quo tried its
utmost best to gather as much and as accurate information as possible
from the Appellant and the Respondent amidst legal
argument, and it
is evident that amidst the submissions made, the correct amounts
premised on the view of Court had become lost. 

[33]     Although
I am of the opinion that the confusion was in essence created by the
incomplete manner in
which the Appellant elected to present its case,
justice dictates that an evaluation of the matter as a whole be made
to ensure
that the amount that is ultimately awarded causes justice
to be done. 

[34]     For the
purpose of this judgment and in coming to a just conclusion, the
Court is guided by that which
the Plaintiff has sought, ultimately
being an amount of
R 3 183 420.15 and the contingencies
which the Respondent sought to be applied by the court. 

[35]     In
respect of the Appellant’s past loss of income, the Court is
satisfied to apply a contingency
of 5% to the actuarial amount of the
Appellant as per page 360, which amount stands uncontested and which
the Court is bound to
accept.

[36]     In
respect of the past loss, the Appellant is accordingly entitled to
compensation in the amount of
R 156 593.25.

[37]     In
respect of future loss of earnings, the Court a quo had
several reservations in respect of the evidence tendered by the
Appellant.  The respective parties conceded, rightfully
so, that
higher-than-normal contingencies need to be applied. 

[38]     The
establishment of contingency percentages and to which portion of the
loss they need to be applied
falls squarely within the discretion of
the Court.  Even then, they shall serve merely as a guide in
order for the Court to
come to a just conclusion. 

[39]     Having
evaluated the evidence presented to the Court a quo and having
heard the submissions by the respective counsels, this Court is of
the intention to apply a 50% contingency to both
the pre- and
post-morbid future loss of earnings.

[40]     As a
result of the contingencies being ordered as stated, the future loss
of income of the Appellant
is established and ordered to be R 2 913
808.50 (Two million nine hundred and thirteen thousand eight hundred
and eight rand and
fifty cents).

[41]     The total
loss of income of the Appellant is accordingly ordered to be in the
amount of R 3 070 401.75
(Three million seventy thousand four hundred
and one rand and seventy-five cents). 

[42]     Having
regard to the facts represented by the Appellant in the Court a
quo and the fact that the Appellant at the hearing of the matter
did not persist with claiming any amount in excess of R 3 183 420.15

(Three million one hundred and eighty-three thousand four hundred and
twenty rand and fifteen cents), the application of any other

contingencies or the exercise of the court discretion in any other
way would lead to the court making an order that would amount
to
ordering an amount in excess of that which the Appellant claimed when
the matter was heard which in itself would be unjust. 

[43]     The
current matter is not one where the Appellant presented an
unsurmountable case to a Court a quo who came to an incorrect
conclusion but rather one where the case the Appellant presented to
the Court a quo was of such a confusing nature that it was
eminent that the confusion would spill over into the judgment
provided by the Court
a quo.  Although this Court is
willing to come to the assistance of the Appellant in respect of loss
of income it would not be in
the interest of justice if the
Respondent is burdened with a cost order pertaining to this appeal.
The facts of the matter, the
fact that the Respondent did not oppose
the appeal and the interests of justice dictate that no cost order is
herein made.

ORDER:

[44]     For all
the reasons stated herein, the following Order is made:

1.     The
Appellant’s appeal is upheld.

2.     Paragraph
2.3 of the Order of the Court a quo is replaced with the
following Order:

“2.3.   The Defendant
is ordered to pay the Plaintiff the sum of R 3 070 401.75 (Three
million seventy thousand four hundred
and one rand and seventy-five
cents) for past and future loss of earnings within a period of 180
days from the date of this Order.

3.     No order as
to costs.

H
F FOURIE AJ

ACTING
JUDGE OF HIGH COURT, MBOMBELA

I
agree, and it is so ordered:

  
TV RATSHIBVUMO (DJP)

I
agree:

M
MOLELEKI (AJ)