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
GAUTENG DIVISION, PRETORIA

(1)	REPORTABLE: NO
(2)	OF INTEREST TO OTHER JUDGES: NO
(3)	REVISED.

CASE NO: 36587/2016
10/12/2019

In the matter between:

KEBALEPILE STANLEY NTOKWE					PLAINTIFF

and

ROAD ACCIDENT FUND							DEFENDANT

JUDGMENT
COLLIS J:
INTRODUCTION
1.	In this action the plaintiff claims damages arising from injuries sustained by him in a collision which occurred on 17 May 2015. At the time of the collision, the plaintiff was 30 years old; he is currently 34 years of age.
2.	In terms of the particulars of claim, at paragraph 6 thereof, the plaintiff alleges to have sustained the following injuries:
2.1	Multiple lacerations and abrasions
2.2	Injuries to his face
2.3	Head injuries
2.4	Injuries to his pelvis
2.5	Injuries to his eyes.

3.	Following the collision, the plaintiff was taken to Brits Provincial Hospital by an ambulance where his treatment consisted of cleaning and suturing of his lacerations. The wound sustained under his left eye started to drain puss for which he received daily dressing and he was also referred to an ophthalmologist. He was eventually discharged on 2 June 2015 and given pain medication.
4.	At paragraph 7 of the Particulars of Claim, the plaintiff alleges as follows:

"As a result of the above injuries sustained by the Plaintiff in the collision, the Plaintiff:
7.1	Was hospitalised;
7.2	Received medical treatment;
7.3	Will in future be hospitalised and receive further medical and medical related treatment;
7.4	Suffered a loss of earnings;
7.5		Will in future suffer a loss of earnings, alternatively a loss of earnings capacity;
7.6		Suffered a loss of amenities of life and will in future suffer a loss of amenities of life;
7.7		Experienced shock, pain, suffering and discomfort and will in future also suffer pain, suffering and discomfort. he endured shock, pain, suffering and discomfort and will continue to endure further pain suffering and discomfort in future;
7.8	The nature, extent and anticipated further duration of the above mentioned injuries and conditions are set out in paragraph 6 above."

DISPUTED ISSUES
5.	At the commencement of the proceedings, the parties informed this court that the only issue for determination concerns the plaintiff's claim for loss of earnings and earning capacity. Furthermore, that the plaintiff's claim for future medical expenses have been resolved and so too were the merits.

LOSS OF EARNINGS AND EARNING CAPACITY
6.	In relation to the plaintiffs claim for loss of earnings and earning capacity, the plaintiff presented viva voce evidence in support of his claim under this head of damages.
7.	In this regard it was the evidence of Mr Kebalipile Ntokwe, that at the time of the collision he conducted a car wash business at Impala Mine. He was self­ employed and washing approximately 8 cars per day generating an approximate income of R 6500 per month. He conducted this business for almost 9 years prior to the date of the collision and at the time of the collision he charged R 50 to wash a sedan and R 70 to wash a bigger car. He testified that following the collision he did not immediately return to work and he took approximately 3 months before he returned. Upon returning he was struggling and could now only manage to clean 3-4 cars per day. As a result of this, he started to lose customers which resulted in him taking the decision to get assistance. An agreement was reached with this person, that he would enter into a partnership with Mr Monareng who agreed to be paid R 300 per day. Although Mr Monareng was engaged to help the plaintiff in his business, he ended up washing most of the vehicles. It was agreed that the plaintiff would pay Mr Monareng an amount of R 300 per day which equates to R 1500 per week and thus R 6000 per month.
8.	During cross-examination, Mr Ntokwe confirmed that as a result of the collision his productivity decreased in that prior to the collision he was able to wash approximately 8 cars per day, but since the collision he now is only able to wash 4 cars during a day. It was also his testimony that as a result of the collision, he is now unable to use his left arm as he experiences pain in this arm and is forced as a result to only use his right arm when cleaning cars. He denied that he had suffered no loss of income as a result of the collision. He testified that had it not been for the collision that he would have been earning more given his price increase and the number of customers that he has to service. He further denied that having Mr Monareng working with him, is out of choice as he simply given his reduced productivity would be unable to cope with the demands of his business all by himself.
9.	Mr. Jacques Poggenpoel also testified on behalf of the plaintiff. It was his testimony that he had known the plaintiff for approximately 10 years as he too is employed at Impala Mines. He testified that on a weekly basis he made use of the plaintiff's car wash business and that he used to take his two vehicles to be washed. At all times he had been happy with the manner in which the plaintiff had washed his cars but that since the collision, the plaintiff had taken longer with the washing of his vehicles. During cross-examination he clarified that his office is situated right next to the car wash and as a result of this, he is able to observe how long the plaintiff takes with the washing of his vehicles.
10.	The next witness who testified on behalf of the plaintiff was the actuary, Mr Johan Sauer. As per his report he based his calculations on the findings of the Industrial Psychologist which were recorded in their joint minute. As per their joint minute, the Industrial Psychologists were in agreement that the plaintiff suffered a past loss of income as he recuperated at home for three months before returning to work. During this time he was not earning any income. The experts were further in agreement that the plaintiff should be compensated for loss of earnings as he cannot cope due to the residual effects of the accident in the open labour market. It was Mr Sauer's testimony that pre-morbid that the plaintiff was earning R 6000 per month, which equates to R 72 000 per annum and that the plaintiff would have continued to earn same, with the necessary inflationary increases until retirement age. Mr Sauer further testified, that post­ morbid, that the plaintiff suffered a loss of income during the period that he recuperated at home following the collision. Furthermore, that as a result of the plaintiff taking on a partner, he now has to share in the profit of his business, whereas prior to the collision, all profit was for his account. During cross­ examination the expert denied that the plaintiff suffered no loss of income. When confronted with the proposition that the plaintiff now approximately earns R 7000 per months as opposed to R 6000 prior to the collision, he testified that allowances should be made for growth and inflationary increases in the prices which the plaintiff now charges for washing these cars. As to the contingencies to be applied by the court, Mr Sauer testified that the court should apply a 15 % contingency deduction on the plaintiffs past loss of earnings and a 35% contingency deductions of the plaintiff's future loss of earnings.
11.	In addition to the viva voce evidence tendered before this court, the plaintiff also relied on the joint minute prepared by the Orthopaedic Surgeons. The Orthopaedic Surgeons met on 10 January 2019. As per their report the surgeons agreed on the following:
11.1	That immediately following the collision, that the plaintiff suffered acute pain for at least 7 days and that he had experienced moderate pain for at least three weeks thereafter.
11.2	Both doctors were in agreement that the plaintiff suffered head and facial injuries, a left shoulder injury and multiple soft tissue injuries.
11.3	The experts were further in agreement that the sequelae of the plaintiff's soft tissue injuries have not resulted in significant losses of employment capacity, amenities, independence and enjoyment of life.
11.4	They were also in agreement, that the accident and accompanying injuries, have not had any detrimental effect on the plaintiff's life expectancy.

12.	On 3 December 2018, the Occupation Therapists, met and prepared a joint minute pursuant to such meeting. From an Occupational Therapists point of view, the experts were in agreement that the plaintiff would benefit, from physical rehabilitation and strengthening programme with a Physiotherapist and or a Biokineticist with a multi-disciplinary set-up. The experts further agreed that the plaintiff being a car washer, this occupation is manual in nature and falls within the light to medium physical demand level. They were further in agreement that the plaintiff when assessed is capable of sustaining a medium level of work for an 8-hour day but that he will be unsuited to work in positions which will require the full range of heavy work and which would need reasonable accommodations in space. They further agreed that the plaintiff suffered cognitive difficulties, and that his abstract reasoning ability may negatively affect his performance. They therefore opined that the plaintiff may benefit from remedial cognitive therapy which may assist in teaching him compensatory techniques regarding his cognitive limitations .
13.	On 8 March 2019, the Industrial Psychologist met. Pursuant to their meeting they prepared a joint minute which was handed into the record and marked Exhibit A. In their minute, the experts agreed as to the plaintiff's educational background, and that at the time of the collision, that he was self- employed as a car washer. They were further in agreement that considering his low level of education (Grade 10), it is probable that he would have continued to work in the informal labour market, relying on his physical abilities to secure and sustained employment. Pre-accident they were further in agreement that the plaintiff may have been able to work, past normal retirement age given the fact that he had been working as a car washer for the past 15 years at Impala Platinum mines. Post-accident the experts agreed that the plaintiff had suffered a past loss of income and he stayed at home for three months following his accident. In their joint minute they further recorded that albeit that the plaintiff is employed in the same position, post-accident that he had to go into a partnership with Mr Monareng in order to sustain his work opportunity. As a result of taking on assistance, the plaintiff now needs to share the profit of his business with Mr. Monareng, which resulted in him having to be compensated for his loss of earnings as he cannot cope due to the residual effects of the accident in the open labour market.
14.	The plaintiff then closed his case and no rebuttal viva voce evidence was presented on behalf of the defendant.

ARGUMENTS BY LEGAL REPRESENTATIVES
15.	As mentioned, this court was called upon to determine whether the Plaintiff suffered a loss of earnings and earning capacity and if indeed the extent of such a loss.
16.	In essence it is the defendant's contention that the plaintiff's 50% share from the proceeds of his business pre-morbid places him in the same position that he would have been had the accident not occurred. It is the defendant's stance, that pre-morbid and post-morbid that the plaintiff did not suffer any loss of earnings or earning capacity.
17.	In essence it is the plaintiff's contention that as a result of the injuries sustained by the plaintiff that he indeed had suffered actual loss of earnings as well as loss of earning capacity. Furthermore, that this was agreed upon by the Industrial Psychologists when they the met as experts and same was also recorded in their pre-trial minute produced pursuant to such meeting.

ONUS
18.	In order to assess whether the plaintiff will be entitled to compensation for loss of earnings and or earning capacity, the plaintiff bears the onus of proving that he has in fact suffered such a loss of earnings and or earning capacity. In this regard, the plaintiff must place before this court sufficient evidence to enable the court to qualify his loss. The expression earning capacity means the earnings that the claimant is most likely to generate by using his/her capacity to work.
19.	In the decision of Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) Chetty J referred to the principles relating to loss of earnings and earning capacity as follows:
"A person's all-round capacity to eam money consists, inter alia, of an individual's talent, skill, including his/her present position and plans for the future, and, of course, external factors over which a person has no control, for instance, in casu, considerations of equity. A court has to construct and compare two hypothetical models of the plaintiff's earnings after the date on which he/she sustained the injury. In casu, the court must calculate, on the one hand the total present monetary value of all that the plaintiff would have been capable of bringing into her patrimony had she not been injured, and on the other, the total present monetary value of all that the plaintiff would be able to bring into her patrimony whilst handicapped by her injury. When the two hypothetical totals have been compared, the shortfall in value (if any) is the extent of patrimonial loss At the same time the evidence may establish that an injury may in fact have no applicable effect on earning capacity, in which event the damage under this head will be nil."

20.	It therefore, follows that where a claimant's earning capacity has been impaired or compromised, such incapacity constitutes a loss. If such loss diminishes the claimant's patrimony, the latter is entitled to be compensated to the extent that his or her patrimony has been so diminished.
21.	In the unreported decision of Deysel v RAF ZAGJHC 242 delivered on 24 June 2011 Bizos AJ at paragraph 18 stated that earning capacity refers to " the part of a person's patrimony, but this capacity can only be proven to have been lowered and the damages for this quantified by proving an actual loss of income."
22.	At paragraph 21 of the same judgment, Bizos AJ expressed himself as follows:
" .........that a causal link has to be established between the damage suffered (in casu the loss of earning capacity) and the diminution of the claimants estate before such damage can said to be compensable. This is true even though earning capacity on its own is seen as part of one's patrimony. In the same way that a person's home forms part of their patrimony and damage to this part of their patrimony has to be proved by showing actual monetary loss caused by such damage- and actual monetary loss mist be suffered (i.e. loss of income before one's earning capacity can be said to have been damaged for purposes of a patrimonial claim under delict. This is in essence, the difference between patrimonial and non-patrimonial loss."

ANALYSIS OF EVIDENCE
23.	On the uncontested evidence presented before this court, it was not disputed that the plaintiff post-collision, took three months to recuperate at home and during this period he earned no income. It is, therefore, uncontroverted that the plaintiff suffered a past loss of income, and this fact the Industrial Psychologists were in agreement with.
24.	As to the plaintiff's future loss of income what remains unchallenged from his evidence is that post-accident and as a result of the collision, that the plaintiff is unable to cope with the demands of his car washing business. This was not only testified to by the plaintiff, but also confirmed by the experts in their reports and joint minutes presented before this court. Furthermore, the plaintiff testified that as a result of the accident, that he had to go into a partnership with Mr Monareng to cope with the demands of his employment and that had it not been for his injuries that he would have been able to work alone and would have earned all the profits by himself.
25.	In the heads of argument prepared by counsel for the defendant, the argument was proffered that the plaintiff did not suffer any future loss of income as the plaintiff post-collision through the partnership, but that he has in fact been placed as an advantageous position than before as he now is receiving the same income as prior to the collision, albeit that his partner is doing most of the work.
26.	This argument presented by Mr. Mashilane, this Court however cannot find favour with for the following reasons:
26.1	Prior to the collision, the plaintiff was able to conduct his car washing business, without the need of any assistant.
26.2	The need by the plaintiff to seek the assistance of Mr Monareng, was out of necessity given the residual effects of the accident.
26.3	Furthermore, the plaintiff testified that is uncertain as to how long Mr Monareng will continue to work with him, as he is doing most of the work by washing more cars, but still he only receives 50% of the profit made by the business.

27.	Given the conspectus of the evidence presented, this Court is as a result satisfied, that the plaintiff through his evidence had discharged his onus that he indeed will suffer a future loss of income.
28.	The exercise for determining the appropriate contingency deduction falls squarely within the subjective discretion of the court as to what will be reasonable and fair to both parties. In the matter Van Der Plaats v Southern African Mutual Fire & General Insurance Co. 1980 (3) SA 105 (A) at 114-115 the general principles of contingencies allow for the general hazards of life, like unemployment, loss of income and impairments due to accident. When contingencies are considered, the general vicissitudes of life is taken into account and in this regard both favourable and adverse contingencies should be taken into account.
29.	Having regard to the decision of Goodall v President Insurance 1978 (1) SA 389 (W) and the sliding scale method laid down in this decision, I am of the opinion that the percentages contingency deductions as alluded to in the report presented by the actuary mentioned above, would be both fair and equitable and will serve to balance the interest of both parties.

ORDER
30.	In the result the following order is made:
30.1	The merits have been settled 100% in favour of the plaintiff.
30.2	The defendant shall pay the plaintiff the sum of R 1 038 466 (One Million, Thirty Eight Thousand, Four Hundred and Sixty Six Rand) in delictual damages ("the capital amount"), in respect of his loss of earnings and earning capacity in one instalment within 30 days after the date of the court order. Should the payment not be effected timeously the Plaintiff will be entitled to recover interest on the unpaid capital amount at the rate of 10.25% per annum calculated from the date of this order to date of final payment. This amount is compounded as follows: by way of a lump sum payment on or before 10 JANUARY 2020, which payment will be effected by way of electronic transfer to the plaintiff's correspondent attorneys of record trust account the details of which are set out hereunder.
30.3	The Defendant is ordered to pay the Plaintiff's taxed, alternatively agreed costs of suit on High Court party-and-party scale, which costs shall include, but not limited, to the following:
30.3.1	The costs of all medico-legal, radiological, RAF4 forms, actuarial, addendum and joint reports, if any, obtained by the Plaintiff, as well as such reports furnished to the Defendant and or to the knowledge of the Defendant and/or its attorneys, as well as all reports in their possession and all reports contained in the Plaintiff's bundles, irrespective of the time elapsed between any reports;
30.3.2	The reasonable and taxable preparation qualifying and reservation and attendance fees, in such amount as allowed by the Taxing Master, of the experts as in the previous paragraph;
30.3.3	The reasonable costs incurred by and on behalf of the Plaintiff, as well as the costs consequent to attending the medico-legal examinations of the Plaintiff and the Defendant, which shall include the costs and expenses incurred to transport the Plaintiff to and from the medico-legal appointments;
30.3.4	The costs incurred in obtaining payment of the amount mentioned in paragraph 30.2 above;
30.3.5		The fee ("day fee") of Plaintiffs counsel briefed on trial for 13 June 2019, as well as her reasonable fee for preparation for trial;
30.3.6	The costs of preparation of six (6) trial bundles as per the Directive issued by his Lordship Mr. Justice W. van der Merwe, former Deputy Judge President of this Division, or as agreed by the parties at any pre-trial conferences and or meetings;
30.3.7	The costs up to date, which costs include the reasonable costs of Plaintiff's attorney and correspondent attorney, if any, which costs shall also include all necessary travelling costs and/or expenses, if any, such costs further to include time spent and kilometres travelled concerning attendance to court and preparation for trial;
30.3.8	The costs of preparing, travelling, and attending all pre-trial conferences, as well as round table meetings between the legal representatives for both the Plaintiff and the Defendant, costs for the formulation and/or drafting of any pre-trial minutes, including counsel's charges in respect of any such pre-trials and or meetings irrespective of the time elapsed between the pre-trials and or meetings;
30.3.9	The costs of interpreter;
30.3.10	The costs in respect of obtaining documents and lodging of the Plaintiffs claim;
30.3.11	The reasonable travel costs and expenses incurred by the Plaintiff to attend court and who is hereby declared a necessary witness;
30.3.12	The reasonable travel costs and expenses incurred by two factual witnesses, who are hereby declared necessary witnesses.
30.3.13	In the event that the Plaintiff's party-and-party costs are not agreed:
30.3.14	The plaintiff shall serve a notice of taxation on the Defendant's attorney of record;
30.3.15	The plaintiff shall allow the Defendant 14 (FOURTEEN) days from date of allocatur to make payment of any taxed costs; and
30.3.16	Should payment of the taxed costs not be effected timeously, the Plaintiff shall be entitled to recover interest on the taxed alternatively agreed costs at the rate of 10.25% per annum from the date of allocatur to date of final payment.
30.3.17	The amount referred to above will be paid to Plaintiff's attorneys Corne Nell Incorporated, by direct transfer into their trust account, details of which are the following:

Bank:	ABSA BANK
Account Holder:	CORNE NEL Inc. 
Branch code:		632 005
Account Number:	[….]
Reference Number:	C NELUN138
30.3.18	It is recorded that the contingency fee agreement is invalid.
30.3.19	The General Damages, which were rejected, are postponed sine die.

C COLLIS
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA

Appearances:
For the Plaintiff			: Adv. L. van Eeden
Attorney for the Plaintiff		: Come Nell Incorporated
For the Defendant			: Adv. L. Mashilane
Attorney for the Defendant		: Matabane Incorporated
Dates of Hearing			: 13 June 2019
Date of Judgment			: 10 December 2019