Manganyi v Road Accident Fund (2670/2019) [2024] ZAGPPHC 1359 (22 December 2024)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA Case Number: 2670/2019 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. DATE: 22/12/2024

SIGNATURE In the matter between:

KULANI

ELLEN MANGANYI APPLICANT and

ROAD

ACCIDENT FUND

RESPONDENT

JUDGEMENT

PIENAAR (AJ) [1] This matter was on the default judgment roll on 23rd September 2024. When the matter was called there were no appearance for the RAF, despite due notice of the trial date being given to it. The matter proceeded on a default basis. [2] Counsel for the plaintiff proceeded to present his case in respect of all issues of liability and quantum, excluding the claim for General Damages, because there is no indication that the RAF formed a view on the seriousness of the injuries sustained by the Plaintiff. [3] Accordingly, the plaintiffs claim for General Damages will be separated from the other heads of damages and postponed. [4] The Defendant defence has been struck out before the Honourable Judge Lenyai on the 10th August 2023 [1] [5] The Plaintiff filed several medico legal reports in support of her claim. Plaintiff proceeded by way of Rule 38(2) uniform rules of court. [6] After having heard submissions from plaintiff Counsel, Mr Baloyi, the Court had reserved judgment. Merits [6] The merits evidence before me is, the police docket on reckless driving and culpable homicide, the claimant’s section 19(f) affidavit confirming the accident, and the ID copy of the claimant. According to the statements in the docket and the affidavit

of the claimant, the car in which the plaintiff was a passenger the other vehicle just turned without stoping. [7] As a result of the accident, the plaintiff and other passengers sustained serious and some fatal bodily injuries. They were taken to Chris Hani Baragwanath hospital. [8] The plaintiff has thus proven a proverbial 1% negligence on the part of the driver which resulted in RAF being 100% liable for the injuries sustained by the plaintiff as a result of this accident. Quantum Hospital records [9] The claimant was admitted at Chris Hani Baragwanath Hospital, and sustained the following injuries: Neck pain, lacerations to the right upper eyelid, right lower eyelid and right eye upper lacuna Dr Peter T Kumbirai - Orthopaedic Surgeon [10] Dr Kumbirai examined the Plaintiff on 10 August 2022. According to Dr Kumbirai the Plaintiff had a 7 cm x 6 cm scarred area around the right eye. The claimant reports poor self-esteem due to ugly scarring around the right eye. [11] The Claimant sustained a neck injury, lacerations to right upper eyelid, right lower eyelid and right eye upper lacuna. Dr Kumbirai noted that the Plaintiff reported that she is presently unemployed. Dr Tshepo P Moja - Neurosurgeon [12] Dr Moja examined the Plaintiff on 6 July 2022. He reported that the claimant had a right eye injury with lacerations around her eye. She sustained facial trauma with lacerations

of her right upper and lower eyelids. She sustained, at worst, a “probable” mild brain concussion. Dr Moja noted that the claimant was employed in a clothing store at the time of the accident. Dr Sello Solly Selahle - Plastic & Reconstructive Surgeon [13] Dr Selahle, evaluated the Plaintiff on 22nd April 2024, she sustained a right upper and lower eyelid lacerations, right upper canaliculi injury, face scars of 6 x 1,5 cm ragged scar on the upper eyelid, 5 x 1,5 cm ragged scar on the lower eyelid, ectropion of the lower eyelid. The scars are cosmetically unsightly and disfiguring, conspicuous and difficult to conceal, permanent with little prospects of scar improvement by scar revision techniques. Mrs Sewpersahd N - Clinical Psychologist [14] Mrs Sewpersahd, a clinical psychologist, clinically evaluated the Plaintiff on 2nd July 2020 and 1st August 2024 (telephonically). Mrs Sewpersahd expressed the following opinions regarding the Plaintiff’s future employability and earning capacity: the trauma of the accident has rendered her psychologically significantly more vulnerable. The scarring, has proven to be a liability, and served as a significant barrier to her ability to adapt her injury related challenges, and was likely to affect her mental, emotional and financial wellbeing in an employment setting. Mrs Mogola S.D - Occupational Therapist [15] Mrs Mogola evaluated the

Plaintiff on 19th November 2019 and the report was provided on 22nd August 2024. It is noted that she has a poor educational background and she was gainfully employed in jobs where she relied more on on her physical strength than academics. Her job is mainly from the unskilled labour force, thus it is due to the residual symptoms of the injuries sustained from the accident she has poor future employment opportunities as she will not cope with sedentary and light jobs which require some academic qualifications and skills. Mrs Kowane Mayayise - Industrial Psychologist [16] Mrs Mayayise, the industrial psychologist assessed the Plaintiff on 3rd July 2020. This, as with the assessment by the other experts, was over 12 years after the accident in which the Plaintiff sustained her injuries. [17] Pre accident, Ms Manganyi has a Grade 11 level of education. At the time of the accident she was employed by Pierre Cardin as a Packer responsible for packing clothes. She was 33 years old and was earning R2 864,60 per month. Ms Manganyi would have had the capacity to work until age related retirement at the age of of 60 when the old age government grant would have been applicable. [18] Post accident, she was employed by Pierre Cardin as a packer responsible for packing clothes. She was thereafter out of work for three months which was not paid. Upon return to work she resumed normal duties

for six months and there after resigned because she could not cope with the physical demands of her duties. [19] Mrs Mayayise is of the opinion that Ms Manganyi is no longer able to successfully compete with well bodies healthy individuals for employment. It is noted that she is now an individual who is likely to experience long periods of out of gainful employment for the most part of the remainder of her life but for sympathetic accommodative employment attempts of the nature that she currently holds. Collateral information [20] There is no collateral information, accept for banks statements. The bank statements indicate a cash deposit from Giyani and also show that she is currently employed at a Primary school. One Pangaea - Actuary [21] One Pangaea actuary report is based on the Industrial Psychologist report. The actuary, Mr Mureriwa is of the view that a 15% future pre morbid and 25% future post morbid should be applied. Exercising my discretion, I find that contingencies of 20% pre accident and 30% post accident must be applied on the agreed future loss of income. [22] In Sema v RAF 2008 JOL 22068 D inc par [51] Tshabalala JP (as he then was) in dealing with contingencies said the following: “When a court accepts an actuary’s calculation determining future earnings of an injured plaintiff, it usually then considers the “general equities of the case” and adjusts the

figure in order to “blend the scientific with the equitable”. The figure is usually adjusted for certain contingencies which may not have been taken into account by the actuary. It is a matter that falls within the discretion of the court which will determine an amount that it considers to be calculations. However the courts are mindful of the fact that the encompasses educated guesswork in which the court makes assumptions which cannot be proved.” [23] In the result the following order is made: 1. The Defendant is liable for 100% of the Plaintiff’s proven damages; 2. The Defendant shall furnish the Plaintiff with a certificate in terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996 in respect of the Plaintiff’s future hospital, medical and related expenses; 3. The Defendant shall pay an amount of R896 114,90 (Eight hundred ninety six thousand one hundred fourteen rand and ninety cents) in respect of of past and future loss of income; 4. The issue of General Damages is postponed sine die.

5. The Defendant shall pay the plaintiff’s costs of suit on the party and party High Court scale as taxed or a greed, which costs shall include the qualifying, reservation (if any) and preparation fees of the expert witnesses in the following Trust account of the Applicant’s Attorney Molefe Machaka Attorneys Inc which is as follows: Account: Holder Molefe Machaka Attorneys, account type: trust; Account number : ..; Name of Bank: ABSA ; Branch code .; Referene no: MMP/0016/2022 6. Costs of employment of Counsel, Mr Baloyi on Scale B 7. There is a valid contingency fee agreement.

JUDGE

PIENAAR M

ACTING

JUDGE OF THE HIGH

COURT

OF GAUTENG DIVISION This judgment was prepared and authorised by the Judge whose name is reflected and is handed down electronically by circulation to the parties/ their legal representatives by by uploading it to the electronic file of this matter on Caselines. The date and

for hand-down is deemed to be 23 December 2024 Date of hearing :23 September 2024 Date of judgment :23 December 2024 Appearances:

Plaintiff Counsel :Adv Baloyi Instructed by : M P Molefe Attorneys Defendant Attorneys : Road Accident Fund No appearance Link no: unknown ______________ [1] Caselines 008 Striking Draft Order, item 1 pg 008-1 [2] Seme v RAF 2008 JOL 22068 D in par [51] Tshabalala JP

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 2670/2019

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE: 22/12/2024

SIGNATURE

In the matter between:

KULANI

ELLEN MANGANYI APPLICANT

and

ROAD

ACCIDENT FUND

RESPONDENT

JUDGEMENT

PIENAAR (AJ)

[1] This matter was on the default judgment roll on 23rd September 2024. When the matter was called there were no appearance for the RAF, despite due notice of the trial date being given to it. The matter proceeded on a default basis.

[2] Counsel for the plaintiff proceeded to present his case in respect of all issues of liability and quantum, excluding the claim for General Damages, because there is no indication that the RAF formed a view on the seriousness of the injuries sustained by the Plaintiff.

[3] Accordingly, the plaintiffs claim for General Damages will be separated from the other heads of damages and postponed.

[4] The Defendant defence has been struck out before the Honourable Judge Lenyai on the 10th August 2023 [1]

[5] The Plaintiff filed several medico legal reports in support of her claim. Plaintiff proceeded by way of Rule 38(2) uniform rules of court.

[6] After having heard submissions from plaintiff Counsel, Mr Baloyi, the Court had reserved judgment.

Merits

[6] The merits evidence before me is, the police docket on reckless driving and culpable homicide, the claimant’s section 19(f) affidavit confirming the accident, and the ID copy of the claimant. According to the statements in the docket and the affidavit

of the claimant, the car in which the plaintiff was a passenger the other vehicle just turned without stoping.

[7] As a result of the accident, the plaintiff and other passengers sustained serious and some fatal bodily injuries. They were taken to Chris Hani Baragwanath hospital.

[8] The plaintiff has thus proven a proverbial 1% negligence on the part of the driver which resulted in RAF being 100% liable for the injuries sustained by the plaintiff as a result of this accident.

Quantum

Hospital records

[9] The claimant was admitted at Chris Hani Baragwanath Hospital, and sustained the following injuries:

Neck pain, lacerations to the right upper eyelid, right lower eyelid and right eye upper lacuna

Dr Peter T Kumbirai - Orthopaedic Surgeon

[10] Dr Kumbirai examined the Plaintiff on 10 August 2022. According to Dr Kumbirai the Plaintiff had a 7 cm x 6 cm scarred area around the right eye. The claimant reports poor self-esteem due to ugly scarring around the right eye.

[11] The Claimant sustained a neck injury, lacerations to right upper eyelid, right lower eyelid and right eye upper lacuna. Dr Kumbirai noted that the Plaintiff reported that she is presently unemployed.

Dr Tshepo P Moja - Neurosurgeon

[12] Dr Moja examined the Plaintiff on 6 July 2022. He reported that the claimant had a right eye injury with lacerations around her eye. She sustained facial trauma with lacerations of her right upper and lower eyelids. She sustained, at worst, a “probable” mild brain concussion. Dr Moja noted that the claimant was employed in a clothing store at the time of the accident.

Dr Sello Solly Selahle - Plastic & Reconstructive Surgeon

[13] Dr Selahle, evaluated the Plaintiff on 22nd April 2024, she sustained a right upper and lower eyelid lacerations, right upper canaliculi injury, face scars of 6 x 1,5 cm ragged scar on the upper eyelid, 5 x 1,5 cm ragged scar on the lower eyelid, ectropion of the lower eyelid. The scars are cosmetically unsightly and disfiguring, conspicuous and difficult to conceal, permanent with little prospects of scar improvement by scar revision techniques.

Mrs Sewpersahd N - Clinical Psychologist

[14] Mrs Sewpersahd, a clinical psychologist, clinically evaluated the Plaintiff on 2nd July 2020 and 1st August 2024 (telephonically). Mrs Sewpersahd expressed the following opinions regarding the Plaintiff’s future employability and earning capacity: the trauma of the accident has rendered her psychologically significantly more vulnerable. The scarring, has proven to be a liability, and served as a significant barrier to her ability to adapt her injury related challenges, and was likely to affect her mental, emotional and financial wellbeing in an employment setting.

Mrs Mogola S.D - Occupational Therapist

[15] Mrs Mogola evaluated the Plaintiff on 19th November 2019 and the report was provided on 22nd August 2024. It is noted that she has a poor educational background and she was gainfully employed in jobs where she relied more on on her physical strength than academics. Her job is mainly from the unskilled labour force, thus it is due to the residual symptoms of the injuries sustained from the accident she has poor future employment opportunities as she will not cope with sedentary and light jobs which require some academic qualifications and skills.

Mrs Kowane Mayayise - Industrial Psychologist

[16] Mrs Mayayise, the industrial psychologist assessed the Plaintiff on 3rd July 2020. This, as with the assessment by the other experts, was over 12 years after the accident in which the Plaintiff sustained her injuries.

[17] Pre accident, Ms Manganyi has a Grade 11 level of education. At the time of the accident she was employed by Pierre Cardin as a Packer responsible for packing clothes. She was 33 years old and was earning R2 864,60 per month. Ms Manganyi would have had the capacity to work until age related retirement at the age of of 60 when the old age government grant would have been applicable.

[18] Post accident, she was employed by Pierre Cardin as a packer responsible for packing clothes. She was thereafter out of work for three months which was not paid. Upon return to work she resumed normal duties for six months and there after resigned because she could not cope with the physical demands of her duties.

[19] Mrs Mayayise is of the opinion that Ms Manganyi is no longer able to successfully compete with well bodies healthy individuals for employment. It is noted that she is now an individual who is likely to experience long periods of out of gainful employment for the most part of the remainder of her life but for sympathetic accommodative employment attempts of the nature that she currently holds.

Collateral information

[20] There is no collateral information, accept for banks statements. The bank statements indicate a cash deposit from Giyani and also show that she is currently employed at a Primary school.

One Pangaea - Actuary

[21] One Pangaea actuary report is based on the Industrial Psychologist report. The actuary, Mr Mureriwa is of the view that a 15% future pre morbid and 25% future post morbid should be applied. Exercising my discretion, I find that contingencies of 20% pre accident and 30% post accident must be applied on the agreed future loss of income.

[22] In Sema v RAF 2008 JOL 22068 D inc par [51] Tshabalala JP (as he then was) in dealing with contingencies said the following:

“When a court accepts an actuary’s calculation determining future earnings of an injured plaintiff, it usually then considers the “general equities of the case” and adjusts the figure in order to “blend the scientific with the equitable”. The figure is usually adjusted for certain contingencies which may not have been taken into account by the actuary. It is a matter that falls within the discretion of the court which will determine an amount that it considers to be calculations. However the courts are mindful of the fact that the encompasses educated guesswork in which the court makes assumptions which cannot be proved.”

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

1. The Defendant is liable for 100% of the Plaintiff’s proven damages;

2. The Defendant shall furnish the Plaintiff with a certificate in terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996 in respect of the Plaintiff’s future hospital, medical and related expenses;

3. The Defendant shall pay an amount of R896 114,90 (Eight hundred ninety six thousand one hundred fourteen rand and ninety cents) in respect of of past and future loss of income;

4. The issue of General Damages is postponed sine die.

5. The Defendant shall pay the plaintiff’s costs of suit on the party and party High Court scale as taxed or a greed, which costs shall include the qualifying, reservation (if any) and preparation fees of the expert witnesses in the following Trust account of the Applicant’s Attorney Molefe Machaka Attorneys Inc which is as follows:

Account: Holder Molefe Machaka Attorneys, account type: trust; Account number : ..; Name of Bank: ABSA ; Branch code .; Referene no: MMP/0016/2022

6. Costs of employment of Counsel, Mr Baloyi on Scale B

7. There is a valid contingency fee agreement.

JUDGE

PIENAAR M

ACTING

JUDGE OF THE HIGH

COURT

OF GAUTENG DIVISION

This judgment was prepared and authorised by the Judge whose name is reflected and is handed down electronically by circulation to the parties/ their legal representatives by by uploading it to the electronic file of this matter on Caselines. The date and

for hand-down is deemed to be 23 December 2024

Date of hearing :23 September 2024

Date of judgment :23 December 2024

Appearances:

Plaintiff Counsel :Adv Baloyi

Instructed by : M P Molefe Attorneys

Defendant Attorneys : Road Accident Fund

No appearance

Link no: unknown

______________

[1] Caselines 008 Striking Draft Order, item 1 pg 008-1

[2] Seme v RAF 2008 JOL 22068 D in par [51] Tshabalala JP