Oosthuizen v MEC Responsible for the Department of Roads and Public Works North West and Another (33736/03) [2006] ZAGPHC 79 (21 August 2006)

(Amended Judgment)HJCBIN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)DATE:21AUGUSTUS 2006CASE NO: 33736/2003REPORTABLEIn the matter between:LIZE MARIE OOSTHUIZEN PLAINTIFFandTHE MEMBER OF THE EXECUTIVE COUNCILRESPONSIBLE FOR THE DEPARTMENT OFROADS AND PUBLIC WORKS: NORTH WESTPROVINCEFIRST DEFENDANTTHE MEMBER OF THE EXECUTIVE COUNCIL

(Amended Judgment)

HJCB

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

DATE:21AUGUSTUS 2006

DATE:

21

AUGUSTUS 2006

CASE NO: 33736/2003

REPORTABLE

In the matter between:

LIZE MARIE OOSTHUIZEN PLAINTIFF

andTHE MEMBER OF THE EXECUTIVE COUNCILRESPONSIBLE FOR THE DEPARTMENT OFROADS AND PUBLIC WORKS: NORTH WEST

and

THE MEMBER OF THE EXECUTIVE COUNCILRESPONSIBLE FOR THE DEPARTMENT OFROADS AND PUBLIC WORKS: NORTH WEST

PROVINCEFIRST DEFENDANT

PROVINCE

FIRST DEFENDANT

THE MEMBER OF THE EXECUTIVE COUNCIL

RESPONSIBLE FOR THE DEPARTMENT OFPUBLIC TRANSPORT, ROADS AND WORKS:

GAUTENG SECOND DEFENDANT

JUDGMENT

PATEL J

Introduction

[1] This action is brought as a result of the death of

Pieter Wilfred Oosthuizen ("the deceased") who died in a motor collision during the night of 12-13 March 2003. The plaintiff is his widow

. She

sues in her personal capacity for R

3 638 371

.00 and in her capacity

as

mother and natural guardian of the minor child, Claurette Helen for R2

284

350.00 as damages sustained by reason of their deprivation

of

support

of the deceased. She also claims

for funeral and interment expenses in the amount of R9

326.00.

She also claims interest on the said amounts

a tempore morae

and costs of suit.

[2] The defendants conceded negligence in the death of the deceased. They are liable to the plaintiff and the minor child for loss of support. Byagreement the defendants are liable to pay the sum of R9111.63to the plaintiff for the claim regarding funeral expenses.[3] The trial proceeded on the issue ofquantum.It was also agreed between the parties that upon the Court’s assessment of the evidence,actuarial calculations would be provided by Gerhard Jacobson pursuant to a directive by the Court in determining the value of the pecuniary loss of support sustained by the widow and the child.TheCourt’s directive was transmitted to the actuary on 22 June 2006 by telefax and a response was receivedby Mr Jacobsonon14 August 2006.

[2] The defendants conceded negligence in the death of the deceased. They are liable to the plaintiff and the minor child for loss of support

. B

y

agreement the defendants are liable to pay the sum of R9

111.

63

to the p

laintiff for the claim regarding funeral expenses.[3] The trial proceeded on the issue of

q

uantum.

It was also agreed between the parties that upon the Court

’

s assessment of the evidence

,

actuarial calculations would be provided by Gerhard Jacobson pursuant to a directive by the Court in determining the value of the pecuniary loss of support sustained by the widow and the child.

The

C

ourt’s directive was transmitted to the actuary on 22 June 2006 by telefax and a response was received

by Mr Jacobson

on

14 August 2006.

Claim for deprivation of support

[4] The foundation of all claims for damages for deprivation of support arising by reason of the death of the deceased is a legal duty to provide support owed by the deceased during his lifetime to the widow and the childUnion Geverment v Warneke1911 AD 657at 666;Oosthuizen vStanley1938 AD 322at 327.Usually, a widow will have no difficulty in showing that she had a right to support,exceptwhere the husband wasimpecuniousto provide any support. In this regard, although a duty to maintain and support a wife or widow may exist, no loss is proved unless a reasonable expectation that the duty would be fulfilled is establishedGildenhuys v Transvaal Hindu Educational Council1938 WLD 260at 262.On proof of the duty to support and the concomitantly the ability to do so, the underlying principle is the need to put the deceased’s dependants in the position they would have been in had he not died.

[4] The foundation of all claims for damages for deprivation of support arising by reason of the death of the deceased is a legal duty to provide support owed by the deceased during his lifetime to the widow and the child

Union Geverment v Warneke

1911 AD 657at 666;

1911 AD 657

Oosthuizen v

Stanley

1938 AD 322at 327

1938 AD 322

Usually, a widow will have no difficulty in showing that she had a right to support,

except

where the husband was

impecunious

to provide any support. In this regard, although a duty to maintain and support a wife or widow may exist, no loss is proved unless a reasonable expectation that the duty would be fulfilled is established

Gildenhuys v Transvaal Hindu Educational Council

1938 WLD 260at 262

1938 WLD 260

.

On proof of the duty to support and the concomitantly the ability to do so, the underlying principle is the need to put the deceased’s dependants in the position they would have been in had he not died.

[5] It is trite that theonusis on the plaintiff to provethe elements to establish a claim for loss of support as well as the relationship between the deceased and the claimants. The deceased’s duty to support the claimants and the deceased’s ability to support them, including proof of his income, ison the plaintiff. The plaintiff accepted theonusof proof. The relationship between the claimants and the deceased is not disputed by the defendants, however, the need for maintenance and the deceased’s ability to provide such maintenance is in issue. Thus, todetermine the extent of the loss of supportsustained by the claimants regard must be had to the earnings of both the plaintiff and the deceasedFourie v Santam1996 (1) SA 63. The plaintiff’s earnings are not in dispute. She is a director in the legal firm of Brugmans and her annual earnings are R242 403.00.

[5] It is trite that the

onus

is on the plaintiff to prove

the elements to establish a claim for loss of support as well as the relationship between the deceased and the claimants. The deceased’s duty to support the claimants and the deceased’s ability to support them, inc

luding proof of his income, i

s

o

n the plaintiff. The plaintiff accepted the

of proof. The relationship between the claimants and the deceased is not disputed by the defendants, however, the need for maintenance and the deceased’s ability to provide such maintenance is in issue

. Thus, to

determine th

e extent of the loss of support

sustained by the claimants regard must be had to the earnings of both the plaintiff and the deceased

Fourie v Santam

1996 (1) SA 63

. The plaintiff’s earnings are not in dispute. She is a director in the legal firm of B

r

ugmans and her annual earnings are R242 403.00.

Key factual issues

Key factual issue

[6] The key factual issue

s relate

to

the

determin

ation of

the deceased’s earning capacity and consideration of certain contingencies.

Enquiry into deceased’s earning capacity

[7] It is common cause that the deceased’s financial information is deficient. The first basis for calculation is the comparative earnings of a colleague, Adv Naude de Wet, whose practice in certain respect

is

comparable to that of the deceased. On this aspect the evidence of Mr Jacot-Guillarmod as well as the testimonies of

Adv de Wet

, Adv Gerhard Naude an

d M

s. Suzy Swart was ten

d

ered on behalf of the plaintiff. The second basis relates to the earning capacity of the deceased in the private sector. On this

aspect

the plaintiff’s industrial psychologist, Barbara Donaldson, testified. The third basis is the utilisation of the deceased’s available financial information, although deficient, and to make certain assumptions. This is the approach of the defendant’s experts, Mr Tonge and Dr Harmse.

The approach

[8] Nicolas JA inSouthern Insurance Association Ltd v BailyNO1984 1 SA 98(A) 113G-114E; see alsoJacobs v Commercial Union Versekering – Maatskappy van SuidAfrika Beperk,Corbett and Buchanan,The Quantum of Damagesvol 4, C3-127 at C3-140/141instructively alluded:

[8] Nicolas JA in

Southern Insurance Association Ltd v Baily

NO

1984 1 SA 98(A) 113G-114E; see also

1984 1 SA 98

Jacobs v Commercial Union Versekering – Maatskappy van SuidAfrika Beperk,

Corbett and Buchanan,

The Quantum of Damages

vol 4, C3-127 at C3-140/141

instructively alluded:

“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, augurs 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.It has open to it two possible approaches.One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown.The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to thespeculative.It is manifest that either approach involves guesswork to a greater or lesser extent. But the Court cannot for this reason adopt anon possumusattitude and make no award. SeeHersman v Shapiro & Co1926 TPD 367at 379perSTRATFORD J:

“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, augurs 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.It has open to it two possible approaches.One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown.The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the

speculative.

It is manifest that either approach involves guesswork to a greater or lesser extent. But the Court cannot for this reason adopt a

non possumus

attitude and make no award. See

Hersman v Shapiro & Co

1926 TPD 367at 379

1926 TPD 367

per

STRATFORD J:

‘Monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the Court is little more than an estimate; but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages.’

And inAnthony and Another vCape TownMunicipality1967 (4) SA 445(A) HOLMES JA is reported as saying at 451B-C:

And in

Anthony and Another v

Cape Town

Municipality

1967 (4) SA 445(A) HOLMES JA is reported as saying at 451B-C:

1967 (4) SA 445

‘I therefore turn to the assessment of damages. When it comes to scanning the uncertain future, the Court is virtually pondering the imponderable, but must do the best it can on the material available, even if the result may not inappropriately be described as an informed guess, for no better system has yet been devised for assessing general damages for future loss; seePitt v Economic Insurance Co Ltd1957 (3) SA 284(N) at 287 andTurkstra Ltd v Richards1926 TPD at 282in fin-283.’

‘I therefore turn to the assessment of damages. When it comes to scanning the uncertain future, the Court is virtually pondering the imponderable, but must do the best it can on the material available, even if the result may not inappropriately be described as an informed guess, for no better system has yet been devised for assessing general damages for future loss; see

Pitt v Economic Insurance Co Ltd

1957 (3) SA 284(N) at 287 and

1957 (3) SA 284

Turkstra Ltd v Richards

1926 TPD at 282

in fin

-283.’

In a case where the Court has before it material on which an actuarial calculation can usefully be made, I do not think that the first approach offers any advantage over the second. On the contrary, 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’ (to use the words of appellant’s counsel) as to what is fair and reasonable is nothing more than a blind guess. (CfGoldie v City Council of Johannesburg1948 (2) SA 913(W) at 920.)It is true that, in the case of a young child, the assessment of damages for loss of earnings is speculative in the extreme. Nevertheless I do not think that even in such a case it is wrong in principle to make an assessment on the basis of actuarial calculations.”

In a case where the Court has before it material on which an actuarial calculation can usefully be made, I do not think that the first approach offers any advantage over the second. On the contrary, 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’ (to use the words of appellant’s counsel) 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.)It is true that, in the case of a young child, the assessment of damages for loss of earnings is speculative in the extreme. Nevertheless I do not think that even in such a case it is wrong in principle to make an assessment on the basis of actuarial calculations.”

1948 (2) SA 913

[9] In order to determine what is a fair and reasonablequantumof damages sustained by the plaintiff and child for loss of support,it is necessary to consider all the evidence to decide which one of thethreebasis is most appropriate pertaining to the deceased’s earnings had he not being killed.

[9] In order to determine what is a fair and reasonable

quantum

of damages sustained by the plaintiff and child for loss of support

it is necessary to consider all the evidence to decide which one of the

three

basis is most appropriate pertaining to the deceased’s earnings had he not being killed.

[10] The deceased’s earning capacity is a matter to be decided on available informationShield Insurance Co Ltd v Booysen1979 (3) SA 953(A).Where the available information provides sufficient basis for an actuarial calculationPresident Insurance Company v Matthews1992 (1) SA 1(A).

[10] The deceased’s earning capacity is a matter to be decided on available information

Shield Insurance Co Ltd v Booysen

1979 (3) SA 953(A)

1979 (3) SA 953

W

here the available information provides sufficient basis for an actuarial calculation

President Insurance Company v Matthews

1992 (1) SA 1

(A).

epending upon the circumstances of the matter, the court exercises its discretion regarding any contingency deductions or additions in the event of positive contingencies.

Van der Plaats v SA Mutual Fire and Insurance

Co Ltd1980 (3) SA 105(A);

1980 (3) SA 105

Minister of

Defence v

Jackson

1991 (4) SA 23(Z);

1991 (4) SA 23

A A Mutual Insurance Association v Maqula

1978 (1) SA

805(A).

[11] Regarding the actuarial method of computation, Nicolas JA inSouthern Insurance Association v Bailey NO1984(1) SA 98 (A) at 116 G-117A, said:

[11] Regarding the actuarial method of computation, Nicolas JA in

Southern Insurance Association v Bailey NO

1984(1) SA 98 (A) at 116 G-117A

, said:

“Where the method of actuarial computation is adopted, it does not mean that the trial Judge is ‘tied down by inexorable actuarial calculations’. He has‘a large discretion to award what he considers right’ (perHOLMES JA inLegal Assurance Co Ltd v Botes1963 (1) SA 608(A) at 614F).One of the elements in exercising that discretion is the making of a discount for ‘contingencies’or the ‘vicissitudes of life’. These include such matters as the possibility that the plaintiff may in the result have less than a‘normal’expectation of life;and that he may experience periods of unemployment by reason of incapacity due to illness or accident, or to labour unrest or general economic conditions. The amount of any discount may vary, depending upon the circumstances of the case. SeeVan der Plaats v South African Mutual Fire and General Insurance Co Ltd1980 (3) SA 105(A) at 1145. The rate of the discount cannot of course be assessed on any logical basis: the assessment must be largely arbitrary and must depend upon the trial Judge’s impression of the case”

“Where the method of actuarial computation is adopted, it does not mean that the trial Judge is ‘tied down by inexorable actuarial calculations’. He has

‘

a large discretion to award what he considers right’ (

HOLMES JA in

Legal Assurance Co Ltd v Botes

1963 (1) SA 608(A) at 614F).

1963 (1) SA 608

One of the elements in exercising that discretion is the making of a discount for ‘

contingencies’

or the ‘

vicissitudes of life’

. These include such matters as the possibility that the plaintiff may in the result have less than a

‘normal’

expectation of life;

and that he may experience periods of unemployment by reason of incapacity due to illness or accident, or to labour unrest or general economic conditions. The amount of any discount may vary, depending upon the circumstances of the case. See

Van der Plaats v South African Mutual Fire and General Insurance Co Ltd

1980 (3) SA 105(A) at 114

5. The rate of the discount cannot of course be assessed on any logical basis: the assessment must be largely arbitrary and must depend upon the trial Judge’s impression of the case”

The learned Judge of Appeal elucidatedId at 117B-D:

The learned Judge of Appeal elucidated

Id at 117B-D

:

“It is, however, erroneous to regard the fortunes of life as being always adverse: they may be favourable. In dealing with the question of contingencies, WINDEYER J said in the Australian case ofBresatz vPrzibilla[1962] HCA 54;(1962) 36 ALJR 212(HCA) at (HCA) at 213:

“It is, however, erroneous to regard the fortunes of life as being always adverse: they may be favourable. In dealing with the question of contingencies, WINDEYER J said in the Australian case of

Bresatz v

Przibilla[1962] HCA 54;(1962) 36 ALJR 212(HCA) at (HCA) at 213:

[1962] HCA 54

(1962) 36 ALJR 212

‘It is a mistake to suppose that it necessarily involves a “scaling down”. What it involves depends, not on arithmetic, but on considering what the future may have held for the particular individual concerned … (The) generalization that there must be a “scaling down” for contingencies seems mistaken. All “contingencies” are not adverse: All “vicissitudes” are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad.’”

Testimonies of plaintiff’s witness

Advocate Gerhard Naude

[12] Adv Naude was called as an expert witness by the plaintiff since he was in a position to testify and express an opinion regarding the deceased’s practice as an advocate. He had daily contact with the deceased, whose chambers were opposite his chambers. They shared the same typist, Ms Suzy Swart. They had daily interaction

dur

in

g

which the deceased regularly discussed his matters.

Their

discussions related to advice sought by the deceased from Adv Naude, on appropriate fees to be charged, the problem of collection of fees and what went wrong when a matter was lost in court. It is apparent that they maintained a collegiate spirit

a hallmark of

practice

at the Bar.[13] Adv Naude was in a very good position to give an indication of how busy the deceased’s practice was. He testified that the deceased’s practice was a successful one since he would have three to four opposed matters

every week

in the High Court. The deceased’s typing account would exceed his. He opined that the practice of Adv Naude de Wet was comparable to that of the deceased since both of them were equally busy. The deceased had a broad base of support from many attorney

and not only those who speciali

ed in Family Law matters. The deceased was not afraid

appear in court and his fee structure made him popular

amongst

attorneys requiring counse

l to appear in Family Law case

s.

[14] Adv Naude testified that he was aware that the deceased had difficulties re

ga

ing payment of fees

by

attorneys. They

often

had discussions on this

whe

n payments were due. R

egarding th

e deceased’s financial position

, Adv Naude indicated that he was not aware of any serious difficult

ies

as such

. However, he was aware that the

financial

administration of the deceased’s practice pertaining to fees left much to be desired. He was of the opinion that the deceased’s finances would have recovered with some attention. Further, regarding an outstanding municipal account, Adv Naude stated that the deceased discussed this matter with him. Apparently deceased’s home was a cluster home in a development where individual properties did not receive monthly billings from the City Council. The substantial outstanding account received from the Council recorded a long period of municipal services. Adv Naude stated that the arrears were not as a result of deceased’s inability to pay, but rather the fact that utility bills were not sent out

on a monthly basis

by the Council.

[15] When Adv Naude was cross-examined on the deceased’s financial difficulties, he stated that he regarded them as a reflection of the deceased’s laid-back personality rather than an indication of his inability to earn a good living. His testimony is compelling

that the deceased’s financial statements did not record all of his earnings. The financial documentation available regarding the deceased’s earnings is a poor reflection of his income. Adv Naude confirmed that the deceased was paid by some attorneys, either in cash or by means of cheques that could be cashed. This evidence provides a factual basis for the evidence of the plaintiff’s experts, particularly that of the forensic auditor, Mr Jacot-Guillarmod.

Adv Naude was an honest

candid witness. There is no basis upon which his testimony can be rejected.

Advocate Naude de Wet

[16]

did

his

pupilage in New Court Chambers where the deceased practiced. He had been in practice for nine months when deceased died. He is a friend of the Oosthuizen family and studied at the

University

Stellenbosch

with the deceased’s sister. He is well acquainted with the deceased’s father and was a friend of the deceased. He had daily interaction with the deceased and he also used the same typist as the deceased and Adv Naude.

confirmed that the deceased

appeared on

three to four opposed days every week during term in the High Court. This compare

to his practice for the past two years. He indicated

however

that he is at present still a junior to the deceased since he has been at the Bar since 2002. His evidence

regarding

his practice compared to that of the deceased was not challenged in crossexamination. Neither were the figures provided by him to the defendants and their experts

the plaintiff’s attorneys

put in issue by the defendants

[17]

confirmed the evidence of Adv Naude that the deceased was charging an hour rate of R450,00 to R500,00 or R4 500,00 to R5 000,00 per day in court. However, the deceased complained that he was struggling to colle

ct his fees. He

warned

to be guarded and not to fall into the same

predicament

also confirmed that the dec

eased was generally briefed in Family L

aw cases. This compared to his urgent court practice

pertaining

to urgent matters in

F

amily

L

aw.

But t

here are differences in the nature of the practice of

and the deceased.

Since

does a fair volume of third party work

his practice is mainly a commercial one, however he still does

Fa

mily

La

w cases in the urgent court.

This does not detract

from the fact that

and the deceased had comparable practices.

[18]

’s testimony confirms that

the deceased had difficulties in recovering

fees owed to him

. This resulted in

him discounting o

utstanding

fees

The deceased

cautioned

him to avoid falling into a similar

trap

’s

evidence

that he was unaware of the deceased’s financial position in general

and in

spite of being a friend of the Oosthuizen family

did not

colou

in his testimony.

Even though at time he was emotional he

tendered his evidence frankly and without

being partial

. His evidence cannot be impeached as being unreliable so as to be rejected.

Ms Suzy Swart:

[19] Ms Swart is a freelance typist. She was well acquainted with the deceased. She typed for him for four years. She is also acquainted with Adv Naude and

since she also does typing for them. Ms Swart testified

that the deceased had a large F

aw practice but he was also engaged in other cases. According to her a large volume of his work comprised of opposed matters. She considered his practice

to be

busier than that of

. This is illustrated by

comparing

typing costs of both advocates: f

or 2002 and 2003 the

deceased’s typing costs were

to R34 532.00 and R23 343.00

, whilst

that of

’s typing expenses for 2004 and 2005 w

ere

R8 868.00 and R20 186.00.

This is surely an indicator that the deceased was busier than

[20] According to Ms Swart she did the accounts for the deceased. Once payments were received

by him

then he would

inform

her to delete t

hose matters from the

fee statements on

computer. She

also deposited cheques for him

but did not bank any cash he received. She was aware that the deceased was paid in cash or received cheques from attorneys which could be cashed by him. The cash and cash cheques received by deceased were substantial. Ms Swart testified that there were two matters for which the deceased has not yet been paid. In these matters he was junior counsel and which eventually proceeded to the

Supreme Court of Appeal and

Constitutional Court

Bannatyne v Bannatyne

2003

(2) SA 1

(SCA)[2002] ZACC 31; ;

[2002] ZACC 31

2003 (2) SA 363

(CC) and o

ne of them was argued by his father in the

, after his death

Fourie & Another v Minister of Home Affairs

2005 (3) SA 429(SCA).

2005 (3) SA 429

one

matter was about a dispute relating to maintenance and

the other

was

about

the ability of same sex partners to get married

Mrs Lize Marie Oosthuizen: the plaintiff

[21]

I now turn to the evidence of t

he plaintiff

testified that she was three months pregnant when her husband died in March 2003.

S

he was married

in community of property

to the deceased on 27 July 1996. Their daughter was born on 21 September 2003. They started a family after approximately

six

years of marriage. The deceased’s excitement at becoming a father is apparent from his own handwritten notes made at a religious camp approximately

two

weeks prior to his death. He recorded:

“

Om

Pa

te word. As ek egter nie sekere verandeinge in my lewe maak nie weet ek nie of ek die regte pa sal wees nie.”

[22] Both the plaintiff and her husband obtained theirLLBdegreein 1996. They were candidate attorneys at the same time but at different firms. According to the plaintiff their relationship was on a soundfootingbut, like any other marriage, it had its high and low points. One of the low points was when the deceased,aweek before he went on a religious camp, went toSun Citywith his sister. This was when the plaintiff was pregnant and suffering with laryngitis. She took apoorview ofher being left alone.The deceased was in the proverbial dogbox when he attended the religious camp. It is in the light of this that the plaintiff views his notation in its proper perspective that he wanted to improve his relationship with herwhen he noted: “Verhouding met vrou herstel.”However,the defendants’ junior counsel attempted to suggest that the plaintiff’s and her husband’s relationship was“bad”and may have ended in divorce, butthatsuggestion wasemphaticallyrefuted by the plaintiffaspurelyunfounded speculation.

[22] Both the plaintiff and her husband obtained the

ir

LLB

degree

in 1996. They were candidate attorneys at the same time but at different firms. According to the plaintiff their rel

ationship was on a sound

footing

but, like any other marriage, it had its high and low points. One of the low points was when the deceased,

a

week before he went on a religious camp, went to

Sun City

with his sister. This was when the plaintiff was pregnant and suffering with laryngitis. She took a

poor

view of

her being left alone.

The deceased was in the proverbial dog

box when he attended the religious camp. It is in the light of this that the plaintiff views his notation in its proper perspective that he wanted to impro

ve his relationship with her

when he noted: “

Verhouding met vrou herstel.”

However,

the defendants’ junior counsel attempted to suggest that the plaintiff’s and her husband’s relationship was

bad

”

and may have ended in divorce, but

that

suggestion was

emphatically

refuted by the plaintiff

purely

unfounded speculation.

[23] The plaintiff testified that the deceased worked long hours. He was usually in court during the day and he worked at the office in the evenings. Her evidence is confirmed by his typist

Ms Swart.

[24] During cross-examination the couple’s financial difficulties w

raised by the defendants. The plaintiff testified that she was aware of arrears in their bond repayments in 1999 which resulted in the renegotiation of their mortgage repayments. She confirmed the documentation contained in the bundle reflecting the change. She was

unaware that the deceased had fallen into arrears subsequently. According to her the payment of the bond was his responsibility and he assured her that everything was under control. She was

therefore

unaware of the

financial p

redicament

until after his death. She only became aware

that a

judgment had been taken on their bond

after

completion of the merits

in this matter during 2005.

[25] The plaintiff testified tha

t

the deceased would have remained at the Bar for life. However, he would have considered any attractive offers in the private sector which may have been made to him.

She

also testified that she has no intention of remarrying since her daughter is her most important concern and between her career as an attorney and caring for her daughter all her available time is taken up. The prospect

of establishing

a new relationship are

rather remote.

[26] The plaintiff further testified that they had waited until they were financially established before starting a family. She would have preferredto stay at homeraising her children until theycommenced attending school and only thereafter she would have resumed her professional career. Under cross-examination she conceded that her husband’s financial positionas it emergedwould not have allowedhertostay at home.

[26] The plaintiff further testified that they had waited until they were financially established before starting a family. She would have preferred

to stay at home

raising her children until they

commenc

ed attending school and only thereafter she would have resumed her professional career. Under cross-examination she conceded that her husband’s financial position

as it emerged

would not have allowed

her

stay at home

[27] The plaintiff is the executor of the deceased’s estate. She confirmed the amounts received by her and by the attorneys administering the estate’s bank account

totaling

to approximately R85 000.00. This include

an amount of approximately R20 000.00 paid directly to her

the attorneys concerned. These payments were made to her prior to her appointment as

executor and before there was an estate’s bank account.

Ms Barbara Donaldson: Industrial Psychologist:

[28] Ms Donaldson is a seasoned expert witness and this matter repr

esents her 103rd appearance in

c

ourt. She became involved as industrial psychologist in this matter after the demise of Mr David Lewis in 2005. The defendants accepted that Mr Lewis’ report is properly before this

ourt. Mr Lewis’ opinion regarding the deceased’s future career path for purposes of quantification postulates two possibilities. The first relates to a career at the Bar culminating in a career as senior counsel, much like his father. According to Mr Lewis’ report since

the deceased’s

recordal

of his income was not up to date,

hence

it was suggested that the income of a colleague who was of similar experience and had a similar level of practice could be utilised to compare with that of the deceased to determine what his earning parameters could have been. In this regard Mr Lewis consulted with

Adv.

Naude de Wet. However, he also considered an alternative career path, that is in the private sector as an employee at

Paterson

level 6 initially as a legal officer. For someone over six years’ experience, like the deceased, the possibility of a career as legal services manager at

level 5

ould

also

be considered.

[29] Ms Donaldson testified regarding to the earning capacity of the deceased in the private sector. Although she did not purport to be an expert on the earnings of advocates, but

as a minimum

remuneration at

level D2 would be considered as a legal officer with a career peak at

level D4 of being a legal services manager. The parameters of earnings for these positions are that a legal officer with more than five years experience

qualifying would earn, in the

Pretoria

area at least, a basic

monthly

salary of plus

-

minus R18 400.00 to R26 800.00. The actual cost of employment per annum would be plus

minus R370 000.00

R568 000.00. A legal services manager with more than six years experience since qualifying would earn a basic monthly salary of plus

minus R26 400.00 to R38 300.00. The actual cost of employment per annum would be R511

000.00 to R748 000.00.

[30] Ms Donaldson was cross-examined regarding the deceased’s financial difficulties, for example the bond foreclosure, his arrears in respect of a municipal account, deregistration for VAT

etc

. She testified that, in her expert opinion, these difficulties reinforce the basis for

an alternative

career scenario in the private sector. Had she been made aware of those financial issues and had she been a

counselling

psychologist advising the deceased, she would have utilised those considerations to forcefully advance a private sector career scenario

for him

.[31] Ms Donaldson was also cross-examined on the issue of affirmative action. It was put to her by the defendants’

lead

counsel, Mr Khumalo SC

that the deceased would

“coast along”

at the Bar because in the private sector he did not stand a chance. She strongly disagreed.

I

n her opinion, the reverse was true. She did not accept the suggestion that the deceased was a marginalised practitioner at the Bar. However, regarding a career in the private sector, and particularly in the context of affirmative action, Ms Donaldson testified that it is now 12 years

since the inception of

democracy

and i

n her experience she has found that at the higher echelons of employment a brain drain has taken place and there is a need to retain skills at that level. She

opined that

the deceased would have been a very good

candid for

placement in a technical legal field and he was well equipped for the private sector.

The defendants’ counsel did not argue that Mrs Donaldson’s expert testimony should be rejected. In my view she was an impressive witness and tendered

opinion evidence

professionally.

Mr Eugene Jacot-Guillarmod: Forensic Auditor

[32] Mr Jacot-Guillarmod scrutinized the deceased’s financial records. He concluded thatthe deceased’sfinancial information was unreliable. Therefore,it was inadequate to determine exactly what the deceased’s income was. In this regard,the deceased made no contribution to his financial statements for theprevioustwo years since he had already passed away when these were compiled. The available evidence indicated that there were cash payments not reflected in his bank accounts. Mr JacotGuillarmod was of the opinion that for purposes of establishing deceased’s earning capacity it wassimplyinadequate to rely on a cash receipt basis. Unfortunately all the tax information and statements werenotdrafted on a cash receipt basis. There was further available evidence that indicated that for certain matters the deceased had not included total fees billed to the attorneys for work completed during the period 2001 to 2003. For that very reason the available information was not a reliable source for projectingor determininghis earning capacity.

[32] Mr Jacot-Guillarmod scrutinized the deceased’s financial records. He concluded that

financial information was unreliable

. T

herefore

it was inadequate to determine exactly what the deceased’s income was. In this regard

the deceased made no contribution to his financial statements for the

previous

two years since he had already passed away when these were compiled. The available evidence indicated that there were cash payments not reflected in his bank accounts. Mr JacotGuillarmod was of the opinion that for purposes of establishing deceased’s earning capacity it was

simply

inadequate to rely on a cash receipt basis. Unfortunately all the tax information and statements were

not

drafted on a cash receipt basis. There was further available evidence that indicated that for certain matters the deceased had not included total fees billed to the attorneys for work completed during the period 2001 to 2003. For that very reason the available information was not a reliable source for projecting

or determining

his earning capacity.

[33] Mr Jacot-Guillarmod confirmed that he consulted Adv Naude de Wet who informed him that he knew the deceased and his practice and regarded his own practice a reasonable basis for comparison with that of the deceased.

Who also informed him

that for the past tw

o years he, Adv de Wet had

been as busy as the deceased

. The latter

was at the time of his death was in the opposed

motion

court for three to four days per week. Consequently, Mr JacotGuillarmod examined the financial information from

Adv

Naude de Wet and his practice and assessed a net income for the 2005 tax year for the deceased at R515 000.00. He indicated that he has knowledge of the exponential growth in income which advocates experience since he has had

counsel

as clients when he was a practicing auditor. Further, this expert witness was of the opinion that since deceased’s net income is based on historical net income, a contingency could possibly be applied against the net income in computing the claim

. Thus, he suggested that based on his approach,

that having regard to

assumptions and reasons

thereof

, the actuary should be directed to calculate the claims for loss of support.[34] Under cross-examination the defendants’ senior counsel attacked the basis for comparison

Mr Jacot-Guillarmod. However, the factual

basis for the comparison of Mr D

e Wet’s practice with that of the deceased was left unchallenged during the cross-examination of

both

Adv Naude and

. It was not suggested that either Adv Naude or

had erred in testifying that the latter counsel’s practice was comparable to that of the deceased or that they were not equally busy. The

plaintiff’s counsel submitted that the

factual evidence pertaining to the comparison between the practices should be accepted. If that is so, then the reluctance

on the part of the defendant’s expert,

Mr Tonge to use it as a basis

apparently becomes

irrelevant

, Since any

adjustments to the figures attributed to the deceased could be dealt with by an appropriate contingency.

This will become clear later in this judgment.

[35] Pursuant to discussions between Mr Jacot-Guillarmod and the defendants’ expert, Mr Tonge, the former expert testified that Mr Tonge was of the opinion that the figures given to Mr Jacot-Guillarmod were unsubstantiated. This refers to the comparative earnings of

. Mr Jacot-Guillarmod, however,

indicated

that the

ourt ha

s heard the

evidence of

, Adv Naude and Ms S

wart regarding the comparison in the practice of the deceased and Adv de Wet.

[36] It was put

cross-examination to Mr Jacot-Guillarmod that he was not comparing like for like since

was at a different level of experience

, suggesting at

a lower level

compared to that of the deceased whilst their earnings differed. Mr Jacot-Guillarmod stated that although the two advocates were at different levels of experience

, that is regarding

seniority

that did not mean that they were not equally busy

and f

or purposes of his comparison it did not matter at what level the two advocates were. It was further put to Mr Jacot-Guillarmod that he

ould have used the financial information from any advocate given to him. He emphatically denied this

proposition

and responded that he used information provided to him where he was informed that there was a basis for comparison of the two practices. Since he had no reason to doubt the basis for comparison the information could be utilised.[37] Mr Jacot-Guillarmod also testified that, absent any comparable practice, that is where only the deceased’s information was available, one would have to make certain assumptions in calculating his earning capacity. This included assumptions regarding how much of his earnings were represented by cash and cheques which could be cashed. The available financial information would therefore have to be increased by these considerations but the extent of the increase is uncertain. For that reason he

was of the opinion

that Mr Tonge’s approach was

an acceptable

basis for the determination of quantum.

Evidence of defendants’ witnesses

Mr Colm Tonge:

A

uditor

[38] Mr Tonge testified that the principal difference between his approach and that of Mr Jacot-Guillarmod in quantifying the claim was that he is of the opinion that the starting point would have to be the available financial information of the deceased despite any shortcomings in such information. His opinion is that Mr Jacot-Guillarmod is not correct in discarding the available financial information of the deceased as unreliable and usingAdv de Wet’s practice for purposes of comparison. Mr Tonge stated in his report that the purpose of his investigation was to analyse the data and records to extract relevant information. According to him there was no evidence at all of cash receipts in the deceased’s practice since he had no proof of how much cash was received and, therefore,he did not include it in his report.

[38] Mr Tonge testified that the principal difference between his approach and that of Mr Jacot-Guillarmod in quantifying the claim was that he is of the opinion that the starting point would have to be the available financial information of the deceased despite any shortcomings in such information. His opinion is that Mr Jacot-Guillarmod is not correct in discarding the available financial information of the deceased as unreliable and using

’s practice for purposes of comparison. Mr Tonge stated in his report that the purpose of his investigation was to analyse the data and records to extract relevant information. According to him there was no evidence at all of cash receipts in the deceased’s practice since he had no proof of how much cash was received and, therefore

he did not include it in his report.

[39]Mr Tongealsotestified that he regarded thedocumentation as evidence buthe did not make any allowance for theviva vocetestimonies of Adv Naude,Adv de Wetand Ms Swart.Under cross-examination Mr Tonge stated that he would accept a figure reflectinganincome for the deceased’s final year of practice between R237 000.00 and R293 000.00. But, he conceded that his assistance was limited toavailabledocumentation. He commented regarding the oral evidence of the plaintiff’s three witnesses and he did not regard theirviva voceevidence as corroborating evidence, but preferred to rely on the available documentation.He was of the opinion that the basis for comparing the practice of the deceased with that ofAdv de Wetwas not established. According to him the fact that two practices were equally busy is too vague,butMr Tonge conceded that the deceased was a busy practitioner since this is apparent from the typing costs reflected in the schedule, andthereforethe deceased appeared to have been busier in 2002 than in2003.

[39]

Mr Tonge

testified that he regarded the

documentation as evidence but

he did not make any allowance for the

viva voce

testimonies of Adv Naude,

and Ms Swart.

Under cross-examination Mr Tonge stated that he would accept a figure reflecting

an

income for the deceased’s final year of practice between R237 000.00 and R293 000

00. But, he conceded that his assistance was limited to

available

documentation. He commented regarding the oral evidence of the plaintiff’s three witnesses and he did not regard their

evidence as corroborating evidence, but preferred to rely on the available documentation.

H

e was of the opinion that the basis for comparing the practice of the deceased with that of

was not established. According to him the fact that two practices were equally busy is too vague

but

Mr Tonge conceded that the deceased was a busy practitioner since this is apparent from the typing costs reflected in the schedule, and

the deceased appeared to have been busier in 2002 than in

2003.

[40] Mr Tonge ac

knowledged

ourt would be free to increase his figures due to cash receipts not reflected in the deceased’s books of account.

But, h

e was

not prepared to include cash in his calculation since he could not determine the extent of cash receipts from the available documentation.

Furthermore, Mr Tonge agreed that his suggested figures would further have to be increased for matters for which the deceased had not yet billed the attorneys.

Dr Harmse:

Industrial Psychologist

[41] Dr Harmse is the defendants’ industrial psychologist. Thispresent matter was the maidenexcursionof his forensic career in the High Court. He acknowledged that thisCourt could determine the deceased’s earning capacity on the basesofa career at the Pretoria Bar based on the information contained in Mr Lewis’ report. The secondscenario by determiningthe deceased’spotentialearning capacity in a corporate sector as a legal officer and/or legal services manager. Dr Harmse accepted the informationcontainedin Mr Lewis’ report. He did not contest the figures regarding the earning capacity of the deceased in the private sector as postulated in Barbara Donaldson’s reportand her expert evidence.orthe comparative earnings ofAdv de Wet.and the deceased.[42] When testifying Dr Harmse chose the worst case scenario for the deceased by adhering to inadequate financial information and using such inadequate information as a basis for projecting the deceased’s career and earnings. But, under cross-examination Dr Harmse accepted that certain positive contingencies needed to be applied to Mr Tonge’s figuresrelating to earnings for 2003,thus, anamount in the range of R237 000.00 to R293 000.00. Thepositive contingencieswouldthenincrease thefiguresof MrTonge. Thesewerecash receipts and chequesthatcould be cashed, but not reflected in the deceased’s books of accountas well as the outstanding debt paid directly to the plaintiff in the amount of R20 000.00 outstanding debtthatbecame payable or which may be recovered in future.Further, regardingtheBannantyneand theFourieBontleysmattersthe fee noteshad not yet been prepared as well as other matters where the deceased had rendered services but had not yetsubmitted bills for his fees. Dr Harmse conceded that, once these positive contingencies were added to the earnings suggested by Mr Tonge, the deceased’s earnings would, without much difficulty, be placed within the band of a legal officer’searnings between R370 000.00 to R568 000.00 per annum andofa legal services manager’sincome ofplus-minus R511 000.00 to R748 000.00. Dr Harmse testified that the deceased should have earned a better income than that of a legalofficer. He conceded that the Courtcould placethe deceased’s earning capacity in the higher regions of the suggested parameters of R370 000.00 to R568 000.00.

[4

1

] Dr Harmse is the defendants’ industrial psychologist. Th

present matter was the maiden

excursion

of his forensic career in the High Court. He acknowledged that this

ourt could determine the deceased’s earning capacity on the bases

a career at the Pretoria Bar based on the information contained in Mr Lewis’ report. The second

scenario by determining

potential

earning capacity in a corporate s

ecto

r as a legal officer and/or legal services manager. Dr Harmse accepted the information

contained

in Mr Lewis’ report. He did not contest the figures regarding the earning capacity of the deceased in the private sector as postulated in Barbara Donaldson’s report

and her expert evidence

or

the comparative earnings of

2

] When testifying Dr Harmse chose the worst case scenario for the deceased by adhering to inadequate financial information and using such inadequate information as a basis for projecting the deceased’s career and earnings. But, under cross-examination Dr Harmse accepted that certain positive contingencies needed to be applied to Mr Tonge’s figure

relating to earnings for 2003,

thus, an

amount in the range of R237 000.00 to R293 000.00. The

positive contingencies

would

then

increase th

e

figure

of Mr

Tonge. These

were

cash receipts and cheques

could be cashed, but not reflected in the deceased’s books of account

as well as t

he outstanding debt paid directly to the plaintiff in the amount of R20 000.00 outstanding debt

bec

me payable or which may be recovered in future.

Further, regarding

Ba

nn

ant

ne

and the

FourieBontleys

matters

the fee notes

had not yet been prepared as well as other matters where the deceased had rendered services but had not yet

submitt

ed bill

s for his fees

. Dr Harmse conceded that, once these positive contingencies were added to the earnings suggested by Mr Tonge, the deceased’s earnings would, without much difficulty, be placed within the band of a legal officer

earnings between R370 000.00 to R568 000.00 per annum and

a legal services manager’s

income of

plus

minus R511 000.00 to R748 000.00. Dr Harmse testified that the deceased should have earned a better income than that of a legal

officer. He conceded that the C

ourt

could place

the deceased’s earning capacity in the higher regions of the suggested parameters of R370 000.00 to R568 000.00.

Analysis of evidence

3

] Without any factual

basis

it was put to

that since he is a friend of the

deceased’

family it

casts doubt on his objectivity

but what is crucial

is that

, he was not challenged on the

comparison between his practice and that of the deceased and the figures reflecting his income were also not challenged. Even the defendants’ expert witness Mr Tonge did not question the figures.

’s testimony was that his practice for the last two years was comparable to that of the deceased i

n that they were equally busy

ce

they had three to four opposed matters per week. The basis of comparison was confirmed by

Naude, Adv

de Wet and Ms Swart

The comparison

forms a fundamental part of the expert evidence of Mr JacotGuillarmod.

The de

fendants’

counsel was

at pains in an attempt

to attack the basis of comparison between the practices of the deceased and

Adv de Wet. B

ut

during the cross-examination of Mr JacotGuillarmod

it became apparent that such attack was

rather

belated since it was left unchallenged when

was crossexamined. It

i

s common cause that the deceased had difficulties in recovering fees

which

he debited. Consequently

he invariably discounted outstanding fees owed to him.

This, although contrary to Bar rules, it is indeed one of the

hazards often faced by junior advocates who would rather discount their fees than p

lace

an attorney an the defaulter’s list.

4

] It was not suggested that either Adv Naude or

had erred in testifying that the latter counsel’s practice was comparable to that of the deceased or that they were not equally busy. The factual evidence pertaining to the comparison between the

practices was uncontroverted. Under the circumstances, there was reluctance on the part of Mr Tonge to use it as a basis. That is certainly irrelevant and any adjustments to the figures attributed to the deceased could be

determined

by means an appropriate contingency.

[45]Adv de Wet’s financial information is not contentious and its correctness was accepted by both Mr JacotGuillarmod and Mr Tonge. The issue is whether the comparison is appropriate or not. Mr JacotGuillarmod did not accept the correctness of the defendants’ assertion that there was no comparison in the earning capacitiesofthedeceased andthat ofAdv de Wetin spitethe accuracy ofAdv de Wet’s financial information compared to the inaccuracy of the deceased’s financial information.Mr JacotGuillarmod clarified that eventhough there was no comparison oftheir respective financial statements, but regarding the basis for comparing their practices, he accepted the information given to himandthis information also confirmed by the plaintiff’s witnesses. The comparison is between the last two years ofAdv de Wet’s practice compared to the practice of the deceased at the time when he died in 2003. Mr JacotGuillarmod’sexpert testimonycertainlymakes sense ifit isconsideredthat the earnings arising from junior practices thatare equally busy are more comparable than advocates with equal seniority.Equalityin seniority does not determine the basis for comparison of practices. Itmayprovide a basis for comparable hourly tariffs andfees, but that is where the comparison would end.

5

]

’s financial information is not contentious and its correctness was accepted by both Mr JacotGuillarmod and Mr Tonge. The issue is whether the comparison is appropriate or not. Mr JacotGuillarmod did not accept the correctness of the defendants’ assertion that there was no comparison in the earning capacit

deceased and

in spite

he accuracy of

’s financial information compared to the inaccuracy of the deceased’s financial information

Mr JacotGuillarmod clarified that even

though there was no comparison of

their respective financial statements, but regarding the basis for comparing their practices, he accepted the information given to him

this information also confirmed by the plaintiff’s witnesses. The comparison is between the last two years of

’s practice compared to the practice of the deceased at the time when he died in 2003. Mr JacotGuillarmod

expert testimony

certainly

makes sense if

it is

considered

that the earnings ari

sing from junior practices that

are equally busy are more comparable than advocates with equal seniorit

y.

E

quality

in seniority does not determine the basis for comparison of practices. It

may

provide a basis for co

mparable hourly tariffs and

fees, but that is where the comparison would end.

[46] Mr Tonge concededthat the Court was free to increase his figures because of the cash receipts that were not reflected in the deceased’s books of account. But, he was, however,intransigentnot to include cash in his calculation since he could not determine the extent of cash receipts from the available documentation.Hecertainlyadopted a rather technical approach. Hewas of the opinion that the basis for comparing the practice of the deceased with that ofAdv de Wetwas not established.This opinion certainly goes against the grainof the evidence tendered by the plaintiff’s witnesses.According to him the fact thatthetwo practices were equally busy is too vague.Thisopinionlacks substance.[47] There is cogent evidence that the deceased was a busy practitioneras testified by Advocates Naude and de Wet. This isalsoborne out by his typing costs and the evidence of Suzy Swart. Thus, a fair and reasonable inference is that he was busier in the motion court thanAdv de Wet. Thismuch was conceded by Mr Tongebuthepersistedthat the deceasedappearedto have been busier in 2002 than in 2003. Further, Mr Tongeneither in hisreport norinhis evidence providedany information regarding the deceased’s lifestylesince hemade noenquiriesin thisregard.Hisreport does not provide for the substantial increases that the deceased would havehadin fees.[48]Dr Harmse’sconcessionmakesit unnecessary for thisCourt to speculate on the deceased’s earnings based on the defendants’ approach of adhering to the deceased’s unreliable financial information. The Court takescomfort from the fact that the earning potential of the deceased, even at the Bar, would be comparable to the earnings parametersin the private sectorin Barbara Donaldson’s report. These earnings parameters support the approach of Mr JacotGuillarmod of utilising a figure of R515 000,00 as the deceased’s earnings for 2005, based on the comparison with the earnings of Adv de Wet. Dr Harmse did not impress the Court as a reliable witness. Hetestifiedabout the deceased’s consumption ofalcohol whichwasneither establishednor relied on by the defendants.The distinct impressionisthat he wanted toportraythepoorest possible picture of the deceased’s future. This detracts fromhis reliability as a witness.His unsubstantiatedopinionwasthat the deceased did not have a lucrative legal practice and,therefore,he did not havefuture. Thisopinionis rejected.[49]Ms Donaldson was subjected torigorouscross-examination byMr Khumalo. Counsel contended that the plaintiff had told Ms Donaldson “bald faced” lies regarding their financial position, but thiswas never raised with the plaintiff when she testified regarding her lack of knowledge of the financial difficulties which befell the deceased after 1999/2000. Therefore, there is no basis for questioning the plaintiff’s credibility.[50]Assuming for present purposes thatthe deceased could not affordto have remained at the Bar, despite his love for the Bar, then he might have been forced by financial circumstances and economic considerations to venture a career in the private sphere. This possibility existed since he was refocusing his life to provide stability for hisfamily. This, on the evidence before theCourt, was a possibility. In this regard, what is crucial is Ms Donaldson’s evidence. It provided earning scenarios of a legal officer and legal services manager in the private sector. The earning parameters compare well with the plaintiff’s income at the Bar. This is so whether Adv de Wet’s income isused as a basis for comparison or whether one uses the deceased’s income figures together with certain fundamental assumption, such as receiving cash and negotiating cash cheques, as positive contingencies.

6

] Mr Tonge conceded

that the C

ourt was free to increase his figures because of the cash receipts that were not reflected in the deceased’s books of account. But, he was, however,

intransigent

not to include cash in his calculation since he could not determine the extent of cash receipts from the available documentation.

He

adopted a rather technical approach. He

was of the opinion that the basis for comparing the practice of the deceased with that of

was not established.

This opinion certainly goes against the grai

n

of the evidence tendered by the plaintiff’s witnesses.

According to him the fact that

two practices were equally busy is too vague.

This

opinion

lacks substance

.[4

7

] T

here is cogent evidence that t

he deceased was a busy practitioner

as testified by Advocates Naude and de Wet

. This is

borne out by his typing costs and the evidence of Suzy Swart. Thus, a fair and reasonable inference is that he was busier in the motion court than

. This

much was conceded by Mr Tonge

he

persisted

that the deceased

appeared

to have been busier in 2002 than in 2003. Further, Mr Tonge

neither in his

report nor

his evidence provide

any information regarding the deceased’s lifestyle

sinc

e he

made no

enquiries

in this

regard.

report does not provide for the substantial increases that the deceased would have

had

in fees.[4

8

Dr Harmse

conce

ssion

make

it unnecessary for th

Court to speculate on the deceased’s earnings based on the defendants’ approach of adhering to the deceased’s unreliable financial information. The Court take

comfort from the fact that the earning potential of the deceased, even at the Bar, would be comparable to the earnings parameters

in the private sector

in Barbara Donaldson’s report. These earnings parameters support the approach of Mr Jacot

Guillarmod of utilising a figure of R515 000,00 as the deceased’s earnings for 200

, based on the comparison with the earnings of Adv de Wet. Dr Harmse did not impress the Court as a reliable witness

. He

testified

about the deceased’s consumption of

alcohol which

neither established

or relied on by the defendants.

T

he distinct impression

that he w

ed to

portray

poore

st possible picture of the deceased

’s future. This detracts from

his reliability as a witness.

His unsubstantiated

that the deceased did not have a lucrative legal practice and

he did not have

future

is rejected

[49]

Ms Donaldson was subjected to

rigorous

cross-examination by

Mr Khumalo

. Counsel contended that the plaintiff had told Ms Donaldson “

bald faced

” lies regarding their financia

l position, but this

was never raised with the plaintiff when she testified regarding her lack of knowledge of the financial difficulties which befell the deceased after 1999/2000. Therefore, there is no basis for questioning the plaintiff’s credibility.[50]

Assuming for present purposes that

the deceased could not afford

to have remained at the Bar, despite his love for the Bar, then he might have been forced by financial circumstances and economic considerations to venture a career in the private sphere. This possibility existed since he was refocusing his life to provide stability for his

family. T

his, on the evidence before the

Court, was a possib

ility

. In this regard, what is crucial is Ms Donaldson’s evidence. It provided earning scenarios of a legal officer and legal services manager in the private sector. The earning parameters compare well with the plaintiff’s income at the Bar. This is so whether Adv de Wet’s income is

used as a basis for comparison or whether one uses the deceased’s income figures together with certain fundamental assumption, such as receiving cash and negotiating cash cheques, as positive contingenc

[

51]

Thus, on the basis of the evidence tendered on behalf of the plaintiff, there are two possibilities regarding

earning capacity. The deceased, as a practicing advocate, would have remained at the Bar for life and would have retired at the age of 70. His earning

in 200

would have been R515 000,00 and that would have escalated on the basis of certain actuarial assumptions. However, assuming that the deceased had to

by force of circumstances to

depart from the Bar, with six years legal experience

as counsel

, for the private sector and being engaged as a legal services manager

, then h

e would have

earned

around R500 000.00 or more

per annum

which would have increased in line with the Consumer Price In

dex and effects of inflation. However, th

ere is compelling evidence that the deceased would have remained at the Bar and advanced his career.

An advocate’s work primarily composes of court appearances and chamber work. Generally an advocate’s income is a function of hours worked and rate of fees charged.

o earn a

greater

income an advocate usually works longer hour

or increase the rate at which

h

e/she charges for professional services. There is clear evidence that the deceased was a dedicated counsel. He worked long hours and charged fees at the rate of his standing an

seniority even though he had to compromise by discounting

fees that he debited. Undoubtedly he was a busy practitioner who unfortunately did not keep meticulous financial records.

The undisputed fact is that he was beginning to enhance his career in the area of constitutional Family Law.

The evidence shows that the deceased was at the threshold of an enhanced career prospect.

Towards assessment of compensation

Deceased’s income

[52] Both parties are

in agreement

that the deceased would have remained at the Bar as an advocate until the age of 70. The defendants submitted that the deceased earned a nett income of R96 302.00 for the financial year ending February 2003 and it would have increased at the rate of 20% per annum for the next four years and thereafter at the rate of 7% per annum until he re

ached retirement age of 70.

[53] On the evidence before the Court the earnings of Adv de Wet was accepted as correct. They form the basis of Mr JacotGuillarmod’s calculation. The deceased’snettearnings based on a comparison with that of Adv de Wet’s earningswould have been R515 000.00 in 2005and would thereafter escalated on the assumption made by the actuary, Mr Jacobson. Having regard to “positive contingencies” that the deceased received cash payments as well as cash cheques from attorneys which he cashed; he had R282 633.80 outstanding debtors and a busier practice than Adv de Wet. Thus, hisnettearnings for 2005would have been R515000.00. This would have escalated on the assumption made in the actuarial report of 19 April 2005.Plaintiff’s earnings[54] The plaintiff is a director in the legal firm of Brugmans. It is undisputed that her annual earnings are R242 403.00.She is a professional person and would haveleft her practicefor a period of approximately two years to devote time to her family. Thereafter she would have returned to her employment, earnings the equivalent of R242 403 per annum, in tax year 2005 money terms.She would progressively advance her career as an attorney and retire at the age of 60.The child[55] The deceased’s daughter wouldhave beendependenton himuntil the completion of he tertiary education,that is notionally until 31 December following age 22.A contingency of 7.5% should be applied to the plaintiff widow’s past loss of support. This is an increased contingency based on the deceased’s financial difficulties during the period prior to his death.Second child[56] The defendants’ counsel submitted that provision should be made for a second child. The plaintiff’s evidence was that she would put it no higher than a 50% prospect,had her husband not died,of another child.Thus, an allowance should be made for a 50% chance of an additional child.Prospects of divorce[57] Counsel for the defendant submitted that a contingency of 10% should be applied regarding the possibility of divorce. There was no evidence regarding this aspectexcept for the deceased’s notation “herstel verhouding met vrou”. When thisstatement isconsideredin its proper context,as testified by the plaintiff,then itis not possible to draw an inferencethat there was a breach in the marriage relationship between the plaintiff andthe deceased.Assessment of damages for loss of support are by necessity imprecise since they have to predictive about notoriously unpredictable human affairs, therefore, in my view the prospects of divorce is too speculative.Plaintiff’s remarriage prospects[59] The defendants’ counsel proposed that a contingency of 60% should be applied in respect of the plaintiff’s prospects of remarriage. The defendants’ actuary applied for 40% whilst the plaintiff’s actuary applied 20%.Theplaintiff’s counsel submitted that a remarriage contingency of 15% to 20% is appropriate.[60] Mr Labuschagne SC submitted that such deductions is really offensive in this day and age because it tantamounts toacattle paradeMore appropriately Zelly J inPublic Trustees v Paniens1971) 1 SASR 297at 300 indicated that it is “treating women like to be appraised.”and it is essentially unconstitutional since it offends the equality provisionsin the Constitution.[61]Universally the history of women before the law has been a narrative of gender discrimination by perpetuating a persistent stereotyping of women’s place in society. In the sphere of delictual law the remarriage discount has been extensively criticised. Its contemporary significance was challenged in the High Court of Australia inDe Sales v Ingselli[2002] HCA 52(14 November 2002)on the grounds that an assessment of the prospects of remarriage: (1) is speculative and difficult to evaluate; (2) reflects a disparity in approaches by judges; (3) is distasteful and demeaning; (4) has been legislatively abolished in other jurisdictions; and (5) is doctrinally unsound. Thus, Kirby J said:

[53] On the evidence before the Court the earnings of Adv de Wet was accepted as correct. They form the basis of Mr JacotGuillarmod’s calculation. The deceased’s

nett

earnings based on a comparison with that of Adv de Wet’s earnings

would have been R515 000.00 in 200

and would thereafter escalated on the assumption made by the actuary, Mr Jacobson. Having regard to “positive contingencies” that the deceased received cash payments as well as cash cheques from attorneys which he cashed; he had R282 633.80 outstanding debtors and a busier practice than Adv de Wet. Thus, his

earnings for 200

would have been R5

15

000.00. This would have escalated on the assumption made in the actuarial report of 19 April 2005.

Plaintiff’s earnings

[54] The plaintiff is a director in the legal firm of Brugmans. It is undisputed that her annual earnings are R242 403.00.

She is a professional pe

rson and would have

left her practice

for a period of approximately two years to devote time to her family. Thereafter she would have returned to her employment, earnings the equivalent of R242 403 per annum, in tax year 2005 money terms.

She would progressively advance her career as an attorney and retire at the age of 60.

The child

[55] The deceased’s daughter would

have been

dependent

on him

until the completion of he tertiary education

that is notionally until 31 December following age 22.

A contingency of 7.5% should be applied to the plaintiff widow’s past loss of support. This is an increased contingency based on the deceased’s financial difficulties during the period prior to his death.

Second child

[56] The defendants’ counsel submitted that provision should be made for a second child. The plaintiff’s evidence was that she would put it no higher than a 50% prospect

had her husband not died

of another child.

Thus, an allowance should be made for a 50% chance of an additional child.

Prospects of divorce

[57] Counsel for the defendant submitted that a contingency of 10% should be applied regarding the possibility of divorce. There was no evidence regarding th

is aspect

except for the deceased’s notation “

herstel verhouding met vrou

”. When this

statement is

in its proper context

as testified by the plaintiff

then it

is not possible to draw an inference

that there was a breach in the marriage relationship between the plaintiff and

he deceased.

Assessment of damages for loss of support are by necessity imprecise since they have to predictive about notoriously unpredictable human affairs, therefore, in my view the prospects of divorce is too speculative.

Plaintiff’s remarriage prospects

[5

9

] The defendants’ counsel proposed that a contingency of 60% should be applied in respect of the plaintiff’s prospects of remarriage. The defendants’ actuary applied for 40% whilst the plaintiff’s actuary applied 20%.

plaintiff’s counsel submitted that a remarriage contingency of 15% to 20% is appropriate.[

60

] Mr Labuschagne SC submitted that such deductions is really offensive in this day and age because it tantamounts to

cattle parade

More appropriately Zelly J in

Public Trustees v Paniens

1971) 1 SASR 297at 300 indicated that it is “treating women like to be appraised.”

1971) 1 SASR 297

and it is essentially unconstitutional since it offends the equality provision

in the Constitution.[6

Universally the history of women before the law has been a narrative of gender discrimination by perpetuating a persistent stereotyping of women’s place in society. In the sphere of delictual law the remarriage discount has been e

x

tensively critici

. Its contemporary significance was challenged in the High Court of Australia in

De Sales v Ingselli

[2002] HCA 52(14 November 2002)

[2002] HCA 52

on the grounds that an assessment of the prospects of remarriage: (1) is speculative and difficult to evaluate; (2) reflects a disparity in approaches by judges; (3) is distasteful and demeaning; (4) has been legislatively abolished in other jurisdictions; and (5) is doctrinally unsound. Thus, Kirby J said:

“Our law has moved a long way since Blackstone asserted: “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything”.Yet reading the cases on the so-called “remarriage discount”, one cannot escape the conclusion that they reveal a “distinctly male perspective”. When this conclusion is reached, it is essential that this Court should re-examine the assumptions that underlie previous expositions of the law and, if so warranted, re-express that law in a way that is more harmonious with contemporary legalprincipleand social reality.”

“Our law has moved a long way since Blackstone asserted: “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything”

Yet reading the cases on the so-called “remarriage discount”, one cannot escape the conclusion that they reveal a “distinctly male perspective”. When this conclusion is reached, it is essential that this Court should re-examine the assumptions that underlie previous expositions of the law and, if so warranted, re-express that law in a way that is more harmonious with contemporary legal

principle

and social reality.”

[62]Further,criticism of the method of assessment appears inBuckley v John Allen & Food (Oxford) Ltd[1967] 2 QB 637at 645where Phillimore J said:

[6

Further

criticism of the method of assessment appears in

Buckley v John Allen & Food (

Oxford

) Ltd

[1967] 2 QB 637at 645

[1967] 2 QB 637

where Phillimore J said:

“[Counsel for the defendant says that the claimant] is an attractive woman … Am I to ask her to put on a bathing dress; because the witness box is calculated to disguise the figure? … Is a judge fitted to assess the chance … or wishes of a lady about whom he knows so little and whom he has encountered for twenty minutes when she was in the witness box…? Judges should, I think, act on evidence rather than guesswork. It seems to me that this particular exercise is not only unattractive but also is not one for which judges are equipped.”

[63]Social conditions and assumptions about womenandmarriage have certainly changed since the initial development of the delictual action for loss of support and incidentally the remarriage contingency. Mr Labuschagne did not argue that it is time to consider abolishing the practice of discounting a widow’s award for the prospects of financial dependency upon remarriage since it does not accord with the constitutional ethos of contemporarySouth Africa. Therefore, in this present matter a deduction of 17,5% is applied.

[63]

Social conditions and assumptions about women

marriage have certainly changed since the initial development of the delictual action for loss of support and incidentally the remarriage contingency. Mr Labuschagne did not argue that it is time to consider abolishing the practice of discounting a widow’s award for the prospects of financial dependency upon remarriage since it does not accord with the constitutional ethos of contemporary

South Africa

. Therefore, in this present matter a deduction of 17,5% is applied.

[64] Generally in claims by deceased’s widow her prospects of remarriage is taken into account as a factor in the reduction of damages claimed by her.Roberts v London Assurance Co Ltd (3)1948 (2) SA 841() at 849-50;Legal Insurance Co Ltd v Botes1963 (1) SA 608() at 617-618.The reason for this is toher reinstate her right of support.Peri-Urban Areas Health Board v Munarin1965 (3) SA 367() at 376.There is no hard-and-fast rule as to how this factor is to be evaluated. The deduction is made of roughly estimated amountPaterson v SAR&H1931 CPD 289at 350.or calculated upon a percentage basis.Trimmel v Williams1952 (3) SA 786() at 793;Bester v Silva Fishing Corporation (Pty) Ltd1952 (1) SA 589() at 600.

] Generally in claims by deceased’s widow her prospects of remarriage is taken into account as a factor in the reduction of damages claimed by her.

Roberts v London Assurance Co Ltd (3)

1948 (2) SA 841() at 849-50;

1948 (2) SA 841

Legal Insurance Co Ltd v Botes

1963 (1) SA 608() at 617-618.

The r

on for this is t

her reinstate her right of support.

Peri-Urban Areas Health Board v Munarin

1965 (3) SA 367() at 376.

1965 (3) SA 367

There is no hard-and-fast rule as to how this factor is to be evaluated. The deduction is made of roughly estimated amount

Paterson v SAR&H

1931 CPD 289at 350.

1931 CPD 289

or calculated upon a percentage basis.

Trimmel v Williams

1952 (3) SA 786() at 793;

1952 (3) SA 786

Bester v Silva Fishing Corporation (Pty) Ltd1952 (1) SA 589() at 600.

1952 (1) SA 589

Unforeseencontingencies

Unforeseen

contingencies

[65]Both partiessuggested thata 7.5%contingencyshouldbe applied to the plaintiff’s past loss of support. This is an increased contingency based on the financial difficulties the deceased had in the period prior to his death. A contingency deduction for future loss of support in the region of 20% is further suggested. This is higher than the average contingency for general hazards of life. Acontingency of17.5%is adequate forfuture loss of support. This wouldtake adequate account for uncertainties arising from an error in calculation, general hazards of life, including further financial problems and the lengthy period over which the future loss of support is calculated.Costs

Both parties

suggested that

a 7.5%

contingency

should

be applied to the plaintiff’s past loss of support. This is an increased contingency based on the financial difficulties the deceased had in the period prior to his death. A contingency deduction for future loss of support in the region of 20% is further suggested. This is higher than the average contingenc

y for general hazards of life. A

contingency of

17.5

%

is ade

quate f

future loss of support

. This would

take adequate account for uncertainties arising from an error in calculation, general hazards of life, including further financial problems and the lengthy period over which the future loss of support is calculated.

Costs

[66] Both parties have engagedtwo counsel.Mr Neser SC submitted that theCourt shouldconsiderthe difficultyand durationof the matter and,therefore,costsshould be awardedconsequent upon theengagementof two counsel.Mr Khumalo supported this submission. The sheer volume of documentary material and the duration of the proceedingjustifiesthe employment of two counsel on both sides.Order

] Both parties have e

ngaged

two counsel.

Mr Neser SC submitted that the

Court should

consider

the difficulty

and duration

of the matter and

costs

should be awarded

consequent upon the

engagement

of two counsel.

Mr Khumalo supported this submission. The sheer volume of documentary material and the duration of the proceeding

justifies

the employment of two counsel on both sides.

Order

[67] Accordingly, an order is granted in favour of the plaintiff against the defendants, jointly and severally, payment by the one to absolve the other, in the following terms:

] Accordingly, an order is granted in favour of the plaintiff against the defendants, jointly and severally, payment by the one to absolve the other, in the following terms:

(a) Payment in the sum of R2 207 627.63which consists of the following:(i) Funeral expenses

R9 111.63(ii) Loss of support

R2198 514.00(b) Interest on the aforesaid amount of R2 207 627.63 atempore Morae.(c) Payment of the plaintiff’s taxed party and party costs on the High Court scale, which costsshallinclude the following:(i) fees of plaintiff’s two counsel;

(a) Payment in the sum of R

2 207 627.63

which consists of the following:(i) Funeral expenses

R9 111.63(ii) Loss of support

R

2198 514.00(b) Interest on the aforesaid amount of R2 207 627.63 a

tempore Morae

) Payment of the plaintiff’s taxed party and party costs on the High Court scale, which costs

shall

include the following:(i) fees of plaintiff’s two counsel;

(ii) costs of the actuarial reports of Mr G W Jacobson and reportsby Mr David Lewis, Mr E J Jacot-Guillarmod and Ms Barbara Donaldson;(ii) preparation and qualifying fees as well as the full reasonable day fees of thePlaintiff’sexperts and or witnesses whotestified, and declaring Ms B Donaldson, Mr E J Jacot-Guillarmod, Adv Gerhard Naude and Adv Naude de Wet as necessary witnesses; and(iv) declaring Mrs L M Oosthuizenasa necessary witness.

(ii) costs of the actuarial reports of Mr G W Jacobson and reports

by Mr David Lewis, Mr E J Jacot-

Guillarmod and Ms Barbara Donaldson;(ii) preparation and qualifying fees as well as the full reasonable day fees of the

Plaintiff’s

experts and or witnesses who

, and declari

ng Ms B Donaldson, Mr E J Jacot-

Guillarmod, Adv Gerhard Naude and Adv Naude de Wet as necessary witnesses; and(iv) declaring Mrs L M Oosthuizen

a necessary witness.

EM PATEL

JUDGE OF THE HIGH COURT

HEARD ON:10-18MAY 2006FOR THE PLAINTIFF:ADV D A NESER SCwith ADV

HEARD ON

10

-18

MAY 2006

FOR THE PLAINTIFF

ADV D A NESER SC

with ADV

E CLABUSCHAGNE SC

E C

LABUSCHAGNE SC

INSTRUCTED BY:ADAMS & ADAMS,

INSTRUCTED BY

ADAMS & ADAMS

PRETORIA

FOR THE FIRST DEFENDANT:ADV D KHUMALO SC with

FOR THE FIRST DEFENDANT:

ADV D KHUMALO SC with

ADV R BADESI

INSTRUCTED BY:STATE ATTORNEY,

INSTRUCTED BY:

STATE ATTORNEY,

P

RETORIA

DATE OF JUDGMENT:21 August 2006REVISED ON:29 August 2006

DATE OF JUDGMENT:

1 August 2006

REVISED ON:

29 August 2006