Oosthuizen v Member of the Executive Council Responsible for the Department of Roads and Public Transport Roads and Works North West Province and Another (33736/2003) [2006] ZAGPHC 229 (17 August 2006)

HJCB

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 17 AUGUSTUS 2006

CASE NO: 33736/2003

UNREPORTABLE

In the matter between:

LIZE MARIE OOSTHUIZEN PLAINTIFF

and

THE MEMBER OF THE EXECUTIVE COUNCIL

RESPONSIBLE FOR THE DEPARTMENT OF

ROADS AND PUBLIC WORKS: NORTH WEST

PROVINCE FIRST DEFENDANT

PUBLIC TRANSPORT, ROADS AND WORKS:

GAUTENG SECOND DEFENDANT

JUDGMENT

PATEL J

Introduction

[1] This action is brought as a result of the death of 00000000Pieter 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 R3 638 371.00 and in her capacity as mother and natural guardian of the minor child, C H 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. By agreement the defendants are liable to pay the sum of R9 111.00 to the plaintiff for the claim regarding funeral expenses.

[3] The trial proceeded on the issue of quantum. 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 Court’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 child1. 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 established2. 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 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, including proof of his income, is on the plaintiff. The plaintiff accepted the onus 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 0determine the extent of the loss of support sustained by the claimants regard must be had to the earnings of both the plaintiff and the deceased3. 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.

Key factual issue

[6] The key factual issues relate to the determination 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 and Ms. Suzy Swart was tendered 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 in Southern Insurance Association Ltd v Baily NO4 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 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 367 at 379 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 in Anthony and Another v Cape Town Municipality 1967 (4) SA 445 (A) HOLMES JA is reported as saying at 451B-C:

‘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 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. (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.”

[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 information5. Where the available information provides sufficient basis for an actuarial calculation6 and depending upon the circumstances of the matter, the court exercises its discretion regarding any contingency deductions or additions in the event of positive contingencies.7

[11] Regarding the actuarial method of computation, Nicolas JA in Southern Insurance Association v Bailey NO8, 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’ (per HOLMES JA in Legal Assurance Co Ltd v Botes 1963 (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. 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 elucidated9:

“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:

‘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 during 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 attorneys and not only those who specialised in Family Law matters. The deceased was not afraid to appear in court and his fee structure made him popular amongst attorneys requiring counsel to appear in Family Law cases.

[14] Adv Naude testified that he was aware that the deceased had difficulties regarding payment of fees by attorneys. They often had discussions on this aspect when payments were due. Regarding the deceased’s financial position, Adv Naude indicated that he was not aware of any serious difficulties 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 in 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 and candid witness. There is no basis upon which his testimony can be rejected.

Advocate Naude de Wet

[16] Adv de Wet 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 of 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. Adv de Wet confirmed that the deceased appeared on three to four opposed days every week during term in the High Court. This compared 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 cross examination. Neither were the figures provided by him to the defendants and their experts by the plaintiff’s attorneys put in issue by the defendants.

[17] Adv de Wet 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 collect his fees. He warned Adv de Wet to be guarded and not to fall into the same predicament. Adv de Wet also confirmed that the deceased was generally briefed in Family Law cases. This compared to his urgent court practice pertaining to urgent matters in Family Law. But there are differences in the nature of the practice of Adv de Wet and the deceased. Since Adv de Wet does a fair volume of third party work and his practice is mainly a commercial one, however he still does family law cases in the urgent court. This does not detract from the fact that Adv de Wet and the deceased had comparable practices.

[18] Adv de Wet’s testimony confirms that the deceased had difficulties in recovering fees owed to him. This resulted in him discounting outstanding fees. The deceased cautioned him to avoid falling into a similar trap. Adv de Wet 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 colover 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 Adv de Wet since she also does typing for them. Ms Swart testified that the deceased had a large Family Law 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 Adv de Wet. This is illustrated by comparing the typing costs of both advocates: for 2002 and 2003 the deceased’s typing costs were to R34 532.00 and R23 343.00, whilst that of Adv de Wet’s typing expenses for 2004 and 2005 were R8 868.00 and R20 186.00. This is surely an indicator that the deceased was busier than Adv de Wet.

[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 those matters from the fee statements on the 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; ; 2003 (2) SA 363(CC) and one of them was argued by his father in the Constitutional Court, after his death Fourie & Another v Minister of Home Affairs 2005 (3) SA 429 (SCA). The 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 the plaintiff. She testified that she was three months pregnant when her husband died in March 2003. She 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 the LLB in 1996. They were candidate attorneys at the same time but at different firms. According to the plaintiff their relationship was on a sound 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 improve his relationship with his wife 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 as 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 were 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, however, 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 his financial predicament 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 that 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 preferred to stay at home raising her children until they commenced 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 to 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 included an amount of approximately R20 000.00 paid directly to her by the attorneys concerned. These payments were made to her prior to her appointment as the 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 represents her 103rd appearance in court. 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 Court. 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 Paterson level 5 could 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 Paterson level D2 would be considered as a legal officer with a career peak at Paterson 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 after 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 to 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 have “coast along” at the Bar because in the private sector he did not stand a chance. She strongly disagreed. In 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 in 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 her opinion evidence professionally.

Mr Eugene Jacot-Guillarmod: Forensic Auditor

[32] Mr Jacot-Guillarmod scrutinized the deceased’s financial records. He concluded that the deceased’s financial 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 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 Jacot Guillarmod 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 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 two 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 Jacot Guillarmod 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 advocates 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, assumptions and reasons, 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 by Mr Jacot-Guillarmod. However, the factual basis for the comparison of Mr De Wet’s practice with that of the deceased was left unchallenged during the cross-examination of both Adv Naude and Adv de Wet. It was not suggested that either Adv Naude or Adv de Wet 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 Adv de Wet. Mr Jacot-Guillarmod, however, indicated that the Court has heard the evidence of Adv de Wet, Adv Naude and Ms Swart regarding the comparison in the practice of the deceased and Adv de Wet.

[36] It was put during cross-examination to Mr Jacot-Guillarmod that he was not comparing like for like since Adv de Wet 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 for 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 could 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 not an acceptable basis for the determination of quantum.

Evidence of defendants’ witnesses

Mr Colm Tonge: Auditor

[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 Adv 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.

[39] Mr Tonge also testified that he regarded the documentation as evidence but he did not make any allowance for the viva voce testimonies of Adv Naude, Adv de Wet 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 viva voce evidence 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 of Adv de Wet 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 therefore the deceased appeared to have been busier in 2002 than in 2003.

[40] Mr Tonge acknowledged that the Court would be free to increase his figures due to cash receipts not reflected in the deceased’s books of account. But, he was, however, 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. This present matter was the maiden excursion of his forensic career in the High Court. He acknowledged that this Court could determine the deceased’s earning capacity on three bases, namely: a career at the Pretoria Bar based on the information contained in Mr Lewis’ report. The second scenario by determining the deceased’s potential earning capacity in a corporate sector 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 Adv 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 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 the figure of Mr Tonge. These were cash receipts and cheques that could be cashed, but not reflected in the deceased’s books of account as well as the outstanding debt paid directly to the plaintiff in the amount of R20 000.00 outstanding debt that became payable or which may be recovered in future. Further, regarding the Bannantyne and the Fourie Bontleys matters the fee notes had not yet been prepared as well as other matters where the deceased had rendered services but had not yet submitted 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’s earnings between R370 000.00 to R568 000.00 per annum and of 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 Court 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

[43] Without any factual basis it was put to Adv de Wet that since he is a friend of the deceased’s family it casts doubt on his objectivity but what is crucial, 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. Adv de Wet’s testimony was that his practice for the last two years was comparable to that of the deceased in that they were equally busy in that they had three to four opposed matters per week. The basis of comparison was confirmed by Adv Naude, Adv de Wet and Ms Swart. The comparison forms a fundamental part of the expert evidence of Mr Jacot Guillarmod. Defendants’ counsel was at pains in an attempt to attack the basis of comparison between the practices of the deceased and Adv de Wet. But during the cross-examination of Mr Jacot Guillarmod it became apparent that such attack was rather belated since it was left unchallenged when Adv de Wet was cross examined. It is 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 place an

attorney an the defaulter’s list.

[44] It was not suggested that either Adv Naude or Adv de Wet 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 Jacot Guillarmod and Mr Tonge. The issue is whether the comparison is appropriate or not. Mr Jacot Guillarmod did not accept the correctness of the defendants’ assertion that there was no comparison in the earning capacity of deceased and that of Adv de Wet. Regarding the accuracy of Adv de Wet’s financial information compared to the inaccuracy of the deceased’s financial information. Mr Jacot Guillarmod clarified that even though there was no comparison to their respective financial statements, but regarding the basis for comparing their practices, he accepted the information given to him this information was also confirmed by the plaintiff’s witnesses. The comparison is between the last two years of Adv de Wet’s practice compared to the practice of the deceased at the time when he died in 2003. Mr Jacot Guillarmod’s, expert testimony certainly makes sense if it is considered that the earnings arising from junior practices which are equally busy are more comparable than advocates with equal seniority. The equality in seniority does not determine the basis for comparison of practices. It may provide a basis for comparable hourly tariffs and fees, but that is where the comparison would end, if the practices were not equally busy.

[46] Mr Tonge conceded that 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, intransigent not to include cash in his calculation since he could not determine the extent of cash receipts from the available documentation. He certainly adopted a rather technical approach. He was of the opinion that the basis for comparing the practice of the deceased with that of Adv de Wet was not established. This opinion certainly goes against the grain of the evidence tendered by the plaintiff’s witnesses. According to him the fact that two practices were equally busy is too vague. This lacks substance.

[47] There is cogent evidence that the deceased was a busy practitioner as testified by Advocates Naude and de Wet. This is also 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 Adv de Wet. This much was conceded by Mr Tonge but he persisted that the deceased appeared to have been busier in 2002 than in 2003. Further, Mr Tonge neither in his report nor in his evidence provided any information regarding the deceased’s lifestyle since he made no enquiries in this regard. His report does not provide for the substantial increases that the deceased would have had in fees.

[48] Dr Harmse conceded make it unnecessary for the Court to speculate on the deceased’s earnings based on the defendants’ approach of adhering to the deceased’s unreliable financial information. The Court could 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 2005, 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 was neither established nor relied on by the defendants. The distinct impression is that he wanted to portray the poorest possible picture of the deceased’s future. This detracts from his reliability as a witness. His unsubstantiated opinion was that the deceased did not have a lucrative legal practice and therefore he did not have future. This 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 financial position, but this proposition 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. This, on the evidence before the Court, 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 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 contingencies.

[51] Thus, on the basis of the evidence tendered on behalf of the plaintiff, there are two possibilities regarding the deceased’s 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 earnings in 2005 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 he would have earned around R500 000.00 per annum which would have increased in line with the Consumer Price Index and effects of inflation. However, there 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. To earn a greater income an advocate usually works longer hours or increase the rate at which he/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 anf 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 reached 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 Jacot Guillarmod’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 2005 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 nett earnings for 2005 would have been R515 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 parson and would have anticipated 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 the prospects of divorce except for the deceased’s notation “herstel verhouding met vrou”. When this statement is considered 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

[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%. The 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 a cattle parade10 and it is essentially unconstitutional since it offends the equality provision in 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 estensively criticizes. Its contemporary significance was challenged in the High Court of Australia in De Sales v Ingselli 11 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 legal principle and social reality.”

[62] Further criticism of the method of assessment appears in Buckley v John Allen & Food (Oxford) Ltd12 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 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.

Unforeseen contingencies

[64] 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 contingency for general hazards of life. A contingency of 17.5% is adequate to 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.

[65] 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.13 The rational for this is that her reinstate her right of support.14 There is no hard-and-fast rule as to how this factor is to be evaluated. The deduction is made of roughly estimated amount15 or calculated upon a percentage basis.16

Costs:

[66] Both parties have engaged two counsel. Mr Neser SC submitted that the Court should consider the difficulty and duration of the matter and therefore costs should be awarded consequent upon the engagement of two counsel. Mr Khumalo supported this submissions. 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:

(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 R2198 514.00

(b) Interest on the aforesaid amount of R2 207 627.63 a tempore Morae.

(c) 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 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 testified, 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 Oosthuizen as a necessary witness.

EM PATEL

JUDGE OF THE HIGH COURT

HEARD ON: 10-18 MAY 2006

FOR THE PLAINTIFF: ADV D A NESER SC with ADV

E C LABUSCHAGNE SC

INSTRUCTED BY: ADAMS & ADAMS,

PRETORIA

FOR THE FIRST DEFENDANT: ADV D KHUMALO SC with

ADV R BADESI

INSTRUCTED BY: STATE ATTORNEY,

DATE OF JUDGMENT: 21 August 2006

1 Union Geverment v Warneke 1911 AD 657 at 666; Oosthuizen v Stanley 1938 AD 322 at 327

2 Gildenhuys v Transvaal Hindu Educational Council 1938 WLD 260 at 262

3 Fourie v Santam 1996 (1) SA 63

4 1984 1 SA 98 (A) 113G-114E; see also Jacobs v Commercial Union Versekering – Maatskappy van Suid Afrika Beperk, Corbett and Buchanan, The Quantum of Damages vol 4, C3-127 at C3-140/141

5 Shield Insurance Co Ltd v Booysen 1979 (3) SA 953 (A)

6 President Insurance Company v Matthews 1992 (1) SA 1 (A).

7Van der Plaats v SA Mutual Fire and Insurance Co Ltd 1980 (3) SA 105 (A); Minister of Defence v Jackson 1991 (4) SA 23 (Z); A A Mutual Insurance Association v Maqula 1978 (1) SA 805 (A).

8 1984(1) SA 98 (A) at 116 G-117A

9 Id at 117B-D

10 More appropriately Zelly J in Public Trustees v Paniens 1971) 1 SASR 297 at 300 indicated that it is “treating women like to be appraised.”

11 [2002] HCA 52 (14 November 2002)

12 [1967] 2 QB 637 at 645

13 Roberts v London Assurance Co Ltd (3) 1948 (2) SA 841 () at 849-50; Legal Insurance Co Ltd v Botes 1963 (1) SA 608 () at 617-618.

14 Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 () at 376.

15 Paterson v SAR&H 1931 CPD 289 at 350.

16 Trimmel v Williams 1952 (3) SA 786 () at 793; Bester v Silva Fishing Corporation (Pty) Ltd 1952 (1) SA 589 () at 600.