Adv Sayed N.O v Road Accident Fund (38533/2022) [2024] ZAGPPHC 1326 (11 December 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 38533/2022

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

DATE: 11 December 2024

SIGNATURE

In the matter between:

ADVOCATE S SAYED N O

(Curator ad Litem for S KHANYILE)

Plaintiff

and

ROAD ACCIDENT FUND

Defendant

JUDGMENT

(The matter was heard on 28 August 2024 in open court, and after hearing counsel for the plaintiff, judgment was reserved. Judgment was handed down by uploading the judgment onto the electronic file of the matter on CaseLines and the date of the judgment is deemed to be the date of uploading thereof onto CaseLines)

BEFORE: HOLLAND-MUTER J:

[1] Sifiso Khanyile, a major male, was born on 3 March 1981. He was involved in an accident on 5 June 2004. He was a passenger in the vehicle and sustained a primary concussive brain injury, and a secondary brain injury from the immediate/early post-traumatic

seizure. The severity of the brain concussion may be subcategorised as a Grade ll moderate concussion. The Plaintiff is suffering from neurocognitive difficulties and neuro-behavioural difficulties which will be discussed below.

EVIDENCE:

[2] Mr Dawid Fourie, one of the attorneys at Ehlers Attorneys on record on behalf of the Plaintiff, was the only witness who testified in the matter. He is a director at the attorney’s firm. The firm received a mandate from the plaintiff to act on his behalf. The previous attorneys refused to obtain certain records of the proceedings in the Magistrate’s Court in Mahlabathini in

Kwa-Zulu Natal and in the Kwa-Zulu Natal High Court. The current attorneys received the necessary documents from the Road Accident

Fund (“RAF”), the documents compiled in exhibit “A”.

[3] The plaintiff cancelled his previous mandate to his previous attorneys on 22 January 2018 and signed a new mandate with Ehlers & Partners on 31 January 2018.

[4] The matter was set down for trial on merits and quantum for 29 August 2024. It is clear from what follows that the Defendant was aware of the upcoming trial.

DEFENCE STRUCK OUT:

[5] The Plaintiff requested the court to strike out the defence of the Defendant (Road Accident Fund, referred to as the “RAF”)

for non-compliance with a court order. The RAF was ordered by the court on 7 March 2024 to provide the Plaintiff with a date for a pre-trial conference within 10 days of date of service of the Court Order and to sign a joint practice note within 10 days of the date of service of the court order and minutes of the conducted pre-trial. The RAF has failed to do so although the order was served upon the RAF on 2 April 2024.

[6] It is trite that a court may regulate its own procedure (Section 173 of the Constitution) and in this division the Practice Manual clearly provides for the striking of a defence justified by the facts of the individual case. The court is satisfied that there was proper service of the court order upon the RAF and that the set down was proper.

[7] There are various cases dealing with the striking of defences and reference is made to Motor Marine (Edms) Bpk v Thermotron 1985 (2) SA 127 (se) at [128]; Minister of Safety and Security and Another v Burger (59473/2012) (Gauteng Division Pretoria) [2015] ZAGPPHC 346

(15 May 2015).

[8] There was nobody present on behalf of the Defendant on 29 August 2024 and the defence of the Defendant was struck.

PREVIOUS ACTIONS:

[9] There was a summons issued in the Mahlabathini Magistrate’s Court under case number 1131/06 against the Defendant (Road Accident Fund- RAF). The action was instituted under the Road Accident Fund Act, 56 of 1996 prior to the amendment of the act which amendment became operational on 1 August 2008.

[10] The Plaintiff’s claim was limited under the pre-amended provisions of what can be referred to as the “Old Act”.

The post-amended position under the 2008 amendment was that the previous limitations in the Old Act were repealed.

[11] The Legislator enacted the Road Accident Fund (Transitional Provisions) Act 15 of 2012 (RAFTPA) to follow what was held in Mvumvu and Another v Minister of Transport and Another 2011 (2) SA 473 CC.

[12] The main purpose of the Road Accident Fund Transitional Provisions Act (“RAFTPA”) was to provide for transitional measures in respect of certain categories of third parties whose claims were limited under the Road Accident Fund Act 1996 prior to 1 August 2008, and to provide for matters connected therewith. In Grove v Road Accident Fund and Another (36786/06) [2017] ZAGPPHC 757 (28 November 2017), Van der Schyff AJ (as she then was), provided with a detailed synopsis of the RAFTPA.

[13] A third party according to section 1 of the RAFTPA is “A person who has a right to claim compensation from the Fund in terms of section 17 of the Old Act, whose claim is subject to the

limitations imposed by section 18(1) or (2) of that Act, and whose claim has, upon this Act taking effect, not prescribed or been

finally determined by settlement, or judgment”.

[14] The Plaintiff is a third party as required in the TPA and did not, in terms of section 2(1) of the RAFTPA, within one year, and on the prescribed form, expressly and unconditionally indicate to the Defendant that he wished his claim to remain subject to the Old Act. In terms of section 2(1) of the RAFTPA, the failure to effect such an election, within the stipulated time period, results that this claim is subject to the stipulated transitional regime, as contained in section 2(1)(a) & (b) in the New Act (RAFTPA).

[15] Section 2(1)(e) of the RAFTPA provides that a third party who has prior to the TPA coming into operation, (i) lodged a claim with the Fund on the prescribed form in terms of the Old Act shall not be required to lodge an RAF 1 form in terms of the new Act and (ii) where an action against the Fund was already instituted in a Magistrate’s Court, may withdraw that action and, within 60 days of such withdrawal, institute an action in the High Court with appropriate jurisdiction over the matter; Provided that no special plea in respect of prescription may be raised during that period.

[16] Section 2(1)(e)(ii) of the RAFTPA does not stipulate any time frame within which a third party must withdraw an action pending in a Magistrate’s Court if the third party desires to claim more than R 25 000-00 in respect of non-pecuniary loss. See Eksteen v Road Accident Fund (873/2019)[2021] ZASCA; [2021] 3 All SA 46 (SCA); 2021 (8) BCLR 844 (SCA) (21 April 2021) par [39] and in [40] …it seems to me that the decision as to whether or not to withdraw, and if so when, is at the absolute discretion of the third party. This is however, not to suggest that the third party, as plaintiff, would be justified in taking an extraordinary long period of time to make an election one way or other…. A plaintiff is obliged to prosecute his/her claim within a reasonable time. What would be a reasonable period can only be determined with reference to the facts of each case”.

[17] Two things must happen before the commencement of the 60 day period prescriptive period is triggered. First there must be an intention evinced by the third party to withdraw the action instituted in a magistrate’s court and secondly, that intention must translate into an overt act of carrying out the intention by actually withdrawing such action. The 60 day prescription period can only commenced to run after the actual withdrawal has taken place. Eksteen supra [48].

[18] The Plaintiff issued summons in the Mahlabathini Magisterial District under case number 1131/2006 during October 2006. While this matter was pending a further summons was issued on behalf of the Plaintiff in the Kwa-Zulu Natal High Court (Durban) under case number 2629/2014.

[19] The Defendant filed an amended plea of prescription with regard to the summons issued in the Durban High Court in that the summons was issued on 10 March 2014, the date more than five (5) after the claim arose on 5 June 2004.

[20] The summons in the Durban High Court was issued while the summons in the Mahlabathini Magistrate’s Court was still pending. The RAF filed a second plea in limine that the claim lodged in the Durban High Court be dismissed on the basis of lis pendens. This action was withdrawn on 15 August 2022 (the date stamp by the Registrar of the High Court) resulting that the already instituted

Magistrate’s Court action remained alive.

[21] The action in the Magistrate’s Court was withdrawn on 29 August 2022 (the date stamp by the Clerk of the Magistrate’s Court) triggering the provisions on the RAFTPA. The Plaintiff elected to have his claim adjudicated under the new dispensation after the RAFTPA came into operation.

[22] The Plaintiff lodged the present claim on 6 September 2022 in the Pretoria High Court (date stamp on summons) and the summons was served on the Defendant’s office on 8 September 2022. This is well within the 60 days allowed for in the RAFTPA and such action is immunised from a special plea of prescription that the Defendant otherwise would have been entitled to raise but for the provisions of sec 2(1)(c)(ii) of the RAFTPA.

[23] The remaining question as stated in Eksteen supra [40] is whether the Plaintiff’s claim was not instituted within a reasonable time taking an extraordinary long period of time to make the necessary election. The RAFTPA does not prescribe any time frame within which the decision be taken (supra) and the court is of the view that, taking into consideration everything that happened along the litigation path, from the Kwa-Zulu-Natal Magistrate’s Court via the Durban High Court and the various correspondence between all the parties, the Plaintiff acted within a reasonable time to take the decision to follow the RAFTPA route to withdraw in the Magistrate’s Court (and for reason in the Durban High Court) to have the matter prosecuted in the Pretoria High Court. Practice has shown that the average third party matter to be concluded from instituting action to final adjudication can take years and that the current matter was not an extraordinary long period to decide what route to follow.

EVIDENCE ON MERTIS AND QUANTUM:

MERITS: The issue of Negligence:

[24] Counsel for the Plaintiff requested the court to accept the affidavit attested to by the Plaintiff be admitted as evidence. In view of the absence of any representative on behalf of the Defendant and taken into account the contents of the affidavit, there can be no prejudice at all should the evidence of the Plaintiff be accepted by way of affidavit.

[25] The Plaintiff was a passenger in the bus which was involved in a single vehicle accident. The Plaintiff is clear that the driver of the bus drove at a high speed and lost control over the bus in a corner. The bus overturned and the Plaintiff sustained various

injuries as a result of the bus overturning. In the absence of any evidence contrary this version, the reasonable inference is that the driver of the bus was the sole cause of the collusion. See Madyosi and Another v SA Eagle Insurance Co Ltd 1990(3) SA 442 (AD) where it was held that “In our law the maxim res ipsa loquitur has no bearing on the incidence of proof on the pleadings, and it is invoked where the only known facts, relating to the negligence are those of the occurrence self. Had the only evidence relating to negligence been that the bus left the road and overturned that would, in the absence of anything else, have justified an inference that the driver of the bus failed to keep the bus under proper control”.

[26] This was echoed in Janse van Vuuren NO v Roadm Accident Fund (A525/2015)[2017] ZAGPPHC 838 (28 March 2017) at [10] &[11]; Mpondo v Road Accident Fund (63732/2015) [2017] ZAGPPHC 361 (25 April 2017) and Kabini v Road Accident Fund (26209/2018) ZAGPPHC 100 (19 February 2020) at [21].

[27] The only logical inference is that the driver of the bus (the insured driver) was 100% at fault and the Defendant is liable for 100 % of the Plaintiff’s proven or agreed damages as a result of the injuries sustained in the collision.

QUANTUM:

[28] The Plaintiff elected not to persist with a claim for past medical, hospital and related expenditure.

FUTURE MEDICAL, HOSPITAL AND RELATED EXPENSES:

[29] The Plaintiff’s experts clearly indicated that he will require future medical, hospital and related treatment to treat the sequelae if his related injuries. The Plaintiff is entitled to a section 17(4) (a) undertaking to provide for these future treatment and expenses.

[30] In view of the finding above that the insured driver was 100% at fault to the occurrence of the accident, and the dictum in Knoetze obo Malinga and Another v Road accident Fund (77573/2018 & 54997/2020)[2022] ZAGPPHC 819; [2023] 1 All SA 708 (GP) (2 November 2022) where the CEO of the Defendant tendered a blanket undertaking for all proven medical, hospital and related expenses, suffered by a third party as a result of injuries sustained in a motor vehicle collision. The Plaintiff is entitled to a 100% undertaking by the Defendant to provide for the future medical, hospital and related expenses.

LOSS OF INCOME AND EARNINGS:

[31] The Plaintiff was examined by the following medical experts who all compiled a medico-legal report while the Defendant elected not to brief or call any experts on its behalf:

Dr Engelbrecht-Orthopaedic surgeon;

Dr Moja-Neurosurgeon;

Dr JA Smuts- Neurologist;

I Jonker - Neuropsychologist;

Dr M Naidoo - Psychiatrist;

Dr J Seabi - Educational Psychologist;

M Sissison - Clinical Psychologist;

Dr Weitz - Opthalmologist;

Dr Fredericks - Disability and Impairment Assessor;

N September - Occupational Therapist;

B Maritz - Industrial Psychologist;

G Jacobson - Actuary.

[32] The Plaintiff sustained, amongst other injuries, and suffers from the following sequelae:

32.1 A primary concussive brain injury, and secondary brain injury from the immediate/early post-traumatic seizure. The severity of the brain concussion may be subcategorised as a Grade II (moderate) concussion.

32.2 He is suffering from neurocognitive difficulties, in the form of:

Memory difficulties;

Concentration difficulties;

Mental slowing post-accident with a sluggish mind;

A decreased ability to multi-task if compared with pre-accident

Functioning;

Planning difficulties; and

Difficulties in coping with his workload.

32.3 He is suffering from neuro-behavioural difficulties in the form of:

Reduced temper control and mood swings;

Socially withdrawn and introverted behaviour; and

A decreased ability to take initiative.

32.4 He is suffering from neuro-psychiatric difficulties as:

A regular depressed mood;

A decreased appetite, associated with fluctuations in his weight;

A change in his sleeping patterns necessitating use of sleeping pills;

Decreased energy levels post-accident and tiring easily;

Decreased levels of motivation in his work; and

A decreased interest in sex post-accident.

32.5 He suffered a soft tissue cervical spine injury with neck spasms; a soft tissue lumber spine injury with lower lumber spine spasms; a soft tissue injury to the left knee with a slight impairment to left knee movements and a left-sided partial 6th cranial nerve paralysis.

[33] The Plaintiff applied in terms of Rule 38(2) of the Uniform Rules of Court for the medico-legal reports, as aided by the necessary affidavits by each expert, to be allowed as evidence. In granting this relief, and in the absence of any expert reports on behalf of the Defendant, the litigation is speedy and a significant financial saving is brought about in not calling all the Plaintiff’s experts to testify in court. The application is granted.

[34] As a starting point to determine the loss of income and earnings by the Plaintiff is the postulation by the Industrial Psychologist, B Maritz, read in conjunction with the other expert witnesses’ reports, to determine the pre- and post-morbidly scenarios of the Plaintiff.

PRE-MORBIDLY:

[35] The Plaintiff was enrolled for Grade 12 (Supplementary) at the Ndlovana High School to improve his existing matric marks. He was then 23 years old. The postulation is that he would have most probably completed this qualification with improved academic marks at the end of 2004 obtaining his National Senior Certificate (NQF Level 04).

[36] Maritz postulates that the Plaintiff would have completed a tertiary qualification of choice related to a HQF Level 7 (i e a Bachelors degree, Advanced Diploma or Bachelors of Technology), the time to obtain such qualification over five years with part time study while remaining employed as an administration clerk at the Ndlovana High School as before the accident. He would be earning on par with Semi-skilled worker (MED Level) within the non-corporate sector.

[37] This part time working while completing the qualification would ensure that the Plaintiff gain valuable experience and most likely secure a permanent position within the field of interest within two years after completing his tertiary qualification. This would have increased his remuneration package to a Paterson B5 Level from where he would have progressed systematically to at least a Paterson D2 Level at the age of 45 years. Increases thereafter would most probably be inflationary up until retirement. He would have been able to continue until the normal retirement age of 65 years, depending on health and other aspects such as the company’s retirement policy.

POST-MORBID SCENARIO:

[38] The orthopaedic surgeon, Dr Engelbrecht, opines that the Plaintiff reached a maximum medical improvement. The main concern is the head injury sustained by the Plaintiff; suffering of a base of skull fracture with a seizure and a post-accident developed cerebro-spinal fluid leak.

[39] Dr Moja, the Specialist Neurosurgeon, opines that the immediate/early post-traumatic seizure may have resulted soon after the accident but that metabolic changes in the neuronal/glial cells would not be visible on a conventional CT brain scan. Overall the Plaintiff sustained a primary concussive brain injury, and secondary brain injury from the immediate/early post traumatic

seizure and it may be subcategorised as a Grade II (moderate) concussion.

[40] The opinion of Dr Smuts (Neurologist) is that the Plaintiff sustained a moderate concussive head injury with an associated brain injury. The injury causes frequent severe headaches associated with severe migraine headaches. During these headaches the Plaintiff becomes dizzy and forgetful. This already impacted on his attempt to study through UNISA without success. He is scared to travel and becomes irritated with noises. Dr Smuts opines that the accident negatively impacted on the Plaintiff’s personality.

[41] Ms Jonker, the Clinical and Neuropsychologist, opines that the Plaintiff’s below average performance at work and studies as a result of his lack of concentration ability, is indicative of a significant traumatic brain injury. The Plaintiff is left with neurocognitive difficulties such as poor memory, forgetfulness and depressed mood. This renders the Plaintiff vulnerable in the open labour market and should he loose his current work at the school (in a protective environment), he will find it very difficult to find similar suitable work. In addition to his cognitive problems, the Plaintiff displays neuro-behavioural psychiatric shortcomings such as depressed mood, difficulties to tolerate frustration and low levels of drive. This makes him a vulnerable employee which will make it difficult to obtain other employment should he become unemployed.

[42] Dr Naidoo, the Psychiatrist, concur with the finding of a moderate brain injury and the probability of neuropsychiatric sequelae of traumatic brain injury likely to become worse than conventional psychiatric illness. This diagnoses is similar to what Mr Sissison,

the Clinical Psychiatrist opined.

[43] The Educational Psychologist, Dr Seabi, outlines a rather bleak view of the Plaintiff’s future development and difficulties with regard to the Plaintiff’s depression with moderate anxiety levels. The Plaintiff’s overall cognitive functioning is within the Borderline range on verbal and performance tasks. His lack of concentration results in non-verbal problem solving and delayed perceptual abilities. His academic progress is hampered by his lack of mental tracking, visual memory and slow processing of information, all playing a crucial role in the academic environment.

[44] It is clear from the report by Dr Seabi that the Plaintiff will not be able to further any academic aspirations leaving him stranded at his current level of academic development. This results in the unlikeliness of him to be promoted in future leading to further depression and social difficulties. The Plaintiff sustained a serious head injury with at least a moderate brain injury leaving him a vulnerable individual.

[45] Mr Maritz, the Industrial Psychologist, outlined the pre- and post-morbid route of the Plaintiff concluding in a loss of past and future earnings. He was involved in the accident on 5 June 2004 while enrolled for the Senior Grade 12 certificate (to improve on his previous obtained marks). He was employed by the school in an administrative post. If not for the accident, and considering all collateral information, he would have progressed in his career as a teacher. He however remained in the post as a Senior Administrative

Clerk at a notch of R 243, 792-00 (excluding benefits). The rest of the report reiterates the predicament of the Plaintiff and the difference between his pre- and post- morbid situation.

[46] The court looked at the calculations done by the Actuary, Algorithm Consultants and Actuaries dd 12 May 2018, and is satisfied with the method of calculation. The Actuary applied the necessary contingencies using Dr R Koch’s Quantum of Damages Yearbook

2024 as guidelines. The Actuary applied a 5% contingency of past income and 15% on future income. There were further actuarial

calculations done by G Jacobson, the figures used in the final calculations.

[47] Contingencies are in the discretion of the court and should be applied taking into consideration of all aspects before the court. The age, gender, qualifications, injuries sustained and prospective life expectancies as result of the injuries all together should guide a court to apply the contingency it considers correct in the instance. I am satisfied that the contingencies applied, taking into consideration all factors listed by the experts, are correct. The Actuary also applied the so-called statutory cap before concluding what the past and future loss of income should be.

[48] It is trite from Goodall v President Insurance Co Ltd 1978 ( 1) SA 389 (W) that as a general rule of thumb, a sliding scale can be applied i e 1/2 % per year to retirement age i e 25% for a child, 20% for a youth and 10% in middle age.

[49] In respect of loss of earnings, taken onto account the time that has lapsed, there is reason to deviate from the norm and a pre- and post-morbid past contingency of 10 % be applied. This will result in a past loss of income of R 3 477 442-00 before applying the cap, leaving a net amount of R 2 238 761-00.

[50] Keeping in mind that the Plaintiff is presently 43 years of age, and would have worked until 65 years old, a pre-morbid contingency of 11 % would be fair amounting to R 11 710 648-00. The post-morbid scenario with all its potential risks involved, a post morbid earning of R 2 734 480-00 after deducting the contingency 50%. This leaves a future earning capacity of R

2 734 480-00. The future loss of earnings/earning capacity amounts to R 8 976 168-00, and after applying the cap, amounts to of R 3 466 667-00.

[51] The past and future loss of earnings therefore amounts to R 12 453 610-00 before the cap and R 5 705 428-00

after the cap is applied.

GENERAL DAMAGES;

[52] Since the promulgation of the Road Accident Fund Regulations on 21 July 2009, Regulation 3 thereof prescribes the method contemplated in section 17(1)(A) for the determination of a serious injury. There is the 30 % WPI guideline to assess a serious injury and the MMI is usually an indication for the Defendant to determine whether a Plaintiff sustained a serious injury and that he should be compensated for non-pecuniary damages sustained. Although the Plaintiff’s WPI was 32%, the Defendant has yet to indicate whether it is satisfied that the Plaintiff injuries indeed qualify to be a serious injury.

[53] The present practise is that where the Defendant has not indicated the above, the issue of general damages be postponed sine die to have it referred tom the HPCSA (Health Professional Council of South Africa) for determination.

[54] Although not clearly set out in the Constitution, the separation of powers between the Executive, Legislator and Judiciary ought to be respected and a court will only in exceptional cases usurp the executive powers and issue an order which normally falls within the power of the executive. The court is reluctant to enter the field of the executive and decline to make an order before the normal route of referral to the HPCSA by the Plaintiff is done.

[55] The issue of general damages is postponed sine die.

ORDER:

The draft order marked “XYZ” is made an order of court.

HOLLAND-MUTER J

JUDGE OF THE PRETORIA HIGH COURT

Matter was heard on 29 August 2024

Judgment handed down on 11 December 2024 by uploading thereof onto CaseLines

Appearances:

On behalf of the Plaintiff: Adv C DREDGE

On behalf of the Defendant: No appearance