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Family circumstances: The minor’s mother reported to the expert that her pregnancy with the minor was normal. She breastfed the minor until the age of two and the minor’s infant development was normal. The minor sat, crawled, stood and walked at age-appropriate periods. The minor is one of seven children and the sixth-born child in his family. He has one younger brother. Of the five elder siblings, only one sibling is reported to have completed Grade 12 and is self-employed. The minor’s mother did not complete Grade 12 and was at the time a taxi driver.

Accident: In 2010 the minor child was only 23 months old when hit by a white Chevrolet Spark whilst the minor was standing inside a residential yard at Nwamitwa Village in the Mopani District. The car was driven by a teacher from a neighbouring school, who was dropping a child at creche. The teacher allegedly reversed and knocked the minor down and the car went over the minor’s leg. The teacher then transported the minor to the Letaba Hospital for medical assistance. It is claimed that his head injuries have caused permanent impairments.

Post-accident: An educational psychologist consulted with the minor in 2023, which is more than 13 years after the accident occurred and when he was 15 years and 4 months old and in Grade 9. Following the Senior South African Individual Scale-Revised assessment, the minor tested significantly below average in the verbal, non-verbal and full IQ scales. The minor also tested significantly below average in the attention and memory tests, concentration and mental tracking tests, and perceptual reasoning and reasoning tests. The neurosurgeon concluded that the minor sustained a mild head injury and suffers from mild post traumatic amnesia which affects some of his daily activities and that there were no focal neurological deficits.

Assessment: Plaintiff claimed R6,000,000 for future loss of earnings. The actuary recommended that with regards to future loss of income, a deduction of 20% for uninjured and 35% for injured be applied. The court is of the view that the plaintiff’s health concerns, such as constant headaches, nose bleeds, and often sleeping, are all treatable through appropriate therapy and medication, as opined by various experts. It is not life-threatening and the minor’s life expectancy was not affected as a result of the accident.

* See paras [24]-[26] on the career scenarios and probable earnings.

** See para [50] for the factors which the curator ad litem could consider in making a report to assist the court in making decisions in the best interest of children.

Award: Considering that that the minor was only 23 months old at the time of the accident, his family dynamics and current health status, a high contingency must be applied if the court accepts the figures stated in the actuary report. In the result, the court applies a 50% contingency deduction to the pre-morbid earnings and a 50% contingency for post-morbid. Plaintiff’s loss of income is calculated at R2,669,521.50. See calculations at para [59].

MARAIS AJ

Pre-accident: It is presumed in the joint minutes of the industrial psychologists, based on the expert reports of the neurosurgeon and educational psychologist, that, had the accident not occurred the minor would have achieved his matric and a two or three year certificate after completing matric, which in turn would have enabled him to earn a salary of a person at the level of a person with a National Diploma qualification.

Accident: In 2018 at Namibia gravel road, Mangaung, Bloemfontein, a motor vehicle with unknown registration numbers and letters driven by an unknown driver collided with the minor child, who was a pedestrian at the time. The child suffered mild-moderate traumatic brain injury, fracture of a vertebra, dislocated shoulder, abrasions, chest injury, united pelvic fracture with residual pain, Post Traumatic Stress Disorder, post traumatic headaches and mild to moderate persistent depressive disorder.

Post-accident: Although there were contradictions in the evidence of the educational psychologist, her findings were corroborated by the neurosurgeon with regard to the minor's inability to perform post-morbidly according to his educational potential and there were manifestations of neurocognitive and neuropsychological deficits of traumatic brain injury. Having regard to the minor’s family background, his pre-morbid performance in school and post-morbid performance in school with the help of a private tutor, the earning postulations accord with the facts and realities, except insofar as they did not take the consistent progress with the help of the private tutor into account.

Assessment: The evidence indicated that the minor is now being assisted with his schoolwork by a private tutor. The minor’s potential with support, though not realized to its full potential, is not lost. Now that the accident has happened, the minor, with the interventions and assistance that will be provided, will at least complete matric to be in accordance with the facts as objectively shown in the school reports and realities in this case, because this minor has consistently performed post-morbidly with the help of a private tutor. The actuarial calculations provide for this scenario.

Award: R700,000 is fair compensation for general damages. The calculation for pre-morbid future income is: R7,479,080 – R1,869,770 (25% contingency) = R5,609,310. Bearing in mind the minor was only seven years old at the time of the collision, the court allowed a higher contingency for the post-morbid projected income: R6,455,422 – R3,227,711 (50% contingency) = R3,227,711. That in turn result in the calculations in respect of the minor’s future loss of earnings R5,609,310 (pre-morbid income) – R3,227,711 (post-morbid income) = R2,381,599.

JORDAAN AJ

Pre-accident: The plaintiff is an adult male born in 1979 and at the time of the accident he was 42 years of age and employed as a traffic officer by the Newcastle Municipality, which position he held since 2005. The neuropsychologist was of the opinion that the plaintiff was of average to high average intellectual potential before the accident. It is recorded that the plaintiff obtained his Traffic Officer Diploma cum laude in 2004.

Accident: A motor vehicle accident occurred in 2021 at Sutherland Street, Newcastle. The accident occurred between the insured vehicle, a Renault Clio and a motorcycle ridden by the plaintiff. It is pleaded that he suffered a head injury with neuropsychological and neuropsychiatric sequelae, psychological and psychiatric sequelae, fractures of various vertebrae, spleen injury, right kidney injury, fractures, prolonged loss of consciousness, induced coma and amnesia for almost a month.

Post-accident: The clinical and neuropsychologist reported that testing reveals multiple difficulties, inter alia, with memory, attention, psychomotor speed, reduced clerical efficiency, and executive functioning which are in keeping with the expected outcome following a severe head and brain injury. The occupational therapist reports that, due to the neurocognitive as well as neuropsychological difficulties, the plaintiff is extremely vulnerable while working as a traffic officer in the field and that it is justified that he has been assigned to administrative duties. He remains functionally unemployable for work as a traffic officer even while executing administrative duties and the plaintiff remains employed as a result of a sympathetic employer/supervisor.

Assessment: It was proposed that the plaintiff would have secured promotion to the position of superintendent by 2024 and thereafter he would have had a 50% chance of being promoted to chief traffic officer by 2029. The actuary applied a 50% chance of the plaintiff remaining in the position of superintendent and a 50% chance of being promoted to chief traffic officer but for the accident. Counsel for the defendant argued that the plaintiff has been a traffic officer for 16 years without any promotion but that now, had it not been for the accident, the plaintiff would have been promoted to superintendent and eventually to chief traffic officer, and that these postulations were unrealistic.

Award: The court agrees with the approach adopted by the plaintiff’s counsel that the more realistic scenario would be to apply a 50% deduction to the plaintiff’s earnings having regard to the accident and utilise the mean average of the plaintiff’s earnings but for the accident, and the plaintiff’s net loss of income would total an amount of R6,991,418. For general damages an award of R1,500,000 is made.

MINNAAR AJ

Facts and issue: This is an appeal against an order of absolution from the instance with costs. The. appellant prays that the order of the court a quo be set aside and replaced with the application for absolution from the instance being dismissed with costs. The appellant sued both defendants for damages he had allegedly suffered because of a motor vehicle accident which occurred on the R34 national road. It was the case for the plaintiff that the accident occurred due to the sole negligence of the defendants.

Discussion: It was submitted that plaintiff sought the court to find that the presence of the heap of soil on the road amounted to a prima facie case against the first defendant and that the first defendant failed to maintain the road. It was stressed that the alleged heap of soil on the road had nothing to do with the maintenance of the road by the first defendant. The reason therefore is, so the argument went, that on the version of the plaintiff, the roadwork was undertaken by the second defendant and not the first defendant. There is no evidence that the second respondent was responsible for the presence of an alleged heap of soil, as the appellant's evidence contradicts his pleadings and other documents in which he recorded the alleged incident.

Findings: The court a quo was correct in finding that it cannot simply infer that the appellant's hazard on the R34 was caused by the respondents and its consequential finding that there was no causal link between the accident and the alleged failure by the respondents to comply with their legal duty. There was no prima facie evidence of negligence tendered before the trail court against either of the respondents.

Order: The appeal is dismissed with costs.

Facts and issue: The applicant instituted an action against the Minister of Police (respondent. The applicant was arrested by members of the SAPS at his place of residence without a warrant of arrest on allegations of dealing in dagga. The respondent chose not to file any opposing papers. The court found that the respondent had failed to discharge the onus incumbent upon it to prove, on a balance of probabilities, that the arrest of the plaintiff was lawful.

Discussion: Very little information was provided regarding the applicant’s personal circumstances. No admissible evidence was presented whatsoever in support of a claim for loss of income and business opportunities. The court is limited to the facts as alluded to by the applicant and therefore has taken into account the manner of the arrest as described followed by the detention wherein the applicant suffered indignity. A reasonable arresting officer should have foreseen the possibility that, pursuant to an unlawful arrest, applicant would be remanded in custody because of the seriousness of the charges. These circumstances, and in the absence of any evidence to the contrary, it is reasonable and fair to hold the defendant liable for the harm suffered by the applicant for the whole period 14 days during which he was detained.

Findings: The SCA in Motladile v Minister of Police 2023 (2) SACR 274 (SCA) unanimously found that any attempt to “unify” calculation of quantum through a process that the SCA dubbed as a “one size fits all approach” is not in the interest of justice. The submissions as made by the applicant’s counsel on an amount representing just and fair quantum, are extremely too high. An amount between R450,000 and R500,000 would suffice as fair and just compensation for the damages proven by the applicant.

Order: A suitable amount for general damages to be paid by the respondent to the applicant is the sum of R475,000.

Facts and issue: The vexed question to be answered in this action is whether the plaintiff, a Tanzanian national, was unlawfully arrested and detained by members of the South African Police Service (SAPS) as alleged or whether the arrest was within the purview of section 40(1)(b) of the Criminal Procedure Act, 51 of 1977. The court deals with the question of liability. The arrest and detention are not disputed.

Discussion: The plaintiff was not a holder of a permanent residence permit. He explained that he was not in possession of any permit as he had applied for one, but it was not issued yet. The plaintiff’s temporary residence permit or visa expired. This supports the contention by the defendant that he was illegally in the country despite his passport still being valid. The probabilities are that the plaintiff was alerted by his immigration office in Tanzania that the Temporary Residence Permit had expired but he chose to ignore the warning and rather allegedly applied for an Emergency Travel Permit which is valid for a single trip. Whatever the explanation that the plaintiff gave to the authorities that resulted in him being issued with the Emergency Travel Permit, it does not detract from the fact that he was not permitted to be a temporary resident in South Africa since the expiry of his temporary permit.

Findings: Andreas issued a warrant for the detention of the plaintiff, on reasonable grounds after conducting the verification process and handed the warrant of detention to the SAPS. The plaintiff could not rebut the verification report that Andreas produced which confirmed that his Temporary Residence Permit had expired, and therefore justifying his decision to issue a warrant for his detention. Reasonable grounds existed for the arrest of the plaintiff. The arrest of the plaintiff was for the purpose of bringing him before court.

Order: The claim against the defendant is dismissed with costs.

Facts and issue: The plaintiff instituted an action against the defendant (RAF) for damages from injuries sustained by the plaintiff arising from a motor vehicle collision. One of the heads of the plaintiff's damages claimed is in respect of general damages. A dispute has arisen between the parties as to whether the court has the requisite jurisdiction to determine the plaintiff's claim for general damages. The plaintiff submits that the court does have the requisite jurisdiction to entertain the plaintiff's claim for general damages on the facts of this matter, with reference to the fact that the parties agreed that this was so when the matter was certified ready for trial.

Discussion: Mr Klaas, who appears for the defendant submits that the parties themselves could not agree to place the issue of general damages before the court and that whether or not the court ultimately acquires jurisdiction to entertain a claim for general damages depends upon whether the defendant has made an administrative election to allow that to happen. Adv Matika for the plaintiff drew attention to the decision in the matter of Mertz v Road Accident Fund A96/2021 (2 December 2022). In Mertz the Full Bench was also asked to resolve the issue as to whether the court a quo lacked the jurisdiction to make any award in respect of general damages because the jurisdictional facts necessary to qualify the appellant's injuries as a "serious injury" had not been established. The court accepts the argument put forward by Adv Matika that, in the present matter, the facts are even clearer (and support the case of the plaintiff even further) in that there is a clear acceptance (with no rejection) of the fact that the injury of the plaintiff is serious and will not be referred to the tribunal.

Findings: The attitude now adopted by the defendant and the last-minute instructions provided to Mr Klaas are difficult to understand. Unarmed without a formal application to withdraw an admission, Mr Klaas is now forced on behalf of his client to attempt to forestall the finalisation of the plaintiff's claim for general damages. This, even though the defendant has been in possession of the report of the medical practitioner who has assessed the plaintiff's injuries as serious for some considerable time but has failed to take any steps in respect thereof.

Order: The point in limine raised by the defendant that the court does not have the requisite jurisdiction to determine the plaintiff's claim for general damages, is dismissed. The plaintiff is entitled to proceed with his claim.

Facts and issue: When the matter was called, the court informed by Mr Louw for the plaintiff that a notice of intention to defend had been received by email shortly before the commencement of proceedings. The notice of intention to defend purported to be filed in terms of Rule 19(5) of the Uniform Rules of Court.

Discussion: A claim was duly lodged with the defendant. Liability was conceded by the defendant. This concession was made in terms of a formal offer by the defendant, and the acceptance thereof by the plaintiff. Summons was issued and served on the defendant. No notice of intention to defend was filed or delivered, and neither was a plea. An application for judgment by default was lodged by the plaintiff, and on the morning of the hearing the defendant entered its notice of intention to defend. The proviso in rule 19(5) which provides for the late filing of a notice of intention to defend is not to be read as operating to the exclusion of rule 27. While rule 19(5) makes provision that a notice of intention to defend may be filed at any stage before a judgment by default, rule 27 does not mean that no explanation is required.

Findings: If the defendant wishes to enter an appearance to defend at a late stage before default judgment has been granted, that the defendant in such circumstances is obliged to provide the court with an explanation on oath of why it is late in in giving such notice. The late filing of the notice of intention to defend was directed at 'buying time' or delaying matters. Such conduct is an abuse of the process of court.

Order: The notice of intention to defend is set aside.

Facts and issue: The question arose of whether the plaintiff’s attorney may charge Value Added Tax (VAT) on the contingency fee as provided for in the contingency fee agreement. Counsel essentially seeks a declarator and phrased the question to be considered as whether a plaintiff’s attorney is entitled to charge VAT over and above the contingency fee charged to the plaintiff.

Discussion: The actual question is whether the levying of VAT that renders payment by a client in terms of a contingency fee agreement to exceed the statutorily decreed 25% of the total amount awarded or any amount obtained by the client in consequence of the proceedings concerned is in line with the provisions of the Contingency Fees Act 66 of 1997. Section 2 limits the contingency fee that an attorney may recover from his client. A vendor’s duty to pay VAT is statutorily entrenched. If VAT is included in the 25% maximum success fee, practitioners registered as vendors would be disadvantaged compared to practitioners not so registered. The converse is also true regarding clients. If VAT is charged in addition to the maximum 25% success fee, a client who utilises the services of an attorney registered as a vendor will effectively pay more than a client who utilises the services of an attorney who is not so registered.

Findings: Counsel is correct in the submission that the limitation to charge VAT only arises where the added VAT would render the total fees payable by the client to exceed 25% of the award. A reading of the contingency fee agreement will determine its validity. If the success fee is capped to a maximum of 25% of the award, the agreement meets the statutory requirement in this regard. The levying of VAT that renders payment by a client in terms of a contingency fee agreement to exceed the statutorily decreed 25% of the total amount awarded or any amount obtained by the client in consequence of the proceedings contravenes the provisions of the CFA.

Order: Value Added Tax is included in the maximum fees that a practitioner is entitled to recover from a client in terms of section 2 of the Contingency Fee Act 66 of 1997.

Accident: Action for damages stemming from a motor vehicle collision where the plaintiff was the driver of a motor vehicle that collided with another motor vehicle driven by an identified insured driver. He sustained injuries as a result of that car accident.

Assessment: The matter turns on the issue of liability and quantum as well as whether the plaintiff was guilty of contributory negligence. The defendant does not dispute liability but sought only to reduce its liability. It is uncontroverted that the insured driver's motor vehicle suddenly left its lane and veered towards the plaintiff's lane of travel. The plaintiff stated that he moved to the right lane, the insured driver's lane of travel, to avoid the collision. The point of impact of the accident is not in dispute in that it occurred in the insured driver's lane. The plaintiff's conduct at the time he swerved into the insured driver's lane was reasonable. He saw the insured driver's motor vehicle veering into his lane. To avoid the collision, he drove into the oncoming traffic lane, and suddenly, the insured driver moved back to his correct lane.

Negligence: The plaintiff should have veered more to the right and avoided the collision. No evidence was presented that the plaintiff tried to avoid the collision whilst driving in the insured driver's lane or that the opportunity and space, or the busy road in terms of traffic, were a barrier to him, which caused him not to attempt to avoid the collision. Nothing is said about the open area he could have used at the time to avoid the collision and the condition of the road's surface where he would have swerved to avoid the head-on collision. By failing to travel further in the empty right lane, seeing that danger was about to occur, there can be no doubt that he acted negligently, as his actions drifted from those of a reasonable driver.

Award: There is sufficient evidence that the only cause of the accident was the insured driver's negligent act of omission when he did not veer more to the right to avoid the collision. The extent of the plaintiff's contributory negligence calls for determination. The plaintiff's conduct fell 10% short of what would have been expected of a reasonable person in his position. As a result, the defendant is liable to pay 90% of the plaintiff's proven damages.