Tsufu v Road Accident Fund (8774/2020) [2024] ZAGPPHC 1234 (27 November 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1234 | Noteup | LawCite sino index ## Tsufu v Road Accident Fund (8774/2020) [2024] ZAGPPHC 1234 (27 November 2024) Tsufu v Road Accident Fund (8774/2020) [2024] ZAGPPHC 1234 (27 November 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1234.html sino date 27 November 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case Number: 8774/2020 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: NO DATE: 27/11/24 SIGNATURE: In the matter between: D J TSUFU Plaintiff and ROAD ACCIDENT FUND (RAF) Defendant Delivered: This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by e-mail and by uploading it to the electronic file of this matter on Caselines. The date for hand-down is deemed to be 27 November 2024. Summary: Claim for the loss of earning capacity and income. No evidence to support the claim that the plaintiff has lost her earning capacity in light of the injuries she sustained following the accident. Other injuries allegedly sustained by the plaintiff are not supported by the available clinical records. This Court expresses doubt on the veracity of the injuries reported 5 days after the accident, that they are linked to the accident. Once a rule 38(2) order is granted, evidence is adduced and in the absence of further evidence being tendered an address must follow. This Court lacks the power to postpone a matter where its jurisdiction has not been established. Absent proof of the loss of capacity to earn an income, a claim for the loss of earning capacity and income must fail. Held: (1) The claim for the loss of earning capacity is dismissed. Held: (3) The plaintiff to pay the costs. JUDGMENT MOSHOANA, J Introduction [1] This is an action instituted by Ms Tsufu against the Road Accident Fund (RAF) for damages arising out of injuries sustained by her on 10 May 2019, whilst she was alighting from a moving taxi. The RAF has conceded to a 100% liability of the accident. The action proceeded before this Court only on the special damages claim for the loss of earning capacity and income. The RAF has not as yet made an election with regard to the seriousness of the injuries sustained by Ms Tsufu. Accordingly, this Court lacks jurisdiction over a claim for payment of the general damages. [1] The plaintiff requested that the claim for payment of the general damages be separated and postponed sine die . [2] In my view, this request cannot be acceded to for reasons that this Court lacks jurisdiction to entertain such a claim until the RAF makes an election as required by the Act. Where a Court lacks jurisdiction, a Court does not have power to do anything about a matter it lacks jurisdiction over. Postponement of a claim is part of exercising jurisdictional power. It is settled law that an order issued without the necessary jurisdictional power is a nullity. Were this Court to postpone the general damages claim, upon which claim it lacks jurisdiction, such an order will be a brutum fulmen . In Evans v Oregon Short R. R. Co [2] , the following was said: “ If a court has no jurisdiction of the subject of an action, a judgment rendered therein does not adjudicate anything. It does not bind the parties, nor can it thereafter be made the foundation of any right it is a mere nullity without life or vigour. The infirmity appearing upon its face, its validity can be assailed on appeal or by motion to set it aside in the court which rendered it, or by objection to it when an effort is made to use it as evidence in any other proceedings to establish a right. ” [3] An application within the contemplation of rule 38(2) of the Uniform Rules of the High Court was launched by Ms Tsufu and was not opposed by the RAF. Accordingly, this Court permitted that the evidence sought to be tendered shall be by way of an affidavit. The RAF did not present any form of evidence. Counsel was on brief on behalf of the RAF and she only made legal submissions based on the testimony tendered by Ms Tsufu in accordance with rule 38(2). At the commencement of the trial, counsel for Ms Tsufu sought to be favoured with a strange ruling by the Court. The ruling sought [4] The nature of the ruling sought was that Ms Tsufu be permitted upfront to present hearsay evidence allegedly in support of the collateral evidence on her earnings. Before this Court considers the only issue of the loss of earning capacity and earnings, it is appropriate, at this stage, to deal with this strange ruling sought. As a departure point, at any trial, a party does not require a ruling before any evidence may be tendered in support of its claim. Rule 38(2) only caters for the manner in which the evidence is presented as opposed to being permitted to give evidence. Presentation of evidence occurs when a party seeks to discharge the onus borne or discharge the evidentiary burden. If that presentation is objected to, on any basis, admissibility included, a ruling may be issued by a Court with regard to the admissibility of evidence so presented. At times, when an objection is raised, a Court may provisionally admit the presented evidence on certain conditions. [5] It must be mentioned that unless presented, and objected to, a Court has no manner of knowing whether the contemplated evidence amounts to hearsay evidence as defined in the applicable Act or not. It is unheard of for a Court to upfront sanitise, as it were, evidence, the nature of which is unknown to it, and most importantly before an attempt is made to give it. This is more like seeking a legal opinion from a Court. Such is a taboo in Court procedures. Counsel for Ms Tsufu did not remotely suggest that the contemplated evidence must be provisionally admitted on any suggested conditions. [6] Generally, hearsay evidence is inadmissible. A party seeking the admission of hearsay evidence, as opposed to the giving thereof, must satisfy the requirements of section 3 of the Law of Evidence Amendment Act 45 of 1988 . [3] The alleged hearsay evidence that Ms Tsufu was seeking a ruling on was related to the collateral evidence with regard to the alleged earnings of Ms Tsufu. The said evidence, was availed to the experts, on the basis of which, opinions were already formed. In terms of rule 38(2) , those opinions were presented by way of an affidavit. Of course, it was bewildering for this Court to still be requested to make a ruling on the leading of such already incorporated collateral evidence. [7] Collateral evidence simply entails evidence to support the conclusions reached by an expert. In its nature, the evidence amounts to hearsay and can only be admitted once the requirements of section 3 have been met. [4] It must be pointed out though, that the opinions of experts are not binding on a Court. As Lord Hodge aptly puts it, the role of an expert is to assist the Court in relation to matters of scientific, technical or other specialised knowledge which are outside the judge’s expertise, but the judge is the ultimate decision-maker. [5] [8] Mr Jordaan, who appeared on behalf of Ms Tsufu, after having made his submissions consequent upon a rule 38(2) order, and after counsel for the RAF had made submissions, stated to the Court that he had not closed Ms Tsufu’s case since he was awaiting a ruling whether he could be permitted to lead hearsay evidence or not. This was perplexing, owing to the fact that after the granting of a rule 38(2) application, he proceeded to address the Court in an attempt to persuade the Court to find in favour of Ms Tsufu or uphold her claim for the loss of earning capacity and income. He only adopted this totally bewildering stance after counsel for the RAF ostensibly poked holes in the case of Ms Tsufu on the aspect of loss of capacity to earn. [9] The purpose of rule 38(2) procedure is a practical one. It seeks to, where necessary, save litigation costs for the parties and the valuable time of a Court. If sufficient reasons are provided to a Court, evidence may be adduced by way of affidavit. The rule concerns itself with the manner or form of adducing evidence. The default position is that all evidence in a trial must be given orally. This affords the other party a valuable opportunity to cross-examine or challenge a witness. Such an opportunity does not avail where evidence is on affidavit. Thus, once a Court orders that evidence may be adduced by way of an affidavit, then such evidence is so adduced. If a party seeking to rely on the evidence so adduced, still wishes to adduce further evidence orally, such a party is free to do so without first seeking any permission to do so from a Court. It ought to be remembered that evidence on affidavit has less probative value as compared to the evidence tested through the valuable tool of cross-examination. [6] This Court had observed that evidence on affidavit does also deprive a Court of a valuable opportunity to seek clarity from the reports by experts. [10] Once a party begins to make legal submissions or delivers an address, it follows axiomatically that that party is not seeking to lead further evidence. These two distinct procedural stages must not be conflated. The one (adducing of evidence) follows the other (addressing the Court). Rule 39(10) contemplates that upon both cases being closed, only then would an address follow. Rule 39(23) provides that a judge may, at the conclusion of the evidence in a trial action deal with the manner and duration of the addresses. [11] Rule 39(5) specifically provides that where the burden of proof is on the plaintiff, s/he or one advocate for the plaintiff may briefly outline the facts intended to be proved and the plaintiff may then proceed to the proof thereof. The outline of facts, generally known as an opening statement, must be brief. Ordinarily, an address is longer, since it seeks to persuade a judge to return a favourable verdict, as compared to an outline of the facts. It is not required by this subrule that after outlining the facts a plaintiff must be permitted to proceed to prove the outlined facts. As indicated, by seeking to adduce evidence by way of affidavit, Ms Tsufu was proceeding to the proof of her case thereby. This Court is of the respectful view that when counsel for Ms Tsufu submitted that the case of Ms Tsufu was not closed, counsel was being mischievous. Such conduct is not to be expected from counsel. [12] Mr Jordaan, at the eleventh hour, as it were, after the RAF counsel had made her address, informed the Court that had the Court made a ruling that the plaintiff is not allowed to lead hearsay evidence, he would have applied for the postponement of the trial to enable him to lead viva voce evidence. Yet again, the mischievousness reared its ugly head. What counsel was seeking to do is no different from a situation where in motion proceedings counsel comes to the realisation that the shoe is pinching (the dispute of fact is incapable of being resolved on affidavit) and only then seek to apply to Court to have the dispute of fact be referred for oral evidence. If Ms Tsufu’s counsel was minded to seek a postponement, on the assumption that he was fully prepared for the case, he ought to have applied for postponement before making any legal submissions or address. [13] Howbeit, at no stage did counsel suggest that a witness whose testimony was adduced by way of affidavit must be recalled within the contemplation of Rule 39(15). Nevertheless, given the view this Court takes at the end of the case, the issue of the collateral evidence of the earnings, is somewhat nugatory. Pertinent background facts and evidence tendered by way of affidavit. [14] Allegedly, on 10 May 2019, Ms Tsufu fell from a moving taxi and sustained some injuries. Based on the referral letter from Ramakonopi Community Health Centre, Ms Tsufu was seen on 11 May 2019. There are no clinical records availed from the health centre. There is nothing to suggest that on 10 May 2019, Ms Tsufu received any medical attention. The injuries recorded by the health centre were cuts to the head and to the left leg. On the same date of the transfer letter, 11 May 2019, she was admitted at Thelle Mogoerane Regional Hospital. [15] At the regional hospital the blood pressure of Ms Tsufu was recorded as being 162/108 and her GCS was 15/15. The injuries that she presented with on that day were recorded by the hospital to be (a) laceration on the left scalp and (b) laceration on the left leg. I interpose to mention that these injuries are consistent with those recorded by the health centre. It is unclear though, from the hospital records, as to when Ms Tsufu was discharged after the admission of 11 May 2019. Regard being had to the injuries she presented with on admission, it may not be surprising to discover that she was discharged on the same day or a day after. There are no clinical notes for the 12 th to the 14 th of May 2019. However, the records reflect that on 15 May 2019 at around 22h38 she arrived as a referred patient at the hospital complaining of a headache and was also vomiting. 15 May 2019 was a Wednesday. As recorded, the headache and the vomiting had commenced on a Monday which was 13 May 2019. She also complained of dizziness as she stands as well as tinnitus. [16] On being clinically examined, the hospital records reflect that her GCS was 15/15 and she had a head injury with a wound at the back which was covered as well as a swollen injury on the left leg. On the 16 May 2019, the hospital records reflect that the X-ray taken did not reveal any fracture on the left leg nor any dislocation. The injury on the head was recorded as being mild head injury. The CT scan did not reveal any intracranial fracture. On that day of 16 May 2019, the hospital records reflect that either Dr Malan or Dr Govender, provisionally diagnosed Ms Tsufu of Cellulitis [7] on the swollen left leg. [17] On 24 May 2019, Ms Tsufu was discharged from the hospital with a final diagnosis of left leg Cellulitis. It is recorded by the experts, as narrated to them by her, that after being indisposed for a while, she returned to her place of work as a Cook. She continued to work as a Cook until when she resigned in order to obtain new employment. She resigned in January 2020. At the beginning of February 2020, as she had wished, she obtained and commenced employment as a cleaner/tea lady at Nordbak (Pty) Ltd. She worked at Nordbak (Pty) Ltd for a period of over a year whereafter she reportedly absconded. [18] Ultimately, Ms Tsufu assisted by her attorneys of record lodged a claim with the RAF. In the claim form, her attorneys recorded the following to be her injuries sustained during the motor vehicle accident; (i) facial laceration; (ii) laceration left lower limb; (iii) laceration left shoulder; (iv) blunt head trauma. [8] I interpose to mention that these recorded injuries are not on all fours with the ones recorded in the available clinical records, in particular that of the blunt head trauma. Testimony of the relevant experts confirmed that Ms Tsufu left her alleged employment as a Cook, which she returned to after the motor vehicle accident, in order to receive a better employment offer as a cleaner and tea lady. [9] The report of the Orthopaedic Surgeon (OS) reveals that all the complaints, as recorded in the report, were relayed by Ms Tsufu to the expert. The examination by the OS revealed clinical weakness on the left arm. I interpose to mention that the injury on the left arm is not consistent with the injuries as recorded by the health centre and the hospital on 11 May 2019. The OS deferred to an Occupational Therapist (OT) and an Industrial Psychologist (IP) with regard to the working ability of Ms Tsufu. [19] The report of the OT records that Ms Tsufu told her that she worked as a Cook at Wadeville and left that employment to find other work. She referred to intermittent pain over the left ankle which she expected will improve with appropriate treatment. According to the OT, Ms Tsufu was fit to perform light physical duty until her retirement age. The IP reported that, as informed, Ms Tsufu had worked as a Cook at a canteen from 2012 until 2020 and she was allegedly earning R550 per week paid to her in cash. The OT was unable to obtain any collateral evidence on this information because Ms Tsufu told her that the alleged restaurant owner did not want to have anything to do with this. Ms Tsufu told the IP that she resigned as a Cook in order to obtain new employment. At Nordbak (Pty) Ltd she was on light to medium duty and earned R4319.99 a month. I pause to mention that this figure is not the same as the one submitted by Nordbak (Pty) Ltd to the Department of Labour. The IP was informed by the PA to the MD of Nordbak (Pty) Ltd that Ms Tsufu was not at the risk of losing her employment at Nordbak (Pty). [20] The IP based most if not all of her findings on the report by the Physiotherapist and the other experts. The Physiotherapist was told by Ms Tsufu during examination that she still experiences difficulties following the head and leg injuries allegedly related to the accident on 10 May 2019. Based on that relayed information, the Physiotherapist expressed a feeling that the head and leg injuries has had an impact on Ms Tsufu’s productivity. Ms Tsufu also told the Physiotherapist that she still struggles due to the debilitating effects of the accident. Analysis [21] This Court does acknowledge that the RAF did not deliver any countervailing testimony. The legal challenge mounted by the RAF was located on the issue of the alleged loss of earning capacity. Counsel for the RAF dexterously argued that regard being had to the first recorded injuries (cuts or lacerations on the head and the leg) it is improbable that Ms Tsufu lost her capacity to earn. None of the experts could confirm that Ms Tsufu, when she returned to work as a Cook, she was incapable of performing her duties as a Cook. Their conclusions are based on the say-so of Ms Tsufu. This remains inadmissible hearsay evidence. The application to lead evidence by way of affidavits is confined to the testimony of the experts. [22] This Court must state that an incapability to perform duties is not a matter for the experts. It requires the evidence of the incapacitated plaintiff. Before me, other than the inadmissible hearsay evidence, no proper evidence was led by Ms Tsufu with regard to the alleged debilitating effects of the injuries sustained at the accident. Regard being had to the injuries recorded on 11 May 2019, it is improbable that a laceration or a cut may render an injured person to experience capacity loss. This improbability is supported by what the experts reported. As reported, Ms Tsufu returned to her duties as a Cook and most importantly, she resigned not because she was not coping due to the injuries but in order to look for another employment. Another employment she obtained and performed light to medium duties of cleaning up to eight rooms for a period of over a year. She absconded. Even if she could have told the experts that she absconded due to the sequelae of the accident, such remains an inadmissible hearsay evidence. [23] The submissions by Mr Jordaan that these alleged employers were sympathetic employers is predicated on nothingness. On the reported evidence of the experts, at Nordbak (Pty) Ltd, Ms Tsufu was not at the risk of losing her employment. Had she not absconded she would still be in employment and would have, as confirmed by the experts, remained in employment at the same level until the retirement age. Clearly, there is no proper objective evidence that Ms Tsufu lost her capacity to earn. As correctly submitted by Counsel for the RAF s/he who alleges must prove. This Court is in agreement with what was stated in Kearns v Clark (Kearns) [10] where the Court said: “ In order for a jury to be permitted to consider a future loss of earning power, it is necessary that there be competent evidence of the likelihood that disability will continue in the future . Evidence that permanent injury has been sustained is not equivalent to evidence that future earning capacity has been impaired. There must be evidence from which a jury can reasonably infer that earning power will probably be reduced or limited in the future ” [11] [24] The test is whether the economic horizon of the disabled person has been shortened because of the injury sustained. For an example, a police officer who fractures a leg may still return to employment as a police officer. However, a police officer who patrols the streets may not move rapidly and such would certainly impair his earning power. But if his pre-morbid work did not involve patrolling and that his future promotional work would not involve patrolling, it cannot be said that because he at some point fractured his leg, his earning power has been diminished thereby. At the restaurant, Ms Tsufu was performing low to medium duties after the injury. There is no evidence to support any conclusion that she had any difficulties in performing those duties, except her say-so. She resigned specifically for greener pastures reasons. As an injured person, she obtained a low to medium duty and worked for over a year until she absconded. With those objective facts, this Court is unable to accept or infer that Ms Tsufu’s earning power was reduced or limited. [25] This Court must also deal with the poor, contradictory and unsatisfactory evidence regarding the injuries sustained by Ms Tsufu. This issue was sharply raised in argument by counsel for the RAF. On her version, Ms Tsufu was injured on 10 May 2019. However, it seems pretty obvious that she did not receive any medical attention on the 10 th of May. There are no clinical records to support any receiving of medical attention on the 10 th . This is concerning and actually awkward for a person who sustained injuries serious enough to produce sequelae which affect her earning power.  It is important to note that the RAF has not as yet made an election on the issue of the seriousness of the injuries. The admitted liability only relates to the alleged negligence of the insured driver. On the available records, Ms Tsufu was referred for clinical examination by the SAPS at Katlehong. This is perplexing too, because on her version contained in the first affidavit, from the scene of the accident she was transported to the local clinic. It is unusual for motor vehicle accidents victims to be referred for a J88 medical examination. Usually, the police would refer for medical examination, victims of crime, for an example assault. Dr Randela examined Ms Tsufu on 11 May 2019. In a J88 examination form, Dr Randela recorded lacerations on the scalp and left leg. Curiously, the J88 medical examination was requested by an investigating officer. Was Ms Tsulu assaulted, this Court cannot surmise. [26] On 11 May 2019, one Sergeant Mchunu of the Katlehong SAPS completed a request to doctor for examination in a case of alleged assault. The complainant to be examined is recorded as Dieketseng Tsufu. Amazingly, the request form stated the particulars of the case as having happened on 10 May 2019 at 23h00 at Natalspruit Park. This information raises serious eyebrows with regard to the alleged motor vehicle accident on 10 May 2019. The hospital records of 15 May 2019, strangely details the following information: “ 15/05/19 22:38 pm  35y/o female pta with a history of head injuries … LOC (MVA) 5/7 ago . MC: She comes complaining of headache & vomiting. Pta comes complaining of back headache which started on Monday and has progressively been getting worse, the headache does not alleviate with any pain medication taken by the patient and is accompanied by vomiting with nausea which also started on Monday. Further she reports dizziness on standing up and tinnitus. No amnesia reported” [27] What compounds this issue is that on 15 May 2019, there is evidence that Ms Tsufu was seen at Ekurhuleni Metropolitan Council Motsamai Clinic (Motsamai). The patient referral form revealed the following: “ Provisional diagnosis/ Reason for referral : Head injury bleeding scalp and swollen left leg for further investigation and management please. Comments : Client vomiting not retaining anything. Signature of Health Practitioner------------------------------------------- date 15/5/19” [28] It seems obvious that Ms Tsufu was at the very least outside the hospital on 15 May 2019, hence she attended to Motsamai and was referred to the hospital. If indeed the accident had happened on 10 May 2019, would she still presents with a bleeding scalp 5 days later? If, when she was admitted at the hospital on 11 May 2019, she was perhaps discharged on that day or the following day, would she be discharged whilst still bleeding? It is doubtful that these injuries provisionally diagnosed by Motsamai on 15 May 2019 are related to a motor vehicle accident alleged to have happened on 10 May 2019. The accident report was completed by one Captain E T Mahlalela of Vosloorus SAPS only on 30 May 2019 at 12; 04. Ms Tsufu deposed to two affidavits. The first was deposed before Captain Mahlalela and it bore a police stamp of 22 May 2019. In that first affidavit she stated that the accident happened on what appears to the naked eye as 15 May 2019 and she sustained injuries on the head and the body. She does not mention in that affidavit where exactly the accident happened. She was allegedly taken to the hospital by somebody else since the taxi driver had failed to stop after she fell off the taxi. [29] This first statement, if the naked eye does not deceive, [12] seems to be consistent with the recordal by Motsamai on 15 May 2019. She, in the Court’s view, is expected to still be bleeding when she reached Motsamai. The second affidavit was deposed to on 2 September 2024. In that affidavit she clearly states that the accident happened on 10 May 2019. She even states the place where the accident happened in Vosloorus. As pointed out earlier there is no evidence to suggest that she was received by a hospital on 10 May, if the first affidavit refers to 10 May as opposed to what meets the naked eye – 15 May 2019. The accident report, which was only completed on 30 May 2019 also records that the accident happened on the 10 th as opposed to the 15 th . The police officer who completed the accident report was a commissioner of oaths in front of whom Ms Tsufu took oath on the first affidavit. Although the RAF has admitted negligence liability, it seems to this Court that this may be a bogus claim. Further thorough investigations may be warranted on this claim. [30] The report by the OS states nothing about the referral letter from Motsamai. According to the report the accident happened on the 10 th and she was allegedly treated at the local clinic. With regard to the 15 th , the OS only reports that Ms Tsufu returned to the hospital on the 15 th May. Nowhere does she report any medical attention by the hospital during the period 12-14 May. Nowhere does she refer to a discharge after the admission of 11 May 2019. This is very concerning and extremely worrying for this Court. The OT says nothing about the injuries recorded by the health centre on 11 May 2019, yet she also records that the accident happened on 10 May 2019. [31] The injuries she considered, upon which she formed an opinion, are those presented on 15 May 2019. She too, says nothing about the Motsamai referral letter. The Clinical Neuro Psychologist suggests that Ms Tsufu was hospitalised for two weeks. She too, say nothing about Motsamai. She confirmed that on 15 May 2019, the head injury was sutured. This is consistent with what Motsamai observed, a bleeding scalp on 15 May 2019. The IP also makes no reference to Motsamai. She accepted the say-so of Ms Tsufu that the accident happened on 10 May 2019. At all instances where the narration of Ms Tsufu is repeated by the experts, nothing about Motsamai is mentioned, yet, it is the first medical facility she visited on 15 May 2019 where she presented with a bleeding head at the back and a swollen leg. [32] Ultimately, this Court is left with the question whether the injuries that were first presented to Motsamai and treated for a period until 24 May 2024 are related to an accident that happened on 10 May 2019 or not. Additionally, this Court must ask, if, as it appears to be more probable than not, shortly after 11 May 2019, Ms Tsufu was discharged after the injuries that were first presented to the health centre on 11 May 2019, why would she present to Motsamai with a bleeding scalp 5 days after the accident. Something happened to Ms Tsufu on 15 May which caused the injuries she presented with at Motsamai. Somewhere, somehow, someone is being untruthful. Who, this Court cannot tell, hence a suggestion for a thorough investigation of this claim. It is by now an open secret that the RAF is sadly infested with bogus claims. This does not suggest that the legal representatives involved in this matter have lodged a bogus claim. Sadly, some of the bogus claimants get paid for, using taxpayers’ coffers. This leaves uneasiness on the part of this Court. The probabilities suggest that the injuries presented on 15 May 2019 are not related to the motor vehicle accident of 10 May 2019. This Court agrees with the submission by the RAF counsel that the injuries which allegedly caused Ms Tsufu to lose her earning capacity is suspect. Counsel for Ms Tsufu successfully objected to a submission she attempted to make with regard to cellulitis. [33] Although this Court sustained the objection, doubt still lingers in the mind of this Court as to whether this cellulitis is related to the accident of the 10 th May or it is something related to the injuries possibly sustained on 15 May 2019 – it being not the day of the accident. With this doubt, it is difficult for this Court to accept the testimony of the experts that all the sequelae are related to the injuries sustained on 10 May 2019. There is a perspicuous indication that on 15 May 2019, some other injuries were inflicted on Ms Tsulu and those injuries are completely decoupled from the injuries sustained on 10 May 2019. [34] As this Court concludes, no satisfactory evidence was led in support of the claim for the loss of future earning capacity. With regard to past loss, this Court is not satisfied that Ms Tsufu was indeed employed as at the time of the accident. The allegation that she was so employed is supported by inadmissible hearsay evidence. What compounds the hearsay evidence is that she was allegedly paid by cash and the restaurant owner allegedly said he wants nothing to do with Ms Tsufu’s case since she was no longer employed by him. Why the owner was not subpoenaed, it remains a mystery to this Court. [35] For all the above reasons, I make the following order: Order 1. The loss of earning capacity claim is dismissed. 2. The plaintiff must pay the costs on a party and party scale to be settled or taxed on scale A. GN MOSHOANA JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA APPEARANCES: For the Plaintiff:                                                      Mr GG Jordaan Instructed by:                                                          Van Niekerk Attorneys Inc, Pretoria For the Defendant:                                                 Ms C Mothata Instructed by:                                                          State Attorney, Pretoria Date of the hearing:                                               14 November 2024 Date of judgment:                                                   27 November 2024 [1] Duma v RAF 2013 (6) SA 9 (SCA). [2] [1915], 51 Mont 107 [3] See Kapa v S 2023 (4) BCLR 370 (CC). [4] See Msiza v RAF (A163/16) dated 07 December 2020. [5] TUI (UK) Ltd v Griffiths [2023] UKSC 48. [6] See S v Piennar 1992 (1) SACR 178 (W) at 180h and Mathebula v S (431/09) ZASCA 91 (11 September 2009) at paragraph 11. [7] This is a common bacterial skin infection. This is caused by bacteria that enter a break in the skin. [8] Blunt force trauma to the head is also known as a closed head injury or traumatic brain injury (TBI) and it occurs when the brain is moved inside the skull by an external force. [9] Orthopedic Surgeon Dr Oelofse. [10] 493 A 2d 1358 (1985). [11] Kearns at 1364 [12] The date of the accident appears to be 15 May 2019. sino noindex make_database footer start