Acting Judge M Wessels dismissed Oaitse Comfort Letsholonyane's claim for past and future loss of earnings against the Road Accident Fund (RAF).
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A man who was seriously injured in a head-on collision on the N4 between Lobatse and Zeerust lost his bid for nearly R2.9 million in compensation after a court found he had given contradictory explanations for why he lost his job, according to a judgment handed down in the North West High Court, Mahikeng.
Acting Judge M Wessels dismissed Oaitse Comfort Letsholonyane’s claim for past and future loss of earnings against the Road Accident Fund (RAF).
The fund was ordered to cover his future medical costs for a right elbow injury sustained in the crash.
Conflicting accounts sink earnings claim
According to the judgment, Letsholonyane was driving a Toyota Tazz on 26 June 2022 when a Toyota Hilux driven by Kagiso Oabile Phetew collided head-on with his vehicle.
The court heard that liability, general damages of R400 000, and future medical expenses had already been settled, leaving only the loss of earnings claim, quantified at R2 877 965, for determination.
At the centre of the dispute was how Letsholonyane lost his job at DEKRA Automotive.
Wessels noted that a dismissal letter from the company, dated 12 October 2023, stated: “Based on the evidence put before me, I find you guilty as charged, due to incapacity.”
However, the judge pointed out that Letsholonyane’s own industrial psychologist, Thomas Tsikai, had recorded a different version, noting that his client “was subsequently dismissed from employment due to insubordination on the 12th of October 2023.”
Wessels drew on the Labour Appeal Court’s description of insubordination in Sylvania Metals (Pty) Ltd v Mello N.O. and Others, which characterised it as “a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employer’s authority.”
The judge found this concept could not be reconciled with medical incapacity, since the two were “mutually exclusive in this context.”
Counsel’s concession and the burden of proof
During arguments, plaintiff’s counsel reportedly conceded that insubordination did not directly relate to medical incapacity, though he maintained that Letsholonyane’s competitiveness in the open labour market remained compromised.
Wessels was not persuaded, finding that Letsholonyane had failed to explain the discrepancy through his own affidavit or any supporting documents.
The judgment stated that Letsholonyane bears the onus of proving, on a balance of probabilities, that the specific loss would not have occurred but for the accident.
Because Letsholonyane had “advanced two contradictory and unclarified versions for the termination of his employment, he has failed to discharge the onus of proving a direct causal nexus between the accident and his actual loss of employment,” the judge found.
Expert opinion found to lack medical foundation
The court also took issue with the industrial psychologist’s assessment of Letsholonyane’s future earning capacity.
Tsikai had compiled a list of symptoms reported by his client, including headaches, dizziness, compromised eyesight, forgetfulness and heightened anxiety, which Wessels described as “the uncorroborated symptoms.”
According to the judgment, the orthopaedic surgeon who examined Letsholonyane, Dr Peter Kumbirai, had diagnosed only an open fracture of the right olecranon with localised pain and restricted movement, and had not identified any head trauma, cognitive deficits or neurological impairment that could explain the wider list of complaints.
Wessels found that “an industrial psychologist who accepts a claimant’s self-reported complaints at face value and converts those unverified reports into assumed medical facts, upon which an earning capacity opinion is then constructed, oversteps the boundaries of the discipline.”
Citing the Supreme Court of Appeal’s decision in Bee v RAF, the judge repeated the principle that “an expert witness is required to assist the court and not to usurp the function of the court” and that opinions lacking proper reasoning are inadmissible.
On this basis, Wessels declined to attach any weight to Tsikai’s projected post-morbid earning capacity of roughly R36 800 a year.
Actuarial certificate called insufficient
The plaintiff’s actuarial evidence fared no better.
Wessels noted that only a single-page certificate from Dr Robert Koch had been submitted, which “completely omits the basis of an actuarial valuation, failing to disclose the capitalisation rates, the discount rates applied, the contingency deductions utilised, or the specific allocations for past versus future loss.”
Plaintiff’s counsel had argued that contingency deductions could account for gaps in the evidence, relying partly on Southern Insurance Association Ltd v Bailey NO.
Wessels agreed the case was relevant but said counsel’s reliance on it was incomplete, explaining that the Bailey enquiry “sets out the enquiry in two stages,” with the soundness of underlying assumptions considered first and the court’s discretion over contingencies applied only afterwards.
As the judge put it, “contingencies operate at the second stage, once a sound evidentiary foundation has been laid. They cater for the ordinary hazards of life, not for a failure of proof.”
Medical undertaking granted, no costs order
Despite dismissing the earnings claim, Wessels found the physical injury to the elbow was not in dispute and ordered the fund to provide a statutory undertaking under section 17(4)(a) of the RAF to cover future treatment, including removal of surgical hardware, manipulation under anaesthesia, and various assistive devices recommended by an occupational therapist.
On costs, Wessels ruled that neither party would be ordered to pay, reasoning that “it would be unjust to saddle the defendant’s public funds with the costs of that inflated and unproven claim,” given that the loss of earnings claim represented the bulk of the case’s monetary value and had failed entirely.
