THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 20006/2014
Not Reportable

In the matter between:

ETTIENNE TERBLANCHE                                                                APPELLANT

and
THE MINISTER OF SAFETY AND SECURITY                  FIRST RESPONDENT

INSPECTOR M I  MOGALE                                           SECOND RESPONDENT

Neutral citation:
Terblanche v The Minister of Safety and Security and
another  (20006/2013) [2015] 48 ZASCA (27 March 2015)

Coram:
Navsa ADP, Pillay, Saldulker JJA and Fourie, Mayat AJJA
Heard:
13 March 2015
Delivered:
27 March 2015
Summary:  Delict – claim for loss of earning capacity – farmer with specialised
skills – entitled to be compensated on the basis of the cost of
substituted labour.

ORDER

On appeal from: Gauteng Division, Pretoria (Preller J with Phatudi and
Mabuse JJ concurring sitting as court of appeal):

I
The appeal against the order of the full court, Gauteng Division,
Pretoria under case number A756/2008 dated 31 October 2013 is
upheld, with costs.
II
The order of the full court is set aside and substituted with the following
order:
„i)
Die appèl ten aansien van die vordering vir toekomstige verlies
aan inkomste word met koste gehandhaaf;
ii)
Paragraaf 1 van die bevel van die hof a quo gedateer 21
Februarie 2008 word aangevul deur die invoeging van die
volgende as paragraaf 1.4A
“Die bedrag van R 1 557 136.69 ten aansien van toekomstige
verlies aan inkomste;‟‟
iii)
Die appèl ten aansien van die vordering vir gelede verlies aan
inkomste word van die hand gewys;
iv)
Paragraaf 2 van die bevel van die hof a quo gedateer 21
Februarie 2008 word gewysig ten einde as volg te lees:
„‟Absolusie van die instansie word toegestaan ten aansien van
die eiser se vordering vir skadevergoeding weens gelede verlies
aan inkomste.”‟

______________________________________________________________

JUDGMENT

Mayat AJA ( Navsa ADP, Pillay, Saldulker JJA and Fourie AJ concurring)

[1] The only issue in the present appeal is whether or not the appellant,
Ettienne Terblanche („Terblanche‟), a farmer, had proved a claim for future
loss of earning capacity against the Minister of Safety and Security and a
police officer named Inspector M I Mogale (the first and second respondents
respectively) before the trial court (Visser AJ) in the Gauteng Division,
Pretoria. The trial court found that Mr Terblanche had not proved his loss of
earning capacity and the full court  (Preller J with Phatudi and Mabuse JJ
concurring) upheld this finding. The present appeal is against the decision of
the full court, with the special leave of this court.

[2] Terblanche‟s claim for damages against the respondents (conveniently
referred to as „the police‟) was premised upon injuries which he sustained on
20 July 2005 as a result of negligent conduct of the police. Pursuant to an
agreement between the parties relating to the liability of the police to
Terblanche and the quantum of certain other heads of damages claimed by
Terblanche, the issue before the trial court was limited to determining the
amount of Terblanche‟s claim for past loss of earnings and loss of earning
capacity. In terms of paragraph 2 of its order, the trial court granted absolution
from the instance in relation to Terblanche‟s claims for past and future loss of
earnings. The claim for past loss of earnings was subsequently abandoned
and the ambit of the present appeal is accordingly limited to the issue of the
quantum of Terblanche‟s future loss of earnings.

Pertinent evidentiary framework during the trial
[3] By way of background, it was not in dispute before the trial court that
whilst Terblanche was in police custody, he incurred severe injuries to his
head, neck and back, as a result of being tossed around in the back of a
police van negligently driven by police officers over rough terrain at high

speed. As regards his farming activities, Terblanche testified that he had
started farming in 1988 and had derived his income solely from farming at the
time he was injured. Thus, he had worked as a farmer for almost 20 years
when the matter came before the trial court in 2007. As regards his
qualifications for farming, Terblanche testified that he had completed a two-
year diploma in agriculture and had also completed a mechanical diploma,
specialising in diesel engines.

[4] Terblanche‟s farm had an extensive array of crops and he also farmed
with livestock and wild game. By all accounts, on the basis of the evidence
before the trial court, he was a „hands-on farmer‟ before he was injured in the
sense that he managed all aspects of the required functions on the farm,
including numerous physical tasks. Thus, for example, his activities on the
farm included mechanical work relating to tractors, vehicles and irrigation
centre pivots, described as „spilpunte‟ in the evidence. He explained in his
evidence in this respect that he maintained and monitored two centre pivots
on his farm: one with 14 towers for the purposes of crops on 100 hectares of
farmland as well as a smaller one with ten towers for the purposes of crops on
74 hectares of farmland. In addition, he performed a range of other functions
including monitoring the centre pivots, checking on related sprinklers,
mending electronic fences, repairing micro-switches for sprinklers and
measuring dipping fluids for different sized animals.  He also indicated that he
personally managed the repair of centre-pivots, which periodically (and
unpredictably) broke down.

[5] Terblanche further testified that after his back was injured, he was no
longer capable of continuing to do all the physical aspects of his farming work.
Thus, for example, he could no longer remove and pick up the gearboxes of
the centre pivots for the purposes of maintenance. He was also forced to
adjust certain physical tasks, such as for example reducing the size of bags
for fodder for animals from 50 kilogram bags to 12 kilogram bags.

[6] Terblanche testified that prior to the incident in this matter, apart from
seasonal workers from time to time, he employed seven permanent labourers

as well as a foreman, named Painter Kulela, who all lived on the farm. He
indicated in his testimony that in light of his injuries, he envisaged employing
an additional person to assist him with managing the farm, particularly in
relation to the physical aspects of work he could no longer perform. He also
testified that even with supervision, Mr Kulela did not have the ability to
perform these aspects of the work.  Similarly, he indicated that his other
permanent employees were not suitable for the additional assistance he
envisaged, simply by virtue of the fact that these employees already had
assigned job functions.

[7] In a joint minute on record by orthopaedic surgeons appointed by both
parties, it was not in dispute that Terblanche had suffered a severe injury to
his back whilst he was in police custody. The medical experts also agreed that
he was unfit for all physical aspects of farming activities previously carried out
by him. In addition, they also agreed that despite his injuries, Terblanche was
nevertheless still capable of managing his farm and supervising an additional
employee, specifically for tasks he was no longer fit to perform.

[8] Dr Deodat Maré, an orthopaedic surgeon, who gave evidence for
Terblanche, reported and testified that Terblanche should desist totally from
being a „hands-on farmer‟ as his back condition would progressively
deteriorate. Thus, Dr Maré opined that Terblanche was only fit for sedentary,
administrative or supervisory work in relation to physical tasks he had usually
performed. On this basis, Dr Maré anticipated that it would be necessary for
Terblanche to employ a skilled person in the future such as a farm foreman to
assist him with functions he was not capable of performing, post-injury.

[9] Ms Sonet Vos, an industrial psychologist retained on behalf of
Terblanche, indicated in her testimony that future income of a farmer is
generally difficult to predict as such income is dependent on a number of
uncertain variables such as the climatic conditions and the fluctuating price of
commodities such as wheat.  Be that as it may, she agreed with Dr Maré that
Terblanche would need to employ a farm foreman with technical and
mechanical knowlege as soon as possible.  In this way, she postulated that

Terblanche could continue deriving an income in a supervisory capacity for
the remainder of his days. Against this background, she suggested that
monetary compensation to Terblanche could at the very least be premised
upon the costs of employing a foreman at the Paterson salary scale of C5
(alternatively C3) until the age of 65 years. The actuaries retained by
Terblanche then calculated the costs of employing a foreman at three levels.
In the alternative, on the basis of the averment that Terblanche is entitled at
least to the costs of substituted labour in the form of an artisan on the B2
Paterson level of earnings, Terblanche‟s loss was actuarially computed to be
the sum of R1 557 136.99.

[10] An occupational therapist, Ms Dina Rocha, testified on behalf of the
police that she had conducted certain physical tests on Terblanche, including
strength tests as well as tests for his range of movement and agility.
Significantly, whilst Ms Rocha confirmed in her testimony that she was not an
expert in relation to farming, she nevertheless accepted the views of
Terblanche‟s experts to the effect that he should not continue doing heavy,
physical work on his farm. She further accepted on the basis of reports from
the relevant experts that by continuing to work on the farm, Terblanche had
accelerated the need for a future spinal fusion.

Findings of trial court
[11] Visser AJ found that Terblanche‟s existing employees could perform
physical activities on his behalf. Thus, the trial court found that
notwithstanding his injuries, Terblanche could still manage his farm by
delegating tasks to his existing employees. On this basis, the trial court
accordingly held that Terblanche had not proved and quantified his future loss
of income.

[12] A significant feature of the trial, which bears mentioning is the fact that
Visser AJ saw fit to cross-examine, debate and canvass with all witnesses
various topics throughout the course of the trial, apparently on the basis of the
judge‟s personal knowledge and experience as well as his own opinions on

expert evidence before him. In fact, the learned judge remarked on his own
conduct in this regard at one stage during the trial by asserting that:
„. . .dit sê ek maar vir u reguit, ek lewer nou „n bietjie getuienis. . . .‟

Findings of full court
[13] As already indicated, the full court agreed with the trial court that
Terblanche had not established on a balance of probabilities that he had
sustained any loss of earning capacity for which he could expect to be
compensated. The full bench consequently dismissed the previous appeal.

Loss of earning capacity
[14] The difficulty with claims of this nature is generally not so much the
recognition that earning capacity constitutes an asset in a person‟s estate, but
rather the quantification of the monetary value of loss of earning capacity by a
trial court. Each case naturally depends on its own facts and circumstances
as well as the evidence before the trial court concerned.

[15] As regards proof of Terblanche‟s loss, the trial court relied upon certain
dicta in Rudman v Road Accident Fund 2003 (2) SA 234 (SCA) relating to a
claim for loss of earning capacity by a mohair and game farmer, not dissimilar
to Terblanche. This court found in the circumstances of that case that the
injured Mr Rudman had not discharged the evidentiary onus of proving a
diminution in the value of his patrimony. Similarly, Visser AJ also found that
Terblanche had not discharged the onus on him. Significantly, the court in
Rudman’s case recognized that for the purposes of establishing a claim for
loss of earning capacity,
„[t]here must be proof that the reduction in earning capacity indeed gives rise to a
pecuniary loss.‟
It is pertinent in my view that the farmer in Rudman conducted his farming
activities through a company, and the court found in the circumstances of that
case, that the devaluation of his shares in this company was not established
by the evidence. As such, his personal patrimony was not really at stake.

[16] In contrast, on the basis of the undisputed evidence in the present
case, it was established before the trial court that Terblanche would sustain a
pecuniary loss in his personal capacity if the additional, necessary labour was
used to substitute certain aspects of his functions. Therefore, as this court has
held in President Insurance Company Ltd v Mathews 1992 (1) All SA 179; SA
1992 (1) (A) at 5E-G:
„There is no reason in principle why, in an appropriate case, the cost of employing a
substitute should not form the basis of a claim for damages arising from a plaintiff‟s
inability to carry on his pre-collision trade or profession. See Luntz Assessment of
Damages for Personal Injury and Death 2nd edition, 259. Thus a doctor who has
been temporarily incapacitated and thereby prevented from conducting his practice
could recover the cost of a locum tenens, assuming always the costs of employing
such locum tenens would be less than the loss of income or profits he would
otherwise have sustained. By adopting such course he is effectively mitigating his
damages, as he is obliged to do.‟
The principles enunciated in Mathews are accordingly clearly applicable in the
present case and the dicta in Rudman are distinguishable.

[17] In these circumstances, it is my view that the actuarial computations
made available to the trial court premised upon uncontroverted evidence,
constituted the most appropriate basis for the trial court to quantify
Terblanche‟s diminution of his patrimony. The different levels of actuarial
computations, which were made available to the trial court, ranged from the
computed loss in respect of a foreman with mechanical skills, at the highest
level, to the computed loss for an artisan on the B2 Paterson scale, who had
the potential to be trained and supervised by Terblanche, at the lowest level.
Whilst I accept that Terblanche did not establish a case for a mechanically
skilled foreman (at the highest level), I have no difficulty in finding that he had
established a case for the additional costs of an unskilled employee, who
could potentially be trained over time.  Counsel for both parties agreed in the
context of the present appeal that on the basis of the available actuarial
computations, substituted labour for an artisan for specified physical functions
was fairly and equitably calculated to constitute the sum of R1 557 136.69.

Conclusion
[18] For the reasons given, the trial court as well as the full court erred in
finding that Terblanche had not established a claim for loss of earning
capacity. The appeal relating to Terblanche‟s claim for the diminution of his
earning capacity must accordingly be upheld.

Costs
[19] Whilst Terblanche was represented by two counsel in this appeal, the
costs of two counsel were not justified, nor motivated. Therefore, to the extent
that Terblanche has been successful in the present appeal in relation to his
main claim for loss of future earning capacity before the trial court, I propose
granting a costs order in the normal course, not specifically providing for two
counsel.

Order
[20] The following order is accordingly made:
I
The appeal against the order of the full court, Gauteng Division,
Pretoria under case number A756/2008 dated 31 October 2013
is upheld, with costs.
II
The order of the full court is set aside and substituted with the
following order:

„i)
Die appèl ten aansien van die vordering vir toekomstige
verlies aan inkomste word met koste gehandhaaf;

ii)
Paragraaf 1 van die bevel van die hof a quo gedateer 21
Februarie 2008 word aangevul deur die invoeging van die
volgende as paragraaf 1.4A
“Die bedrag van R1 557 136.69 ten aansien van
toekomstige verlies aan inkomste;‟‟
iii)
Die appèl ten aansien van die vordering vir gelede verlies
aan inkomste word van die hand gewys;
iv)
Paragraaf 2 van die bevel van die hof a quo gedateer 21
Februarie 2008 word gewysig ten einde as volg te lees:

„‟Absolusie van die instansie word toegestaan ten
aansien van die eiser se vordering vir skadevergoeding
weens gelede verlies aan inkomste.”‟

________________________

H Mayat

Acting Judge of Appeal

Appearances
For the Appellant:

J O Williams SC

L W De Beer

Instructed by:

Vezi De Beer, Pretoria

Honey, Bloemfontein

For the Respondent:         D E Meyer

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein