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HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 9117/2019
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
DATE: 18 APRIL 2024
SIGNATURE
In the matter between:
T[...] P[...] R[...] obo
P[...] M[...] M[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
Summary: Procedure – Action for damages -Road Accident Fund (RAF) litigation
– clarity on the position where, as so often happens, the RAF’s defence has been
struck out. Until such time as the RAF has successfully rescinded a striking out
order, it still has a right of appearance , can cross-examine witnesses and can argue
the merits of a plaintiff’s case (including the quantum thereof) but can lead no
evidence and cannot advance facts not put in evidence by the plaintiff.
Procedure – RAF litigation – substantive amendment of the plaintiff’s particulars of
claim after the RAF’s defence had been struck out – pleadings reopened and the
RAF entitled to “re -enter the fray” but only in respect of those issues affected by the
amendment.
ORDER
1. The Defendant shall be liable for 100% of the Plaintiff’s proven damages.
2. The Defendant is ordered to pay the Plaintiff the amount of R6
738 420,00 (Six million seven hundred and thirty-eight thousand
four hundred and twenty Rand).
3. This amount shall be paid into the following bank account, on or before
the expiry of 180 days from the date of this order:
ACCOUNT HOLDER J M MODIBA ATTORNEYS
BANK NAME STANDARD BANK
BRANCH CODE 0[...]
ACCOUNT NUMBER 0[...]
TYPE OF ACCOUNT TRUST ACCOUNT
REF REF: M[...] M[...] /[...]
3.1. The Defendant will not be liable for interest on the above -
mentioned amount provided that it is paid on or b efore the
expiry of 180 days from the date of this order, failing which
interest at a rate of 8.75% per annum will be payable
calculated from the 15th day from the date of this order.
4. The Defendant shall furnish the Plaintiff with an u ndertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act, 56 of 19 96 for the
reasonable costs of the future accommodation of the Plaintiff in a
hospital or nursing home or treatment of or rendering of a service to he r
or supplying of goods to her resulting from the injuries sustained by the
Plaintiff’s and of administering and enforcement of this undertaking, as a
result of the motor vehicle collision which occurred on 09 th April 2017,
after such costs have been incurred and upon proof thereof.
5. The Defendant shall pay the Plaintiff’s taxed or agreed party and party
costs on a High Court scale. In the event that the costs are not agreed, it
is ordered that:
5.1. The Plaintiff shall serve the notice o f taxation on the Defendant’s
attorneys of record;
5.2. The Plaintiff shall allow the Defendant Fo urteen (14) court days to
make the said payment of the taxed costs; and
5.3. Should payment not be effected timeously, the Plaintiff will be
entitled to recover interest a temporae morae on the taxed or
agreed costs from the date of allocatur to the date of final
payment.
6. The costs in paragraph 5 above shall also be paid i nto the Plaintiff’s
attorneys’ trust account referred to in paragraph 3 above, for the benefit
of the Plaintiff.
7. The issue of general damages is postponed sine die.
________________________________________________________________
J U D G M E N T
________________________________________________________________
This matter has been heard in open court and is otherwise disposed of in terms of
the Directives of the Judge President of this Division . The judgment and order are
accordingly published and distributed electronically.
DAVIS, J
Introduction
[1] This is an action against the Road Accident Fund (the RAF) for compensation
of damages suffered by one P[...] M[...] M[...] (who became the eventual plaintiff
upon attaining majority) as a result of a motor vehicle accident which had occurred
on 9 April 2017. At the time of the accident the plaintiff was 12 years old. He was, at
the time when the matter came before court , 19 years old and had substituted his
mother who had initiated the action on his behalf.
[2] Apart from the issues of merits and quantum, which had been placed before
the court by the plaintiff for purposes of obtaining a default judgment, two further
issues featured in th is matter. The first is what the position of a defendant is whose
defence had been struck out and how far such a defendant may still participate in the
proceedings. The second is what the procedural consequences are when a plaintiff
substantially amends its particulars of claim after a defendant’s defence has been
struck out. Both these last two issues feature regularly in the numerous RAF matters
which come before this court daily, both in the Pretoria and Johannesburg Division of
this court.
Procedural history
[3] As can be gleaned from the above, an analysis of the procedural history of the
matter is necessary and will provide context. Th e history of those procedural steps
relevant to the issues can be summarized as follows:
11 February 2019 Summons was issued;
12 February 2019 Service took place;
27 February 2019 Notice of intention to defend was delivered;
27 February 2019 Notices in terms of Rules 36 (4) and 35 (14) were
delivered by the RAF , calling for the production of
medical records and ancillary documents.
6 March 2019 The plaintiff furnishe d the RAF1 Form and hospital
records f rom Tembisa Hospital as well as claim
documentation, proof of identity, an affidavit in terms of
section 19(f) of the Road Accident Fund Act 1 as well as
the police docket pertaining to the motor vehicle accident.
11 March 2019 The RAF’s plea (including special pleas) was delivered.
26 May 2023 Mogotsi AJ order ed the RAF to deliver its discovery
affidavit and to indicate a time and date for a pre -trial
conference within 10 days from the service of the order.
16 August 2023 Francis-Subbaiah J struck out the defendant’s defence
for want of compliance with the order of 26 May 2023 and
the plaintiff was authorised to refer the matter to the
Registrar for allocation of a date for purposes of seeking
judgment by default.
23 August 2023 The striking out order was served on the RAF.
19 October 2023 The plaintiff served a notice in terms of Rule 28 to amend
his particulars of claim. In particular, the amount of
damages initially claimed in the amount of R6 ,4 million
would be amended and increased to R11,4 million.
2 November 2023 The amended pages of the particulars of claim were
delivered.
16 November 2023 The RAF deliver ed a new notice to defend as well as a
new plea entitled a “Consequential Defence Amendment”
(as well as a new notice in terms of Rule 35 (14) calling
for copies of pre-accident school records).
1 56 of 1996
17 November 2024 The matter came before court on the default judgment roll
and was stood down for purposes of delivery of heads of
argument regarding the RAF’s position.
30 November 2024 The whole of the plaintiff’s case and the defendant’s
opposition thereto were argued.
The consequences of a defendant’s defence being struck out
[4] In simple terms , once a defendant ’s defence (contained in its plea) is struck
out, it means that there is no defence before the court by which the defendant
answers to or den ies the plaintiff’s cause of action. This is why the plaintiff in those
circumstances is allowed to proceed to obtain judgment by default.
[5] In substantiation of the above position t he plaintiff in this matter sought to
have any further participation in the matter by the defendant precluded by relying on
old authorities in which the court had held that, once a defence is struck out, a
defendant “… shall be placed in the same position as if he had not defended”.2
[6] In Minister of Safety and Security v Burger 3 Tlhapi J had been referred to
these old authorities and, during the course of dealing with an application for
rescission, rejected the argument that the striking of a defence “ left roo m for the
[defendant] to still participate in the trial as far as the determination of quantum is
concerned”.
[7] The plaintiff in this matter not only relied on the above but also on the
following extract from Herbstein and Van Winsen 4: “ If a defen ce is struck out, the
defendant cannot appear at the trial and cross-examine the plaintiff’s witnesses”.
[8] A contrary view was expressed by Twala J in Stevens and Another v RAF 5as
follows at [11]: “… the striking out of the defence of the defendant do es not in itself
2 Langley v William 1907 TH 197, Leggat & Others v Forr ester 1925 WLD and Mostert v Pinenaar
1930 WLD 151.
3 (59473)[2015] ZAGPPHC 346 (15 May 2015) (Burger)
4 Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, 5th ed at par 824.
5 (26017/2016) [2022] ZAGPJHC 864 (31 October 2022)
bar the defendant from participating in these proceedings. The defendant is entitled
to participate in these proceedings but his participation is restricted in the sense that
it cannot raise the defence that has been struck out by an order of court. It is
therefore not correct to say the defendant was not entitled to cross -examine the
plaintiffs after giving evidence, furthermore , t he cross -examination was on the
evidence tendered by the plaintiffs and the defendant did not attempt to introduce its
own case during the cross-examination”.
[9] In a similar action against the RAF ( Motala)6 Hitchings AJ explained in a
judgment handed down a mere two weeks before the present matter , why the State
Attorney had been allowed to participate in the hearing despite the RAF’s defence
having been struck out as follows: “[17] The striking out of a defendant’s defence
constitutes no more than a bar to the defendant tendering evidence which had been
pleaded in its plea. The defendant’s position is conceptually analogous to that of a
respondent who has filed a notice in terms of Rule 6(5)(d)(iii) that it intends to
oppose the applicant’s application on a question of law only. [18] The plaintiff
remains liable to prove both an entitlement to damages (generally referred to as “the
merits”) and the quantum of such damages. [19] The defendant is not precluded, in
order to test the validity of the plaintiff’s version, from cross -examining any witness
which may be called by the plaintiff. The defendant may however not put a different
factual version to any witness because it is barred from leading evidence to
substantiate its alternative version…”.
[10] In reaching the above conclusions, Hitchings AJ relied heavily on Minister of
Police v Michillies ,7 a judgment handed down on 22 June 2023. Therein, in similar
fashion as in Burger, the court was faced with a rescission application. Having
referred to the drastic nature of an order whereby a defendant’s defence is struck
out, the court found that it was in the interests of justice that the striking out order be
rescinded and the plea being reinstated. The portion of the judgment on which
reliance has been placed in Motala is the following statement: “ [4] On my
understanding, when a plea has been struck, it does not bar the defendant from
proceeding to defend the action …The merits are not determined in favour of the
6 Motala NO v RAF (42353/2019) [2023] ZAGPJHC 1323 (15 November 2023) (Motala)
7 Minister of Police v Michillies (1011/2022)[2023] ZANWHC 90 22 June 2023 (Michillies)
plaintiff on the striking of the defendant’s plea. The plaintiff remains with the onus to
prove its case on a balance of probabilities ”. The learned judge then proceeded to
express the view that these probabilities can be attac ked during cross -examination
of the plaintiff, on both the issues of merits and quantum.
[11] Although the comments made in Michillies might in the context of that case
have been obiter and therefore not direct authority for Motala, I by and large agree
with the conclusions reached in Motala, for the reasons set out hereinlater . I
however, respectfully disagree with the analogy that a defendant whose defence has
been struck out is in a similar position as a respondent who has delivered a notice in
terms of Rule 6(5)( d)(iii). Firstly, the position is different in actions and no such
notice can be delivered there. Points of law not dealt with by way of exception
proceedings are in action s dealt with by way of special pleas. If a defence is struck
out, that would generally also include such special pleas. Were a court to allow a
defendant to cross-examine the plaintiff’s witnesses or interrogate such evidence as
the plaintiff may have been allowed to place before the court by way of affidavits in
terms of Rule 38(2), then one would be dealing with factual issues and arguments
relating to expert opinion evidence, and not pure points of law as contemplated in
Rule 6(5)(d)(iii). The analogy can however safely be jettisoned, without detracting
from the conclusion about the extent of a defendant’s further participation in a trial
after the defence has been struck out.
[12] In my view, the conflicting views regarding the consequences of the striking
out of a defendant ’s defence can be clarified as follows: as a starting point, the “old
authorities” referred to by the plaintiffs in the matters referred to above and in also
the present matter, all pre-date the Constitution.
[13] Section 34 of the Constitution guarantees “ everyone … a right to have a
dispute that can be resolved by the application of law decided in a fair hearing before
a court ”. Whil st the section guarantees the substantive right of a litigant , the
Constitutional Court has confirmed that the manner in which a party may bring such
a dispute before a court may be regulated, in this instance by the Superior Courts
Act8 and the Uniform Rules 9. I t should further follow that any application of suc h
regulation should be interpreted in a manner which least interferes with or limits the
exercise of the substantive right of access to courts.10
[14] It is also trite that the striking of a defence is a drastic measure. It precludes a
defendant from advancing legal defences raised as special pleas and from placing
countervailing evidence to that of the plaintiff before a court. In RAF matters , this
would then also prevent the RAF from relying on any expert evidence it may have
obtained (although, given the RAF’s well -known litigation delinquency, this is the
exception rather than the rule).
[15] The seriousness of the remedy of striking a defence has been reiterated in
numerous cases, sometimes even requiring proof of intentional contempt of a court
order11 or a directive and at least requiring a “two -stage procedure”, that is firstly a
compelling order and secondly a consideration of the consequences of non -
compliance therewith.12 I need not revisit those cases as in the present instance, the
striking out order has already been granted and there is no attack on that order. It is
further trite that a defence can be struck out in terms of Rule 30A(1)(b) or 35( 7) upon
proven non-compliance with the respective Rules.
[16] The seriousness of the consequences of a striking out order (and hence the
requirement for at least a two -step procedure before the exercise of judicial
discretion) has raised judicial concern as can be seen from the following
consideration of a practice directive dealing with such instances: “[19] Directive
9.8.2.12 clearly provides for the striking out of the defaulting party’s claim o r defence
where he or she remains non -compliant. The striking out of the defaulting party’s
claim would have the effect that there is no cause of action that requires an answer
or defence from the complying party. In that event, the defaulting party’s claim,
8 10 of 2013.
9 See: Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC) per Jafta J at par [31].
10 Section 34 has both a substantive provision , being access to courts and a procedural element –
See: Stopforth, Swanepoel & Brevis Inc v Royal Anthem (Pty) Ltd 2015 (2) SA 539 (CC) , Erasmus,
Superior Court Practice, A-28 and Currie & De Waal, The Bill of Rights Handbook, Juta, 6 th Edition at
31.3
11 Wilson v Die Afrikaanse Pers Publikasies (Edms) Bpk 1971 (3) SA 455 (T) at 462H – 463B
12 See: MEC, Department of Public Wo rks v Ikamva Architects & Others 2022 (6) SA 275 (ECB) - at
[18] – [21] and Ikamva Architects v MEC, Public Works [2014] ZAECGHC 70.
including all facts in support of the claim, are struck out from the affidavit as if no
such cause of action ha s been pleaded. In the case of a defence, the defence is
struck out from an affidavit, with the consequence that there is no opposition to the
relief sought. [20] It is improbable that the drafters intended such a drastic
consequence to flow automatically …”.13
[17] I find that the solution to the issue of conflicting views is firstly that the old
authorities, insofar as following them would lead to a denial of a defendant’s Section
34 rights, should not be followed. The second point is that, when a plaintiff has
become entitled to the procedural benefits consequent upon a court striking out a
defendant’s defence, those consequences should be limited to that formulated in
Motala, not by reason of the analogy mentioned therein, but by reason that the
striking of a defence merely removes the opposition to a plaintiff’s action insofar as it
has been pleaded . This m eans that any legal opposition contained in special pleas
and any factual averments o r denials of the factual averments advanced by the
plaintiff, which have been contained in the defendant’s plea, have been removed .
The striking out goes no further and does not remove a defendant’s Section 34 right
of access to courts in its entirety. I therefore disagree with the notion that the striking
out has removed all opposition as mentioned in Hassim and in the old authorities.
[18] To clarify: I find that when a defendant’s defence has been struck out, a
plaintiff still has to prove its entitlement to damages and the extent thereof and a
defendant has the right to cross -examine the plaintiff’s witnesses or to interrogate
their affidavits (and reports) if they have been allowed by a court in terms of Rule
38(2) on condition further that the defendant may not put a different factual version to
such witnesses, lead countervailing evidence or base any argument on facts not put
in evidence by the plaintiff.
Does an amendment to a plaintiff’s particulars of claim after a defence has
been struck out “open the door” to a new plea?
[19] The first part of the answer is that in general the delivery of a substantial
amendment to a plaintiff’s particulars of claim, even if only in respect of quantum,
13 Hassim v Bekker (Grace Heaven Industries (Pty) Ltd intervening) 2018 JDR 1007 (GJ) per Modiba
J (Hassim).
has the effect of “reopening” the pleadings and thereby ha s the result that litis
contestatio falls away. This much has expressly been found in Olivier:14 “When due
consideration is had to the amended particulars of claim, the amendments are
substantial and material. There are new aspects that in my view would require some
consideration. It may be so that this increase in quantum did not alter the cause of
action, the identity of the parties and the scope of the issues in dispute …
Notwithstanding, the scope of damages has been increased significantly and it would
without doubt require a pleading”. I respectfully align myself with this view.
[20] Although doubt had been expressed whether an immaterial or minor
amendment would have the same result of a “fresh litis constestatio”,15 it must be
beyond doubt that a ny substantial amendment would have the result that pleadings
are reopened. That the Supreme Court of appeal has confirmed in Endumeni16. By
way of illustration, in Olivier, the amount of damages was increased from
R6 105 000.00 to R7 155 500.00 and the court found that that would have entitled a
defendant to plead thereto. In the present matter the amount of damages was even
more significantly increased.
[21] The pertinent question is whether the “reopening of the pleadings” would also
apply in instances where the defendant’s defence had been struck out. In Endumeni
the origin of the concept of litis constestatio has been explained by reference to
Roman Law 17 and by way of a reference to the following explanation thereof by
Hollmes AJ in Government of the Republic of South Africa v Ngubane :18 “In modern
practice litis constestatio is taken as being synonymous with close of pleadings,
when the issue is closed and joined … . And in modern terminology, the effect of litis
contestatio is to “freeze” the plaintiff’s rights as at that moment”.
[22] A defence which has been struck out by a court, would have been a response
to a plaintiff’s pre-amendment case and to the quantum which the plaintiff had then
claimed he or she would be entitled to. Once that claim had been “frozen” by the
14 Olivier v MEC for Health, Western Cape 2023 (2) SA 551(WCC) at [21] (Olivier)
15 KS v MS 2016 (1) SA 64 (KZD) par [16].
16 Natal Joint Municipal Pensiion Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at par as [13]
and [15]. (Endumeni)
17 Endumeni at par [14].
18 1972 (2) SA 601 (A) at 608D- E
close of pleadings and the plaintiff thereafter seeks to “unfreeze” its position, there
can, in my view, be no objection to allow a defendant to plead to this “unfrozen” or
reopened case. To allow a defendant to plead afresh, would also be consistent with
the provisions of Rule 28(8) which expressly allows “ any party affected by an
amendment… to make … any consequential adjustment to the documents filed by
him”.
[23] To argue that the “documents” filed by the defendant had been struck out and
therefore that there was nothing left in respect of which “adjustment” should be
allowed, would in my view again place an unduly prohibitive limitation on the
defendant’s Section 34 rights.
[24] Another reason for allowing the defendant to enter the fray afresh, is that to
refuse a defendant to do so when the plaintiff had altered its case, would offend
against one of the most basic premises of our law and procedure, namely the right to
be heard or the audi alterem partem – principle. While the defendant may have
been silenced in respect of the previously pleaded case of the plaintiff as a result of
the defendant’s non-compliance with a procedural obligation (reinforced by an order
of court or a directive), that “silencing” should not operate in perpetuity or in respect
of a “new” case. To do so be would so manifestly unfair and contrary to the spirit of
the Constitution, that it should not be contemplated.
[25] The question posed must therefore be answered in the affirmative, the only
qualification being that the plea must be limited to the “consequential” aspect.
Should the plaintiff, as he has dome in this matter, only amend the nature or the
extent of the relief sought, the consequential plea contemplated in Rule 28(8) will
have to be limited to th at aspect. It would be impermissible for the defendant to
attempt, by way of an amended plea, to “reopen” the issues of the merits or its
previously struck out special pleas.19
A word of caution consequent upon the above finding
19 See: Erasmus at D1 - 344
[26] Having regard to the virtual consistent propensity of plaintiffs in RAF matters
to effect amendments to their particulars of claim at a late stage in the proceedings ,
whether that may be due to changed circumstances, the passage of time occasioned
by this Division’s congested roll of RAF matters or for whatever other reason, such
amendments should be effected timeously. If done too shortly prior to the date of
hearing, particularly where the time for objection had not yet even run out , would
result in the pleadings not yet having been “reopened” or, if the amendment has
been effected but the 15 day period contemplated in Rule 28(8) for consequential
amendments had not yet expired, it might result in the matter no longer being ripe for
hearing.
The actual case itself
[27] In the pr esent matter the amendmen t in question had been affected by the
delivery of amended pages and the RAF had thereafter delivered an amended plea.
The RAF had however not delivered any expert reports but was duly represented at
the hearing. Mr Makgoka on behalf of State Attorney presented helpful and vigorous
argument, both oral and written, on behalf of the RAF in opposition to the plaintiff’s
case.
Merits
[28] The plaintiff was, at the time of the accident, a 12 year old pedestrian. He had
been walking in uKhahlamba Street in Diepsloot on 4 April 2017 when a minibus taxi
(a grey Siyaya with a specified registration number) ran him over. The allegations of
the taxi having been driven at a high speed appear from the contents of a police
docket, opened in relation to a case of reckless or negligent driving and from an
accident report form. Photographs of the accident scene indicate d the accident
scene to be in a busy shopping area.
[29] The plaintiff was taken by ambulance from the scene of the accident to
Tembisa hospital where he remained until the 13 th of September 2017. Extensive
hospital admission and treatment records had been discovered by the plaintiff and
various expert reports had been delivered in terms of Rules 36(9)(a) and (b). These
included reports from an orthopedic surgeon, a neurosurgeon, a clinical
psychologist, an occupational therapist, an industrial psychologist, an educational
psychologist and an actuary. All the experts have also delivered confirmatory
affidavits wherein their qualifications and expertise in their various fi elds as well as
the contents of their reports had been confirmed. Their respective affidavit evidence
have been admitted in terms of Rule 38 (2).
[30] The plaintiff had sustained a number of injuries, the most significant being a
head injury diagnosed as having resulted in a mild traumatic brain injury. According
to the information reported to the clinical psychologist, the plaintiff ’s mother had
found him spr awled on the ground on the side of the road at the accident scene,
being unconscious and bleeding from his mouth, nose and ears and bleeding from a
gash on his chin. It later appeared that he had also suffered a left clavicle fraucture,
a left shoulder injury, a right hip injury and various lacerations and abrasions.
[31] The pre -accident intellectual potential of the plaintiff had been assessed by
the experts as “high average”. The post-accident assessment results suggested that
the plaintiff’s general IQ score now lies within the average range while his
performance IQ remained in the high average range. The results revealed “… a
balanced mental capacity … minimizing pathology possibilities … . Thus the findings
revealed no serious loss of competence … ”. However the experts opined that the
plaintiff manifested “… impair ment in temporal orientation, all aspects of working
memory and simple mental tr acking and has developed slow verbal learning and
poor verbal memory, poor verbal concept formation and poor processing speed ”. In
particular, the educational psychologist ’s “… comprehensive psychometric and
scholastic assessment reveal deficits that are consistent with a history of head
trauma”.
[32] These “deficits” were described as being memory deficits, concentration
deficits (including slow information processing and poor comprehension) and a
number of psychological sequalae (including depression, “black spells”, moodiness,
hyper insomnia, visual and auditory hallucinat ions and phobias of being a
pedestrian).
[33] The experts concluded that the above deficits negatively impacted on the
plaintiff’s post-accident scholastic performance. The school records indicated that
the plaintiff has passed grade 6 in the year that the accident had happen ed,
thereafter passed grade 7 but failed grade 8, was condoned on the repeat thereof
the next year, was condoned for grade 9 due to his age and that he had thereafter
failed grade 10 in 2022. He repeated grade 10 in the year of the hearing (2023) but
his then most recent school reports presented to court, indicated that he had failed
both the 1st and 2nd terms of that year.
[34] On the topic of earning capacity the experts were of the opinion that the
plaintiff, but for the accident , would have passed matric and, had he done so with
good grades, could have applied for bursaries or NFSAS assistance. The plaintiff
could then, so the experts postulated, have obtained a degree and have entered the
labour market at a Patterson B3/4 level and would have reached a career ceiling at
the B2 Upper Qua rtile level at age 45. He would then have enjoyed straight -line
increases until his retirement at age 65. The actuarial calculations performed, relied
on these premises. Applying a 15% contingency the actuary calculated a loss of
R10 366 800.00 after applying the “cap” prescribed in the Road Accident Fund
Amendment Act.20
[35] Guided by the report of the occupational therapist, the industrial psychologist
was of the view that the plaintiff, post -accident, “is unemployable due to his physical
and mental state”. The actuarial calculations therefore provided for R0 as a post -
accident earnings postulation. So far the plaintiff’s evidence.
[36] The RAF conceded t he applicability of the rebuttab le principle that minors
between the age of 7 and puberty are presumed to be doli et culpae incapax, that is
that they are presumed to be incapable of being held liable for their wrongful actions.
The RAF argued that, from notes taken by the clinical psychologist , it appeared that
the plaintiff and two friends were crossing the street and that the plaintiff, while
warning his friends of oncoming traffic, was unaware of the speeding taxi which ran
him over. Apart from referring to this hearsay evidence, the defendant was, in the
circumstances of its defence having been struck out, precluded from leading further
evidence on this point (even if it had any witnesses, of which there had been no
20 19 of 2005
indication). I find that the defendant has failed to rebut the aforementioned
presumption21, which could have opened the door to a possible argument regarding
contributory negligence. I therefore find that the RAF is 100% liable for the damages
suffered as a result of the speeding taxi ’s conduct as an insured driver as
contemplated in the RAF Act.
[37] In respect of general damages, the plaintiffs’ entitlement thereto and the
assessment of his injuries as serious have been rejected by the RAF and this head
of damages will have to be pursued at a later stage.
[38] In respect of the loss of earning capacity, the RAF pointed out that the
orthopaedic injuries have, according to the plaintiff ’s orthopaedic surgeon, healed to
the extent that the plaintiff has little or no physical impairment as a result thereof.
[39] Regarding the post -accident scholastic performance, the RAF emphasised
that the plaintiff had successfully passed grades 6, 7 and 8. The clinical psychologist
report also contained references that the plaintiff was bullied at school and that there
was a boy who took away his lunch box and money. These incidents were not
reported at home and the suggestion was that these factors could also have
influenced his scholastic performance negatively.
[40] The RAF also submitted that the scholastic records contained some
discrepancies as to dates and further indicated that the plaintiff had failed grade 4 in
2015 and had to repeat it in 2016. This had nothing to do with the accident. The
plaintiff had only discovered his grade 5 report as the only pre -accident report, which
indicated that he had failed term 3 of grade 5. The RAF argued that the plaintiff was
not the star pupil that his mother or the plaintiff’s experts had made him out to be.
[41] On the other hand, the RAF argued that the fact that the plaintiff had passed
grades 7 and 8 post -accident, indicated that his mental impairments were
exaggerated.
21 See for example Jones NO v Santum Ltd 1965(2) SA 542 (A) and Eskom Holdings Ltd v Hendricks
2005 (5) SA 503 (SCA).
[42] I should mention that, due to the above and the reopening of the pleadings,
Mr Makgoba’s heads of argument concluded with the suggestion that the matter be
postponed and that the RAF be allowed to further investigate the issue of quantum
and, if needs be, obtain its own experts. The suggestion of a postponement was
bolstered by the offer that an expert could be identified and that an invitation to the
plaintiff to be examined co uld be done within 30 days. No particulars could however
be furnished as to who the expert (or experts) would be. Mindful of the doubts about
compliance with such a suggestion, given the past conduct of the RAF, Mr Makgoba
was constrained to concede that the matter may then again have to be set down for
default judgment upon failure of securing reports . This would mean that the parties
(and the court) would be back in the same position as at the time of the hearing but
with judicial resources having been wasted and with delays and costs also having
been incurred. In view hereof an d in the absence of a substantive application for
postponement, the matter proceeded and was fully argued, based on the plaintiff’s
expert reports filed of record.
[43] In respect of last-mentioned aspect, the RAF emphasised the following finding
of the educational psychologist: “ He is likely to exit formal school after completing
grade 10 and proceed for vocational training at a Further Education and Training
(FET) college and obtained a 2 year certificate. Should he manage up to grade 12,
probably through condoned passes, he will probably pass with low marks and still
proceed to an FET college as envisaged”.
[44] Based on the above, the RAF submitted that the industrial psychologist had
no factual basis to conclude that the plaintiff would have no future income or earning
capacity.
Evaluation
[45] The RAF’s criticism regarding the apparent lack of documentation of pre -
accident scholastic performance is somewhat justified, but there is nothing to
gainsay the collateral evidence obtained by the various experts or that of the
plaintiffs’ mother. In the report of the occupational therapist numerous school reports
with individual marks per subject had been dealt with extensively from grade 6
onwards. From this it appears that the RAF’s criticism of the past -accident
scholastic performance as being the same as or comparable to the pre -accident
performance, is not justified. Apart from having passed grade 6 on a first attempt, all
indications of the plaintiff’s subsequent performance point to a downwa rd
educational spiral. The occupational therapist concluded that his performance
“significantly deteriorated as his average was below the elementary achievement”.
[46] What was justified however, was the criticism of the plaintiff ’s experts’ leap
from the educational psychologist postulati ng the obtaining a FET qualification post -
accident to the industrial psychologist ’s postulation of the plaintiff being completely
unemployable. Bracketed in between these two extremes is the occupation
therapist’s conclusion that the plaintiff would only be suitable for sh eltered
employment. Both the last two conclusions are without solid foundation. On a
conspectus of the reports, there are ample indication s of a residual earning capacity.
This has, however, not featured in the actuarial calculations.
[47] It is trite that, rather than to non -suit a deserving plaintiff completely, a court
must do the best it can with the evidence regarding the quantum of damages put
before it.22 The only way in which this can be achieved in the circumstances of this
case, is to assume that the post -accident scenario would reflect a largely discounted
amount of the pre-accident postulated earnings. This has been done in the h eads of
argument provided by the plaintiff’s counsel, resulting in a calculated loss of
R6 738 420.00. This was done utilizing an additional 35% contingency in respect of
future earnings, above that already applied.
[48] Regarding the issue of contingencies, many a remark has been made over
the years in judgments of our courts, not least apposite of which is the following: “ In
the assessment of a proper allowance for contingencies, arbitrary considerations
must play a part, for the art of foretelling the future, so confidently practiced by
ancient prophets and soothsayers … is not numbered among the qualifications for
judicial office”.23 In the circumstances of this case, I find that the application of the
increased contingency deduction referred to above is as best a reflection of the loss
22 Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A).
23 Goodall v President Insurance Co Ltd 1978 (1) SA 389 (w) at 393.
of earning capacity suffered by the plaintiff as could be determined on the presented
evidence.
Relief
[49] In my view, the plaintiff has made out a case for a finding of liability of the
RAF for 100% of the damages suffered. All the experts refer to foreseen future
medical expenses and the plaintiff is therefore entitled to an order for the furnishing
of an undertaking as contemplated in section 17(4) of the RAF Act. The issue of
general damages should be postponed and compensation for the plaintiff ’s loss of
future earnings should be awarded as already referred to above. No claim was
advanced for the payment of past medical expenses.
[50] During the course of litigation the plaintiff’s legal practitioners deemed it fit that
the proceeds of the claim be protected by way of a trust . That was, however on the
premise that he was then still a minor. Now that the plaintiff has reached the age of
majority, it is notable that none of the experts recommended protection of the funds.
While it is so that the plaintiff is still young and the award is for a huge sum of
money, the court is no longer his upper guardian and it would be improper for the
legal practitioners to, in a patronizing (to use an archaic non -gender neutral term) or
condescending fashion request the court to order the creation of a trust in the
absence of input or instructions from a client who is a major and who has full
decision-making power over his life. I will therefore not incorporate the creation of a
trust in the court order.
[51] The plaintiff has shortly before the hearing also deposed to an affidavit
regarding the merits of the matter wherein he had declared himself competent to do
so. He has also not disavowed himself of the fee mandate agreement previously
entered into by his mother when he was still a minor, which incorporated a
contingency fee arrangement which, upon perusal, appeared to be statutorily
compliant. This matter had been concluded before subsequent amendments to
Rules 69 and 70 and no orders as contemplated in th ose amendments are
necessary.
Order
[52] In the premises, the following order is made:
1. The Defendant shall be liable for 100% of the Plaintiff’s proven damages.
2. The Defendant is ordered to pay the Plaintiff the amount of R6
738 420,00 (Six million seven hundred and thirty -eight thousand
four hundred and twenty Rand).
3. This amount shall be paid into the following bank account, on or before
the expiry of 180 days from the date of this order:
ACCOUNT HOLDER J M MODIBA ATTORNEYS
BANK NAME STANDARD BANK
BRANCH CODE 0[...]
ACCOUNT NUMBER 0[...]
TYPE OF ACCOUNT TRUST ACCOUNT
REF REF: M[...] M[...] /[...]
3.1 The Defendant will not be liable for interest on the above -
mentioned amount provided that it is paid on or before the expiry
of 180 days, after date of this Order, failing which interest at a
rate of 8.75% per annum will be payable calculated from the
15th day from the date of this order.
4. The Defendant shall furnish the Plaintiff with an u ndertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act, 56 of 19 96 for the
reasonable costs of the future accommodation of the Plaintiff in a
hospital or nursing home or treatment of or rendering of a service to he r
or supplying of goods to her resulting from the injuries sustained by the
Plaintiff’s and of administering and enforcement of this undertaking, as a
result of the motor vehicle collision which occurred on 09 th April 2017,
after such costs have been incurred and upon proof thereof.
5. The Defendant shall pay the Plaintiff’s taxed or agreed party and party
costs on a High Court scale. In the event that the costs are not agreed, it
is ordered that:
5.1 The Plaintiff shall serve the notice o f taxation on the Defendant’s
attorneys of record;
5.2 The Plaintiff shall allow the Defendant Fo urteen (14) court days to
make the said payment of the taxed costs; and
5.3 Should payment not be effected timeously, Plaint iff will be entitled
to recover interest a temporae morae on the taxed or agreed
costs from the date of allocatur to the date of final payment.
6. The costs in paragraph 5 above shall also be paid i nto the Plaintiff’s
attorneys’ trust account referred to in paragraph 3 above, for the benefit
of the Plaintiff.
7. The issue of general damages is postponed sine die.
N DAVIS
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 30 November 2023
Judgment delivered: 18 April 2024
APPEARANCES:
For the Plaintiff: Advocate W Lusenga
Attorney for the Plaintiff: JM Modiba Attorneys, Pretoria
For the Defendant: Mr Frank Phago
Attorney for the Defendant: The State attorney, Pretoria