Mnisi v Road Collision Fund and Seven Similar Matters (1823/19; 2538/18; 315/20; 208/20;4082/19;4423/19;2382/19;4067/19) [2022] ZAMPMBHC 23 (1 April 2022)

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[2022] ZAMPMBHC 23
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Mnisi v Road Collision Fund and Seven Similar Matters (1823/19; 2538/18; 315/20; 208/20;4082/19;4423/19;2382/19;4067/19) [2022] ZAMPMBHC 23 (1 April 2022)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT)
Case
Numbers:       1823/19, 2538/18,
315/20, 208/20, 4082/19, 4423/19, 2382/19 and 4067/19
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES: YES/
NO
REVISED.
1
APRIL 2022
In
Re:
In
the matter between:
PHUMZILE
REMEMBER
MNISI

Plaintiff
and
THE
ROAD COLLISION
FUND

Defendant
AND
SEVEN SIMILAR MATTERS
Due
to the COVID-19 pandemic and the lock down provisions, this judgment
will be delivered by placing a copy thereof, together with
the order
in respect of each of the matters on each of the court files. The
judgment will also be sent to SAFLII for publication.
JUDGMENT
Roelofse
AJ:
INTRODUCTION
[1]
All
the actions to which this judgment relates are separate actions that
were instituted against the Road Accident Fund
(‘the
RAF’
)
[1]
by plaintiffs who are claiming compensation from the RAF arising from
injuries they have sustained after they have been involved
in motor
vehicle collisions. In all matters, the plaintiffs have complied with
the statutory prescripts
[2]
before instituting their actions.
[2]
The actions include: PHUMZILE REMEMBER MNISI v The RAF / Case
Number: 1823/19 (‘MNISI”), BIGBRAIN SKUMBUZO MALALA v The

RAF / Case Number: 2538 (‘MALALA’); BOTHELO KGAMANE v the
RAF / Case Number: 315/2020 (‘KGAMANE’); EMMELINAH

NYATSELA MASHABA v The ROAD COLLISION FUND / Case Number: 208/20
(‘MASHABA’); NDUBASI ROBERT SHABANGU v The ROAD COLLISION

FUND Case Number: 4082/19 (‘SHABANGU’); BUSISIWE FIKILE
KHOZA v The ROAD COLLISION FUND / Case Number: 4423/19 (‘KHOZA’);

CRAIG TALENT NGOBE v The ROAD COLLISION FUND / Case Number: 2382/19
(‘NUOBE’); and ANDREAS JAMES SITHOLE v The ROAD
COLLISION
FUND / Case Number: 4067/19 (‘SITHOLE’).
[3]
I have resolved to produce this one judgment in respect of all
the actions because they share similarities. There are also
differences.
However, the circumstances and way the actions proceeded
at the hearing in my view, warrants this judgment. What is stated in
this
judgment has been stated before and should be obvious and
nothing new. However, the aforesaid actions prompted me to restate
what
should be obvious for it appears to be not.
Similarities
[4]
The
first obvious similarity in respect of all the actions are that the
RAF is the defendant. In addition: the matters were
enrolled before
me on 31 January 2022; the RAF did not participate in any pre-trial
or case management procedures in terms of the
Uniform Rules
[3]
or the case management directives of this Division
[4]
;
no attorney was on record for the RAF when the trials commenced; only
the plaintiffs appeared when the trials were called; all
the matters
proceeded in terms of Rule 39(1) of the Uniform Rules; no oral
evidence was tendered by any of the plaintiffs or their
witnesses;
the plaintiffs presented evidence on affidavit where after they
closed their cases; and, the plaintiffs were all represented
by the
same firm of attorneys.
Differences
[5]
In the KGAMANE, MASHABA, SHABANGU, KHOZA and NGOBE matters,
the “merits” were previously settled. I put “merits”

in quotation marks because, it has become custom in RAF matters that
the enquiry after the “merits” have been settled

summarily proceeds to “quantum”. I put “quantum”
also in quotation marks because this is where the plaintiffs
in RAF
matters proceed to prove the damages that they have suffered as a
result of bodily injuries they sustained as a result of
the collision
or a dependant claims for loss of support due to the death of a
breadwinner. These damages more often than not include
both pecuniary
and non-pecuniary loss. At this stage of the proceedings plaintiffs
seek to rely on medical reports and the opinions
of various experts.
I return to the aspect of settlement on the “merits’’
and the issue of “quantum”
later in this judgment.
[6]
In the MNISI, MALALA and SITHOLE matters, there were no
settlement in respect of the “merits”.
[7]
In the MNISI, MASHABA, KHOZA, NUOBE and SITHOLE matters, the
RAF delivered a special plea and a plea. In its special pleas, the
RAF disputed its obligation to compensate the plaintiffs for
non-pecuniary loss for the alleged serious injuries they have
sustained
in the collisions.
[8]
In the KGAMPANE matter, the RAF delivered no notice of
intention to defend and has filed no plea.
[9]
Save for the KGAMAPE matter (where no attorney was on record
for the RAF), the RAF’s attorneys withdrew as attorneys of
record
for the RAF relatively long before the date of trial. After
the RAF’s attorneys’ withdrawal, further engagements by

the plaintiff’s attorneys were with the RAF’s claim
handlers. Calls by the plaintiff’s attorneys to participate
in
pre-trial procedures were ignored. In all the matters, the RAF was
served with the notice of set down for trial.
[10]
It is therefore apparent from the above that the mix of
matters that were before me on 31 January 2022, pertaining to
representation,
settlement, non-participation or partly-participation
by the RAF, represents a relatively inclusive mix of RAF matters that
are
before the courts in this division. During the proceedings this
court has also encountered issues of proof and procedure which is

also common in RAF trials.
[11]
This judgment will proceed as follows: Firstly, I deal
with the cause of action in RAF matters. Secondly, I deal with
procedural
issues. Thirdly, I discuss evidence and lastly, I shall
deal with each of the actions and pronounce on the amounts of
compensation
to be awarded in each case if an entitlement to
compensation was proven by the respective plaintiffs.
CAUSE OF ACTION IN RAF
MATTERS
[12]
In
C Septoo obo J M Septoo & another v The Road Collision
Fund
(058/2017)
[2017]
ZASCA 164
(29
November 2017) at para. 3, it is said by the Supreme Court of Appeal:
‘
Section
3 of the Act stipulates that:
‘
The
object of the Fund shall be the payment of compensation in accordance
with this Act for loss or damage wrongfully caused by
the driving of
motor vehicles.’
The
underlying basis for the Act is the common law principles of the law
of delict. A claimant must therefore prove all the elements
of a
delict before it can succeed with its claim in terms of the Act.’
[13]
In
Evins v Shield Insurance Co Ltd [1980] 2 All SA 40 (A)
[5]
,
the elements of a claim founded on delict were reaffirmed as follows:
‘
In the case of an
Aquilian action for damages for bodily injury (and here I use the
term Aquilian in an extended sense to include
the solatium awarded
for pain and suffering, loss of amenities of life, etc., which is sui
generis and strictly does not fall under
the umbrella of the actio
legis Aquiliae: Government of RSA v Ngubane,
1972 (2) SA 601
(AD) at
p 606 E - H) the basic ingredients of the plaintiff’s cause of
action are (a) a wrongful act by the defendant causing
bodily injury,
(b) accompanied by fault, in the sense of culpa or dolus, on the part
of the defendant, and (c) damnum, i.e. loss
to plaintiff’s
patrimony, caused by the bodily injury. The material facts which must
be proved in order to enable the plaintiff
to sue (or facta probanda)
would relate to these three basic ingredients and upon the
concurrence of these facts the cause of action
arises. In the usual
case of bodily injury arising from a motor collision this concurrence
would take place at the time of the
collision.’
[14]
The Constitutional Court, in Law Society of South Africa and
Others v Minister for Transport and Another
2011 (1) SA 400
(CC) at
para. 25 confirmed that the Act retained the common law fault based
liability:
‘……
.
Firstly, the scheme insures road users against the risk of personal
injury and their dependants against the risk of their death
caused by
the fault of another driver or motorist. It has retained the
underlying common law fault-based liability. This means
that any
collision victim or a third party who seeks to recover compensation
must establish the normal delictual elements. The
claimant must show
that he or she has suffered loss or damage as a result of personal
bodily injury or the injury or death of a
breadwinner arising from
the driving of a motor vehicle in a manner which was wrongful and
coupled with negligence or intent.’
[15]
Section 17 of the Act provides for the liability of the RAF
(and its agents). The section provides:
‘
17. Liability of
Fund and agents.—(1) The Fund or an agent shall—
(a)
subject to this Act, in the case of a claim for compensation under
this section arising from the driving
of a motor vehicle where the
identity of the owner or the driver thereof has been established;
(b)
subject to any regulation made under section 26, in the case of a
claim for compensation under this
section arising from the driving of
a motor vehicle where the identity of neither the owner nor the
driver thereof has been established,
be obliged to compensate
any person (the third party) for any loss or damage which the third
party has suffered as a result of any
bodily injury to himself or
herself or the death of or any bodily injury to any other person,
caused by or arising from the driving
of a motor vehicle by any
person at any place within the Republic, if the injury or death is
due to the negligence or other wrongful
act of the driver or of the
owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties
as employee: Provided that
the obligation of the Fund to compensate a third party for
non-pecuniary loss shall be limited to compensation
for a serious
injury as contemplated in subsection (1A) and shall be paid by way of
a lump sum.’
[16]
Non-pecuniary loss means loss that is not quantified in money
and includes, amongst other things, compensation for pain and
suffering,
disfigurement, loss of amenities of life, loss of
enjoyment of life, emotional shock and so forth.
[17]
Therefore, for the RAF to be liable to compensate the third
party (ie, the plaintiff), it is necessary for the plaintiff to
allege
and prove: (a) the loss resulted from bodily injury to the
plaintiff or, in the case of a dependant claiming loss of support
subsequent
to the death of a breadwinner, such loss; (b) the loss
arose from the driving of a motor vehicle; (c) the injury was due to
negligence
or other wrongful act; (d) the negligence or wrongful act
must be that of the driver or that of the owner of the motor vehicle
or that of his or her employee.
Damages
claimed in delictual actions
[18]
The
law adopts a wide concept of damage which includes patrimonial and
non-patrimonial loss. In this regard see: Casely, NO v Minister
of
Defence
[1973] 2 All SA 86
(A), at p94.
[6]
In RAF actions, the heads of damages usually include both categories
of damages.
[19]
In
respect of RAF actions, an award for non-pecuniary loss is restricted
to a serious injury and paid in a lump sum.
[7]
The seriousness of the injury is assessed in terms of section 17(1A)
of the Act, that provides as follows:
‘
(1A) (a)
Assessment of a serious injury shall be based on a prescribed method
adopted after consultation with medical service providers
and shall
be reasonable in ensuring that injuries are assessed in relation to
the circumstances of the third party.
(b) The assessment shall
be carried out by a medical practitioner registered as such under the
Health Professions Act, 1974 (Act
No. 56 of 1974).’
[20]
Regulation
3 of the Road Collision Fund Regulations, 2008
[8]
provides for the mechanism for the assessment of serious injury in
terms of section 17(1A). It provides for: an assessment of the

plaintiff by a medical practitioner in accordance with the
Regulations
[9]
(usually complied
with by the completion of the RAF4 form; the acceptance or rejection
of the assessment by the RAF
[10]
;
and an appeal process in the event of a rejection of the
assessment.
[11]
[21]
In Road Collision Fund v Duma, Road Collision Fund v Kubeka,
Road Collision Fund v Meyer, Road Collision Fund v Mokoena
[2013] 1
All SA 543
(SCA, the Supreme Court of Appeal, para. 19 said as
follows over Section 17(1)(a) and the regulation:
‘
In accordance with
the model that the legislature chose to adopt, the decision whether
or not the injury of a third party is serious
enough to meet the
threshold requirement for an award of general damages was conferred
on the Fund and not on the court. That much
appears from the
stipulation in regulation 3(3)(c) that the Fund shall only be obliged
to pay general damages if the Fund –
and not the court –
is satisfied that the injury has correctly been assessed in
accordance with the RAF 4 form as serious.
Unless the Fund is so
satisfied the plaintiff simply has no claim for general damages. This
means that unless the plaintiff can
establish the jurisdictional fact
that the Fund is so satisfied, the court has no jurisdiction to
entertain the claim for general
damages against the Fund. Stated
somewhat differently, in order for the court to consider a claim for
general damages, the third
party must satisfy the Fund, not the
court, that his or her injury was serious. Appreciation of this basic
principle, I think,
leads one to the following conclusions:
(a)
Since the Fund is an organ of State as defined in s 239 of the
Constitution and is performing a public function
in terms of
legislation, its decision in terms of regulations 3(3)(c) and
3(3)(d), whether or not the RAF 4 form correctly assessed
the
claimant’s injury as ‘serious’, constitutes
‘administrative action’ as contemplated by the Promotion

of Administrative Justice Act 3 of 2000 (PAJA). (A ‘decision’
is defined in PAJA to include the making of a determination.)
The
position is therefore governed by the provisions of PAJA.
(b)     If
the Fund should fail to take a decision within reasonable time, the
plaintiff’s remedy is under
PAJA.
(c)     If
the Fund should take a decision against the plaintiff, that decision
cannot be ignored simply because
it was not taken within a reasonable
time or because no legal or medical basis is provided for the
decision or because the court
does not agree with the reasons given.
(d)     A
decision by the Fund is subject to an internal administrative appeal
to an appeal tribunal.
(e)
Neither the decision of the Fund nor the decision of the appeal
tribunal is subject to an appeal to the court.
The court’s
control over these decisions is by means of the review proceedings
under PAJA.’
[22]
Therefore, in the absence of the administrative process
prescribed in section 17(1)(a) and regulations 3 to 12, the court is
ousted
of its jurisdiction to adjudicate a RAF plaintiff’s
non-pecuniary loss or, as it is always referred to in RAF matters,
“general
damages”. Theoretically, the loss of earning
capacity falls under “general damages” as it requires the
court
to make an assessment of a future situation. The loss of
earning ability may or may not materialize or it may materialize to a
larger or lesser extent that was initially anticipated. In RAF
matters, loss of future income is dealt with out of the realm of

general damages. In my view rightfully so because section 17(1)(a)
refers to non-pecuniary loss. Loss of future income is capable
to be
calculated or assessed in monetary terms while the iniuria caused to
a plaintiff as a result of the collision cannot be determined

mathematically.
The
so called “settlement on merits”.
[23]
Under this heading I discuss what it really means if the RAF
settles the “merits” of the claim in whatever form.
Sometimes
“merits” are settled by the acceptance of an
offer made by the RAF or through an admission during the pre-trial
process.
[24]
In the actions in this judgment where the “merits”
were settled, it was through the acceptance of an offer made by the

RAF which was accepted by the plaintiffs and not in any pre-trial
process.
[25]
The is how the RAF’s standard offer on “merits”,
in relevant part, reads and this is what was formally accepted
by the
plaintiffs in the matters before me:
‘
The Road Collision
Fund (RAF) has considered the available evidence relating to the
manner in which the motor vehicle collision
giving rise to this claim
occurred. The RAF has concluded that the collision resulted from the
sole negligence of the RAF’s
insured driver.
Consequently, without
prejudice, the RAF offers to settle the issue of negligence
vis-a-vis
the occurrence of the motor vehicle collision on the basis that
insured driver was solely negligent in causing the motor vehicle

collision.
This offer is limited to
the aspect of negligence as to the manner in which the collision
occurred. The offer may not be interpreted
or construed in a manner
that would have the RAF concede any other aspect of the claim. To
avoid doubt, the RAF reserves all its
rights in law with regards to
all the other procedural and substantive aspects of the claim.
Acceptance of this offer
will only be effective when the RAF receives this document with the
portion “Acceptance of Offer”
fully completed.’
[12]
[26]
It immediately becomes clear that the RAF only accepts that
the collision occurred due to the sole (or in some instances the part

negligence) of the insured driver and nothing else.
[27]
Therefore, all the other elements of the RAF cause of action
remains to be proven by the plaintiffs. This includes: (a) the loss

resulted from bodily injury to the plaintiff or, in the case of a
dependant claiming loss of support subsequent to the death of
a
breadwinner, such loss; (b) the loss arose from the driving of a
motor vehicle; and that (c) the injury was due to negligence
or other
wrongful act.
[28]
It should also be immediately apparent that the causal link
between the negligent act of the insured driver which was the sole or

contributory cause of the collision, the injuries that were sustained
by the victim and the pecuniary or non-pecuniary loss suffered
as a
result of the collision must be proven. This brings me to the issue
of causation.
Causation
In
JM
Grove v The Road Collision Fund
(74/10)
[2011] ZASCA 55
(31 March 2011) at para. 7, the following is said:
‘
The
RAF is obliged to compensate for damages arising from bodily injury
‘caused by or arising from’ the driving of a
motor
vehicle. The causal link that is required is essentially the same as
the causal link that is required for Aquilian liability.
There can be
no question of liability if it is not proved that the wrongdoer
caused the damage of the person suffering the harm.
Whether an act
can be identified as a cause, depends on a conclusion drawn from
available facts and relevant probabilities. The
important question is
how one should determine a causal nexus, namely whether one fact
follows from another.’
[29]
What the trial court therefore has to
determine is whether the collission caused the plaintiff’s
injuries, what those injuries
were and the effect of the injuries
upon the plaintiff or, in the case of a dependant’s claim, the
effect of the death of
the third party upon the dependant. In order
for the court to determine these issues, the plaintiff bears the onus
and must prove
causation on a balance of probabilities.
[30]
In M S v Road Collision Fund
[2019] 3 All SA 626
(GJ), Fisher
J, at para. 9, sets out as follows:
‘
Thus, once
negligence of the third party driver is proved, wrongfulness is
generally assumed. It must then be shown that the loss
suffered by
the claimant is due to the negligent/wrongful act in issue. This is
when the causation phase of the enquiry begins.’
[31]
Fisher
J
[13]
proposes a four-stage
inquiry at para. 12 of her judgment:
‘
First:
Did
the negligence of the third party driver cause the collision? if both
plaintiff and the third party driver were negligent blame
may be
apportioned on the basis of a percentage allocation in terms of the
Apportionment of Damages Act. (I shall call this first
phase the
Merits Inquiry).
Second:
Did the
plaintiff sustain the pleaded injuries in the collision? (This is the
First Causation Inquiry).
Third:
How have
[sic] these proven injuries have affected the plaintiff? (this is the
Second Causation Inquiry).
Fourth:
How should
the plaintiff be remunerated for the effects of such injuries on the
plaintiff. (this is the Quantum Determination stage).’
[32]
I respectfully agree. However, when a concession on the
“merits” is made by the RAF, plaintiffs (or their
advisors)
often neglect the First and Second Causation Inquiries by
proceeding directly to the Quantum Determination phase. They neglect
to prove that the injuries were indeed sustained in the collision and
merely rely on expert reports to show the effect of the injuries
upon
the plaintiff. Often, the expert reports are founded upon what the
plaintiff tells the expert. The expert then proceeds on
the basis of
the plaintiff’s subjective information. Examples that often
arise (amongst many others) are the pain that is
experienced, the
severity of the pain, the frequency of the pain, activities the
plaintiff is no longer able to do, feelings of
anxiousness,
depression and the like. All of these subjective advices from
plaintiffs is most often difficult or impossible to
verify
objectively. In such instances, the court is at a disadvantage if the
plaintiff is not seen and heard by the court.
[33]
In the First and Second Causation Inquiry, the plaintiff must
prove that the injuries she or he sustained was as a result of the

collision (which by now has already been determined to have been as a
result of the negligent driving of the insured driver - the
Merits
Inquiry) and the effect of the injuries upon the plaintiff. The
causal link between the negligent driving of the insured
driver and
the effect of the insured driver’s wrongful act must be proven
in accordance with the normal rules of evidence
unless the RAF makes
concessions or admissions in this respect. Concessions and admissions
may be made at the pre-trial or case
management stage or even at the
trial (that is if the RAF appears!). Therefore, in the absence of a
concession or admission by
the RAF, the injuries that were sustained
by the plaintiff and the effect thereof upon the plaintiff must be
formally and properly
proven on a balance of probabilities.
Onus
[34]
In RAF actions, being delictual claims, the onus to prove the
elements of the claim lies upon the plaintiff for where the onus lies

is determined by the substantive law. Onus is described in Woerman
and Schutte NNO v Masondo and Others
2002 (1) SA 811
(SCA) para. 17
as follows:
‘
In any event onus,
in the sense of the duty that is cast on a particular litigant, in
order to be successful, of finally satisfying
the court that he is
entitled to succeed on his claim or defence is a matter of
substantive law and not of procedure. In During
NO v Boesak and
Another Grosskopf JA said:
“
Die ligging van
die bewyslas word deur die substantiewe reg bepaal.”
Soos gestel word in
Hoffmann en Zeffertt The South African Law of Evidence 4de uitg op
495:
''Any rule of law which
annexes legal consequences to a fact . . . must, as a necessary
corollary, provide for which party is supposed
to prove that fact.''’
[35]
There is therefore a duty upon the plaintiffs in RAF actions
to prove the elements of their claims on a balance of probabilities,

that is, the elements referred to in paragraph 17 above.
Manner
of proof
[36]
A plaintiff proves his or her case through presenting evidence
to the court. A defendant likewise does so in proving his or her
defence. It is no different in RAF matters. Section 8 of the Civil
Proceedings Evidence Act 25 of 1965 provides:
‘
Save
in so far as this Act or any other law otherwise provides, every
person shall be competent and compellable to give evidence
in any
civil proceedings.’
[37]
Invariably, in all RAF matters, the papers before the Judge
before the trial commences consist of a substantial volume of
documents
that may be relevant to the issues in the RAF action. These
documents include, amongst others, witness statements, collision
reports,
medical records, expert opinions and claim forms. These
documents are filed and presented to the court in indexed bundles. It
must
be accepted that these documents are not there for no purpose.
It is there because it relates to the claim and action against the

RAF and invariable, the parties may wish to make use of these
documents in their claims or defences. These documents are before
the
court as a result of the process and rules of discovery provided for
in Rules 35 and 36 of the Uniform Rules. More often than
not, parties
are of the view that the mere discovery of the documents constitutes
proof of the facts or opinions contained therein.
Alas not.
[38]
Documents
can be classified in two categories.
[14]
The first category of documents is documents that are created to
express the statement of intention of the creator. The second

category of documents are documents that are created to express a
statement of fact or to relate a sequence of events. The documents
in
RAF matters usually falls under the second category of documents. If
the second category of documents is tendered to court simply
to prove
that the statement of fact has in fact been made, it supports the
statement of fact (which has already been established
through viva
voce evidence) and will therefore be admissible. In other words, such
a document is tendered to corroborate the statement
of fact that has
already been established. If the document is tendered to prove the
truth of the contents of the document that
is, the purpose of
tendering the document is for it to be testimony of the truth of the
content of the document, this will constitute
hearsay and be
inadmissible.
[39]
Unfortunately, this is where parties often falter in RAF
matters. A perception exists that by mere discovery and production of
the
documents, the content of such documents constitute proper
evidence for purposes of discharging the onus of proof. It is not.
The
second category of documents must be proven in accordance with
the law of evidence. The law of evidence regulates the proof of facts

in a court of law. The substantive law lays down what must be proven
(See:
Tregea
v Godart
1939
AD 16
30. These documents cannot be accepted and considered as
“evidence” for it constitutes hearsay. It is not only
inadmissible
but also has no evidential value at all.
[40]
One often finds in RAF matters that the parties have no
objection to the inclusion of the second category of documents as
part of
the papers before the court. This does not elevate these
documents to the status of proper evidence for purposes of
discharging
the onus of proof. In the absence of an admission by the
parties that the content of the documents is admitted, the documents
must
be proven in the usual way, that is, by calling the author of
the document to identify same and to confirm the content thereof.
For
example, if the plaintiff in RAF matters seeks to rely on the
plaintiff’s hospital records in order to prove the plaintiff’s

injuries or medical costs, the authors of the records must be called
to testify. Only then will such record be properly before
the court
and be considered as part of the evidence before it. The same applies
to other documents such as accident reports, expert
reports and
documents which supports proof of the plaintiff’s pre-collision
income. There are exceptions to this rule which
is not important for
what this judgment intends to convey.
PROCEDURAL
ISSUES
[41]
Nowadays, (as is the KGAMAPE matter), the RAF often does not
deliver a notice of intention to defend nor does it deliver a plea.

To what extent is it then required by the plaintiff to still prove
all the elements of the cause of action? In this instance I
refer to
the elements of a RAF claim referred to in paragraph 17 above (in
summary – the collision; negligence, causation
in respect of
injuries and the effect thereof upon the plaintiff and damages.) This
is what the Constitutional Court in Baliso
v Firstrand Bank Limited
t/a Wesbank
2017 (1) SA 292
(CC) said at para. 12 of its judgment
over what evidence is usually lead in unliquidated claims:
‘
In terms of our
civil procedure, default judgment for a debt or liquidated demand is
granted on an acceptance of the allegations
as set out in the
summons, without any evidence. Where the claim is not for a debt or
liquidated demand, the court may, after hearing
evidence, grant
judgment. This is usually only evidence on the amount of unliquidated
damages. The reason for not hearing evidence
on the other factual
allegations made in the summons or particulars of claim is that,
because the claim is not opposed, it may
be accepted that those
allegations are admitted or not disputed.” [Endnotes omitted]
[42]
The “factual allegations made” (referred to in
Baliso supra) in RAF matters, relate to the collision, negligence and

the injuries sustained and the effect thereof upon the plaintiff.
[43]
In Abraham v City of Cape Town
1995 (2) SA 319
(C), the
following was said:
‘
It was common
cause before me that where an application for default judgment serves
before a Court, it has a clear and unfettered
discretion in terms of
the relevant Rule of Court to decide whether or not to hear oral
evidence on any of the issues which may
require to be decided in
order to determine whether or not to grant the relief claimed.
Ms Williams, however,
with reliance principally on a decision of Basson J in Dorfling v
Coetzee
1979 (2) SA 632
(NC), advanced the proposition that it was
incumbent on a Court in a case involving a motor-vehicle collision to
hear evidence
on 'the merits' as distinct from damages. This was, so
it was contended, because of the possibility that there might have
been
contributory negligence on the part of a plaintiff which would
necessitate an apportionment of the damages sustained by him or her.

In his judgment in Dorfling (supra at 635) Basson J says the
following:
“
Skadevergoeding
kan uit hoofde van verskeie skuldoorsake geëis word en mens kan
jou gevalle voorstel veral by kontrakbreuk
waar die Hof die
skadevergoeding kan bepaal sonder enige verwysing na getuienis oor
die F skuldoorsaak. Aan die ander kant, waar
die skuldoorsaak op
delik gebaseer word, kan die skadevergoeding in die meeste gevalle
slegs bepaal word nadat getuienis oor die
skuldoorsaak ook gelei is,
bv by aanranding, laster, ens.
Ek meen dat in die reël
getuienis van die skuldoorsaak gelei moet word in gevalle waar
skadevergoeding geëis word, maar
dat dit aan elke Hof oorgelaat
moet word om te besluit of in 'n bepaalde geval afgesien kan word van
sulke getuienis.
In die geval van
motorbotsings meen ek dat dit noodsaaklik is dat getuienis oor die
skuldoorsaak ook voorgelê word sodat bepaal
kan word (i) of
verweerder wel nalatig was, (ii) of eiser bydraend nalatig was en
(iii) in laasgenoemde geval die mate van eiser
se skuld met
betrekking tot die skade. Dit is eers nadat al die feite wat as bewys
van die skuldoorsaak aan die Hof voorgelê
is, oorweeg is dat
die Hof kan besluit of die volle bedrag van die bewese skade toegeken
moet word en of daar 'n verdeling van
skadevergoeding moet wees
ingevolge art 1 van Wet 34 van 1956.'
It is clear from the
terms of the judgment that it was, at the time it was delivered,
apparently the practice in the Northern Cape
Division to require
evidence also 'on the merits' in cases of this kind (see at 634G). I
was informed from the Bar that this was
not the practice in this
Division. However that may be, I prefer rather to base my decision on
logic than on possibly contentious
averments as to what is practice
and what is not.
This Court's point of
departure should in my view be that it is for each presiding officer
to decide for him- or herself, dependent
on the facts of each case,
whether to hear oral evidence or not. I am unpersuaded that the mere
theoretical possibility that there
may have been contributory
negligence on the part of a plaintiff would be sufficient cause for a
Court to insist rigidly that oral
evidence should be led in every
such case where a default judgment based on delict is sought. I use
the word 'theoretical' advisedly,
because ex facie the pleadings or
evidence concerning the damages sustained by a plaintiff, the
possibility may be apparent that
such contributory negligence may be
present. In such a case the Court may well in the exercise of its
discretion decide to call
for oral evidence. However, where such a
contention is not raised by a defendant nor evident ex facie the
pleadings, the mere fact
that the Court has the power to apportion
damages where contributory negligence is proved does not seem to me
to be a valid reason
for fettering the discretion of the Court in the
manner contended for.
The logic of not
requiring any evidence where default judgment is sought in the case
of a debt or liquidated demand, seems to me
to be related principally
to the ability of the Court to determine the quantum of damages due
to a plaintiff without an evidential
enquiry into and a discretionary
determination as to the amount due. However, in such cases there are
numerous defences open to
a defendant which could be raised to defeat
the action or curtail the claim and which would be analogous to the
raising of contributory
negligence and a consequent apportionment of
damages in an action based on delict. Therefore it does not seem to
me to be right
to insist on oral evidence on the merits of a
plaintiff's claim being led merely because a defence such as
contributory negligence,
which could result in an abatement of the
claim, could be raised but has not been pleaded or otherwise invoked
by a defendant.’
[44]
I respectfully agree with the reasoning in Abraham supra. A
judge confronted with only the version of the plaintiff as set out in

the plaintiff’s pleadings, having regard to what is contained
in the court file, should make a judgment call in deciding
whether
there is any indication from the information before him or her that
the evidence to be tendered by affidavit requires additional

scrutiny.
[45]
In order to cater for these situations, ie, where no notice of
intention to defend is delivered and/or no plea, or, when the RAF

fails to contribute in the proceedings, the Uniform Rules and this
court’s Practice Directives provide for guidance. I turn
to
these rules and directives.
Rule
31(2)(a) – Default judgment
[46]
I deal with this subrule because it has become common place
now that the RAF fails to defend a claim and/or fails to deliver a
plea.
In those instances, the plaintiff is entitled to approach court
for default judgment as contemplated in the subrule.
[47]
The subrule provides as follows:
‘
Whenever in an
action the claim or, if there is more than one claim, any of the
claims is not for a debt or liquidated demand and
a defendant is in
default of delivery of notice of intention to defend or of a plea,
the plaintiff may set the action down as provided
in subrule (4) for
default judgment and the court may, after hearing evidence, grant
judgment against the defendant or make such
order as to it seems
meet.’
[48]
A claim against the RAF is not a claim for a debt or
liquidated demand. The subrule specifically provides that the court
may, after
hearing evidence grant a judgment against the defendant.
The hearing of evidence is therefore a requirement for judgment
against
the RAF in instances where subrule 31(2)(a) applies. Evidence
means evidence properly presented in compliance with the Rules and
in
accordance with the rules of evidence. The mere handing in of expert
reports or oral argument from the bar as is often attempted
by
plaintiffs will not suffice. What must be proven on a balance of
probabilities, even if the RAF fails to deliver a notice of
intention
to defend the action or a plea, remains all the elements of a RAF
claim.
Paragraph
3.10 of this court’s Consolidated Covid-19 Directive
[49]
Paragraph 3.10 of this court’s Consolidated Covid-19
Directive reads as follows:
‘
There shall be no
judgment by default in damages claims without evidence in whatever
form having been tendered on both merits and
quantum. And should the
evidence be on affidavits, essential elements of the claim either on
merits and or on quantum, must be
properly set out in detail,
otherwise the party seeking the court to decide the matter on
affidavits runs the risk of the matter
being dismissed or absolution
from the instance being granted.’
[50]
The provisions of paragraph 3.10 of the Consolidated Covid-19
Directive reinforces what is required in terms of subrule 31(2)(a)

where default judgment is sought in damages actions. It also provides
that evidence may be presented by affidavit, an issue to
which I
shall turn to next.
Rule
38(2)
[51]
The subrule provides:
‘
The witnesses at
the trial of any action shall be orally examined, but a court may at
any time, for sufficient reason, order that
all or any of the
evidence to be adduced at any trial be given on affidavit or that the
affidavit of any witness be read at the
hearing, on such terms and
conditions as to it may seem meet: Provided that where it appears to
the court that any other party
reasonably requires the attendance of
a witness for cross-examination, and such witness can be produced,
the evidence of such witness
shall not be given on affidavit.’
[52]
The subrule provides a mechanism whereby the court may on
application and if sufficient reason is shown, allow that evidence be
given on affidavit. Firstly, there must be an application to adduce
evidence by affidavit. Secondly, there must be sufficient reason
for
doing so and thirdly, the court may lay down the terms and conditions
for the evidence to be adduced. In Madibeng Local Municipality
v
Public Investment Corporation Ltd 2018 (6) SA 55 (SCA) at 25, the
Supreme Court of Appeal expressed itself over subrule 38(2):
‘
The approach to
rule 38(2) may be summarised as follows. A trial court has a
discretion to depart from the position that, in a trial,
oral
evidence is the norm. When that discretion is exercised, two
important factors will inevitably be the saving of costs and
the
saving of time, especially the time of the court in this era of
congested court rolls and stretched judicial resources. More

importantly, the exercise of the discretion will be conditioned by
whether it is appropriate and suitable in the circumstances
to allow
a deviation from the norm. That requires a consideration of the
following factors: the nature of the proceedings, the
nature of the
evidence, whether the application for evidence to be adduced by way
of affidavit is by agreement, and ultimately,
whether, in all the
circumstances, it is fair to allow evidence on affidavit.’
[53]
Plaintiffs in RAF matters often request the court to accept
evidence upon affidavit. Especially now where in most RAF matters
there
is no appearance by the RAF or where the RAF has not
participated in the pre-trial proceedings or where the RAF has not
defended
the action and/or failed to deliver and file a plea. Of
course, where the RAF does not appear at the trial, there will be no
request
for cross-examination as provided for in the subrule.
Therefore, subject to what I sent out in paragraphs 61 and 62 below,
I see
no reason why Rule 38(2) may not actually be used to contribute
to the speedy and cost-effective delivery of justice in RAF matters.
Rule
39(1)
[54]
The subrule provides:
‘
If, when a trial
is called, the plaintiff appears and the defendant does not appear,
the plaintiff may prove his claim so far as
the burden of proof lies
upon him and judgment shall be given accordingly, in so far as he has
discharged such burden. Provided
that where the claim is for a debt
or liquidated demand no evidence shall be necessary unless the court
otherwise orders.’
[55]
In all the matters which is the subject of this judgment, the
RAF did not appear when the trial was called despite being served
with the notice of set down of the trial. What is however of
importance in terms of subrule 39(1) is that the plaintiff must still

prove his or her claim in a damages claim so far as the burden of
proof lies upon him or her. Therefore, as said above by presenting

proper evidence to the court for purposes of discharging the burden
of proof – that is – proving on a balance of
probabilities
all of the elements of the delict, or in RAF matters,
the elements referred to in paragraph 17 above with due regard with
what
I set out under the headings onus and manner of proof above.
[56]
In my view, having regard to the principles laid down in
Madibeng Local Municipality supra, in circumstances where there has
been
no participation by the RAF in the proceedings, there is no
appearance by the RAF at the trial; proper pre-trial procedures were

not participated in by the RAF; only the plaintiff delivered expert
reports, a deviation from the norm that viva voce evidence
must be
lead on all the issues will not offend justice and should be
followed. However, plaintiffs must be alive to the fact that
it may
be very difficult for a court to exercise its discretion in awarding
compensation for non-pecuniary loss if the court is
deprived from
first hand seeing and hearing the plaintiff, especially with regards
to the sequel of the injuries that were sustained
in the collision.
DAMAGES
[57]
Plaintiffs in actions against the RAF do not sue for nothing –
they seek to be compensated for the loss they believe they have

suffered as a result of the negligence of an insured driver.
[58]
Damages, including damages in RAF claims, are classified. This
is explained in Prince v Road Collision Fund (CA143/2017) [2018]
ZAECGHC 20 (20 March 2018) as follows:
‘
[5] In considering
this appeal, it is important to emphasize the classification of
damages in our law. There is a general division
of damages into
general damages and special damages. This applies to bodily injury
cases which recognizes the distinction between
general and special
damages. All patrimonial loss actually incurred, such as for example
medical and hospital expenses and past
loss of earnings is treated as
special damage. Quite apart from this all non-patrimonial loss, such
as pain-and-suffering, loss
of amenities, and loss of expectation of
life is classified as general damage. However patrimonial loss, which
up to the trial
has not yet crystallized in actual loss but remains
prospective, remains general damage, such as future medical expenses
and future
loss of earnings. It is thus important to understand that
past loss of earnings is treated as special damages, whilst future
loss
of earnings is treated as general damages.
[6] As pointed out in
this authority, the basic principle in respect of an award of damages
in this kind of action is that the compensation
must be such as to
place the Plaintiff, as far as possible, in the position he or she
would have occupied had the wrongful act
causing injury not occurred.
In respect of bodily injury cases the claim is sui generis and the
measure of damages is necessarily
less exact. Further, by virtue of
the principle of the once and for all rule it is necessary in one
action to seek both past and
prospective loss. In respect of
prospective damages, which is the subject matter of the appeal,
whilst this is a speculative element
the loss must be established
upon the usual test of a balance of probabilities. Justice may demand
that a contingency allowance
be made for the mere possibility of
certain forms of loss.
[7] In Corbett (supra)
the following appears:
“
In this regard the
distinction is drawn (in principle and not without difficulties)
between causation and quantification: it has
never been the approach
of the courts to resolve the inescapable uncertainties by the
application of the burden of proof. Mere
difficulty in assessing this
amount will not absolve the court from arriving at an estimate. The
onus of showing that there is
sufficient likelihood of such loss
rests upon the plaintiff. This does not, however, mean that where the
evidence suggests a range
of possibilities, the courts will select
the one least favourable to the plaintiff because he bears the onus,
and has not proved
that a more favourable possibility ought to be
preferred.”
[8] It is thus important
to emphasize that in this matter the claim for future loss of
earnings or loss of employability falls into
the heading “General
Damages”, with all the consequences thereof accordingly. This
is prospective loss in the context
set out above.
[9] Again as pointed out
by Corbett:
“
Before damages
payable to the injured person can be assessed it is necessary that
the court should determine factually what injuries
were suffered by
the plaintiff as a result of the defendant’s wrongful act...”
In this regard the
question that must first be answered in the assessment of damages is
and what must be determined is:
“…
disability
which is likely to impair the injured person’s earning capacity
or to cause a loss of the amenities of life. Such
disability may be
temporary or permanent. Where it is temporary and has in fact
disappeared at the time of trial, it is not normally
of great
importance as an independent factor.… On the other hand, where
it is permanent or where, though temporary, it extends
beyond the
time of the trial, then it may cause prospective losses, such as a
diminution in the injured persons earning capacity
or an impairment
of the amenities of life, for which compensation should be made by
the award of damages. Moreover, a permanent
disability may be present
at the time of the trial or it may be one which will only manifest
itself at some future date.”’
[59]
The plaintiff bears the onus to prove his or her loss. It is
for the court to determine what should be paid.
[60]
In respect of the loss of future earning capacity, the
following is said in in Road Collision Fund v Guedes
2006 (5) SA 583
(SCA) at 586:
‘
It is trite that a
person is entitled to be compensated to the extent that the person’s
patrimony has been diminished in consequence
of another’s
negligence. Such damages include loss of future earning capacity (see
for example President Insurance Co Ltd
v Mathews). The calculation of
the quantum of a future amount, such as loss of earning capacity, is
not, as I have already indicated,
a matter of exact mathematical
calculation. By its nature such an enquiry is speculative and a court
can therefore only make an
estimate of the present value of the loss
which is often a very rough estimate (see for example Southern
Insurance Association
Ltd v Bailey NO. The court necessarily
exercises a wide discretion when it assesses the quantum of damages
due to loss of earning
capacity and has a large discretion to award
what it considers right. Courts have adopted the approach that in
order to assist
in such a calculation, an actuarial computation is a
useful basis for establishing the quantum of damages. Even then, the
trial
court has a wide discretion to award what it believes is just
(see for example the Bailey case and Van der Plaats v South African

Mutual Fire and General Insurance Co Ltd.’ [References omitted]
CONCLUSION
ON ISSUES TRAVERSED ABOVE
[61]
In
my view, the approach in RAF matters in circumstances set out above
where there is no participation by the RAF at all or only
limited
participation or there is no appearance when the trial is called for
hearing, the approach to be adopted should be on basis
of what is set
out by Froneman J
[15]
:
‘
But then, the law
often is a pragmatic blend of logic and experience.’
[62]
In my view, the approach of Froneman J applies to RAF actions
where the circumstances set out in this judgment apply. The court
should be extremely astute and consider all the information before it
which includes the pleadings, documents that were discovered,
all
reports by the experts and all affidavits (if filed) before the trial
commences in order to determine the manner in which to
approach the
trial. The pleadings, the facts that appear from what is in the court
file and the expert reports, (especially whether
the findings
therein) tally with the rest of the information. If there is any
doubt in the court’s mind regarding any of
the elements of the
delict that is pleaded and that must be proven, I am of the view that
the court has to interrogate the issue
with the plaintiff in order to
set his/her mind at ease. The court must at all times be aware that
RAF matters are by their very
nature and now also, due to the
inaction of the RAF, open to abuse. Each order that is granted comes
from scarce public funds.
Only meritious claims proven on a balance
of probabilities, warrant an award in damages.
INDIVIDUAL
MATTERS
[63]
Having set out the procedural and substantive principles in
general terms, I proceed to deal with the individual matters.
PHUMZILE
REMEMBER MNISI v The RAF / Case Number: 1823/19
[64]
The collision occurred on 26 May 2018. The plaintiff was a
passenger who was transported at the back of the light delivery
vehicle.
The vehicle that conveyed the plaintiff was stationary next
to the road. A truck collided with the stationary vehicle. A
passenger
at the back of the stationary vehicle was witness to the
collision.
[65]
The defendant delivered a plea as well as a special plea. The
special plea challenged compliance with section 17 of the Act in
respect
of a claim for non-pecuniary loss.
[66]
The plaintiff presented his own affidavit as well as the
affidavit of the witness to the collision. The plaintiff describes
the
collision in his affidavit.
[67]
According to the plaintiff’s affidavit, the plaintiff
suffered a fracture to his left collar bone and a fracture to the
back
of the left shoulder blade as well as a hard blow to his upper
leg.
[68]
In the orthopaedic surgeon’s report, the plaintiff
confirms the injuries that she sustained. The plaintiff reported to
the
orthopaedic surgeon that she sometimes experiences pain for days
in her neck which also extends to left hand side of her back. The

plaintiff reported that she is unable to walk for long distances. She
is unable to handle heavy objects with her hand and battle
to
mobilize objects above shoulder height. She is unable to sit or stand
for prolonged periods and she suffers from headaches approximate

three times per week which she treats with medicine. The plaintiff
battles to bend down and climb stairs. The plaintiff also has

difficulty to sleep during the night, especially on the left hand
side of her body. The plaintiff is no longer able to exercise
or play
sport.
[69]
The orthopaedic surgeon recorded all the plaintiff’s
shoulder movements to be normal with mild pain with abduction flexion

and addition. There is also a soft tissue injury to the left ankle
and the range of motion is impaired and associated with pain.

According to the orthopaedic surgeon, the aforesaid complaints have a
definite effect on the plaintiff’s employability. However,
the
plaintiffs orthopaedic injuries do not meet the requirements for a
serious injury under the narrative test.
[70]
According to the industrial psychologist, having regard to the
plaintiff’s scholastic history together with the plaintiffs

grade 12 marks, same indicates that the plaintiff probably would not
have been suited to work within the sphere of high intellectual
and
academic ability. The plaintiff’s family history suggests a
heavy dependence on unskilled work and manual labour. The
plaintiff
was 23 years old at the time of the collision and she remains
employed as an unskilled worker. Having regard to the plaintiff’s

low matric pass rate and occupational history as well as her family
history, it seems that that the plaintiff would in all likelihood

have relied on unskilled employment opportunities in order to
generate an income. The plaintiff would have continued working as
a
cook and a shop assistant had the collision not occurred, earning R
1000.00 per month until she found better employment opportunities

after the collision. The plaintiff may have sought employment as
domestic worker. The plaintiff would have been physically capable
of
working as a farm worker, cleaner a domestic worker had the collision
not occurred. It is likely that the majority of opportunities

available to her would have been within the category of manual labour
in an unskilled sphere.
[71]
The occupational therapist is of the view that a full job
match does not exist having regard to the plaintiff’s
post-morbid
physical abilities and the demands of her pre-collision
job as a general worker. The occupational therapist further reported
that
a full job much does not exist between the plaintiff’s
physical ability and the demands of her current occupation as a
domestic
worker. The occupational therapist is of the view is that
with appropriate and successful treatment a degree of improvement may

be expected. However, the plaintiff would only be able to meet the
demands of medium work. This factor would likely impact significantly

on the plaintiff’s ability to pursue more permanent work.
[72]
I have considered the evidence with regards to the defendant’s
liability for the loss caused to the plaintiff. I find that
the
defendant is solely liable for the plaintiffs proven loss.
[73]
The calculations set out in the actuarial report was admitted
into evidence. The actuary took into account the industrial
psychologist’s
report. The actuarial calculations show that the
plaintiff’s present value of loss of income as calculated at 1
December
2021, amounted to R483 448. To this amount,
contingencies still have to be applied.
[74]
I had regard to the evidence before me as well as the expert
reports which was presented by the plaintiff. I am of the view, and

having regard to the fact that the award of an appropriate amount is
within the discretion of this court. I consider a pre-morbid

contingency of 5% and a post morbid contingency of 25% a useful
guide. I am of the view that an amount of R 400 000 will
constitute just compensation to the plaintiff. I requested the
plaintiff's attorney to forward me a draft order. Save for an
amendment
of the amount awarded for the plaintiff’s loss of
income and an order managing the issue of general damages, I make the
draft
order an order of court. The order is attached as “X1”
to this judgment.
BIGBRAIN
SKUMBUZO MALALA v The RAF / Case Number: 2538
[75]
The motor vehicle collision occurred on 29 May 2017. Regarding
the occurrence of the collision, the plaintiff tendered into evidence

his affidavit as well as the affidavit of a witness. According to the
plaintiff, he was standing next to his vehicle. The vehicle
was next
to the road. The plaintiff was loading certain items on his vehicle.
An unidentified vehicle left the road and hit him
from the back. The
vehicle fled the scene of the collision. The plaintiff lost
consciousness. He was taken to a local clinic where
the plaintiff
regained his consciousness. The plaintiff was taken to a private
medical practitioner and later treated at the Tonga
Hospital. The
witness saw many people next to the road as well as the plaintiff
lying next to a vehicle when he arrived on the
scene.
[76]
In the absence of any evidence to the contrary, I accept the
plaintiff’s version of the collision. In the premises, I find

in favour of the plaintiff. The defendant is held to be solely liable
for the plaintiff’s proven loss.
[77]
The plaintiff proceeded to prove his income prior to the
collision by way of an affidavit. The plaintiff furnished a further
affidavit
in which he set out that he, his wife, and four assistants
were involved in selling food and cold drink at the Lebombo border
post
when the collision occurred. In his affidavit, the plaintiff
sets out that he made R7000 per month in profit as a hawker.
[78]
An affidavit of one of the plaintiff’s co-workers was
tendered and entered into evidence The witness confirmed that she was

a co-worker of the plaintiff and that they were selling cold drink
and food at the border gate. A further affidavit by another
co-worker
was tendered and entered into evidence who corroborated the evidence
of the other co-worker.
[79]
In the plaintiff's affidavit, he also set out that he is no
longer able to conduct the other activity he was engaged in prior to

the collision. He was also cutting of wood to be sold. The plaintiff
alleges that subsequent to his divorce, he no longer shares
in any
income at the border post. The plaintiff has started his own the
nursery from home but does not make any profit yet.
[80]
The plaintiff tendered the evidence on affidavit of the
various experts that he consulted him regarding the loss he suffered
as
a result of the collision. The plaintiff suffered multiple closed
fractures as well as a sprain of the superior tibiofibular joint
and
ligament.
[81]
The orthopaedic surgeon, records that: the plaintiff has
suffered degenerative changes to his left knee; a diagnosis of
osteoarthritis
in respect of the left knee; the plaintiff may require
a left knee replacement future but that is not entirely attributable
to
the collision; the plaintiff is limited to an ability to perform
physical work but it is not attributable to the collision. According

to the expert an apportionment of 20% is recommended.
[82]
The occupational therapist records that the plaintiff is
suited for work of a medium physical demand pre-collision but that
post-collision
the plaintiff is only suited for light to medium work.
The collision appears to have accelerated the degenerative changes in
the
plaintiff’s left knee. The plaintiff’s symptoms from
the collision have caused a reduction in the plaintiff’s

efficiency and core competencies. The plaintiff has mild symptoms of
depression. Therapy, including physiotherapy, is recommended.
[83]
The industrial psychologist postulated that had the collision
not occurred, the plaintiff would have continued to be self-employed

and records that the plaintiff was already close to the upper
earnings for informal traders. Therefore, it was not anticipated
that
the plaintiff’s earnings would have increased earnings
significantly. After the collision, the plaintiff recuperated
for 18
months. During that time, the plaintiff did not have an income.
Afterwards the plaintiff returned to his self-employed capacity.
This
was however to a lesser extent as he is no longer engaged in selling
wood as he cannot chop the logs. The plaintiff now only
sells fresh
produce from a vegetable patch that he owns.
[84]
An actuarial report was admitted into evidence. The actuary
calculated the plaintiff’s loss of income having regard to the

industrial psychologist’s report. The plaintiff’s past-
and future loss of income was calculated at R 267 198.
To this
amount contingency must still be applied. Having regard to the
plaintiff’s circumstances (including the apportionment
of 20%
suggested by the orthopaedic surgeon), pre-and post-morbid
contingency must be applied. In my view, amount of R 200 000

awarded for future loss of earnings will be appropriate.
[85]
I requested the plaintiff's attorney to forward me a draft
order. Save for an amendment of the amount awarded for the
plaintiff’s
loss of income and the addition of orders relating
to the general damages aspect of the claim, I make the draft order an
order
of court. The order is attached as “X2” to this
judgment.
BOTHELO
KGAMANE v the RAF / Case Number: 315/2020
[86]
In this matter, the RAF has accepted liability for the insured
driver’s negligence. The RAF did not defend the action and did

not file a plea. The collision occurred on 25 August 2018. The
plaintiff was a passenger.
[87]
The plaintiff presented affidavits of the various experts who
he has consulted All the experts confirmed the content of their
reports
by way of affidavits admitted into evidence.
[88]
In his report, the orthopaedic surgeon confirms a right wrist
injury (fracture of the ulna) as well as a right ankle injury.
Regarding
the wrist injury, the orthopaedic surgeon records: a
deformity of the proximal third ulnar diaphysis; deformity of the
distal right
radius; and a narrowing of the radio-carpal joint space.
Over the plaintiff’s ankle injury, the orthopaedic surgeon
records
that the plaintiff suffered bimalleorlar fractures that was
surgically treated with an open reduction and internal fixation.
[89]
The orthopaedic surgeon records that the plaintiff experiences
pain when picking up heavy objects. In respect of the right angle

injury, the orthopaedic surgeon further records that the plaintiff
has a moderate loss of range of motion with mild pain. With
regards
to the assessment of the plaintiff’s employability, the
orthopaedic surgeon records that the plaintiff worked as
a vendor
before the collision. He cut down trees with a chain saw which he
then loaded onto a vehicle. He sold the wood in the
area where is
stays. The plaintiff did not return to work as his physician
allegedly told him that he cannot lift heavy objects
anymore. The
plaintiff reported that he has pain when standing for long periods
and when lifting heavy objects. In the orthopaedic
surgeon’s
opinion, it will be difficult for the plaintiff to find work in his
previous capacity and he will only be able
to work in a sedentary
environment. According to the orthopaedic surgeon, the orthopaedic
injuries that the plaintiff sustained
meet the requirements of a
serious injury under the narrative test as he is unable to do his
previous job as the plaintiff is functionally
impaired. The
orthopaedic surgeon’s view was that there is a definite nexus
between the current complaints and the injuries
sustained in the
collision. The orthopaedic surgeon calculate the plaintiff’s
whole person impairment at 17%.
[90]
The occupational therapist records that the plaintiffs
residual earning capacity had decreased to participation in a light
to medium
work environment over an eight-hour workday. Although the
plaintiff is able to handle medium loads he will not be able to meet
the full parameters of light and medium work given his compromised
walking tolerance. The occupational therapist’s opinion
is that
the plaintiff is better said suited to sedentary light work with
limitation and infrequent mobility demands to avoid the
acceleration
of the degenerative process in the ankle joints. She is also of the
view that given the assessment findings, a full
job-match no longer
exists between the physical function of the plaintiff and the overall
demands of his pre-collision job demands
as a vendor which entails
medium strength. The occupational therapist is of the view that the
plaintiff’s current physical
limitations, the plaintiff would
experience difficulties and reduced productivity due to resume his
pre-collision work demands.
[91]
The industrial psychologist postulates the scenario should the
collision not have happened. Then the plaintiff would have remained

self-employed in his capacity as an informal trader he compared this
with his post-collision career postulation which she took
as that the
plaintiff would still be able to secure employment as a machine
operator considering all the machines he received training
on. The
industrial psychologist postulates that it is likely that the
plaintiff would still be able to secure some sort of temporary

appointment as a general worker or performing piece jobs.
[92]
An actuarial report was admitted into evidence. The actuary
calculated the plaintiff’s loss of income having regard to the

industrial psychologist’s report. The plaintiff’s past-
and future loss of income was calculated at R 415 191. To this
amount
contingency must still be applied. Having regard to the plaintiff’s
circumstances a pre-morbid contingency of 10%
and a post morbid
contingency of 15% applies as a guide for purposes of compensating
the plaintiff. I consider an award of R 400 000
as just
compensation to the plaintiff for the plaintiff’s loss of
future income.
[93]
I requested the plaintiff's attorney to forward me a draft
order. Save for an amendment of the amount awarded for the
plaintiff’s
loss of income and the addition of orders relating
to the general damages aspect of the claim, I make the draft order an
order
of court. The order is attached as “X3” to this
judgment.
EMMELINAH
NYATSELA MASHABA v The ROAD COLLISION FUND / Case Number: 208/20
[94]
The collision occurred on 3 October 2018. The plaintiff was a
passenger. The plaintiff was a hawker prior to the collision. The
defendant conceded that the insured driver was solely negligent in
causing the collision.
[95]
The plaintiff suffered a thoracic spine injury and a lumbar
spine injury in the collision. With regards to the lumbar spine
injury,
the plaintiffs orthopaedic surgeon records a mild disc space
narrowing L4/L5 with adjacent endplate osteophyte formation;
osteoarthritis
of the lower lumbar facet joint involving L4/L5,
especially on the right. With regards to the thoracic spine injury,
the orthopaedic
surgeon records a mild spondylosis of the mid/lower
thoracic spine with small endplate osteophyte formation. The
diagnosis of a
the orthopaedic surgeon is a thoracic spondylosis at
multiple levels.
[96]
The orthopaedic surgeon is of the view that the plaintiff will
not be able to work as a hawker or do any kind of physical employment

until the normal retirement age of 65 years due to her back injuries.
The orthopaedic surgeon is also of the view that the injuries
to the
plaintiff’s thoracic lumbar spine meets the requirements for a
serious injury under the narrative test. The orthopaedic
surgeon is
of the view that there is also a definite nexus between the current
complaints and the injuries the plaintiff has sustained
in the
collision. The orthopaedic surgeon assessed the seriousness of the
plaintiff's injury as a serious long-term impairment
and loss of
thoracic lumbar spinal function.
[97]
The occupational therapist records that the plaintiff’s
pre-collision employment required medium physical demands. The
collision
interrupted her career and she was not able to work for
approximately one year and eight months while recovering. The
plaintiff
no longer works as a hawker. The plaintiff now employs a
gardener to plant vegetables in her yard. The claimant sells these
vegetables
from her residence. According to the occupational
therapist, the plaintiff’s residual physical capacity presented
with mobility,
postural tolerance and weight handling skills that
enabled her to perform work of a sedentary nature. The plaintiff
presents with
limited balancing skills and relies on the use of a
crutch or external support to support in mobility skills. The
plaintiff also
presents with severe back pain restricting her bending
and trunk spinal rotation. The plaintiff presents with restricted
load handling
capacity because of severe back pain. The plaintiff’s
physical capacity limitations are consistent and compatible with the

severity of the injuries. According to the occupational therapist the
plaintiff has suffered permanent loss of pre-collision physical
task
performance capacity as a result of her injuries. The occupational
therapist is of the view that given the assessment findings,
there is
no job match between the physical function of the plaintiff and the
overall demands of her pre-collision occupation as
a self-employed
hawker.
[98]
The industrial psychologist is of the view that the
post-collision career postulation of the plaintiff, keeping in mind
the expert
opinions and that the plaintiff is only suited to perform
work of the sedentary nature. However, the plaintiffs low level of
education,
lack of alternative work experience and advanced age at 53
years, it is unlikely that the plaintiff would secure employment of
such a sedentary nature.
[99]
The actuarial report took into account the reports of the
industrial psychologist. The actuary calculated the present value of
the
loss of income of the plaintiff as result of the collision. The
calculations and figures were determined without applying general

contingencies. In her heads of argument, the plaintiff proposed,
after the application of a contingency of 5% in respect of past
loss
and 15% in respect of future loss, that the total loss of earning
should be R 680 563.45. I round the figure to R 680 000.
I am of
the view that this amount would adequately compensate the plaintiff
for the loss of income she has suffered as a result
of the collision.
[100]
The RAF has failed to either accept or reject the plaintiff’s
serious injury assessment. As a result of what I have set out
above
over the issue of the RAF’s liability for non-pecuniary loss,
this court can therefore not presently pronounce on the
issue.
[101]
The order is attached as “X4” to this judgment.
NDUBASI
ROBERT SHABANGU v The ROAD COLLISION FUND Case Number: 4082/19
[102]
The collision occurred on 27 September 2018. The plaintiff was
a pedestrian. In this matter merits have been conceded by the
defendant
on the basis that the defendant is 100% liable to pay the
plaintiffs proven damages. At the time of the collision, the
plaintiff
was a dump truck driver.
[103]
The orthopaedic surgeon reports that the plaintiff sustained
an injury to his left knee. The orthopaedic surgeon records that the

plaintiff’s left knee is severely impaired with a painful range
of motion. The orthopaedic surgeon assessed the seriousness
of the
plaintiff's injury under the narrative test with a combined WPI of
17%.
[104]
The plaintiff’s occupational therapist, reports that the
plaintiff is better suited for temporary strength demands in his
workplace during an eight-hour workday. He will also be restricted
from positions requiring light to medium strength. The plaintiff
is
an unequal competitor in the open labour market. Also, according to
the occupational therapist, the plaintiff has been rendered
limited
in his job choices in the open labour market when compared with his
uninjured pears.
[105]
The plaintiff’s industrial psychologist records that the
plaintiff remained unemployed for two years after the collision. As

dump truck driver, the plaintiff earned an income of R 4672.35 per
month. Since 2020, the plaintiff has been employed as a taxi
driver.
According to the expert the post-collision scenario of the plaintiff
is that the plaintiff will have difficulty in his
previous job and
will be best suited in the sedentary labour environment. It is
therefore likely that the plaintiff would continue
his current
capacity as a taxi driver earning a comparable R1500 per month.
However, according to the expert, it seems reasonable
to assume that
the plaintiff will not be able to sustain his current employment and
that he will have likely have to search alternative
employment in the
near future due to his physical limitations.
[106]
It is clear from the plaintiff’s expert reports that the
plaintiff has suffered damages as a result of the collision and will

continue to do so. The plaintiff has lost income and will in future,
as a result of the collision.
[107]
The plaintiff’s actuary, having regard to the industrial
psychologist’s report, calculated the plaintiffs past and
future
loss of earnings. According to the calculations, the plaintiff
has suffered a past loss of income in the amount of
R 355 591
and will suffer a future loss of income in the amount of R 3 604
349. To these amounts, general contingencies
still has to be applied.
I consider that an amount of R 3 500 000 will be a fair and
just compensation to the plaintiff
in respect of loss of income both
and past and future.
[108]
The RAF has failed to either accept or reject the plaintiff’s
serious injury assessment. As a result of what I have set out
above
over the issue of the RAF’s liability for non-pecuniary loss,
this court can therefore not presently pronounce on the
issue.
[109]
The order is attached as “X5” to this judgment.
BUSISIWE
FIKILE KHOZA v The ROAD COLLISION FUND / Case Number: 4423/19
[110]
The collision occurred on 11 November 2017. The plaintiff was
a passenger in one of the vehicles that collided. The merits were
settled.
[111]
The plaintiff sustained the following injuries: a facial
injury; direct injury to both of her eyes; cervical spine injury that
is,
an acceleration and the acceleration injury; thoracic spine
injury with a compression fracture at level T8; a chest injury; a
soft
tissue injury. Since the collision, the plaintiff complaints of
neck pain; headaches; pain between the shoulder blades; stiffness
in
the next; and dizziness.
[112]
The plaintiff was employed as a caretaker before the
collision. She did not work for a period of one month after the
collision.
[113]
The plaintiff’s orthopaedic surgeon confirmed the
plaintiff’s injuries. The orthopaedic surgeon is of the view
that
after the collision the plaintiff is able to do sedentary type
of work. The orthopaedic surgeon concluded that the plaintiff’s

injuries meet the requirements for a serious injury under the
narrative test as the plaintiff is functionally impaired.
[114]
The occupational therapist is of the opinion, considering the
possibility of future treatment and the plaintiff’s
post-collision
condition, that the plaintiff is restricted to
sedentary and light work. The plaintiff is trained as an auxiliary
nurse. The occupational
therapist is of the view that the plaintiff
will never be able to cope with being an auxiliary nurse within a
hospital setting
which is classified as medium work. Additionally, as
the plaintiff requires spinal surgery she will be restricted to
sedentary
and occasional light work. The occupational therapist is of
the opinion that the plaintiff will not be able to reach the
pre-collision
work potential. She will be a vulnerable employee and
she will struggle to attain work if she is not offered a reasonable
accommodation.
Her limited career options have a negative impact on
her earning potential.
[115]
The plaintiff’s industrial psychologist postulated that
the plaintiff will remain employed as a community health worker or

similar given the history education and experience if the collision
did not occur it seems likely that the plaintiff would have
remained
employed as a community health worker. After the collision the
plaintiff returned to a pre-collision capacity as a community
health
worker. This seems justified, according to the industrial
psychologist, as the plaintiff has residual capacity to engage
in the
inherent job requirements. However, the plaintiff’s ability
will be met with limitations with regard to constant walking.
The
plaintiff will have to be accommodated and will include all
likelihood be dependent on a sympathetic and accommodating employer.

As the plaintiff’s pathology progresses it is expected that the
plaintiff will struggle increasingly and the future employability

might be jeopardized early retirement may become likely as the
plaintiff’s symptomology increases.
[116]
The plaintiff’s actuary, having regard to the
industrial psychologist’s report, records that it seems as if
the
plaintiff did not suffer a past loss of income. With regards to
future loss of income, the actuary suggests that a higher than normal

contingency be applied. I agree, having regard to the limitations of
the plaintiff even though she is still employed as a community
health
worker. I accept that the plaintiff may be sympathetically employed
and that this may have an impact on her future employment
options. I
regard an amount of R 100 000 to be fair compensation to the
plaintiff under the present circumstances.
[117]
The RAF has failed to either accept or reject the plaintiff’s
serious injury assessment. As a result of what I have set out
above
over the issue of the RAF’s liability for non-pecuniary loss,
this court can therefore not presently pronounce on the
issue.
[118]
The order is attached as “X6” to this judgment.
CRAIG
TALENT NGOBE v The ROAD COLLISION FUND / Case Number: 2382/19
[119]
The motor vehicle collision that occurred on 11 August 2018 at
Hazyview. The plaintiff was a passenger. Merits was settled by the

time that the trial was called. The defendant conceded the issue of
negligence 100% in favour of the plaintiff.
[120]
The plaintiffs orthopaedic surgeon recorded the injuries that
were sustained by the plaintiff. These included: a left ankle injury;

a traumatic brain injury; and a chest injury. The orthopaedic surgeon
concludes that the plaintiff sustained a severe traumatic
brain
injury as indicated by his loss of consciousness and post-traumatic
amnesia period. The plaintiff presents with travel anxiety;
regular
headaches and short-term memory loss. With regards to the left ankle
injury, the plaintiff has lost flexion and hyper inversion
to the
ankle probably due to the laxity of the lateral ligament.
[121]
The orthopaedic surgeon’s opinion is that the plaintiff
will have difficulty when walking or standing for long periods. The

plaintiff was employed as a manager at a funeral parlour at the time
of the collision. The plaintiff had to coordinate funerals;
manage
staff; deal with customer queries; and do general administrative
duties. The plaintiff attempted to return to work in 2019
but had
difficulty when walking or standing for long periods. After
rehabilitation, the plaintiff should be able to return to work
as a
manager. The plaintiff’s whole person impairment combined was
assessed at 21%.
[122]
The plaintiff’s occupational therapist records that the
plaintiff is suited to perform sedentary and light work over an
eight-hour
workday. It is also recorded that the plaintiff presents
with compromised walking tolerance due to pain in his left ankle.
[123]
The plaintiff, subsequent to the collision, started to work as
a salesman. The plaintiff only works early in the mornings in order

to avoid the heat. The plaintiff indicated that once he has recruited
a new client, he returned to the vehicle in order to finalize
the
policy so that he could sit and rest his foot.
[124]
The plaintiff’s occupational therapist, is of the view
that a full job match does not exist between the physical abilities

of the plaintiff and the demands of his post- collision job as a
salesman. The plaintiff will benefit from recommended medical

interventions and he will also benefit from therapeutic intervention.
The occupational therapist is of the opinion that with appropriate

and successful treatment a degree of involvement may be expected that
he will likely experience improved pain and comfort.
[125]
The plaintiff’s industrial psychologist confirmed the
plaintiff’s post-collision enjoyment his salary information and

also summarised pre-collision career aspirations and earning
potential. According to the industrial psychologist, the plaintiff’s

post-collision functioning scenario still matches that of his
pre-collision employment as manager. However, the plaintiff will

suffer limitations in prolonged standing and walking. The industrial
psychologist is of the view that the plaintiff would be able
to work
in a similar capacity as he did prior to the collision the plaintiff
would also be able to work as an insurance consultant.
[126]
The plaintiff’s actuary, after having regard to the
plaintiff’s industrial psychologist’s report, calculated
the
overall loss of the plaintiff in respect of past- and future
income at R 884 645. To this amount, contingencies must still
be
applied. Having regard to the plaintiff’s expert reports, I am
not convinced that the amount calculated will be fair under
the
circumstances where the plaintiff still retains the ability to work
as before the collision. I do however consider that the
plaintiff may
potentially suffer a loss of future income having regard to his
limitations. I consider an amount of R 400 000
to be fair under
the circumstances.
[127]
The RAF has failed to either accept or reject the plaintiff’s
serious injury assessment. As a result of what I have set out
above
over the issue of the RAF’s liability for non-pecuniary loss,
this court can therefore not presently pronounce on the
issue.
[128]
The order is attached as “X7” to this judgment.
ANDREAS
JAMES SITHOLE v The ROAD COLLISION FUND / Case Number: 4067/19
[129]
The motor vehicle collision that occurred on 4 February 2018.
The plaintiff was a passenger. At the time of the collision, the
plaintiff
was a self-employed builder.
By
the time the trial reached the court all the issues were still in
dispute. In respect of the merits, the plaintiff tendered his
own
affidavit. According to the plaintiff two tires of the vehicle he was
travelling in had burst. In the absence of any other
evidence, I find
that the collision was as a result of the sole negligence of the
insured driver.
[130]
The plaintiff sustained a fracture to his forearm; a left
distal radius fracture; and a large laceration to his forehead. The
current
complains of the plaintiff include moderate pain to his left
arm. The pain in the left arm is aggravated by cold weather and by

handing heavy objects. The plaintiff suffers from moderate tenderness
and has a deformity of the left arm. In addition, the plaintiff
has a
reduced range of movement of his left arm. The plaintiff has scarring
on his forehead he has travel-related anxiety.
[131]
The plaintiff’s orthopaedic surgeon noted and moderate
tenderness on movement at the head of the ulna and over the old
fracture
site. The plaintiff is diagnosed by the orthopaedic surgeon
with: a radius fracture which has united; a sub-fluxation of the
distal
radio-ulnar joint; an injury to the distal radio-ulnar joint
with an injury to the triangular fibrocartilage complex; impaired and

painful wrist movements; and residual soft tissue pain.
[132]
The plaintiff’s occupational therapist is of the view
that the plaintiff pre-collision work falls within the medium to
heavy
physical demand level. The plaintiff retains function range of
movement of both upper limbs with the exception of the reduced
supination
of the left forearm and extension of the left wrist.
Strong pain was reported in the left forearm during mobilization
after their
forearm.
[133]
According to the occupational therapist the plaintiff can no
longer handle the same amount of weight as he did before the
collision
with the left arm due to pain in his left forearm the pain
is exasperated during cold weather. The plaintiff reported reduced
the
range of movement in the left forearm and difficulty with home
management activities. He has mild physical impairment which may

improve with appropriate treatment through a complete recovery though
a complete recovery is not anticipated.
[134]
According to plaintiff’s industrial psychologist, the
plaintiff who was a bricklayer. The work entailed general building
duties
which included making cement building bricklaying and
plastering the plaintiff also we walked over and even trained and
worked
on scaffolding. According to the industrial psychologist the
plaintiff’s physical abilities, the plaintiff is now only
enable
him to perform sedentary light and lower range medium work.
Even such occupations will be performed with physical difficulty due

to the deformity and chronic pain in the plaintiff’s upper
limb. No job match indicated between the plaintiff physical capacity

and the physical demands of his occupation. The injury impacted his
overall occupational performance. According to the industrial

psychologist, the plaintiff should ideally be limited to work of a
light nature but that it is unlikely that such position would
be
available given the plaintiff’s work experience and occupation.
[135]
The plaintiff’s actuary calculated the plaintiff’s
loss of earnings on the plaintiff’s self-reported earnings.
The
total loss of income is calculated at R926 237. On this amount,
general contingencies must still be applied.
[136]
Having regard to the evidence before me, especially the
substantial effects of the collision on the plaintiff, I am of the
view
that an amount of R 700 000 would be fair compensation to
the plaintiff.
[137]
The RAF has failed to either accept or reject the plaintiff’s
serious injury assessment. As a result of what I have set out
above
over the issue of the RAF’s liability for non-pecuniary loss,
this court can therefore not presently pronounce on the
issue.
[138]
The order is attached as “X8” to this judgment.
Roelofse
AJ
Acting
Judge of the High Court
DATE OF
HEARING:

31 AUGUST 2022
DATE OF
JUDGMENT:
1APRIL 2022
APPEARANCES
FOR ALL THE PLAINTIFFS:
SJD
INCORPORATED ATTORNEYS
[1]
The
RAF was established by section 2 of the Road Collision Fund Act 56
of 1996 (‘the Act’). The object of the RAF
is set out in
section 2 of the Act as follows:’
‘
The
object of the Fund shall be the payment of compensation in
accordance with this Act for loss or damage wrongfully caused by
the
driving of motor vehicles.’
[2]
See section 24 of the Act. Section 26(6) of the Act provides:
‘
No
claim shall be enforceable by legal proceedings commenced by a
summons served on the Fund or an agent—
(a)
before the expiry of a period of 120 days from the date on
which the claim was sent or delivered by hand to the Fund or the
agent
as contemplated in subsection (1); and
(b)
before all requirements contemplated in section 19 ( f ) have
been complied with:
Provided
that if the Fund or the agent repudiates in writing liability for
the claim before the expiry of the said period, the
third party may
at any time after such repudiation serve summons on the Fund or the
agent, as the case may be.
[3]
Rules 37 and 37A.
[4]
Paragraph 2 of this Division’s
Practice
Directives dated 9 January 2020 as well as paragraphs 3.2 to 3.2.3
of this Division’s Consolidated COVID 19 Directive
dated 6
September 2021.
[5]
At
at
page 58:
[6]
Where it is said as follows:
‘
Under
the common law a person or his dependant is only accorded a single,
indivisible cause of action for recovering damages for
all his loss
or damage for the wrongful act causing his disablement or death (see
Oslo Land Co. Ltd. v. Union Government,
1938 A.D. 584
, and Schnellen
v. Rondalia Assurance Corporation of S.A. Ltd.,
1969 (1) S.A. 517
(W) at p. 520D-H). Even though, as plaintiff’s counsel
maintained, the claim at common law for non-economic loss for pain,

suffering, shock, disfigurement, and loss of amenities is anomalous
and regarded as a kind of solatium (see Government of Republic
of
S.A. v. Ngubane,
1972 (2) S.A. 601
(A.D.) at pp. 606-7, it
nevertheless still is an indivisible part of that single cause of
action of the disabled person.’
[7]
Section 17 of the RAF Act.
[8]
GNR.770 of 21 July 2008, Government Gazette No. 31249.
[9]
Regulation 3(1)(a).
[10]
Regulation 3(3)(e).
[11]
Regulations 4 to 12.
[12]
Taken from the Mashaba matter.
[13]
In M S v Road Collision Fund supra.
[14]
See: LAWSA “Evidence” at para. 213.
[15]
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty)
2011 (4) SA
113
(CC).