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HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 43613/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
DATE: 21 JANUARY 2025
SIGNATURE
In the matter between:
NHLANHLA JOSEPH MASEMOLA Plaintiff
and
ROAD ACCIDENT FUND Defendant
Summary: Claim for non -pecuniary (general) damages against the R oad Accident
Fund (R AF) – determined that the making of an offer to pay such
damages amounting to an acceptance by the RAF that the plaintiff’s
injuries are serious as contemplated in the proviso to section 17(1) of
the RAF Act – plaintiff thereafter entitled to proceed to claim general
damages, even if offer not accepted.
ORDER
1. The d efendant is ordered to pay to the p laintiff the amount of R
4 477 433.00 ( Four million four hundred and seventy seven thousand
four hundred and thirty three Rand) in damages following injuries the
plaintiff sustained in a motor vehicle accident which occurred on 13
February 2021 made up as follows (the capital amount) :
General damages R1 100 000.00
Loss of earnings R 3 377 433.00
Total: R4 477 433.00
2. The capital amount is payable by defendant to the plaintiff on or before
180 days from date hereof by depositing same into p laintiff’s attorneys
of record's trust account, the details of which are as follows:
Account Holder : ZENZELE MDLULI ATTORNEYS
Bank : FIRST NATIONAL BANK
Account number : 6[...]
Branch Code : 2[...]
Branch Name : HATFIELD
Reference : R[...]
3. Should the defendant fail to make payment of the capital amount on/or
before 180 days from date hereof, defendant will be liable for interest
on the amount due to plaintiff at the prescribed rate per annum ,
calculated from 15 days from date of this order to date of final payment.
4. The defendant shall provide the p laintiff with an u ndertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act 56 of 1996 , to
compensate the p laintiff for 100% the costs relating to future
accommodation in a hospital or nursing home or treatment of or the
rendering of servic e or supplying of goods to the p laintiff after the costs
have been incurred and on proof thereof , as a result of the injuries
sustained by the p laintiff in the motor vehicle accident which had
occurred on 13 February 2021.
5. The defendant is ordered to pay the p laintiff’s taxed or agreed party
and party costs on High Court Scale B , within 14 days after taxation or
agreement (whereafter it shall accrue interest as calculated in
paragraph 3 above) by depositing same into plaintiff’s attorneys of
record’s trust account.
6. It is noted that t here is a valid contingency fee agreement in existence.
__________________________________ ______________________________
J U D G M E N T
__________________________________ ______________________________
The matter was heard in open court and the judgment was prepared and authored by
the judge whose name is reflected herein and was handed down electronically by
circulation to the parties’ legal representatives by email and by uploading it to the
electronic file of this matter on Caselines. The date of handing -down is deemed to
be 21 January 2025.
DAVIS , J
Introduction
[1] The central question to be decided in this matter is whether an offer of
settlement made by the Road Accident Fund (the RAF) during the course of litigation
can amount to an acceptance by the RAF of the seriousness of a plaintiff’s injuries,
entitling such a plaintiff to claim non -pecuniary (general) damages.
Factual background
[2] The plaintiff was the driver of a motor vehicle which was involved in an
accident on 14 February 2021. He was 30 years old and employed as a petrol
attendant at the time.
[3] The plaintiff’s prescribed affidavit1 in which he set out the particulars of the
accident, corresponds exactly with the particulars set out in the relevant accident
report. It reads as follows: “ I was driving to Baviaansp oort from Moloto Rd. W hile
driving, another car came from the opposite direction, overtaking another car. It
went into my lane of travel and I tried to avoid colliding with it head -on by applying
1 Section 19(f)(i) of the Road Accident Fund Act 56 of 1996 (the RAF Act) makes it a prerequisite for a
claim against the RAF that the plaintiff furnish an affidavit “ in which particulars of the accident are fully
set out ”.
brakes and moving to my left side. I lost control of my car and went off the road,
colliding with something ”.
[4] The plaintiff sustained injuries in the accident and was taken from the scene
by ambulance to the Mamelodi hospital, from where he was later transferred to the
Steve Biko Academic hospital.
[5] The plaintiff suffered compression fractures of his T12 -L1 vertebrae and as a
consequence, experienced temporary paraplegia. After decompression and fusion
of the vertebrae and after recove ry and rehabilitation, he is now mobile, but
ambulates with a walking stick.
Litigation history
[6] The plaintiff has delivered reports of an orthopeadic surgeon, radiologists, a
plastic surgeon, a neurosurgeon, a specialist urologist, a clinical psychologist and an
actuary. The RAF has delivered no reports.
[7] The minutes of a pre -trial conference held on 11 October 2023 (at which the
RAF had been represented by the State Attorney), indicated that the merits of the
matter was “still under investigation” by the RAF, despite no assessor having been
appointed.
[8] The reason furnished by the RAF why no settlement could be reached was
that the State Attorney was awaiting a mandate.
[9] Regarding the issue of expert evidence, the RAF’s stance was recorded as
follows: “ The defendant admits the expertise of the plaintiff’s experts and is willing to
use their reports to assess t he matter. T he opinions and findings of the said experts
are however not admitted and the defendant will conduct its own investigations and
reserve s its rights to appoint its own experts ”. Despite this, no such experts have
been appointed by the RAF.
[10] The recordal regarding settlement attempts failed to mention that the RAF had
already on 27 May 2022 made an offer , in which an amount of general damages and
the furnishing of an undertaking in terms of section 17(4)(a) of the RAF Act , had
been tendered.
[11] On 8 November 2024, being the day of trial, the matter had been allocated to
me as one of seven matters to be attended to from that day’s trial roll. There was no
appearance on behalf of the RAF, but a second settlement offer had been made on
that day.
[12] This second offer, on the same standard f orm used by the RAF as in the first
offer, in addition to an undertaking and an amount in respect of general damages,
also contained an offer in respect of loss of earning s.
[13] None of the settlement offers had been accepted by the plaintiff and in the
documents uploaded on the electronic Caselines file, the amounts tendered under
the variou s heads of damages had been obscu red.
[14] The matter proceeded on both the issue s of merits and quantum, albeit by
default of appearance on behalf of the RAF. The plaintiff’s application to proceed by
way of affidavit evidence as contemplated in Rule 38(2), was granted.
The merits
[15] In Sedumemanyatela2 this court held that even when an approaching vehicle
is on its incorre ct side of the road, a driver on his co rrect side may assume that the
former will return timeously to its correct side. This assumption does not, however,
entitle a driver on the correct side of the road to remain passive in the face of the
threat of oncoming danger. He remains under a duty of care to take reasonable
steps to avoid an accident.
[16] It appears that the plaintiff had exercise d the requisite care and had attempted
to avoid the a ccident. Despite this, his car had veered off the road and damages
and injuries followed. There is no evidence that this occurred as a result of any
negligence on the part of the plaintiff.
2 Sedumemanyatela v RAF (6568/2012) [ 2014] ZAGPPHC 445 (30 May 2014) per Molefe J (as she
then was) at par 21
[17] In the absence of countervailing evidence and in the abscence of any reason
not to believe the plaintiff, the plaintiff is entitled to a finding in his favour on the
merits3. This includes the abscence of any apportionment , which, although plead ed
as an alternative, was no t supported by any evidence4.
[18] Accordingly the RAF is found to be 100% liable for whatever damages the
plaintiff may prove.
Loss of earnings
[19] After having examined the reports of all the other experts, except the actuary,
the industrial psychologist concluded that the impact of the injuries on the plaintiff’s
functionality was such that he would be likely to be unemployed in the future.
[20] Even acknowledging the plaintiff’s relative youth, the industrial psychologist
was further of the opinion that the pla intiff “… has been rendered unemployable in
the open labour marked. The South African unemployment rate (in respect of which
a table had been provided), the competitive South African labour market, the
plaintiff’s level of education (grade 12), limited employment history and his accident
related sequelae considered ” … rendered the plaintiff effectively unemployable.
When initially reading the papers, I considered whether , taking into account the fact
that the plaintiff ha d initially returned to work post -accident, one should take his pre -
and post -accident projected income as the same but employ a higher post -accident
contingency, such as 60%.
[21] However, the plaintiff has subsequently lost his job on 1 August 2023 and has
remained unemp loyed since then. It appears that the initial re-employment of him as
a petrol attended who wal ks with a walking stick had been a case of sympathetic and
accommodated employment. Having regard to the plaintiff’s circumstances, he was
reliant on his physical aptitude, which he has now lost, as his only means to secure
employment. These circumstances accord with the occupational therapist’s opinion
that “… without a sympathetic employer, he will not successfully be employed ”.
3 See also Baliso v First Rand Bank Ltd 2017 (1) SA 292 (CC) at par 12.
4 Roma v RAF (2111/2020) [2023] ZAECMKHC 77 (27 June 2023).
[22] The facts therefore support the industrial psychologist ’s postulation . The
recalculation performed by the actuary, taking into account the re -employment
income as part of the past loss, but envisaging future total unemployment, resulted in
a claim of R3 377 433.00. On the facts of this case, this appears to be a fair and
reasonable assessment of the pla intiff’s damages in this regard .
The jurisdictional hurdle to claim n on-pecuniary (general ) damages
[23] The requirement s for a plaintiff to qualify to claim general damages are not
only statutorily prescribed but its application has by now become trite. It is this: in
terms of the proviso to section 17(1), the RAF shall only be liable to compensate a
plaintiff for general damages if the seriousness of such a plaintiff’s injuries has been
assessed as contemplated in section 17(1A).
[24] Such assessment, for which the qualifying threshold is 30% Whole Person
Impairment ( WPI), shall be determined in a prescribed m anner and shall be carried
out by a medical practitioner5 registered as such under the Health Professions Act6.
[25] The “method” whereby an assessment is to be undertaken, has been
prescribed in Regulation 3 of the Road Accident Fund Regulations promulgated on
21 July 20097 (the Regulations) .
5 Section 17(1A) (a) and (b).
6 56 of 1974.
7 Regulation 3: Assessment of serious injury in terms of section 17(1A)
(1) (a) A third party who wishes to claim compensation for non -pecuniary loss shall submit
himself or herself to an assessment by a medical practitioner in accordance with these
Regulations.
(b) The medial practitioner shall assess whether the third party’s injury is serious in
accordance with the following method:
(i) The Minister may publish in the Gazette, after consultation with the Minister of Health,
a list of injuries which are for purposes of section 17 of the Act not to be regarded as
serious injuries and no injury shall be assessed as resinous if that injury meets the
description of an injury which appears on the list.
(ii) If the injury resulted in 30 per cent or more Impairment of the Whole Person as
provided in the AMA Guides, the injury shall be assessed as serious.
(iii) An injury which does not result in 30 per cent or more Impairment of the Whole
Person may only be assessed as serious if that injury:
(aa) resulted in a serious long -term impairment or loss of a body function;
(bb) constitutes permanent serious disfigurement;
(cc) resulted in severe long -term mental or severe long -term behavioural
disturbance or disorder; or
(dd) resulted in loss of a foetus.
[26] A plaintiff who has undergone such a prescribed assessment, shall obtain a
serious injury assessment report from the medical practitioner who has performed
the assessment8.
[27] Should the RAF not be satisfied that the injury had been correctly assessed, it
may either reject the plaintiff’s serious injury assessment9 or direct the plaintiff to
submit him or herself to assessment by a medical practitioner designated by the
RAF10. Should there still be disputes thereafter as to the seriousness of the injuries,
the issue shall be dealt with by an appeal tribunal appointed by the HPCSA after due
exchange of notices as provided for in the Regulations11.
[28] It is also trite that the above procedures are peremptory and that a court has
no power to determine the seriousness of the injuries12.
[29] The position could not have been put clearer in RAF v Faria13 (at par 35): “ As
Duma makes clear, … the position is now that ‘unless the Fund is so satisfied [i.e
that the injuries are serious], the plaintiff simply has no claim for general damages; [it
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 ”.
Has the jurisdictional fact been established ?
[30] Although the Regulations prescribe that a rejection of an assessment by the
RAF must be in writing14, there is no similar requirement as to the a cceptance of
such an assessment. Despite this, one often finds that the RAF issues “letters of
acceptance” in respect of a plaintiff’s entitlement to claim general damages. In fact,
during the course of the week in which this matter came before court, the court
8 Reg 3(3)(a).
9 Reg 3(3)(d)(i).
10 Reg 3(3)(d)(ii).
11 Regulations 3(4) – 3(13).
12 Duma v RAF 2013 (6) SA 9 (SCA), RAF v Lebeko 2012 JDR 2176 (SCA) [2012] ZASCA 159 and K
obo M and Another v RAF 2023 (3) SA 125 (GP).
13 2014 (6) SA 19 (SCA).
14 Reg 3.
encountered a number of such letters. In the present instance, the RAF has not
issued such a letter.
[31] The question then is, can the RAF’s settlement offers, even though they have
not been accepted, be deemed to constitute an acceptance by the RAF of the
plaintiff’s right to claim general damages?
[32] In Mertz v RAF15 (Mertz ) a full court of this Division, amongst other disputes,
had to determine the issue of “ whether the court a quo lacked the jurisdiction to
make any award in respect of general damages because the jurisdictional facts
necessary to qualify the appellant’s injuries as a ‘serious injury’ had not been
established ” (quoting from the judgment).
[33] Potterill J , speaking for the full court, held as follows (at par 29): “ Regulation 3
does not expressly require the RAF to in writing accept the injuries as serious,
whereas it expressly provide that reasons for rejection must be in writing. The RAF
is the decision -maker pertaining to accepting or rejecting the injury as serious.
There is no doubt that in general where the RAF has offered an amount as
compensation for general damages, without expressly informing the third party that
the injury was serious, an implied acceptance constitutes that the injury was
serious ”.
[34] As authority for this statement, reliance was placed on Chetty v RAF16
(Chetty ), which was similarly a decision of a full court . I shall shortly return to the
decision in Chetty.
[35] Apart from the reliance on Chetty , the issue of jurisdiction was dealt with by
the court on two bases. The first was that certain admissions had been made by the
RAF at a series of pre -trial conferences in respect of the opinions of the plaintiff’s
experts contained in their reports and it was held that these amounted to sufficient
satisfaction of the jurisdictional hurdle. The issue of admissions made at pre -trial
15 (A96/2021) [2022] ZAGPPHC 961 (2 December 2022).
16 (A91/2021) [2021] ZAGPPHC 848 (7 December 2021).
conferences does not feature in the present matter as it did in the recent case of Adv
Sayed NO v RAF17 and I need not say anything more about that aspect here.
[36] The second basis on which the court relied in finding that the jurisdictional
hurdle had been crossed in Mertz , was described in the judgment as follows: “ [30] …
more importantly, Ms Le Roux [who appeared on behalf of the RAF] indicated that
she has no objection to the amounts claimed and that she has recommended that
these figures be paid to the appellant, but could not sign -off, but had to escalate the
amount upwards for a senior signature. It was placed on record that all the issues
were canvassed in the appellant’s heads of argument had to be adjudicated on by
the court a quo. The general damages was part and parcel of those issues, which
was a concession that the injuries were accepted as being serious. [31] The
defence of lack of jurisdiction of the court is dismissed; the court a quo could
adjudicate the award of general damages ”. This second basis also does not feature
in the present matter, due to the default of appearance of anyone on behalf of the
RAF.
[37] This brings us back to the reliance on Chetty. In that matter, the issue of
offers made by the RAF featured, similarly as in the present matter. The judgment of
the full court, penned by Phahlamohlaka AJ, explained how the issue had arisen :
“[17] … the court can only deal with the issue of general damages once the
provisions of Regulation 3 have been complied with . Put differently, the court may
not assum e the administrative duties of the Fund … [19] Faced with the uncertainty
in respect of whether the fund ha d accepted the plaintiff’s serious injury assessment
form or not, I requested the plaintiff’s counsel to file supplementary heads of
argument to address us on this aspect … It appears from the supplementary heads
that the Fund had offered an amount as compensation for general damages and
therefore we are satisfied that the Fund has accepted the plaintiff’s injuries as
serious. [20] The court a quo was therefore correct in dealing with the issue of
general damages … ” (my emphasis). The issue was not further debated or
considered.
17 (36492/2021) [2024] ZAGPPHC 1325 (18 December 2024)
[38] The “uncertainty” raised by the court on appeal, had not been raised by the
RAF nor had it produced any evidence to the effect that its offer did not amount to an
acceptance of the seriousness of the plaintiff’s injuries. The issues for determination
on appeal in Chetty were only “… whether the court a quo had erred by postponing
the determination of loss of earning s for evidence viva voce to be adduced. Further,
whether the award of R150 000.00 in respect of general damages was appropriate ”
(quoting f rom the judgment). The result was that the matter was referred back to the
court a quo for trial on loss of earning s before another ju dge. The award for general
damages was increased to R450 000.00.
[39] The upshot of the above is that in Chetty , the mere making of an offer in
respect of general damages was accepted as a sufficient concession of the
jurisdictional requirement, but without that aspect having been specifically
considered as an issue on appeal. In Mertz , the general comment quoted in par 32
above, was made with reliance on Chetty , while the final decision regarding the
crossing of the jurisdictional hurdle had been fortified by other conduct on behalf of
the RAF, both in the court a quo and on appeal. The issue which arose in the
present matter (and which frequently comes before the court in th is Division) has
therefore not definitively been resolved. Had it been, this court would have been
bound by the full court decisions and that would have been the end of the matter.
[40] The pertinent question therefore still remains as to whether the making of an
offer, which includes an offer to pay a certain amount in respect of general damages,
on its own provides proof that the jurisdictional requirement imposed by the RAF Act
and its R egulations had been satisfied.
[41] Counsel on behalf of plaintiff s often argue that the obvious answer must be an
emphatic “yes”. They argue that the RAF could not have made such an offer, had it
not been satisfied that the plaintiff to whom the offer is made, is entitled to claim
general damages.
[42] In view of the apparent unassailable logic of the above contention, is there
room for the opposite contention (only occasionally) expressed, that an offer might
simply be made to bring an end to the litigation, without necessarily thereby
amounting to any concession? In other words, was the offer not simply an attempt to
reach a compromise, which “ … may be more … advantageous than litigating the
original cause of action … ” as it has been described by the Constitutional Court18 in
the context of settlement agreements?
[43] In my view, this opposite contention might have held some water, had the
offers been made in a globular or composite manner , without any reference to
general damages . If the RAF had, for example offered an amount of R3 million in
respect of all the monetary claims19 of a plaintiff as a compromise of the totality of
the plaintiff’s action.
[44] As already pointed out, in terms of the proviso to section 17(1), the RAF has
no obligation to compensate a plaintiff for general damages unless it is satisfied as to
the seriousness of the injuries. The converse should then also hold true: the RAF
has no enabling statutory authority to pay compensation in instances where it is not
satisfied as to the seriousness of a plaintiff’s injuries. To put it differently, where a
plaintiff has no t established a right to claim general damages, the RAF cannot pay
such damages.
[45] It must follow from the above interpretation that, should a pla intiff not be
entitled to general damages , no such damages may e ven be offered. To do so,
would amount to ultra vires conduct on the part of the RAF .
[46] In similar fashion as this court has found that the RAF should be deemed to
have acquainted itself of the facts or legal bases when making concessions at pre -
trial conferences20, so it should be deemed to have satisfied itself that the
jurisdictional requirements of its enabling statute have been fulfilled before offering to
pay general damages.
[47] One should also have regard to the manner in which these offers are made.
The standard form at in which the RAF makes its offers is in the form of a letter,
18 Mafisa v RAF 2024 (4) SA 426 (CC) par [34].
19 In excluding the statutory undertaking contemplated in section 17(4) in respect of future claims for
medical and ancillary expenses.
20 Adv Sayed NO v RAF at footnote 10 above.
containing a table, providing for amounts to be inserted therein in respect of various
items. These are labelled “hospital/medical expenses”, “loss of support”, “loss of
earning s”, “funeral costs” and “General Damages (Pain & Suffering, Permanent
disability, etc.)”. The table also allows for the insertion of particulars regarding
apportionment, interim payments and Workmens Compensation Commissioner
payments. This same form has been used in the present instance. No
apportionment had been inserted in the f orm and the only amounts inserted, were in
respect of loss of earnings and general damages.
[48] Notably, the standard form also makes provision for a possible deduction in
respect of “risks”. It is not indicated what this may refer to, but the only inference is
that it refers to the risks of litigation and might relate to the RAF’s assessment of the
prospects of success. Be that as it may, in the present instance, the percentage risk
was indicated as 0%/R0.00 .
[49] Where, as in the present case , a specific amount had been offered in respect
of the plaintiff’s claim for general damages (apart from a separate amount offered in
respect of loss of earnings), that amount was not part of a globular settlement offer,
taking the risks of litigation into account. It could therefore only have been validly
offered once the RAF had satisfied itself that, as a result of the seriousness of the
plaintiff’s injuries, the RAF was statutorily authorised to pay an amount in respect of
general damages. In other words, the RAF must be deemed to have accepted that
the jurisdictional requirements in respect of this separate claim as part of the cause
of action had been met when it offered an amount of general damages to be paid. I
interpose to point out that t he term “offer” appear s to be the preferred parlance in
RAF litigation and is also expressly used in the RAF letters .
The “without prejudice” aspect
[50] The RAF’s offers in the fashion as aforesaid, are all introduced by the
sentence: “ The RAF hereby offers, without prejudice or admission of li ability, in full
and final sett lement of your claim, the amounts set out hereunder … ”. The letters
containing the offers also contain a similar “without prejudice” heading.
[51] Does the without prejudice nature of the offer detract from the conclusions
reached above? In my view, not.
[52] Firstly, the incantation that a missive is sent “without prejudice”, contains “ …
no particular magic … ”21. If an offer forms part of genuine negotiations for the
compromise of a dispute, it will be privileged, even if the words have not been
used22. By parity of reasoning, t he opposite must, however, be equally true.
[53] The reason for this, as explained in Ward v Steenberg23 (Ward ), quoting
Wigmore24, is as follows: “ The true reason for excluding an offer of compromise is
that it does not ordinarily proceed from and i mply a specific belief that the
adversary’s claim is well -founded, but rather a belief that the furthe r prosecution of
that claim, whe ther well founded or not, would cause such annoyance as is
preferably avoided by the payment of the sum offered ”.
[54] The position of t he RAF is, however, different f rom that of an ordin ary litiga nt
to which the above proposition would apply . It is statutorily obliged to recompence
plaintiffs who had suffered damages in motor vehicle collisions, but it is also not
authorised to pay compensation where plaintiffs do not qualif y to claim damages.
There is therefore no “nuisance” to be avoided – a plaintiff qualifies or not , but the
extent of the damages, i.e. the quantum of what his qualifying claim may be worth, is
what may be proven, or, as is most often the case, be settled by negotiation.
[55] In my view, the approach adopted in Ward is the correct one, namely that
although “ an off er to pay money in settlement or compromise ” is generally
inadmissa ble, in some “ … cases the conduc t may be relevant and in such cases, the
eviden ce should be regarded as admissa ble and its value should be considered
…”25.
21 Hoffman & Zeffent, the South African Law of Evidence, 4th Ed at 197.
22 Millward v Glaser 1950 (3) SA 547 (W) at 554.
23 1951 (1) SA 395 (TPD) at 400 F -G.
24 Wigmore , Evidence, 3rd Ed, Vol 4 par 1061
25 At 401 A – B. See also Patlansky v Patlansky (2) 1917 WLD 10 and the treatment of an
exceptional circumstances” in Naidoo v Marine and Trade Insurance Co Ltd 1978 (3) SA 666 (A) per
Trollip JA at 681B – C. the offering of payment which can only be made once the requirements of an
act had been satisfied, is an “exceptional circumstances” in this context.
[56] The above statement was made in circumstances where the respondent,
being the alleged negligent driver of a motor vehicle , had handed the appellant a
note which read “ please send account to me ”. This evidence was admitted as part of
the evidence to prove liability. The extent of the damages was however found not to
have been proven and the order of absolution from the instance granted by the court
a quo was upheld on appeal .
[57] In similar fashion as in Ward , the evidence that the RAF had tendered
payment of an amount of general damages, thereby admitting that the plaintiff
qualified to claim such damages, should be admissa ble (and not be privileged). The
extent of the offer however, should remain privileged as part of the “genuine offer to
compromise” the extent of that head of damages. In the present instance, that has
been done by obscuring the amounts inserted in the table containing the RAF’s
offers.
The quantum of general damages
[58] The plaintiff has sustained some scarring on his left scapula and surgical
scarring on his back. It cannot, however, as the plaintiff’s counsel argued, be
described as “severe”. The plaintiff also suffers from PTSD and, according to the
experts , a major dep ressive disorder and a general anxiety disorder. His T12
compression fracture resulted in temporary paraplegia only but left him with left lower
limb nerve palsy and reduced power, making it difficult to walk. He uses a walking
stick. He also suffers from a neurogenic bladder with associated erectile
dysfunction.
[59] It is trite that, in assessing general damages, a broad discretion is exercised
by a court , based on what it considers fair and adequate in the circumstances. The
nature, severity and permanence of the injuries sustained and the consequences
thereof, be it pain and suffering, disfigurement or lack of amenities of life, are all
considered. Courts also obtain guidance from awards made in comparable cases26.
26 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (SCA) at 536A – B.
[60] On behalf of the plaintiff, the court was referred to the following cases and the
current values of the awards made therein: Mashigo v RAF27 (Mashigo ) where R600
00.00 had been awarded in a case of severe disfiguring scarring; CDL v Minister of
Safety and Security28 where the current value of an award for a plaintiff suffering
from PTSD and severe depression was R92 000.00; Majiet v Sanlam Ltd29 where the
current value of the award in respect of a major depressive order was R155 000.00;
De Barros v RAF30 where the current value of an a ward in respect of incapacity du e
to lower back pain, coupled with PTSD and associated symptoms was R279 000.00;
Maholela v RAF31 where the current value of an award as a result of a plaintiff
suffering from paraplegia was R1.6 m; Robyn v RAF32 where the current value of an
award, also in respect of paraplegia was R1.6m and Webb v RAF33 where the
plaintiff’s parap legia left him wheelchair -bound, with a neurogenic bladder, and was,
in current terms, awarded R2.3m.
[61] It needs to be stressed that the plaintiff no longer suffers from paraplegia and
is not bed -ridden or wheelchair -bound. His case is to be distinguished from those
where plaintiffs suffered such higher degrees of immobility with accompanying bed -
sores and other impairments .
[62] Furthermore, his scarring was for less than that encountered in Mashigo and
although debilitating, his psychological conditions would, a ccording to the experts ,
benefit from proper therapy and treatment.
[63] Assessing all of the above and, having revisited the reports of the experts filed
by the plaintiff, I am of the view that an amount of R1.1 million would be a fair and
reasonable amount of general damages.
Order
[64] In the premises, an order is made in the following terms :
27 (2120/2014) [2018] ZAGPPHC 539 (13 June 2018).
28 2016 (7k6) QoD 286 (GNP).
29 1997 (4k3) QoD (1) (K).
30 2001 (5) C & B C4 - 13
31 2006 QoD A3 – 3 (O).
32 2013 (6A3) QoD 32 (GNP).
33 2016 (7A3) QoD 24 (GNP).
1. The defendant is ordered to pay to the plaintiff the amount of
R4 477 433.00 (four million four hundred and seventy seven thousand
four hundred and thirty three Rand) as damages following injuries the
plaintiff sustained in a motor vehicle accident which occurred on 13
February 2021 made up as follows (the capital amount) :
General damages R 1 100 000.00
Loss of earnings R 3 377 433.00
Total: R 4 477 433.00
2. The capital amount is payable by defendant to plaintiff on or before 180
days from date hereof by depositing same into plaintiff’s attorneys of
record's trust account, the details of which are as follows:
Account Holder : ZENZELE MDLULI ATTORNEYS
Bank : FIRST NATIONAL BANK
Account number : 6[...]
Branch Code : 2[...]
Branch Name : HATFIELD
Reference : R[...]
3. Should the defendant fail to make payment of the capital amount on/or
before 180 days from date hereof, defendant will be liable for interest
on the amount due to plaintiff at the prescribed rate per annum ,
calculated from 15 days from date of this order to date of final payment.
4. The defendant shall provide the plaintiff with an u ndertaking in terms of
Section 17(4)(a) of Act 56 of 1996, to compensate the plaintiff for 100%
the costs relating to future accommodation in a hospital or nursing
home or treatment of or the rendering of service or supplying of goods
to the plaintiff after the costs have bee n incurred and on proof thereof,
as a result of the injuries sustained by the plaintiff in the motor vehicle
accident which had occurred on 13 February 2021.
5. The defendant is ordered to pay the plaintiff’s taxed or agreed party
and party costs on High Court Scale B , within 14 days after taxation or
agreement (whereafter it shall accrue interest as calculated in
paragraph 3 above) by depositing same into plaintiff’s attorneys of
record’s trust account.
6. It is noted that there is a valid contingency fee agreement.
N DAVIS
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 8 November 2024
Judgment delivered : 21 January 2025
APPEARANCES:
For the Plaintiff : Adv Z Mahomed
Attorney for the Plaintiff : Zenzele Mdluli Attorneys , Pretoria
For the Defendant : no appearance