SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBL IC OF SOUTH AFRICA







IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NO: 3911/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 19/03/ 2025
SIGNATURE:

In the matter between:

M[...] M[...] R[...] obo APPLICANT
M[...] L[...] M[...]

And

ROAD ACCIDENT FUND RESPONDENT

JUDGEMENT

MASHAMBA AJ

INTRODUCTION

[1] This matter was on the default judgment roll on the 27th January 2025. M[...]
M[...] R[...] (“the Applicant”), acting in her representative capacity as a biological
mother of M[...] L[...] M[…], a female minor child born on the 20th July 2009 (“the
minor child”), lodged a claim against the Road Accident Fund (“Respondent”) in
terms of the provisions of the Road Accident Fund Act1 (“the Act”) on the 05th August
2022, due to an accident which occurred on the 05th March 2022. The minor child
was a pedestrian when hit by the insured motor vehicle with registration numbers
and letters H […], driven by Ntuli Mzombo.

[2] The Applicant issued summons before the above honourable court on the
02nd May 2023 and the Respondent did not ent er his notice of intention to defend.
On the 15th July 2014, the Applicant made a default application against the
Respondent for the following reliefs;

2.1 Past hospital, medical and travelling costs R 500 000.00
2.2 General damages R 1 500 000. 00
2.3 Future medical expenses Undertaking
2.4 Future loss of earnings R 3 000 000.00
TOTAL R 5 000 000.00

[3] The Applicant amended her particulars of claim in terms of rule 28 of the
Uniform Rules of Court. According to the Applicant’s amended particulars of claim,
the total amount claimed is R 15 000 000.00 calculated as follows;

3.1 Past medical, Hospital and traveling expenses R 500 000.00
3.2 Past and future loss of income R 13 000 000.00
3.3 General Damages R 1 500 000.00


1 Act 56 of 1996
[4] The Applicant proceeded to present her case in respect of all issues of
liabilities and pleaded that the issues of general damages should be postponed sine
die and the claim for past medical expenses were abandoned since the Applic ant
has failed to produce invoices. Subsequent to the submissions from the Applicant
the judgment was reserved.

LIABILITY

[5] The Applicant bears the onus to prove that the Respondent is liable under the
provisions of the Act, to compensate her for the damages suffered because of the
injuries sustained in the collision. This includes the onus to prove that the driver of
the insured motor vehicle negligently caused the collision.

[6] The application was made in terms of Rule 38(2) of the Uniform Rules of
Court that the court should accept evidence on affidavits, as it would be expedient to
do so. The affidavits deposed to by all the expert witnesses are filed of record.

[7] Havenga v Parker2 confirmed by the Supreme Court of Appeal in Madibeng
Local Muni cipality v Public Investment Corporation3, found that it is permissible to
place expert evidence before the court by way of affidavits in terms of Rule 38(2) of
the Uniform Rules of Court.

[8] The Applicant substantially complied with the requirements set out in the
Practice Directives of this Court and the Uniform Rules of Court, entitling her to
proceed on a default basis.

[9] The accident from which this claim arose occurred on the 05th March 2022 at
approximately 17h00. According to the particulars of claim, section 19F Affidavit and
the docket, the minor child was a pedestrian walking along Jerusalem next to
Mzimyana, Mosnterius, in Limpopo Province. The minor child was knocked by a
motor vehicle with registration numbers and letters H […] driven by Ntuli Mzombo
Margaret (“the insured driver”). The accident occurred in the absence of the

2 1993 (3) SA 724 (T).
3 2018 (6) SA 55 (SCA)
Applicant but the Applicant’s version of the how the accident occurred depended
from the police docket.

[10] According to the statement from the suspect Ntuli Mzombo Margaret, the
insured driver, she was traveling along Jerusalem Village when she noticed a minor
child who suddenly crossed the road. The insured driver alleged that she abruptly
applied breaks and tried to swerve her motor vehicle in an attempt to avoid the
accident but unfortunately, she knocked the minor child at her left leg.

[11] The Applicant indicated that the minor child was 13 years old when the
accident occurred, therefore, the Respon dent should be 100% liable to compensate
the minor child for her proven damages since the insured driver has failed to keep a
proper lookout and that she drove her motor vehicle at an excessive speed. This
court has considered the age of the minor child an d had no difficulties to accept that
the insured driver was negligent. The court is of the view that the Applicant must be
compensated 100% of her proven damages.

QUANTUM

[12] According to the hospital records, the minor child was diagnosed of open ti b-
fib fracture of the left leg. The GCS was noted as 15/15 and other injuries noted were
bruises on the left elbow, right shoulder and bleeding from the wound of left leg.
According to Orthopaedic report, the minor child received left leg conservative
treatment4. The Orthopaedic report further reported that the minor child loss
consciousness at the scene5. According to neurosurgeon report, the claimant
reported brief loss of consciousness and head injury -swelling on the occiput. The
clinical psychologist me ntioned that the Applicant and the minor child reported that
the minor child loss consciousness and that she did not recall what happened after
the accident. The minor child was informed by an acquaintance who has witnessed
the accident that she was lying on the middle of the road unconsciously and that she
became conscious after an estimated duration of 30 minutes6.

4 Index to motion, bundle B, page 4, par 3.3
5 Ibid.p. 21, par 2
6 Ibid.p.40, par 4.1

[13] The minor child together with the Applicant lost consciousness to the
neurosurgeon and that the minor child had head injury which were n ot mentioned in
the medical records and injuries mention in the medical records are tibia -fibula
fracture of the left leg, bruises of the shoulder and elbow. The Applicant was not
present when the accident happened but depended from the information in the police
docket7.

[14] The minor child was assessed on the 28th October 2024 by Dr Ntimbani, a
Neurosurgeon (“the neuro”). The neuro noted the injuries as left leg fracture, as
mentioned on the medical records and head injury -swelling on the occiput as
reported by the Applicant. The neuro further noted bruises on the left elbow, right
elbow, right shoulder, bleeding from wound of left leg. The neuro noted complaints
by claimant as headache, left leg pain and poor memory. The Applicant and the
minor child rep orted that the minor child can easily forget what is taught in class and
when sent on errands8. The risk of post -traumatic epilepsy is nil. The neuro classified
the injuries as mild concussive brain injury and tibia fibula fracture.

[15] The minor child w as assessed on the 28th October by Dr Ngobeni, an
Orthopaedic Surgeon (“the ortho”). The ortho noted that the minor child was
diagnosed with chronic left leg pain -malunited left tib fib9. The ortho noted that the
minor child was involved in an accident on the 05 March 2022 and she was treated
at St Rita’s Hospital from the date of the accident and discharged on the 14th March
2022. The ortho opined that there is no surgical treatment foreseen. The ortho
opined that the minor child was disabled for a period of 8 weeks post injury and has
left leg function impairment. The ortho calculated WPI=13% and qualified the minor
child for narrative test10.

[16] The minor child was assessed on the 29th October 2024 by M Molemi, an
Occupational Therapist (“the OT”). The OT noted that the minor child did not return
to school during the year 2022 after the accident but she wrote her 2022 final

7 Index t o motion, Bundle A, page, 36, par 3
8 Index to motion, Bundle B, page 23, par 6
9 Ibid,p 4, par 3.2
10 Ibid.p.8, par 9
examination which she passed. The OT opined that with regards to future occupation
performance, this will directly link to the leve l of education she manages to achieve.
The OT further opined that from a physical point of view, the minor child should be
able to perform work within the sedentary, light and occasional medium strength
demand and that should the reported pain to her left leg and headache persist, the
minor child will find it difficult to perform work within the constant medium, heavy and
very heavy strength demand. The OT indicated that the abovementioned challenges
will thus limit the choices of work the minor child can d o thus rendering her an
unequal competitor in an open labour market when compared to her uninjured
peers11. The OT opined that from a physical point of view, the minor child should be
able to continue with her schooling.

[17] The minor child was assessed on the 28th October 2024 by Dr Mphuthi, the
clinical psychologist (“the clinical”). The clinical opined that the minor child’s mild
traumatic brain injury has resulted in mild -moderate neurocognitive deficits due to
the vulnerable age at which she sustaine d the mild TBI. These negatively impacted
her ability to function both intellectually and socially. The clinical further opined that
the minor child’s clinical psychological status characterised by symptoms of post -
traumatic stress mood dysregulation assoc iated with diminished neurocognitive
capacity as well as persistent pain and changed social functioning and status.

[18] The minor child was assessed on the 28th October 2024 by Mr EK Mashaba,
an Educational Psychologist (“the Educational”). The Educatio nal opined that pre -
morbid the minor child had chances of completing Grade 12 with bachelor
endorsement and that she would likely achieve to obtain a degree level of education.
The Educational mentioned that the minor child had no pre -accident cognitive or
physical difficulties reported to have existed. The Educational further opined that
post-morbid the minor child has difficulties with verbal reasoning concentration,
mental alertness, abstract thought, and auditory processing. The above -mentioned
skills a re required for academic competencies which requires spelling, reading,
writing and numeracy. The Educational in conclusion indicated that considering the
opinions of respective specialists as well as the cognitive decline, it is evident that

11 Ibid.p. 43, par 7.4
the reported motor vehicle accident has had a negative impact on the minor child’s
well-being. The Educational mentioned that the minor child’s Grade 8 results,
indicate a decline in cognitive functioning.

[19] The Educational indicated that the minor child requires l earning support,
adaptation, and accommodation in order to complete Grade 12. The minor child is
going to find it difficult to complete a qualification with her current challenges. The
Educational further indicated that noting the minor child low average a nd inconsistent
cognitive abilities, decline in academic performance, and socio -emotional challenges
it is practical to conclude that the minor’s learning ability has deteriorated since the
accident12.

[20] The Educational opined that the minor child is likely to reach and pass her
Grade 12 with a higher certificate endorsement and continue with a certificate course
(NQF 5) at Technical Vocational Education and Training (TVET) College. This limits
her employment and work opportunities. Deference is made t o the Industrial
Psychologist . The Educational further recommended that the minor child need
remedial teaching and learning support in order to complete NQF Level 6
qualification.

[21] The minor child was assessed on the 28 October 2024 by T Tshieni, Indu strial
Psychologist (“The Industrial”). The Industrial made her opinion after the
consideration of the conclusions made by the Neurosurgeon, Educational
Psychologist, Occupational Therapist, Clinical psychologist and subsequent to that
the Industrial postu lated the loss of earnings incurred by the minor child as a result of
the accident. The Industrial considered the opinion of the Educational who opined
that pre -morbid the minor child would probably complete grade 12 with bachelor
endorsement and that she would likely achieve to obtain a degree level of education.
The Industrial made two scenarios, the first postulation is that post -morbid the minor
child will probably fail to complete Grade 12 level of education and the second one is
that post -morbid the m inor child will complete Grade 12 with a higher certificate
(NQF5) level of education.

12 Ibid.p.78.

[22] On the 19th November 2024, the Applicant appointed Munro Actuaries, to
calculate the future loss of income suffered by the minor child as a result of the
accident in question. The actuaries calculated the minor child future loss of earnings
based on the first and the second scenario. The actuaries applied the following
contingencies, 15% uninjured on future earnings and 25% injured on future earnings.
The future los s of earnings was calculated as follows;

[23] Scenario 1: Without a Grade 12 level of education

Uninjured income
(R) Injured income
(R) Loss (R)
Future loss 14 245 200.00 906 600.00
Future contingencies (2 136 780) 15% (226 650) 25%
Net 12 108 420.00 679 950.00 11 428 470
Net Total 11 428 470

[24] Scenario 2: With a Higher Certificate (NQF 5) level of education

Uninjured income
(R) Injured income
(R) Loss (R)
Future loss 14 245 200.00 6 284 600
Future contingencies (2 136 780) 15% (1 571 150) 25%
Net 12 108 420.00 4 713 450.00 7 394 970
Net Total 7 394 970

[25] The Applicant submitted that considering the conclusion of all medical experts
discussed above, the minor child has been adversely affected by the accident. The
Applicant further indicated that considering the seriousness of the head injury and
neurological challenges experienced by the minor child, the amount of R 11 428
470.00 in respect of the future loss of earnings after the contingency’s deductions of
15 % uninjured on future earnings and 25% injured on future earnings, will be
reasonable. The plaintiff relied her submissions on the heads of argument which was
handed over to th is court before the hearing of this application.

THE CASE LAWS

[26] Regarding the evaluation of credibility and reliability of expert evidence, Wallis
JA (Fourie and Koen AJJA concurring) in Pricewaterhouse Coopers Incorporated
and Others v National Potatoe Co -operative Ltd and Another13 referred to Wightman
v Widdington14 where it was remarked thus:

“Legal principles and tools to assess credibility and reliability
“Before any weight can be given to an expert’s opinion, the facts upon which
the opinion is based must be found to exist. As long as there is some
admissible evidence on which the expert’s testimony is based it cannot be
ignored; but it follows that the more an expert relies on facts not in evidence,
the weight given to his opinion will dim inish. An opinion based on facts not in
evidence has no value for the Court. With respect to its probative value, the
testimony of an expert is considered in the same manner as the testimony of
an ordinary witness. The Court is not boun d by the expert witness’s opinion.
An expert witness’s objectivity and the credibility of his opinions may be called
into question, namely, where he or she:

• accepts to perform his or her mandate in a restricted manner;

• presents a product inf luenced as to form or content by the exigencies of
litigation;

• shows a lack of independence or a bias;

• has an interest in the outcome of the litigation, either because of a
relationship with the party that retained his or her services or o therwise;


13 [2015] 2 AII SA 403 ( SCA), para 48.
14 (Success on de ) 2013 QCCA 1187 C anLII, par 326 -330
• advocates the position of the party that retained his or her services; or

• selectively examines only the evidence that supports his or her conclusions
or accepts to examine only the evidence provided by the party that retained
his or her services.”

[27] In Ruto Flour Mills v Adelson (T)15 Boshoff J stated that a party seeki ng to
introduce expert evidence must satisfy the court that the witness not only has
specialist knowledge, training, skill or experience but that he/she can, on account of
these attributes or qualities, assist the court in deciding the issue, that he/she i s an
expert for the purpose for which he/she has been called upon to express an
opinion,16 the witness does not or will not express an opinion on hypothetical facts
that have no bearing on the case or which cannot be reconciled with all the other
evidence i n the case.17

[28] When deciding the minor child’s future loss of earnings, this court has
considered a decision in Southern Insurance Association Ltd v Bailey NO18 Nicholas
JA stated as follows:

“Where the method of actuarial computation is adopted, it does not mean that
the trial Judge is "tied down by inexorable actuarial calculations". He has "a
large discretion to award what he considers right" … One of the elements in
exercising that discretion is the making of a discount for "contingen cies" or the
"vicissitudes of life". These include such matters as the possibility that the
Plaintiff may in the result have less than a "normal" expectation of life; and
that he may experience periods of unemployment by reason of incapacity due
to illness or accident, or to labour unrest or general economic conditions. The
amount of any discount may vary, depending upon the circumstances of the
case.”

COURT’S DISCUSSIONS AND FINDINGS

15 1958(4) SA 325 At 237C -D.
16 Goliath v Fedgen Insurance Company Ltd 1994 (2) PH F 31 E at 83.
17 S v Mkohle 1990 (1) SACR 95 (A) at 100d.
18 1984 (1) SA 98 , par 116 -117

[29] In consideration of an actuarial calculations in paragraphs 23 an d 24 supra ,
the court accepted that post accident the minor child has the potential to obtain a
NQF 5, so scenario 2 is most probable. The court noted that the minor child’s head
injury and loss of consciousness was not mentioned in the medical records. Th e
court finds that it is probable that the head injury was not recorded in the hospital
records and that the sequelae of the head injury are confirmed by the minor child’s
declining school performance. The insured driver who took the minor child to the
nearby clinic immediately after accident did not mention in her statement that the
minor child lost consciousness for the duration of approximately 30 minutes as
alleged by the Applicant and the minor child. The court after thorough consideration
of the serio usness of the minor child’s injuries, finds that it is probable that the minor
child had brief loss of consciousness. The court noted tibia fibula fracture of the left
leg. The court noted that the minor child’s school performance declined in 2023 in
Grade 8 and continued to decline in 2024 first term when doing Grade 9. The court
further noted the minor child’s intermittent pain in the left leg when she walks for long
distance as reported by the OT. According to the various medical experts discussed
above, the minor child has a mild traumatic brain injury which has had an adverse
impact on her school performance.

[30] This court is of the view that the motor vehicle accident in question had an
adverse impact on the minor child’s school performance at scho ol. The other
discrepancies such as the period of the minor child’s loss of consciousness and
occipital head injury which are not documented in the medical records can be
addressed by applying of high contingencies deduction.

[31] This court has discreti on when it comes to the reasonable contingency
deduction to be applied when determining reasonable compensation for the past and
future loss of earnings. The court took note of the fact that actuarial calculations are
an estimated loss postulated according to the earnings potential of an individual, but
the actual loss of earnings will never be certain. However, the court has the
discretion, after analysing all available evidence, to determine a reasonable
compensation to be awarded to the claimant. The mor e the court doubts the
earnings potential of a claimant, the higher the contingency deductions may be
applied.
[32] The court noted that contingencies are subjective; however, Robert Koch
(Quantum yearbook 2020) has suggested the following well -followed approach to
determine what the ‘normal’ contingency would be:

“…what is described as a “sliding scale” is used, under which it is allocated a
“1/2% for year to retirement age, i.e 25% for a child, 20% for a youth and 10%
in middle age”.

[33] The court is of the view that reasonable contingencies to be applied in this
case are 30 % for uninjured future income and 25% for injured future income. The
minor child’s future loss of earnings after the deductions of the above contingencies
is made out as follows;

[34] Scenario 2: With a Higher Certificate (NQF 5) level of education

Uninjured income
(R) Injured income
(R) Loss (R)
Future loss 14 245 200 6 284 600
Future
contingencies (4 273 560) 30% (1 571 150) 25%
Net 9 971 640 4 713 450 5 258 190
Net Total
5 258 190

[35] In the circumstances, this court finds that the appropriate amount to be
awarded to the Applicant in respect of the future loss of earnings capacity should be
in the sum of R 5 258 190.00 (Five million, Two Hundred and Fifty -Eight Thousand,
One Hundred and Ninety Rand).

COSTS

[36] The Court shall not deviate from the general rule that the cost shall follow the
successful party. The Applicant succeeded in her claim against the Respond ent for
future loss of earnings and future medical expenses which will be covered by an
undertaking in terms of section 17(4)(a) of the Act, therefore, the Respondent is
liable for the costs in this matter.

ORDER

[37] In the circumstances, the followi ng is the Order of this court that:

1. The Respondent shall pay the Applicant the sum of R 5 258 190 (Five
million, Two Hundred and Fifty -Eight Thousand, One Hundred and Ninety
Rand).

2. The Respondent shall furnish the Applicant with an underta king in terms of
Section 17 (4) (a) of Act 56 of 1996 within 30 days from the date of delivery of
the Court Order.

3. The amount in paragraph 1 above shall be paid into the Applicant’s
attorneys trust account.

4. The Respondent shall be liable to pay interest on the aforesaid amounts’
tempore morae at the rate of 11,75% per annum from 180 days after the date
of this order to date of the payment.

5. The Respondent shall pay the plaintiff ‘s taxed or agreed part y and
party costs until the date of this order including costs of a counsel scale B.

6. The costs consequently in the preparation of and obtaining the medico
legal and actuary reports that were served on or provided to the Respondent.

7. The reasonable taxable preparation, qualifying and reservation fees, if
any of the Applicant’s exper ts for trial of whom notice was given to the
Respondent.

8. The reasonable taxable costs of necessary consultations with the said
experts and the reasonable taxable traveling, subsistence and
accommodation costs of the Applicant for attending the medico l egal
examination, subject to the discretion of the taxing master.

9. The reasonable taxable costs of traveling, subsistence,
accommodation costs of the Applicant for attending court.

10. The Respondent shall be liable to pay interest on the amount of the
Applicant’s costs of suit, as taxed or agreed, at 7 % per annum from 14
(fourteen days) of the allocatur of the taxing master or the date of the
agreement, whichever applies, to date of payment.

11. The amount in paragraph 1 above shall be prote cted by opening of a
trust on behalf of the minor child.

12. The issues of general damages are postponed sine die.


________________________________________
E MASHAMBA
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION


APPEARANCES

FOR THE PLAINTIFF: ADV K MAPENGO
INSTRUCTED BY: SS MALULEKA INCORPORATED
Email: info@ssmalulekainc.co.za/ portia@ssmalulekainc.co.za

FOR THE DEFENDANT: NO APPEARANCE

DATE OF HEARING: 27th Januay 2025
DATE OF JUDGEMENT: 19th March 2025