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2025
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[2025] ZAGPJHC 294
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Botsane obo Mandlathi v Road Accident Fund (107493/2023) [2025] ZAGPJHC 294 (25 February 2025)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: 107493/2023
DATE
:
2025-02-25
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
In
the matter between
TSAKANE
BETTY BOTSANE on behalf of
RHULANI
MANDLATHI
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
WEIDEMAN,
AJ
:
In this matter, the aspect of
negligence had become settled directly between the parties on the
basis of a 70% apportionment in
favour of the plaintiff. Before court
was the claim for loss of income and future medical expenses. The
defendant had not made
a decision in respect of the seriousness of
the plaintiff’s injuries and the court was asked to separate
out the claim for
general damages and for it to be postponed
sine
die
.
At the commencement of the matter, I
indicated to counsel that the amended page 6 of the plaintiff’s
particulars of claim,
on CaseLines 015-17 contained the following
five injuries:
1.
Bladder injury;
2.
Rectal injury;
3.
Blunt abdominal trauma;
4.
Pelvic fracture; and
5.
Head injury.
The various specialists whose
medico-legal reports were filed of record indicated that the first
three of these injuries, the bladder
injury, rectal injury and the
blunt abdominal trauma should be assessed by a urologist and a
general surgeon. The plaintiff, for
reasons unknown to the court,
opted not to appoint a urologist or a general surgeon.
After indicating that the plaintiff
wished to proceed on the papers as they stood, counsel moved an
application in terms of Rule
38(2) to lead evidence on affidavit. I
proceeded to canvas with counsel the experts or documentation in the
scope of the application
and noted down the following experts whose
reports I was advised by counsel should be included: Dr Kumbirai,
Dr Mazwi,
M M Mphelo, Ms Mahlatsi, Mr Monyela and Mr Mandlathi.
I again asked counsel to confirm that
these were the expert reports and documentation that the R38(2)
application related to and
counsel confirmed that it was. The
application was granted.
Counsel then briefly presented the
plaintiff's claim. The difficulty is that the actuary was not
included in the Rule 38(2) application
and therefore there was no
actuarial report before court. This also implied that there was no
expert evidence relating to an actuarial
calculation and no amounts
for the court to consider. As a result the application for loss of
income could not be considered.
My order is as follows:
1.
The defendant shall be liable for 70% of
such damages as the plaintiff may be able to substantiate;
2.
The defendant’s application to lead
evidence on affidavit in terms of Rule 38(2) is granted;
3.
The plaintiff's application to have the
aspect of general damages postponed
sine
die
is granted;
4.
The defendant shall be liable to the
plaintiff as far as future hospital, medical and ancillary expenses
are concerned in terms
of Section 17(4)(a) of the Road Accident Fund
Act to provide the plaintiff with an Undertaking for such future
hospital, medical
and ancillary expenses limited to 70%.
5.
The plaintiff's application in respect of
future loss of income is dismissed.
6.
Plaintiff is entitled to his party and
party costs to be taxed or agreed.
WEIDEMAN, AJ
JUDGE OF THE HIGH COURT
DATE
:
……………….