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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 38563/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED : YES/NO
DATE: 14TH APRIL 2025
SIGNATURE:
In the matter between:
PATRICIA MANTLAEEA LEEU PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
This matter has been heard in open court and is otherwise disposed of in terms of
the Directives of the Judge President of this Division. This judgment was prepared
and authored by the Judge whose name is reflected herein and is handed down
electronically by circulation to the parties/their legal representatives by e -mail and by
uploading it to the electronic file of this matter on Caselines. The date and for hand -
down is deemed to be 14 April 2025.
SUDER, AJ
[1] The matter came before me for default ju dgment on 16th October 2024. The
Plaintiff seeks compensation for bodily injuries sustained by the Plaintiff, allegedly
arising from a motor vehicle accident which occurred on 24th August 2016. The
Plaintiff seeks compensation for past and future loss of e arnings in the sum of
R1,306,254 -10 (One Million Three Hundred and Six Thousand, Two Hundred and
Fifty-Four Rand and Ten Cents). The general damages aspect is to be postponed
sine die as the Plaintiff has not been assessed by the Defendant for serious inju ry.
[2] The Plaintiff’s applied in terms of Rule 38(2) of the Uniform Rules of Court for
the expert affidavits to be admitted into evidence. The Rule 38(2) application was
served on the Defendant (“the RAF”) on 2 October 2024 via email. There was no
oppos ition by the Defendant.
[3] The Rule 38(2) application was granted. It must be noted that where expert
evidence is presented for the purpose of requesting default judgement, this court
must exercise its discretion and be satisfied that the Plaintiff has a valid claim as
opposed to simply granting default judgement for lack of appearance by the
Defendant. It must be further noted that while this court exercised its discretion in
admitting the expert affidavits without viva voce evidence, this does not equat e to
this court being bound to accept the evidence for the purpose of granting default
judgment.
[4] The Plaintiff filed heads of argument. Plaintiff’s counsel commenced argument
stating that she would be referencing the heads of argument filed on record.
Plaintiff’s counsel was directed by this court to make reference to the expert reports
when addressing this court on the heads of argument. In the Plaintiff’s heads of
argument the Plaintiff claims R1,156,826 -00 (One Million One Hundred and Fifty - Six
Thousand, Eight Hundred and Twenty -Six Rand) in respect of loss of earnings.
[5] The issues for determination before this court is the that of merits and
quantum only in respect of past and future loss of earnings.
Background to Plaintiff’s claim
[6] The Plaintiff commenced proceedings by issuing and serving summons
against the Defendant. The Plaintiff averred in her particulars of claim that she was
involved in an accident on 24th August 2016 at N12 Potchefstroom, resulting from a
collision caused by t he negligent driving of a motor vehicle bearing registration
letters and numbers J[...] (“the insured vehicle”).
[7] The Plaintiff avers that the insured driver was negligent in the following
respects:
7.1 He drove the vehicle at an excessive speed
7.2 He failed to keep a proper lookout
7.3 He failed to keep the insured vehicle under proper control
7.4 He failed to apply the brakes timeously or at all
7.4 He drove the vehicle on the wrong side of the road
[8] The Plaintiff averred that she was a passenger in the insured vehicle at the
time of the accident and that as a result of the collision, caused by the neglige nt
driving of the insured vehicle, she sustained a C2 Spine fracture. The Plaintiff alleges
that as a direct cause of the accident and the negligent driving of the insured driver,
she was forced to undergo hospital and medical treatment and will in future be
forced to undergo hospital and medical treatment.
[9] The Plaintiff, in her particulars of claim, alleged that she suffered damages
resulting from injuries sustained by the collision, estimated at R900,000 -00 (Nine
Hundred Thousand Rand), comprising estimated past medical expenses, estimated
future medical expenses, estimated past and future loss of earnings and general
damages. The Plaintiff subsequently amended her claim to R2,450,000 - 00 (Two
Million Four Hundred and Fifty Thousand Rand) comprising estimated past medical
expenses, estimated future medical expenses, estimated past and future loss of
earnings and general damages.
[10] The Plaintiff averred that the amount estimated as general damages was a
global figure in respect of pain, suffering and discomfort, emotional shock and
trauma, loss of enjoyment of amenities of life, disfigurement and the non -pecuniary
aspects of disabilities. The Plaintiff averred that it was not reasonably practicable to
apportion the amounts claimed for general damag es. The issue of general damages
is not before this court.
Plaintiff’s evidence on merits and quantum
[11] The Plaintiff testified that at around 5am on 24th August 2016 she was a
passenger in the insured vehicle which was transporting her to work from S terfontein
to Potchefstroom. She was seated at the back of the insured vehicle, a two -seater
Corsa bakkie with a canopy. She was seated under the canopy.
[12] She testified that the insured vehicle entered the N12, a tarred road, when the
driver of the in sured vehicle, travelling at normal speed, tried to overtake a lorry. The
lorry bumped the insured vehicle on the side, causing the insured vehicle to roll five
times. The Plaintiff did not see anything further. It was dark when the accident
occurred. She was thirty years old at the time of the collision.
[13] The Plaintiff testified that she was taken by ambulance to the hospital as she
sustained an injury to her neck.
[14] This was the extent of the Plaintiff’s testimony and evidence on the merits of
the claim. Plaintiff’s counsel submitted that based on the evidence before this court,
the merits must be conceded 100% in favour of the Plaintiff.
[15] Regarding the claim on quantum, the Plaintiff testified that at the time of the
accident she was employ ed as a casual worker (not permanent) at Chubby Chicks
earning R140 a day as a packer. She subsequently testified to being employed as a
cutter, cutting chickens at Chubby Chicks.
[16] The Plaintiff testified that she did not return to work after the accident and
continued to plait hair. She testified that she is currently living on a grant as she does
not have a place where she can work to plait hair. This was the extent of the
Plaintiff’s testimony on her employment and earnings.
Expert Assessments and Reports
[17] The Plaintiff appointed several experts to assess and evaluate the nature of
her injuries and the sequalae of the injuries sustained. The Plaintiff relied on the
exper t evidence to support her claim for past and future loss of earnings.
[18] The Plaintiff presented the reports of the following medical experts as
evidence of injuries sustained by the Plaintiff during the accident, the treatment
received and the impact o f the injuries on the Plaintiff’s capacity for future
employability and future earnings:
18.1 Dr Peter T Kumbirai (Specialist Orthopaedic Surgeon)
18.2 Dr Nkhabele & Indunah (Diagnostic Radiology)
18.3 Dr Makgato (Occupational Therapist)
18.4 Dr Kgalamadi Ramusi (Industrial Psychologist)
18.5 Dr Robert Koch (Actuarial Scientist)
Report: Dr Peter T Kumbirai (Specialist Orthopedic Surgeon)
[19] The Plaintiff was examined by Dr Kumbirai on 10th April 2019. Dr Kumbirai
provided a report dated 10th April 2019 . Dr Kumbirai’s affidavit confirming the report
is dated 27th June 2023. It is apposite to mention that the report relied upon was
prepared 5 (five) years prior to this hearing and an updated report was not before
this court when the matter was heard.
[20] Dr Kumbirai’s report notes that the Plaintiff reported she was a passenger in a
motor vehicle that lost control and rolled. The Plaintiff was employed part -time
cutting chicken pieces at Chubby Chick, her highest level of education being Grade
10. Dr Ku mbirai reported that according to the Plaintiff, the hospital notes and the
RAF1 form, the Plaintiff sustained a fracture of the spinous process C2 and a
fracture of the C1 vertebrae as a consequence of the accident. The Plaintiff did not
return to work af ter the accident due to the neck pain, which was exacerbated by
frequent neck movements.
[21] According to Dr Kumbirai, the systemic examination conducted indicated loss
of normal cervical lordosis and degenerative disc disease at C5/C6 which would
requir e future surgery for surgical decompression and fusion. Dr Kumbirai’s
assessment was based on the report prepared by diagnostic radiologist Drs
Mkhabela and Indunah. Dr Kumbirai premised his prognosis and opinion of future
morbidity on the radiologist repo rt, opining that when assessed the Plaintiff was 32
years old and there was a 10% chance that she would develop cervical spondylosis,
whose symptomology might worsen to warrant cervical decompression and fusion in
the next 10 -15 years. Dr Kumbirai bases hi s opinion for future surgery on the
radiologist report.
[22] In terms of occupation and future employability, Dr Kumbirai noted that the
Plaintiff’s choice of occupation will be limited due to the pain in her neck as
occupations requiring frequent neck mo vements will aggravate her symptoms.
[23] Dr Kumbirai reported that the Plaintiff will not be able to compete fairly in the
open labour market. He deferred further opinion to the Occupational Therapist and
Industrial Psychologist. The Plaintiff will have problems engaging in activities
requiring frequent neck movement. Should the Plaintiff wish to apply for life/health
insurance in the future, disclosure of the injuries will adversely affect the outcome of
such an application. The Plaintiff may be subjecte d to exclusion clauses, weighted
premiums and even refusals.
Report: Drs Mkhabela and Indunah (Diagnostic Radiologist) - prepared by Dr F
Ismail
[24] The Plaintiff underwent cervical spine x -rays on 10th April 2019. Dr F Ismail, of
Drs Mkhabela and Indunah prepared the report on 10th April 2019.
[25] Plaintiff’s counsel elected not to take this court through the radiologist report,
submitting that the contents of the report were addressed when dealing with Dr
Kumbirai’s report. Plaintiff’s counsel submitted that the contents of the radiologist
report were repeated in Dr Kumbirai’s report.
[26] For the purpose of this judgment and for the avoidance of doubt, this court
finds it apposite to note the contents of the radiologist report, relied upon by the
various medical experts, either directly or by reference.
[27] The radiologist report indicated loss of normal cervical spine lordosis,
suggestive o f muscle spasm and features of cervical spondylosis at C5/6 and
osteophyte formation. The x -rays reported an old avulsion fracture of an anterior
inferior osteophyte at C5. The vertebral bodies were reported to demonstrate normal
height and alignment. The facet joints and spino -lamina line and the posterior
elements and paravertebral soft tissues were reported as normal.
[28] The radiologist report concluded that the features are in keeping with cervical
spondylosis at C5/6 and osteophyte formation and rep orted an old avulsion fracture
of an anterior inferior osteophyte at C5.
Report: Dr Michael Lefatane Makgato (Occupational Therapist)
[29] The Plaintiff referred this court to Dr Makgato’s report, dated 29th July 2019 to
confirm the details of the accide nt, the Plaintiff’s injuries and treatment, the Plaintiff’s
living conditions and the Plaintiff’s employment.
[30] The Plaintiff was assessed by Dr Makgato on 20th July 2019 to express an
expert opinion on the Plaintiff’s pre and post injury functional a bility and the effect of
the sustained injuries on the Plaintiff’s daily living, work, leisure and recreational
activities. This included making recommendations on the necessity for adaptive
equipment and commenting on the Plaintiff’s need for work assista nce, rehabilitation
and other interventions and loss of amenities. Dr Makgato’s assessment was
conducted almost three years after the accident. Dr Makgato was in receipt of the
RAF4 FORM 1, the hospital records and Dr Kumbirai’s medico - legal report dated 10
April 2019, when conducting the Plaintiff’s assessment.
[31] The Plaintiff reported to Dr Makgato that she was a passenger in a private car
travelling to work when their vehicle collided with a truck from the side and
overturned.
[32] Dr Makgato repo rted that according to the hospital records the Plaintiff
sustained as a C2 spinous process fracture (neck injury). He reported that the
injuries and sequelae are described in detail in Dr Kumbirai’s report. The Plaintiff
was treated in hospital with analg esics and a hard neck collar and was referred to an
Orthotist and for physiotherapy.
[33] The Plaintiff reported being employed pre -accident as a packer earning +/ -
R800 - 00 per week at the time of the accident. She was unable to return to work
post-accid ent and was self -employed as a hairstylist. She has a grade 10 and has no
formal qualifications.
[34] The Plaintiff reported no medical history pre -accident, no surgeries and no
previous motor vehicle accidents. She experienced good health at the time of the
accident. The Plaintiff complained that post accident she is unable to carry heavy
loads, she experienced pain in cold weather conditions and she tired easily and was
unable to plait lots of people.
[35] Dr Makgato reported that the Plaintiff reports discomfort handling heavy load
and working in confined spaces, i.e. squatting and crouching for long periods of time.
He recommended adaptive and assistive equipment to improve the Plaintiff’s quality
of life. Dr Makgato opined that with optimum treatmen t, pain management and the
provision of appropriate domestic assistive devices the Plaintiff’s performance may
improve.
[36] Dr Makgato opined that the Plaintiff had no mental and physical impairment
prior to the accident and relied on her physical capacity, intact cognition and
psychosocial skills to secure and maintain employment. Findings from the Functional
Capacity Eva luation (FCE) indicate that the Plaintiff has retained residual handling
capacity to safely engage in sedentary, light and up to medium physical demand
strength occupations. The experiencing of neck pains impedes on the Plaintiff’s
physical capacity. This affects her ability to look up for prolonged periods of time and
to do activities requiring frequent neck movements, heavy load handling and working
in lowered positions (squatting and crouching) for prolonged periods.
[37] According to Dr Makgato, the Pl aintiff is fairly able to cope with the day -to-day
handling, mobility and positional tolerance requirements of her occupation as a
hairstylist. The Plaintiff continues to experience neck pains which is a cause for
concern. During occupational engagement th e Plaintiff will experience discomfort on
the neck due to repetitive neck movements and this will affect efficiency and
productivity. The Plaintiff’s productivity levels have gone down due to the residual
physical impairments. The Plaintiff will struggle w ith efficiency and productivity for as
long as the musculoskeletal problems persist.
[38] Dr Makgato opined that the Plaintiff requires a sympathetic employer who will
understand her limitations and allow for reasonable accommodation including time
off fo r future medical treatment related to the accident. The Plaintiff will benefit from
the use of assistive devices and task modification to maximize her efficiency and
productivity. The Plaintiff will need frequent rest and would need to adhere to correct
ergonomic principles for her neck and back pain symptoms.
[39] The Plaintiff’s work choices have been reduced as a result of the accident.
The accident left her compromised and she is unlikely to be considered for
occupations where she is required to hand le heavy and very heavy load. The Plaintiff
would be prejudiced and limited in choice of employer, the type of work and the work
environment, which will restrict job freedom for the Plaintiff.
[40] Dr Makgato noted Dr Kumbirai’s report and opinion, more s pecifically that
“..the pain in the neck will limit her choice of occupation as occupations which require
frequent neck movements will aggravate her symptoms. She will not be able to
compete fairly for a job in the open labour market. ”. He deferred to the Industrial
Psychologist to comment on the Plaintiff’s career options and earning potential.
Report: Dr Kgalamadi Ramusi (Industrial Psychologist)
[41] The Plaintiff was assessed by Dr Ramusi on 17th April 2019 to evaluate the
effects of the accident and its sequelae on the Plaintiff’s employability and earning
capacity. The evaluation considered two aspects, viz. the Plaintiff’s prospects absent
the accident and injuries and having regard to the accident and injuries. The report
was prepared and dated 16th July 2020. At the time of evaluating the Plaintiff Dr
Ramusi was in possession of and had regard to the RAF 1 Form, the RAF 4 Form
completed by Dr Kumbirai, the hospital clinical notes, the report of Dr Kumbirai and
the report of Dr Makgato.
[42] The Pl aintiff reported to Dr Ramusi that she was involved in the accident while
employed as a packer and part -time hairdresser. Regarding the Plaintiff’s
employment profile, Dr Ramusi recorded that the Plaintiff reported that she was
employed by Chubby Chick as a packer from May 2016 to August 2016 and was a
self-employed hairdresser from 2003 to date of assessment. The Plaintiff reported
that she did not return to work as a packer but returned to work as a hairdresser in
January 2019. She was earning around R800 a week as a Packer and about R1000
a month as a hairdresser. She was working at the time of the evaluation earning
about R1500 a month. The earnings were not verified by Dr Ramusi.
[43] The Plaintiff reported she was a passenger in a vehicle when the acc ident
occurred. She reported having sustained a cervical spine fracture because of the
accident and was taken by ambulance to the hospital. Her treatment included x - rays,
analgesics, a neck collar and physiotherapy. The Plaintiff was not involved in a
previous accident. As a result of the accident, she experiences neck pain when cold,
numbness on the left arm and she cannot carry heavy objects.
[44] Dr Ramusi opined on the Plaintiff’s pre - and post -morbid potential for
employment and earning capacity.
Pre-Morbid Postulations
[45] Regarding the Plaintiff’s pre -morbid potential, the Plaintiff passed Grade 10,
has no formal or vocational training and was working as a packer and part -time
hairdresser when the accident occurred. The Plaintiff was regarded as unskilled in
the open labour market, depending on her physical and cognitive, as well as
psychological and emotional well -being to seek work and earn an income. Her
employment prospects were in supportive operational jobs which do not have the
potential for increased responsibility. The Plaintiff depended on her physical and
psychological well -being to maintain her employment. With a grade 10 level of
education the Plaintiff would most probably have been earning in the unskilled
category. The Plaintiff r eported two earnings at the time of the accident in line with
her dual roles. The earnings are not verified but are likely considering her work
activities and age which gave her the energy to engage in dual roles. The Plaintiff
would have continued to earn as she reported, i.e. R800 x 4.3 weeks= R3440 per
month plus R1500, totaling R4940 per month. The earnings were not verified but
considered likely. This would have been her earning ceiling considering her age at
the time of the accident. She would have ea rned annual inflation related increases
until she retires. She would have been expected to continue being employed until the
age of 65 years. Dr Ramusi referred to Koch (2016) who suggested that such
employees earn in the range between R7 700 -R19 500 - R56 000 per annum.
Post-Morbid Postulations
[46] Post morbid, the Plaintiff’s education and work details were unchanged. The
Plaintiff complained of pain and discomfort post the accident. Dr Ramusi relied on
the opinions of the medical experts. He referred to Dr Kumbirai’s assessment and
findings relating to the injuries the Plaintiff sustained, the requirement for future
treatment and the Plaintiff’s inability to compete fairly for a job in the open labour
market. He referred to the report and evaluation by the occupational therapist, Mr.
Makgato who noted the Plaintiff’s residual handling capacity to safely engage in
sedentary, light and up to medium physical demand strength occupations, her
inability to return to her pre -accident occupation which has medium physical demand
and ambulatory requirem ents, her ability to cope with the day to day handling,
mobility and positional tolerance of her occupation as a hairstylist, her requirement
for a sympathetic employer and her need for assistive devices and task modification
to maximize her efficiency and productivity.
[47] Dr Ramusi reported that by not returning to work after the accident the Plaintiff
lost earnings as a packer. She was able to return to work in January 2019 as a
hairdresser although she would have suffered earnings for the period she h ad to
recover. Regarding the Plaintiff’s choice of occupation, Dr Ramusi relied on Dr
Kumbirai’s and the radiologist report. The Plaintiff has been predisposed to
physically demanding jobs due to her low level of education and the injuries she
sustained ha s aggravated her predicament. Dr Ramusi opined that employers prefer
able-bodied individuals and may not necessarily offer sympathetic employment to an
entrant. He opined that anticipated future surgery has the potential to further
deteriorate the Plaintif f’s capacity. The Plaintiff will not be expected to continue to
work post -surgery and that may likely result in her permanently not attaining her
premorbid career and vocational prospects. Dr Ramusi accepted that the Plaintiff
suffered loss of earnings and would suffer further loss of earnings from discontinuing
in her premorbid work. Dr Ramusi opined that the envisaged surgery may result in
100% future loss of earnings for the remainder of the Plaintiff’s work life. Dr Ramusi
reserved the right to amend th e report on new information becoming available. He
based his opinion on future surgery from the report of the Occupational Therapist, Dr
Kumbirai’s report and the radiologist report.
Report: Robert J Koch (KOCH Consulting Actuaries cc)
[48] The Plainti ff led evidence on the certificate of value prepared by Robert K
Koch (“Koch”/” the actuary”) dated 16th October 2024. The Plaintiff did not present a
full report. It is apposite to mention that despite the actuary certificate of value dated
29 July 2020 b eing discovered and referenced in the Plaintiff’s heads of argument,
the Plaintiff did not lead evidence on that certificate, but led evidence on the
certificate of value dated 16 October 2020.
[49] The certificate of value prepared by Koch, dated 16 Octo ber 2024 postulates
loss of earnings with no contingencies. Koch quantified the Plaintiff’s earnings pre
and post the accident. Pre -accident the income uninjured was quantified on earnings
of R53600 at the time of the injury, i.e. R41600 pay as a packer an d R12000 pay as
a hairdresser. Post accident the income now injured was quantified on nil income as
a packer and R18000 pay as a hairdresser. Escalation was calculated in line with
inflation until the age of 65 years. The statutory cap of R248710 pay witho ut
escalation was not applicable.
[50] Koch reported past income uninjured at R535,096 and injured at R121,267,
with a net value of R413,829. He reported future income uninjured at R1,518,632
and uninjured at R459,870, with a net value of R1,058,762. The total value was
computed at R1,472,591 with no adjustments for contingencies.
[51] The actuarial certificate of value dated 16 October 2024 and the quantified
calculations were prepared by Koch on the basis of an earnings audit extracted from
Dr Ramusi’s report dated 16th July 2020, which preceded the certificate of value by 4
years. The earnings audit was conducted by Dr Ramusi without verifying the
Plaintiff’s employment, position and income. The certificate of value is based on
unverified earnings.
Cont ingencies
[52] Plaintiff’s counsel proposed the following contingencies based on Dr Koch’s
(actuary) Certificate of value dated 16th October 2024:
52.1 On pre -morbid earnings (had the accident not occurred) 10% on
R535 096,00 past loss of earnings whic h if applied would compute to
R481,586 -40
52.2 15% on R1, 518, 632,00 pre -morbid future loss of earnings which if
applied would compute to R1,290,837,20
52.3 On post morbid (having regard to the accident) 0% on past loss of
earnings
52.4 25% of R459,870,00 post-morbid future loss of earnings which is
applied would compute to R344,902,50
[53] On the basis of Koch’s certificate of value dated 16 October 2024 and the
proposed contingencies, the Plaintiff claims the sum of R1,306,254 -10 for past and
future los s of earnings.
Analysis of evidence on the merits and quantum
Merits
[54] The Plaintiff testified as a single witness and did not call any witnesses. The
Plaintiff’s version of events was uncontested. Section 16 of the Civil Proceedings
Evidence Act 25 of 1965 , as amended provides that judgment may be given by a
court on th e evidence of a single and credible witness. This court must therefore be
satisfied that the Plaintiff’s evidence is credible, even if the evidence is uncontested.
In doing so this court must have regard to all the evidence presented and all
documents reli ed upon by the Plaintiff in support of her claim.
[55] The Plaintiff testified that a lorry bumped the insured vehicle when the insured
vehicle tried to overtake the lorry. The evidence led in court differs from the Plaintiffs
19F affidavit. In her affida vit the Plaintiff states that the driver of the motor vehicle in
which she was a passenger lost control of the insured vehicle, resulting in the vehicle
capsizing. Nowhere in the affidavit does the Plaintiff state that the insured vehicle
was hit by a lorr y. The Plaintiff’s testimony is inconsistent with the version recorded
in her affidavit.
[56] The Plaintiff’s testimony is inconsistent with the information provided by the
Plaintiff on admission and during completion of the hospital registration form. T he
admission form records that the Plaintiff reported that the insured vehicle was
transporting staff to work when it lost control and capsized. The Plaintiff’s statement
in the admission form is consistent with the Plaintiff’s affidavit.
[57] The Plainti ff’s testimony is also inconsistent with what the Plaintiff reported to
Dr Kumbirai at the time of the assessment, viz. that the Plaintiff was a passenger in a
motor vehicle that lost control and rolled. This is consistent with the version recorded
in the Plaintiff’s affidavit.
[58] The probability of the version that the insured vehicle lost control and rolled is
further supported by the details captured in the accident report and in the RAF 1
Form completed by the Plaintiff. The accident report indicates that one vehicle was
involved in the accident. This is supported by the statement of the driver of the
insured vehicle in the accident report which confirms that he lost control of the
vehicle and the vehicle overturned. This is consistent with the inform ation captured
by the Plaintiff in the RAF 1 Form where she stated “not applicable” at the section
requiring details of any other vehicle involved in the accident. The Plaintiff also
stated in the RAF 1 Form that it was not a hit and run.
[59] The Plaint iff testified that she was sitting under the canopy at the back of the
insured vehicle. The accident report records that several passengers were injured in
the accident. The Plaintiff did not call any witnesses despite many other passengers,
apparently co -workers, being involved in the accident.
[60] Given the Plaintiff’s contradictory versions of how the accident happened, it
would have been prudent for the Plaintiff to lead witness evidence. The only
inference which can be drawn from the Plaintiff’s test imony as a single witness is
that she is not truthful in her version of what transpired, as is evident from the
contradictory versions before this court.
[61] The Plaintiff’s affidavit further records: “ As a result of the accident my child
sustained inju ries and to be hospitalized ”. This is inconsistent with the pleadings and
with the Plaintiff’s version at the hearing.
[62] This court has to consider whether the Plaintiff’s evidence is probable to the
extent of the Plaintiff having discharged the onus p laced on her, i.e. to prove that she
sustained injuries as a result of a collision caused by the negligent driving of the
insured vehicle. In the matter of Minister of Justice v Seametso1 the Appellate
Division, regarding the approach to be adopted to the evidence of the single witness
which stands uncontradicted, the court stated the following:
1 1963 (3) SA 530 (A) at 534 G -H and 535 A
"Counsel for the appellant contended that the fact that Daniel's evidence
stands uncontradicted does not relieve the plaintiff from the obligation to
discharge the onus resting upon him. If thereby is meant that Daniel's
evidence should not have been accepted merely because it stands
uncontradicted then the contention is sound, for as was said by Innes CJ in
Sittman v Kriel, 1909 T.S 538 at p 543:
"It does not foll ow, because evidence is uncontradicted, that therefore it is true.
Otherwise, the Court, in cases where the defendant is in default would be
bound to accept any evidence the plaintiff might tender. The story told by the
person on whom the onus rests may be so improbable as not to discharge it."
[63] In the matter of Louis v RAF2, on the evidence of the single witness, the
Court held that " the brief, cursory and insubstantial nature of the plaintiff's evidence
resulted in a paucity of facts being establishe d that may be used in support of the
plaintiff's duty to discharge the onus that rests upon him regarding the negligence of
the driver of the unidentified vehicle. A plaintiff is not relieved of this obligation even if
he is a single witness and his eviden ce stands uncontradicted ".
[64] The contradictions in versions cast doubt on what is the correct version of
how the accident happened. Even if it is to be accepted by this court that there was
no other vehicle involved, the Plaintiff has not provided evid ence to prove negligence
on the part of the insured driver which resulted in him losing control of the vehicle,
causing the vehicle to overturn. As an example, the Plaintiff pleaded that the collision
was caused by various acts of negligence by the insured driver, viz, driving at an
exce ssive speed, not keeping a proper lookout, driving on the wrong side of the road
and failing to apply the brakes timeously or at all. Regarding the speed at which the
insured vehicle was driven, the Plaintiff’s viva voce evidence, in contradiction to the
pleadings, was that the insured vehicle was driven at a normal speed. The Plaintiff
did not lead any evidence on the remaining allegations of negligence on the part of
the insured vehicle, which allegedly caused the collision.
2 (23724/2018) [2022] ZAGPJHC 12 (10 January 2022) at paragraph [16
[65] The Plaintiff’s evidence on the merits does not satisfy this court sufficiently to
be able to make a determination on the merits. At the same time, this court is not
inclined to non -suit the Plaintiff from proving her claim of negligence in a full trial.
Accordingly, this Court r efuses to exercise its discretion in favour of granting default
judgment on the merits.
[66] Having refused to grant default judgement on the merits, this court is not
obliged to address the issue of quantum. However. This court finds it necessary to
comm ent on the probity of the Plaintiff’s and the expert evidence relating to loss of
earnings and the quantification of the Plaintiff’s claim.
Quantum
[67] The Plaintiff testified on her employment history pre and post the collision
which resulted in her injuries. The Plaintiff furthermore presented expert evidence
regarding the injuries allegedly suffered by the Plaintiff as a result of the collision.
[68] The Plaintiff testified that she was thirty years old at the time of the accident
and was employed part-time as a packer at Chubby Chick, earning R140 -00 a day.
This was consistent with what was reported by the Plaintiff during expert
assessments. At the hearing the Plaintiff testified initially that she was a packer and
thereafter testifies that she wa s a cutter, cutting chickens. The Plaintiff only reported
to Dr Kumbirai that she was employed as a cutter cutting chickens. This presents
inconsistencies in the Plaintiff’s versions regarding her employment.
[69] The plaintiff testified that she did no t return to work after the accident and
continued to braid hair while living on a grant. The Plaintiff presented no evidence on
the grant she was allegedly. The Plaintiff did not lead evidence confirming her
employment history, which was unverified even du ring the expert assessments. The
Plaintiff did not present proof of her employment, position and income at Chubby
Chicks or as a hairstylist. This was unverified at the time of the assessments and no
proof was presented to this Court.
[70] The Plaintiff’s claim is based on the recommendations made by the various
medical experts. Dr Kumbirai’s assessment was based primarily on the report
prepared by diagnostic radiologist Drs Mkhabela and Indunah. Dr Kumbirai premised
his prognosis and opinion of future mor bidity on the radiologist report, opining that
when assessed the Plaintiff was 32 years old and there was a 10% chance that she
would develop cervical spondylosis, whose symptomology might worsen to warrant
cervical decompression and fusion in the next 10 -15 years.
[71] Dr Kumbirai reported a C2 spinous process and C1 vertebrae injury. This
appears to be extracted from the hospital records. There is no indication in
Kumbirai’s report that he conducted his own assessment. Dr Kumbirai placed
reliance on the radiologist report, although the radiologist report made no reference
to a C2 spinous process or C1 vertebrae injury. The radiologist report concluded that
the features are in keeping with cervical spondylosis at C5/6 and osteophyte
formation and reported an old avulsion fracture of an anterior inferior osteophyte at
C5. Dr Kumbirai’s report does not address the condition reported in the radiologist
report and is therefore of no assistance.
[72] The radiologist report did not report the x -ray findings to b e a consequence of
the accident. When prompted by this Court, Plaintiff’s counsel could not demonstrate
where in the radiologist report it was stated that the diagnosis was premised as a
consequence of the accident. In fact, Plaintiff’s counsel conceded th at the report
does not specifically state that the plaintiff’s reported condition is due to the accident.
[73] It is apposite to mention that the Plaintiff did not admit into evidence the
affidavit of the radiologist, as required in terms of Rule 36(9)(b) of the Uniform Rules
of Court. In the circumstances, the radiologist report is considered from the
perspec tive of collateral information presented in the various expert reports.
[74] Dr Kumbirai’s assessment that the Plaintiff’s choice of occupation will be
limited due to the pain in her neck, as occupations requiring frequent neck
movements will aggravate he r symptoms, is unsubstantiated and is concluded from
the Plaintiff’s reporting of her symptoms. Dr Kumbirai’s report that the Plaintiff will not
be able to compete fairly in the open labour market was also unsubstantiated. The
Plaintiff did not report to D r Kumbirai and did not lead evidence to support that her
attempts to secure employment were rejected.
[75] Dr Kumbirai’s report had a domino effect on the rest of the medical experts,
who conducted evaluations and prepared reports with reference to Dr Kum birai’s
assessment. Dr Kumbirai’s report placed heavy reliance on the radiologist report.
[76] Dr Makgato’s findings were based on the Plaintiff’s reporting, the hospital
records and Dr Kumbirai’s report. He stated that Plaintiff reported discomfort
handl ing heavy load and working in confined spaces, i.e. squatting and crouching for
long periods of time. His recommendation for adaptive and assistive equipment to
improve the Plaintiff’s quality of life was based on the Plaintiff’s reporting.
[77] According to Dr Makgato, the Findings from the Functional Capacity
Evaluation (FCE) indicate that the Plaintiff has retained residual handling capacity to
safely engage in sedentary, light and up to medium physical demand strength
occupations. He opined that the ne ck pains impede on the Plaintiff’s physical
capacity. This affects her ability to look up for prolonged periods of time and to do
activities requiring frequent neck movements, heavy load handling and working in
lowered positions (squatting and crouching) f or prolonged periods. This assessment
was based on the Plaintiff’s reporting.
[78] Dr Makgato reported that the Plaintiff is fairly able to cope with the day -to-day
handling, mobility and positional tolerance requirements of her occupation as a
hairstyli st. In contradiction Dr Makgato states that during occupational engagement
the Plaintiff will experience discomfort on the neck due to repetitive neck movements
which will affect efficiency and productivity and that Plaintiff’s productivity levels have
gone down due to the residual physical impairments.
[79] Dr Makgato states that the Plaintiff’s work choices have been reduced as a
result of the accident, with no supporting evidence save for reliance on Dr Kumbirai’s
report. Dr Makgato opined that the acci dent left the Plaintiff compromised where she
is unlikely to be considered for occupations requiring the handling of heavy and very
heavy load. This opinion is not supported by any evidence, especially since the
Plaintiff provided no evidence of her employ ment being of the nature that requires
the handling of heavy and very heavy load. Dr Makgato’s report does not provide
any assistance to this court.
[80] Regarding the Plaintiff’s choice of occupation, Dr Ramusi relied on Dr
Kumbirai’s report, which place d heavy reliance on the radiologist report. Dr Ramusi
also relied on Dr Makgato’s report. Dr Ramusi reported that Plaintiff has been
predisposed to physically demanding jobs due to her low level of education and the
injuries she sustained has aggravated he r predicament. There is no basis for this
reporting. The Plaintiff passed Grade 10. Dr Ramusi’s view seems to be that a Grade
10 graduate will only be able to secure jobs which are physically demanding. This is
unsubstantiated and makes no sense given that there are opportunities for
secretarial and administrative roles for high school graduates. Dr Ramusi has not
substantiated his opinion. Dr Ramusi opined that employers prefer able -bodied
individuals and may not necessarily offer sympathetic employment to an entrant. The
Plaintiff has not been proven to be disabled to support Dr Ramusi’s opinion that she
will not be able to secure employment.
[81] Dr Ramusi opined that anticipated future surgery, which is based on Dr
Kumbirai’s report, has the potential t o further deteriorate the Plaintiff’s capacity,
however he provides no evidential basis for such a prognosis, either medical or
otherwise. Dr Ramusi opined that the envisaged surgery may result in 100% future
loss of earnings for the remainder of the Pla intiff’s work life. This is not convincing as
the Plaintiff was not reported to be suffering from a disability which would be further
aggravated by future surgery. He based his opinion on future surgery primarily from
Dr Kumbirai’s report, and from the rep ort of the Occupational Therapist and
radiologist.
[82] The Plaintiff reported two earnings to Dr Ramusi which were not verified but
which Dr Ramusi considered likely considering the Plaintiff’s work activities and age.
Dr Ramusi’s earning audit was based solely on information provided by the Plaintiff.
It is glaring that there are no source documents confirming the Plaintiff’s employment
and income. Dr Ramusi’s report does not demonstrate any attempt by him to request
proof of earnings from the Plaintiff or any attempt to contact the Plaintiff’s employer
to confirm her employment and earnings.
[83] This court is of the view that an earnings audit cannot be conducted on what
“seems likely”, without verification. The Plaintiff did not lead evidence on dual
earnings. Plaintiff’s counsel conceded that she was not aware of dual earnings as
the Plaintiff did not testify in respect of dual earnings. Dr Ramusi’s evaluation was
three years after the reported accident and the report was presented a year after the
evaluation. The Plaintiff did not present an updated report at the hearing. Dr
Ramusi’s report is not convincing to this court.
[84] Koch’s certificate of value was premised on the unverified earnings audit
conducted by Dr Ramusi and Dr Ramusi’s situational analysis as at July 2020. The
earnings audit was conducted by Dr Ramusi without verifying the Plaintiff’s
employment, position and income. The certificate of value computing loss of
earnings is based on unverified earnings. The unverified earnings cannot be
accepted as a basis for computing loss of earnings.
[85] The Plaintiff led evidence on the contents of the certificate of value dated 16
October 2024. The Plaintiff did not admit into evidence an affidavit by Koch
confirming the certificate of value d ated 16 October 2024. The certificate of value
was uploaded on 16 October 2024 and served on the Defendant the same day.
Plaintiff’s counsel did not bring this to the attention of the court.
[86] It is apposite to mention at this juncture that the actuary affidavit admitted into
evidence is dated 25 August 2023 and confirms a certificate of value prepared by
Koch dated 29 July 2020. The Plaintiff has not presented an affidavit in compliance
with Rule 36(9)(b) of the Uniform Rules confirming the certificate of value dated 16
October 2024. Consequently, there is no affidavit before this court confirming the
Certificate of value dated 16th October 2024 and upon which evidence was led and
reliance placed for the Plaintiff’s claim for loss of earnings.
[87] In the absence of verified earnings and an actuary affidavit in compliance with
Rule 36(9)(b) this court is not satisfied with the evidence to enable it to, in its
discretion, grant judgment by d efault. Accordingly, this Court refuses to exercise its
discretion in favour of granting default judgment on loss of earnings.
[88] The expert reports are of no assistance to this court.
[89] The granting of a default judgment involves this court exerci se its discretion
after hearing evidence presented by the Plaintiff. Given the several contradictions
and inconsistencies present in the Plaintiff’s evidence, this court is not satisfied that
the interests of justice will be served by granting default judg ement.
Order
[90] In the result, the following order is granted:
90.1 The application for default judgment is refused.
90.2 The determination of general damages is postponed sine die
90.3 There is no order as to costs.
F SUDER
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
For the Plaintiff: Ms Z C Madjoe
Instructed by: AP Phefadu Incorporated, Pretoria
For Defendant: No appearance
Date of Hearing: 16 October 2024
Date of Judgment: 14 April 2025