SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 14395/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED : YES/NO
DATE: 15TH APRIL 2025
SIGNATURE:
In the matter between:
MAHLALELA, MDUDUZI 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 15 April 2025.
SUDER, AJ
[1] This matter came before me for default judgment on 15th October 2024. This
is a personal injury claim where the Plaintiff seeks compensation for bodily injuries
sustained by the Plaintiff, allegedl y arising from a motor vehicle accident which
occurred on 16th June 2019.
[2] The Plaintiff sought to proceed on merits and quantum. On merits, the Plaintiff
testified without calling any witnesses. Regarding quantum, the Plaintiff testified on
his employ ment and earnings and relied on expert reports prepared by medical
experts who evaluated the Plaintiff post -accident.
[3] The Plaintiff’s brought an application in terms of Rule 38(2) of the Uniform
Rules of Court for the expert reports and affidavits to be admitted into evidence.
Havenga v Parker 1993 (3) SA 724 (T), confirmed by the Supreme Court of Appeal
in Madibeng L ocal Municipality v Public Investment Corporation 2018 (6) SA 55
(SCA) , found it is permissible to place expert evidence before the Court by way of
affidavits in terms of Rule 38(2). The Rule 38(2) application was granted.
[4] It must be noted that even t hough the Rule 38(2) application was granted, this
court must still be satisfied, after considering all the evidence, that the Plaintiff has a
valid claim. By admitting the expert affidavits without viva voce evidence, this Court
is not bound to accept the evidence presented for the purpose of granting default
judgment.
[5] Plaintiff’s counsel submitted that since there was no participation by the
Defendant, the issues of past and future medical expenses and general damages is
to be postponed sine die .
[6] The issues for determination before this court is that of merits and quantum
only in respect of past and future loss of earnings.
Background to Plaintiff’s claim
[7] The Plaintiff commenced proceedings against the Defendant by issuing and
serving summ ons against the Defendant.
[8] The Plaintiff averred in his particulars of claim that on 16th June 2019, when
driving a vehicle bearing registration letters and numbers J[...], he was involved in a
motor vehicle accident with motor vehicle bearing reg istration letters and numbers
J[...]2 (“the insured vehicle”) which lost control and collided with the vehicle he was
driving.
[9] The Plaintiff claims that the insured driver was negligent in several respects,
which negligence was the sole cause of th e collision.
[10] The Plaintiff claims that as a direct cause of the accident and the negligent
driving of the insured driver, he sustained the following injuries:
10.1 Deep laceration on the left side of the head;
10.2 Right big toe fracture; and
10.3 General bodily injuries
[11] According to the particulars of claim, the Plaintiff claims to have suffered
serious injuries which he alleges entitles him to non -pecuniary damages in respect of
pain, suffering, shock, loss of amenities of life, disablement a nd disfigurement. The
Plaintiff alleges having complied with Regulation 3 in respect of the serious injury
assessment.
[12] The Plaintiff alleges that as a result of his injuries:
12.1 He had to receive hospital and medical treatment
12.2 He will requir e future hospital and medical treatment
12.3 He suffered severe pain after the accident and will suffer the same
pain in future
12.4 He suffered a loss of amenities and will suffer a loss of amenities in
the future
12.5 He suffers and will continue to suffer disability
[13] The Plaintiff claims that he should be awarded 100% merits and the quantum
claimed for loss of earnings. The Plaintiff is claiming the sum of R5,195,915 -00 in
respect of loss of future earnings, which is the only issue to be determined by this
court in terms of quantum.
[14] At the hearing Plaintiff’s counsel submitted that the supporting claim for loss
of earn ing capacity was included in the expert reports. The Plaintiff led evidence to
make out a claim for the Defendants liability and the quantum of damages claimed
for future loss of earnings. The Plaintiff did not call any witnesses. The Plaintiff
testified i n Swati and was assisted by an interpreter even though the Plaintiff was
reported to be fluent in English.
Merits
[15] The Plaintiff testified that he resides in Witbank and on 16th June 2019 he was
involved in a motor vehicle accident. According to the Plaintiff, between 16h00 -
17h00 in the afternoon, he was travelling home from a place called Pap and Vleis. A
convoy of motor vehicles were approaching from the opposite direction when
suddenly a motor vehicle (“the insured vehicle”) encroached into his la ne of travel
and collided with the vehicle he was driving. The road he was travelling was a one -
way carriage road for each direction, consisting of a tar surface. There is a deep
trench on the left side of the road which is lined by a heap of soil.
[16] The Plaintiff testified that there were no vehicles ahead of him and the
visibility of the road was clear. He testified that because everything was so quick, he
did not see the insured vehicle in front of him as it entered the lane he was travelling
on. He testified that he kept a proper lookout and tried to avoid the accident by
applying brakes and trying to swerve but it was too late. The insured vehicle collided
with the front of the vehicle the Plaintiff was driving, more specifically the right front
side.
[17] The Plaintiff testified that he was accompanied by three passengers. One of
the passengers seated behind him was hospitalized. Despite this the Plaintiff did not
call any witnesses and testified as a single witness. The Plaintiff’s version of eve nts
was uncontested at the hearing and although Section 16 of the Civil Proceedings
Evidence Act 25 of 1965 , as amended, provides that judgment may be given by a
court on the evidence of a single and credible witness, this court must be satisfied
that the Plaintiff’s evidence is credible. This would apply even if the evidence is
uncontested. This court must have regard to all the evidence to satisfy itself that the
Plaintiff’s evidence is credible.
[18] The Plaintiff testified that the accident between 16h 00-17h00 on 16th June
2019. However, the admission records indicate that the Plaintiff reported he was
involved in a motor vehicle accident around 14h00. The hospital injury accident
report indicates that the time of the injury was 15h00. The accident repo rt indicates
that the motor vehicle accident at around 15h00. There is a clear discrepancy as to
the time that the accident took place.
[19] The Plaintiff testified that a vehicle from the opposite direction collided head
on with the vehicle he was drivin g. When assessed by the experts and on admission
at the hospital the Plaintiff reported that he was involved in a head on collision. When
prompted by this court for clarity, the Plaintiff testified that the point of impact was the
front driver’s side of th e Plaintiff’s vehicle. The accident report does not indicate that
the insured driver encroached the Plaintiff’s lane or was on the wrong side of the
road. The sketch of the vehicle on the accident report doe s not accord with the
Plaintiff’s version of the point of impact. According to the accident report the point of
impact was the front centre of the vehicle. This would accord with the Plaintiff’s
several instances of reporting a head on collision. Whilst it may be accepted there
was a collision, the issu e to be determined is whether the collision was caused by
the negligence of the Plaintiff or the insured driver.
[20] Plaintiff’s counsel argued that on the evidence led, there is no argument that
the Plaintiff could not have foreseen the accident. The Pl aintiff demonstrated the
conduct of a reasonable paterfamilias by swerving to try and avoid the accident.
Plaintiff’s counsel argued there should be no apportionment and the RAF should be
liable for 100% of the damages.
[21] The Plaintiff bears the onus t o prove negligence on the part of the insured
driver. This is notwithstanding that the Plaintiff’s version remains uncontested.
Plaintiff’s counsel argued that absent the insured driver encroaching on the Plaintiff’s
lane, the accident would not have happe ned. The Plaintiff states in his 19F affidavit
that the driver of the insured vehicle lost control and collided with the Plaintiff’s motor
vehicle. This version is different from the Plaintiff’s testimony that the insured driver
encroached on the Plaintiff ’s lane. The accident report was not presented to this
court indicating a sketch and plan of how the accident happened.
[22] Upon perusing the accident report, this court notes that there is no sketch and
plan of the accident in the accident report. The d escription on the accident report
was provided by one N.A.Hlahla, who from the hospital records and expert reports
appears to be the Plaintiff’s wife. According to the description of the accident, the
Plaintiff was following a vehicle and the Plaintiff “tr ied to run” and that is when the
accident happened. This is contrary to the Plaintiff’s testimony that there were no
vehicles ahead of him and the visibility of the road was clear. Ms Nhlahla was not
called as a witness. This court is of the view that even if she was called as a witness
should would add no value as she was not present when the accident occurred. This
court notes its surprise that the passengers, especially the injured passenger was
not called as a witness. This would have served to corrobor ate the Plaintiff’s version
and dispelled any perceived discrepancies. Despite Ms Nhlahla not being present
when the accident happened, she reported to medical experts that on knowledge of
the accident she attended the hospital and was advised by the Plain tiff how the
accident took place. It is therefore reasonable to assume that when describing the
accident Ms Nhlahla repeated what the Plaintiff communicated to her. The version
presented in the accident report casts doubt on whether the Plaintiff’s testimo ny
before this court is truthful.
[23] The Plaintiff’s testimony and the description of the accident in the accident
report does not accord with the Plaintiff’s affidavit which states that the insured driver
lost control of his vehicle and collided with t he Plaintiff. Whilst it cannot be ruled out
that a collision did in fact take place, given the blatant discrepancies this court is not
convinced that the collision was caused by the sole negligence of the insured driver.
There may very well have been a col lision however except for the Plaintiff’s
testimony, there is no evidence to suggest that the head on collision was caused by
the sole negligence of the insured driver. The description of the accident provided in
the accident report casts doubt on the alle gations of negligence on the part of the
insured driver. which is questionable if this court has regard to the description of the
accident in the accident report. This court cannot rule out that the description that the
Plaintiff “tried to run” could mean that the Plaintiff tried to overtake the vehicle in front
of him, thus being responsible for the collision. This court cannot also rule out
contributory negligence on the Plaintiff’s part, however absent any evidence this
court cannot make a determination on contributory negligence.
[24] This court is not sufficiently satisfied on the evidence presented that the
accident was caused by the sole negligence or even the negligence of the insured
driver. The Plaintiff’s evidence on the merits does not satisfy t his court sufficiently to
make a determination on the merits.
[25] In the circumstances, this court this Court refuses to exercise its discretion in
favour of granting default judgment on the merits and is of the opinion that the issue
of merits must be ventilated in a full trial.
Quantum
[26] While not being not o bliged to address the issue of quantum, this court finds it
apposite to comment on the probity of the Plaintiff’s testimony and the expert
evidence relating to the Plaintiff’s claim for future loss of earnings and the
quantification of the Plaintiff’s clai m.
[27] The Plaintiff testified that he sustained injuries to the left side of his forehead,
his right leg, he suffered a broken right thumb and his whole body was in pain. He
testified that he has not fully recovered from the injuries sustained. He suffe rs with
constant headaches, especially when it is hot and this affects his eyesight.
Regarding the injuries allegedly sustained to his back and foot, the Plaintiff testified
to having horrible pain when he sits for long and drives long distances. He is tes tified
to not being able to wear a closed shoe for long durations especially when driving
long distances as this causes his feet to swell. In most cases he requests his wife to
accompany him. The Plaintiff submitted no evidence to support his testimony tha t his
eyesight is affected by his headaches. There was further no evidence to confirm his
testimony that he requires his wife’s assistance when driving long distances.
[28] The Plaintiff testified that before the accident he was employed at DIG, a
mining company, as a supervisor. He was responsible for taking care of machines
when employees were reporting for duty. He was responsible for ensuring that he
recorded the correct working hours because the machines had to generate income
at the end of the month. He was responsible for the time sheets so the employees
could be properly remunerated. He testified that most of his working time was spent
deep in the mines.
[29] He testified that he returned to his pre -accident employment a month after the
accident bu t remained there for only four months. He was not able to perform his
duties to the fullest since sustaining the injuries in the accident. He had problems
with his eyes, he tended to be forgetful and sitting for long posed a problem for him.
He left his em ployment at DIG because of the mistakes he made on the paperwork
and he also could no longer wear the safety boots which were a requirement. The
Plaintiff’s evidence was not supported by corroborative evidence which could be
obtained from the Plaintiff’s e mployer. There was no evidence before this court that
the Plaintiff had problems with his eyesight serious enough to impeded his duties, or
at all. Professor Lekgwara, the specialist neurosurgeon reported that the Plaintiff’s
vision was intact.
[30] He te stified that he left his employment at DIG because of the concerns raised
around his performance. He was also subjected to a medical examination, a
requirement of working at the mines, which was not successful due to the injuries he
sustained in the accide nt. He was rendered “non -red ticket”, meaning that he did not
pass the medical fitness test. A red ticket is issued if one passes the medical fitness
test. The Plaintiff submitted no evidence to this court supporting his testimony that he
was rendered non -red-ticket. If this were the case the Plaintiff would not have been
precluded from presenting to this court the outcome of the medical fitness test which
rendered him non -red-ticket.
[31] The Plaintiff testified that after leaving DIG he tried for a long time to secure
employment and was successful for a while but is now unemployed. He was
unemployed for approximately 8 months to a year before securing employment as a
tipper truck driver at Masimanzi. He testified that as a tipper truck driver, he required
a lot of strength to operate the tipper truck. This court is not convinced by the
Plaintiff’s testimony. It is this courts understanding a tipper truck operates by using a
hydraulic system to lift and lower the truck bed. The driver only controls the tipp ing
mechanism and this is controlled by hand and not by foot. Even if this were not the
case and the Plaintiff required strength to operate the tipper truck, Professor
Lekgwara’s examination of the Plaintiff’s motor system reported that the Plaintiff
demon strated normal muscle power was normal on all limbs.
[32] The Plaintiff testified that he was sitting for long periods and had to
concentrate a lot because of safety issues. He was subsequently taken off the tipper
truck and put on ADT (Articulated Dump T ruck) where he also experienced
challenges in meeting targets because of his injuries. The Plaintiff testified that the
red ticket was also a requirement for this position but he was given the job because
he was known to the owner. As a sympathetic employe r the owner would call the
Plaintiff to assist for a period of time because he understood the Plaintiff’s condition
and the person he was before the accident. The Plaintiff’s version does not seem
probable given the legislated safety requirements which wou ld have been applicable
to the Plaintiff’s employment. It is highly unlikely that even a sympathetic employer
known to the Plaintiff would prejudice operations and cause risk to the operations by
not complying with safety protocols.
[33] The Plaintiff fir st testified to being employed as an ADT driver for a year
before leaving. He testified that he was not permanently employed at Masimanzi. He
thereafter testified that he was employed for 5 months. He experienced problems
with picking up incorrect loads as he would forget where to collect certain types of
cargo. He testified that even in this position the injury to his foot hampered him from
wearing safety boots in adherence to safety standards as his legs would swell.
Driving the ADT required the foot to o perate. He further testified that the safety
officer found him underground with his safety boots off and this created a problem for
him. The Plaintiff’s version was not supported by witness evidence. It would have
been prudent to call the safety officer to testify on behalf of the Plaintiff and support
his version. The Plaintiff did not present evidence from his erstwhile employer
supporting his testimony that he had challenges performing his duties.
[34] The Plaintiff testified that he stopped working in September 2024. He
attended an assessment by Dr Ngobeni, the Orthopaedic, on 8th August 2024 when
he informed her that he managed to go back to his pre -accident employment. He
was called back by his employer for a short period of time, hence he is now
unem ployed.
[35] The Plaintiff appointed several experts to evaluate and report on the nature of
his injuries and the sequalae of the injuries sustained. The Plaintiff sought the expert
opinion of a neurosurgeon, clinical psychologist, Orthopaedic surgeon, oc cupational
therapist, industrial psychologist and actuary to support his claim for future loss of
earnings.
[36] The Plaintiff obtained the following expert reports:
36.1 Professor Patrick L. Lekgwana (Neurosurgeon)
36.2 Dr R S Ngobeni (Orthopaedic)
36.3 Adelaide Phasha (Occupational Therapist)
36.4 Sandra I Mores (Industrial Psychologist)
36.5 Narropi Sewpershad (Clinical Psychologist and Neuropsychologist)
36.6 Munro Forensics Actuaries (Actuary)
[37] On presenting the Plaintiff’s case on quantum o n the issue of future loss of
earnings, Plaintiff’s counsel referred this court to the discussions and opinions
contained in the expert reports of the neurosurgeon, the Orthopaedic surgeon and
the psychologists. Plaintiff’s counsel read into the record ext racts from the reports
and recommendations of the various experts.
[38] The Plaintiff was initially assessed by Dr R S Ngobeni, Orthopaedic Surgeon
on 8 March 2021. He was reassessed on 8 August 2024 and Dr Ngobeni provided
an Addendum report. The languag e of assessment was English and Isizulu. Dr
Ngobeni was in possession of the x rays and x rays report and the RAF 1 Form
completed by Dr Engela Wybenga. The Plaintiff reported that he was employed as
an ADT Operator at a mine. The Plaintiff reported to Dr Ngobeni on 8th August 2024
that he managed to go back to his pre -accident employment and testified before this
court that because the employment was for a short time he was unemployed. This
contradicts the Plaintiff’s reasons for leaving his previous emplo yments, viz that his
injuries affected his performance. The Plaintiff testified to leaving his employment
after his assessment with Dr Ngobeni not for reasons related to his injuries. It also
makes no sense to this court why, despite the Plaintiff reportin g to the medical
experts and to this court that the injuries compromised his work performance, he
would return to the same position.
[39] Dr Ngobeni reported that the hospital records indicated that the Plaintiff was
diagnosed with a laceration on the for ehead, lower back injury and an open right big
toe distal phalanx fracture. The Plaintiff provided no evidence of loss of
consciousness especially in the instance where the hospital records indicate there
was no loss of consciousness.
[40] Dr Ngobeni repo rts that the Plaintiff was treated for backache and associated
abrasions and has no complaints. The occupational therapist reported that the
Plaintiff experienced challenges due to a back injury. Dr Ngobeni’s report, which is
recent, indicates that the Pla intiff presented no complaints regarding his back ache
and associated abrasions. This court gives credibility to Dr Ngobeni’s report as it is
based on recent assessment of the Plaintiff.
[41] Dr Ngobeni reported that the Plaintiff had an open base phalanx fracture of
the big toe and was taken for debridement nail bed repair and k -wire insertion. Whilst
Dr Ngobeni reports that the Plaintiff struggles to wear closed shoes especially
working boots due to pain and swelling, Dr Ngobeni has not opined that the P laintiff
has been disabled and is not able to perform his duties. Dr Ngobeni reports an
impairment of the right big toe function which is a reduction in the function as
opposed to complete non -function of the right big toe. Dr Ngobeni reported that the
Plaintiff has full but painful ranges of toes joint movement and he will benefit from
analgesics, anti -inflammatories and orthotic shoe wear. The Plaintiff reports that he
struggles with pain and discomfort when wearing safety boots at work and this may
affec t his productivity at work. Dr Ngobeni recommends arthrodesis of the big toe to
reduce pain and discomfort and orthotic softer shoe boots wear to be arranged with
orthotics.
[42] Regarding future work capacity, Dr Ngobeni reported that the Plaintiff has N 3
mechanical training post matric, a certificate for tipper truck, ADT and water bowser.
He managed to go back to work post -accident. Dr Ngobeni’s report does not render
the Plaintiff disabled where he cannot function in his pre -accident employment. Dr
Ngobeni reports that the Plaintiff’s productivity may be affected, not the Plaintiff’s
ability to perform the functions.
[43] This court is of the view that by following the recommendations of Dr Ngobeni,
the Plaintiff will be able to execute his pre -acciden t work functions. Dr Ngobeni’s
recommendation does not support the view of the other experts which suggest that
the Plaintiff will not be able to work for the remaining period of his work life.
[44] The Plaintiff was examined by Professor Lekgwara, Specia list Neurosurgeon,
on 8 March 2021 (“the first interview”). Professor Lekgwara provided a report
pursuant to the first interview. Professor Lekgwara conducted an updated interview
with the Plaintiff on 31 July 2024 (“the second interview”). The second inte rview took
place approximately 5 years after the accident and 4 years, 4 months after the first
interview. The Plaintiff was 39 years old when initially interviewed. Professor
Lekgwara had at his disposal the clinical records from eMalahleni Hospital and t he
RAF Form 1 medical report completed by Dr Engela Wybenga on 21 February 2020.
The Addendum report prepared by Professor Lekgwara pursuant to the second
interview was identical in substance to the first report prepared after the first
interview.
[45] The Plaintiff reported loss consciousness after sustaining injuries to his head,
chest, face, and right big toe. There is no evidence supporting the Plaintiff’s version
that he lost consciousness. The hospital records confirm that there was no loss of
consc iousness. The Plaintiff reported that he was not in a previous accident,
however this was contradicted in his reporting to the clinical and neuropsychologist,
Ms Sewpershad. The Plaintiff reported to Ms Sewpershad that he was in a previous
accident.
[46] Professor Lekgwara conducted a clinical details interview with the Plaintiff.
The Plaintiff complained mainly of a painful right big toe and a headache. He
complained that the painful right big toe started after accident, was triggered by long
driving and was associated with swelling of the right foot. The Plaintiff complained
that he sometimes cannot wear closed shoes and the pain is worse during cold
weather. He takes analgesia for the pain. Regarding the headache, he complained
that it was in the frontal area and started after the accident. He suffers with
headaches almost daily it is worse during hot weather. He reported that he has
memory problems and has not experienced any convulsions. This court notes that
this contrary to what was reported by Ms Sew pershad. Ms Sewpershad reported that
the Plaintiff’s incidental recall, working memory, mental tracking and mental
sequencing proved to be retained in line with those of his peers. Although the
Plaintiff complained oh headaches, there is no evidence suppor ting the Plaintiff’s
complaint. This court notes that despite consulting a specialist neurosurgeon, the
Plaintiff has not submitted to a CT scan or MRI scan confirming his alleged condition
and the reasons therefor.
[47] On systemic enquiry Professor Lekg wara reported negative for cardio
vascular, respiratory, gastro –intestinal and urogenital symptoms. The Plaintiff
reported no chronic illness.
[48] Professor Lekgwara reported that according to the hospital records, the
Plaintiff’s Glasgow Coma Scale (GCS ) was 15/15. Professor Lekgwara opined that
the Plaintiff sustained the following Injuries: soft tissue injuries; right big toe distal
phalanx fracture and mild traumatic brain injury. A GCS of 15/15 indicates a patient
is fully alert, responsive and has no problems with thinking ability or memory.1 This is
not consistent with a diagnosis of brain injury. Professor Lekgwara opined that the
Plaintiff had loss of consciousness for 5 minutes and suffered a grade 3 concussion .
This is not supported by witness evidence or medical evidence. Professor Lekgwara
did not present ant neuroimaging results to support his diagnosis. Professor
Lekgwara opined that the Plaintiff had post -concussion headaches and memory
problems which will need assessment and treatment. Professor Lekgwara
commented on the condition of a concussion, opining that a concussion results in the
alteration of brain function. He opined that a clinical finding of a concussion includes
confusion, amnesia, headache, d rowsiness and loss of consciousness. The hospital
records indicate that the Plaintiff was alert and there was no loss of consciousness.
The report by Dr ND Mhlongo who attended to the Plaintiff post -accident also
indicates there is no history of loss of co nsciousness. This court is not convinced by
Professor Lekgwara’s diagnosis that the Plaintiff suffered mild traumatic brain injury.
[49] On the Plaintiff’s cognitive functions, Professor Lekgwara reported that the
Plaintiff’s speech was fluent during inte rview, he appeared of average intelligence,
he paid attention during the interview and sustained attention throughout the
interview. On general examination, Professor Lekgwara reported that the Plaintiff
presented with a 10cm left forehead scar. Examinatio n of the cranial nerves
indicated that the Plaintiff’s vision was intact, no ophthalmoplegia was observed and
no abnormalities were observed. Examination of the Plaintiff’s motor system
demonstrated that muscle power was normal on all limbs. This is not co nsistent with
Professor Lekgwara’s diagnosis that the Plaintiff suffered mild traumatic brain injury.
[50] Professor Lekgwara opined that the Plaintiff had some neuropsychological
problems which need to be assessed by a clinical psychologist. He did not p rovide
details of the neuropsychological problems. This diagnosis seems inconsistent with
Professor Lekgwara’s report on the Plaintiff’s cognitive functions. Professor
Lekgwara reported normal cognitive functions for the Plaintiff. Professor Lekgwara
did not report any abnormalities in respect of the Plaintiff’s behaviour, supported by
medical evidence.
1 (https://my.clevelandclinic.org/health/diagnostics/24848 -glasgow -coma -scale -gcs)
[51] Professor Lekgwara reported that the Plaintiff has a 2% chance of developing
epilepsy. There was no basis submitted for this expected complication and no
medical evidence supporting the prognosis. Professor Lekgwara’s prognosis was
that according to neurosurgical literature +/ - 80% of patients suffering from post -
concu ssion headaches recover within 2 to 3 years and 20% of patients remain with
chronic symptom. He opined that since it is 5 years after the accident, no further
improvement is expected. This is not supported by medical evidence and Professor
Lekgwara did not present a CT scan or MRI scan to confirm the diagnosis of post -
concussion headaches and mild traumatic brain injury. Professor Lekgwara’s
diagnosis was based on reporting by the Plaintiff that he lost consciousness and
suffered with headaches. This court is not convinced by the experts’ assessment.
[52] Professor Lekgwara reported that the Plaintiff lost the ability to generate an
income during the time he was involved in the accident. He deferred an opinion on
future loss of income to an industrial psyc hologist. The Plaintiff was compensated for
the time he did not work.
[53] Professor Lekgwara reported that the Plaintiff suffers severe long term mental
or severe long term behavioral disturbance or disorder. To the extent that this is
relevant to the Pl aintiff’s claim for loss of future earnings, this court is not convinced
by this assessment.
[54] Narropi Sewpersadh, Clinical Psychologist and Neuropsychologist, evaluated
the Plaintiff to establish the neuropsychological and clinical psychological effec ts
following a motor vehicle accident. The Plaintiff was assessed by Ms Sewpershad on
1 June 2021 and a report was provided on 25 February 2022. The Plaintiff was
reassessed and subjected to a neuropsychological assessment on 2 August 2024.
An Addendum was provided by Ms Sewpershad on 23 September 2024. The
language of assessment was English, Swati and Ndebele. Ms Sewpershad reported
that the Plaintiff was conversant in English and Ndebele. The findings in Ms
Sewpershad Addendum report is the culmination of information predominantly
provided by the Plaintiff and incorporates the results of the comprehensive
neuropsychological assessment. The Addendum integrates the findings of her report
dated 25 February 2022.
[55] Ms Sewpershad assessed the Plaintiff by carrying out an extensive clinical
interview followed by a neuropsychological testing and the administration of
psychological questionnaires. Ms Sewpershad consulted the following documents
when preparing her report:
55.1 The hospital records
55.2 The RA F Form 1 medical report completed by Engela Wybenga
55.3 Medico -legal report completed by Dr RS Ngobeni, the orthopedic
surgeon
55.4 Medico -legal report and RAF 4 serious injury assessment report
completed by Professor Lekgwara.
55.5 The Addendum Medico -legal report completed by Dr RS Ngobeni
55.6 The Addendum 4 Medico -legal report and RAF 4 serious injury
assessment report completed by Professor Lekgwara
[56] According to Ms Sewpershad, the Plaintiff reported that he was living in
Middelburg with his wife and he secured employment since his previous assessment
in 2021. The Plaintiff reported being involved in a previous accident in 2004/2005,
when the vehicle in which he was a passenger was struck from behind. He reported
that he did not suffer loss of con sciousness during that accident nor did he suffer any
injuries. Ms Sewpershad reported that the Plaintiff did not have any residual
complaints relating to the previous accident.
[57] The Plaintiff provided Ms Sewpershad with his occupational history. He
reported that post -MVA he felt pressured to resign due to an unsympathetic
employer. He was forgetful and made frequent mistakes. Pain and discomfort
caused by the injury to his ri ght toe made it difficult for him to wear safety boots. He
suffered headaches two to three times a week which he treated with Grandpa. When
confronted by his employer on his mistakes this resulted in arguments. This is
contrary to the Plaintiff’s reporting to Ms Moses, the Industrial Psychologist. The
Plaintiff reported to Ms Moses that his employment was terminated for reasons
unrelated to the accident. Ms Moses confirmed that the Plaintiff was employed post -
accident by a sympathetic employer.
[58] The Plaintiff reported that when the accident occurred, he was rendered
unconscious and to his knowledge he woke up in hospital the next morning. This is
contrary to the doctor’s note by Dr Mhlongo which indicates that there was no history
of loss of conscious ness. The Plaintiff was reported by Dr Mhlongo to be clinically
stable with a laceration on the forehead. The attending doctor did not record a head
injury. This also contradicts the hospital patient clinical record which reports that the
Plaintiff got out of the vehicle himself.
[59] Ms Sewpershad indicated that the Plaintiff reported the following injuries:
laceration to the forehead, a fractured right big toe, an injured back and chest / ribs
which were painful on both sides. The Plaintiff received trea tment by undergoing X -
rays, his right big toe fracture was surgically repaired, he was given medication for
pain and he received physiotherapy. The Plaintiff was issued a moon boot which he
used for approximately 1 month post discharge. The Plaintiff repor ted that there were
no fatalities but one other passenger was injured.
[60] Ms Sewpershad reported that she obtained collateral information from the
plaintiff’s wife. The Plaintiff’s wife reported that she was not present and did not
witness the accident. She came to know of the accident through the vehicle tracker
company which contacted her and informed her that the system indicated that the
vehicle battery had been moved. She attempted to contact the Plaintiff but her calls
were not answered. The Plaint iff returned her call after a few minutes and informed
her that he has been involved in a motor vehicle accident. This is inconsistent with
the Plaintiff’s report that he lost consciousness and woke up in hospital. The
Plaintiff’s wife reported that she we nt to hospital and the Plaintiff was semi -conscious,
was incoherent and in a lot of pain. This is also inconsistent with the version that the
Plaintiff returned her call after a few minutes and with the hospital records which
indicate that the Plaintiff wa s alert. The Plaintiff’s wife reported that when she
returned to the hospital the next day, the Plaintiff could not remember how the
accident occurred. If the Plaintiff was semi -conscious and incoherent on the day of
the accident and could not remember the next day how the accident happened, this
court must then question how the Plaintiff’s wife recorded a description of the
accident in the accident report the next day. The only reasonable inference which
can drawn is that the Plaintiff was not semi -consc ious, which is in keeping with the
hospital records that the Plaintiff was alert and there was no loss of consciousness.
[61] Ms Sewpershad reported that the hospital notes indicated that on admission
the Plaintiffs Glasgow Coma Scale (GCS) was recorded a t 15/15, with no loss of
consciousness. Ms Sewpershad referred extensively to the medico legal report and
RAF 4 Serious assessment report provided by Professor Lekgwara, to the medico -
legal reported provided by Dr Ngobeni, and to the RAF Form 1 medical rep ort
completed by Dr Engela Wybenga. This court has addressed the inconsistencies in
Professor Lekgwara’s report and will not repeat same.
[62] Ms Sewpershad reported that upon direct enquiry the Plaintiff reported that
his eyesight is normal and he does n ot experience any episode of dizziness. This is
consistent with Professor Lekgwara’s report that the Plaintiff’s vision was intact and
inconsistent with the Plaintiff’s report that he suffered eye problems resulting from
the headaches. He reported that he did not develop post -traumatic epilepsy or
convulsive disorders to date. The Plaintiff reported that his right foot/toe becomes
swollen after sitting or driving for long periods. He reported that his speech is speech
is fluent. He is short tempered since a ccident but has learnt to control his temper. He
is more forgetful, he forgets to follow up on prospective job offers and to attend to
important errands and chores. His concentration is not as effective as before. He has
no difficulty with effecting mental calculations. The Plaintiff assists with domestic
chores and he has no limitations in this regard. He cleans the house, cooks and
watches television.
[63] The Plaintiff reported that despite his pain and discomfort he remains
motivated to sustain his emp loyment. In his previous assessment the Plaintiff
indicated that he remained motivated to seek employment and would look for
opportunities in the mining sector or as a truck driver. This court finds it strange that
the Plaintiff would seek opportunities in the mining sector despite complaining of
restrictions he suffered allegedly arising from the injuries sustained. This is not
consistent with the Plaintiff’s complaints that he cannot drive for long periods and
cannot wear safety boots due to the foot in jury.
[64] The Plaintiff reported several features of PTSD, including nightmares of the
accident, although infrequently. He reported that he experienced flashbacks and if he
experiences this while driving, he asks his wife to drive. He reported experienci ng
anxiety while travelling but indicated that he still drives. He reported having difficulty
controlling his temper and at least one isolated episode of entertaining thoughts of
suicide after he lost his temper and fought with his wife. There was no actua l attempt
at suicide. This was not verified by Ms Sewpersadh through collateral evidence. It is
inconceivable that an expert report on such a serious matter without having regard to
collateral evidence.
[65] Ms Sewpersadh reported that the plaintiff was f luent in English and he
presented himself in a logical and coherent manner. His memory was adequate for
the purpose of the evaluation and his insight and judgement seemed intact.
[66] Ms Sewpersadh reported the Plaintiff’s auditory attention to be general ly well
within normal expectations although subtle fluctuations in his concentration with
increased complexity. His incidental recall, working memory, mental tracking and
mental sequencing proved to be retained in line with those of his peers. His problem
solving and numerical reasoning on the arithmetic test was on par with the majority
of his peers. This was confirmed by Ms Phasha’s report that the Plaintiff presented
with relevant and logical thoughts and his memory was functional.
[67] Ms Sewpersadh to ok cognizance taken of the opinion of Professor Lekgwara,
the Neurosurgeon who concluded that Mahlalela sustained a mild traumatic brain
injury having considered there was a history of loss of consciousness.
[68] Ms Sewpersadh reported a decline in the Pla intiff’s neurocognitive functioning.
She opined that clinically the Plaintiff’s presentation was suggestive of poor
adaptation to the post injury effects of the accident. The Plaintiff presented with a
mood disorder (depression), generalized anxiety as wel l as significant PTSD
features along with a mild traumatic head injury that was now manifesting as a post-
concussive syndrome. Ms Sewpersadh reported that the accident rendered the
Plaintiff psychologically vulnerable, that the Plaintiff presented with persistent injury
related limitations that impeded his ability to return to his premorbid levels of
functioning, from a neurocognitive and psychological perspective.
[69] Ms Sewpersadh reported that she identified a critical decline in the cognitive
domains of complex attention, processing speed, verbal memory and on tasks of
executive function. The Plainti ff manifests persistent mood disturbance/severe
depression and on -going features of PTSD. The Plaintiff’s chronic pain disorder has
been identified as a critical contributor to his increased psychological vulnerability.
She opined that ongoing mental stres s has negated the Plaintiff’s quality of life and
adversely impacted his personal sense of competence.
[70] Ms Sewpersadh summarized that based on the information at hand and the
tests conducted, the Plaintiff sustained a co -morbid psychological injury be cause of
the accident. The Plaintiff presented with major depression as well as significant
features of PTSD which resulted in ongoing emotional pain and suffering. Ms
Sewpersadh opined that the Plaintiff would benefit from a referral for psychiatric
asses sment and treatment. The Plaintiff stands to benefit from psychotherapeutic
intervention to work through his depression, poor motivation, loss of confidence, his
anxiety, residual trauma and fear related to travelling. This court was not presented
with a r eport from a psychiatrist confirming this assessment. The Plaintiff reported to
the Occupational Therapist on 30 June 2021 that he was in the process of a
divorcing his wife as he has become short tempered leading to violent behaviour
towards his wife. Thi s was not verified by the expert through collateral evidence.
Absent supporting evidence this court cannot rule out that the Plaintiff’s
psychological injury and depression was due to reasons related to the Plaintiff’s
marital situation.
[71] In completin g the RAF Form 4 Serious Injury Assessment Report, Ms
Sewpersadh, in addition to her assessment of a psychological injury, relied on
Professor Lekgwara’s report that the Plaintiff had sustained a traumatic brain injury.
This has been addressed by this Cour t insofar as it impacts the Plaintiff’s claim for
loss of future earnings.
[72] This court is not convinced by Ms Sewpersadh report on the Plaintiffs
neurocognitive functioning. Neurocognitive function refers to the mental processes
and skills directly l inked to brain structure and function, including memory, language,
attention, and executive function. It refers to an individual’s various cognitive abilities.
In contradiction to Ms Sewpersadh, Professor Lekgwara, on the Plaintiff’s cognitive
functions, r eported that the Plaintiff’s speech was fluent during interview, he
appeared of average intelligence, he paid attention during the interview and
sustained attention throughout the interview.
[73] It is apposite to note that the Damages Affidavit before th is court refers to Ms
Sewpersadh report dated 25 February 2022. There is no affidavit by Ms Sewpersadh
confirming the contents of her Addendum report. In the circumstances any updates
to the report dated 25 February 2022 cannot be afforded probative value.
[74] Adelaide Phasha, Occupational Therapist, evaluated the Plaintiff’s
occupational performance. Ms Phasha evaluated the Plaintiff on 30 June 2021 and
presented a report on 31 March 2023. The Plaintiff relied on the report of the
occupational therapist, Adelaide Phasha to confirm employment history and to
address the aspects of workability and employability. The Plaintiff reported being
unemployed at the date of assessment.
[75] Ms Phasha made reference to and summarized the contents of the expert
opini ons of Professor Lekgwara (specialist neurosurgeon), Dr RS Ngobeni
(Orthopaedic Surgeon) and Ms Sewpersadh (clinical psychologist). Ms Phasha relied
on the Plaintiff’s reporting on his current complaints.
[76] The Plaintiff reported that he was in the pro cess of a divorce. Regarding mode
of transport, he either walks or uses public transport. He experiences travelling
related anxiety when travelling in a speeding vehicle.
[77] Ms Phasha reported that the Plaintiff recorded loss of consciousness,
however n oted that the available hospital records did not note a history of loss of
consciousness. According to Ms Phasha, the Plaintiff reported that he was not
involved in any previous accidents.
[78] Regarding his employment history, the Plaintiff reported tha t at the time of the
accident he was employed as an Excavator Machine Operator Supervisor at DIG
Mining. After the accident he was off for a month to recuperate from the injuries, on
full pay. He resumed his pre -accident duties when he returned to work wit h difficulty
due to the pain and suffering in his right foot. He forced himself to wear boots which
was mandatory and he struggled to get onto elevated platforms and to walk on
uneven terrain. The Plaintiff reported that post -accident he had decreased
conc entration and accuracy levels. He made two errors which caused the company
financial loss and was called in for a hearing but decided to resign instead. He could
not recall when he resigned but it was around June 2020. He remained unemployed
and was still unemployed at the time of the consultation in June 2021.
[79] On 22 March 2022, Ms Phasha contacted the Plaintiff for updated details on
his employment. The Plaintiff reported to Ms Phasha that during October/November
2021 he obtained employment at a mine in Middelburg as a Tipper Truck Driver. He
experienced pain on the right foot and big toe but would endure the pain. He was
forgetful and forgot to record the weight of the loads and this led to complaints from
his supervisors. He worked for 3 to 4 months until he was retrenched on 28 January
2022. He was the only one from his department to be retrenched, although others
were retrenched as well. He reported that others were rehired except him. Th
Plaintiff’s alleged retrenchment was not verified by Ms Phas ha and neither did the
Plaintiff provide proof of retrenchment. This would have been an easy task given that
the Labour Relations Act prescribes a specific procedure for retrenchment. During
his testimony the Plaintiff did not testify on being retrenched.
[80] Ms Phasha obtained collateral information from the Plaintiff’s supervisor at
DIG Mining, Mr. Johan Van Niekerk, who confirmed that the Plaintiff was employed
as an Excavator Machine Operator. He confirmed that following the accident the
Plaintiff was given light duties which he performed until he resigned. The light duties
included driving a small vehicle instead of a light vehicle. This was to accommodate
the Plaintiff who was struggling to perform his duties due to the right foot pain. Mr.
Van Nie kerk referred questions around the reason for the Plaintiff’s resignation to HR.
The HR Department indicated that the Plaintiff was facing disciplinary action and
resigned. Ms Phasha was provided with the Plaintiff’s resignation letter dated 8 June
2020, w hich was absent a reason for resignation, suffice to state that he was
resigning with immediate effect. The information provided to Ms Phasha is in
contradiction to the version presented by the Plaintiff that he left DIG Mining because
of errors on the pap erwork and he could no longer wear the safety boots. It is also in
contradiction to the information provided by the Plaintiff to the Industrial Psychologist
that his contract was terminated at DIG Mining for reasons not related to the accident.
Ms Phasha r eported that the Plaintiff’s pre - and post -accident job as an Excavator
Machine Operator fell predominantly within the light work category. The Plaintiff was
given light duties but chose to resign, which according to his report to Ms Stone, was
for reasons unrelated to the accident.
[81] Ms Phasha reported that the Plaintiff presented with relevant and logical
thoughts during the interview and his memory was functional. This is not consistent
with the Plaintiff’s evidence that he had memory problems.
[82] Regarding workability, Ms Ph asha reported that on the day of assessment the
Plaintiff reported mid -back pain, right ankle and big toe joint and fatigue in the right
leg consistent with the injuries sustained. She reported that the Plaintiff presented
the following challenges:
82.1 Equivalence of circumference which was suggestive of decreased
functional use of the right leg in daily activities.
82.2 Mild swelling was noted below the right mallous suggestive of
symptomology in the area.
82.3 The Plaintiff presented with kyphosis on the thoracic spine and lordosis
was noted on the lumbar spine.
82.4 Muscle spasms were noted on the trapezius muscles down to the
thoracis spine
82.5 His point standards did not meet the competitive standards during the
Valpar 11 task assessing his eye -hand-foot co -ordination which is
critical for drving most machines in industries and factories.
82.6 He presented with overall physical ability for the medium category of
work.
82.7 Mild cognitive fallouts were noted with regards to immediate recall
memory, attention and fatigue.
82.8 The Plaintiff’s work rate during clerical and numerical assessment did
not meet the open labour market standards.
[83] The challenges presented by Ms Phasha are not supported by the expert
reports. Dr Ngobeni reported no compl aints in respect of the reported back injury.
Professor Lekgwara reported positive on cognitive function. Ms Sewpersadh
reported that the Plaintiff had no difficulty with effecting mental calculations. There
was no evidence substantiating that the Plaintif f’s work during clerical and numerical
assessment did not meet labour market standards. This is a subjective test to the
extent that different labour markets set different standards. To make a clinical
assessment which is unsubstantiated by facts is unconv incing to this court.
[84] Ms Phasha opined that considering the injuries sustained, the assessment
findings and the expert opinions, the Plaintiff is suited for light to occasional medium
work category. Full spectrum medium category is not recommended as it tends to
exacerbate spine symptomology and also due to reduced psychological endurance.
She reported that the Plaintiff is unsuited for heavy to very heavy work category
because of the injuries sustained. He would need to take frequent rest breaks and
observe joint and spine saving principles. She opined that he is an unequal and
vulnerable competitor in the open labour market who will always be at risk of losing
his job. Ms Phasha concluded that the Plaintiff suffers occupational dysfunction due
to pre senting physical, cognitive and psychological challenges. He has limited
options and is an unequal competitor in the labour market and a highly vulnerable
employee. He will always need an employer who understands his limitations. His
limitations will impac t his promotional opportunities and growth which contributes to
his overall loss of earning potential in the future. It is accepted that he would not
reach his pre -accident work potential and would struggle to re -enter the open labour
market and would m ost probably remain unemployed for the remainder of his life
unless employed by a sympathetic employer.
[85] This court is not convinced by Ms Phasha’s opinion on the Plaintiff’s
workability. Ms Phasha’s comment that full spectrum medium category is not
recommended as it tends to exacerbate spine symptomology is not convincing if
regard is had to Dr Ngobeni’s report. Dr Ngobeni reported in her Addendum that the
Plaintiff had no complaints regarding back pains, Ms Phasha’s report suggests that
the back inju ries has compromised the Plaintiff’s ability to work in the full spectrum
medium category. This is unsupported by any medical evidence. Ms Phasha’s
comment that the Plaintiff would most probably remain unemployed for the
remainder of his life unless employ ed by a sympathetic employer is without merit and
not convincing to this court. The Plaintiff was employed as recently as August 2024.
The Plaintiff did not indicate the reasons for him leaving employment being the
challenges he previously reported. The Pl aintiff did not testify that he was employed
by a sympathetic employer during August 2024.
[86] Ms Phasha’s conclusion that the Plaintiff suffers occupational dysfunction due
to presenting physical, cognitive and psychological challenges is not convincing
given Professor Lekgwara’s report on the Plaintiff’s cognitive functions and Dr
Ngobeni’s report which in no way suggested that the Plaintiff was physically impaired
to the extent of not being able to be employed.
[87] It is apposite to note that this co urt is not possessed with an Addendum by Ms
Phasha given that her assessment is outdated. Ms Phasha’s report does not have
regard to the updated Addendum reports provided by Dr Ngobeni, Professor
Lekgwara and Ms Sewpersadh.
[88] Plaintiff’s counsel submi tted that the report of the Industrial Psychologist,
Sandra j Moses speaks for itself. The Plaintiff was assessed by Ms Moses on 30
June 2021 and a report was issued on 5 April 2023, two years later. The assessment
was conducted to determine the extent and impact of the injuries on the Plaintiff’s
physical and cognitive functioning to predict his future work prospects and earning
potential. Ms Moses referenced the RAF 1 claim form and medico legal reports
prepared by Dr Ngobeni, Professor Lekgwara, Ms Sewpershad and Ms Phasha.
[89] The Plaintiff reported that he was driving his own car and a car travelling from
the opposite direct ion lost control colliding head on into the claimant. The Plaintiff
reported that post -accident his contract at DIG Mining was terminated and the
termination was not accident related.
[90] Ms Moses did not conduct any psychometric assessment. The role of
psychometric assessments is to determine the individual’s current potential and
future career options.
[91] On pre -accident employment prospects, Ms Moses opined that pre -accident,
based on the Plaintiff’s employment record and dearth of alternative vocat ional
training, skill or work experience, the Plaintiff would in all probability have continued
working as a supervisor. Ms Moses opined that considering the Plaintiff was 35
years of age at the time of the accident and his qualifications no career progres sion
was probable as the Plaintiff reached his career peak. The Plaintiff would have been
able to work until retirement age between 60 -65 years depending on the retirement
policy of the company he works for until retirement. This court is not convinced tha t
this is the case.
[92] Ms Moses based her opinion on the Plaintiff’s post -accident prospects on the
expert reports she consulted. Ms Moses opined that the Plaintiff reported that his
contract was terminated due to a mistake on his time card. Ms Moses op ined that
according to the clinical psychologist the Plaintiff suffers from occupation dysfunction
due to presenting physical, cognitive and psychological challenges. Ms Moses
opined that the Plaintiff’s dismissal was a result of the injuries sustained. Th is court
has addressed the contradictions in versions earlier in this judgement.
[93] According to Ms Moses, competing for alternative employment would be
problematic for the Plaintiff. His Grade 11 and N3 qualification would limit him to
compete for unsk illed work in the non -corporate sector which is generally heavy
physically demanding and would require prolonged standing and walking. She
opined that his cognitive and psychological difficulties would require him to be
supervised as he is prone to makin g costly mistakes. Ms Moses opined that
considering it has been three years that the Plaintiff continued to experience
cognitive and psychological challenges since the accident, she is of the opinion that
the Plaintiff is likely to remain unemployed for th e rest of his work years. This
assessment is not convincing to this court for reasons already addressed in this
judgement.
[94] Ms Moses reported on the Plaintiff’s pre - and post -accident earnings as
reported by the Plaintiff. The Plaintiff reported that pre-accident he earned R12,000 -
00 per month. Post -accident the Plaintiff reported that he secured a job as tipper
truck driver from September/October 2021 for 4 months, earning a salary of
R16,000 - 00 a month. Ms Moses opined that based on the expert repor ts the
Plaintiff’s residual work capacity, career options and employability have been
compromised due to the injuries he sustained. She opined that he was likely to
remain unemployed for the rest of his work years and thus suffers a total loss of past
and future income. It is the court’s view that an expert cannot rely on unverified
information. Ms Moses reported that her recommendations and conclusions are
based on information made available at the time of evaluation. Ms Moses has not
verified the Plaintif f’s alleged earnings.
[95] Ms Moses indicated that the report would be valid for a period of 18 to 24
months from the date of interview after which a follow up assessment would be
required. The interview was conducted on 30 June 2021. A period of 24 mont hs
expired on 30 June 2023. As at the date of this hearing, a period of 3 years and 4
months has lapsed since Ms Moses interviewed the Plaintiff. The Plaintiff did not
present a report updated by Ms Moses, which is required for the purpose of
assessing los s of earnings and employability.
[96] Munro Forensic Actuaries estimated the capital value of the potential loss of
earnings. The actuary report states that the figures are calculated as at 1 May 2023
and if figures are required more than 12 months after the date of calculation, a new
calculation is recommended. The report was based on data supplied, generally
accepted actuarial methods employed and assumptions made. The information
supplied was not audited or verified. The calculations were based on info rmation
provided by the Plaintiff’s attorney, which included the report by the industrial
psychologist Sandra Moses dated 5 April 2023. According to the actuary report new
calculations were to be obtained in April 2024. This was not done.
[97] The actua rial calculations were based on the Plaintiff working intermittently
since the accident, the Plaintiff being unemployed since January 2022 and the
opinion that the Plaintiff is expected to remain unemployable in the future.
[98] The actuaries based their c alculations on uninjured earnings of R12,000 -00
per month and injured earnings of R16,000 -00 in 2021 and no further earnings since
January 2022. On uninjured earnings the actuary calculated loss of earnings at
R435,000 -00 per year until age 45, allowing fo r earnings inflation until retirement age
62.5 old. These earnings were not verified by Ms Moses, as confirmed by the
actuaries. The actuary calculation was based on proposed earnings. The actuary
applied a 5% contingency on past earnings and a 15% conting ency on future
earnings.
[99] The actuarial calculations are of no assistance to this court. The unverified
earnings cannot be accepted as a basis for computing loss of earnings. In addition,
Ms Moses has not provided the actuaries with an updated report. Ms Moses reported
on the Plaintiff’s employment as at 2021. Since then the Plaintiff was employed in
other jobs.
[100] Even if this court were inclined to granted judgment on the merits, in the
absence of updated expert reports and updated calculations, based on verified
information, this court would not have been satisfied with the evidence before it to
exercise its discretion to grant default judgment for future loss of earnings.
[101] In Tshuma v Road Accident Fund (2023/045963) [2024] ZAGPJHC 452 (8
May 2024), Weideman AJ held that it trite that the Plaintiff bears the onus to prove
how the injuries affected ear ning capacity. There is a difference between the
question whether the plaintiff has suffered an impairment of earning capacity and the
question whether the Plaintiff will in fact suffer a loss of income in the future.
[102] In Tshuma, the court referred to Twine and Another v Naidoo and Another
(38940/14) [2017] ZAGPJHC 288; [2018] 1All SA 297 (GJ), where the court held
that the admission of expert evidence should be guarded as it is open to abuse. The
court held that expert testimony should only be intr oduced if it is relevant and reliable.
A court is not bound by, nor obliged to accept the evidence of an expert witness. The
presiding officer must base his findings upon opinions properly brought forward and
based upon foundations which justified the form ation of the opinion. The court should
actively evaluate the evidence. The cogency of the evidence should be weighed "in
the contextual matrix of the case with which (the Court) is seized.
[103] This court is not satisfied that the interests of justice wil l be served by granting
default judgement on merits and quantum in respect of loss of future earnings. This
court is of the view that the inconsistencies identified in the Plaintiff’s testimony and
the expert reports require ventilation in a full trial.
Order
[104] In the result, the following order is granted:
104.1 The application for default judgment is refused.
104.2 The determination of general damages is postponed sine die
104.3 The determination of past and future medical expenses is postponed
sine die
104.3 There is no order as to costs.
F SUDER
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
For the Plaintiff: Advocate MD Sekwakweng
Instructed by: Mahlabegoane Attorneys, Pretoria
For Defendant: No appearance
Date of Hearing: 15 October 2024
Date of Judgment: 15 April 2025