IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA

CASE NO: 4671/2023






In the matter between:

BHEKIFA MAZWI NKOSI PLAINTIFF

and

ROAD ACCIDENT FUND
LINK NO: 4739807 DEFENDANT


JUDGMENT


Mangena AJ
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised: Yes/No

04 June 2025
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SIGNATURE DATE


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[1] The plaintiff, Mr Bhekifa Mazwi Nkosi, was involved in a near fatal motor vehicle
accident on 26 January 2019. As a result of the accident, he sustained severe injuries
that rendered him completely quadriplegic. He cannot use all his four limbs and is bound
to a wheelchair. He requires assistance for all his daily living activities including use of a
wheelchair, eating, bathing, turning on the bed when he is sleeping as well as brushing
his teeth.

[2] At the time of the accident, he was 22 years old and employed as a General Worker
for a waste collecting company contracted to Mbombela Local Municipality. His monthly
salary determined from the bank statements was R3 500.00. It is unclear on the evidence
whether his employment was temporary (i.e of a limited duration) or permanent.

[3] Following the accident, Mr Nkosi instituted legal proceedings against the
defendant, the Road Accident Fund , for payment of an amount of R14 000 000.00
(fourteen million four hundred thousand rands ). The breakdown for the total amount
claimed is as follows:
3.1 Past hospital and medical expenses- R100 000.00.
3.2 Estimated future medical and hospital expenses -R500 000.00.
3.3 Estimated loss of earnings, earning capacity and employability- R10 000 000.00.
3.4 General damages for pain and suffering- R3 500 000.00

[4] It can be accepted that there was an error in calculation as the total amount per
breakdown is R14 100 000.00 (fourteen million one hundred thousand rands).

[5] The Road Accident Fund defended the proceedings and disputed the quantum in
relation to the loss of earnings. To prove his entitlement to compensation for loss of
earnings, the plaintiff testified that the accident had ruined his life to the point where he
has lost all confidence and feels belittled. Prior to the accident he could do everything by
himself and the quality of his life was good. He could go to the stadium to watch soccer,

himself and the quality of his life was good. He could go to the stadium to watch soccer,
play soccer with friends and generally do things by himself. He can no l onger be able to
do these things and has lost friends.

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[6] Regarding employment, he testified that he was employed at Mbombela trucking
section for a period of one year, from July 2018 to January 2019, when he got involved in
the accident. His salary was R3 500.00 per month, but it also depended on extra -hours.
He did not have an employment contract though he remembers signing some documents
which were later taken back. He testified that he was working for a service provider
contracted to the municipality though he cannot recall the name of the company. The only
thing he remembers is the name of the person he thinks was the owner of the compa ny,
namely, Mr Frans Sifunda. He does not have a copy of any of the documents he signed
with his employer as his family threw away some of his documents when he was in the
hospital. He also changed his residence and some of the documents may have gotten
lost during that period.

[7] On his education, he testified that he completed matric in 2017 and never repeated
a grade. He does not recall how old he was when he started schooling. He performed
well in matric though he achieved a diploma entry. His aspiration was to become a teacher
and he had applied to either Mpumalanga University or Tshwane University of
Technology for admission. He cannot recall the programme he wanted to study for. He
could not pursue the application as the institution wanted him to send money that he did
not have and shortly thereafter he was involved in an accident. He is unable to apply for
further studies because he cannot hold a pen, take a bath and generally do anything.
Even if he would have wanted to do online courses, it will not be possible as he cannot
type either with his phone or computer. He still has the aspiration to study but lacks the
requisite confidence as he is unable to sit for prolonged periods. He was however unable
to produce the acceptance letter from any of the institution he had applied to, nor could
he tell the court which programme he was intending to pursue in February 2019 before

he tell the court which programme he was intending to pursue in February 2019 before
he was involved in the accident.

[8] Mrs Mmaserome Patience Dipale testified in support of Mr Nkosi. She is an
educational psychologist with more than 10 years of experience and currently a P hD
candidate. She had prepared a report filed in terms of the rules after she consulted with

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Mr Nkosi. She testified that Mr Nkosi never repeated a grade and out of the interaction
she had with him, she gained the impression that he was determined to succeed in life
and was a very ambitious young man. Though he wanted to proceed with his studies, he
could not do so due to his socio -economic status. Her conclusions were that, had the
accident not occurred, he would h ave studied for further qualifications and obtained a
diploma.

[9] She was cross-examined on the report that she prepared, and she floundered on
critical issues. Nowhere in her report was it stated that Mr Nkosi indicated to her that he
wanted to further his studies. When asked on this discrepancy, she said it was an
oversight. In her report she had stated that Mr Nkosi’s Grade 11 report indicated that he
performed below average and was promoted. She also testified that she did not obtain
reports for other grades in her preparation of the psycho -legal assessment. Her repor t
stated that pre-accident Mr Nkosi worked as a general worker for 3 years when evidence
on record showed that he worked for less than a year. She could also not give coherent
answers regarding the employment status and school performance of Mr Nkosi. On the
totality of her evidence, she was not a credible witness and failed to provide facts to
support her conclusions. Overall , there were material contradictions between her oral
evidence and the report she had compiled in so far as the educational performance of Mr
Nkosi was concerned. Her wrong or unsupported conclusions led to incorrect postulations
by other experts who based their findings on the information contained in her report.

[10] The last witness to testify for the plaintiff was Ms Bathobile Prosperity Nkambule,
an industrial psychologist. She consulted with Mr Nkosi who informed her that he wanted
to be a teacher and was passionate about it. She made her postulations based on the
report from other experts. She admitted that it was an error on her part that she did not

report from other experts. She admitted that it was an error on her part that she did not
do postulations on the assumption that Mr Nkosi would have remained a general worker.
She did not obtain collateral information from the employer and her postulations were
based on Mr Nkosi attaining an NQF level 5 or 7 qualification and ultimately qualifying as
a teacher. She did not have in her possession the school reports of Mr Nkosi though she
opined that had Mr Nkosi not been involved in the accident he would have worked as a

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general worker for 3-4 years and saved money to register for a teaching course where he
would have progressed up to a head of department in the teaching field , depending on
the availability of the post.

[11] The defendant did not call any witnesses, and Ms Ndubani, who appeared for the
defendant, has urged me to dismiss the plaintiff’s claim for loss of earnings with costs.
She argued that the plaintiff’s experts have not provided reasoned findings based on facts
and therefore their conclusions should be rejected. The experts failed to obtain school
reports, employer’s certificate as well as information relating to applications made to
institutions of higher learning to support their conclusions that Mr Nkosi w as ambitious
and determined to pursue further studies.

[12] Ms Mahlalela , who appeared for the plaintiff , prayed for an order awarding
damages in the amount of R6 545 403.00 to the plaintiff based on the industrial
psychologist’s report. In her submissions, she relied on the expert reports filed and
admitted into evidence. She aligned herself with the findings which postulate that had the
accident not happened, Mr Nkosi would have in all probabilities obtained an NQF level 5
qualification because he was an average performer who reached his milestones at the
correct time. She urged me to consider the oral evide nce of Ms Dipale who stated that
the educational landscape has changed significantly to provide much needed support to
children from families with poor economic backgrounds. What is becoming clearer
nowadays is that the government has put in place supporting mechanisms in the form of
National Student Financial Aid Scheme (NSFAS) and other financial structures to support
students with potential. Mr Nkosi with his matric qualification could in all probabilities have
taken advantage of the opportunities and pursued his studies if it was not for the accident.

[13] At the centre of the dispute in this case is the postulations based on the findings

[13] At the centre of the dispute in this case is the postulations based on the findings
of the experts. Their reports were submitted to court in terms of Rule 36(9)(a) and (b) of

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the Uniform Rules of Court. In Coopers (South Africa) Pty Ltd v Deutsche Gesellschaft
Fur Schadlingsbekampfung MBH,1 the court said:

“… an expert’s opinion represents his reasoned conclusion based on certain facts
or data, which are either common cause, or established by his own evidence or
that of some other competent witness. Except possibly where it is not controverted,
an expert’s bald statement of his opinion is not of any real assistance. Proper
evaluation of the opinion can only be undertaken if the process of reasoning which
led to the conclusion, including the premises from which the reasoning proceeds,
are disclosed by the expert.”

[14] In PriceWaterhouseCoopers Inc and Others v National Potato Co -operative Ltd
and Another,2 the following guidance was given regarding the weight to be given on the
expert opinion. The court said:

“[326] ‘Before any weight can be given to an expert’s opinion, the facts upon which
the opinion is based must be found to exist’.
[327] ‘As long as there is some admissible evidence on which the expert’s testimony
is based it cannot be ignored, but it follows that the more an expert relies on facts
not in evidence, the weight given to his opinion will diminish’.
[328] An opinion based on facts not in evidence has no value for the court.”

[15] Based on the above approach, I proceed to consider whether, any reliance can be
placed on the opinion s of the two expert witnesses called upon by the plaintiff, namely,
Ms Dipale and Ms Nkambule, the educational psychologist and the industrial psychologist
respectively.


1 Coopers (South Africa) Pty Ltd v Deutsche Gesellschaft Fur Schadling sbekampfung MBH 1976 (3) SA
352 (A).
2 PriceWaterhouseCoopers Inc and Others v National Potato Co-operative Ltd and Another [2015] 2 All SA
403 (SCA) para 99 , the Supreme Court of Appeal quoted this passage from Widdrington (Estate of) c.
Wightman, 2011 QCCS 1788 (CanLII).

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[16] It is clear on the evidence that Ms Nkambule based her post morbid postulations
on the findings of the report prepared by Ms Dipale. Both of them worked on the
assumptions that Mr Nkosi would have obtained a n NQF level 5 qualification based on
his scholastic performance. They could not provide the basis upon which they arrived at
that conclusion given the fact that they did not obtain copies of the school reports for
Mr Nkosi. None of them made an effort to obtain them from either the school or family, let
alone conduct interviews with his former teachers who could have provided some insights
as to his academic potential.

[17] The evidence on record contained in Ms Dipale’s report is to the effect that
Mr Nkosi was an average performer in Grade 11 and his term 4 report recorded “Below
average but promoted”. During cross-examination, Ms Dipale was incoherent in her
answers and unable to explain the inconsistencies between the information in her written
report and her oral testimony. She generally appeared unprepared and did not strike me
as a person who was diligent in the preparation of her report. Her findings were at odds
with the established facts obtained from Mr Nkosi with regard to his work, salary and
schooling.

[18] Ms Nkambule, as earlier indicated, worked on the reports of other experts. She
was able to obtain the correct information from Mr Nkosi regarding his salary but has not
been able to establish independently what his employment status was at the time of the
accident. She did not establish if he was a contract worker or a permanent employee nor
did she obtain an employment certificate. She was content with the information contained
in the reports of the other experts including Ms Dipale. Consequently , she also did not
obtain school reports to satisfy herself as to the academic performance of Mr Nkosi.

[19] Regarding the postulations made, in particular as to why she did not include the

[19] Regarding the postulations made, in particular as to why she did not include the
assertion that Mr Nkosi would have remained a general worker until retirement, her
answer was that it was a mistake. She was however not able to explain this mistake and
how it was committed. It follows therefore that to the extent that she worked on the
information contained in M Dipale’s report, her conclusions are wrong, poorly reasoned

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and not supported by objective facts. On the authority of PriceWaterhouseCoopers cited
above, her opinion which is based on facts not in evidence has no value for the court.

[20] What came out clear from the evidence of both Ms Dipale and Ms Nkambule is
that they considered themselves agents of Mr Nkosi and their duty was owed to him and
not the court. The approach they took both in court and during the preparation of their
reports was wrong. Law reports tell us and legal practitioners calling expert witnesses to
testify on behalf of their clients would do well to remember what Diemont JA said in Stock
v Stock:3 “An expert … must be made to understand that he is there to assist the court. If
he is to be helpful he must be neutral. … The evidence of such a witness is of little value
where he, or she, is partisan and consistently asserts the cause of the party who calls
him”. Majiedt JA quoted this with approval in Jacobs and Another v Transnet Ltd t/a
Metrorail and Another , 4 where he amplified this duty with these profound words:
“Objectivity is the central prerequisite for his or her opinions”.

[21] The evidence of the two expert witnesses lacks both reasoning and objectivity, as
it is not derived from facts established by the evidence tendered. Their evidence cannot
be accepted.

[22] As pointed out earlier, the defendant did not testify and the onus was on the plaintiff
to prove his entitlement to the damages suffered. In my view , the plaintiff has not been
able to adduce sufficient evidence to justify an order awarding him damages for loss of
future earnings. This is so because the industrial psychologist failed to make postulations
on pre-morbid earnings which to me appears to have been the most sensible thing to do
given the paucity of information upon which it could be concluded tha t Mr Nkosi could
have obtained an NQF level 5 or 7 qualification.

[23] In the circumstances , I am not inclined to dismiss the claim but rather order an
absolution from the instance.

absolution from the instance.

3 Stock v Stock 1981 (3) SA 1280 (A) at 1281G-H.
4 Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139 (SCA) para 15.

[24] There shall be no order as to costs.
MI MANGENA
ACT ING JUDG E O F TH E HIGH COURT
MPUMALANGA D IV IS ION, MBOMB ELA
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