SAFLII Note: C ertain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 2022-2 0083
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
03 June 2025
K. La M Manamela
In the matter between:
GOMO, MARLVEN Plaintiff
and
ROAD ACCIDENT FUND Defendant
DATE OF JUDGMENT : This judgment is issued by the Judge whose name is
reflected herein and is submitted electronically to the parties/their legal
representatives by email. The judgment is further uploaded to the electronic file of this matter on Caselines by the Judge’s secretary. The date of the judgment is
deemed to be 03 June 2025.
JUDGMENT
KHASHANE MANAMELA , AJ
2
Introduction
[1] The plaintiff, M r Malvern Gomo , born on 25 June 1991, was injured in a motor
vehicle accident which occurred around 23h00 on 26 February 2020. He met the
accident whilst being ferried as a passenger in a motor vehicle driven by a certain Mr
Thabang Hamilton Ngwenya (‘the first insured vehicle’) at or near the intersection of
Honey Street and Joe Slovo Drive, Berea, Johannesburg. The first insured vehicle -
in which the plaintiff was a passenger - collided with another motor vehicle with
registration details C[…] (‘the second insured vehicle’) whose drive r has not been
identified .
[2] The plaintiff sustained injuries as follows due to the accident: (a) fracture of
the cervical spine (i.e. C1, 2, 3 and 7); (b) fracture of the left shoulder scapula; (c) fracture of the right midshaft humerus; (d) sacrococcygeal fracture; (e) degloving of the left buttock; (f) head injury, and (g) blunt chest trauma with rib fractures and
multiple chest contusion. He, consequently, suffered damages , due to the injuries
and their sequelae, as set out below .
[3] On 9 June 2022 , the plaintiff caused summons to be issued against the
defendant, the R oad Accident Fund (‘the RAF’) , in terms of the R oad Accident Fund
Act 56 of 1996 (‘the RAF Act’) for his compensation for the damages he suffered due
to the accident . The plaintiff blamed the negligent driving of the insured driver
(without specify ing which of the driver s of the two insured vehicles he blamed ) as the
sole cause of the accident and, consequently, for his injuries and their sequelae. His
claim against the RAF initially comprised the following heads of damages : (a) past
and future medical and hospital expenses ; (b) past and future loss of earnings and/or
earning capacity , and (c) general damages . The RAF defended the matter , pleadings
were exchanged and, ultimately, the matter was set down for trial .
[4] The m atter came before me for a trial on 19 and 2 0 February 2025. Mr F Saint
appeared for the plaintiff and M s N Moyo appeared for the RAF. The trial proceeded
on issues relating to quantum , specifically in relat ion to loss of earnings and/or
earning capacity, and future medical and hospital expenses ( with the RAF to be
directed to furnish an undertaking for future treatment , if established) . By the date of
3
hearing, the issues relating to the l iability of the RAF to compensate the plaintiff for
his damages had been settled in favour of the p laintiff with the RAF accepting 100%
liability for the plaintiff ’s proven and/or agreed damages . The same applied to the
head of claim for the plaintiff’s general damages. I reserved this judgment at the
conclusion of the trial on the second day after listening to oral submissions by
counsel .
Brief background
[5] For a proper context to the matter , a brief narration of the issues in the
background of the matter is necessary. This will be on the basis of the facts which
are common cause between the parties , or not disputed.
[6] As stated above, t he plaintiff was born o n 25 June 1991 and was injured in
the motor vehicle accident on 26 February 2020. He, therefore, was about 2 9 years
old at the time of the accident and about 34 years of age at the time of trial . The
plaintiff when admitted at the hospital had Glasgow Coma Scale or GCS reading of
14/15. The plaintiff is a Zimbabwean national and, also, went to school there. He is
said to have passed A levels, but no further details are provided. As would appear below, the plaintiff did not have valid papers or authority to be in South Africa.
[7] At the date of the accident the plaintiff w as employed at Amici Pizzeria in
Waterfall, Midrand, Johannesburg environ. The plaintiff was hospitalised for one
month following the accident. He, reportedly, was absent from work for six months
following the accident, which would have been until around August 2020. He did not
receive any income during this period of absence. According to the plaintiff, in
November 2020 he resigned from Amici Pizzeria due to factors relating to the accident. This is disputed by the RAF and, thus, would receive further attention below. But it is undisputed that the pizza outlet closed in 2021, after the plaintiff’s
departure. The plaintiff was subsequently unemployed until July 2021. In August
2021, he obtained employment as a w aiter at Jack Rose Hotel in Rosebank. He was
still employed at the same workplace at the date of trial.
Plaintiff’s immigration status
4
General
[8] The plaintiff , as already indicated, is a Zimbabwean national . A significant
portion of the hearing was focus sed on whether the plaintiff was legally in the country
at the time of the accident. The corollary of this is whether the plaintiff had a valid
visa or permit to be and work in South Africa. Documents placed before the Court
suggested that the plaintiff had no valid papers to either work or stay in this country. This was also established when the plaintiff testified at the trial, especially during his cross- examination by counsel for the RAF .
Plaintiff’s testimony
[9] The plaintiff testified (during the examination in chief by his counsel, Mr Saint )
- through interpretation by Mr Peter Phiri, a sworn interpreter f rom Shona to English
and vice versa - including as follows . He c onfirmed his employment - at the time of
the accident – as a waiter at Amici Pizzeria in W aterfall , Midrand. He had started
working there in 2018. He earned between R3 500 and R4 000 basic salary per
month. He also received between R 1 000 to R 1 500 per week in the form of tips or
gratuities as a waiter. He concluded a contract of employment with this employer .
1
The contract of employment was admitted into the record as Exhibit 1.
[10] The plaintiff also confirmed the salary or pay slips on record, from end of April
2018 onwards.
2 These document s reflect a monthly salary of R 4 000. The plaintiff
testified that, in addition to the monthly salary, he received gratuities or tips by way of
cash. The salary or pay slips, generally, is/are not in dispute, save in minor respects,
as would be further dealt with, below . What is disputed, as stated above, is whether
the plaintiff was entitled to be employed in the first place due to his immigration status. The plaintiff told the Court that after Amici Pizzeria he got employment at
Jack Rose Hotel in Rosebank in 2021. The latter employer pays his salary in cash.
The pay slips (in respect of Amici Pizzeria) were admitted, collectively, as Exhibit 2
and the affidavit by the plaintiff deposed to at a police station as Exhibit 3 . The
1 Plaintiff’s contract of employment at Amici Pizzeria, CaseLines 010 -5 to 010 -9.
2 Plaintiff’s pay slips from 30 April 2018 to 31 March 2020 for Amici Pizzeria, CaseLines 10 -16 to
010-27.
5
plaintiff, when examined by his counsel, was referred to another or confirmatory
affidavit he deposed to a week or so before the trial with regard to the accident .3 The
affidavit dealt with issues relating to the merits and quantum of the damages
allegedly suffered by the plaintiff. Of importance to the issue currently under discussion is that the affidavit stated that the plaintiff was a holder of passport number EN231948. The affidavit was admitted into the record as E xhibit 4.
[11] When cross- examined by Ms N Moyo f or the RAF, the plaintiff ’s evidence
included the following. The plaintiff was referred to the affidavit he deposed to on 1 February 2022 using Identity Number 6[ …] KAS regarding his allegedly closed bank
account (‘ the bank account affidavit’).
4 Further, the plaintiff was referred to the
affidavit he deposed to when confirming his residential address (‘the residential
address affidavit’).5 He acknowledged using his passport number (i.e. E[…]) in the
residential address affidavit. The bank account affidavit and the residential address
affidavit were admitted as E xhibits 5 and 6, respectively . The plaintiff, also, was
referred to his employment contract with Amici Pizzeria (i.e. Exhibit 1).6 In the latter
document the plaintiff had identified himself in terms of an asylum number P […]. The
plaintiff confirmed that his passport expir ed on 7 October 20247 and that he does not
have a new passport. He could not produce a copy o r original ID issued to him by
Zimbabwean authorities . He stated that he had only one passport. When asked by
counsel the reason for using three different documents, the plaintiff simply said that
on the day of the bank account affidavit he just decided to use his Zimbabwean ID
Number 6[ …]. On the contract of employment (i.e. E xhibit 1) he decided to use the
asylum number . He then mentioned that , actually , it was the employer who decided
to use the asylum number on the latter document . It would be later disputed by the
plaintiff, when re -examined by his counsel, that he misled anybody with regard to his
identification or passport. He had only one passport.
[12] Further in cross- examination by Ms Moyo f or the RAF , the plaintiff whilst
confirm ing that he earned between R 3 500 and R 4 000 per month and, thus, a
3 Plaintiff’s confirmatory affidavit , dated 7 February 2025, CaseLines 019- 1 to 019 -3.
4 Plaintiff’s bank account affidavit, CaseLines 010- 3.
5 Plaintiff’s residential address affidavit, CaseLines 010 -4.
6 Par [9] above.
7 Plaintiff’s passport, CaseLines 022- 26.
6
variable income, was referred to another affidavit he deposed to on 7 February 2022
(‘the R4 000 per month affidavit’) .8 Counse l for the RAF asked the plaintiff why in ‘the
R4 000 per month affidavit ’ the plaintiff did not state that his salary varied, but only
stated his monthly income at R4 000. The plaintiff instead of answering the question
merely insisted that h is salary varied between R3 500 and R4 000 per month. He
appeared to me to be avoiding the question or to concede a clear fact. Counsel ,
then, put it to him that the affidavit is incorrect to which t he plaintiff responded that
they just wrote R 4 000, but I mentioned to them that it is R3 500 to R4 000 per
month. I understood the reference to ‘them’ to be the police as the handwritten
affidavit (‘the R4 000 per month affidavit’) was deposed to at the Roodepoort police
station.
[13] Also the cross- examination of the plaintiff by Ms Moyo for the RAF included
the follow ing. The plaintiff confirmed that his last day of work at Amici Pizzeria was
around November 2020. It was during the COVID pandemic , but the business was in
operation. He also confirmed that he was seen by a number of medical experts for
the injuries from the accident . When asked why the neurosurgeon said that he left
work due to COVID and not laid off, the plaintiff stated that he left during the COVID
era, but his reason for leaving was due to ill health.
Counsel’s submissions
[14] The issue of the immigration status of the plaintiff and its implications to his
damages ’ claim was also dealt with by way of oral submissions by counsel. The
submissions or argument focussed on the documents referred to above and the plaintiff’s testimony before the Court.
[15] I will start with the submissions by Ms Moy o on behalf of the RAF, as the RAF
made the allegations that the plaintiff was an illegal immigrant and, thus, not entitled
to compensation at all or as applicable to claimants with valid authority to s ojourn in
the country. Her submissions included the following. She argued that the plaintiff ’s
passport did not include a work or visitation permit. This speaks to the Immigration
8 Plaintiff’s ‘ R4 000 per month affidavit’, CaseLines 010 -33.
7
Act 13 of 2002, she argued. The plaintiff, also, had not applied for a work permit.
Counsel referred to the Full Court decision in Mudawo and Others v Minister of
Transport and Another (‘Mudawo’)9 where, among others, the RAF Management
Directive dated 21 June 2022 titled ‘Critical Validations to Confirm the Identity of
South African Citizens and Claims Lodged by Foreigners’ (‘the Directive’) was reviewed and set aside with the RAF held liable for costs .
10 The Directive was set
aside to the extent that : (a) it required proof of identity by foreign claimants,
accompanied by documentary proof that the claimant was legally in South Africa
when the material accident occurred; (b) it required foreign claimants to provide
copies of their passports reflecting stamp at a point of entry and when they are
claiming from outside of South Africa, stamp at point of exit (including proof of an
approved visa for the RAF to register such claimants’ claims , if they are still in the
country). The decision in Mudawo is said to be pending appeal at the Supreme Court
of Appeal (‘the SCA’), with the leave of the SCA,11 after this Division refused leave to
appeal, with costs . Counsel submitted that because t here is a pending appeal it
would be a better approach to postpone the trial in the matter - with costs in the
course - to await the SCA’s decision in the appeal. Counsel submitted that this would
accord with section 1812 of the Superior Courts Act 10 of 2013. Counsel , further ,
relied on the decision in Olufemi v Road Accident Fund (‘Olufemi ’)13 in support of the
RAF’s case that the plaintiff has no claim (or has a limited claim) for loss of earnings and/or earning capacity , due to his status as an illegal foreigner. Ms Moyo cited
further cases in reply.
[16] Mr Saint , appearing for the plaintiff, made submissions which included the
following on the immigration issue. He criticised reliance by the RAF on Mudawo, as
9 Mudawo and Others v Minister of Transport and Another (011795/2022) [2024] ZAGPPHC 258
(26 March 2024) ), coram : Davis J, et Mnyovu et Kok AJJ.
10 Mudawo [51].
11 Charumbira v Road Accident Fund (371/2024) [2025] ZAFSHC 122 (24 April 2025)
(‘Charumbira’) , per Full Bench of the Free State Division, coram : Mbhele AJP et Opperman J
[2], [4] where it is stated that the SCA granted the RAF leave to appeal to it on 20 September
2024.
12 Section 18 of the Superior Courts Act provides for suspension of decision s pending appeal and
reads as follows in the material part : ‘(1) Subject to subsections (2) and (3), and unless the
court under exceptional circumstances orders otherwise, the operation and execution of a
decision which is the subject of an application for leave to appeal or of an appeal, is suspended
pending the decision of the application or appeal.’
13 Olufemi v Road Accident Fund (50498/2021) [2024] ZAGPJHC 1227 (15 November 2024), per
Weideman, AJ.
8
the decision does not have the effect of binding other parties and is only binding
between the parties involved therein. He also relied on or referred to section 18 of
the Superior Courts Act to advance the aforesaid submission. Overall, one cannot be
expected to sit back while awaiting the outcome of the SCA process, counsel’s
submission concluded.
Conclusion
[17] My views expressed during the hearing remain unaffected. I am still of the
view that the pending appeal in Mudawo has no bearing on this matter. This is so
even on a reading of the provisions of section 18 of the S uperior Courts Act, which
do not give a pending appeal a binding effect beyond the parties involved in the
particular matter. I am also aware of the decision of a full bench of the Free State Division in Charumbira in which the Full Bench found the facts in Mudawo to be ‘ on
all fours ’ with th e matter it was seized with and, consequently, that it was ‘ more
practical ’ to await the SCA appeal decision in Mudawo which it opined ‘will bring
legal certainty ’,
14 before ordering that the matter be heard after the SCA appeal .15 To
avoid doubt , I am not saying here that the fact that the plaintiff is an illegal foreigner
in this country has no bearing on the award to be made in this matter. It will be a factor worthy of consideration, as would become clearer below. Plaintiff’s case and submissions (on the damages’ claim)
General
[18] The plaintiff underwent medico- legal examinations by six experts retained on
his behalf. They , subsequently , filed expert reports with regard to the injuries
sustained by the plaintiff and their sequelae.
[19] At the commencement of the trial, counsel for the plaintiff moved an
application in terms of Rule 38(2) of the U niform Rules to proceed on the basis of the
medic o-legal reports filed on behalf of the plaintiff. The contents of the reports are
confirmed under oath by the experts. The application also extended to the affidavit (s)
14 Charumbira [20].
15 Charumbira [22].
9
deposed to by the plaintiff. There was no objection by the RAF to the application
and, c onsequently, it was granted, save with regard to the plaintiff's affidavit (s).
Counsel for the RAF insisted that the plaintiff be put on the stand regarding some of
the issues , particularly regarding his immigration status , as already dealt with above.
The RAF did not file any reports or tender any evidence by any witness. The defence
of the matter was solely based on the submissions made by Ms Moyo, appearing for
the RAF.
Plaintiff’s expert evidence and submissions
[20] The plaintiff’s injuries, further from what appeared in the summons recorded
above,
16 are stated in the medical reports as follows: (a) head injury; (b) c ervical
spine fractures (C1, 2, 3 and C7); (c) lumbar spine soft tissue injuries; (d) left scapula
injury and right scapula injury; (e) right humerus fracture; (f) blunt chest trauma; (g)
sacrococcygeal fracture, and (h) left buttock deglo ving. The relevant opinions
expressed by the plaintiff ’s experts regarding the plaintiff’s injuries and sequelae are
discussed, next.
Orthopaedic Surgeon
[21] On 12 July 2021 , the plaintiff was examined by Dr G Read, an orthopaedic
surgeon. He, subsequently, compiled a report on his assessment and opinions filed
on 14 February 2025.17 He had access to hospital or medical records, as well as the
RAF form completed by Dr D Latsky .
[22] Dr Read noted that the plaintiff complains of and/or suffer s from, among
others, the following due to his injuries: (a) nose bleeds, headaches and
forgetfulness ; (b) occasional mid- to lower cervical spine pain and lower back pain,
when involved in activit ies and during cold weather ; (c) stiffness in his neck and
back , as well as , muscle spasm in the paraspinals and trapezii ; (d) difficulty sitting or
standing in one position for prolonged periods of time and some difficulty finding a
comfortable position in which to lie ; (e) occasional right scapula region pain; ( f)
16 Par [2] above.
17 CaseLines 004 -1 to 004-10.
10
symptoms suggestive of a post fracture syndrome of his right humerus ; (g)
occasional pain emanating from the fracture site and fixatives ; (h) some difficulty
lifting heavy items with his right hand, and (i) occasional right anterior chest wall
pain. In addition to the aforesaid the plaintiff exhibits scars related to this accident ,
which would have been more relevant when determining issues relating to general
damages , which issues have become settled.
[23] According to Dr Read , the plaintiff may require in future conservative
treatment for orthopaedic symptoms related to the accident , which may consist of
medication and consultations with a biokineticist and/or physiotherapist. Also, the
internal fixatives can be surgically removed from the plaintiff’s right humerus . Dr
Read opined that , the plaintiff remains moderately disabled due to symptoms
emanating from cervical spine, right shoulder region, right humerus, chest wall and
lower back. Dr Read confirmed his opinions in a letter dated 22 January 2025 and
mentioned that he does not think that the plaintiff requires re- assessment.
18
Plastic Surgeon
[24] On 20 October 2021, Prof L.A. Chait, a plastic surgeon, assessed the plaintiff
and compiled a report on the same date.19 The opinions of this expert, including that:
(a) the various scars on parts of the plaintiff’s body may require treatment in future
for the scars which could improve a number of the scars ; (b) the procedure would
require repetition on some areas for optimum benefit , and (c) the plaintiff would
require sunblock over the residual facial scars for the remainder of his life , were
more relevant to the issue of general damages . However, they remain relevant to the
issue of undertaking required from the RAF in terms of section 17(4)(a) of the RAF
Act for the plaintiff’s proven future medical, hospital and related e xpenses.
Neurosurgeon
18 CaseLines 004- 184.
19 CaseLines 004 -23 to 004-26.
11
[25] On 25 October 2021 , the plaintiff was assessed by Dr. T.S. Mpotoane, a
neurosurgeon. The report of this expert witness was filed in October 2022.20 He had
access to the reports and other medical records filed before. According to the
neurosurgeon, the plaintiff sustained, among others, a head injury; multiple cervical
spine fractures , and sacrococcygeal fracture. The expert also recorded the outcome
diagnosis of the injuries including that the plaintiff suffered severe traumatic brain
injury with post -traumatic neuropsychological disfunction and chronic headache. The
neurosurgeon indicate d that the plaintiff has a Whole Person Impairment ( ‘WPI’) of
41%. On 6 February 2025, Dr Mpotoane furnished a letter in terms of which he
opined that the plaintiff ‘ has reached his period of maximum medical improvement
and as such no further clinical improvement nor deterioration will be experienced ’
and, therefore, he abides by his report dated 25 October 2021, as there is no need to
re-assess the plaintiff .21
Clinical & Neuropsychologist
[26] On 26 October 2021 , the plaintiff was assessed by Ms A Cramer, a clinical
and neuropsychologist. The clinical and neuropsychologist compiled a report dated 9
November 2021.
22 She also had access to the reports of the other expert witnesses,
referred to above. After conducting the relevant tests on the plaintiff , she opined ,
among others, that from a neuropsychological perspective, t he plaintiff would have
difficulty in any manner of work as a result of factors , which include the following: (a)
ongoing experience of pain and discomfort could hamper his ability to perform work
requir ing extended periods of being on his feet during the day , such as being a
barman; (b) inconsistent attention and slowing of his psychomotor and mental
processing speeds ; (c) n arrative recall difficulties ; (d) o ngoing emotional distress
related to the accident, and (e) s elf-consciousness and distress arising from his
scarring.
Occupational Therapist
20 CaseLines 004 -36 to 004-64.
21 CaseLines 004- 186.
22 CaseLines 004 -74 to 004-97.
12
[27] On 13 July 2022 , the plaintiff was assessed by an occupational therapist, Ms
L. Jaquire. The report of this expert witness is dated 30 August 2021 .23 She had
access to the reports of other experts and medical records relating to the plaintiff .
She noted, among others, the following : (a) t he plaintiff was away from work for
about seven months following the accident ; (b) when he returned to work he was re-
allocated to work only as a barman; (c) he , reportedly, could not cope with the work
requirements as a barman and he resigned after a month, and (d) has remained
unemployed since. It is by now clear that the latter statement is incorrect. The
occupational therapist also noted that the plaintiff complain ed of daily headaches ;
back pain; struggl ing to stand for prolonged periods ; body fatigues after standing for
longer than two hours ; chest pain while walking; difficulty lifting heavy objects ;
weakness in the right arm ; nose bleeds in the evenings , and travel -related anxiety.
[28] Further, the occupational therapist reports that the plaintiff was forgetful or
had memory difficulties regarding recipes for mixing drinks and orders placed, when
he work ed as a barman post-accident . Consequently , he was only allowed to do light
work by serving drinks only and exempted from serving food. He was also allowed to
take sitting breaks between serving customers . The r esults from physical test were
indicative of slight restriction in terms of overhead work and standing with the plaintiff
display ing current restriction to low range medium work on overhead level. This
expert draws the following conclusions regarding the plaintiff : (a) he meets most of
the demands made on him as a waiter and barman, alt hough he fails to meet the
prolonged standing required of a barman and waiter on a full time basis ; (b) he fails
to meet the coordination demanded of a barman in his pre- accident position; (c) the
right shoulder injury will probably affect execution of tasks with the required
precision, as a barman, and (d) his work accuracy would improve when executing
slower task, although this would probably negatively affect the plaintiff ’s productivity.
Therefore, this expert opined that , the plaintiff’s failure to return to his pre- accident
position as a barman appears justified as a result of the injuries sustained to his spine and his right upper limb.
24
23 CaseLines 004 -100 to 004-121.
24 Occupational therapist’s report at par 31, CaseLines 004-114 to 004- 115.
13
[29] Also, the occupational therapist referred to the medical treatment
recommended by the orthopaedic surgeon which would restore the right and
dominant arm’s strength sufficiently to allow quick and coordinated movement for the
plaintiff to return to work as a barman again in the future. According to this expert,
the plaintiff would probably retain his capacity to perform work of a medium nature
on overhead level in future and which will allow him to work as a waiter, yet he will
probably never retain his suitability to work as a barman even following successful
physical treatment.25 This expert , subsequently, compiled an addendum report in
which she, among others, expressed her agreement with the neurosurgeon, Dr
Mpotoane, that the plaintiff would find it difficult to gain any employment for the
remainder of his life.26
Industrial Psychologist
[30] On 13 July 2021 , the plaintiff was assessed by Ms M. Hough, an industrial
psychologist , who subsequently compiled and furnished a report dated 8 September
2021 .
27 She also had access to the reports of the other expert witnesses, referred to
above.
[31] The industrial psychologis t’s opinions included the following for purposes of
quantif ication of the plaintiff ’s claim:
[31.1] regarding career and earnings perspective:
From a career and earnings perspective , Dr Read opined that following
further treatment, Mr Gomo’s symptoms related to this accident should
improve and should not preclude him from working or have any significant
long- term effect on his income or employment prospects. Dr Read indicated
that he will require a total of eight to twelve weeks to attend to the treatment
recommended and that his age at retirement, if he works again in future,
should not be affected by the orthopaedic injuries sustained in this accident
(p.g. 9) .28
25 Occupational therapist’s report at par 31, CaseLines 004-115.
26 Occupational therapist’s addendum report , dated 13 January 2022, at par 4 , CaseLines 004-
129.
27 CaseLines 004-131 to 004 -169.
28 Industrial psychologist’s report, par 9.7, CaseLines 004-145 to 004 -146.
14
[31.2] in respect of the plaintiff’s pas t loss of earnings :
7.1.2 In November 2020 he resigned from working at at Amici Pizzeria as he
was feeling weak (refer to his affidavit). He then remained unemployed until
July 2021. He should be compensated for this total past loss of income
incurred, based on his likely pre- accident income.
7.1.3 In August 2021 Mr Gomo obtained employment as a Waiter at Jack
Rose Hotel in Rosebank. He currently remains employed in this position at a
basic salary of R3 500 per month/ R42 000 per annum. Factual proof defers
regarding his earnings in- between from 2021 to 2024. He should be
compensated for this partial loss of income incurred based on his likely pre -
accident income.
29
[31.3] regarding l ikely future earnings or f uture loss of earnings are as
follows:
7.2.1 Writer notes that following his involvement in this accident, Mr Gomo
obtained employment as a Waiter at Jack Rose Hotel in Rosebank in August
2021. He currently remains employed in this position. However, Writer
considers his current employer’s comments regarding his current work ability
as well as the poor reviews he has received from customers. Mr Coetzee
indicated that he is “very difficult to give instructions too” and that he “persist
with him” as “his chances of finding employment elsewhere due to his
disability is very, very low”. Mr Coetzee further indicated that he keeps Mr
Gomo employed as “ Being disabled myself I understand his plight yet persist
with him despite the negative implications to the business.”
7.2.2 Based on the evidence provided it is therefore clear that Mr Gomo
suffers with
significant cognitive and behavioural issues at work, which has had, and
continues to have a negative impact on the business which employs him. He
only remains employed through sympathetic means.
29 Industrial psychologist second addendum report, dated 12 February 2025, CaseLines 004-168.
15
7.2.3 Writer accepts that Mr Gomo’s neuropsychological and neurological
presentation (due to the severe traumatic brain injury suffered in this
accident),
render him a markedly vulnerable employee, as evidenced afore.
7.2.4 Writer is ultimately of the opinion that Mr Gomo will most likely lose his
current employment upon full and final settlement of this third- party claim,
either through his resignation or through termination of employment.
7.2.5 At such time of losing his employment, taking expert opinion into
consideration, in combination with his neurocognitive presentation, Writer is of
the opinion that Mr Gomo will never again be able to secure any gainful
employment in future and he will suffer a total future loss of earnings for which
he should be compensated until the expected retirement age 65 years, based
on the postulated pre- accident earnings scenario as stipulated in par. 4 of this
2nd
addendum report .
30
Actuarial calculation
[32] Munro Forensic Actuaries furnished revised estimations of the plaintiff’s past
and future loss of earnings , as at 1 March 2025, in a report (revision) dated 13
February 2025.
31 The calculations are furnished by way of two scenarios, with
scenario 1 being on the basis that the plaintiff would have remained a barman/waiter and scenario 2 being on the basis that he would have become a manager. In both scenarios the plaintiff is projected to have retired at the age of 65. Mr Saint submitted
that the plaintiff was not pursuing the pre-morbid manager scenario (i.e. scenario 2) .
[33] The calculations are also on the basis that the plaintiff’s monthly salary was in
the amount of R4 000 and tips or gratuities in the amount of R1 000 per month. The
total past loss is in the amount of R395 500 and future loss in the amount of
30 Industrial psychologist second addendum report , CaseLines 004-168 to 004-169.
31 Actuarial report , CaseLines 004-213 to 004- 218.
16
R2 597 800 and, therefore, a total loss of R2 993 300 for the waiter/barman
scenario. These figures are without contingency deductions and the cap in terms of
the RAF Amendment Act has no effect.
[34] Submissions by Mr Saint for the plaintiff on these aspects included the
following . He suggested – on the basis of the i ndustrial psychologist ’s findings that a
25% contingency deduction be applied to the plaintiff ’s uninjured future earnings,
and a 15% contingency deduction be applied to the plaintiff ’s past loss of earnings.
The result of the aforesaid is a total loss of earnings in the amount of R2 284 525, he
submitted. Counsel emphasised that according to medical opinion or the evidence of
the expert witnesses the plaintiff will never secure employment . But counsel was
alive to the following facts, that: (a) the plaintiff currently has a job and, if lost, he
may secure a job as a car wash or guard, and (b) there was lack of collateral
information. He suggested that these, conventionally, be addressed by way of
contingency deductions .
Submissions on behalf of the RAF (and the plaintiff’s reply) (on the damages’
claim)
[35] Ms Moyo for the RAF, further, made the following submissions regarding the
plaintiff's claim for loss of earnings and/or earning capacity, in addition to disputing his claim based on his lack of a valid or legal immigration status.
[36] Counsel pointed out that the plaintiff had no other witnesses to testify in
advancement of his case. He is an illegal immigrant in South Africa. He has different
identity numbers and he was also untruthful about his asylum status. Further , his
earnings were stated as R 3 000 to R6 000 per month.
32 Counsel, further, argued that
there was discrepancy on how the plaintiff’s employment with Amici Pizzeria terminated: did he resign or did the place close down due to the COVID pandemic?
33
The latter differs with what the plaintiff stated when he testified before the Court. He
had also told some of the expert s, who examined him , that he resigned. Counsel
32 Neurosurgeon’s report at par 10.1, CaseLines 004 -49.
33 Neurosurgeon’s report at par 10.3, CaseLines 004 -49.
17
submitted that this has a bearing on the plaintiff’s past loss and, thus, contingency
deductions ought to be effected on the basis that the employer clos ed down.
[37] Ms Moyo also submitted that the radiological X-rays for the orthopaedic
injuries show normal results for the lumbar spine; shoulder ; chest and ribs.34 The
right humerus is reported as a healed fracture.35 The plaintiff’s WPI is at 3%. It is
also an opinion of the orthopaedic surgeon that the plaintiff is not precluded by the
injuries or their sequelae from working or having any significant long term effect of
his income and employment prospects .36
[38] Counsel also submitted that the Court should consider a red flag the lack of
collateral information for the new job. Further, counsel reiterated that the plaintiff is
not entitled to compensation when the alleged loss is in respect of earnings derived
from him working in the country without a work permit or even authority to be here. Reliance in this regard was placed on the decision of this Division in Olufemi . In
Olufemi the learned judge Weideman AJ, among others, stated the following, quoted
in the material part :
The plaintiff is a foreigner. It is logical that the evaluation and consideration of
the plaintiff's claim cannot be done on the same basis as if he is a South
Africa n citizen. There are three documents that an industrial psychologist
must address when considering the claim of a foreigner, especially a driver:
1 Passport: Is it valid? Has it expired? What is the process and requirements
for renewing it?
2 Visa: Does the plaintiff have a work visa to legally work in South Africa ? If
so, was the work engaged in, in accordance with the visa requirements? If no
visa, why not? Is it possible to secure a visa to work? If so, what are the
requirements and does the plaintiff meet those requirements?
3 Driver's licence: For which categories? Is it valid in South Africa ? Does it
expire and if so, what are the requirements to renew it?
34 Orthopaedic surgeon’s report at par 5, CaseLines 004 -6 to 004 -7.
35 Orthopaedic surgeon’s report at par 5, CaseLines 004 -7.
36 Orthopaedic surgeon’s report at par 10c, CaseLines 004- 199.
18
When, as in the case here, the industrial psychologist is of the opinion
that the plaintiff is 100 percent unemployable than the next question is
whether the plaintiff is entitled to remain in South Africa and if so on what
legal basis?
If the evidence suggests that the plaintiff will be obliged to return to his
country of origin then the future loss of income if any, has to be determined in
his own country and in accordance with the prevailing labour market in the
country of origin. …
In casu there is no evidence before Court of what the plaintiff's
actual net income was, before the accident. The payslips provided gives
guidance as to what his gross income would have been but there is no
evidence before Court as to what his net income would have been.
The claim for past loss of earnings is therefore dismissed.
There is no evidence before Court whether the plaintiff would
have been able to remain in South Africa indefinitely and to legally work
here. His future loss of income must therefore be determined based on
what he could have earned over the remainder of his working life in his
country of origin, engaging in such economic pursuits as may be
available to him there. The claim will be in the currency of his country of
origin and based on the case law the date of conversion from South
Africa Rand would be the date of payment.
There is no evidence before Court that would enable the Court to
quantify any future impairment of earning capacity and the claim for future
loss of earnings is also dismissed.37
[39] Ms Moyo construed the essence of the above quoted dicta from Olufemi to
mean that the learned judge nonsuited the plaintiff due to his status as an illegal
37 Olufemi pp 5-8, CaseLines 025- 5 to 025 -8.
19
foreigner . Counsel referred to the part where the judge lamented the lack of
evidence and alluded to the fact that compensation ha s to be in foreign currency and
in consideration of the claimant’s possible earnings in his country of origin. But these
sentiments , with respect, would equally apply to a foreigner who meet a motor
vehicle accident whilst legitimately in the country. Overall, I consider Olufemi to have
been disposed of on the basis of lack of evidence to establish the material part of the claim and not on issues to do with immigration. For this would have rendered it to be contrary to Mudawo, the decision of the Full Court of this Division, discussed above.
[40] Regarding possible contingency deductions, counsel’s submissions included
the following. Counsel suggested that the Court apply 50% contingency deduction ,
as a starting point , due to the uncertainty regarding the plaintiff’s future employ ment
status. There should also be consideration of the fact that the plaintiff’s monthly income is improperly fixed at R 4 000 plus additional income in the form of gratuities.
Also, the income from J ack Rose Hotel is unv erified. The actual calculation has to be
reworked or re -calculated as the plaintiff can still work in the future. Therefore, the
pre-morbid and post -morbid income should be the same before the Court effect a
50% contingency deduction on the figures postulated for the loss . This is with regard
to the plaintiff’s future loss of earnings. Counsel submits that no pas t loss should be
awarded as the loss is COVID related and not due to the injuries sustained in the
accident .
[41] Counsel repeated the submissions regarding s ection 42 of the I mmigration
Act and urged the Court to declare that sections 19 and 25 of the I mmigration Act
are applicable. Counsel also criticised that despite the reported memory and
recollection challenges said to be experienced by the plaintiff, when testifying before the Court, the plaintiff was able to recall everything going back to 2020. He was able to answer questions and could also follow instructions when testifying.
[42] Mr Saint’s r eply included the following. The issues regarding liability in this
matter have been amicably resolved or s ettled between the parties and, thus, there
is no room for illegality . The settlement agreement is uncontested. Counsel also
dismissed the assertions as to the c redibility of the plaintiff. He submitted that the
plaintiff now earns less due to the accident . He was equally dismissive of Ms Moyo
20
assessment of the plaintiff appear ing well and devoid of the deficits attributed to him
by the expert witnesses .
Evidence and submissions (discussed)
[43] Under this part, I consider the evidence to establish the injuries sustained by
the plaintiff and their sequelae, but I am unable to substantially rely on Ms Moyo’s
somewhat profound challenge. I also accept that the injuries and/or sequelae have a
bearing on the plaintiff’s performance or his ability to work as a barman or waitron.
But, I agree with Ms Moyo that, the plaintiff was able to return to his work, although
according to him he quit due to his injuries, despite having informed the experts that the company closed down due to COVID related challenges. He, subsequently, secured employment although he is reportedly only sympathetically employed. Therefore, I searched in vain for a basis or evidence to the effect that the plaintiff
would be unemployed in the future.
[44] Another critical aspect to discuss is whether the plaintiff’s illegal immigrant
status precludes him from compensation for his injuries in terms of the RAF Act.
Counsel for the RAF says this is so, not in terms of the Directive set aside by the Full
Court of this Division, in Mudawo, dealt with above,
38 but on the provisions of the
Immigration Act. In support of her submissions, she cited section 19, dealing with
work visa issuable by the Director -General of Home Affairs to qualifying foreigner s;
section 25 dealing with rights, privileges, duties and obligations of the holder of a
permanent residence permit equivalent to those of a citizen, save for the exceptions
specified in terms of the law, and section 42 proscribing aiding and abetting illegal
foreigners on a ‘ matter, conduct or transaction which violates such foreigner’s
status ’, which includes ‘entering into an agreement with him or her for the conduct of
any business or the carrying on of any profession or occupation ’.39 I appreciate the
novelty of this argument, but it has no bearing on the loss of earnings and/or earning capacity of the plaintiff. The Immigration Act appears to carry internal enforcement
and sanctions mechanisms which, no doubt, are applicable to those found in breach. The authorities are clear that an illegal foreigner qualifies as a claimant in terms of
38 Pars [ 15]-[16] above.
39 Section 42(1)(b)(iii) of the Immigration Act.
21
the RAF Act and the absence of a work permit or visa does not disqualify such
claimant .40 For the determination, primarily, is about the capacity to earn an income,
which always extends into a person’s future and, thus, cannot be limited to a point in
one’s life which may reveal blemishes as to adherence to the law.
[45] But the absence of a work permit or visa is not irrelevant to the determination
of a claimant’s loss, particularly loss of earnings or earning capacity. Relevant considerations in this regard include the following: (a) the nature of the job or work
position to be used to calculate the loss; (b) whether such position require any formal qualifications, training or experience for a person to perform; (d) whether the claimant had the necessary qualifications, training or experience; (e) whether the claimant would qualify for a work visa or permit to obtain or apply for such position or job. Some of these considerations comport with those stated in Olufemi , referred to
above.
41 These considerations are conjunctive, but only illustrative and not
exhaustive. When a claimant who is a foreign national fails to meet the requirements
imbedded in these considerations , in my view, this would suggest that he or she is
not entitled to earn a living, perform the work in question and therefore earnings from
such work can only be considered a guide or of illustrative value by the Court . But
the material figures may be utilised in the calculation of the claimant’s loss with the
aidful use of contingency deductions by the Court. It does not make any difference
the fact that the RAF, as in this case, has admitted liability to compensate the claimant. The discretion of the Court to determine fair and equitable compensation
remains intact.
[46] The plaintiff is said to have obtained A levels in 2014 through Uimbai High ,
probably in Zimbabwe. He unsuccessfully attempted a diploma in accounting in 2015.
42 As indicated he worked from 2018 to 2020 at Amici Pizzeria as a barman. It
is stated by the occupational therapist that the plaintiff ‘started by filling the fridges, checking the stock levels and wiped the glasses’ and progressed through other
40 HB Klopper RAF Practitioners Guide (LexisNexis October 2024) at A- 22, A -49 and C -5, and the
cases cited there, including Rumbidzai v Road Accident Fund (83879/14) [2015] ZAGPPHC
1071 (2 September 2015) [21], per M Madima,AJ . The latter was cited with approval in Mudawo
[42].
41 Par [38] above.
42 Occupational therapist report par 3, CaseLines 004 -102.
22
chores to the position of barman.43 The occupational therapist only indicated the
‘physical requirements of a barman’ and did not seem to suggest existence of other
requirements, beyond those and the on- job training which the plaintiff appears to
have underwent . There is no evidence that the plaintiff qualified for a work visa or
permit and as to whether his asylum status , if any, referred to in his employment
contract , allowed him to work in South Africa. Therefore, the actuarial calculations
placed before the Court will be utilised as a basic guide for the Court to arrive at a
fair award for the plaintiff’s loss of earnings.
Conclusion and costs
[47] In terms of the revised actuarial calculation, the following is postulated to be
the plaintiff’s loss of earnings in the position of a barman/waiter (i.e. scenario 1): (a)
R557 300 (uninjured earnings) less R161 800 (injured earnings) equalling R395 500
past loss of earnings , and (b) R2 597 800 (uninjured earnings) less R Nil (injured
earnings) equalling R2 597 800 future loss of earnings . These figures are calculated
using the monthly salary of R4 000 and gratuities of R1 000 for the loss after the
date of the accident until August 2021, which is at R3 500 per month (but in 2025
terms).44 Without applying contingencies the plaintiff’s total loss of earnings is
estimated to be in the amount of R2 993 300.
[48] To recap, Mr Saint for the plaintiff urged the Court to apply a 15% contingency
deduction to both figures in respect of the past loss and 25% to the figure for pre-
morbid earnings to equate to a total loss of R2 758 230 (albeit that it is reflected in
the heads as R2 284 525).
45 And, Ms Moyo for the RAF urged the Court to award n o
past loss , as according to her the business had closed down for reasons to do with
the COVID pandemic and not the accident. For the future loss, she submitted that
figures for the pre- morbid and post -morbid loss should be the same and with 50%
contingency applied to both. Her reasons for this approach appear above.
43 Occupational therapist report par 3, CaseLines 004 -102.
44 Actuarial calculations (revised) dated 13 February 2025 par 4.2, CaseLines 004 -214.
45 Plaintiff’s heads of argument par 7, CaseLines 020- 27 to 020- 28.
23
[49] In determining what would constitute an appropriate award the Court has to
primarily consider the injuries sustained by the plaintiff and their s equelae, including
the prognosis by the experts as to their amelioration or deterioration. This being loss
of earnings the factors that primarily require consideration are the effect of the
injuries sustained in the accident and s equelae on the ability of the claimant to
achieve (in terms of earnings) his pre- morbid capacity and/or aspirations .
[50] In this matter, the Court deals with a claim concerning a middle- aged claimant
of about 34 years of age at the time of trial . I have accepted above that given his
circumstances he could have continued to be a waiter or barman without the impact of the injuries. And the plaintiff has continued to do so after the accident despite his reported constraints emanating from the injuries sustained in the accident. Evidence before the Court is to the effect that the plaintiff may have returned to his pre -morbid
employment only to quit due to inability to cope due to his injuries and, also, that his employer may have closed down due to the pandemic. There is no need to
pronounce on the latter discrepancy. There are other issues relating to the plaintiff’s
earnings, including what I have stated above regarding the absence of a work permit. Therefore, I will effect a 30% contingency deduction to both figures for pre-
morbid and post -morbid income to arrive at a figure of R276 850 for past loss of
earnings. And for the pre- morbid future income, projected at R2 597 700, I will effect
a 50% contingency deduction to arrive at a figure of R 1 298 900 for future loss of
earnings . Therefore, the total award for the plaintiff’s loss of earnings or earning
capacity is in the amount of R 1 575 750. I consider this amount fair and equitable
considering the facts and evidence in this matter.
[51] I will also direct the RAF to furnish an undertaking in terms of section 17(4)(a)
of the RAF Act for the plaintiff’s proven future medical, hospital and related
expenses. Costs will follow th e result at party and party scale, with counsel’s fees at
scale B.
Order
[52] In the premises, I grant an order in t he following terms , that:
24
1. the Defendant shall pay the Plaintiff an amount of
R1 575 750 (one million five hundred and seventy five thousand seven hundred and
fifty rand ) in respect of the loss of earnings suffered as a result of the motor vehicle
collision that occurred on the 26th of February 2020;
2. the amount as mentioned in paragraph 1 hereof is
payable on or before 180 days from date of this order, in to the Trust account of the
Plaintiff’s attorneys of record with the following details:
KRUGER & POTTINGER ATTORNEYS
ABSA – TRUST ACCOUNT – CLEARWATER BRANCH
ACC. NR: 4[…]
BRANCH CODE: 6 […]
REF: T […]
3. The Defendant shall furnish the Plaintiff with an undertaking as envisaged in
section 17(4)(a) of the Road Accident Fund Act 56 of 1996, for 100% of the costs of
the future accommodation of the Plaintiff in a hospital or nursing home or treatment
of or rendering of a service, or supplying of goods to the Plaintiff arising out of the
injuries sustained by the Plaintiff in the motor vehicle collision which occurred on the
above- mentioned date, after such costs have been incurred and upon proof thereof ;
4. the Defendant shall pay the Plaintiff’s taxed or agreed party and party costs
on the High Court Scale, which costs shall include the costs attendant upon the
obtaining of all the Medico- Legal Reports, all Medico- Legal Addendum reports, all
Serious Injury Assessment Reports, Translator Fees, Preparation Fees, and
Reservation Fees (if any), as allowed by the taxing master ;
5. the Defendant shall pay the Plaintiff’s taxed or agreed party and party costs
on the High Court Scale, particularly Scale B, which costs shall include full day fees, preparation fees, reservation fees and the attendance of counsel for the 18
th of
February 2025, the 19th of February 2025, and the 20th of February 2025, and as
allowed by the court in terms of Rule 69 of the Uniform Rules of Court as amended in the Government Gazette No 50272 on the 8
th of March 2024;
6. in the event that costs are not agreed between the Plaintiff and the Defendant :
6.1 the Plaintiff shall serve the notice of taxation on the Defendant or the
Defendant’s attorneys of record; and
6.2 the Plaintiff shall allow the Defendant one- hundred and eighty (180) days to
make payment of the taxed costs.
25
Khashane La M. Manamela
Acting Judge of the High Court
Date s of Hearing: 19-20 February 2025
Date of Judgment : 03 June 2025
Appearances:
For the P laintiff : Mr F Saint
Instructed by : Kruger & Pottinger Attorneys
For the Defendant : Ms Nomqhele Moyo
Defendant’s Attorneys : State Attorney