SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT

APPEAL CASE NO: A40 / 2022
CASE NO: 2729 / 2018
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 06 June 2025
SIGNATURE
In the matter between:

R[...] M[...] OBO V[...] APPELLANT

And

ROAD ACCIDENT FUND RESPONDENT

_______________________ _______________________ ________ __________ _

J U D G M E N T
_____________________________________________________ ___________ _


RATSHIBVUMO DJP:

Delivered : This judgment was handed down electronically by circulation to the part ies'
representatives by email . The date and time for hand -down is deemed to be on 06
June 2025 at 10H00.

[1] Introduction .
This is an appeal against a judgment and order by Mashile J of this Division (court
a quo ), whereby he dismissed the Appellant’s claim against the Respondent. The
claim was for damages emanating from loss of earning capacity. In dismissing the
claim with costs, the court a quo held that “the minor child ( the claimant) did not
suffer a head injury of the magnitude described by the neurosurgeon and/or the
neurologist, alternatively, the injuries are not causally linked to the sequelae set out
in the reports.” The appeal is not opposed by the Respondent.

[2] Grounds of appeal .
The Appellant set out the grounds of appeal as follows :
2.1 The court a quo erred in describing the Ap pellant as the mother and
natural guardian of “14 -year-old V[...] M[...] .” Based on the incorrect
calculation of V[...]’s age, the court a quo held that the finding that he
is not as stupid as the experts would have the court believe, squares -
up with his scholastic performance since the accident. The court was
told that he failed once in Grade 4, and he is now in Grade 8 . The
scholastic performance record suggests that he did very well in Grade
4. The court should have found that V[...] was born on 06 July 2005
and was 16 years old at the time of the trial in August 2021 .
Accordingly , when V[...]’s age is correctly computed it means he
repeated a grade more than once .
2.2 The court a quo erred in holding that to decide the issues the court
must decide whether there was a connection between V[...]’s injuries
and the sequel ae as described by the various experts . The court
should have found that :
a) The Respondent initially pleaded that it had no knowledge of the
injuries sustained by V[...] and the sequelae thereof .
b) The Respondent had filed its own medic o-legal reports from
various experts . All the reports filed on behalf of the Respondent
confirmed the injuries sustained in the sequelae thereof .
c) The Respondent never disavowed any of its expert reports .
Consequently the injuries sustained and the sequelae thereof were
common cause between the parties .
d) The Respondent settled the general damages based on mild
concussive brain injury .
e) Accordingly by the time the general damages were resolved the
injuries and the sequelae thereof were common cause between
the parties .
2.3 The court a quo erred in holding that the Appellant had to demonstrate
on a balance of probabilities t hat V[...] was born without any
congenital cognitive deficits . The court a quo should have found that :
a) It is trite law that in civil actions the issues are defined by the
pleadings . Relevance is determined by the issues raised in the
pleadings and a party cannot be allowed to direct the attention of
the other party to one issue and then at the trial attempt to canvass
another .
b) The Respondent did not plead that V[...] was born with congenital
deficit .
c) None of the medical legal reports served by the parties suggested
that V[...] was born with congenital deficits .
d) Ms. Steyn t estified that V[...] reached normal milestone and he was
a normal child before the accident which reflected that he did not
have challenges .
e) Dr. Voster , a Forensic Psychiatrist , testified that if V[...] had
challenges pre-accident it was going to be noticeable as his
condition i s bad. According to Dr. Voster, in the absence of
contrary information , V[...]’s challenges are because of injuries
sustained in the accident in question .
f) There was no factual basis to hold or suspect that V[...] suffered
from pre-existing neurocognitive deficits .
g) There was no requirement for the Appellant to prove that V[...]
what's born without congenital deficits .
2.4 The court a quo erred in finding that there is no causal link between
his poor performance and the accident . The court should have
concluded that :
a) Dr Mhlongo, t he Respondent ’s Orthopedic Surgeon , found that
V[...] suffered lumbar spine soft tissue injury and has residual
backache. He also suffered a head injury and has residual
backaches and emotional problems .
b) The Appellant ’s Occupational Therapist reported that during the
occupational therapy session , V[...] show ed the limitations with
tasks requiring prolonged bending and dynamic postural position
due to pain on the lower back . This will highly impact negatively on
his ability to compete fairly in the open labour market for
occupations with such physical demands .
c) Dr. Eksteen , the Plastic Surgeon , also reported that V[...] may
struggle to obtain employment because of the scars on his head .
Therefore, the court a quo should have found that even without the
head injury V[...] still qualified to be compensated for loss of
earning capacity .
2.5 The court a quo erred in finding that if one removes the loss of
consciousness the only injuries that the minor sustained are the scalp
laceration facial and back abrasions, all of which cannot have led to
the cognitive challenges with which the minor now presents . The court
a quo should have found that loss of consciousness is not a
requirement for head injury . This is confirmed by the Respondent ’s
expert Dr. Chula who reported that his GCS was not recorded but he
was awake and responsive . Dr. Chula also found that V[...] sustained
mild head injury and multiple soft tissue injuries which resulted in
anxiety , memory impairment , poor school performance and post -
traumatic stress disorder . The sequelae of the injuries sustained
therefore was common cause between the parties .

[3] Before the court a quo .
Evidence led before the court a quo was well captured and summarised into 24
pages of the judgment by the court a quo .1 It shall therefore not be repeat ed here
unless it is necessary for purposes of this appeal. According to the amended
particulars of claim, the Appellant’s claim was for future loss of earnings that was

1 See the judgement by the court a quo on p. 509 of the appeal bundle.
estimated at R5 100 000.00.2 Initially, the Respondent’s approach as reflected in
the plea, was to deny that the accident occurred on the date as per the particulars
of claim .3 On the date of trial, t he court a quo was informed by the Appellant’s
counsel that merits and general damages were settled and that the trial was to
proceed only in respect of future loss of earnings. Although the Respondent had
acquired and discovered numerous experts’ reports, it chose not to appear before
the court a quo , meaning the trial proceeded against it by default.

[4] The Plaintiff led viva voce evidence of the following expert witnesses and also had
their reports handed in as evidence . Mr. Jose Teixeira, the Clinical Psychologist ,
Dr. Rodney Mudau, the Neurologist , Ms. Paula Steyn, the Educational
Psychologist, Dr. Merryll Voster, the Forensic Psychiatrist, Dr. Frans Segwapa, the
Neurosurgeon, Ms. Talifhani Ntsieni, the Industrial Psychologist, Dr. Cronje
Eksteen, the Plastic and Reconstructive Surgeon, Ms. Julie -Ann Valenti ni, the
Actuary and Ms. Ncumisa Ndzungu, the Occupational Therapist . The Plaintiff, R[...]
M[...] also gave evidence .

[5] The following evidence, which is relevant to the court a quo’s findings was led
uncontested. The claimant , on whose behalf the claim was launched by the
Appellant (the Plaintiff in the court a quo ), was born on 06 July 2005 and was in
Grade R at the time of the accident. His schooling progression was fine, and he
could write and draw. It was only after the accident that his mother started
receiving calls from the teachers who complained about his behaviour which
included fighting other learners.

[6] Dr. Mudau gave evidence to the effect that the child suffered head injuries. He
reached t his conclusion based on his clinical finding s and perusal of the hospital
records. He also observed a significant scar on the right parietal frontal area. In his
report,4 the following appears under the heading, Examination . 5x2 cm scar on the
right side of parietal frontal area. Deformities: Indentation of the skull on the right

2 See p. 357 of the appeal bundle. Although the figure reflected is R51 000 000.00, this appears to have
been a typo as the total amount claimed including R500 000.00 for future medical expenses and R1000
000.00 for general damages, is put at R6 600 000.00
3 See p. 15 of the appeal bundle.
4 See Dr. Mudau’s report on p. 161 of the appeal bundle.
side of parietal frontal area. Under Neurological Examination, the following was
noted: MSE was slow and had poor memory. Pain and suffering: The claimant
suffered acute pain from injuries sustained, currently suffers from chronic post
traumatic headaches.

[7] Dr. Mudau further noted the following under Mental and Physical impairment : From
the available information and current evaluation the claimant sustained a moderate
head injury as evidenced by significant wounds to the head and the sequelae of the
accident . The injury has resulted in moderate cognitive difficulties , change in
behavior , personality and post traumatic headaches . Routine MSE revealed poor
concentration and memory . The above has led to cognitive and social impairment
of moderate nature . He furth er noted that a ccording to the Neuropsychologist
report , the claimant ha d numerous gross neurocognitive deficits , forgetfulness and
has decreased concentration . He also had significant emotional disturbances . The
claimant was also unable to play soccer and to do heavy physical activities .

[8] Ms. Ndzungu testified that the claimant’s level of functioning lifestyle and
enjoyment of life has been affected by the accident in question . Since the accident ,
he has been suffering from pain on his lower back as well as headaches . Due to
pain he also struggles to participate in sport ing activities . This may negatively
impact on his lifestyle as he is likely to adopt a more sedentary lifestyle which will
have a detrimental impact on his general health outcomes . The accident left him
with a scar which seemed to affect his self-esteem and self -image . Due to pain and
physical limitation s, loss of potential future earnings must be considered in terms of
his future career pathing as he will not be able to cope with physical strenuous
occupation ; his preparation for occupational training and ear ning potential is also
affected .

[9] It was further noted in her report that d uring the O ccupational Therapy session , the
claimant showed limitations with tasks requiring prolonged bending and dynamic
postural position due to pain on the lower back . This will highly impact negatively
on his ability to compete fairly in the open labour market for occupations with such
physical demands . It is a fact that due to his physical challenges he will always be
disadvantaged in most aspects of life compared with other people of his age ,
gender and qualifications who are without physical limitation s. His job opt ions will
be curtailed due to his physical injuries .

[10] She concluded therefore that the claimant was precluded from competing for
medium and heavy occupations as well as duties which require prolonged bending
and dynamic postural positions . Cognitive evaluation revealed that he has reduced
ability and is easily distractible with perceptual challenges . He also suffers from
recurr ing headaches . He is expected to have a restricted level of education that will
restrict his academic aspirations .

[11] Of some importance is the joint minutes between the parties’ Educational
Psychologist completed on 14 February 2020 , before the tender on settlement o f
merits was made . The said Educational Psychologists are Ms. P Steyn who was
hired by the Appellan t and Mr. Z Kubheka, who was hired by the Respondent . After
noting that Dr. Segwapa voiced that the claimant sustained a mild concussive head
injury, as opposed to Dr. Mudau’s view that the head injury was rather moderate,
the two experts wrote the following as points in which they agreed:
11.1 The child was born in a milieu impeded environment but was never in any
serious accident or had any illness .
11.2 After consultation and deliberation , the two agree d that the child probably
had the potential to complete a great 12 level of education (NQF level 4 ) but
for the accident .
11.3 The child will benefit from medication , psychotherapy as well as educational
intervention . He will benefit from receiving career counselling after passing
grade 9 . Given his poor scholastic skills it is recommended that he be
enrolled at TVET college where he will be able to complete a national
certificate vocational Level 3/4. If he stays in the current scholastic
environment he might fail only once in the senior phase but will still leave
school with a Grade 10 or Grade 11 certificate but with little skills.

[12] Approach by the court a quo .
As pointed out already , the Respondent presented no evidence and did not
challenge the evidence presented by the Appellant either by countering it through
expert reports or by way of cross examination. The court a quo reject ed
uncontested expert s’ evidence as being unhelpful . It also identifi ed issues to be
determined, to include a question on whether the Appellant “proved on balance of
probabilities that the claimant was not born with any congenital cognitive deficits .”
This approach appear s to be in contrast with the joint minutes by the Educational
Psychologists referred to above.

[13] In disregarding the experts’ opinion, t he court a quo relied on the judgment of
Twine and Another v Naidoo and Another5 where Vally J quoted with approval the
phrase from R v Turner6 where it was said,
“If on the proven facts a judge or jury can form their own conclusions without
help, then the opinion of an expert is unnecessary. In such a case if it is
given dressed up in scientific jargon it may make judgment more difficult.
The fact that an expert witness has impressive scientific qualifications does
not by that fact alone make his opinion on matters of human nature and
behaviour with the limits of normality any more helpful than that of the jurors
themselves; but there is a danger that they may think it does.”

[14] The court a quo further quoted from Twine 7with approval where Vally J held,
“In certain cases of neurological, psychological and psychiatric evidence the
expert is dependent on the honesty of the person who is the subject of the
assessment for their evidence to be of any probative value to the court. This
problem has manifested itself many times and the approach of the courts is
succinctly captured in the following dictum, which while dealing with the
evidence of an expert in psychiatry is no less applicable to an expert in the
sciences of neurology or psychology: “The weight attached to the testimony
of the psychiatric expert witness is inextricably linked to the reliability of the
subject in question. Where the subject is discredited the evidence of the
expert witness who had relied on what he was told by the subject would be
of no value.”8


5 [2018] 1 All SA 297 (GJ) at paragraph 18 .
6 [1975] 1 All ER 70 at 74 D-E.
7 Supra .
8 S v Mthethwa (CC03/2014) [2017] ZAWCHC 28 at paragraph 98.
[15] The court a quo ’s approach suggests that the expert evidence had to be rejected
because it was based on discredited evidence by the Appellant. Presuming that the
Appellant was a discredited witness, this approach flies in the f ace of the decision
by the Supreme Court of Appeal (the SCA) in Bee v Road Accident Fund9where
the court at paragraph 64 onwards held:
“64. This raises the question as to the effect of an agreement recorded by
experts in a joint minute. The appellant’s counsel referred us to the judgment
of Sutherland J in Thomas v BD Sarens (Pty) Ltd10. The learned judge said
that where certain facts are agreed between the parties in civil litigation, the
court is bound by such agreement, even if it is sceptical about those facts
(para 9). Where the parties engage experts who investigate the facts, and
where those experts meet and agree upon those facts, a litigant may not
repudiate the agreement ‘unless it does so clearly and, at the very latest, at
the outset of the trial’ (para 11). In the absence of a timeous repudiation, the
facts agreed by the experts enjoy the same status as facts which are common
cause on the pleadings or facts agreed in a pre -trial conference (para 12).
Where the experts reach agreement on a matter of opinion, the litigants are
likewise not at liberty to repudiate the agreement. The trial court is not bound
to adopt the opinion but the circumstances in which it would not do so are
likely to be rare (para 13). Sutherland J’s exposition has been approved in
several subsequent cases including in a decision of the full court of the
Gauteng Division, Pretoria, in Malema v The Road Accident Fund [2017]
ZAGPHC 275 para 92.
65. In my view, we should in general endorse Sutherland J’s approach,
subject to the qualifications which follow. A fundamental feature of case
management, here and abroad, is that litigants are required to reach
agreement on as many matters as possible so as to limit the issues to be
tried. Where the matters in question fall within the realm of the experts rather
than lay witnesses, it is entirely appropriate to insist that experts in like
disciplines meet and sign joint minutes. Effective case management would be
undermined if there were an unconstrained liberty to depart from agreements

9 2018 (4) SA 366 (SCA) paras 64 -66. See also NJ v MEC of Health Eastern Cape [2023] 4 All SA 72
(ECB) (20 July 2023) at paragraph 84.
10 [2012] ZAGPJHC 161 .
reached during the course of pre -trial procedures, including those reached by
the litigants’ respective experts. There would be no incentive for parties and
experts to agree matters because, despite such agreement, a litigant would
have to prepare as if all matters were in issue. In the present case the litigants
agreed, in their pre -trial minute of 14 March 2014, that the purpose of the
meeting of the experts was to identify areas of common ground and to identify
those issues which called for resolution.
66. Facts and opinions on which the litigants’ experts agree are not quite the
same as admissions by or agreements between the litigants themselves
(whether directly or, more commonly, through their legal representatives)
because a witness is not an agent of the litigant who engages him or her.
Expert witnesses nevertheless stand on a different footing from other
witnesses.

[16] Moreover, there are no factual basis for concluding that the Appellant was not an
honest witness or why she had to prove that the claimant had no pre -existing
congenital cognitive deficits. These issues were not pleaded or raised by the
Respondent during trial. As Milne J held in Kali v Incorporated General Insurances
LTD11, the purpose of pleading is to clarify the issues between the parties and a
pleader cannot be allowed to direct the attention of the other party to one issue and
then, at the trial, attempt to canvass another. The SCA amplified this principle in
Imprefed (PTY) LTD v Nationa Transport Commission12 when it said “[T]his
fundamental principle is similarly stressed in Odgers' Principles of Pleading and
Practice in Civil Actions in the High Court of Justice 22nd Ed at 113: 'The object of
pleading is to ascertain definitely what is the question at issue between the parties;
and this object can only be attained when each party states his case with
precision.'

[17] The reason parties must be held to their pleadings is to avoid trial by ambush. In
casu , the Appellant must have been surprised to hear of issues she had to prove
only at the stage of judgment, as these were not pleaded . Had these been pleaded

11 1976 (2) SA 179 (D) at 182A. See also Nyandeni v Natal Motor Industries Ltd ., 1974 (2) SA 274 (D) at
p. 279B .
12 (3) SA 94 (AD); at 107D -E.
properly, she could have presented evidence enough to prove her claim, to the
satisfaction of the trial court. Courts should be cautious of implying a defence that
is not pleaded or canvassed by the litigant s during the trial. Failure to guard against
this resulted in the Appellant attempt ing to present evidence , now on appeal, of the
reports compiled by the experts commissioned by the Respondent , to prove that
unbeknown to the court a quo , the issues it determined were already common
cause between the parties . Presenting such evidence at this stage of proceedings
cannot not be allowed. It suffices to state that when the defendant chooses not to
defend the action, it does so at its own peril.

[18] Matters involving loss of income earning capacity by a person who is yet to enter
the labour market industry are complex and not easy to determine. They cannot be
classified as those identified in Twine13 when it was held that ‘if on the proven facts
the court can form its own conclusions without help, then the opinion of an expert
can be discarded. ’ The Appellant must have been mindful of the complex nature of
the claim when she called no less than nine experts to prove the case against the
Respondent. It follows therefore that in rejecting the expert s’ opinion, the principles
laid down in Bee14 were disregarded, in view of the joint minutes. I also find that ,
the Appellant’s claim was dismissed on issues that were not pleaded. Fo r these
reasons, th is court is entitled to interfere with the court a quo ’s finding s.

[19] Furthermore, the totality of the reports presented during the trial, proved that owing
to injuries sustained in a car accident, uncontested evidence is to the effect that the
claimant would no longer be able to compete in open labour market as an equal
contender. This is due to fact that he suffered head injuries which impacted
negatively on his scholastic performance. Even without the head injuries, experts
opined that the claimant would not be abled to perform heavy duty responsibilities
including those requiring bending for extended periods . This piece of evidence is
also undisputed. This Court is satisfied that the Appellant proved on balance of
probabilities that the claimant suffered future loss of earning capacity.


13 Supra .
14 Supra .
[20] What remains is the determination of the quantum and the application of the
necessary contingencies. As Fisher J observed, t he evaluation of the amount to be
awarded for the loss does not involve proof on a balance of probabilities. It is a
matter of estimation. Where a court is dealing with damages which are dependent
upon uncertain future events - which is generally the case in claims for loss of
earning capacity – the plaintiff does not have to provide proof on a balance of
probabilities (by contrast with questions of causation) and is entitled to rely on the
court’s assessment of how he should be compensated for his loss .15

[21] After taking into consideration all the reports presented to her, Ms. Valentini
prepared the following postulations in respect of the claimant’s future loss of
earnings. She put the unin jured earnings without any contingencies at R6 820 000
and the injured earnings at R422 600, leaving the application of the contingencies
to the court .

[22] It is trite that contingencies are at the discretion of the court having taken into
consideration what may and may not happen in the life the claimant . As the
exercise of determining the loss of earnings is in essence speculative in nature and
devoid of any certainty, contingencies are applied by the Court to align the actuarial
calculation with the circumstances of the case and life as it unfolds in each
particular case . The Appellate Division (as it then was called) held as follows i n
Southern Insurance Association Ltd v Bailey NO:16
“Where the method of actuarial compensation is adopted in assessing
damages for loss of earning capacity, it does not mean that the trial judge is
‘tied down by inexorable actuarial calculations.’ He has ‘a large discretion to
award what he considers right’. One of the elements in exercising that
discretion is the making of a discount for ’contingencies’ or differently put the
‘vicissitudes of life’. These include such matters as the possibility that the
plaintiff may in the result have less than a ‘normal’ expectation of life; and
that he may experience periods of unemployment by reason of incapacity
due to illness or accident, or to labour unrest or general economic

15 See MS v RAF (10133/2018) [2019] ZA GPJHC at paragraph 36.
16 Southern Insurance Association v Bailey 1984 (1) SA 98 (A) at 116G to117A .
conditions. The amount of any discount may vary, depending upon the
circumstances of the case. ”

[23] Some of the aspects taken into consideration for purposes of contingencies in this
case include the high unemployment rate in the country in which the claimant
would have been exposed to with or without the injuries , the fact that he has been
compensate d in respect of general damages and from that, he would be able to
improve himself in terms of scholastic performance as recommended in the joint
minutes prepared by the Educational Psychologists. That gives him a potential to
recover so much lost ground in r espect of the possible loss of earning capacity.

[24] Having considered all these, I am of the view that contingencies of 55% in respect
of the uninjured earnings and 15% in respect of injured earnings would take care of
all the necessary speculations in the postulations. That would bring the figure to
R6 820 000, less 55% = R 3 069 000, minus R422 600, less 15% which is
R359 210. The sum thereof is R3 069 000 – R359 210 totalling R2 709 790.00 .

[25] The Order:
We therefore make the following order:
23.1 The appeal is upheld.
23.2 The order of the court a quo is set aside and replaced with the following :
23.2.1 The Defendant is ordered to pay R2 709 790.00 as compensation
for loss of future earning capacity .
23.2.2 The Defendant is ordered to pay the Plaintiff’s costs on party and
party scale.



TV RATSHIBVUMO
DEPUTY JUDGE PRESIDENT


I agree.

MR MOLELEKI
ACTING JUDGE OF THE HIGH COURT


I agree.

HF FOURIE
ACTING JUDGE OF THE HIGH COURT


FOR THE APPELLANT : ADV. ST SESHOKA
INSTRUCTED BY: M MASHIGO ATTORNEYS
C/O MABUNDA ATTORNEYS
MBOMBELA

FOR THE RESPONDENT : NO APPEARANCE
DATE JUDGMENT WAS : 02 MAY 2025
RESERVED
DATE OF JUDGMENT: 06 JUNE 2025