SAFLII Note: Certain 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
(NORTHERN CAPE DIVISION , KIMBERLEY )

CASE NO.: 1901 /2021
Date heard: 20-03-2024
Date delivered: 13-06-2025
Reportable: Yes/No
Circulate to Judges: Yes/No
Circulate to Magistrates: Yes/No

In the matter between:

FRIEDA LOUW Plaintiff

and

ROAD ACCIDENT FUND Defendant


CORAM: WILLIAMS J
JUDGMENT

WILLIAMS J:

1. The plaintiff, Mrs Frieda Louw , suffered debilitating injuries when a taxi in which
she was a passenger was involved in an accident on 4 August 2019. In this
action against the Road Accident Fund, the only head of damages to be
determined is that of general damages. The Fund has conceded the merits
100% in favour of the plaintiff. It has also given an undertaking in terms of s17
(4)(a) of the Road Accident Fund Act 56 of 1996 and has conceded the plaintiff’s
loss of income in the amount of R 998 779, 00.

2. Only the plaintiff and one of her expert witnesses, the occupational therapist Ms
Letitia Delport , testified in the trial. The further experts for the plaintiff had
deposed to affidavits and these were received in evidence in terms of Uniform
Rule 38(2). The Fund called no witnesses.

3. The nature and extent of the injuries suffered by the plaintiff in the accident are
not in dispute. According to the report of Dr J F Ziervogel, the orthopaedic
surgeon , the plaintiff sustained a moderate traumatic brain injury, an injury to her
thoracic spine, a fracture of the right humerus, a chest injury (she had fractured
ribs on both sides ) and a fracture of the right ankle.

4. The plaintiff was unconscious for a week after the accident. During this time
several operations were performed on her back, chest , right arm and right ankle.
The x -rays of her thoracic spine reveals signs of posterior instrumentation with
pedicle screws from the T3 to T6 levels. She had an aortic stent inserted, there
are rib plates in position on both sides. There is an intra -medullary nail with
proximal and distal locking screws in position in the humerus and plates and
screws on both the distal tibia and fibula.

5. The plaintiff was transferred from Lenmed Hospital to KimMed Rehabilitation
Centre on 16 October 2019 where she was taught how to manage her bladder
and bowels and how to transfer from bed to wheelchair and back. She also
received physiotherapy. She was discharged on 1 November 2019.

6. The plaintiff was left paralysed from the chest down and is a T4 /T5 paraplegic as
a result of the accident.

Evidence

7. The plaintiff testified that she completed Grade 7 at school and stopped
schooling thereafter because she experience d difficulty getting to school by bus.
Thereafter she worked as a nanny for two families where she also cleaned their
homes.

8. The plaintiff is married and has three children. She lives with her husband, her
three children and a grandchild in a shanty about 1 2 kilometres from Jacobsdal.
The accommodation consist s of three bedrooms, a lounge and a kitchen. The
plaintiff testified that they have no running water or electricity. They collect water
from a tap in the street and make use of a gas stove. They use a pit latrine in the
yard.

9. The plaintiff has lost all sensation from her chest downward. She is totally
dependent on assistance by others. The plaintiff was discharged with an
indwelling urethral catheter. The catheter is in situ on a permanent basis, she
cannot remove it or insert it herself due to her instability. She often suffers from
catheter leakage and urinary infection.

10. The plaintiff has no control over her stomach muscles and manages her bowel
movement with laxatives. Her husband has to press down on her stomach to
help her void her bowel and has to clean her up afterwards. The plaintiff testified
that this procedure is extremely humiliating for her. She has to endure it at least
once a week and sometimes her stomach would void itself while she is in
company or at church. She refrains from visiting friends or going out because of
her erratic bowel movements.

11. She cannot lift herself from her bed due to the weakness of her right arm, which
is her dominant arm. She has to utilize a transfer board with two people to assist
her from her bed to the wheelchair and vice versa . The same procedure is used
when she in transferred from the wheelchair into a vehicle.

12. The plaintiff has developed pressure sores since her husband started working at
a dairy during 2021/2022. He had previously been unemployed and was at
home during the day to help her change her position to prevent pressure sores.
Currently, her husband attends to her washing and assist with dressing before he
goes to work , whereafter the plaintiff’s eldest daughter assist s her.

13. The plaintiff used to enjoy cooking and baking and though she still does it, she
needs assistance because the stove is too high and she cannot reach into the
oven because she tends to fall forward. Although she still experiences weakness
in her right arm she can wash and dress the top part of her body but needs
assistance with the lower part of her body. Her right hand, which she testified
was initially useless, has improved by squeezing a ball as shown by the
physiotherapist.

14. The p laintiff has, since the accident, been involved with a group called Ris e and
Shine where she has been taught to croche t and swim , although the swimming
has been put on hold due to her pressure sores.

15. Her accommodation and its surrounds are not wheelchair friendly and she cannot
access all the rooms in the house. Most times she sits in the shade under a tree
where she enjoys reading bible stories to the children.

16. The plaintiff testified that due to her condition, intimacy with her husband is non -
existent and that she cannot help being suspicious of him having other
relationships. She feels that Mr Louw has become more her helper tha n her
husband.

17. The plaintiff still has pains in her right breast and headaches for which she takes
panados. She experiences spasms in her legs especially at night time and gets
short of breath at times. She has been left with permanent scarring from the
operation procedures and where a breathing tube was inserted in her throat.
She also has sca rring from the pressure sores which she experiences.

18. Ms Delport testified after she had heard the evidence of the plaintiff and had sight
of the other experts ’ reports. She last examined the plaintiff during 2020. She
explained that because the plaintiff has suffered a complete lesion at T4/T5 level,
the plaintiff will have more impairment tha n if she had paraplegia from the lower
spine. Whilst the plaintiff has no sensation from the chest downwards and feels
no pain in those regions, it increased her mortality rate since she would not feel
or see if she has an infection, in casu caused by pressure sores, a leaky catheter
or bowe l movement . The shortness of breath experienced by the plaintiff is also
as a result of the high lesion to her thoracic spine.

19. Ms Delport, who has mor e than 30 years experience as an occupational therapist
and who has worked with patients across the spectrum, is of the view that
persons with a higher educational level and financial means , with injuries such as
that sustained by the plaintiff , adjust more easily to their new circumstances as a
result of more flexible employment options and the financial means to afford
assistive devices, than someone like the plaintiff who only has experience as a
domestic worker and child minder. She is of the view, that though the plaintiff ’s
physical condition will not improve much, her quality of life and daily living
experiences would be improved with the necessary assistive devices.

20. As mentioned, the Fund has not called any witnesses and closed its case after
the evidence on behalf of the plaintiff was led

Discussion

21. There is not much in the way of evidence regarding the sequelae of the moderate
traumatic brain injury which the plaintiff sustained in the accident. Except for the
evidence of Ms Delport , that in her experience people with a mild traumatic brain
injury adjust more easily than those with a moderate traumatic brain injury , the
only other evidence in this regard is that of the plaintiff’s clinical psychologist, Mr
Ben Janecke, whose evidence served before me by way of affidavit. Mr
Janecke ’s report date d 14 June 2020 has been incorporated in his affidavit, He
undertook his assessment of the plaintiff on March 2020, some 7 months after
the accident and 4 years prior to this trial. According to Ms Delport , MMI
(maximum medical improvement ) is usually reached after 24 months.

22. At the time , Mr Janecke recorded that the plaintiff’s test results indicate a
moderate T BI, based on inter alia the following:

22.1 Problems with long term memory as well as orientation for place and time;

22.2 Her auditory registration and brief focussed attention is poor and below
the level expected of her;

22.3 Her brief, focussed visual attention, scanning and processing speed is at
an extremely low level and below the level expected of her;

22.4 Her expressive language skills are at an extremely low level and far below
the level expected of her;

22.5 Her ability to recall conceptually related verbal information immediately is
poor and far below the level expected;

22.6 Her retrieval of logical information from long term memory stores is far
below the level expected of her;

22.7 Her planning ability is poor and she has significant signs of impulsive
behaviour.

22.8 Her divided attention and cognitive flexibility falls within the extremely low
range; and

22.9 Her cognition seems to be diffusely impaired;

23. According to a Disability Assessment Schedule which the plaintiff had to
complete, Mr Janecke scored the plaintiff a moderate to severe impairment of
72% of her general ability and a moderate to severe impairment of 56% with
understanding and communicating .

24. Except for not recalling the events surrounding the accident and her scant
memory of her st ay in hospital, none of the cognitive impairments listed above
were obvious during the testimony of the plaintiff. The plaintiff gave her evidence
in Afrikaans, her home language , and was well -spoken. She, for instance, could
remember the age of the Botha’s elder child (4 months) when she started
working for them and that 2 years later they had another child who was about 2
to 3 months old when the accident occurred. She could relate in detail the
assistance she needs from her husband and eldest daughter in her daily
functioning , she has learned to crochet and sells her crafts for extra money, she
reads bible stories for the neighbourhood children and still cooks and bakes with
physical assistance.

25. Whilst the plaintiff ’s physical impairment has not improved since the accident,
except for her right hand which has regained some strength (she will always
remain a paraplegic with all its difficulties and complications ), the plaintiff appears
to have improved considerably in her cognitive abilities since her assessment by
Mr Janecke, at least it would appear to be the case. I will however take into
account, when determining an appropriate award for general damages, the initial
cognitive impairment suffered by the plaintiff.

26. Dr Ziervogel, the orthopaedic surgeon , first examined the plaintiff on 19 February
2020 about 6½ months after the accident. At the time he gave the plaintiff a
physical Whole Person Impairment (W PI) rating of 72%. On follow -up
examination, which took place during February 2024, he gave the plaintiff a WPI
of 75% event though the mobility in the plaintiff’s right arm sho wed some
improvement. Ms Rabie suggested that the pressure sores to the plaintiff’s
sacrum and both ischial bones and the subtle signs of antero -listhesis of C3 on
C4 and C4 on C5 vertebrae , which Dr Ziervogel explains in his report as a
phenomenon that sometimes develops in patients who lie in bed reading with the
head in a propped up position for long period s of time, could explain the increase
in the plaintiffs WPI since Dr Ziervogel’s first report. This appears to be a
reasonable explanation .

27. Dr Ziervogel opines that the antero -listhesis can be treated conserv ately, which
should hopefully alleviate the plaintiff’s neck pain. He also indicated that the
intra-medullary nail inserted at the site of the fracture of the right humerus, which
has been causing the plaintiff discomfort , can now be removed. Overall D r
Ziervogel recommends that the plaintiff need s further rehabilitation .

28. The physiotherapist, Ms H Venter, assessed the plaintiff on 23 November 2020.
At that stage the plaintiff had received physiotherapy once a week after the
accident until the COVID 19 lockdown. No further physiotherapy had been
received since then. Ms Venter states in her report that physio -therapy can
assist to prevent further decreases of ranges of movement and prevent
permanent deformities. It will assist to maintain good posture and prevent
compli cations such as pressure sore s and osteoporosis. It would improve the
plaintiff’s balance and trunk control within her limits. It will improve her arm
strength and her ability to assist with transfers.

29. The urologist, Dr I J Van Heerden has recommended a suprapubic catheter do
be inserted under general anaesthetic . Mr Rademeyer, the mobility consultant ,
has also recommended several ways in which the plaintiff’s quality of life could
be improved .

30. Ms Rabie has contended that the recommendations of the plaintiff’s experts will
be covered by the Fund’s undertaking in terms of s17(4) (a) of the RAF Act.

31. As far as general damages is concerned, there can be no doubt that the injuries
incurred by the plaintiff and its sequelae which have been set out above are very
serious and have impacted severely on the plaintiff’s life.

32. As is the norm I have been referred to various decisions of our court s dealing
with injuries of a similar nat ure. Mr Botha for the plaintiff referred to:

32.1 Morake v RAF (52700/15) [2017] ZA GPPHC 761 (6 November 2017). In
this matter the 64 year old plaintiff was rendered quadriplegic and
amongst other injuries, had head trauma with degloving injuries. He was
at a rehabilitation hospital for 8 months. He had cognitive difficulties. He
was dependant on his wife and son to turn him, b ath him, groom him, feed
him, and to relieve pressure since he had regular blackouts. Due to his
state of health he did not testify. General damages was awarded in the
amount of R2. 5 million which in 2024 amounted to R3.52 million.

32.2 HKM v RAF [2023] ZA GPHC 375; 22307/20 (31 May 2023). In this
matter the plaintiff had been rendered quadriplegic. He is unable to grasp
objects with his hands. He is unable to perform the basic activities of life.
He was awarded R3.2 million in general damages (2024 value , R3.39
million).

32.3 Sibanda v RAF 2019 (7A2) QOD 13 (GP). Here the 27 year old plaintiff
was rendered quadriplegic . He cannot use his upper limbs and his hands
are non -functional. He has severe spontaneous spasms in both legs. He
was awarded general damages in the amount of R2.8 million (value in
2024 R3.63 million) .

32.4 Mertz v RAF (A96/2021) [2022] ZA GPPHC 961 (2 December 2022). The
plaintiff had been left a C5/C6 quadriplegic. She has decreased motor
function in the upper and lower limbs, specifically fine hand co -ordination
tasks. Through sheer willpower, physiotherapy and occupational therapy
she has become independent with toiletries, transfer, washing , grooming
and has a bowel regime. She uses a bladder catheter. She has nerve
pain in her hands and legs. She has lost rotation on her neck of about
30%. Her right hand is in a fully flexed position of the fingers. She has no
control of this hand and cannot use it for any useful function. Her left hand
has spasticity of the wrist, but she manage s to use it for the computer.
The plaintiff is depressed, suicidal and suffers from post -traumatic stress
syndrome. Before the accident she exercised at a local gym 5 days per
week, participated in mountain biking, played golf, jogged and did
motorcycling and swimming. The court awarded her R3.5 million) (2024
value of R3.9 million).

32.5 Macwale v RAF (2021/ 53692) [2023] ZA GPJHC 1236 (6 October 2023) In
this matter the plaintiff was also rendered quadriplegic. Before the
accident he played soccer. He can stand, but not for long periods. He
cannot walk or use his hands to take care of himself. He is in constant
pain and is depressed and suicidal. He is dependent on others for daily
life tasks . He was awarded general damages in the amount of R3. 5
million (value in 2024, R3.7 million).
32.6 RAF v Delport 2006(3) SA 1 72 (SCA). The plaintiff, a 36 year old woman,
was rendered totally disabled as a result of injuries incurred in a collision.
She is unable to speak, has no control over her bladder and bowels, no t
able to swallow an d is fed by means of a gastronomy feeding tube. She
has very little movement of the right side of her body and only limited
control of her left hand. She suffers from headaches, abdominal cramps,
numerous bladder infections, spastic contractions of the right arm, pain of
the left hip and general body stiffness . She has however not lost any
significant sensory function, meaning that she experiences pain but has
no independent way of alleviating it . She needs 24 hour care and is
essentially confined to bed. She is described in the judgment as “a person
with an alert and active mind trapped in a non -responsive body.” Before
the accident she had a happy and dynamic lifestyle, and enjoyed cycling,
competitive dancing and travelling. The plaintiff was awarded general
damages of R1. 25 million (2024 value of R3. 76 million).

33. Ms Rabie for the Fund referred to the following cases:

33.1 Mosupi v RAF 2013 (6A3) QOD 43 (GSJ) (10 May 2013). In this matter
the plaintiff , a 19 year old female student , was left paralysed from the
chest downward. She had become wheelchair bound, with bladder and
bowel incontinence. She suffered from constant headaches, sitting
upright too long caused abdominal pain, she was unable to attend to her
personal needs and required permanent assistance. She e xperienced
loss of self confidence , sexual drive and function. She had also attempted
suicide. This plaintiff was award R1 million in general damages (2024
value of R1.75 million).

33.2 Mafiri v RAF [2024] JOL 63163 (GP). The plaintiff, a 41 year old self -
employed managing director of an engineering services company, was left
paraplegic after a collision and is wheelchair bound. He was awarded
R1.8 million in general damages during 2024.

33.3 Maholela v RAF [2006] ( SA 3) QOD 3 ( O). The plaintiff who was 40 years
old at the time of the accident was rendered a paraplegic with the
concomitant bladder and bowel incontinence due to loss of sensation in
his lower limbs. He was determined not to be wheelchair bound and
“walked” by using crutches and attempting to drag his feet by using his
hips. It was however undisputed that he had no function of his lower
limbs. General damages were awarded in the amount of R600, 000 (2024
value of R1. 64 million).

33.4 In Nokomane v RAF [2010] ZA ECGHC 24 (ECG) 2011 (A2) QOD, the
plaintiff who was in his early thirties when the accident occurred was
rendered paraplegic and wheelchair bound, with no sensory or motor
function below the mid chest. He was left with mild spasticity, a restricted
range of movement of his right shoulder and right little finger, lack of
bladder and bowel control, erectile dysfunction, backpain and diminished
respiratory function. Before the accident he was employed as a full -time
driver at a canning entity , trained at a gym and in his spare time ran a taxi
business and spaza shop with his wife. He was awarded R800 000 in
general damages (2024 value of R1. 64 million).

33.5 In Webb v RAF [2016] ZACPHC (GNP) 2016 (7A3) QOD 24 ( 6P), a 20
year old man was severely injured in an accident resulting in paraplegia.
As a young man he has difficulty adjusting to his condition which resulted
in him losing most of his friends and having little participation in social
events. He was in his 2nd year of a B Comm degree at the time of the
accident. He is no w wheelchair bound, experiences chronic backpain,
incontinence of his bowel and bladder and suffers from PTSD. He was
awarded R1. 5 million in general damages (2024 value of R2. 3 million ).

34. As can be seen from the above, Mr Botha for the plaintiff, has focused on matters
where the plaintiff s were rendered quadriplegic and Ms Rabie on the plaintiffs
who had become paraplegics. The injuries and its sequalae suffered by the
various plaintiffs would in certain cases be more serious than that of the plaintiff
in casu and in others less so.

35. Whilst it is useful to make a comparison to past awards granted by our courts, no
two cases are the same and past awards serve no more than a useful guide as
to what was considered to be appropriate given the facts of a certain case.

36. Having regard to all the circumstances of this matter and also taking into account
the lapse of time since the matter was heard, I am of the view that an appropriate
award for general damages would be R3 million.

37. With regard to the costs, Mr Botha has requested that the issue of costs stand
over for later consideration. I have not been informed of the reason for this, but
will accede to the request.

The following order is made:

1. The plaintiff’s claim with regards to past medical expenses is postponed
sine die.

2. As a greed the defendant is ordered to pay the plaintiff the amount of
R998 779.00 (Nine Hundred and Ninety Eight Thousand Seven Hundred
and Seventy Nine Rand) with regards to loss of income.

3. The defendant is ordered to pay the plaintiff R3 000 000 (Three million
Rand) with regards to general damages.

4. The defendant is ordered to pay the plaintiff’s taxed or agreed costs on
the High Court scale up and until the date of this order, which costs will
include:

4.1 The qualifying fees of the following experts:

Dr E Jacobs
Dr J F Ziervogel
Ben Janecke
Letitia Delport
Hester Venter
Dion Rademeyer
Dr Izak Van Heerden
Michelle Barnard

4.2 In the discretion of the taxing master, the reasonable travelling costs
of the Plaintiff from Jacobsdal to Kimberley, Welkom, Pretoria and
Bloemfontein, and back, to consult with the experts of the Plaintiff.

4.3 The qualifying fees and the reservation fees for 18 to 20 March 2024
of Dr J F Ziervogel, Dr I Van Heerden, Letitia Delport, Ben Janecke,
Dr E Jacobs, Deon Rademeyer, Michelle Barnard and Hester Venter.

4.4 The costs of plaintiff’s counsel for 18, 19 and 20 March 2024

5. It is declared that the witnesses of the Plaintiff referred to in paragraph
4.1 above were necessary expert witnesses.

6. The plaintiff shall in the event that costs are not agreed, serve the
Notice of Taxation alternatively the notice contemplated in Rule 70 (3B)
of the Rules, whichever is applicable, on the Defendant’s attorneys of
record.

7. The plaintiff shall allow the defendant 14 (fourteen) court days to make
payment of the taxed costs.

8. The defendant will pay interest on the above amounts at the applicable
statutory rate of interest per annum, if the Defendant fails to make
payment referred to in paragraph 4 above.

9. The defendant will pay interest on the amount s in paragraphs 2 and 3 at
the applicable statutory rate of interest per annum, if the Defendant fails
to make payment within 14 days of date of this order.

10. The defendant will supply the Plaintiff with an Undertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, for the costs
of the future accommodation of the plaintiff in a hospital or nursing
home or treatment of or rendering of a service to her , supplying of
goods and assistive devices to her and the costs of a caregiver and
domestic assistant arising out of the injuries sustained by her in the
motor vehicle collision on 4 August 2019 and as envisaged by the
experts of the plaintiff in their reports.

11. The defendant will pay the above amounts into the following trust
account of the plaintiff’s attorneys”

ELLIOTT MARIS WILMANS & HAY
STANDARD BANK TRUST ACCOUNT
ACCOUNT NUMBER 0[...]
BRANCH CODE 0[...]
REF M […]

12. The scale of the costs payable by the defendant stands over for later
determination.



CC WILLIAMS
JUDGE

For Plaintiff : Adv C Botha
Elliott Maris Attorneys

For Defendant s: Ms B Rabie
Office of the State Attorney