IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 20132/21
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED
20/06/20 25
In the matter between:
SANGA LANGSON PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
LINK NO: 5053503
JUDGEMENT
NTHAMBELENI AJ
BACK GROUND OF THE ACTION
1. This is a personal injury claim action that was before me on the 30th of May
2025 and appeared on the roll as matter no 39. In this matter , both merits and
quantum were still in dispute and the matter proceeded on an unopposed basis
as there was no settlement between the parties. The claim is in terms of the
Road Accident Fund Act 56 of 1996 as amended.
2. The Defendant’s defence was struck out by the order of my brother the
Honourable Justice Mabesela J on 11 December 2024.1 There was no one
appearing for the Defendant in court and the matter proceeded on that basis
before me.
3. The notice of set down for this matter to proceed on Tuesday , May 2025 was
served by hand on the Defendant on 22 April 2025 and uploaded on
caselines.2
APPLICATION IN TERMS OF RULE 38(2)
4. The application to present evidence of the Plaintiff and his expert witnesses,
and any other relevant witness by way of affidavit in terms of Rule 38(2) of the
Uniform Rules was sought and granted as per prayer to of my draft order.3
THE MERITS
5. Counsel for the Plaintiff dealt with the merits and presented evidence in line
with the merits bundle that appear s in section 022 on caselines. The bundle is
comprised of the copies of the Plaintiff’s passport that appear on caselines at
022-1, driver’s license at 022 -2 to 022 -3, affidavit deposed by the Plaintiff on
22 April 2025 at 022 -5 to 022 -9, consent form dated the 22 April 2025 at 022 -
10, pictures taken at the scene of the accident 22 April 2025 at 022 -11 to 022 -
14.
6. In support of the evidence on merits , counsel presented two authorities in
support being the matters of Sieborger v South African Railways of
Harbours4 as well as Southern Insurance Association Ltd v Cogill &
Another .5
7. Based on those submission s and the absence of any evidence from the
Defendant, I awarded merits 100% in favour of the Plaintiff in the action.
1 See pages 012-3 to 012 -4 on Caselines.
2 See Notice of Set Down at pages 026 -1 to 026 -6 on Caselines.
3 See Draft Order dated the 30th May 2025; Nthambeleni AJ on Caselines at pages 010 -11 to 010 -14.
4 1961(1) SA 498(A) at 504 G -H
5 1978(4) SA 128 (A) at 135 G -H
THE PLAINT IFF INJURIES AND QUANTUM
8. According to the Helen Joseph Hospital records; under provisional diagnosis ,
the Plaintiff suffers a right and midshaft femur; the date of discharge was
recorded as 04/01/19 R midshaft femur .6 Further and according to the Hospital
records, the following is recorded :
Accident 27 December 2018; Clinical findings: HR 69, BP 122/78 SATS 99
- Airway self-maintained
- Breathing clear
- Circulation normal heart sound
- C-spine clear
- Small abrasions on the face
- R shoulder small 1 cm laceration
- Abdomen soft -non-tender
- Pelvis stable
- R leg shortened plus deformed - obvious fracture midshaft, neurovascular
intact .
- X-ray midshaft femur fracture, normal CT Brain + Spine, CT angiogram
- Treatmen t……… …...nail R Femur;
9. The above injuries accord with the Road Accident Fund’s acceptance letter on
General Damages dated 07 September 2023, which records the following; “
Claimant sustained a right midshaft femur fracture, a laceration of the right
shoulder and small abrasions on the face. The patient has been left with
disfigurement scarring which will benefit from surgical revision. The patient has
been left with serious permanent disfigurement as a result of the accident”
The RAF 4 form by Dr . Leslie Berkowitz Orthopaedic Surgeon is therefore
accepted in terms of Regulation 3(3) (C) and (d) of the Road Accident Fund
Amendment Act 19 of 2005. The letter was signed by one Mr Hangwani
Mutavhatsindi acting for the Road Accident Fund .
6 See Caselines 023 -1 to 023 -23 Medical Records from Helen Joseph Hospital.
10. On the Plaintiff’s heads of arguments ,7 the following were recorded as injuries
that were sustained by the Plaintiff; a mild traumatic brain injury , a fracture of
the left maxilla bone, a right femur midshaft fracture, severe scarring on the
right leg, abrasions on the face, lacerations on the right shoulder, PSTD,
depression and anxiety see Dr Read’s report, paragraph 1 at 008 -9 to 008 -10
caselines, Prof Kelly’s report A(ii) at page 008 -52; caselines Prof Berkowitz’s
report paragraph 4.2 at 008 -27.
11. The Plaintiff’s Orthopaedic Surgeon Dr Read recorded the following injuries
sustained by the Plaintiff “in paragraph 1 of his report under the heading
“history of the accident8”
(a) The patient, Mr Langison Sanga, was the driver of a motorbike which
was involved in an accident three years ago on 27 December 2018;
(b) following the impact, the patient was taken by ambulance to Helen
Joseph Hospital, where he remained for approximately 8 days;
(c) According to the RAF1 fo rm signed by Dr . J.N Ndove and the available
medical records, the patient sustained the following injuries in this
accident:
(i) A right midshaft femur fracture radiological investigation done at the time
of hospital admission showed a right commuted midshaft femur fracture with
adjacent soft tissue oedema and haematoma formation. No acute vascular
injury was noted. The fracture was managed surgically with intramedullary
nailing. The patient mobilised with crutches for a period of 1-month post -
accident. The Orthopaedic ha rdware remains in situ.
(ii) Non -Orthopaedic Injuries
2. A head injury and a small scalp laceration and a facial fracture. The
patient was admitted for neurological observations; his Glas cow Coma Scale
was 15/15. A CT brain scan showed no acute intracranial pathology. A left
maxillary fracture was noted involving the alveolar ridge ”
7 See paragraph 7 under the heading quantum on page 7 of the Heads of Arguments at 028 -7.
8 See Medico Legal Report of Dr Read at page 008 -9 on Caselines.
12. It is important at this juncture to state that Defendant has not appointed any
single expert to assess the alleged injuries and their extent as noted and
recorded by Plaintiff’s experts in this matter.
13. The Plaintiff obtained seven (7) medico -legal reports to evaluate his injuries,
treatment , and damages in Dr Read (O rthopaedic Surgeon) , Professor Kelly
(Neurosurgeon), Dr Berkowitz (Plastic and Reconstructive Surgeon), Ms
Prinsloo (Neuropsychologist), Ms Kaseberg, Ms Rubenstein (Occupational
Therapist), Ms Du Toit (Industrial Psychologist) as well as Mr Loots
(Actuary).
14. In cases of this nature, it is important for the Defendant to appoint their own
experts to counter the Plaintiff’s expert testimony and in this matter, none was
appointed to counter seven (7) of the Plaintiff’s expert s. There is no doubt that
under these circumstances the Plaintiff’s experts will prevail against the
Defendant.
15. The Plaintiff’s counsel summarized the evidence of all the experts in his
Heads of Arguments in brief9. There were no past hospital expenses as the
Plaintiff was treated at Helen Joseph Hospital which is a Government
Hospital.10 The future medical expenses are covered through an undertaking
that is 100 % in favour of the Plaintiff and incorporated under prayer 6 of the
draft order of this Court.
LOSS OF EARNING CAPACITY OF THE PLAINTIFF
16. In relation to this head damages reliance was placed upon the evidence of Ms
Kaseberg, Ms Rubenstein (Occupational Therapist), Ms Du Toit (Industrial
Psychologist) as well as Mr Loots (Actuary).
9 See heading: Brief Summary of the Plaintiff’s Expert Witnesses at 028 -10 to 028 -42
10 See paragraph 38 of Plaintiff’s Heads of Arguments at page 42.
17. Both the Occupational and the Industrial have classified the Plaintiff as a
vulnerable employee compared to his peers in the open labour market and
have classified him as a disadvantaged job seeker.11
18. The Actuary Mr. Loots has applied a 30% contingency having regard to the
accident which represent s a 15% differential. Based on authorities in Shield
Ins Co Ltd v Booyen12, Phalane v RAF13 read together with AA Mutual Ins
CO v Van Jaarsveld as reported in Corbett & Buchanan; The Quantum of
damaged, Volume 360 at 367. The recommended contingency applied by the
Actuary is acceptable to this court.
19. Mr. Loots also applied a 15% contingency deduction to the calculation
disregarding the accident, this despite being higher than indicated appl ying the
Koch method is reasonable considering the uncertainties of the plaintiff’s
employment .
20. Therefore, the total loss of earnings as per the Plaintiff’s actuary is a total of
R 155,537,00 [One Hundred and Fifty -Five, Five Hundred and Thirty -Seven
Thousand Rands .
GENERAL DAMAGES
21. The injuries sustained by the Plaintiff in this matter are recorded in the medical
records that appear under bundle 023 -medical records on caselines . I have
already recorded the injuries sustained by the Plaintiff according to the Hospital
records from Helen Joseph Hospital where he was treated.
22. During his submission on general damages, Counsel for the Plaintiff rightfully
conceded that General Damages are at the discretion of the court. However,
he made submissions for an award for General Damages in the following
manner:
“In considering the number of general damages, consideration has to
11 See paragraph 40; 40.1 of Plaintiff’s Heads of Arguments at 028 -43.
12 1979 (3) SA 953 (A) at 965 G -H.
13 481121 (2014) (2017) ZAGPPHC 759 7 November 2017 .
be given to the fact that the plaintiff has suffered a mild traumatic brain
injury, a fractured femur, and severe disfiguring scarring14”.
23. The Plaintiff’s Counsel submitted several case laws to justify the amount of 1,5
million for General Damages in this matter15 in the heads of arguments to
justify a bloated figure of general damages in the total amount of 1,5 million
rands
[ One Million, Five Hundred Thousand Rands] .
24. Based on the injuries sustained by the plaintiff in the accident, I awarded an
amount of R 650 000,00 [ Six Hundred and Fifty Thousand] for general
damages. I will demonstrate further reasons and legal basis as to why the
amount of R 650 000,00 is appropriate in my analysis below.
ANALYSIS
25. Despite what is presented as the case and injuries of the plaintiff , it is
important to note further that this court is not a rubber stamp of amounts being
presented by the Plaintiff to support their case even though their matters is
undefended by the Road Accident Fund.
26. The Court considers the total evidence presented to sustain the claims
brought by the Plaintiff in any action. In matters of this nature where the
defendant did not oppose the claim , the court is even extra -cautious to avoid
being used as a rubberstamp of the plaintiff’s claims. The Road Accident Fund
is not a largesse as stated in Pitt v Economic Insurance Co. Ltd16 where the
following was stated:
“ The courts must take care to see that its awards are fair to both sides -it must
give just compensation to the plaintiff, but it must not pour out largesse from
the horn of plentily at the defendant’s expense”.
14 See page 028 -47 of the Plaintiff’s Heads of Arguments under paragraph 44.1 .
15 See Plaintiff’s Heads of Arguments on pocket 028 pages 028 -48 to 028 -49
16 1957(3)SA 284 (D) at 287 E -F.
COMPARABLE AWARDS
27. In Sandler v Wholesale Coal Supplies Ltd17, Watermeyer JA held : “ the
amount to be compensation awarded as can only be determined by the
broadest general consideration and the figure arrived at must necessarily be
uncertain, depending on the Judge’s view of what is fair in all circumstances of
the case” .
28. The Supreme Court of Appeal has stated in Protea Assurance Co Ltd v
Lamb18; “Comparable cases, when available, should rather be used to afford
some guidance, in a general way, towards assisting the Court in arriving at an
award which is not substantially out of general accord with previous awards
which can be used as a yardstick. The court in these cases has discretion”.
29. When examining comparable cases, the court must not be parrotlike in
following them but must be mindful of the fact that the cases serve as a guide.
This much was stated in Protea Assurance Co. Ltd v Lamb . 19
“Comparable cases, when available, should rather be used to afford some
guidance, in a general way, towards assisting the Court in arriving at an award
which is not substantially out of general accord with previous awards in
broadly similar cases, regard being had to all the factors which are considered
to be relevant in the assessment of general damages. At the same time, it
may be permissible, in an appropriate case, to test any assessment arrived at
upon this basis by reference to the general pattern of previous awards in
cases where the injuries and their sequelae may have been either more
serious or less than those in the case under consideration”.
30. In the case of Dikeni v Road Accident Fund20 Van Heerden J stated:
“Although these cases have been of assistance, it is trite law that each case
must be adjudicated, on its own merit. No one case is factually the same as the
other. It only provides a guide in the assessment of damages.”
17 1941 AD194 at 199.
18 1971(1) SA 530 AD at p535 H -536A
19 Protea Assurance Co. Ltd v Lamb 1971 (1) SA 530 (A) (“Protea Assurance”) at para 534H – 535A
20 Dikeni v RAF 2002 (5) 171 GP
31. In Minister of Safety and Security v Seymour21, the court held:
“The assessment of awards of general damages with reference to awards
made in previous cases is fraught with difficulty. The facts of a particular
case need to be looked at as a whole and few cases are directly
comparable. They are a useful guide to what other courts have considered to
be appropriate, but they have no higher value than that.”
32. In Peter v Road Accident Fund22: In this case, the Plaintiff suffered major
injuries including a fracture of the pelvis and acetabulum. Furthermore, he
suffered two scalp lacerations and what was described as multiple deep
abrasions to the right shoulder and upper arm and over the lumbar spine. This
left him with some marked scarring on the right arm for which plastic surgery
could achieve a 50% improvement. The R180 000.00 General Damages
translates to some R 565 000.00 in current terms.
33. In Union and South West Africa Insurance Co Ltd v Humphrey23, A 15 -
year-old girl, injured while riding a pillion on a motorcycle, sustained fractures
to the tibia and metatarsals, along with severe scarring to her lower leg. In
addition to orthopaedic interventions, she underwent further surgeries,
including one for skin grafting. The scarring on her foot was described as a
definite cosmetic blemish. The award for general damages of R8 500.00 at the
time translates to approximately R374 000.00 in 2024.
34. Recently, in the matter of De Meyer v Road Accident Fund24, the Full Court
of this Division addressed the issue of general damages in relation to
disfigurement . In that case, the court held that the plaintiff would possibly
require surgery due to the disfigurement of the foot. The court awarded a sum
of R325 000.00 for General Damages.
21 [2006] ZASCA 71 ; 2006 (6) SA 320 (SCA) at para 17
22 2003 (5F3) QOD 9 (BHC)
23 1979 (3E5) QOD 58 (A)
24 [2025] ZAGPPHC 307
35. Therefore, the award of General Damages for R650 000,00 accords with the
injuries that were sustained by the Plaintiff in this case and the suggested
amount by the Plaintiff of R1,5 million is therefore unjustifiable and
unsustainable in the circu mstances of the case before this court , in that the
Plaintiff’s own neurosurgeon Dr. A Kelly25 as well as Dr . Berkowitz the Plastic
and Reconstructive Surgeon at 008 -26 of his report under history where it was
recorded under history, that the Plaintiff sustained; “1.1 Mr . Sanga was involved
in a motorcycle accident on the 27 December 2018; 1.2 The following injuries
were sustained; 1.2.1 Small abrasions on the face; 1.2.2 A laceration of the
right shoulder; 1.2.3 A fracture of the right femur.” The Neurosurgeon also
confirmed that his recorded Glascow Coma Scale was 15/15 on admission.
COSTS
36. It is trite that the award of costs falls within the discretion of this Court. Rule
67A( 3) which came to effect on 12 April 2024, requires that the Counsel’s fee
in the context of a party -and-party costs in the High Court be awarded on scale
A, B , or C as the case may be. This amendment applies prospectively in
relation to work done on a matter after 12 April 2024. Rule 67A addresses itself
only to awards of costs as between party and party with the purpose to
exercise control over the rate at which Counsel’s fees can be recovered under
such award26.
37. Rule 67A (3) (b), in relation to the scale of Counsel’s fees, refers to
considerations which may include the complexity of the matter, the value of the
claim , and the importance of the relief sought. This is clearly not an exhaustive
list but it is used as a guiding tool in the award of costs.
38. Similarly in this case the costs are at the discretion of this Court and in this
matter, I awarded the costs in scale B . This matter is neither complex nor are
the papers voluminous, and the amount involved is not substantial relative to
the overall context. Counsel’s request for scale C is unmeritorious.
25 Dr A Kelly see 008 -65 of the Neurosurgeon’s Report on Caselines.
26 See the discussion in Wanga v Road Accident Fund: 4503/2021; Unreported judgement of the
Western Cape High Court per Adams AJ delivered on 19 November 2024 at paras 7 -11.
ORDER
39. The order of this court is as attached on Caseslines at 010 -6 and is annexed to
this judgment.
RR NTHAMBELENI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
HEARD: 29 MAY 2025
DELIVERED ON: 20 JUNE 2025
APPE ARANCES
COUNSEL FOR THE PLAINTIFF: Mr. SEAN MULLIGAN
INSTRUCTED : LEVIN TATANIS INC
ATTORNEYS FOR THE PLAINTIFF
REF: Ms. I Hassalonidis L383
COUNSEL FOR THE FIRST DEFENDANT: NO APPEARANCE
Instructed: Road Accident Fund
REF: 502/12818720/304/1
LINK NO : 5053503