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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 6713/18
In the matter between:
PHILLEMON KGOLOKO MAREDI Plaintiff
and
ROAD ACCIDENT FUND Defendant
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 20 June 2025 .
Summary: A claim for loss of earning capacity. The onus to prove that a claimant
has lost capacity to earn lies with the claimant. A Court must be satisfied that a
claimant has indeed lost capacity to earn which translates into a patrimonial
loss. A Court is not bound by opinions of experts who baselessly opine that the
injuries have affected the earning capacity of a claimant. The plaintiff has failed
to discharge the onus that he lost her earning capacity. Held: (1 ) The default
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
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DATE SIGNATURE
20 June 2025
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judgment in respect of a claim for loss of earning capacity and income is
refused .
JUDGMENT
MOSHOANA, J
Introduction
[1] Before this Court featured an application for default judgment in terms of rule
31(2) (a) of the Uniform Rules of Court . The issue of the merits of the action was
settled between the parties. What remained for determination was the past and
future medical expenses and loss of earning capacity and earnings claims. With
regard to past and future medical expenses, a section 17(4) (a) of the Road
Accident Fund Act (RAFA) under taking shall be ordered without any hesitation.
In an action where a loss of earning cap acity and earnings is claimed, the role of
a Court is not relegated to the application of contingencies only. A Court must be
satisfied on a balance of probabilities that the claimant has lost earning capacity
as in a patrimonial loss. In Road Accident Fund v Kerridge (Kerridge )1, the SCA
had the following to say:
“Indeed, a physical disability which impacts on the capacity to earn an
income does not, on its own, reduce the patrimony of an injured. There must
be proof that the reduction in the income earning capacity will result in actual
loss of income.
[2] The above legal position was already stated in Rudman v Road Accident Fund
(Rudman )2. It remains the onus of the claimant to prove on a balance of
probabilities that the physical disability firstly impacts on his or her capacity to
earn and secondly that an actual patrimonial loss shall follow due to the impact
on the capa city.
1 2019 (2) SA 233 (SCA) para 25.
2 2003 (2) SA 234 (SCA).
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[3] Involved herein is an action for damages brought by M r Phillemon Kgoloko
Maredi (“Plaintiff”) against the defendant, the Road Accident Fund (RAF) . On 22
August 2016, the plaintiff was involved in a motor vehicle collision whilst he was
driving a motor vehicle. He collided with the insured motor vehicle. Following the
said motor vehicle collision, he sustained bodily injuries where his left humerus
was fractured. Pertinent to the issues to be determined by this Court at this stage ,
as at the time of the inju ries, the plaintiff was employed as a shift commander
effective 01 July 2016. On the available evidence, the plaintiff in that capacity is
mostly office bound and is assisted by a team of ten employees. According to the
Industrial Psychologist (IP), the plaintiff will work in that capacity of a shift
commander until the retirement age of 60 years. According to the Orthopaedic
Surgeon (OS) due to the injuries, the plaintiff lost 10% of work capacity in relation
to carry ing of heavy objects.
[4] Contrary to the collateral evidence from the plaintiff’s employer, the Occupational
Therapist (OT) was informed by the plaintiff that he attends to fire incidents and
have to perform physical work together with his team. The station man ager
disclosed that the plaintiff’s work progression has not been negatively impacted
as he qualifie s to be promoted to a position of a station m anager should he apply
for such a position.
Did the plaintiff lose earning capacity?
[5] On the available evidence, the plaintiff as a shift commander does not work with
heavy objects. His work is office bound and he is and was always assisted by a
team of ten members. His ability to progress in his work was not affected and he
can still function as a station manager should he apply for that position. The 10%
loss of capacity affected his work as a fire fighter , which involves the carrying of
heavy objects . As at the time of the accident he was a lready a month into working
as a shift commander. The opinion of the O S is predicated on his work as a fire
fighter and not a shift commander and potentially a station manager. There was
no evidence that the plaintiff was a vulnerable employee facing potential
dismissal which will render him an unequal competitor in an open market. He is
in a position to work until the retirement age of 60 years
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[6] Accordingly, this Court concludes that the plaintiff has, on the available evidence,
not lost his earning capacity. There is n o likelihood that his patrimony will be
reduced in any manner as a result of the injuries sustained in the accident .
[7] On account of all the above reasons, I make the following order :
Order
1. The defendant is ordered to furnish the plaintiff with an undertaking
limited to 80% in terms of section 17(4)(a) of the RAFA 56 of 1996,
for the reasonable costs for the future accommodation of the
plaintiff in a hospital or nursing home or treatment of o r rendering
of a service to him or supplying of goods to him resulting from the
injuries sustained by the plaintiff and of administering and
enforcement of this undertaking, as a result of the motor vehicle
accident which occurred on the 22nd August 2016, after such costs
have been incurred and upon proof thereof.
2. The default judgment application in respect of a claim for loss of
earning capacity and earnings is refused .
3. The defendant shall pay the plaintiff’s costs on a party and party
High Court scale, which costs shall include but not limited to the
costs of reasonable travelling and accommodation costs of the
plaintiff to attend medico -legal examination reports of the following
experts:
• Dr I A Khan – Orthopaedic Surgeon (RAF4 and report)
• Radiologist report.
4. The above costs to include the costs of appearance on 11 June
2025 in respect of plaintiff’s counsel on scale B.
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GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Plaintiff: Mr K G Mongwe
Instructed by: Rikhotso T H Attorneys, Pretoria
For the Defendant: No appearance
Date of Hearing 11 June 2025
Date of judgment : 20 June 2025