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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
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: Y2012/202045
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 27 June 2025
In the matter between:
UYS JORDAAN obo S[...] M[...] E[...] Plaintiff
And ROAD ACCIDENT FUND Defendant
Summary : Damages - claim -motor -vehicle accident. Section 17 Road Accident Act
(RAF Act ) and section 17(4) (a) RAF Act -Certificate . 100% liability settled. General
damages and loss of earnings contested. Defendant liable for both general damages and loss of earnings . Conti ngency fees calculated at 25% for both pre and post-accident
levels of education. General damages postponed sine die and loss of earning- to be paid
within 180 days. Plaintiff to open a Trust Fund for the minor child.
NTLAMA -MAKHANYA AJ
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[1] This is an application for damages brought by the Plaintiff on behalf of M[...] E[...]
S[...] (minor ch ild) against the Respondent in ter ms of section 17 of the Road Accident
Fund Act 56 of 1996 (RAF Act). The action emanated from the injuries that the minor
child sustained in a motor vehicle accident on 28 August 2011.
[2] The Plaintiff called Expert Witnesses to testify in person on the impact of the
accident on the minor child, having submitted their reports for the benefit of this Court .
The Plaintiff also made an application in terms of Rule 38(2) of the Uniform Rules of the
Court for the admission of the reports of the said experts as files of records before this
Court which was granted.
[3] The issue of merits in this case was settled at 100% in favour of the Plaintiff and
received his section 17(4) undertaking certificate for 100% of his future hospital and
medical expenses in February 2015.
[4] On 09 November 2021, Mr Uys Jordaan, whom I shall refer to as the Plaintiff or
minor child for purposes of convenience, was appointed as curator ad litem to the minor
child by Mavuma J. The outs tanding issues in this regard which were left for
determination by this Court were (i) general damages and (ii) the past and future
expenses for loss of earnings of the minor child.
Background
Plaintiff’s evidence
[5] The Plaintiff quantif ied the justification of his claim and relied on the expert
reports who presented files of records and appear ed in person to prove the injuries
sustained by the minor child in the motor -vehicle collision . Further to concretise the
proof with the effect such injuries have on short and long- term impairments on his
mental health and body function. At the time of the accident, the minor child was three
(3) years old and doing Grade 3 and now is at 14 years .
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[6] As evident from the papers, the minor child was sent to Krugers dorp Netcare
Hospital and then transferred to Charlotte Maxeke Ac ademic Hosp ital. The minor
sustained an injured left leg; superficial multiple lacerations on the face; severe bruising
to the left arm; soft tissue injuries to the upper and lower legs; bilateral femur fractures and depressive disorder due to injuries sustained in the collision.
[7] The Plaintiff relied on the first expert an Orthopaedic Surgeon, Dr De Graad
examined the minor child on two occasions , and his report : first 12 June 2012 and on
his second consultation four years later on 08 February and provided report on 17
February 2016. He noted that the growth plate had closed permanently and apart from
the shortening of the right leg, there was a distortion of the femoral condyles that resulted in incongruency of the knee joint. He suggested that a p rovision must be made
for a knee replacement and revision knee replacement and indicated a need for knee
arthrodesis later in life. He substantiated his findings by further proposals of the minor’s
follow ups with (i) the Orthopaedic Surgeon for the monitoring of the bone length
discrepancy (ii) need surgery to be done as a result of the limb length and inequalities
which may probably be done by lengthening the right femur than the closure the closure
of the growth plate of the left femur and his further noting of the sustained fracture of the
left distal femur which is referred by the Hospital Records as a Salter Harris type injury
IV and “ complex” . On his further observation, there was a femoral growth plate and
epiphysis that had an abnormal appearance that caused permanent damage to the
growth plate and distal femur which shortened the right femur.
[8] The second expert relied upon was Dr June Rossi , a N euro and Educational
Psychologist who considered the medical report completed by Dr Erasmus that showed
the sustenance of bilateral femur fractures which required surgery . The child awareness
on his admissions at Krugersdorp Hospital at about 18h00 until 19h50 could also not be
determined as the mother could not remember the accident which rendered her
unconscious . Although a CT brain scan revealed no abnormalities, on admission at
CMJAH periorbital ecchymosis was queried. Dr Erasmus then deferred the grading of
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his head injury Dr Rossi who considered the relevant literature on the impact of injuries
on children and noted that younger children remain at risk as M[...] was 3 years 4
months old at the time of the accident . The assessment done 4 years 9 months later
meant that a child in a traumatic brain injury , a conclusive assessment could be done
once the child is older .
[9] Dr Rossi further noted that although the grading of a possible head injury is an
important factor in the etiology of his current neuropsychological, educational,
behavioural and emotional problems, other accident - and non- accident related factors
such as the (i) tragic death of his father , (ii) a traumatic separation from his mother who
had been admitted to a separate ward, (iii) painful orthopaedic injuries for which he
endured pain and a long period of recovery, (iv) the possible negative orthopaedic
prognosis, (v) Mrs S[...] 's medical and psychological state of health and her inability in
disciplining Mome who has become demanding and difficult, all contribute to his current
problems and most of all the loss of Mome's father has been traumatic and will continue
to impact him severely and has lost a stabilizing influence on his life which is
immeasurable. Post -morbidly, his physical injuries w ere deferred to the orthopaedic
surgeon and occupational therapist because he has (i) neuropsychological, educational,
behavioural and emotional problems and (ii) shows executive functioning problems
which impact educationally , (iii) has written language and spelling difficulties ; (iv) h is
anxiety and uncertainty affect his behaviour which impact on him educationally. His pre-
morbid intellectual potential can be estimated by examining his pre- accident scholastic
progress, familial educational achievement, and results on a current intellectual
assessment. Further, although M[...] was enrolled at the school , it was too soon after the
accident , thus , he passed all his grades , his post -morbid challenges can have a
negative impact on his future. In the circumstances, his general recommendations were :
(a) First, future medical treatment and expenses (i) whether M[...] sustained a
head injury was deferred to a neurosurgeon , (ii) d eferral the opinion of Dr M de
Graad, the orthopaedic surgeon regarding treatment for his leg length
discrepancy , (iii) r ecommendation for the testing of his eyes are tested, (iv)
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defer ral was given t o social worker, Ms K du Buisson's recommendations , (v) a
case manager should be appointed post -haste to monitor the home environment ,
(vi) d espite the belief that routine and behavioural parameters would improve his
attention and lessen his anxiety, she recommended a paediatric psychiatrist's
opinion, (vii) d eferral was given to the opinion of an occupational therapist
regarding his physical functioning, (viii) r ecommended for a speech and language
therapist/audiologist to examine his central auditory processing, (ix)
recommendation was also made for 40 sessions of play therapy/counselling to
help M[...] now and with future issues that may arise, and 20 sessions of support
and guidance for his mother which cost R 950.00 per hour .
(b) Secondly, his e ducational expenses , (i) need remedial assistance with
written expression and spelling , (ii) recommendation for the monitoring and
provision for extra lessons and study skills and training to determine his
educational progress ion.
(c) Thirdly, loss of amenities of life were lost during his recovery and would
need additional operations in the future.
(d) Fourthly, temporary /permanent disablement the expert noted the
permanent disfigurement because of his scarring.
(e) Fifthly, loss of earnings and earning capacity that the (i) t he accident has
had an effect on his future which could affect his earning capacity, Physically, he has been limited vocationally because of his femur injuries. This was deferred to
the orthopaedic surgeon and occupational therapist , (ii) although it was soon to
predict how M[...] will progress, poor attention, labile and impulsive behaviour do
not bode well for the future, and affect a person academically , vocationally,
emotionally and socially , (iii) M[...] has the ability to pass a mainstream matric
and obtain a diploma, but this is dependent on his cognitive, neuropsychological
and psychological development. If he can receive psychological and educational
support, his pre- and post -morbid intellectual potential was and is average (90-
109) and he would have passed/is expected to pass Gr 12 and obtain a diploma,
(iv) d eferral was given to the industrial psychologist .
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(f) Sixthly, g eneral damages for pain and suffering were noted by Dr De
Graad that Mome suffered significant pain, and
(g) Seventhly life expectancy was deferred to a medical expert for
determination. Eighthly , a Curator Bonis A curator needs to be appointed for the
protection of the funds .
[10] The third expert was Dr M Naidoo , a Psychiatrist , who said that the accident was
a “watershed moment ” in his lif e which was characterised by (i) loss of the father, (ii) his
mother’s sustenance of the of traumatic brain injury; (iii) debilitating injuries that affected
his self -esteem and (iv) h is physical appearance and functioning. According to him,
these characteristics presented a psycho- pathology which bears a link to the injuries he
sustained in the collision as well as the subsequent changes in his life.
[11] The fourth expert was Ms Megan Clerk: Educational Psychologist, who, after her
assessment recommended (i) the opinions of other experts to be heeded for M[...]’s
future; (ii) deferr al of the potential loss of earnings to an Industrial Psychologist ; (iii) Play
Therapy to address his emotional difficulties; (iv) Subject Guidance and Career
Guidance for Grades 9- 11/12 regarding his future and career pros pects; (v) parental
guidance to be provided to Mrs S[...] in understanding and being able to discipline M[...] .
[12] The fifth exper t, Ms Talia Talmud , having considered the opinions of other
experts, recommended that the calculation of M[...]’s future loss of earnings should take
into account he was left with physical, emotional /psychosocial, functional and cognitive
limitations . She then deferred the treatment and cost of future treatment to other
medical experts .
[13] The sixth expert was Katherine Gradidge's (Occupational Therapist) who noted
that the minor child’s assessment revealed that:
(a) his gait is antalgic to the right as he displayed an asymmetrical posture
due to the leg length discrepancy;
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(b) his gross and fine coordination is poor;
(c) his movement characteristics are slow and he is obese which leads to
inappropriate behaviour and overfamiliarity .
(d) his behavior was slightly inappropriate and overfamiliar;
(e) he had poor perseverance on physically difficult test items with limitations
of standing; walking and stairclimbing; and inability to crouch.
(f) he has a decreased range of motion of the knees which presents a
decreased muscle strength of the muscles of the hips, knees and right ankle,
muscular endurance and his own reporting of the pain in the left ankle and knee.
(g) he has poor fine manual control, or upper limb coordination, poor body
coordination and strength and agility.
According to her, the minor child is best suited only for sedentary work and is precluded
from manual tasks because he:
present ed poor perseverance on physically difficult test items and poor
resistance to distraction;
has slightly inappropriate and aggressive behavior; and
displays poor general knowledge, visuospatial perception and bilateral
integration.
[14] The seventh expert was the Social Worker, K du Buissen who was requested by
Wolmarans Attorneys to formulate a holistic assessment with particular focus on the
minor child’s Psycho -Social needs following the accident on 28 August 2011. The Social
Worker, in giving effect to her mandate, adopted a quantitative methodology and the
summary of her report was presented as follows :
(a) From a young boy with no health problems and developing within normal
range of a three- year-old child, who enjoyed being active and participating in
sporting activities, was no longer able to participate in sporting activities because
of the orthopaedic injuries sustained in the accident.
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(b) He had many friends’ pre-accident and knew how to manage himself
socially and post-accident his friends no longer visit or invite him over.
(c) He has become socially withdrawn and reclusive, as he has also endured
constant teasing and bullying at school from his peers.
The Social Worker concluded that M[...]'s life has become permanently and irreversibly
altered due to the damage caused by his MVA. It has had far reaching consequences
for him and his family.
[15] The eighth expert was the Orthoti st: Chene Kerswill (Orthotist), who observed
that the minor has not yet reached skeletal maturity and recommended that an external shoe build up. Further, there is a need for consideration for home modifications as the
child battles to climb the stairs leading to the house and garden effectively, pain- free
and safely. Also, his condition has serious repercussions which may be physiological, psychological, social, economic and ergonomic. As expressed by her, the
restoration of some form of proper biomechanics, the correct shoe and lift should be manufactured and supplied which should be done in collaboration with a reputable
multidisciplinary team for success.
[16] The ninth expert was GW Jacobson Consulting Actuar ies and gave a report with
the following actuarial calculations on an assumption of 65 years retirement age: -
Basis I Degree Level of Education
Future Loss:
Past loss income: pre-accident post-accident
20% 25%
Loss of Income, Basis 1 :
Pre-accident : R10 005 165
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20% Contingency Deductions -R2 001 03.3
R8 004 132
Post-accident R3 518 780
25% Contingency Deductions -R879 695
R2 639 085
Net Future Loss: R5 365 047
Basis II : Honour’s Degree Level of Education
Future Loss of Income:
Pre-Accident : R13 209 040
20% Contingency Deductions: -R2 641 808
R10 567 232
Post-accident: R3 518 780
25% Contingency Deductions: -R8 79 695
R2 369 085
Net Future Loss: R7 928 147
Post future loss due to the Road Amendment Act 19 of 2005 wherein the loss of
annual income at the time of the accident amounted to R189 017 was considered
during the calculation which then reduced the post lost to the following:
Net Future Loss: R706 598
[17] The Plaintiff filed a notice for amendment and amended the Particulars of C laim.
The Plaintiff in the amended Particulars of Claim claimed for the payment of the sum of
R8 261 598.00 including interest thereof. The Court is now left with the question of
determining the legal question on the liability of the Defendant regarding the general damages and future loss of pas t and post -accident earning capacity.
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[18] On the other hand, the Defendant, as noted above that he did not have Expert
Witnesses, his opposition to the claim was solely based on the credibility of the
Plaintiff’s Expert Witnesses Reports. On his submission, I will focus on his contention
and not regurgitate his summary of the Expert’s Opinion’s Reports. He submitted:
[18.1] The Court to be cautious of Dr Naidoo’s in accepting his testimony
because it was riddled by inaccuracies. It was historic as he was supposed to
have re- evaluated before making an informed opinion as he also did not use the
screening tools such as DSM -5.
[18.2] The Educational Psychologist: Ms Clerk could not make a definitive
opinion on the minor child’s academic performance although there are glaring
factors that the child never failed since Grade 4. Mr Clerk also did not have
maternal and parental documentary proof that could have enabled her to
postulate on how they academically performed.
[18.3] The Industrial Psychologist had unjustifiable put a dim light on the evolving
economy of the country where people living with disabilities have the potential to
get into the job market that is specifically reserved for them.
[18.4] The Defendant submitted that calculating the contingencies should be
deviated from the normal 25% as a guideline from Guedes and Bailey and a 10%
spread with higher contingencies of 50% and 6 0% will bring a reasonable and fair
amount of R3 595 070.50. Further, Bailey was decided 41 years ago, and the
economy of the country was different then.
Therefore, the above submissions necessitate the ir evaluation to determine the
rationality of the Plaintiff’s claim against the Defendant.
Discussion
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[19] In this case, both parties’ Heads of Arguments and all the experts’ report s were of
value in considering this matter. Although the Defendant did not have E xpert Witnesses ,
his Heads of Arguments were concise and identified key issues of contention in the
Plaintiff’s Expert Reports and oral presentations. Further, this Court acknowledges the
“frowned- upon approach” regarding the use of E xperts in litigation against the Road
Accident Fund. Satchwell J in Bvuma v RAF1 held:
“This [ … ] is yet another example of the 'sausage machine outsourcing'
approach to Road Accident Fund litigation. Where there was a claim for 'loss of
earnings/loss of earning capacity', there was no attempt by any legal representatives to conduct any enquiry into or obtain any information about the plaintiff's factual situation of employment. Instead, the attorneys for both parties
simply referred the plaintiff to a multitude of medical 'experts' resulting in an
absence of factual information relevant to the claim for loss of earnings ,”
(emphasis added).
[20] However, in this matter, I move from an exercise of caution in balancing the proof
of the claim vis -à-vis the principles that underly the holding of RAF liable for motor -
vehicle collisions. That caution was traceable to the historic development of the state’s
responsibility for motor vehicle collisions following the gap in the regulation of this area
of the law. Such history was summarised by Moseneke DCJ as he was in Law Society
of South Africa v Minister of Transport
2 who held:
“The statutory road accident compensation scheme was introduced only in 1942,
well after the advent of motor vehicles on public roads. And even so, it came into
effect only on 1 May 1946. As elsewhere in the world, statutory intervention to
regulate compensation for loss spawned by road accidents became necessary
because of an increasing number of motor vehicles and the resultant deaths and
bodily injuries on public roads. The right of recourse under the common law
1 2012 SA (GSJ) at para 1.
2 2011 (2) BCLR 150 (CC) at para 17.
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proved to be of limited avail. The system of recovery was individualistic, slow,
expensive and often led to uncertain outcomes. In many instances, successful
claimants were unable to receive compensation from wrongdoers who had no
means to make good their debts. On the other hand, it exposed drivers of motor
vehicles to grave financial risk. It seems plain that the scheme arose out of the
social responsibility of the state. In effect, it was, and indeed [ remains ], part of the
social security net for all road users and their dependants. ”
[21] From the reading of Moseneke DCJ’s analysis of the history and the contributory
effect it has today entails the continued affirmation of the liability of the Fund to pay for
any damage that arose from a motor -vehicle collision. In this case, like in any other
motor -vehicle collision wherein a claim has been lodged with the Road Accident Fund,
the objects of the Fund are of paramount importance because they are a determinant of
the liability of the Fund as envisaged in section 3 of the RAF A ct that “[…] the Fund shall
be [liable] for the payment of compensation in accordance with this Act for loss or damage wrongfully caused by the driving of motor vehicles.” It is in this regard that RAF
is obligated by section 17(1)(a) to compensate the victims of road accidents of all valid
claims that have been submitted for consideration for payment.
[22] Accordingly, the liability of the Defendant is not a pure matter of being involved in
a motor -vehicle collision but entails various factors that underly the proof of the claim
against the Fund. For purposes of this case, the issue of liability was settled at 100%
and general damages and loss of past and future earnings w ere contested. It is
imperative that I consider these latter matters.
General Damages
[23] In this case, the Defendant opposed the awarding of general damages although
the matter was even referred to HPCSA that confirmed the seriousness of the physical
injuries as a “Salter Harris type 4 fracture. It is evident that the injuries would have
serious implications for the future of the minor child. Let me repeat, the Defendant
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admitted 100% liability; provided a section 17(4) certificat e and offered an amount of
R900 000. 00 as reasonable and fair compensation to the minor child. According to him,
the offer was justified due to the impact of the injuries on the minor child relating to the
need for future surgery of the limb inequalities and the provision for knee replacement
and revision and arthrodesis. This admission does not need any further enquiry as the
Defendant had already made for himself “a bed that he must lie on.” However, for the
purpose of advancing his admission of damages , it is also imperative to state why the
admission was justifiable in the circumstances .
[24] In this matter, t he Defendant’s admi ssion of 100% liability was the undisputed
evidence that the minor child was involved in a motor -vehicle accident that was caused
by the negligence and recklessness of his insured driver . The requirements of liability
on the part of the insured driver were satisfied as prescribed by section 17(1) of the
RAF Act. It is my opinion that the Defendant cannot fail to fulfil the objects of the Fund
as envisaged in section 3 of the same Act when there is conspicuous evidence of the
impact of the accident on the minor child. T he Defendant has already proved that he
committed wrongful conduct that was not in line with due diligence that was required of
him as a reasonable driver in the circumstances. Mncube AJ in D.B.S. obo Minor v
Road Accident Fund3 expressed the contention well and went further and gave meaning
to the concept of “wrongfulness as an element of delictual liability that involve[d] a
breach of a legal duty [which demonstrates ] the test for factual causation [that is
comprised of an] act or omission that proves the harm caused without which there can
be no question of liability if it is not [shown] that the wrongdoer caused the damage [that
gave rise to the two stage enquiry] regarding the factual enquiry on the defendant’s
wrongful conduct which caused the harm suffered by the Plaintiff and the close link to
the harm suffered.”
[25] In casu, the minor child, who was 3 years old at the time of the accident and at
14 years when his claim was considered by this Court, he is still a child as defined in the
Constitution and the Children’s Act 38 of 2005 as “anyone below the age of 18 years ”.
3 2024] ZAGPHC 519 at paras 8 -9.
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This means that the child was under parental care and responsibility of his father whom
he lost at the time of the accident. The underage status constitutes a measure to
determine the Defendant’s liability. The minor child’s injuries were exacerbated by the
loss of the father who could have taken care of him until he attains the age of majority.
The age of majority is of direct link to section 28(2) of the Constitution and section 7 of
the Children’s Act that protect the “best interest” that should not be compromised. Of
further importance is the fact that even if the child had to attain the age of majority if he
was in a position of being unable to sustain himself, the father had still to carry that
responsibility until he was able to sustain himself. As similarly expressed in Makgoka J
in Mofamadi v Road Accident Fund4 and articulation of this position well that “majority is
not the determining factor [because] the parent’s duty does not cease at a particular age
but obliged to continue supporting the child up to self -sufficiency.” Therefore, the
consequent result of the accident was of direct linkage of the cause with harm suffered
by the child with a negative impact on the principle of the “best interest of the child”.
This meant that there was an unwavering cause of the harm suffered by the minor child.
[26] It is also my further opinion that t he dysfunctional family was also not to be used
as a measure of evading liability because of his parent’s circumstances. The instability
in his home environment should not be placed on his shoulders. The fact that a Curator
was appointed to look after the affairs and interest of the minor child does not absolve
the Defendant of his liability. The responsibility of the Curator is not the subjec t matter in
this Court, and I will not even delve into his role. Thus, it was not legally sustainable that
a child’s parental circumstances could be construed and serve as a bar to the claim for delictual damages arising from a motor -vehicle accident. Therefore, it is my affirmative
view that the Plaintiff suffered actual loss and is entitled to general damages as
evidenced by the conspectus of factors presented before this Court. It is my view that
the Defendant ’s liability for general damages should not be interpreted independently of
the loss of past and future earnings.
Loss of Earnings
4 (34221/06) [2012] ZAGPHC152 (3 August 2012) at para 30.
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[27] The determination of the loss of earnings is subject to the judicial discretion of
the court. However, this Court, having been provided with evidence that was quantified
by the E xpert’s opinions, it is of fundamental importance that it addresses the question
of the loss of earnings as a contested matter . It was placed before this Court that the
child suffered past and future loss of earnings. The injuries that he sustained during the collision were not only physical but extended to his mental health and toughness which,
as opined by the expert s, might have psychological effects and negative bearing on his
future life. According ly, from the experts’ report s, the permanency of physical injuries
affect the level of the minor child’s psychological, neurosurgical, cognitive and
occupational functioning. In this regard, the experts recommended the ongoing treatment, failing which without such, the post -accident harm will have serious and
negative impact on him in the future.
[28] The Defendant opposed and argued vehemently against the evidence of Dr
Naidoo who , after the first assessment, only assessed the minor child after four years . I
will confine the opposition to Dr Naidoo’s historic assessment because the physical injuries were confirmed by HPCSA as a credible national body in the regulation of health
profession at large. Therefore, Dr Naidoo’s historic assessment is of direct link to the
recent reports produced by other experts. In this regard, the Defendant argued that Dr
Naidoo’s evidence was not credible due to the lapse of time after the first assessment of
the minor child. This argument is misplaced because the evidence presented in this
Court was not taken in a piecemeal fashion but holistically as a framework against
which to determine the effect of the accident on the minor child. The fact that the child remained scarred, having psychological trauma and other factors that were presented before this Court served as a key content of the Defendant’s liability. Further, the
Defendant brought to the attention of this Court a scholarly article by Van der Bilj and
Pienaar entitled: “ The DSM -5 and the role of personality disorders under criminal law ”
5
who argue for the recent criteria on an organizational structure of mental disorders in a
criminal context . I find difficulty of the relevance of the argument in that article because
5 2014 (35) Obiter 316-335 at 316 and para 21.6 of the Heads of Arguments.
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it’s focus was solely to “establish the role of mental disorders in a criminal context ,”
(emphasis added) . This is a civil matter, and the Defendant did not justify the indirect
application of criminal law principles in a civil action matter. Let me repeat, as argued by
the Defendant, the lack of the veracity of Dr Naidoo’s evidence and testim ony as being
riddled with inaccuracies and contradi ctions was argued based on criminal law
principles. It is my view that criminal law principles were ambushed in a civil law matter
without being justified of their relevance and interdependence in addressing the
determination of mental disorders.
[29] I am not persuaded by the application of the principles that are applicable in
another context of law could be seen as of value in challenging the evidence that is
applicable in a different setting of the law. This Court acknowledges that civil and
criminal law principles might be interdependent, thus, they should be justified on how
they influence each other in the application of the matter at hand. Further, the use of
comparative law in that article as a secondary source of law , is not obligatory in this
case to find its bearing in determining the quality of the evidence presented by Dr
Naidoo. This Court is not to dispute the application and consideration of international
law and foreign law in South Africa as envisaged in section 39(1)(b)and(c) of the
Constitution . Thus, South Africa is not in any way bound to follow it as its application is
subject to the discretion of the Court. The fact that section 39(1)(c) expressly says a
Court “may” does not entail any obligation to apply foreign law even if the matter was
civil in nature.
[30] It is my opinion that the integrity of Dr Naidoo’s testimony was of value in that it
was considered within the overall framework of other reports that endorsed the impact of the accident on the future of the minor child. Of importance, was the fact that HPCSA, a credible national institution that regulates the different health professions, provided a
helpful insight into the quality of the assessment of the injuries of the minor child.
Therefore, that disputed history by the Defendant was endorsed in the recent reports by
other experts, which this Court did not consider separately from his testimony. That
history provided a context then which served as a guide in interpret ing the recent
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context. It also offered a legal basis for legal arguments and circumstances as faced by
the minor child. I am therefore not persuaded that Dr Naidoo’s gap between the first and
last assessment period was not of significance. It constituted the framework that served
as a determinant of the root cause then and how the expert’s reports found relevance in the minor’s current situation.
[31] I also found it difficult to understand the Defendant’s opposition of the opinion of
the Industrial P sychologist about the Plaintiff’s potential in finding work. His argument
about the possibility of the Plaintiff finding work due to work that is purposively reserved
for people living with disabilities is not sustainable and his defence falls flat on this
ground alone. It is within public knowledge of lack of employment opportunities in South
Africa for all people without distinction. The fact that there is a special focus on people
living with disabilities is indicative of the vulnerability that continues to manifest itself
about their lack of opportunities. This Court do acknowledge that the special
consideration is a transformative measure as required by section 9 of the Constitution of
Republic of South Africa, 1996 (Constitution) for the development of legal and other measures which are not meant to address the historic imbalances but the situations
today. Those measures , even if they are developed, are not a guarantee that vulnerable
people, as is the case of the Plaintiff will be immediately addressed. In the context of
this case, I do find relevance to the argument being made by the Defendant as being
progressive so that the Plaintiff and others who are similarly situated should not consider themselves as victims of their circumstances but as ordinary citizens that are
entitled to equal rights and responsibilities. However, the child’s psychosocial , being
bullied at school with friends no longer inviting or visiting him and being mocked as
having a high- heeled shoe meant that there is a potential for an inactive life that may
impact on him progressing into the labour market.
[32] The key now in this case is the actual determination of the appropriate
compensation for loss of past and future earnings that will coincide with the 100%
admission of liability and a section 17(4) certificat e. The Actuaries Report in the
determination of the loss of past and future earnings is foundational to the overall
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compensation that may , at the discretion of this Court , be awarded to the Plaintiff. I am
also not to put any emphasis on the advantage of the exercise of judicial discretion to
determine what could be a reasonable amount for injuries suffered. In Southern
Insurance v Bailey6, the Court held:
“Any enquiry into damages for loss of earning capacity is of its nature speculative
because it involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs or oracles. All that the Court can do is to make an estimate, which is often a very rough estimate, of the present value of the loss. It has open to it two possible approaches. One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative. It is manifest that either approach involves guesswork to a greater or lesser extent.”
[33] Pursuant to Jacobson Actuary calculations on pre and post-accident and since
the Plaintiff was still a minor child, the value of the loss of earnings were calculated on the Basis 1 and II Levels of Education as follows:
First scenario (Basis 1) pre-accident: 10 005 165
Second Scenario Basis II pre-accident: 13 209 040
Post-accident: R3 518 780
Net Future Loss at 25 %: R5 365 047
Net Future Loss at 25% : R7 928 147
6 1984 (1) SA 98 (A) at 113H -114.
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Thus, due to the Road Amendment Act 19 of 2005 wherein the loss of annual
income was at the time of the accident amount ed to R189 017, the limitation was
considered during the calculation which then reduced the post -loss to the
following:
Net Future Loss: R706 598
[34] The contingency deductions were respectfully calculated at 20% and 25% by the
Actuary . However, at the discretion of this Court, the contingency deductions consider
both scenarios (basis 1 and 11) at 25% . This means the Plaintiff’s past and future loss
of income:
Net Future Loss : pre and post at 25%: R5 365 047
+R7 061 598
R12 426645 / 2
Total Future Loss: R6 213 323.00
This is a reasonable amount ese amounts are justifiable, which I am of the opinion are
appropriate for compensati ng the Plaintiff . The Defendant submitted a 10% spread with
higher contingencies at 50% and 60% to be considered by this Court. The submission is
misdirected because the Plaintiff was still a minor and 3 years old at the time of the
accident and to date at 17 years and has not even reached the age of majority . Further,
the existing possibility of struggling to enter the labour market which may impact on self-
sustainability let alone the physical and emotional consequences of the accident on his
future life justifies the amount of compensation as viewed by this Court .
[35] Further, I will not interfere with the independence of the parties having agreed on
100% liability of the Defendant . This meant that the root cause of the claim in this matter
was no longer in dispute and need not be interfered with. The arguments about the
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technicalities on how to give effect to that agreed liability were of further value in this
regard. The agreement settled enabled this Court to solely focus on how apply the
balancing act in respect of the loss of earnings .
[36] In the circumstances, I am satisfied that the Plaintiff has fulfilled the primary
responsibility of proving his claim against the Defendant. This case was not a matter of
the Defendant having admitted 100% liability for wrongdoing. T he Plaintiff had to prove
the sustenance of the injuries that were caused by the negligent conduct of the driver
without which the Defendant could have been absolved of liability.
ORDER
[37] Accordingly , the following order is made:
[37.1] The Defendant is ordered to pay 100% of the agreed or proven damages.
[37.2] The Defendant shall pay to the Plaintiff a Capital amount of R 6 213 323
within 180 days (one hundred and eighty days) of this court order to the Plaintiff’s
attorneys : A Wolmarans I ncorporated which shall be transferred to their trust
account. The account details of the attorneys are as follows:
Name of the Bank ABSA Bank, Northcliffe
Name of the Account Holder A W[…] I[…]
Account Number 4[…]
Branch Code 6[…]
Reference Number Ms G[…]/M[…] 1[…]
[37.3] Further, as agreed between the parties , the Defendant shall furnish the
Plaintiff with an undertaking in terms of Section 17(4) (a) of the Road Accident
Fund Act 56 of 1996 Certificate for the costs of the future accommodation in
hospital or nursing home or treatment of or rendering of a service to the P laintiff
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or supply of goods arising out of the injuries sustained by the Plaintiff in the
collis ion that occurred on 28 August 2011 .
[37.4] General damages and past medical expenses are post poned sine die.
[37.5] The Defendant is ordered to pay the Plaintiff the costs of this application in
respect of the determination of quantum on Scale B which costs shall include the
costs of expert witnesses:
[37.6] In the event of the aforesaid amount not being paid timeously, the
Defendant shall be liable for interest on the amount due, calculated from the 15th calendar day after the date of this Order to date of payment.
[37.7] The Defendant shall pay the Plaintiff's taxed or agreed party and party
costs on the High Court scale in respect of both liability and quantum, up to and including 12th March 2025, and notwithstanding, and over and above the costs as allowed by the Taxing Master subject thereto that :
[37.7.1] In the event that the costs are not agreed:
[37.1.1] The Plaintiff shall serve a Notice of Taxation on the Defendant's
attorney of record; [37.1.2] The Plaintiff shall allow the Defendant 30 (THIRTY) days from date
of allocatur to make payment of the taxed costs; and
[37.1.3] Should payment not be effected timeously, the Plaintiff will be
entitled to recover interest at the prevailing rate on the taxed or agreed costs from date of allocatur to date of final payment.
[38] Such costs shall include, as allowed by the Taxing Master:
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[38.1] The costs incurred in obtaining payment of the amounts mentioned in
paragraphs 2 and 4.1 above;
[38.2] The costs of and consequent to the appointment of the curator ad litem,
Mr U Jordaan;
[38.3] The costs of and consequent to the appointment of counsel on scale B,
Adv N. Adam, including, but not limited to the following: trial preparation,
counsel's trial day fee in respect of the trial dates of 11th March 2025 and 12th
March 2025, and attending to the drafting of the heads of argument, the practice
note and the draft order;
[38.4] The costs of all medico- legal, radiological, MR, sonar, pathologist,
actuarial and addendum reports and/or forms obtained, as well as such reports and/or forms furnished to the Defendant and/or its attorneys, as well as all
reports and/or forms in their possession and all reports and/or forms contained in
the Plaintiff's bundles, including, but not limited to the following:
[38.4.1] Dr M. De Graad ( Orthopaedic Surgeon);
[38.4.2] J Schutte (Radiologist);
[38.4.3] Dr de Villiers & Partners (Radiologists);
[38.4.4] Dr M Naidoo (Psychiatrist);
[38.4.5] 4.2.4.5 Ms C. Kerswill (Orthotist/Prosthetist);
[38.4.6] Dr J. Rossi (Educational Psychologist);
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[38.4.7] Ms M. Clerk (Educational Psychologist);
[38.4.8] Ms K. du Buisson (Social Work Practitioner);
[38.4.9] Ms K. Gradidge (Occupational Therapist);
[38.4.10] Ms S. Stevens (Industrial Psychologist); and
[38.4.11] Mr R. Immermann (Consulting Actuaries).
[39] The reasonable and taxable preparation, qualifying and reservation fees,
in respect of the trial date of 11th March 2025 and 12th March 2025 in such
amount as allowed by the Taxing Master, including but not limited to the following experts:
[39.1] Dr M. Naidoo (Psychiatrist);
[39.2] Ms K. Gradidge (Occupational Therapist);
[39.3] Ms M. Clerk (Educational Psychologist); and
[39.4] Ms S. Stevens (Industrial Psychologist).
[40] The reasonable costs incurred by the Plaintiff regarding the Minor's attendance at
the medico- legal examinations of the Plaintiff's experts;
[41] The costs of and consequent to the Plaintiff's trial bundles and witness bundles,
including the costs of 4 (four) copies thereof;
[42] The costs of and consequent to the holding of the pre- trial conferences.
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[43] The reasonable travelling, travelling time, subsistence, accommodation and
transportation costs, if any, and upon proof thereof, incurred by Minor in attending
medico legal examinations with experts and in attending court on the day(s) of trial.
[44] The costs for the preparation, consultations, travelling and travelling time, to and
attendance of the respective trial/s by the Plaintiff's representatives.
[45] The amounts referred to in paragraphs 36 and 37 will be paid to the Plaintiff's
attorneys .
[46] The requisite steps shall be taken by the Plaintiff's attorney with a view to forming
a Trust, inter alia, administering and/or managing the financial affairs of the Minor and
that such Trust shall be formed within 6 (six) months of the date of this Order. Failing
which the necessary application shall be lodged with the appropriate relief. The Trust's
instrument shall provide for the following:
[46.1] The separation of the property of the trustee/s from the trust property;
[46.2] Ownership of the trust property vests in the trustee/s in their capacity as
trustee/s;
[46.3] The independent trustee/s shall provide security to the satisfaction of the
Master in terms of Section 6(2)(a) of the Trust Property Control Act 57 of 1988;
[46.4] Procedures to resolve any disputes shall be subject to review of any
decision made in accordance therewith by the above Honourable Court;
[46.5] Amendments to the trust's instrument shall be subject to the leave of the
above Honourable Court;
[46.6] The Minor shall be the sole income and capital beneficiary of the trust;
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[46.7] The trust property is excluded from any community of property in the event
of marriage;
[46.8] The trust shall terminate on the Minor's death, whereafter the trust assets
shall devolve on his estate;
[46.9] The trust property and the administration thereof are subject to annual
reporting by an accountant;
[46.10] At least two (2), but no more than three (3) trustees will be
appointed, of which:
[46.10.1] shall be an independent and professional trustee being Fedgroup
Trust Administrators (Pty) Ltd (Registration Number 1951/003389/07);
[46.10.2] One (1) shall be the Minor's aunt, Mrs Louise van der Linde, who
shall be exempt from providing security to the satisfaction of the Master;
[46.10.2] A provision that if the number of trustees drops below the
prescribed minimum, the remaining trustees are prohibited from acting other than
to appoint a replacement trustee; and
[46.10.3] The trust deed may not be altered without the consent of the Court.
[47] Pending the creation of the Trust aforesaid, A Wolmarans Incorporated will invest
the capital amount less the attorney and client fees and disbursements in terms of
Section 86(4) of the Legal Practice Act 28 of 2014, with a financial institution, for the
benefit of the Minor, the interest thereon, likewise, accruing for the benefit of the Minor,
which investment shall be utilized as may be directed by the trustees of the Trust, when
created.
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[48] The party and party costs referred to in paragraph 37 above, as taxed or agreed,
shall be paid by the Defendant directly into the trust account of A Wolmarans Incorporated for the benefit of the Plaintiff.
[49] After deduction of the legal costs consultant's fee for drawing the bill and
attending to its settlement or taxation, the balance shall be paid into the Trust, unless same has not yet been created, in which event, such balance shall be invested in terms of Section 86(4) of the Legal Practice Act 28 of 2014, with the relevant financial institution, for the benefit of the Minor, the interest thereon, likewise accruing for the benefit of the Minor and shall be utilized as may be directed by the trustees of the Trust, when created. [50] There is no contingency fee agreement.
N NTLAMA -MAKHANYA
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Delivery: This judgment is issued by the Judge whose name appears herein and is
submitted electronically to the parties /legal representatives by email. It is also uploaded
on CaseLines, and its date of delivery is deemed 27 June 2025.
Date of Hearing: 11-12 March 2025
Date Delivered: 27 June 2025
Appearances:
Counsel for Applicant: Advocate N Adam
Instructing Attorneys: A Wolmarans Inc
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Defendant: The State Attorney
Mr L Mtshemla