SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NR: 85650 /2018
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES : YES/NO
(3) REVISED:
DATE: 11/ 06/2025
SIGNATURE:
In the matter between:
NANCY MBIZA PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Delivered: This judgment was prepared and authored by the Acting Judge whose
name is reflected and is handed down electronically by circulation to
the Parties / their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date of the
judgment is deemed to be 11 June 2025.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MARUMOAGAE AJ
A INTRODUCTION
1. This is a delictual claim in which the plaintiff seeks compensation for damages
allegedly suffered as a result of injuries sustained in a motor vehicle collision on
10 October 2015, in which the plaintiff was a passenger . To support her claim, the
plaintiff presented reports of several experts, which were admitted into evidence.
2. While the defendant defended the action, it did not provide expert reports of its
own to sustain its defence. Notwithstanding this, the defendant did not concede
the merits . The court is called to determine whether the defendant should be held
liable to compensate the plaintiff . If so, to also determine the amount of
compensation that should be paid to the defendant in respect of pecuniary and
non-pecuniary damages.
B FACTUAL MATRIX
i) Plaintiff’s Case
3. On 1 October 2015 , the plaintiff was a passenger in a motor vehicle driven by Mr.
Mbiza, the defendant’s insured driver. There was a collision between this vehicle
and another vehicle driven by Mr. Mokwele. This collision was caused by the
negligent driving of Mr Mbiza , who failed to keep a proper lookout, apply brakes
timeously , or at all, failed to react to an emergency in which he placed himself,
and travelled at an excessive speed .
4. Mr Mbiza failed to exercise reasonable care and skill to avoid the accident . He
failed to maintain sufficient control over his vehicle and to establish whether his
vehicle had defective brakes . As a result of the collision, the plaintiff sustained
chest pains and C -spine injury.
5. To sustain her claim, the plaintiff relies on the written testimony of several
experts. The Orthop aedic Surgeon confirmed that the plaintiff sustained lower
back and chest injuries in the motor vehicle collision. He stated that these injuries
had a profound impact on her amenities of life and working ability. Further, the
plaintiff’s residual chronic pain and motion deficit have affected her lower back.
She suffered severe acute pain and takes pain medication for chronic pain in her
back.
6. The plaintiff also provided a report by an Occupational Therapist who stated that
the plaintiff was a self -employed vendor at the time of the accident.
6.1. The plaintiff was unable to resume work for six months while she was
recovering from her accident -related injuries. After recovering, she could
not return to her occupation due to her lower back and residual postural
deficits. She remained unemployed after the accident.
6.2. The plaintiff is currently 55 years old and reliant on her family members for
meal preparation , cleaning , and care . The plaintiff has difficulty carrying
heavy parcels and walking long distances . The Occupational Therapist
noted that the plaintiff will be able to cope with sedentary to light physical
demand work on an occasional basis.
7. A report of an Industrial Psychologist was also provided to the court in these
proceedings. In this report, it is stated that:
7.1. the plaintiff did not progress beyond grade 9 in school , and she was a
vendor at the time of the accident , earning an average income of R
4,000,00 per month ;
7.2. considering her age, qualifications, and employment history, the plaintiff
already reached her career ceiling before the accident. Had it not been for
the accident, the plaintiff would likely have continued with her self -
employment until she reached 70 years old. She is entitled to be
compensated for past loss of earnings ; and
7.3. because the plaintiff was unable to return to her workplace after the
accident, she will also sustain future loss of income as a result of the
accident.
8. The court was also furnished with the report of the actuary. According to the
actuary, had the accident not occurred, the plaintiff would have suffered past loss
of earnings of R 606,715.00 and future loss of earnings of R 959,679.00 . Further,
the plaintiff’s past loss of earnings , having regard to the accident , would be R
5,333,00 , and future loss of income would be R 55,618,00. The actuary
calculated the total loss of income to be R 1,505,443,00. The actuary did not
apply any contingencies.
9. It was argued on behalf of the plaintiff that the court should consider applying 5%
for past loss of earnings and 15% for future loss of earning s for pre -morbid
earnings , and 5% for past loss of earnings and 25% for future loss of earnings for
post-morbid earnings. This will render compensation to the plaintiff for loss of
earnings to be R 1 ,345,326.55.
ii) Defendant’s case
10. The defendant delivered its plea wherein it stated that the plaintiff failed to fasten
the safety belt , which could have assisted her in avoiding being injured in the
accident. According to the defendant, the plaintiff was negligent, and her
negligence contributed to causing the sustained injuries.
C LEGAL PRI NCIPLES AND ANALYSIS
11. In Groenewald v Road Accident Fund , it was correctly held that :
‘[i]t is trite that the plaintiff, as a passenger claimant, need to prove only 1%
negligence on the part of the insured driver in order to succeed with her
claim against the defendant’ .1
12. It is not clear why the defendant decided not to concede the merits in this matter.
The defendant does not dispute the fact that its insured driver was responsible for
causing the accident. It also does not dispute the fact that the plaintiff was a
passenger in the insured driver’s vehicle and that she sustained injuries as a
result of the insured driver’s negligent driving. The negligence of the insured
1 (74920/2014) [2017] ZAGPPHC 879 (5 October 2017) para 3 .
driver is common cause, which establishes liability on the defendant’s part. There
can be no doubt that the defendant is liable to compensate the plaintiff in this
matter.
13. The defence of contributory negligence is shocking to say the l east and
speculative at best. There is no evidence whatsoever placed before the court to
sustain this allegation. The defendant also failed to place expert testimony before
this court to rebut the plaintiff’s case and maintain its defence. The plaintiff’s
version is more probable and is accepted. The defendant’s defense is rejected.
Given the fact that the plaintiff’s expert witnesses are not contradicted by the
defendant through its own expert testimony, there is no reason not to accept the
contents of the plaintiff’s experts’ reports as truthful.
14. It was submitted on behalf of the plaintiff that the court must order the defendant
to pay an amount of R 800,000,00 general damages. I am not convinced that the
court should make this order at this stage. Since the defendant’s liability has
been established, there is no reason why the defendant should not make an offer
for general damages to the plaintiff. I am of the view that the defendant should be
allowed space to do so by postponing this aspect sine die .
15. I am of the view that the issue of pecuniary damages can be disposed of. The
evidence before the court clearly illustrates that the plaintiff’s employment
prospects are non -existent. Given h er level of education and age, she is unlikely
to be employed again. The plaintiff’s experts indicated that the injuries she
sustained in the accident negatively affected her , and she has not returned to her
self-employment since the accident. The accident impacted her income , which
justifies being adequately compensated.
16. Regarding past and future loss of income, an actuary made a recommendation in
his actuarial report. It was suggested to the court that the contingencies
recommended above should be considere d. It is trite that the determination of
contingency deductions falls within the discretion of the Court.2
2 R.J.M v Road Accident Fund (60042/2019) [2024] ZAGPPHC 238 (4 March 2024) para 18.
17. This discretion is guided by various factors , which include the expertise of
actuaries. There is no need to deviate from the actuary’s recommendation. I am
also of the view that the percentages of contingencies suggested by the plaintiff’s
legal representative appear to be fair.
18. Section 17(4)(a) of the RAF Act makes provision for the plaintiff where he has
claimed among others, costs for future accommodation in a medical facility and
where an undertaking has been provided by the defendant or where the
defendant has been ordered to provide such an undertaking, to compensate the
plaintiff of the costs associated thereto. There is no reason why the plaintiff
cannot be compensated for these costs upon furnishing the relevant proof thereof
to the defendant.
E CONCLUSION
19. I accept the calculations and estimations made by the actuary . I agree with the
plaintiff’s legal representative on the suggested contingencies that should be
applied in this case.
ORDER
20. In the premises, I make the following order:
20.1. The defendant is liable to compensate the plaintiff 100% for her prove n
damages;
20.2. The Defendant shall pay to the Plaintiff an amount of R1 ,345,326.55 in
respect of past and future loss of earnings ;
20.3. The amounts referred to in paragraph 20.2 must be paid to the Plaintiff’s
Attorneys, A NDLOVU ATTORNEYS INC , by direct transfer into their trust
account, details of which are the following ;
BANK NAME: STANDARD BANK
ACCOUNTHOLDER: A NDLOVU ATTORNEYS INC.
ACCOUNT NUMBER: 0[...]
ACCOUNT TYPE: ATTORNEYS TRUST ACCOUNT
BRANCH CODE: 0 […]
REFERENCE: ANA/RF/056
20.4. The Defendant is to deliver to the Plaintiff an Undertaking in terms of
Section 17(4)(a) of the Road Accident Fund Act No 56 of 1996, to pay the
Plaintiff’s costs of future accommodation in a hospital or nursing home or
treatment of, or rendering of a service or supplying of goods to h er, arising
out of the injuries sustained by h er in the motor vehicle collision on 10
October 2015, and to pay after such costs have been incurred and upon
proof thereof;
20.5. The Undertaking in terms of Section 17(4)( a) shall be delivered to A
Ndlovu Attorneys Inc. within 180 (One Hundred Eighty) days from the date
of this order ;
20.6. The Defendant is ordered to pay the party and party costs of suit to date,
on the High Court scale, subject to the discretion of the taxing master,
which costs include (but not be limited to) ;
20.6.1. The reasonable costs of obtaining all the medico -legal,
addendum reports, a s well as the radiologist costs, inclusive of any
other expense incurred to , formulate reports, if applicable ,
20.6.2. The reasonable costs of and consequent to the employment of
Counsel , including Counsel's fees in respect of his perusal and
preparation as well as his day fee and, cost for drafting heads of
argument, drafting of joint settlement memorandum and reasonable
fees for preparation for trial as well as appearance on date of this
settlement confirmation ,
20.6.3. The costs of the Attorney; including perusal of all documents
and medico -legal reports, consultation with Plaintiff and Attorney;
preparation for trial ,
20.6.4. The cost in respect of obtaining all documents and lodging of the
Plaintiff’s claim ,
20.6.5. The accommodation and travelling costs of the Plaintiff in order
to attend medico -legal examinations, if any ,
20.6.6. The costs of and consequent to the Plaintiff’s trial bundles and
witness bundles as well as the costs related to uploading the bundles
to CaseLines ,
20.6.7. The reasonable costs of the attorney and counsel, which
includes reasonable travelling costs, costs for preparing for Pre -Trial
Conferences and costs for actual attendances to all Pre -Trial
Conferences, all Rule 35(9) notices Rule 37(4) & Rule 37(6) notices,
Rule 36(10) notices, filing notices, Pre -trial Agendas, List of
Admissions, Further Particulars, costs of formulating the draft order;
20.7. Should the Defendant fail to pay the Plaintiffs party & party costs as taxed
or agreed within 180 (One Hundred Eighty) days from the date of taxation,
alternatively date of settlement of such costs, the Defendant shall be liable
to pay interest at the applicable rate of interest per annum, such costs as
from and including the date of taxation, alternatively the date of settlement
of such costs up to and including the date of final payment thereof.
20.8. The Defendant shall pay the agreed or taxed party & party costs, within
the period of 180 (One Hundred and Eighty) days from taxation along with
all interest incurred, into the Plaintiff’s Attorneys, A NDLOVU ATTORNEYS
INC., by direct transfer into their trust account .
20.9. There is a valid contingency fee agreement applicable.
20.10. The issue of General Damages is postponed sine die .
C MARUMOAGAE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
COUNSEL FOR THE PLAINTIFF : Adv LB Maphelela
INSTRUCTED BY : A Ndlovu Attorneys Inc
COUNSEL FOR THE DEFENDANT : No appearance
INSTRUCTED BY : No appearance
DATE OF CONSIDERATION : 29 May 2025
DATE OF JUDGMENT : 11 June 2025