1 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 DIVISION, PRETORIA
Case No: 50765/2019
Reportable: No
Of interest to other Judges: No Revised: No
Date: 27 June 2025
In the matter between:
A[…] G[…] obo A MINOR CHILD Plaintiff
and THE ROAD ACCIDENT FUND Defendant
JUDGEMENT
Mooki J
1 The plaintiff seeks damages against the Road Accident Fund. She sues on
behalf of her minor child, who was involved in a car accident on 15 August 2017. The
child ( L[...]) was 4 years and 9 months at the time of the accident. L[...] was in grade
7 when the matter came before Court.
2 The defendant conceded liability on a 100% basis in favour of the plaintiff, with
the Court (Kubushi ADJP) making an order in that regard on 17 October 2024. The
claim in these proceedings pertains to a loss of earnings. The Court received
evidence in terms of Rule 38(2).
2
3 The orthopaedic surgeon (Dr M Tladi) assessed L[...] on 17 February 2023,
when L[...] was 10 years old. Dr Tladi was not given hospital records. The plaintiff
told Dr Tladi that L[...] was a passenger in a bakkie that collided with a private car
and that L[...] lost consciousness which she regained at the scene. Dr Tladi found
nothing untoward following a systemic examination of L[...].
4 Dr A B Mazwi, a specialist neurosurgeon, examined L[...] on 17 February
2023. Dr Mazwi considered two documents when assessing L[...] . He also took the
history of the incident from L[...] , who told him that she suffered a head injury when a
bakkie collided with a private car and that she lost awareness and woke up at the scene. She also told Dr Mazwi that she was admitted to casualty and received emergency treatment and nursing care.
5 The two documents considered by Dr Mazwi were a RAF 1 form completed by
Dr T Boto and a radiology report by Dr Etienne Steenkamp. The x -ray of the skull
showed nil fractures. Dr Mazwi concluded that L[...] had a brief loss of
consciousness following a bakkie collision on 15 May 2017, in keeping with a mild
head injury.
6 Mr Z L Khubeka, an educational psychologist, interviewed L[...] and the
plaintiff. He records that the incident occurred on 15 May 2015. The plaintiff told Mr Khubeka that L[...] sustained a head injury but that there was no loss of
consciousness. L[...] was seen by a general practitioner in a hospital, returning for a
follow- up on 19 May 2017. L[...] was not admitted to inpatient care.
7 The plaintiff told Mr Khubeka that the incident resulted in L[...] having
persistent headaches, being oppositional and defiant and that L[...] tends to withdraw
socially. Mr Khubeka recorded that L[...] was attending a creche at the time of the
incident. She never failed a grade. Mr Khubeka stated that L[...]’s school reports
indicate a reasonable average to above average learning potential.
8 Mr Khubeka opined that L[...]’s intellectual potential before the accident was
likely to have been in the high average to above average range. This was according
3 to the “best performance method”, which considers the highest scoring cognitive
domains. L[...] would pass Grade 12 with a bachelor’s admission and would then
enter a field of her choice aligned to the NQF level 7 qualification.
9 Mr Khubeka stated that the position was different following the accident:
“In contrast to the school records provided, the scholastic profile is indicative
of prevailing learning problems. L[...]’s performance on the English reading was adequate. Of concern was her reading comprehension, spelling, creative
writing, and numeracy skills were noted to be below the grade level”. He
continued that the head injury was superimposed on L[...]’s brain, and that it is
probable that “there is a nexus between L[...]’s learning difficulties and the
accident in question.” The cognitive profile pointed to L[...] having suffered
mild to moderate cognitive/ neurocognitive fallouts that are consistent with the
mild-traumatic brain injury diagnosed by the specialist neurosurgeon Dr. A. B
Mazwi.
10 Mr Khubeka further opined that L[...] presented with cognitive deficits that “can
be wholly attributable to the head injury sustained during the accident.” The “mild to
moderate cognitive deficits” were said to likely hinder L[...]’s capacity to fully utilise
her residual cognitive potential in a consistent and effective manner. The possibility
of “a sleeper effect” could not be excluded and that it was anticipated that “[ L[...]]
may experience increasing difficulty coping with complex information processing and
abstract reasoning tasks” as she progressed into grades 10 to 12. L[...] was now
likely to complete grade 12 with a diploma- level pass. Her highest probable
academic attainment was now projected to be an equivalent of NQF Level 6.
11 Mr Mbhekiseni Dhlamini, an occupational therapist, assessed L[...] when she
was in grade 4. Mr Dhlamini recorded the injury as having occurred on 15 May 2017. The plaintiff told Mr Dhlamini that L[...] was transported by private vehicle to a
general practitioner and was discharged the same day. L[...] returned to the creche
the day after her discharge. There were no follow -up consultations upon her
discharge by the general practitioner. L[...] was not on any medication. The plaintiff
told Mr Dhlamini that feedback from educators was that L[...] displayed significant
difficulties with maintaining concentration.
4
12 Mr Dhlamini concluded that L[...] should be able to enter an occupation with
sedentary to light to medium physical demands. She would struggle executing duties
that require high levels of higher cognitive and executive functioning “due to the sequalae of the diagnosed mild head injury”. Mr Dhlamini further opined that L[...]
would not reach her pre- accident level of functioning due to deficits arising from the
injuries sustained in the accident. The injuries curtailed her career choices.
13 Dr K L Tshikovhele, a clinical psychologist, recorded the accident having
occurred on 15 August 2017. The plaintiff told Dr Tshikovhele that L[...] had a brief
loss of consciousness and was cut by glass. She took L[...] to a general practitioner
for stitches and treatment. L[...] and the plaintiff reported various impairments in
relation to L[...]. The stated impairments were physical, cognitive, behavioural, and
social. L[...] complained of headaches following the accident. The plaintiff told Dr
Tshikovhele that L[...] , following the accident, had poor concentration, was forgetful
and had spelling problems at school.
14 Dr Tshikovhele concluded that L[...] had intact neurodevelopmental functioning
before the accident. She now has several afflictions, including psychological
sequelae. Her cognitive deficits were likely to impact her future academic and occupational productivity. The test results indicated cognitive impairment that was
likely due to psychological challenges and pain.
15 Ms Esther Slabbert, an industrial psychologist, recorded the incident as
occurring on 15 August 2017. Ms Slabbert opined that the vocational and educational profile of the L[...]’s family play a role in postulating L[...]’s career path
had the accident not occurred and that “...today, in South Africa, many children
achieve higher levels of education than their parents…”.
16 Ms Slabbert stated that L[...] ’s pre -morbid earning potential was based on L[...]
having obtained an NQF level 7 qualification. She would enter the workforce at
Paterson B5, reaching her ultimate level at age 45 at bracket D1. She would then receive inflationary increases until age 65. The post -morbid potential entailed L[...]
obtaining an NQF level 6 qualification. She would enter the workforce at bracket B4,
5 reaching her ultimate level at age 45 on bracket C4. She would then receive
inflationary increases to age 65, on retirement.
Analysis
17 The plaintiff’s pleaded case is that L[...] was a pedestrian when she was
injured in a car accident on 15 August 2017. The pleaded injury was framed as follows:
“7. As a result of the aforesaid accident, the Plaintiff sustained severe
bodily injuries consisting of:
7.1 Severe bodily injuries characterized by:
7.1.1 Head Injury”
18 The evidence does not support the pleaded case on how L[...] got to be
injured. The RAF 1 form records that L[...] was a passenger and had fastened a
seatbelt at the time of the incident. The accident report records that L[...] was a
passenger conveyed at the back of a bakkie.
19 It bears mentioning that the defendant has conceded liability. It is therefore
immaterial whether the plaintiff was a pedestrian or a passenger.
20 There are no hospital records pertaining to the incident. Indeed, there is no
record of L[...] having been admitted to hospital. The following details are recorded in
the RAF 1 form. Dr T Boto completed the form, which he signed on 27 March 2018.
The accident occurred on 15 August 2017, and the injured person was a passenger. The injured person received “non- emergency medical treatment.” The treatment plan
referenced medication and an x -ray of the skull and facial bones.
21 The “report” referred to by Dr Boto is a radiology statement in the name of Dr
Etienne Steenkamp. Dr Steenkamp’s radiology report was “Checked for Syntax &
Grammar by: Dr ETIENNE STEENKAMP on 2017/05/19 8:31 AM”. The examination
date is recorded as “19/05/2017”.
22 The accident report and the plaintiff’s affidavit in terms of section 19(f) record
6 that the accident occurred on 15 August 2017. There is no explanation why
an x -ray that was performed on 19 May 2017, some three months before the
accident, is relied upon in support of the plaintiff’s case.
23 Witnesses for the plaintiff referenced the x -ray report in one way or another in
support of their findings. For example, Dr Mazwi, the neurosurgeon, says “the
clinical records” recorded that the claimant had a “head injury”. Dr Mazwi only had
the RAF 1 form and Dr Steenkamp’s radiology report as supporting documents. The
documents do not state that L[...] suffered a “head injury”. The radiology report does
not pertain to the incident on 15 August 2017.
24 L[...] was unaccompanied when she met with Dr Mazwi. She was 10 years old
at the time. Dr Mazwi reached conclusions about what happened, including that L[...]
lost consciousness, based on the history related to him by L[...] . It beggars belief that
Dr Mazwi would consult with a 10- year-old child unaccompanied by an adult. It
beggars greater belief that Dr Mazwi accepted, as fact, the recollection of a 10- year-
old about an event when the child was 4 years and 9 months old.
25 The various witnesses for the plaintiff premised their findings and opinions on
L[...] having suffered a head injury. Mr Khubela, the educational psychologist, wrote
that Dr Mazwi diagnosed L[...] as suffering a mild traumatic brain injury. A finding that
L[...] suffered a traumatic brain injury is foundational to Mr Khubela’s own conclusion
that the accident so affected L[...] , resulting in the stated impairments. The same
applies to findings of Mr Dhlamini, the occupational therapist. He concluded that
L[...] would struggle executing duties that required high levels of higher cognitive
and executive functioning “due to the sequalae of the diagnosed mild head injury”.
26 There is no foundation to the finding that L[...] suffered a head injury. There is
no medical record suggestive of that fact. The plaintiff sought to rely on the radiology
report by Dr Steenkamp that L[...] suffered a head injury. That report is unrelated to
the accident. There is simply no explanation why Dr Boto referenced this document when completing the RAF 1 form. Dr Boto recorded in the RAF 1 form that the accident occurred on 15 August 2017, yet he enclosed as supporting documentation an x-ray report done on 19 May 2017.
7
27 The plaintiff told Mr Khubeka, the educational psychologist, that L[...] was seen
by a general practitioner in a hospital, returning for a follow -up on 19 May 2017.
There is no evidence of L[...] being admitted to a hospital. The plaintiff’s referencing
a follow -up on 19 May 2017 had nothing to do with the accident of 15 August 2017.
The radiology report is dated 19 May 2017. This shows that the plaintiff sought to use an x -ray report that was unrelated to the events of 15 August 2017 as
justification for L[...] having suffered a head injury.
28 L[...]’s stated “head injury” is premised on a misrepresentation. The mentioning
of a traumatic brain injury is but a ploy to suggest that L[...] has learning difficulties,
when, in fact, there is no evidence supporting such a finding. The various experts
turned the proverbial blind eye to evidence at hand. This includes the educational psychologist disregarding school reports and concluding that L[...] had problems with
learning. The witnesses were seemingly at peace to advance a narrative that
L[...]
suffered a head injury, for which she was to be compensated.
29 Dr Mazwi was the first expert to opine on L[...] having suffered a head injury.
He noted in his report that “the clinical records” recorded that the claimant had a “head injury”. Dr Mazwi over -stated the facts in referring to “clinical records”. He only
had the RAF 1 form by Dr T Boto and a radiology report by Dr Etienne Steenkamp. The radiology report had nothing to do with what occurred on 15 August 2017. That
is because the x- ray examination that is the subject of the report was performed on
19 May 2017.
30 There is no good reason for Dr Mazwi to say L[...] was involved in a collision
that occurred on 15 May 2017. The RAF 1 form expressly records that the incident
occurred on 15 August 2017. Dr Mazwi’s report was tailored for a specific outcome. He had to say the collision occurred on 15 May 2017 because that date allowed him
to reference Dr Steenkamp’s radiology report of 19 May 2017 as the basis for saying
L[...] suffered a head injury. This is apart from the report not stating that there was a
head injury.
31 The plaintiff contradicted herself, telling some experts that L[...] lost
8 consciousness, while telling others that there was no loss of consciousness. Mention
of the loss of consciousness was clearly intended to buttress the
claim of L[...] having suffered a head injury and that she developed learning
difficulties as a result.
32 The other experts called by the plaintiff premised their opinions on L[...] having
suffered a head injury. This is illustrated by the educational psychologist, who opined that L[...]’s cognitive profile points to L[...] having suffered mild to moderate cognitive/
neurocognitive fallouts that are consistent with the mild- traumatic brain injury
diagnosed by the specialist neurosurgeon Dr. A. B Mazwi.
33 I do not accept that L[...] will no longer be able to attain a NQF level 7
profession. The evidence does not support this claim. L[...] was 4 years and 9
months when she was involved in the accident. She was attending a creche at the time. She returned to the creche the day following the accident. She has performed well at school since, often performing above the grade average.
34 L[...] was in Grade 1 in 2019. All her marks were a 5 (60 – 69 %) and above.
The plaintiff presented only marks for the first term in grade 2. L[...] had one mark of
4, with the rest of the marks at 6 (70 – 79%). She had 4 marks at 5 in grade 3, with
the remaining 12 marks at 6 in the year. She obtained 76% for term 1 in grade 4.
There are no results for other terms. There were no results for grade 5. She
obtained 72% to 75% in her subjects in grade 6 for the year.
35 L[...] was in grade 7 when the matter came before Court. She obtained 62% in
grade 7 during the first term. There were no results for the other terms. The
following general comment is made in her report for this term: “ L[...] has produced
some good results. There is, however, still room for improvement. Keep doing your best. Good behaviour, keep it up!”
36 The educational psychologist, when faced with the fact that L[...] ’s schooling
had not been affected; chose to undermine the school reports by championing the view that his testing showed L[...] to be compromised. This is demonstrated by the
educational psychologist saying the following in his report:
9
In contrast to the school records provided, the scholastic profile is indicative of
prevailing learning problems. L[...]’s performance on the English reading was adequate. Of concern was her reading comprehension, spelling, creative writing, and numeracy skills were noted to be below the grade level.
37 There is simply no cogent basis for the educational psychologist to seek to
disregard the school reports. There is no support that L[...] had “prevailing learning
problems.” There is equally no support for the stated concern about L[...]’s reading
comprehension, spelling, creative writing, and numeracy skills being below the grade
level.
38 The educational psychologist simply chose to ignore facts that do not support
his unfounded view that L[...] has been impaired. There is no information showing
comparative marks against the grade in relation to “spelling”, “creative writing”, “reading comprehension”, and “numeracy skills”. These criteria do not appear in the school reports. Entries in the school reports contradict the statement that L[...] had
learning difficulties in equivalent areas mentioned by the educational psychologist.
39 The equivalent fields in the areas in which L[...] is said to have learning
difficulties show the following. L[...] performed as follows during term 1 of grade 7:
she scored 76% against the grade average of 67% in ‘creative arts’. She scored 65% against the grade average of 57% in mathematics. She scored 50% against the grade average of 51% for English Home Language. The grade 6 result for the four
terms in relation to mathematics were as follows: she scored 74% (compared with the grade average of 63%); 73% (compared with the grade average of 62%); 60% (compared with the grade average of 61%), and 71% (compared with the grade average of 62%). Her score for English Home language was as follows: 71% (compared with the grade average of 61%); 61% (compared with the grade average of 60%), 75% (compared with the grade average of 64%), and 67% (compared with the grade average of 60%). L[...] clearly outperformed the grade average.
40 The industrial psychologist did not fair better in his report. He ultimately rested
his claims on the following unsubstantiated assertion: that the vocational and
10 educational profile of L[...]’s family play a role in postulating L[...]’s career path had
the accident not occurred, and that “…today, in South Africa, many children achieve
higher levels of education than their parents…”.
41 The various reports presented as evidence in support of the plaintiff’s claim
cannot be truly said to be independent reports by their authors. The reports strike
one as products of an echo chamber, with each expert reflecting the opinion of an expert in a different field to buttress their own views.
42 It would be far more salutary for each expert to express an opinion based on
their expertise, without commenting on the views of an expert in a different discipline.
The industrial psychologist, given the nature of their professed expertise, would be the exception. The reports by the experts otherwise become instances of positive reinforcement, which may lack merit.
43 I find that there is no support that the accident affected L[...] as contended for
by the various experts. Dr Mazwi did not file an affidavit confirming his report. His
report is therefore hearsay. This is a further basis for the court rejecting his evidence,
in addition to what the Court has said about his evidence elsewhere in this judgement. Dr Mazwi’s report was, in any event, “stale” and cannot be relied upon as evidence. Dr Mazwi restricted reliance on this report to 24 months of his assessment of L[...]. The assessment was on 17 February 2023. The matter came before Court
on 7 May 2025, more than 24 months later. There was no supplementary report.
44 The plaintiff has not shown that L[...] was injured as contended for in the
pleadings.
45 I do not accept that the Court should make a finding that the plaintiff made out
a case for the contended loss, including based on the stated “sleeper effect” according to the educational psychologist. The plaintiff would have the Court make a
finding that there will be an adverse outcome and for such a finding to be made on
speculation. The plaintiff chose to prosecute her claim now. Nothing prevented the claim being prosecuted later, or for further reports to be filed, if the plaintiff seeks to make a case that L[...] suffered a loss in part because of the “sleeper effect”.
11
46 I make the following order:
(1) The claim for loss of earnings is dismissed.
O Mooki
Judge of the High Court Gauteng Division, Pretoria
Counsel for the plaintiff: M E Ngobeni
Instructed by: M G Mali Attorneys Inc.
Date heard: 7 May 2025
Date of judgement: 27 June 2025