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
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 52996/15
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE : 01/07/2025
SIGNATURE
In the matters between: -
NONTUTUZELO ELIZABETH KUMALO PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
The matter was heard in open court and the judgment was prepared and authored by
the judge whose name is reflected herein and was handed down electronically by
circulation to the parties’ legal representatives by email and by uploading it to the
electronic file of this matter on Caselines. The date of handing -down is deemed to be 1
July 2025 .
______________________________________________________________________
JUDGMENT
__________________________________________________ ____________________
KEKANA AJ
INTRODUCTION
[1] This is a claim by the plaintiff against the Road Accident Fund for damages arising
from a motor vehicle collision which occurred on or about 04 November 2011 at or near
Vaal Fisheries, North Street.
[2] The issues for determination are firstly, whether the defendant is liable for the
plaintiff’s damages; and secondly, if liability is established, the amount of the plaintiff’s
claim in respect of general damages and loss of earnings and/or loss of earning
capacity. The plaintiff seeks an order directing the defendant to compensate him for
100% of his proven damages. The matter is defended.
RULE 38(2) APPLICATION
[3] The Plaintiff brought an application that the evidence relating to the medico -legal
reports of the medical experts and the actuarial report of the Actuary, be allowed by
affidavit in terms of the provisions of Uniform Rule of Court 38(2). The court granted the
application.
EVIDENCE
[4] The plaintiff testified and did not call any witnesses. She testified that on the 04
November 2011 at Vaal Fisheries, North Street she was knocked by a motor vehicle
bearing registration letters and numbers H[...] (hereinafter referred to as the “insured
motor vehicle ”) whilst crossing the road. She was stepping on the pavement when a
motor vehicle struck her from behind and she fell forward. She stood up and checked
herself. The driver got out of the vehicle and apologised. Realising she was not
bleeding, she walked away. It was only when she was later at the taxi rank that she felt
a change in her body, she felt pain in her leg. The following day, she went to the hospital
because the pain got worse. She spent 4 days at the hospital in Klerksdorp. She was
treated for the painful hip, arm and spinal cord muscles.
[4] Before the accident, she was self -employed as a hawker. She sold clothes and achar
at SASSA pay points. Since the accident, she has been unable to work. She now sells
peanuts and Simba chips at home because she cannot walk long distances. She cannot
sit for a long time and struggles with back pain. During cross -examination, she stated
that she looked before crossing the road and there was no vehicle approaching. The
motor vehicle that struck her was in the process of parking.
[5] It was submitted on behalf of the defendant that the plaintiff failed to look at all sides
and therefore, an apportionment of 90/10 should be made. On the other hand, it was
submitted that there was no contributory negligence and therefore the defendant should
be held liable for 100% of the plaintiff’s proven damages.
ANALYSIS - MERITS
[6] It is trite that the plaintiff bears the onus to prove negligence on the part of the
defendant. O nce a prima facie case is established, the defendant must rebut the
inference of negligence or face an adverse finding.
[7] The plaintiff's evidence regarding the circumstances of the accident was not
seriously challenged in material respects. It is common cause that the plaintiff was a
pedestrian who had crossed the road and was stepping onto the pavement when she
was struck from behind by the insured motor vehicle. The defendant did not call any
witnesses, including the driver of the insured vehicle, and thus the only version before
the court is that of the plaintiff.
[8] In assessing the issue of negligence, the court in Ntsala v Mutual & Federal
Insurance Co Ltd 1996 (2) SA 184 (T) at 190 held that:
“Once the plaintiff proves an occurrence giving rise to an inference of negligence on the
part of the defendant, the latter must produce evidence to the contrary: he must tell the
remainder of the story, or take a risk that judgment be given against him.”
[9] In Ngubane v South African Transport Services 1991 (1) SA 756 (A), the court
explained that contributory negligence is established when the plaintiff fails to act with
the degree of care that a reasonable person would have exercised under the same
circumstances. However, the onus rests on the defendant to prove such contributory
negligence on a balance of probabilities.
[10] In the present matter, the defendant has failed to discharge that onus. The plaintiff’s
version is that she looked for oncoming traffic before crossing and that no vehicles were
approaching at the time. Furthermore, she was struck from behind while stepping onto
the pavement. There is no evidence to suggest that she acted in any way that
contributed to the collision.
[11] The fact that the vehicle struck the plaintiff from behind, strongly suggests that the
driver of the insured vehicle failed to keep a proper lookout. The defendant’s failure to
call the driver or offer any alternative version of events leaves the plaintiff’s evidence
uncontroverted.
[12] In SANTAM Insurance Co Ltd v Vorster 1973 (4) SA 764 (A), the Appellate Division
held that in pedestrian -motorist collisions, courts must evaluate the evidence in its
totality and determine whether the pedestrian contributed to the cause of the accident.
In this case, there is no evidence to support a finding of contributory negligence.
[13] Accordingly, I find that the plaintiff acted reasonably in the circumstances and that
the sole cause of the accident was the negligent conduct of the driver of the insured
vehicle. The defendant is therefore liable for 100% of the plaintiff’s proven damages.
QUANTUM
[14] I now turn to the issue of quantum.
THE PLAINTIFF’S INJURIES
[15] It is not in dispute that as a result of the collision, the plaintiff sustained a soft tissue
injury of the thoraco -lumbar spine, with resultant spondylosis. She presented with right
hip pain with paraparesis of both lower limbs and thoracic and sacral pain.
[16] According to the orthopaedic surgeon, Dr Peter Kumbirai, the plaintiff’s injuries
have resulted in a 10% risk of progression to radiculopathy over the next 5 to 10 years,
potentially necessitating decompression surgery. The plaintiff continues to experience
chronic spinal pain which significantly limits her functional capacity, particularly in
relation to occupations requiring physical exertion.
[17] The clinical psychologist, Dr C.D. Roode, diagnosed the plaintiff with symptoms of
clinical depression and anxiety, including suicidal ideation, agitation, poor concentration,
and feelings of worthlessness. These psychological symptoms were causally linked to
the injuries sustained in the collision.
[18] The occupational therapist, Mr Lefatane Makgato, stated that the plaintiff had been a
self-employed hawker selling clothes, fruits and achar. Post -accident, she returned to her
occupation but has been unable to perform her duties effectively due to persistent pain.
She now depends on others to assist her in her informal trade.
[19] According to the industrial psychologist, Dr Talifhani Ntsieni, the plaintiff’s injuries
have negatively impacted her psychological and occupational functioning. Further that
she has suffered a significant diminution in her competitiveness in the open labour
market. Her earning potential has been reduced, and she remains reliant on
sympathetic assistance and accommodations in her current self -employment.
ANALYSIS - QUANTUM
[20] The plaintiff bears the onus to prove the loss of earnings and earning capacity on a
balance of probabilities. The legal position is well -established in Southern Insurance
Association Ltd v Bailey NO 1984 (1) SA 98 (A) and Rudman v RAF 2003 (2) SA 234
(SCA), which require the court to assess the difference in patrimonial value between
pre- and post -accident earning potential, factoring in contingencies and future risk.
Where precise evidence is not available, the court must do the best it can on the
evidence before it. The approach is not to “guess” but to exercise a sound judicial
discretion based on the available facts and probabilities .
[21] In RAF v Guedes 2006 (5) SA 583 (SCA) at para 8, Zulman JA stated the following
regarding loss of earnings: -
“The court exercises a wide discretion when it assesses the quantum of damages due
to loss of earning capacity and has a large discretion to award what it considers right.
Courts have adopted the approach that in order to assist in such a calculation, an
actuarial computation is a useful basis for establishing the quantum of damages. Even
then, the trial court has a wide discretion to award what it believes is just”.
Pre- and Post -Accident Employment
[22] Dr Kimburai indicated that the plaintiff was self -employed, selling food and clothing
items, while on the other hand, Dr Roode noted that she managed two tuckshops,
regularly walking between them to monitor stock levels. Dr Makgato stated that the
plaintiff worked as a cleaner in 2005 before becoming self -employed, running a tavern
and two shops. She later ceased these operations due to marital difficulties. By the time
of the accident, she had been working as a hawker since 2000, selling clothes and
vegetables. Dr Makgato further noted that at the time of the assessment, the business
was being run by her son and a friend. In a follow -up report, Dr Makgato stated that she
was operating two tuckshops.
[23] Dr T Ntsieni reported that the plaintiff was employed as a cleaner from February to
December 1994 and had also been selling clothes, atchar, meat, and fruit from 1992
until November 2011. After a period of staying home, she resumed her business in
January 2014, although she now relies on her son and a friend due to mobility issues.
Her son delivers atchar and fish to customers after school, and her friend sells atchar
door-to-door, including at hospitals and pension points.
[24] The evidence regarding plaintiff’s occupational history is full of discrepancies. In the
report of the clinical psychologist, she is reported to have been running two tuckshops
at the time of the accident, while the orthopaedic surgeon and the occupational therapist
reported that she was self -employed as a hawker selling clothes and food. In her
evidence before this court, she testified that she was a hawker at the time of the
accident, selling potatoes, atchar, clothes, hampers containing cooking oil, maize meal,
sugar and flour.
[25] There are also discrepancies regarding post -accident employment. She testified
that she continues to sell Simba chips and peanuts at home and at the hospital when
she goes for her checkup, her friend assists her in selling. In the reports she was said to
be selling atchar and fish with the assistance of her son, daughter and a friend.
[26] The industrial psychologist put forward a pre -accident income of R5 000 to R7 000,
while Post -accident, she stated that she earns approximately R2 400 per month , but this
is with the assistance of the friend and his son. No collateral information was provided.
All the information regarding the plaintiff’s earnings was provided by the plaintiff.
Consequently, the expert reports are based on information that has not been proved
before this court.
[27] In Nkala v RAF (16158/2018) [2025] ZAGPJHC (10 March 2025) para 5, it was
stated that: “The plaintiff is required to prove its case, which includes the claim for loss
of earnings. In the absence of factual proof of income, the postulations hold no merit
relating to a claim for loss of income.”
[28] In Mathebula v RAF [2006] ZAGPHC 261 at para 13, the court held that expert
evidence must be based on facts established through admissible evidence during trial
unless admitted or proven by competent witnesses. The failure to adduce oral evidence
renders their opinions of no evidentiary weight. See also Mlotshwa v RAF (9269/2014)
[2017] ZAGPPHC 109 (29 March 2017) at para 20 -22 and Boy Petrus Modise v
Passenger Rail Agency of South Africa case number A5023/2013 (11 June 2014) at
para 10.
[29] In this matter, the information regarding the plaintiff’s income that the experts relied
on was not established through admissible evidence before this court. The plaintiff gave
inconsistent evidence regarding her employment or activities pre - and post -accident.
Neither her friend nor children nor customers were called to testify. Consequently, the
opinion of the industrial psychologist and the actuary regarding the plaintiff’s income is
of no evidentiary value.
[30] I therefore find that the plaintiff has failed to prove her claim for loss of earnings.
GENERAL DAMAGES
[31] The plaintiff has also brought a claim for general damages for pain and suffering,
emotional shock, discomfort, and loss of amenities of life. The injuries sustained by the
plaintiff resulted in chronic thoraco -lumbar and sacral pain, paraparesis in the lower
limbs, degenerative spinal changes, and psychological consequences including
depression, anxiety, and suicidal ideation. The defendant made an offer which has been
uploaded with the amount redacted.
[32] The clinical psychologist, Dr Roode, confirmed that the plaintiff developed
symptoms of clinical depression linked to the trauma of the accident and its aftermath.
The orthopaedic surgeon confirmed that her spinal condition is permanent and may
deteriorate further. She can no longer perform the physical functions she previously
managed independently
[33] In determining a fair award, the court is enjoined to consider the nature and extent
of the injuries, their impact on the plaintiff’s lifestyle, emotional well -being, and future
prospects. The court is further guided by comparable awards in case law, updated for
inflation and the time that has lapsed since those judgments.
[34] In De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA), the Supreme Court of
Appeal confirmed that awards for general damages must be fair to both parties, having
regard to past awards in comparable cases, but adjusted for present -day values. The
court also recognised that there is no mathematical formula for such awards, and each
case must be considered on its own facts.
[35] The plaintiff continues to suffer from constant pain in her lower and middle back,
which may worsen into nerve damage in the future. She is no longer able to carry heavy
items, stand for long periods, or move around independently while working. She also
struggles with serious psychological issues, including depression, anxiety, memory
problems, and suicidal thoughts. These physical and mental challenges have reduced
her ability to enjoy life, move freely, live independently, and support herself through
work.
[36] It is trite that the court enjoys a wide discretion in determining the appropriate
quantum for general damages. This discretion must, however, be exercised judiciously
after a careful consideration of all the relevant facts and circumstances, so as to arrive
at an amount that is fair and adequate compensation for the injured party. (See Road
Accident Fund v Marunga 2003 (5) SA 164 (SCA)).
[37] While previous awards in comparable matters may serve as useful guidelines, they
cannot be applied rigidly. Each case must be assessed on its own merits, taking into
account the unique facts, nature and extent of the injuries suffered, and the
consequences thereof. Courts are cautioned against mechanically matching previous
awards, as few cases are directly comparable. (See Minister of Safety and Security v
Seymour 2006 (6) SA 320 (SCA ).
[38] Nonetheless, where comparable cases are available, they may afford some
guidance. In SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A) at 841D, the
court recognised that cases with at least some similarities are useful as a benchmark. In
Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 536A –B, it was held:
“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.”
[39] The court was referred to a number of previous awards in support of the plaintiff’s
case. C omparable cases considered by the court are as follows:
Stestenko v Road Accident Fund 2023 ZAGPPHC 155 78479/2017 3 March 2023.
Injuries: Fracture of the mid -body of the sternum, fractures of the anterior right 4'' and
lateral right 6'" ribs with hemopneumothorax, Spinal fractures involving superior end
plate of T12, compression fracture of L1, superior end plate fracture of L2 and burst
fracture of LS, blunt abdominal trauma with small bowel perforation. The current value
of the award is R596 218.00,
[40] In Nkepang v Road Accident Fund (RAF324/22) [2024] ZANWHC 239 (17
September 2024) the plaintiff suffered the following injuries: a) Laceration on the left
wrist; b) Right cheek soft tissue injury; c) Right shoulder neck of humerus fracture; and
(c) Thoracolumbar spine soft tissue injuries. The court awarded R400 000 for general
damages.
[41] Having considered the nature and extent of the injuries sustained by the plaintiff in
the present matter, the pain and suffering endured, the residual impact on his quality of
life, and guided by comparable past awards, I am of the view that an award of R 500
000.00 constitutes fair and reasonable compensation for general damages in this case.
[42] Having considered the totality of the evidence, the applicable legal principles, and
the submissions made on behalf of the parties, the court is satisfied that the plaintiff has
succeeded in proving her claim on a balance of probabilities. In light of the injuries
sustained, the resultant impairment, and the impact on the plaintiff’s earning capacity,
the court finds that a fair and reasonable award in respect of general damages for pain
and suffering, loss of amenities of life, and emotional trauma is R 500 000 .00.
Accordingly, the following order is made:
1. Application in terms of rule 38(2) is granted
2. The defendant is liable for 100% of the defendant’s proven damages.
3 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 for the costs of the future
accommodation of the plaintiff in hospital or nursing home or treatment of or rendering
of a service to the plaintiff or supply of goods to the plaintiff arising out of the collision
that occurred on the 4 November 2011, after such costs have been incurred and upon
proof thereof;
4. The defendant is ordered to pay the plaintiff the total amount of R 500 000.00 in
respect of general damages .
5. Absolution from the instance in respect of loss of earnings.
6. The defendant is ordered to pay the plaintiff’s taxed or agreed costs of suit.
P D KEKANA
ACTING JUDGE OF THE HIGH COURT
Heard on: 12 February 2025
Delivered on: 1 July 2025
Appearances:
On behalf of the Plaintiff: ADV MULIBANA
On behalf of the Defendant: ADV MBUYISA