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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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 1744/2007
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
24/07/2025
In the matter between: -
SIMON MZWAKHE MATYENI PLAINTIFF
And
THE ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
THERON AJ
INTRODUCTION
[1] The matter came before me on a default judgment basis. The Defendant’s
defence was struck out by an order dated 2 February 2024. The Plaintiff claims
damages due to injuries he sustained in a type of pedestrian accident, although
he was struck by a motor vehicle whilst sitting on a “Stoep”. The Defendant
conceded liability in relation to the merits.
[2] The Court is asked to adjudicate the quantum aspect of the claim. The Plaintiff
applied in terms of Rule 38(2) for the affidavits and reports of the following
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experts to be admitted as evidence, without the need to call these experts to
testify:
(a) Dr ND Thikhathali (Orthopaedic Surgeon);
(b) M Molemi (Occupational Therapist);
(c) O Sechudi (Industrial Psychologist);
(d) JJC Sauer (Actuary).
The application was duly granted.
THE EVIDENCE
[3] According to Plaintiff’s ID document he is currently 49 years old. The accident
occurred on the 1 st of December 2005 (he was then 29 years old). From the
hospital records it seems he suffered a fracture/dislocation of his left ankle. His
ankle was later operated on where they did an open reduction and internal
fixation of the left ankle fracture.
[4] Dr ND Thikhathali (the Orthopaedic Surgeon) reported that he consulted with the
Plaintiff on the 25 th of August 2022. The Plaintiff was initially treated at Odi
Hospital, where his fracture was reduced and stabilized in a back slab. He was
given analgesia on arrival at the hospital and an intravenous line was inserted
and intravenous analgesia and fluids were provided. He was later transferred to
Dr George Mukhari Academic Hospital where he was managed surgically with an
open reduction and internal fixation of the left ankle with plates and screws. He
complains of left ankle pain on running or walking long distances.
[5] The Plaintiff was a professional soccer player at Mabopane young masters first
national division prior to the injury. He had no functional limitations prior to the
injury. Since the accident he was unable to play soccer. He complains of being
unable to run and walk long distances due to pain. He Completed matric in 1998
and then obtained a certificate in plumbing . He is currently working at City of
Tshwane, where he has been working in the plumbing division for the past 15
years.
[6] Dr ND Thikhathali examined the Plaintiff and confirmed some surgical scarring on
his left ankle. In relation to his left ankle, he found no obvious deformity of the
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ankle, no tenderness elicited on palpation and no crepitus on range of motion. He
experiences stiffness of the ankle on flexion and extension and subtalar joint
stiffness. X-rays taken on the day of examination showed there is a fracture at
the junction of middle and distal thirds of the fibula. There is internal fixation with
a metal plate and screws, where bony union has occurred. A metal screw is
placed at the distal tibia and fibula for fixation of the syndesmosis. There are
cortical irregularities and bony prominence at the interosseous membrane and
syndesmosis at the distal thirds of the tibia and fibula in keeping with previous
trauma in this area. There is also narrowing of the lateral joint space with
periarticular sclerosis at the ankle joint, in keeping with degenerative change
secondary to previous trauma.
[7] The expert is of the opinion that the Plaintiff’s injury and its outcomes have
justifiably ended his football career. He has however managed to get employed
as a plumber at City of Tshwane where he currently works. His activities of daily
living have not been affected by this in jury. He opines that the injury sustained
has resulted in a serious long -term impairment and loss of body function.
Therefore, the Plaintiff qualifies for compensation (general damages) under
section 5 .1 of the RAF 4 guidelines and the Narrative test report.
[8] Miyelani Molemi (the Occupational Therapist) assessed the Plaintiff on the 16th
of August 2022. At the time of the accident, Mr. Matyeni reports that he was a
professional football player for Mabopane Young Masters at National First
Division. The Court took note of an employer’s certificate from one O P Kugwane,
who reported that the Plaintiff earned an annual salary of R 54,000 as a soccer
player. In 2007, he secured work as a plumber at Odi water service. He indicated
that he works from 7h00 to 16h00 Monday to Friday. Based on his described
duties, his work appears to fall within the heavy strength demand. Although he
duties, his work appears to fall within the heavy strength demand. Although he
continues to work, he reportedly experiences left ankle pain mainly with handling
loads and squatting.
[9] The expert concluded that he presented with functional strength and full range of
movement of both lower limbs in all joints. He however reported left ankle pain
with all movements of the ankle. The assessment results indicate adequate
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ability to standing, squatting / crouching. These were however done with reports
of pain to his left ankle which can be expected to have a negative effect on his
tolerance of these postures in an 8 hour shift. Nonetheless, his performance on
above manual tasks meets standards of open labour market. He was able to
perform all mobility and agility skills. Limitations can be expected with sustained
postures such as standing, stooping and squatting as well as mobility tasks such
as walking. This is mainly as a result of experienced pain.
[10] According to the expert the Plaintiff remains unsuited for his premorbid job as a
Professional Football Player as this is high impact in nature (requiring running)
and can be expected to aggravate pain and hasten symptoms of reported
arthritis. Furthermore, his current work is within the heavy strength demand and
he only demonstrated the residual physical capacity to perform work up to
medium strength demand. His reported limitations with performance of work
associated tasks is justified. He thus will benefit from reasonable
accommodation.
[11] Having regard to his continued employment as plumber since 2007 to date (18
years) it is clear that his employer is either satisfied with his work performance or
is accommodating him. Either way, it seems unlikely to the Court that he would
lose his current employment. The expert has however opined that he has been
rendered a vulnerable and an unequal competitor in the open labour market. In
this regard the Court needs to consider the degree of loss of earning capacity
suffered by the Plaintiff due to the injuries suffered in the accident in question.
[12] O O Sechudi (the Industrial Psychologist) examined and assessed the Plaintiff on
the 16th of August 2022. Mr. Matyeni reported that he passed Grade 12 in 1998
at Klipgat High School. Subsequently he obtained a Plumbing Trade Certificate
from Brethel College prior to the accident date. No other vocational qualification
from Brethel College prior to the accident date. No other vocational qualification
was obtained by Mr. Matyeni post-accident. After the accident he could no longer
play professional soccer and he remained unemployed until he was able to
secure an alternative job in Jul y 2007. The Court notes from the employer’s
certificate that he was paid his normal salary for two months after his injury of
which one month was contractually obligated. From July 2007 he was employed
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as plumber earning R 15,800 per month.
[13] The expert obtained collateral evidence in support of his earlier career as soccer
player. During a telephonic discussion held with Mr. Kgomotso Phahladira
(former manager at Mabopane Young Masters Football Club) on the 20th of April
2023, he reported that the claimant was a very talented player to the extent that
he was attending training session with the premier league team at Wits. He also
insisted that in his view, Mr. Matyeni had the potential to possibly be recruited by
a PSL team before reaching his soccer career ceiling. The Court notes that no
affidavit by Mr Phahladira was presented to Court to support the hearsay
evidence presented by this expert witness. This aspect will be discussed later.
[14] According to the expert it was reported to him that the entry basic salary often
offered to soccer players at the PSL level is about R20 ,000 per month.
Furthermore, Mr Phahladira mentioned that most soccer players tend to
discontinue playing professional football by the age of 35 years. If they acquire
any other sports related training/qualification, they often secure jobs as a coach
or join the management team at soccer clubs. This expert correctly indicated that
deference is made to factual information in this regard. Such factual information
or proof is however absent from the evidence before the Court.
[15] The expert then postulated a “scenario 1” regarding the Plaintiff’s possible pre-
morbid career progression but fails to suggest any other scenarios.
Scenario 1: The expert incorrectly states that the Plaintiff earned a salary at the
time of the accident from his soccer career in the amount of R 66,000 per annum.
This is obviously incorrect, as the employer certificate clearly indicates he earned
an annual salary of R 54,000 per annum. He then continues to postulate that he
may have progressed within his chosen profession with the potential of
may have progressed within his chosen profession with the potential of
eventually being recruited to a PSL first division club and/or even play for
international teams. Therefore, his salary may have increased with his earnings
subsequently ranging between R20,000 per month (entry level salary). Therefore,
within the PSL league, he may have earned R240 000 per year. From the age of
36 years, he may have opted to secure better employment within the
soccer/sporting profession as a coach or as part of the management team. This
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would have allowed his career to further progress. As such, his earnings may
have progressed towards Paterson D3 to the Upper Quartile [R430 000] per year
on the scale for middle management workers (corporate survey earnings) (Koch,
2007). The claimant would have likely reached his ultimate career ceiling by the
age of 45 years. From the age of 46 years, any increases in his earnings may
have been attributed to additional inflationary increases until normal retirement
age. He would have been expected to continue working until he retired at the age
of 65 years, depending on his health and as per the employer's policy.
[16] The Court needs to consider the reasonableness of this postulation having
regard to the evidence it was based on and such conclusions need to make
logical sense. There is no acceptable proof that the Plaintiff would have
progressed to playing professional soccer in the PSL league. There is also no
evidence to support the conclusion that the Plaintiff’s talents and proven
performance as soccer player in the National First Division supports a conclusion
that, on a balance of probability, he would have progressed to the PSL or
international leagues. There is no evidence by way of supporting documents or
affidavits that confirms the salaries of PSL or international league players. The
figures mentioned in the expert’s report seems to be random figures taken from
hearsay evidence obtained through a phone call to a person who purports to be a
former manager of the team where the Plaintiff played.
[17] The expert’s view that the Plaintiff would then progress towards Paterson D3 to
the Upper Quartile [R430 000] per year on the scale for middle management
workers has no basis. There is no indication that the Plaintiff has or would have
gained middle management skills if he proceeded with a soccer career and there
is no explanation as to why we should accept that the Plaintiff could possibly
is no explanation as to why we should accept that the Plaintiff could possibly
have moved into that career path. The expert in fact confirms that “ Mr. Matyeni
does not have education background and work experience nor the necessary
vocational qualifications for work that is sedentary to light in nature ”. This would
inevitably support the notion that he was and is not suitable for any employment
in middle management . For the reasons mentioned above t he postulation made
and termed “scenario 1” stands to be rejected.
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[18] Post-morbid, the expert opines that the findings of the experts suggest that Mr.
Matyeni has become less competitive and likely disadvantaged as a candidate in
the open labour market. Should he for whatever reason lose his current job, he
will find it difficult to secure the same or similar occupation in the open labour
market as a result of residual physical limitations. The Court does agree with this
sentiment and thus it can be accepted that the Plaintiff suffered a loss of earning
capacity. In order to compensate the Plaintiff for this loss a higher post -morbid
contingency should be applied to his post-morbid future earnings calculation.
[19] Past loss of income : It is clear from the evidence that the Plaintiff suffered a
loss of earnings from one month after his injury (having received one month’s
salary as contractually obliged by the employer) to the date he secured
employment in July 2007. Thereafter there is no proof of loss of earnings to date
of trial.
[20] The actuary prepared calculations for the Plaintiff’s pre -morbid earnings based
on the incorrect figure of R 5,500 per month as mentioned earlier in my judgment.
Furthermore the actuary incorrectly accepted that the Plaintiff would have earned
the income of a professional soccer player in the PSL league up to age 45, where
the Industrial Psychologist confirmed that a professional soccer player will only
play professionally to age 35. It is the Court’s view that the calculation in relation
to the Plaintiff’s future loss of earnings should be done by comparing his current
earnings, as projected into the future, with the same figure, but with a higher
post-morbid contingency deduction.
[21] The actuary further calculated the past loss of earnings based on the incorrect
assumption that the Plaintiff was not paid at all after the date of accident. This
does not correspond with the evidence before the Court. In the result, the Court
does not correspond with the evidence before the Court. In the result, the Court
will grant damages in relation to the past loss of earnings based on a nominal
figure arrived at considering the information available to the Court.
THE CALCULATION
[22] Considering the acceptable evidence before the Court the Plaintiff’s loss is
calculated as follows:
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Past loss:
Plaintiff remained unemployed and without an income from 1 January 2006 to
30 June 2007 (18 months at a salary of R 4,500 per month). In this regard a
reasonable amount to be awarded for his past loss of earnings is the amount of
R 81,000 (in 2006 monetary terms) . To bring this amount in line with the current
monetary value, the amount is adjusted to R 231,985.
Future loss:
Projected future earnings as plumber to retirement: R 2,268,496.
Less 10% contingency: pre-morbid – R 2,041,646.
Less 25% contingency: post-morbid – R 1,701,372.
Future loss of earnings is thus R 2,041,646 less R 1,701,372 and equals an
amount of R 340,274.
GENERAL DAMAGES
[23] The Defendant made an offer to settle the Plaintiff’s claim for general damages,
which inevitably confirms that the Defendant accepts the fact that the Plaintiff
qualifies for general damages and concedes the serious injury assessment by
the Plaintiff’s expert.
[24] The Plaintiff amended his particulars of claim to increase his claim for loss of
earnings to an amount of R 5,558,186 and general damages to an amount of
R 350,000 (CaseLines 03-9). Although counsel for the Plaintiff argued for an
award of R1,300,000, the Court cannot award a higher amount of damages than
is claimed in the pleadings. Having regard to the injuries suffered and
comparable caselaw the Court is satisfied that the maximum amount claimed can
be awarded and as such awards the amount of R 350,000 for general damages.
FUTURE MEDICAL EXPENSES
[25] The experts indicated the need for future treatment in relation to the injuries
suffered in the accident. Therefore the Court instructs the Defendant to provide
the Plaintiff with an undertaking in terms of Section 17(4) (a) of the Road
Accident Fund Act, 56 of 1996 for the reasonable costs of the future
accommodation of the Plaintiff in a hospital or nursing home or treatment or
rendering of a service or supplying of goods to him resulting from the motor
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vehicle accident related injuries sustained by the Plaintiff, as a result of the motor
vehicle collision which occurred on the 1st day of December 2005 after such
costs have been incurred and upon proof thereof.
ORDER
The court therefore orders as follows:
1. The Defendant is liable for 100% of the Plaintiff’s proven damages.
2. The Plaintiff’s Rule 38(2) application is granted, with costs.
3. The Defendant is ordered to provide the Plaintiff with an undertaking in terms of
Section 17(4) (a) of the Road Accident Fund Act, 56 of 1996 for the reasonable
costs of the future accommodation of the Plaintiff in a hospital or nursing home or
treatment or rendering of a service or supplying of goods to him resulting from
the motor vehicle accident related injuries sustained by the Plaintiff, as a result of
the motor vehicle collision which occurred on the 1st day of December 2005 after
such costs have been incurred and upon proof thereof.
4. The Defendant is ordered to pay the Plaintiff an amount of R 922,259 (nine
hundred and twenty -two thousand two hundred and fifty -nine rand) consisting of
the following:
(a) Past loss of earnings R 231,985
(b) Future loss of earnings R 340,274
(c) General damages R 350,000
5. Payment of the judgment amount as well as taxed or agreed costs shall be made
into the trust account of Plaintiff’s Attorneys, Toohey Nyezi Rambau
Incorporated, by direct transfer, details of which are the following:
Bank: First National Bank
Account number: 6[...]
Branch: Pretoria
Branch code: 2[…]
Reference number: T[...]
6. In the event that the aforesaid amount is not paid timeously, the Defendant shall
be liable for interest on the amount at a rate of 10.75% per annum, calculated
from 14 days after date of this order to the date of payment.
7. The Defendant shall pay the Plaintiff’s costs on the High Court party and party
scale including counsel fees on scale A.
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H W THERON
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
Appearances:
Attorney for the Plaintiff: Toohey Nyezi Rambau Attorneys
Counsel for the Plaintiff: Adv M Pienaar / Adv Mulibana
Date heard: 25 June 2025
Date of judgment: 24 July 2025