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
FREE STATE DIVISION, BLOEMFONTEIN
Case No: 5271/2021
In the matter between:
MOTHEPANE ELLEN LEPHATSI PLAINTIFF
(ID NO: 8[…])
and
ROAD ACCIDENT FUND DEFENDANT
(Link Number: 4321503)
AMENDED ORDER
On 21 June 2025 I delivered my judgment. I have noted that I did not include the
amount I awarded for loss of income in my order despite my finding for loss of
income. I hereby amend the order granted on 20 June 2025 as follows:
1. The Defendant to pay 100% of the Plaintiff’s proven or agreed damages.
2. The Defendant to pay the plaintiff the amount of R493 376.10 (four hundred
ninety-three thousand, three hundred seventy- six rand ten cents) for loss of
future income.
3. General damages are postponed sine die
4. The aforesaid amount is to be paid into the following bank account:
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Symington & de Kok Attorneys
First National Bank
Account number: 6[…]
Branch code: 250 655
Reference: TR0706FXL2396
4. The defendant is ordered to furnish the plaintiff within 180 days from date of
this order with an undertaking in terms of section 17(4)(a) of the Road Accident Fund
Act, 1996, for payment of 100% of the costs of the future accommodation of the
plaintiff in a hospital or nursing home, or treatment of or rendering of a service or
supply of goods to h er arising out of the injuries that she sustained in the motor
vehicle collision which occurred on 7 October 2017 and the sequelae thereof, after
such costs have been incurred and upon proof thereof.
5. The aspect of past medical expenses is abandoned by the Plaintiff.
6. The defendant shall pay the plaintiff’s taxed or agreed fees on Scale B as
contemplated under Rule 67A of the Uniform Rules if the Court which shall also
include the translator fees for the plaintiff and all the accommodation costs and
traveling costs for the plaintiff , and AV Theron Swanepoel Attorneys and the
reasonable qualifying, preparation fees , reservation fees and appearance fees of
Counsel and the following experts (where applicable):
6.1 Dr. Ziervogel (orthopaedic surgeon);
6.2 Lariska van Rooyen (Industrial psychologist);
6.3 Enid Kruger (Occupational therapist);
6.4 Dr. Fischer (orthopaedic surgeon);
6.5 Human & Morris (Actuary).
7. Interest shall accrue at the prescribed statutory rate in respect of:
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7.1 the capital amount of the claim, calculated 14 (fourteen) days from date
of this order to date of final payment, in the event that payment is not affected
within the 180 days from date of this order as per prayer 5.
7.2 the taxed or agreed costs, calculated from 14 (fourteen) days from date
of taxation, alternatively date of settlement of such costs to date of final
payment.
MPAMA,AJ
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 5271/2021
In the matter between
MOTHEPANE ELLEN LEPHATSI PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Lephatsi v Road Accident Fund (5271/ 2021) (2025] ZAFSHC
186 (20 June 2025)
Coram: Mpama AJ
Heard: 18,19 & 28 March 2025
Delivered: This judgment was handed down electronically by circulation to
the parties' representatives by email and released to SAFLII. The
date and time for hand-down is deemed to be 12h00 on 20 June
2025
Summary: motor vehicle accident - liability of the defendant for loss of
future income - whether the court can grant a claim for
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general damages when the defendant has not reacted to the
plaintiff's claim of serious of injuries.
ORDER
1 The defendant is liable for the plaintiff's 100% proven damages of the plaintiff.
2 The plaintiff and the defendant must prepare a draft order and such draft order
must make provision for the payment of taxed or agreed fees by the defendant on
scale B as contemplated under rule 67A of the Uniform Rules of Court, reasonable
and qualifying expenses of the expert witnesses.
3 The draft order must be presented to the office of the Registrar in order to
obtain a further order for the payment of the plaintiff by the defendant.
4 The claim for general damages is postponed sine die.
JUDGMENT
Mpama AJ
[1] On 7 October 2017, at Kwakwatsi, Koppies the plaintiff was a passenger in a
motor vehicle driven by the insured driver (the driver), Mr LZ Motsoane, when the
driver lost control of the motor vehicle and collided with an electric pole. She
sustained injuries on the head, face, spine, right knee and bruises all over the body.
The plaintiff instituted action proceedings against the defendant claiming loss of
income, general damages and future medical costs.
[2] The matter was set down for trial on 18 &19 March 2025 for the court to
determine the merits and quantum. The defendant has not conceded that the injuries
of the plaintiff are serious injuries that meet the threshold requirement for an award
of general damages.
[3] On 18 March 2025, the parties requested the matter to stand over until the
following day as the defendant's attorney was still waiting for instructions from the
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defendant. I conceded.
[4] On 19 March 2025, the parties agreed that no oral evidence was to be led and
that the matter was to be adjudicated by the court only on the evidence contained in
the plaintiff's affidavit and various experts' reports. The parties further submitted that
the court must determine the plaintiff's claim for loss of earnings, general damages
and future medical costs. It was further submitted on behalf of the defendant that the
defendant has not yet pronounced itself on whether the plaintiff's injuries were
serious injuries or not. Subsequently, the plaintiffs and the experts' reports,
accompanied by affidavits, were admitted as evidentiary material in these
proceedings on behalf of the plaintiff. Dr Phillipus Jeremia Fischer, (orthopedic
surgeon), Ms Lariska van Rooyen (industrial psychologist), Ms Enid Margaret Kruger
(occupational therapist) and Mr Ian Walsh Morris' (actuary) affidavits were admitted.
The defendant adduced no evidence.
[6] The defendant did not admit its liability therefore the court must first
determine if the defendant is liable to compensate the plaintiff. The plaintiff bears an
onus to prove that the driver's negligence was the sole cause of the accident. The
defendant must disprove this and/or show that the plaintiff contributed to the
negligence, the driver was not the sole cause of the accident.
[7] The plaintiffs affidavit was handed in. The plaintiff averred that, at the time of
the accident, she was a passenger in a car driven by the insured driver when the
driver failed to control the car and hit an electric pole. At the time of the accident, the
weather was fine and the road was in a good condition. She further stated that the
driver was negligent in that he drove at an excessive speed and failed to keep the
motor vehicle under proper control. As a result of the accident, she sustained injuries
on the head, spine, right knee and abrasions and was hospitalised.
on the head, spine, right knee and abrasions and was hospitalised.
[8] The plaintiff, in the particulars of claim, pleaded that the insured driver was the
sole cause of the accident, in that, inter alia, he failed to keep a proper lookout, failed
to keep the vehicle under his proper control and to avoid the collision, in
circumstances where a reasonable person could and should have done so.
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[9] Section 17(1) of the Road Accident Fund Act 56 of 1996 (the RAF Act) places
a duty on the defendant to compensate a third party for bodily injuries arising from
negligent driving of a motor vehicle. The plaintiff was a passenger in the driver's
vehicle. It is not in dispute that the plaintiff sustained bodily injuries as a result of a
motor vehicle accident. On how the accident occurred, there is no evidence
adduced to challenge the plaintiff's evidence.
[10] The plaintiff, since she was a passenger, only needs to prove 1%
negligence on the part of the driver. On consideration of the circumstances under
which this collision occurred, it is my view that the accident was due solely to the
driver's negligent act. Accordingly, the defendant is liable for the plaintiffs 100%
proven or agreed damages.
[11] What remains to be determined is whether the plaintiff sustained
patrimonial loss and if so, what is the amount of such loss. This concerns loss of
income, general damages and future medical costs. In regards to loss of future
income in Rudman v Road Accident Fund [2002] ZASCA 129; [2002] 4 ALL SA
422 (SCA); 2003 (2) SA 234 (SCA), Jones AJA at para 11 said:
'I believe that this conclusion is correct. The fallacy in Mr Eksteen's criticism is that it
assumes that Rudman suffers loss once he proves that his physical disabilities bring
about a reduction in his earning capacity; thereafter all that remains is to quantify the
loss. This assumption cannot be made. A physical disability which impacts upon
capacity to earn does not necessarily reduce the estate or patrimony of the person
injured. It may in some cases follow quite readily that it does, but not on the facts of
this case. There must be proof that the reduction in earning capacity indeed give rise
to pecuniary loss.'
[12] The plaintiff handed in some experts' reports as evidentiary material. On
22 March 2024, the plaintiff was examined by Dr Fischer. He reported that,
22 March 2024, the plaintiff was examined by Dr Fischer. He reported that,
during the examination, the plaintiff produced her hospital records from Boitumelo
Hospital. According to the hospital records, the plaintiff sustained a right knee
injury, head injury and amnesia, sprain and strain of the cervical spine, sprain and
strain of the thoracic spine. The plaintiff reported to him that she struggles with
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some daily activities, walking long distances, lifting heavy weights, suffers from
insomnia and chronic pain in the leg and back.
[13] Dr Fischer conducted radiological examination which revealed that the
plaintiff had a mild congenital scoliosis with the curve to the right, compensation
curve thoracic lumbar junction to the left and no signs of a knee injury. The
plaintiff also complained of pains on the knee. He opined that the snapping
symptoms experienced by the plaintiff on the knee could mean a meniscal injury
and required further medical investigations. He concluded that the plaintiff
sustained back and right knee injury, the constant pain in her right lower limb
leads to severe anxiety and impact her daily living. Furthermore, her back and
knee injuries will worsen over the next ten years and her retirement age would
probably be decreased by 10-15 years.
[14] On 24 May 2023, the plaintiff was assessed by Ms Lariska Van Rooyen. She
compiled a report on 25 January 2024 and an addendum on 5 January 2025. In
essence, she reported that on the day of the assessment, she observed that the
plaintiff walked with a slight right legged gait. The plaintiff reported to her that she
suffered from chronic pain and discomfort on her back, neck and knee. She was
experiencing difficulties with lifting heavy objects, sitting and walking for extended
periods and bending and kneeling.
[15] According to Ms Van Rooyen, the plaintiff was born in 1984, she completed
grade 8 and never received any further training. At the time of the accident and
assessment, she was employed as a domestic worker since 2007 when she was 23
years old. She secured employment with the De Bruin family as a domestic worker in
2010. The plaintiff's salary slips revealed that at the time of the assessment she
earned R5 240. She also interviewed the plaintiff's employer, Mr De Bruin who
informed her that the plaintiff had a longstanding employment relationship with his
informed her that the plaintiff had a longstanding employment relationship with his
family, was a good employee, however her work was negatively affected by the
accident as she works in slower pace. Mr De Bruin further informed her that should
the plaintiff lose this work, she will struggle to find another job as potential employer
will not be sympathetic as his family is towards her.
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[16] Ms Van Rooyen further reported that considering the sequelae of the
accident and the resultant reduced physical scope of employment, reduced
productivity and that her symptoms will worsen within the next 10-15 years according
to Dr Fischer, she is of the view that the plaintiff will retire earlier than normal and
most probably at the age of 52.5 years. If it was not for the accident, the plaintiff
would have worked for the same employer until the age of 65 years. She concluded
that the plaintiff will lose her longstanding employment with the De Bruin family as
she needs to retire earlier, cannot be accommodated in another employment due to
her level of education and, consequently, needs to be compensated.
[17] On 22 March 2023, Ms Kruger assessed the plaintiff and compiled her
report. She reported that the plaintiff was gainfully employed as a domestic worker
at the time of the accident and at the time of the assessment. The nature of plaintiff's
job required light and possibly medium physical effort and considering her level of
education, the plaintiff is best suited for manual labour. The plaintiff reported to her
that she experiences difficulty in bending forward when sweeping, vacuuming and
mopping floors. She also struggles to carry heavy objects and develops oedema
when standing for a long time.
[18] Amongst the tests conducted with the plaintiff by Ms Kruger, was a six-minute
walking test. The plaintiff walked at a gradually decreasing pace with an increasing
limp and increased weight bearing on the left lower limb. She concluded that the
plaintiff's physical abilities no longer meet the demands of her job as a domestic
worker and will not be able to meet the average productivity of a domestic worker.
This has rendered her a compromised and unequal contender in the open labour
market.
[19] Human & Morris Actuaries did the actuarial calculations on 20 February
2025 having taken into consideration the plaintiff's monthly income of R 5 389. Based
2025 having taken into consideration the plaintiff's monthly income of R 5 389. Based
on the experts' opinions, the calculations assumed that the plaintiff will retire at the
age of 52.5 years. Without the application of contingencies, the uninjured future
earnings were calculated at R1 069 907 and the injured future earnings at R640 069.
[20] The expert evidence demonstrates the plaintiff's injuries and the sequalae
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thereof. This evidence is uncontroverted. The plaintiff sustained bodily injuries. This
is the opinion of Dr Fischer after he conducted physical and radiological examination
of the plaintiff. He concluded that the plaintiff's condition will deteriorate and as such
she will not be able to work until the normal retirement age.
[21] The work that the plaintiff does as a domestic worker is physical in nature.
Generally, this form of work includes but not limited cleaning, laundry and, at times,
child supervision. Forward bending, crouching and standing for extended periods are
a common occurrence in this line of responsibility. The plaintiff, prior to the accident,
had no difficulties in relation to performance of her duties.
[22] At the time of the accident, the plaintiff was 33 years old. She worked for her
current employer since 2010 and has been working since 2007 when she was 23
years old. This tends to suggest that she is a reliable, trusted employee and it is
reasonable to assume that she would continue working for this employer until her
retirement age but for the accident. Post the accident, she faces some difficulties
when it comes to her work duties. The occupational therapist and the industrial
psychologist agree that the injuries of the plaintiff have affected her productivity at
work and she will not be able to reach the normal retirement age of 65 years. The
undisputed view of the Dr Fischer and the industrial psychologist is that she will
have to retire earlier due to her physical condition that will deteriorate with time - 52.5
years has been indicated as the reasonable probable age of retirement for plaintiff.
[23] In Mvundle v RAF [2012] ZAGPPHC 57, an unreported judgment from the
Gauteng Division of the High Court, Pretoria, Kubushi AJ, as she then was, held as
follows at para 42:
'It is trite that the damages for loss of income can be granted where a person has in
fact suffered or will suffer a true patrimonial loss in that his or her employment
fact suffered or will suffer a true patrimonial loss in that his or her employment
situation has manifestly changed. The plaintiff's performance can also influence his
or her current job and /or be limited in a number and quality of his or her choices
should he or she decides to find other employment.'
[24] The evidence presented shows that the injuries sustained by the plaintiff will
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continue to impair her capacity to work and her earning capacity has been
diminished by the accident. Due to the plaintiff's level of education, it will be difficult
for her to find alternative employment. It is my view that the plaintiff has been
negatively impacted by the accident and should be compensated.
[25] There is no application of contingency deductions in the actuarial calculations
for loss of income. It is trite that, despite the actuarial calculations, the court has a
wide discretion to award what it considers right. Contingency deductions play a
critical role in calculating damages, especially for future loss of earnings. The issue
of contingencies was dealt with in Southern Insurance Association Limited v Bailey
NO 1984 (1) SA 98 (A) where Nicholas JA expressed himself as follows at 116G-H:
'Where the method of actuarial computation is adopted in assessing damages for
loss of earning capacity, it does not mean that the trial Judge is tied down by
"inexorable actuarial calculation". He has a "large discretion to award what he
considered right". One of the elements in exercising that discretion is the making of a
discount for "contingencies" or differently put the "vicissitudes of life". These includes
such matters as the possibility that the plaintiff may in the result have less than a
"normal" expectation of life, and that he may experience periods of unemployment
by reason of incapacity due to illness or accident, or to labour unrest or general
economic condition. The amount of any discount may vary depending upon the
circumstances of the case.'
[26] This court, in Ralph v Road Accident Fund [2023] ZAFSHC 102 as per
Molitsoane J, dealt with contingencies comprehensively at para 20 as follows:
'The court in Oosthuizen v Road Accident Fund gave a useful summary of case law
on contingencies and I refer extensively as follows:
"Matters which cannot otherwise be provided for or cannot be calculated exactly,
"Matters which cannot otherwise be provided for or cannot be calculated exactly,
but which may impact upon the damages claimed, are considered to be
contingencies, and are usually provided for by deducting a stated percentage of the
amount or specific claim. (De Jongh v Gunter 1975 (4) SA 78(W) 80F).
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Contingencies include any possible relevant future event which might cause damage
or part thereof or which may otherwise influence the extent of the plaintiff's damage.
(Erdmann v Santam Insurance Co Ltd 1985 3SA 402 (C) 404- 405; Burns v National
Employers General Insurance Co Ltd 1988 3 SA 355 (C) 365).
In the wide sense contingencies are described as the "hazards that normally beset
the lives and circumstances of ordinary people". (AA Mutual Insurance Association
Ltd v Van Jaarsveld 1974 4 SA 729 (A); Van der Plaats v SA Mutual Fire & General
Insurance Co Ltd 1980 3 SA 105 (A) 812; Southern Insurance Association Ltd v
Bailey 1984 1 SA 98 (A)117. Contingencies have also been described as
'unforeseen circumstances of life' (De Jongh v Gunther 1975 (4) SA 78(W) 80F).
The percentage of the contingency deduction depends upon a number of factors and
ranges between 5% and 50% depending upon the facts of the case. (AA Mutual
Association Ltd v Maqula 1978(1) SA 805 (a) 812; De Jongh v Gunther 1975 (4) SA
78(W) 81,83,84D; Goodall v President 1978(1) SA 389 (W) 393; Van der Plaats v
SA Mutual Fire & General Insurance Co Ltd 1980 3 SA 105 (A) 114-114A-D).
Contingencies are usually taken into account over a particular period of time,
generally until the retirement age of the plaintiff (Goodal l v President 1978(1) SA
389 (W) 393; Rij NO v Employe rs’ Liability Assurance 1964 (4) SA 737(W);
Sigourmay v Gillbanks 1960(2) SA 552 (A) 569; Smith v SA Eagle Insurance co Ltd
1986 2 SA 314(SE) 319).'
The plaintiff has advocated for a considerably higher post-accident percentage
contingency deduction to the future earnings and a higher post -accident of 35%.
There is no contrary submission.
[27] The actuarial calculations are not binding to this court as the court has a wide
discretion to award what it considers to be fair and reasonable compensation. The
court needs to take into consideration other factors like the plaintiff's age, the nature
court needs to take into consideration other factors like the plaintiff's age, the nature
of injuries sustained, qualifications and prospects of finding alternative employment.
It is my opinion that the actuarial calculations with the contingency deductions, as
advocated by the plaintiff, represent a reasonable, fair and adequate compensation
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for the plaintiff. Resultantly, an amount of R493 376.10 is a reasonable amount for
loss of earnings in the circumstances of the plaintiff.
[28] I now deal with the claim general damages. Section 17(1) of RAF Act provides
that the general damages are payable only if the injury is deemed 'serious'. In terms
of regulation 3(c) and (d) of the RAF Act, the defendant may accept the injury as
serious, reject it as serious or direct the plaintiff to undergo serious injury
assessment. Once the defendant has made its election, the plaintiff, if dissatisfied
with the serious injury finding can refer the matter to the Registrar of the Health
Professions Council of South Africa.
[29] The court does not have jurisdiction to determine whether the injuries are
serious or not. It is common cause that in casu, the defendant has not reacted to the
plaintiff's serious injury claim. It has not accepted or rejected same. In the absence of
an election by the defendant, the court is precluded from adjudicating the payment of
general damages. Therefore, the determination of general damages is postponed
sine die until a proper assessment is made by the defendant.
[30] On future medical costs, there is no reason why, in the light of Dr Fischer's
opinion, the plaintiff cannot obtain an undertaking from the RAF for future medical
costs. It is my finding that, for future medical costs, an undertaking should be
furnished to the plaintiff by the defendant in terms of s 17(4) of the RAF Act.
[31] Lastly, the general rule is that costs follow suit unless the court determines
otherwise. There is no reason to deviate from the norm. The defendant is to pay
costs.
[32] In the circumstances, I order as follows:
1 The defendant is liable for the plaintiff's 100% proven damages of the
plaintiff.
2 The plaintiff and the defendant must prepare a draft order and such
draft order must make provision for the payment of taxed or agreed fees by
13
the defendant on scale B as contemplated under rule 67A of the Uniform
Rules of Court, reasonable and qualifying expenses of the expert witnesses.
3 The draft order must be presented to the office of the Registrar in order to
obtain a further order for the payment of the plaintiff by the defendant.
4 The claim for general damages is postponed sine die.
Mpama AJ
Appearances
For the plaintiff: M D J Steenkamp
Instructed by: Symington & De Kok Attorneys, Bloemfontein
For the defendant:
J Gouws
Instructed by: State Attorney, Bloemfontein.