REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NO: HCAA26/2022




In the matter between:

MATEWOS JEGANO LEJURE APPELLANT

And

ROAD ACCIDENT FUND RESPONDENT
_______ _____
JUDGMENT


KGANYAGO J

(1)
(2)
(3)
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE ........... . 81 G NATURE : ............ .

[1] On 24th June 2018 the appellant was a passenger in a motor vehicle driven by
one Adane Timore. The motor vehicle wherein the appellant was a passenger
was involved in a collision which resulted in the appellant sustaining some
injuries. The appellant lodged a thi rd party claim with the respondent. The
appellant’s claim was not settled within the prescribed time period, and that
led to the appellant instituting an action against the respondent claiming for
damages allegedly suffered as a result of the injuries he h ad sustained when
the accident occurred.

[2] The defendant did not defend the appellant’s action, and that led to appellant
setting the matter down for a default judgment. The matter came before
Semenya DJP on both merits and quantum. M erits were grant ed 100% in
favour of the appellant , h owever, the quantum claim was dismissed. In
dismissing appellant’s claim on quantum , the court a quo found that : (i) the
injuries as sustained by the appellant as per expert witnesses’ reports were
orthopaedic in nature; (ii) according to the orthopaedic surgeon and the X-Ray
reports, the fractures sustained by the plaintiff have already healed; and (iii)
that it was f urther reported that the places where the injuries were sustained
were neurovascularly intact. Based on that the court a quo held that there was
no sufficient evidence to support the conclusion that the appellant is not
suitable for light to medium pre -accident employment, and dismissed the
appellant’s claim for general damages and loss of earnings.

[3] The appellant is appealing against the judgment and order of the court a quo
on dismissing his quantum claim. The appeal is with the leave of the court a
quo. What this court must determine is whether the court a quo has erred in
dismissing the appellant’s claim on quantum on the basis that the fractures
sustained by the appellant have hea led, and further that the places where the
injuries were sustained were neurovascularly intact.

injuries were sustained were neurovascularly intact.

[4] The appellant had filed experts reports with the court a quo. The appellant was
admitted at Witpoort hospital for 3 days, and thereafter transferred to
Mokopane hospital where he was hospitalised for about 2 months. According
to the report of Dr Ramushu the orthopaedic surgeon, the injuries sustained

by the appellant as per the hospital records were right thigh, neck and left
shoulder. The appellant had a surgery to his right femur, and thereafter had to
use crutches for 3 months. At the time of consultation, the appellant was
complaining of right thigh pain, left shoulder pain and stiffness, neck pain, he
battles with manual labour, cannot walk long distances and cannot run
anymore.

[5] Dr Ramushu has found that the appellant right femur fracture had implants,
malunited greater tuberosity fracture left humerus and atlantoaxial arthritis.
The appellant has reached maximum medical improvement, and his fracture
has healed well with acceptable alignment, and he will benefit from removal of
implants. The appellant will need surgery and shoulder rehabilitation
thereafter. He will need atlantoaxial arthrodesis, and thereafter he will need
rehabilitation. The appellant is suffering from chronic thigh, shoulder and neck
pains. The appellant still has residual impairments and disabilities, and will
require surgery in future. Dr Ramushu determined the appellant’s whole
person impairment at 22% and qua lified him for general damages under the
narrative test.

[6] According to the report of the occupational therapist Petronella Radzuma, the
appellant was working as a general worker at his brother’s business at the
time of the accident, he could not resume his duties due to his injuries and
remained unemployed to date. The appellant had sustained a head injury with
subarachnoid haemorrhage, and is having visible scarring all over his fa ce.
She also confirms the injuries as stated by Dr Ramushu. The appellant had
some limitations with walking and significant limitations with squatting and
running. The appellant reports neck pain with neck movements and severe
left shoulder pain with lifti ng and elevated work. He reports right thigh pain
with prolonged standing and lifting. The appellant had displayed correlating

with prolonged standing and lifting. The appellant had displayed correlating
behaviour throughout the evaluation. The appellant had difficulty with
instructions and needs repetition of instructions during t he task. The appellant
had difficulty maintaining an upright position, he slouches with prolonged and
extends his right knee with prolonged sitting. He had difficulty sustaining
active concentration due to a headache and neck pain. As a general worker

the appellant is required to sustain active concentration when operating t he
till, buying stock, stock taking and inventories. The appellant no longer
displays the ability to sustain active concentration and has poor working
memory which correlates with a hist ory of a head injury. The appellant had
suffered cognitive fallout and is no longer competitive for his work. The
appellant is no longer suitable for alternative manual sedentary work in the
open labour market.

[7] Radzuma concluded that the appellant’ s performance in the standardised
physical testing indicates his ability to handle sedentary, light and medium
work compromised due to persistent left shoulder pain, right thigh pain and
neck pain. He is no longer competitive for general worker in a tucksh op. The
appellant is unskilled and highly reliant on his physical abilities to secure
alternative employment, but this has been compromised by his injuries. There
are no practical reasonable accommodation measure that he can be given
considering his physical limitations such as left shoulder pain, right thigh pain
and neck pain.

[8] According to the report of Tryphina Maitin the industrial and organizational
psychologist, at the time of the accident the appellant was employed as a
general worker earning R5000.00 per month. She opines that the accident
had a negative impact on the appellant’s pre -accident earning potential. Post-
accident, and due to the injuries sustained, it is unlikely that he will re -enter
the open labour market as an unskilled/manual worker . The injuries which the
appellant had sustained presents him with musculoskeletal limitations which
interfere with his ability to work. The appellant will no longer meet the physical
requirements for his pre -accident job and will probably remain unemployed,
and will probably suffer total loss of future earnings as a result of the motor
vehicle accident. Tsebo Actuaries have compiled an actuarial report, and after

vehicle accident. Tsebo Actuaries have compiled an actuarial report, and after
applying the contingency deduction of 5% for past loss, and 15% for future
loss, concluded that the appellant total loss amounted to R2 093 493.00.

[9] This matter in the court a quo was disposed on papers wi thout calling any
witness to tender viva voce evidence. The appellant’s experts in their reports

are all in agreement that the accident had an impact on the appellant’s
occupational functioning and career progression. The experts are in further
agreement that the appellant will no longer meet the physical requirements for
his pre -accident job and there is the possibility that he might remain
unemployed. According to the industrial and organizational psychologist, there
is a probability that the appellant will suffer total loss of future earnings as a
result the motor vehicle accident. The respondent did not file any expert
reports to challenge the appellant’s version.

[10] It is trite that expert witnesses are there to assist the court, and should at all
times be neutral and avoid be ing partisan. (See Stock v Stock1). It is also trite
that courts are not bound by the views of any expert. The court make s the
ultimate decision on issues on which experts provide an opinion. (See Road
Accident Fund Appeal Tribunal v Gouws and Another 2). In dismissing the
appellant’s claim on quantum, the court a quo relied only on the parts of the
orthopaedic surgeon’s report and X -Ray reports where it is stated that the
injuries have healed , and came to the conclusion that there is no sufficient
evidence to support the conclusion that the plaintiff is not suitable f or light to
medium pre-accident employment.

[11] However, the orthopaedic surgeon in his summary opines that the appellant
still has residual impairment and disabilities despite the injuries having healed,
and that he will require surgery in the future. Further that the appellant was
unable to resume his duties. Thereafter the orthopaedic surgeon had
recommended the appellant to be seen by the occupational thera pist. The
occupational therapist opines that the appellant presents with difficulties
sustaining concentration and poor working memory. The appellant is no
longer competitive for his work and he is no longer suitable for alternative
manual sedentary work in the open labour market. The radiologist report state

manual sedentary work in the open labour market. The radiologist report state
that asymmetric narrowing of the left a tlantoaxial articulation is noted,
scierosis of the atlantoaxial articular surfaces is noted, and deformity of the
left humeral head is noted. The court a quo misdirected itself on relying only

1 1981 (3) SA 1280 (A) at 1296E-F
2 2018 (3) SA 413 (SCA) at para 33

on parts of the orthopaedic surgeon and X-Ray report, and also in considering
the orthopaedic surgeon report in isolation to the occupational therapist
report. Even from the conclusion of the court a quo that there is no sufficient
evidence to support the conclusion that the plaintiff is not suitable for light to
medium pre-accident employment, is an appreciation by the court a quo that
in its view, the appellant qualifies for light to medium employment, and has not
suffered total loss. Before the accident the appellant was not confined to do
light duty. With this rea soning it is a concession by the court a quo that the
accident had an impact on the appellant’s career path, and that could have
been cured by applying a higher than normal contingency deduction, rather
than dismissing the appellant’s claim for loss of earnings.

[12] There is no evidence in this matter that the appellant’s experts are partisan
and not neutral. These experts have expressed their opinions in their field of
expertise which is of technical in nature and which is not within the field of the
court’s expertise. Therefore, before the court may reject their opinions, there
must be sound and justifiable reasons for doing so. They cannot merely be
rejected on court’s suspicion that they might be exaggerated without justifiable
reasons for reachin g that conclusion. The court a quo has failed to consider
how the residual impairments and disabilities which the appellant had as per
the orthopaedic surgeon report will ha ve on the appellant’s career path. Since
the orthopaedic surgeon had recommended a n occupational therapist , the
court a quo was supposed to have considered the occupational therapist
report. Had the court a quo considered the occupational therapist report it
would have found that the occupational therapist opines that the appellant is
no longer competitive for general work in a tuckshop. There is no other
evidence to rebut this conclusion.

evidence to rebut this conclusion.

[13] The industrial and organizational psychologist opines that during the accident,
the appellant had sustained right femur fracture and fracture of the left greater
tuberosity left humerus and presents with musculoskeletal limitations which
interfere with his ability to work. The appellant will no longer meet the physical
requirements for his pre -accident job and will probably remain unemployed.
These are impairment and disabilities which the appellant is still experiencing

despite his injuries having healed. These impairme nt and disabilities are
preventing the appellant to meet the physical requirements for his pre -
accident job. The court a quo was supposed to have considered all the
experts reports as a whole and not in piece -meal. The court a quo has failed
to give sound and justifiable reasons for relying only on parts of the
orthopaedic and X -Ray reports and not reading them as a whole in
conjunction with other reports. If there were other issues that were not clear to
the court a quo, it could have summoned the experts to appear in person and
lead viva voce evidence. Any other concerns which the court a quo might
have had in this matter could have been cured by applying a higher than
contingency deduction if the circumstances so permit.

[14] The court a quo had rejected the appellant’s claim for loss of earnings without
taking into consideration all the experts reports’ before it as a whole. Due to
the injuries that the appellant has sustained and been corroborated by the
expert opinions, the appellant’s occ upational functioning has been diminished
and he will no longer be able compete in the same light as his able -bodied
competitors. He has therefore been rendered a vulnerable competitor in the
open labour market, and will suffer from discrimination in terms of the type of
employment he will be able to accept or pursue in the open labour market.

[15] What remains is to determine the appropriate contingency deductions to be
applied. It is trite that the determination of the allowances for contingencies
involves, by its nature, a process of subjective impression or estimation rather
than objective calculation. In Road Accident Fund v Guedes 3 it was held that
the calculation of the quantum of a future amount, such as loss of earning
capacity is not a matter of exact mathematical calculation, but such inquiry is
speculative and a court can therefore only make an estimate of the present

speculative and a court can therefore only make an estimate of the present
value of the loss that is often a rough estimate. The younger the claimant, the
more likely a higher than normal contingency deduction will be applied.


3 2006 (5) SA 583 (SCA)

[16] Tsebo Actuaries have compiled an actuary report. According to their report the
appellant was born on 19 th July 1985. Prior to the accident the appellant was
employed as a general worker earning R5000.00 per month. According to the
report of the occupational therapist, the appellant schooled up to grade 12.
The appellant did not acquire any formal work -related skills or training after
finishing his high school. Since 2014 up to 2018 the appellant has been
employed by his brother at his tuckshop as a general assistant earning
R5000.00 per month. The actuary opines that the appellant has suffered past
loss of ea rning in the sum of R227 587.00, and future loss of earnings in the
sum of R2 208 571.00. Thereafter, the actuary has applied contingency
deduction of 5% for past loss, and 15% for future loss, and concluded that the
amount of R2 093 493.00 represent the t otal loss for past and future loss of
earnings suffered by the appellant.

[17] In RAF v Kerridge4 Nicholls AJA said:

“Some general rules have been established in regard to contingency
deductions, one being the age of the claimant. The younger the claimant, the
more time he or she has to fall prey to vicissitudes and imponderables of life.
These are impossible to enumerate but as regards future loss of earnings
they include inter alia, a downturn in the economy leading to the reduction i n
salary, retrenchment, unemployment, health, death, and the myriad of events
that may occur in one’s everyday life. The longer the remaining working life of
a claimant, the more likely the possibility of an unforeseen event impacting on
the assumed trajectory of his or her remaining career. Bearing in mind, courts
have, in pre -morbid scenario, generally awarded higher contingencies, the
younger the age of the claimant. This court, in Guedes, relying on Koch’s
Quantum Yearbook 2004, found the appropriate pr e-morbid contingency for a
younger man of 26 years was 20% which would decrease on a sliding scale

younger man of 26 years was 20% which would decrease on a sliding scale
as the claimant got older. This of course, depen ds on the specific
circumstances of each case but is a convenient starting point”.


4 2019 (2) SA 233 (SCA) at para 44

[18] The appellant at the time of the accident was 33 years of age. After completing
grade 12 the appellant did not further his studies, and also did not acquire any
formal work-related skills or training. The only type of work that he has been
exposed to is that of a general wo rker at his brother’s tuckshop. Most of the
tuckshops are informal traders, and competition is too high. The downturn in
the economy which the country as a whole is experiencing has resulted in
high unemployment rate. Because of the high employment rate, m ost people
don’t have enough money to spend, and the little money they have will be
spent on basic needs only. The sustainability of these tuckshops can
therefore not be guaranteed. Even if the appellant was not involved in an
accident, the tuckshop which had employed him if it was to close down,
without any formal skill or training, it was going to be difficult for appellant to
get another employment.

[19] Taking all these factors into consideration, there are special circumstances
which militate again st a general contingency deduction of 15% in respect of
future loss of earnings. In my view, an appropriate contingency deduction for
future loss of earnings should be 30%. The following calculations are fair and
reasonable:

Past loss 227 587.00
Less 5% contingency deduction 11 379.00
Net 216 208.00
Future loss 2 208 571.00
Less 30% contingency deduction 662 571.30
Net 1 545 999.70
Total loss 1 762 207.70

[20] The respondent had not yet made a decision with regard to general damages.
It is trite that for the courts to have jurisdiction to entertain a claim for general
damages in relation to third party claims, the respondent should have made a
decision whether it accepts or rejects the in juries as serious. The court a quo
did not have jurisdiction to entertain the appellant’s claim on general damages
before the respondent had made a decision whether it accepts the appellant’s

injuries as serious , and has therefore misdirected itself in dis missing that
claim as well. The appropriate order which the court a quo should have made
was to postpone the claim for general damages sine die. With regard to costs,
this was not a complicated appeal and it did not deserve employment two
counsel.

ORDER

[21] In the light of the above, the following order is made:

21.1 The appeal is upheld with costs including costs of one counsel on party
and party scale B.
21.2 The order of the court a quo is set aside and substituted with the
following:
“21.2.1 The plaintiff succeed s 100% in his claim for compensation
against the defendant.
21.2.2 The defendant to pay the plaintiff the sum of R1 762 207.70
being for past and future loss of earnings.
21.2.3 Claim for general damages is postponed sine die.
21.2.4 Defendant to provide plaintiff with an u ndertaking in terms of
section 17(4) of the Road Accident Fund Act 56 of 1996 in
respect of 100% of accident related future medical, hospital and
related expenses.
21.2.5 Defendant to pay plaintiff’s costs”.



KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION, POLOKWANE

I AGREE

_____________________________

MULLER J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE

I AGREE

_________________________________
NGOBENI J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE


APPEARANCES:

Counsel for the appellant : Adv SS Tebeila
Adv FP Semenya

Instructed by : MS Moloto Inc
Counsel for the respondent : In default

Date heard : 25th July 2025
Electronically circulated on : 20th August 2025