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(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
__________
DATE SIGNATURE
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION
MBOMBELA (MAIN SEAT)
CASE NUMBER 2453/2022
01 August 2025
MNQOBI NGAMLA MNCWANGO PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
SHAI AJ
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Introduction
[1] This is a claim for damages arising from an accident on the 27th July 2020.
When the matter came before court merits had already been settled between the
parties. The settlement is such that the Defendant conceded that the insured driver
was solely negligent in causing the motor vehicle collision.
[2] Plaintiff’s general damages and future medical expenses were also settled, with
future medical expenses settled by way of the Defendant providing the plaintiff with an
undertaking in terms of section 17(4)(a) of Act 56 of 1996, as amended.
[3] The court was called upon to make a determination on compensation for past
and future loss of earnings.
[4] In proving their case, Plaintiff made an application for evidence to be placed
before the court in accordance with the provisions of Rule 38 (2). The application was
granted.
[5] Plaintiff then filed reports by the following experts:
5.1 Dr Masipa, an orthopaedic surgeon;
5.2 Dr Mkhonza, a neurosurgeon;
5.3 Dr Modiba, a clinical psychologist;
5.4 Ms Molemi, an Occupational Therapist;
5.5 Itai Brian Karidza, an actuary of Tsebo actuaries.
[6] By agreement between the parties, the plaintiff filed confirmatory affidavits by
all of the aforesaid experts which affidavits are received as exhibits. The Plaintiff’s
expert reports are received into evidence in terms of rule 38(2) by agreement between
the parties.
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[7] Plaintiff also led the viva voce evidence of Ms Esther Monyela, an educational
therapist, and Ms Patricia Baloyi, an Industrial psychologist. Their reports were also
admitted as exhibits for ease of reference.
[8] Plaintiff also testified in his own case.
[9] Thereafter Counsel for both parties made well -reasoned and thorough
submissions which I found helpful and for which I express my sincere appreciation.
Facts
[10] The admitted evidence can be summarised as follows:
Plaintiff
10.1 Plaintiff was a learner doing grade 10 at the time of the accident. He passed
grades 1 to 9 o n his first attempt. He repeated grade 10 and he was in his year of
repetition when the accident occurred.
10.2 He did not return to school after the accident.
10.3 He briefly worked at a braai place (“chisa nyama”) in the year 2022 but left as
he could not withstand the heat and pain.
Educational therapist
10.4 She testified that but for the accident, plaintiff could have attained an NQF level
6. Post-morbid, although plaintiff has the potential to attain an NQF level 4, he dropped
out of school.
10.5 It was suggested to her during h er cross -examination that s he could not
adequately opine on the educational potential of the plaintiff as she had only a grade
10 school report during the assessment . She re plied that the grade 10 report was
sufficient for her to make the postulations as she did.
Industrial Psychologist
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[11] The Industrial Psychologist, in her postulations gave two scenarios . The first
scenario is based on the postulations by the educational psychologist. The second
scenario is postulated on the fact that the plaintiff has quit school and , therefore, will
no longer realise the potential NQF level 4, post-morbid, postulated by the educational
psychologist.
[12] In the first scenario, the plaintiff would have entered the labour market, post -
morbid, at Paterson Paterson B3. In the second scenario, the plaintiff is rendered
unemployable.
Expert reports admitted in terms of Rule 38(2)
[13] The admitted reports could be summarised as follows:
13.1 Plaintiff suffered a head injury and fracture of the base of skull.
13.2 As a result of the sustained injuries:
13.2.1 His employability has been affected in that, whereas pre -accident he had the
potential to attain NQF level 6, post -accident he only has the potential to attain NQF
level 4.
13.2.2 His residual physical, cognitive and psychological limitations have had and will
continue to have a negative effect on academic performance and work performance.
these had rendered him a vulnerable and an unequal competitor in the open labour
market when compared to his uninjured peers
13.2.3 The accident has left the Plaintiff vulnerable and at a significant disadvantage
in seeking alternative employment.
Issue
[14] The issue for determination is whether the plaintiff should be compensated for
suffered loss of earning capacity occasioned by the sustained injuries.
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14.1 If found that loss of earning/earning capacity was suffered , it should be
determined whether it is total or partial loss.
Onus
[15] The Plaintiff should discharge the onus resting upon him to show that he has to
be compensated for the injuries sustained and that his earning capacity has been
compromised by his injury.
Rule 38(2)
[16] The evidence adduced herein was given on affidavit in terms of rule 38(2). Rule
38(2) provides:
"38(2) The witnesses at the trial of any action shall be orally examined,
but a court may at any time, for sufficient reason, order that all or any of
the evidence to be adduced at any trial be given on affidavit or that the
affidavit of any witness be read at the hearing, on such terms and
conditions as to it may seem meet: provided that where it appears to the
court that any other party reasonably requires the attendance of a witness
for cross-examination, and such witness can be produced, the evidence
of such witness shall not be given on affidavit."
[17] Ordinarily. the consent by the Defendant that affidavits may be filed should
not be misconstrued or interpreted by the Plaintiff as the defendant’s admission of
evidence. The Defendant is still entitled to highlight issues arising out of the
evidence, refer to contradictions between witnesses and deal with improbabilities.
[18] The postulation, however, is that the parties directly or indirectly agree to
submit the expert reports by way of affidavit and then ex lege agree that the
defendant will be able to build an argument based on the plaintiff’s expert reports
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and will be able to dissect the said expert reports. However, once an expert report is
admitted into evidence there is no room for submissions that the expert reports are
flawed in any way and are inadmissible.
[19] Submissions regarding the law of evidence and admissibility of evidence must
be done before expert reports are admitted into evidence and marked as exhibits. It is
at this stage that the credibility of the witnesses should be attacked.
[20] Once the reports are admitted as evidence, the defendant has to forego the
right or opportunity to attack the credibility of the plaintiff’s witnesses, bearing in mind
that there was no cross-examination put forth affording the experts an opportunity to
defend their opinions.
[21] The credibility of the expert witnesses cannot be simply attacked in heads of
argument or oral submissions. If the parties agree that the deponent to the affidavit
will not be cross-examined, the factual allegations in the affidavit stand unchallenged
and no dispute of fact in regard thereto arises.
[22] It was held in Road Accident Fund v Zulu and Others (50/11) [2011] ZASCA
223 (30 November 2011] that:
“[14] …A useful guide to the approach of expert evidence is found in Michael
v Linksfield Park clinic (Pty)Ltd where the court stated:
‘…what is required in the evaluation of such evidence is to determine whether
and to what extent their opinions advanced are founded on logical reasoning”
Loss of earnings/earning capacity
[23] The capacity to earn money is considered to be part of a person’s estate and
the loss or impairment of that capacity constitutes a loss, if that loss diminishes the
estate.1
1 Dippenaar v Shield Insurance Co Ltd 1979 (2) 904 AD at 917 A-B
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[24] The defendant should, therefore, if the onus has been discharged, make good
the difference between the value of the plaintiff’s estate after the commission of the
delict and the value it would have had if the delict had not been committed.2
[25] In a case of personal injury, the court must calculate on the one hand the
present monetary value of all that the Plaintiff would have brought into her estate
had she not been injured, and, on the other hand, the total present monetary value of
all that the Plaintiff would be able to bring into her estate whilst incapacitated by her
injury.3
[26] The court, in determining any loss suffered, is entitled to take into account the
claimant’s home background.4
[27] It is worth noting that in some instances, the evidence may establish that an
injury may in fact have no appreciable effect on earning capacity, in which event the
damage would be nil.5
[28] The evidence in this matter is based on expert reports of seven experts, two of
whom gave viva voce evidence . As alluded hereinbefore, what is required in the
evaluation of such evidence is to determine whether or to what extent their opinions
advanced are founded on logical reasoning.6
[29] They stand as single experts in each of their fields of expertise as no experts
were called by the defendant.
Quantum and contingencies
[30] In the event that the court finds that there is a loss, quantum should be
determined.
2 Ibid.
3 Dippenaar supra, at 917 D-E
4 Southern Insurance Association v Bailey NO 1984 (1) 98 AD
5 Prinsloo v Road Accident Fund 2009 (5) SA 406 (SECLD) at 410 D
6 Michael and Another v Linksfield Park Clinic (pty) Ltd and Another 2001 (3) SA 1188 (SCA) at 1200 I
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[31] An enquiry into damages for loss of earning capacity ‘is of its nature
speculative, because it involves a prediction as to the future, without the benefit of
crystal balls, soothsayers, augurs or oracles. All that the court can do is to make an
estimate, which is often a very rough estimate of the present value of the loss.7 The
court, in this enquiry, can refer to actuarial calculations, which are an informed guess
as opposed to a trial judge’s blind guess.8
[32] There are two approaches to determining loss of income:
32.1 one is for the judge to make a sound estimate of an amount which seems to
him to be fair and reasonable.
32.2 The other is to try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the evidence.9
[33] If there is an admission of damage, the Court should not be deterred by
reason of the difficulty of computing an exact figure from making an award of
damages.10 The question that must be answered in the assessment of damages is
and what must be determined is whether there is a disability which is likely to impair
the injured person’s earning capacity.11
[34] It is sometimes simply not possible to place evidence of potential earning before
Court and there may be no evidence upon which a mathematical calculation can be
made.12
7 Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) at 113F -113E
8 Ibid, at 114C-D
9 Mlotshwa v Road Accident Fund (9269/2014)[2017]ZAGPPHC 109 (29 March 2017), at paragraph 17 referring
to Bailey supra
10 Lazarus v Rand Steam Laundries 1952 (3) SA 49 (T) at page 53, 8-F
11 Ibid, at page 30
12 Griffiths v Mutual and Federal Insurance Co Limited 1994 (1) SA 535 (A)
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[35] Once the court is satisfied that pecuniary damage has been suffered, it must
make an award of an arbitrary amount of what seems to be fair and reasonable even
though the result might be more than an informed guess.13
Evaluation
[36] I will not, herein, deal with the detail of the expert reports. I have considered
the contents of the said reports, together with the viva voce evidence, in light of the
submissions by both Counsel. There is no basis for rejecting the evidence and
conclusions of the experts. The experts made their conclusions based on facts and
applicable data. I accept their respective opinions.
[37] There is a thread that runs through all the reports, which is to the effect that, in
my view, Plaintiff has indeed been rendered vulnerable and that the accident -related
sequelae have had significant life -changing implications for his future employability
and overall functioning.
[38] It is evident from the reports that Plaintiff suffered a head injury and fracture of
the base of skull.
[39] It is postulated that:
39.1 Plaintiff’s employability has been affected in that whereas pre-accident he had
the potential to attain an NQF level 6, post-accident he only has the potential to attain
NQF level 4.
39.2 He, however, dropped out of school, thereby not realising the postulated
potential of attaining an NQF level 4. In my view, any loss based on the postulation
that the plaintiff has dropped out of school should be rejected as this goes against his
potential.
39.3 He is not considered an equal competitor in the open labour market
13 supra, at 546F-G
39.4 The accident has left the Plaintiff vulnerable and at a significant disadvantage
in seeking alternative employmen t.
Conclusion
[40] I am satisfied that the Plaintiff successfully proved, on a balance of probabilities
that he has to be compensa ted for loss of earnings/earning capacity.
[41] It is clear from the evidence that the plaintiff indeed suffered loss of
earnings/earning capacity.
[42] On scenario 1, the actuary calculated future pre-morbid income to be R10 043
439 and future post-morbid income to be R4 114 521. I applied a contingency
allow ance of 15% on pre-morbid and 25% on post-morbid, to arrive at a figure of R5
451 032.40
[43] Consequently, the follow ing order is made:
1. The Defendant is ordered to pay to the Plaintiff a total amount of R 5
451 032.40
2. Defendant is ordered to pay costs of suit, including costs of Counsel, on
a party and party Scale C .
DATE OF HEARING:
DATE OF JUDGMENT
10 March 2025
01 August 2025
10
SHAIAJ
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This judgment was handed down electronically by circulation to the parties’
representatives by email. The date and time for hand-down is deemed to be 15h00 on
01 August 2025.
FOR THE PLAINTIFF: Adv S Mbhalati
NGOMANA & ASSOCIATE ATTORNEYS
E-MAIL: mvanst1@ngomana-attorneys.co.za
FOR THE DEFENDANT: Mr OT Mgwenya
THE STATE ATTORNEY-MBOMBELA
EMAIL: thulanim@raf.co.za