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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2021/50569
Date of hearing: 5 May 2025
Date delivered: 6 August 2025
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE: 6/8/25
SIGNATURE
In the application between:
BS M[...] OBO
N M[...] Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
__________________________________________________________
JUDGMENT
SWANEPOEL J:
[1] The plaintiff clai ms damages on behalf of her daughter, N, pursuant to a
motor vehicle accident that occurred on 18 November 2020. N was a pedestrian
standing next to the road, when a vehicle that was attempting to park collided with
her. She was taken to hospital with a right ankle injury. Upon examination she was
found to have sustained a right ankle and foot soft tissue injury with abrasions. Dry
dressings were applied and she was discharged.
[2] The plaintiff seeks general damages and damages for loss of earnings. The
defendant has not accepted that the injury is serious, for good reason , as will appear
from this judgment, and thus general damages are to be postponed. It is only the
claim for loss of income that is before me.
[3] An orthopaedic surgeon, Dr Heymans, reports that N is a young girl in good
health and that she walks with a normal gait. Of her right ankle and foot Dr Heymans
writes:
“The patient has a 40 mm scar over the lateral aspect of the right ankle. The right
foot and ankle movements are full and free from pain. The ankle is stable.”
[4] Further x -rays show that the right foot and ankle are normal. N complained
that she experiences pain in her right foot and ankle when the weather is inclement,
and when she ha s to walk long distances. Dr Heymans reported that N would be
capable of completing her schooling, and to be employed in her employment of
choice until normal retirement age.
[5] Ms. Liebenberg, an occupational psychologist reported that N suffers
occasional pain in her right ankle, especially when it is cold or when she has to walk
far. The plaintiff reported that N walks with a limping gait, which contradicts Dr
Heymans’s findings. Ms. Liebenberg reported that N ha s personal issues, unrelated
to the accident, that made her sad, but she was unwilling to discuss them.
[5] As regards N’s educational history, Ms. Liebenberg reported that N ha s
passed every grade, notwithstanding the accident. She has no cognitive difficulties.
She would be able to seek employment in most jobs of her choice.
[6] The educational psychologist, Ms. Yolanda Bekker, reports that N has an
extremely low IQ, (between 50 and 60) and possibly suffers neuro-cognitive deficits.
She says that N has passed all her grades, but that her academic performance has
been declining. There is no indication whatsoever that the reported decline has
been declining. There is no indication whatsoever that the reported decline has
anything to do with the accident. I fact, Ms.. Bekker herself acknowledges that she
has no idea whether the accident contributed to N’s neuro -cognitive issues, and it
would be hard to understand how a relatively minor ankle and foot injury would result
in neuro-cognitive difficulties. Notwithstanding the above findings, and in the same
paragraph, Ms. Bekker says the following:
“I am therefore of the opinion that the patient would, with rehabilitation, in all
probability, still be able to complete her NQF level 4 (Grade 12) and continue to study
towards an NQF level 6 (Diploma) but that it will, in all probability, take her longer
than the allocated time, to complete.”
[7] It is beyond understanding how Ms. Bekker could possibly have come to the
above finding, and I would have to suspend all logic to accept her opinion , more
especially in a society in which an extremely small portion of the population (some
15.3%) achieve a qualification beyond NQF level 4 1 in any event . N suffers neuro -
cognitive difficulties (with an extremely IQ), but I am still expected to believe that she
would have achieved a diploma , which is now denied her because of a relatively
minor injury.
[8] An expert is expected to place all relevant facts before a court, and to provide
opinions based on those facts. An expert is not a hired gun who will say whatever is
necessary to promote the plaintiff’s case. A court is not obliged to accept the expert’s
opinion where the opinion is found to be flawed, and in this case I have no hesitation
in rejecting Ms. Bekker’s opinion. The same is applicable to the report of Mr.
Erasmus the industrial psychologist, who premised his report upon the postulation
proposed by Ms. Bekker, as did the actuary.
[9] I also find that the plaintiff has failed to establish that N has, as a result of her
injury, suffered any potential loss of income. Consequently, the claim for loss of
earnings must fail. However, the plaintiff is entitled to an order in ter ms of section 17
(4) (a) of Act 56 of 1996 in respect of future medical expenses.
[10] I make the following order:
[10.1] The claim for loss of earnings is dismissed.
[10.2] The claim for general damages is postponed sine die.
[10.2] The claim for general damages is postponed sine die.
1 De Rebus (July 2025): Medico -legal educational predictions leave much to be desired, Prof. R
Tabane, Mr.. A Baron, Prof. H Lern, Mr. D Berndt
[10.3] The respondent shall, within 10 days hereof, provide the
plaintiff with an undertaking in ter ms of section 17 (4) (a) of Act 56 of
1996, for the cost of future accommodation of N M[...] or supplying of
medical goods or services arising from the motor vehicle collision that
occurred on 18 November 2020.
[10.4] The defendant shall pay the costs of the action to date on Scale
B, excluding any costs relating to the claim for loss of earnings, which
costs shall specifically exclude the appearance on 5 May 2025, and the
costs of the plaintiff’s experts, Dr Heymans, Ms. Liebenberg, Ms. Bekker,
Mr. Erasmus and the plaintiff’s actuary.
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Counsel for the applicant: Adv. Y Ndziba
Instructed by: Booysen De Kock Attorneys
Heard: 5 May 2025
Judgment on: 6 August 2025