IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TO\VN)
In the matter between:
XOLAMADUNA
and
ROAD ACCIDENT FUND
JUDGMENT
Reportable
Case no: 5668/21
PLAINTIFF
DEFENDANT
Neutral citation: Xola Maduna v Road Accident Fund (Case no 5668/21)
[2025] ZA WCHC (01 September 2025)
Coram: MA YOSI AJ
Heard: 2 June 2025
Delivered: 1 September 2025
Summary: Damages claim for loss of earnings and earning capacity.

2
ORDER
1 Plaintiff is awarded damages in the amount ofR2 629 204,68, which
is made up as follows:
[1.1] Past loss of earnings R455 960,80
[1.2] Future loss of income R2 426 047,00
[1.3] General damages Rl 500 000,00
[1.4] SUB-TOTAL R4 382 007,80
[1.5] Less 40% apportionment - (Rl 752 803,12)
[1.6] TOTAL R2 629 204,68
JUDGMENT
Mayosi AJ:
[ 1] The plaintiff is an unemployed adult male who was born on 15 August
1991. He is 34 years old.
[2] The plaintiff was involved in a motor vehicle collision on 15 September
2019, which occurred whilst he was a pedestrian. In these action

3
proceedings the plaintiff claims from the defendant damages pursuant
to injuries sustained in the collision.
[3] The merits have been settled on a 60% - 40% split in favour of the
plaintiff. The parties have also settled the general damages in the
amount of Rl 500 000.00 less the 40% apportionment, resulting in an
amount ofR900 000.00 due to the plaintiff.
[4] As a result, the only issue that remains in dispute is the plaintiffs claim
for loss of earnings and earning capacity.
The plaintif rs request for a truncated hearing
[ 5] At the commencement of the trial the plaintiff moved an application for
an order seeking leave for the evidence of his actuarial and medical
experts to be given on affidavit, rather than orally, in tenns of Uniform
Rule 38(2), which provides that-
The witnesses at the trial of any action shall be orally examined, but a court
ma y 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.
[ 6] The application was not opposed by the defendant, which had appointed
only an industrial psychologist and no other expert in support of its

4
defence of the case. The plaintiff argued that it would be a wasteful
exercise to present the viva voce evidence of his experts in a situation
where no similar expert was appointed by the defendant; and
furthermore that it is in the interests of justice for a truncated trial to be
conducted under Uniform rule 38(2), in terms of which this Court is
empowered to make any order with regard to the conduct of a trial as
to it seems meet, and thereby vary the procedure laid down in Rule 39.
[7] Having considered the application, with reference to the pleadings and
the issues raised in the action, this Court found that it was appropriate
and suitable in the circumstances to allow a deviation from the norm of
hearing the oral evidence of witnesses in action proceedings. As stated
previously, the evidence of the experts that was sought to be placed
before this Court by means of affidavit was uncontested by the
defendant and the Rule 38(2) application was not opposed by it. When
regard was had to the saving of time, costs and judicial resources
attendant upon such a course, this Court found that in all the
circumstances of this case it was fair and served the interests of justice
to allow the expert evidence to be given by means of affidavit.
[8] The court granted the plaintiff's application in terms of Rule 38(2), and
made no order as to costs.
[9] The Court then heard evidence regarding the only issue in dispute in
the matter, namely, the pJaintiffs claim for past and future loss of
earnmgs.

5
The disputed past and future loss of earnings
[10] The motor vehicle collision which forms the basis of these action
proceedings occurred when the plaintiff was 28 years old. The plaintiff
sustained a severe brain injury with permanent disabling cognitive and
behavioural changes, together with post-traumatic seizures. The
neurosurgeon, clinical psychologist, speech and occupational therapists
who assessed the plaintiff are all in agreement that the serious nature of
the plaintiff's injuries, and their continuing and permanent sequelae
have rendered the. plaintiff unemployable in any capacity, and that he
can never again become a contender for employment. These sequelae
include, but are not limited to, severe communication deficits as well
as permanent and uncontrollable epileptic seizures.
[ 11] The only expert report filed by the defendant is that of industrial
psychologist Mr Lance Marais. He agrees with the plaintiff's industrial
psychologist, Dr Hannes Swart, that the plaintiff was rendered
unemployable by the accident and the injuries he sustained therein.
[12] Where the industrial psychologists diverge in their opinions is with
regards to the plaintifrs pre-morbid career path; i.e.; what level of
earnings he would have reached, but for the accident. There is no
divergence between them regarding the plaintiffs career path in his
i~jured state.

6
[13] It is in relation to this divergence that, at the trial, the viva voce evidence
of Dr Swart was heard. The defendant clid not call Mr Marais as a
witness.
[14] This Court is therefore called upon to detennine the plaintiffs claim
for loss of earnings and earning capacity, given the difference of
opinion between the experts on, in the main, the plaintiff's pre-morbid
earnings potential.
The legal approach to claims for loss of earnings / earning capacity1
[ 15] In determining the correct amount for loss of earnings/ earning capacity
in personal injury claims, the court engages in what is, in essence, a
speculative exercise, albeit with some parameters as set out by the
courts in previous cases.
[16] The ratio of the Appellate Division (as it then was) in Southern
Insurance Association v Bailey NO (Bailey),2 and the authorities cited
therein, is seminal in this regard, and remains incisive in relation to the
nature of the enquiries to be made into a damages claim for loss of
earning capacity, and the approach to be adopted by this Court.
1 In an action for damages based on neg]igence, the head of damages for loss of earnings is more properly
described as "loss of earning capacity". The Appellate Division (as it then was) in Bailey, at 98H. See full
citation for Bailey in footnote below.
2 1984 (1) SA 98 (AD)

7
[17] The AD held:
"Any 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 qf c,ysta/ 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. It has open to it two possible approaches. One is
for the Judge to make a round estimate of an amount which seems to him to
be fair and reasonable. That is entirely a matter of guesswork, a blind
plunge into the unknown. The other is to try to make an assessment, by way
of mathematical calculations, on the basis of assumptions resting on the
evidence. The validity of this approach depends upon the sowulness of the
assumptions, and these may vary from the strongly probable to the
speculative. It is manifest that either approach involves guesswork to a
greater or lesser extent. But the Court cannot for this reason adopt a non
possumus attitude and make no award. 3 In a case where the Court has
before it material on which an actuarial calculation can usefitlly be made,
3 See Herman v Shapiro & Co 1926 TPD 367 at 379 per STRATFORD J: Monetary
damages having been suffered, it is necessary for the Court to assess the amount and make
the nest use of the evidence before it. There are cases where the assessment by the Court
is little more than an estimate; but even so, ifit is certain that pecuniary damage has been
suffered, the Court is bound to award damages. And in Anthony and Another v Cape Town
Municipality 1967 (4) SA 445 (A) Holmes .JA is reported as saying at 451B-C:"Itherefore
turn to the assessment of damages. When it comes to scanning the uncertain future, the
Court is virtually pondering the imponderable, but must do the best it can on the material
available, even if the result may not inappropriately be described an infomied guess, for
not better system has yet been devised for assessing general damages for future loss; see

not better system has yet been devised for assessing general damages for future loss; see
Pitt v Economic Insurance Co Ltd 1957 (3) 284 (N) at 287 and Turkstra Ltd v Richards
1926 TPD at 282 infin-283.

8
the first approach does not offer any advantage over the second. On the
contrary, while the result of an actuarial computation may be no more than
an,, informed guess", it has the advantage of an attempt to ascertain the
value of what was lost on a logical basis; whereas the trial Judge's "gut
feeling" as to what is fair and reasonable is nothing more than a blind
guess. "4
[ 18] As far as I am aware, Bailey remains good law in relation to the
principles set out above. These principles are of relevance to the sole
issue for determination in this matter; i.e.; what level of earnings the
plaintiff would have reached if the accident had not occurred for the
purposes of determining his damages claim.
The evidence of the industrial psychologists
[ 19] It is common cause between the experts that the plaintiff left school
while he was in grade 10, in 2007. Grade 9 is therefore his highest level
of education. He began his foray into employment in 2010, when he
secured casual employment at Marko Metals in Parow. He worked as
needed and generally worked two to three days per week. The plaintiff
told Dr Swart that he did this for about two months and earned Rl00.00
per day.
4 Page99AD

9
[20] The plaintiff also joined a cultural arts group named Rainbow Art
wherein he played marimba, drums and keyboard and danced in
productions, as and when required. He worked for them until 2016, and
could earn from Rl 500,00 up to R2 000,00 per month. The arts were a
passion of the plaintiff's that he had wanted to pursue. His work for
Rainbow Art was, however, not consistent employment and occurred
only on an ad hoe basis.
[21] From 2016 onwards, the plaintiff participated in projects facilitated by
the Extended Public Works Programme (EPWP) for the City of Cape
Town (the City). He worked irregularly during this time. He was
involved in cleaning the streets and fixing drains for contractors
employed by the City.
[22] During the period when he first ventured into the employment space -
from 2010 until 2016 -the plaintiff pursued this type of general work,
doing what can best be characterised as temporary and intermittent
work. He himself described these as "piece jobs". Both industrial
psychologists agreed that this type of work fell in the unskilled
category.
[23] In about 2017 the plaintiff secured employment with Lawula Systems
(Lawula), based in StikJand, Cape Town in the position of a general
worker where he assisted in repairing traffic lights that were out of
order and required new globes. This position was full-time; and
although the plaintiff was yet to sign a contract with Lawula when the

accident occurred, he was serving a six-month probation period at the
time. Dr Swart testified that the fact that the plaintiff was serving a
probationary period strongly suggests that his employers were
considering him for permanent employment. The industrial
psychologists are ad idem that the plaintiff's employment with Lawula
can be characterised as permanent employment. He had stability and
was enjoying a fixed income. This was interrupted by the accident in
September 2019.
[24] After recovering from the accident, the plaintiff returned to work at
Lawula in late 2020. However, in February 2021 he suffered an
epileptic seizure whilst at work and was told not to return. He was
handed a Jetter to claim from the Unemployment Insurance Fund (UIF).
[25] He has been unemployed since. From the contents of the expert reports
filed, to say that this state of affairs is a source of great frustration for
him would be an understatement.
Plaintiff's probable career path, but for the accident
[26] This is where the experts differ. It is what this Court is called upon to
determine for the purposes of arriving at what is a fair and reasonable
sum to award the plaintiff for his loss of earnings and earning capacity.
[27] In the opinion ofDr Swart, if the accident had not occurred, the plaintiff
would have either remained at Lawula after his probationary period, or
would have gone somewhere else similar. Given his age at the time of

11
the accident (28 years), the current labour market and his career
aspirations, Dr Swart's opinion is that the following career path would,
under the circumstances, have been a reasonable and attainable one for
the plaintiff:
[27 .1] The plaintiff would have retained his position at
[27.2]
[27.3]
Lawula or moved on to a similar position. From a
payslip furnished to Dr Swart by the plaintiff, in
2019 he earned R2 852.45 per fortnight at Lawula.
His annual income was R77 020.96. This would
have increased yearly by inflation.
The plaintiff would have progressed to a semi­
skilled level by 40 to 45 years of age earning
R191 000.00 per annum (based on 2019 values),
recalculated by applying annual earnings inflation
thereafter.
The plaintiff would retire at the age of 65 years of
age.
[28] The defendant's Lance Marais, who did not give oral evidence, holds a
different opinion regarding the plaintiff's pre-morbid prospects. He
opines that:
[28.1]
[28.2]
Based on the plaintiff's occupational experience
and general skills and abilities, the plaintiff would
have continued working as an unskilled worker
until retirement, or for as long as his health
permitted.
The plaintiff had reached his career ceiling and

12
earning potential, as an unskilled worker, before the
accident.
[29] The crux of the difference of opinion between the experts is whether or
not the plaintiff would have progressed until semi-skilled level had the
accident not occurred or whether, as Mr Marais opines, he would have
remained in the unskilled bracket until retirement, as he had already
reached his fullest potential when the accident occurred.
Analysis of the evidence before the Court
[30] After assessing the information that he had been given by the plaintiff
regarding his work history from 2010 until he obtained employment
with Lawula in aboul 2017, which information is in material respects
consistent with the information given to Dr Swart, Mr Marais in his
report concluded that the plaintiffs occupational experience falls
within the unskilled occupational group. I have no difficulty with this
conclusion based on the evidence before this Court, and both experts
are ad idem that this was the nature of the plaintiffs work experience
from 2010 until the Lawulajob.
[31] What Mr Marais has not considered, however, and what his report does
not cover, is the impact on the probabilities of the fact that the plaintiff
moved from casual work from 2010 onwards to securing permanent
employment with Lawula from 2017 until the accident occurred.

13
[32] In this regard, the oral evidence of Dr Swart was that a person like the
plaintiff whose highest educational qualification is grade 9 would
typically enter the job market as an unskil1ed worker and gradually
acquire skills on the job, and secure better employment as occurred in
this particular matter.
(33] When the accident occurred in 2019 the plaintiff had been in
employment for nearly 10 years. Whilst he entered the job market as an
unskilled worker, over the years he graduaJly improved to a higher
skills level that had the distinct potential to progress towards a semi­
skilled level which, in the opinion of Dr Swart, was the level where the
plaintiff was in his full-time position at Lawula when the accident
occurred.
[34] So, the picture for the plaintiff and his prospects changed when he
secured and retained the position at Lawula. It changed from an
unskilled level where he was doing "piece-jobs" with various
employers and no job security, to a level where was in stable, fixed,
full-time employment, performing relatively more technical tasks and
where he was being considered for permanent employment. The
description of the nature of his employment then changed from
unskilled, intermittent casual work to stable, full-time, fixed
employment. In his report, Mr Marais does not appear to have
considered the implications of this progression on the probabilities for
the plaintiffs career, and therefore earning prospects going forward,
had the accident not occurred.

14
[35] Moreover, the plaintiffs payslip demonstrating his earnings at Lawula
at the time of the accident tells a story which Mr Marais in his opinion
did not take into account. Dr Swart's evidence of his analysis of the
plaintiffs payslip when he worked at Lawul~ which was not disputed,
was that the plaintiff earned wages at a rate of R32 .05 per hour which
was 60% higher than the minimum wage which, in 2019, stood at R20
per hour. Dr Swart surmised that the fact that he was earning 60%
higher than the minimum wage was an indication that, at that time, he
had progressed from the unskilled worker that he was when he first
entered the job market. Then he would have been earning or have been
entitled to earn the minimum wage as an unskilled worker.
[36] Dr Swart's uncontested evidence was to the effect that the plaintiff had
therefore progressed from unskilled and had acquired such further skills
as had enabled him to earn more than the minimum wage earned by
workers at the unskilled level, because his general skills were no longer
basic.
[37] Dr Swart's further analysis of the plaintiff's payslip was that the
plaintiff was paid on a fortnightly basis and that if, at the time of the
accident he was earning - as he was - 60% higher than the minimum
wage this placed his earnings in the upper quartile of unskilled workers;
or equivalently, at the median for semi-skilled workers. His annual
earnings in 2019 were R77 020.96. The uncontested evidence was that
if he had progressed to that level after 10 years in the job market, and
he still had 37 years ahead of him until his retirement age of 65 years,
then there was a real likelihood that at his career peak which was

15
accepted would occur between the ages of 40 to 50 years, his earnings
would have progressed, and peaked, in the upper quartile of semi­
skilled workers and remained at this level until he reached retirement
age.
[38] I have no reason to gainsay Dr Swart's evidence as stated above.
Furthermore, given the determination to remain gainfully employed
which the plaintiff had demonstrated since he left school in grade 10,
first working on an ad hoe basis until he secured full-time employment
at Lawula, combined with the fact that after the accident he returned to
work at Lawula, it is not a stretch to assume that if the accident had not
occurred he would have continued working at Lawula or moved to
similar employment (he expressed a wish to Mr Marais of securing
employment at the City's Sanitation D epartment); and that over time
he would have sustained that motivation and improved his skills as he
went along, until he reached the semi-slcilled level postulated by Dr
Swart. Given that he had slowly progressed from doing unskilled work
to securing full-time employment at Lawula where he was stable and
earning a fixed income and had real prospects of permanent
employment, I have no reason to doubt that the plaintiff would have
perpetuated this trend for the rest of his working life until he reached
his peak and ended up with earnings in the upper quartile of semi­
skilled workers, and remained at this level until be retired.
[39] Dr Swart's hypothesis as to the plaintiff's pre-morbid prospects, which
this Court accepts as reasonable, is not without flaws. But for the
plaintiffs employment with Lawula which in my view shows a

16
progression m skills level as well as in his future prospects of
improvement, continued employabiJity and stability, as well as the
payslip showing what he earned at Lawula at the time of the accident,
there is not much else to corroborate of the plaintiffs claims. This
concern was expressed by Ms Thomas who appeared for the defendant,
and she was justified in doing so. In determining the issue that is before
this Court, it is in essence called upon to ponder the imponderable and
such an exercise can only be enriched and aided by the availability of
as much evidence as can be obtained. The paucity of collaterals and
other corroborating evidence introduces even more uncertainty for this
Court to contend, as it attempts to pronounce as definitively as it can in
an exercise that essentially is characterised more by "what ifs" and
looking into the future. In such a case, the question of what
contingencies are appropriate to apply to the plaintiffs past and future
uninjured earnings, as a mechanism that seeks to balance the impact of
these uncertainties, comes to the fore.
[ 40] In awarding damages for future loss our courts usually make provision
for contingencies. Contingencies include any possible relevant future
event which might have caused the damage or a part thereof> or which
may influence the extent of the plaintiffs damage. In a wide sense>
contingencies are described as 'the hazards that normally beset the lives
and circumstances of ordinary people. 15 This may> for example, imply
that provision is made for the fact that the prospective loss which is
possible at the time of assessment of damage might in any event
5 See AA Mutual Ins Co v Van Jaarsveld 1974 (4) SA 729 (A} (Corbett & Buchanan 11360, 367)

17
possibly have occurred independently of the alleged deli et in question.
Hence it is important to consider whether, and if so, on what basis and
in what percentage contingencies should be applied.
[ 41] The usual effect of an adjustment based on contingencies is that the
amount of damages is reduced by a percentage which may vary between
10% and 50%.6 Provision for contingencies falls squarely within the
subjective discretion of a court guided by what is reasonable and fair,
based on the information before it.
[42] In this case, this Court has the benefit of actuarial reports quantifying
both the scenario posited by Mr Marais and Dr Swart. This Cout has
accepted the scenario posited by Dr Swart, on behalf of the plaintiff, as
being more probable than that of Mr Marais for the reason more fully
set out in this judgment. The presence of the actuarial reports enables
this Court to determine the issue on some objective and logical basis,
rather than purely on the Court's gut feel.
[ 43] In my view in this case, when regard is had to the uncertainties inherent
in the plaintiff prospects and potential had the accident not occurred,
and their impact on his past and future loss of earnings, a contingency
of 20% and 35% on the plaintiff's past and future uninjured income
respectively, is appropriate.
[44] As stated previously, the parties have reached agreement in regard to
all other heads of the plaintiffs damages claim, including costs as well
6 See Van der Plaats v SA Mutual and Fire General Ins 1980 {3) SA 105 {A) at 114-5

18
as an undertaking to be furnished by the defendant in terms of section
17(4)(a) of the Road Accident Fund Act 56 of 1996, and this Court has
made an order by agreement in regard to alJ those remaining aspects of
the claim.
[4S] In the circumstances, it would be fair and reasonable to award the
plaintiff damages in the sum ofR2 629 204,68, made up as follows:
[45.1]
[45.2]
[45.2]
[45.4]
[45.5]
[45.6]
Appearances
For plaintiff:
Instructed by:
For defendant:
Past loss of earnings R455 960,80
Future loss of income R2 426 047,00
General damages Rl 500 000,00
SUB-TOTAL R4 382 007,80
Less 40% apportionment - (Rl 752 803,12)
TOTAL
W Coughlan
R2 629 20-&,68
lt. NTMAYOSI
JUDGE OF THE HIGH COURT
Lester & Associates, Cape Town
C Thomas of the State Attorney, Cape Town