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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO:19905/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
Date 15 August 2025
K. La M Manamela
In the matter between:
SIKELELA, MKAMISI Plaintiff
and
ROAD ACCIDENT FUND Defendant
DATE OF REASONS FOR ORDER GRANTED AND VARIATION OF ORDER
GRANTED: These reasons for order granted and variation of order granted are
issued by the Judge whose name is reflected herein and are submitted electronically
to the parties/their legal representatives by email. The reasons are further uploaded
to the electronic file of this matter on CaseLines by the Judge’s secretary . Subject to
paragraph [30] below, the date of the reasons for the order granted and variation of
the order granted is deemed to be 15 August 2025.
REASONS FOR THE ORDER GRANTED AND
VARIATION OF THE ORDER GRANTED
KHASHANE MANAMELA, AJ
Introduction
[1] Mr Sikelela Mkamisi, the plaintiff in this civil action, was born on 28 November
1998. At the age of 19 he was injured in a motor vehicle accident on 29 April 2018.
He was a passenger in the motor vehicle travelling along R61 National Road, in
Nkonzo, Flagstaff in the Eastern Cape province when the driver lost control (‘the
insured driver’) and he fell off the vehicle. He sustained injuries as set out below and
suffered damages as a result.1
[2] On 14 February 2020 , he caused summons to be issued against the Road
Accident Fund (‘the RAF’) in terms of the Road Accident Fund Act 56 of 1996 (‘the
RAF Act’) for compensation. He blamed the insured driver’s negligent driving as the
exclusive cause of the accident and, consequently, s ought compensation from the
RAF as provided by the RAF Act. His claim consisted of the following head s (of
claims): future medical treatment; future loss of earnings, and general damages. The
RAF defended the action.
[3] The m atter came before me for a trial on 26 November 2024 . Ms N Soviti-
Zwedala appeared for the plaintiff and M r K Phokwane appeared for the RAF . The
trial proceeded in respect of issues relating to quantum as issues relating to merits
were settled between the parties with RAF fully conceding liability .2 After listening to
oral submissions by counsel , I reserved the order until 13 December 2024 (‘the
Order’),3 to reflect further on the issues . The Order would differ with the one
appearing below due to variation of patent error(s) and omission(s) in the Order. I will
explain this further, below.
[4] On 9 April 2025 , plaintiff’s legal representatives requested reasons for the
Order. Essentially, they sought ‘a breakdown of the order granted’ as to the amounts
granted for general damages and contingencies approved for loss of earnings
(‘these Reasons’). I, initially, undertook to furnish the calculations by way of a widely
shared note on the CaseLines platform, but decided against this, when I noticed that
shared note on the CaseLines platform, but decided against this, when I noticed that
1 Par [6] below.
2 CaseLines (‘CL’) 018-1 to 018-2.
3 The Order also reflects court-stamped date of 13 December 2024, but the effective date is the
date of trial on 26 November 2024. See CL 019-1 to 019-3.
the amount for general damages have been erroneously omitted from the order
made. Regrettably, it took longer to furnish these Reasons than initially anticipated.
Brief background
[5] A brief narration of the background facts is necessary to place context of the
issues to be determined . I would strive to do so from the common cause issues or
identify the area of dispute.
[6] The plaintiff , as already stated was born on 28 November 199 8 and was,
therefore, 19 years old at the time of the accident on 29 April 2018. At the time of the
trial the plaintiff was 26 years of age. The plaintiff claimed to have sustained the
following injuries:
[6.1] laceration occipital region X2;
[6.2] laceration of the left side of the forehead;
[6.3] laceration of the lip on the right side, and
[6.4] abrasion on both hands, left thigh, both knees, right periorbital
ecchymosis.
[7] The plaintiff’s highest attained level of education is Grade 11. He was in
Grade 12 or matric in 2018 when he met the accident . He returned to school in June
2018, despite his accident-related challenges, but failed. His subsequent attempts at
this grade were also met with failures and , ultimately, he dropped out of school in
February 2023 as, reportedly, he could not cope. He did not complete Grade 12. The
plaintiff had failed grades before and after the accident.
[8] The plaintiff has never been employed. Prior to the accident, as stated above,
he was still a learner in high school. After the accident and quitting school, he
reportedly has remained unemployed.
Expert witnesses and evidence
General
[9] The plaintiff filed medico-legal or expert reports. I granted an order in terms of
Rule 38(2) of the Uniform Rules of this Court for the evidence in the matter to be
adduced by way of affidavits. 4 The reports or their content s as confirmed under oath
by the respective experts , therefore, were accepted as evidence as envisaged by
Rule 38(2). Below follow s the pertinent aspects of some of these reports. The RAF
did not file any reports or tender any evidence by any witness , although they had Mr
Phokwane, as counsel, making oral submissions in respect of the quantum of the
plaintiff’s damages . Ms Soviti-Zwedala, for the plaintiff , also filed comprehensive
heads of argument in addition to her oral submissions. I am grateful for her efforts in
this regard.
Neurosurgeon
[10] On 27 March 2023 , the plaintiff was examined by a neurosurgeon, Dr AB
Mazwi. This was about 4 years and 8 months after the accident. The plaintiff
mentioned to Dr Mazwi that he had suffered head injury, occipital head laceration,
forehead abrasions, upper lip laceration and bilateral leg abrasions . The plaintiff
complained to this expert of the following: (a) difficulty with concentration; (b)
memory disturbances, and (c) post injury headaches . It is also mentioned that the
plaintiff reported that he lost awareness after the accident and woke up in an
ambulance. Dr Mazwi’s conclusions include that the plaintiff lost consciousness and
had amnesia keeping with a mild head injury. Dr Mazwi calculated the plaintiff’s
whole person impairment (‘WPI’) at 24%, as he has long term mental disturbances.
Neuropsychologist or Clinical Psychologist
[11] On 28 March 2023, the plaintiff was examined by Dr Joachim FL Mureriwa, a
neuropsychologist or clinical psychologist. Dr Mureriwa’s report is dated 13
September 2024 . The examination took place 4 years and 10 months after the
accident. The plaintiff repeated what he told the other expert above regarding his
injuries and complaints, including that h e was taken to Greenville Provincial hospital
where he remained overnight. After his discharge from hospital, he had follow -up
where he remained overnight. After his discharge from hospital, he had follow -up
treatment between May and October 2018. He was away from school for six weeks .
Other than the complaints or symptoms already mentioned , the plaintiff presented or
4 Rule 38(2) reads: ‘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.’
reported the following to Dr Mureriwa : blurred vision ; partial deafness in left ear ;
dizziness; back pain ; headaches; forgetfulness; irritab ility and feeling sad most
times. Dr Mureriwa’s diagnosis was that the plaintiff had a mild head injury and he
recommended psychotherapy to address accident -related pain, discomfort and
emotional distress.
Plastic Surgeon
[12] On 17 September 2024, the plaintiff was assessed by Dr SS Selahle, a plastic
surgeon. Dr Selahle noted the injuries reported above regarding the plaintiff. Of
particular relevance to his specialty, this expert noted scars on the plaintiff’s scalp
and face and that he complain ed of recurring headaches. The plaintiff has a 10 cm
inverted ‘T’ shaped scar on occipital scalp; 3 cm scar on the left side of the forehead,
and 1 cm scar on the upper lip. He observed that the scars have no features of scar
hypertrophy, although they are disfiguring and cosmetically unsightly. The scars are
permanent with some prospects of improvement by scar revision techniques. He
calculated the WPI at 7%.
Occupational Therapist
[13] On 17 September 2024 , the plaintiff was assessed by Ms Ncumisa Nzungu,
an occupational therapist . Ms Nzungu’s report is dated 30 October 2024 . The
complaints made to this expert by the plaintiff are similar to those made to the other
experts, but further included poor vision ; rib cage pain , and general fatigue. The
plaintiff, also, has reduced bending and standing endurance. Bending elicits pain. He
is unable to lift or carry heavy objects . Ms Nzungu concluded as follows: ‘… when
taking into consideration the claimant’s reported low back pain as well as limitations
when attempting to perform lifting tasks , it can be concluded that the claimant is
suited for the physica l demand characteristics of work sedentary and light physical
demand’.5 Overall, this expert concluded that the plaintiff is not equally competitive,
demand’.5 Overall, this expert concluded that the plaintiff is not equally competitive,
but a vulnerable employee in the future, in the open labour market due to his deficit s.
Given his level of education of only grade 11, he is eligible for unskilled jobs, which
are most heavy in nature.
5 Occupational therapist’s report, CL 007-133.
Industrial Psychologist
[14] On 16 September 2024 , the plaintiff was assessed by an industrial
psychologist, Ms Talifhani Ntsieni . Ms Ntsieni compiled a report dated 31 October
2024. She had access to the reports of the other expert witnesses referred to above
and, thus, was aware of th eir respective opinions. This included the opinion that had
the plaintiff would have passed matric or attained a grade 12 certificate in 2018 and,
thereafter, acquired an NQF level 5 qualification – in the form of a two -year post -
matric certificate - in 2020 . But n ow that the accident had occurred he will only
remain unemployable with a n NQF level 3 education in the form of his grade 11
educational attainment.
[15] Ms Ntsieni, t he industrial psychologist , concluded regarding the plaintiff ’s
prospects of employment, including as follows:
[There] are incapacitating factors present that limit and will limit Mr.
Mkamisi's employability, future career choices and income potential in
the future. He has sustained the nature of injuries that have
compromised his health and therefore affecting his neurosurgical,
cognitive, psychological, learning and occupational abilities. The
writer opines that considering these changes, he is an unequal
competitor in the open labour market compared with his healthier
peers and that he will not be able to perform functions efficiently and
effectively as compared to his counterparts. Thus, it is the writer's
view that the injuries sustained from this accident hinders Mr.
Mkamisi's career and future employability in that regard. Therefore,
the writer is of the opinion that Mr. Mkamisi has suffered a medically
justifiable loss of work capacity as indicated by the experts as a direct
result of the accident which translates into loss of earnings as
discussed on 7.2 above.6
Loss of earnings or earning capacity
[16] The plaintiff provided actuarial calculations by Munro Forensic Actuaries
[16] The plaintiff provided actuarial calculations by Munro Forensic Actuaries
dated 1 November 2024. The calculations in the report were made as at 1 December
6 Industrial psychologist’s report par 8, CL 007-172.
2024. The calculations were on the basis that the plaintiff would remain unemployed
for the rest of his future working life. Further that, had the accident not occurred the
plaintiff would have passed matric or grade 12 in 2018 and acquired a two-year post-
matric certificate or an NQF level 5 qualification in 2020 to begin his working career
until retirement at 65 years of age . Consequently, his loss was estimated at
R947 300 for past loss and R7 790 000 for future loss, after effecting thereto
contingency deductions of 5% and 15% respectively. The aforesaid equated to an
estimated total loss of R8 737 300. The aforesaid figures are impacted by the
application of the cap introduced by the Road Accident Fund Amendment (‘the RAF
cap’).
[17] Counsel for the plaintiff submitted that the loss estimated in the actuarial
calculation accords with the evidence in the medico-legal reports and further that the
contingencies applied are fair . She urged the Court to adopt the suggested figures
for plaintiff’s loss.
[18] Counsel for the defendant , among others, submitted that the injuries alleged
to have been sustained by the plaintiff do not make sense. Whilst the plaintiff’s main
injury is said to be a head injury, according to Dr Mazwi, the neurosurgeon , this is
only classified as a mild head injury. Further, counsel submitted that the plaintiff
delayed in reaching matric and h e repeated grade 4 as stated in the educational
psychologist’s report. Counsel motivated two scenarios to the Court, with one of
them suggesting an award to the plaintiff for his loss in the amount of R1 768 790.
[19] On 6 December 2024, I caused the following communication or directive to be
sent to the legal representatives of the parties and uploaded on CaseLines:
1. The above matter and the trial which took place before Justice
Manamela, AJ on 26 November 2024 refer.
2. The judge is requesting that actuarial calculations be furnished
reflecting
2. The judge is requesting that actuarial calculations be furnished
reflecting
Contingency deductions of 35% and 40% on the pre -morbid future
earnings of R9 165 800. It is the judge’s preliminary opinion that
the accident is not the only reason the plaintiff would be
unemployed as there were pre-morbid learning challenges and the
prospect of future employment cannot be completely ruled out.
3. The calculations couldn’t done by the Court as the paragraph 4.6
of the Actuarial report states that the amount of R7 790 000 which
is the capital value loss factoring or reduced by the RAF
Amendment Act cap. Therefore, the two set of figures or
calculations (reflecting the requested contingency deductions)
should be done by the actuary and furnished in compliance with
the statutory cap.
4. The judge has requested that the abovementioned calculations be
uploaded as soon as possible to facilitate the finalisation of the
matter.7
[20] On 9 December 2024, the plaintiff’s legal representatives furnished revised
calculations in terms of the above directive .8 The revised figures in ‘ scenario b’
reflected the plaintiff past loss in the amount of R 1 002 600 with a contingency
deduction of 5% to equate to R952 470 and future loss in the amount of R9 165 800
with a contingency deduction of 40% to equate to R 5 499 480. The aforesaid
amounted to an estimated total loss in the amount of R6 451 950.
[21] The plaintiff is said to be limited to his grade 11 education and, therefore, with
lesser employment prospects than his pre -morbid projected NQF level 5 post -matric
qualification would have availed. I do not think that the accident was solely to blame
for the plaint iff’s inability to obtain matric and the post- matric qualification. He had
challenges even before the accident. Also, considering his age – even with his reach
of the maximum medical improvement – one cannot fully rule out the possibility of
him earning some form of income. Therefore, I adopted the figure of R5 499 480 for
plaintiff’s future loss of earnings , as it reflected the 40% contingency mentioned in
7 CL 000-1 to 000-2.
8 CL 000-1 to 000-5.
my directive to the parties above. But, regarding the past loss of earnings I effected a
15% contingency deduction on the figure of R 952 470 to end up with a figure of
R809 599. The total loss of earnings was calculated in the amount of R6 309 079.
The latter figure is the one reflected in the Order granted.9
[22] However, e ffecting a 15% contingency deduction on the figure of R952 470
(which represented an amount after contingency deduction of 5% ) was a regrettable
patent error on my part. The correct application of the 15% contingency deduction
ought to have been on the figure of R 1 002 600 for past loss . The latter figure has
featured in both the plaintiff’s original and revised actuarial calculations. The result of
this is the amount of R852 210. Therefore, the patent error in the Order granted will
be corrected by replacing the amount of R6 309 079 for the plaintiff’s total loss of
earnings with the figure of R 6 351 690 (i.e. R5 499 480 adopted for future loss and
R852 210 for past loss).
General damages
[23] Another patent error made was by omitting to reflect the amount awarded for
general damages in the Order granted. This is also regretted.
[24] Some of the plaintiff’s injuries and complaints relevant to the determination of
general damages appear above. They include that the plaintiff has scars on his scalp
and face of about 10 cm and 3 cm in size, respectively. The scars are reported not to
have features of scar hypertrophy, although they remain disfigurements and are
unsightly from a cosmetic point of view . Also, the scars are permanent and have
prospects of improvement by scar revision techniques. Plaintiff also complained of
recurring headaches. These deficits are said to have an effect on the plaintiff and, in
the main, to have resulted in moderate to severe cognitive, emotional and
behavioural problems which may cause serious and long -term psychological
disorders, especially depression. The latter would interfere with the plaintiff’s
disorders, especially depression. The latter would interfere with the plaintiff’s
cognitive social functioning. The plaintiff ’s condition is expected to improve with
psychotherapy, but he would continue to endure significant psychological symptoms
because of the persistent pain, mainly in the form of the headaches, and discomfort.
9 The Order also reflects court-stamped date of 13 December 2024, but the effective date is the
date of trial on 26 November 2024. See CL 019-1 to 019-3.
[25] Counsel for the plaintiff referred the Court to previous comparable decisions
including what follows . In the case of Makeke v Road Accident Fund ,10 decided on
23 November 2010, the plaintiff had lost three teeth and sustained injuries to his jaw
and minor injuries to his shoulder and neck. He was awarded R387 000 in general
damages with an estimated value of R767 604. 27 in 2024. Further, counsel referred
to the matter of TJ Tobi v Road Accident Fund ,11 concerning a 49-year-old ma le
plaintiff. He, among others, had lots of scarring on his left leg and less scarring on
the right leg , as well as disfigurement and pain in both legs and knees. He was
awarded the amount of R460 000, as general damages, in 2013, which equated in
2024 to R665 088.16. Another matter referred to by counsel for the plaintiff is that of
April v Road Accident Fund ,12 which dealt with a claim of a grade R teacher who
sustained injuries to her head and spine with cognitive fall -out from the accident
disabling her to remember things and depending on notes to remind herself of her
duties and daily tasks. She was awarded an amount of R750 000 as general
damages in September 2021, which counsel submitted equates to R870 000 in 2024
terms. Plaintiff’s counsel submitted that the latter case compares well with the one
currently before the Court , due to the head injury. Consequently, counsel submitted
that compensation of the plaintiff in the amount of R900 000 for his general damages
would be appropriate.
[26] Counsel for the defendant ’s submissions on issues of comparable cases on
general damages which may be awarded to the plaintiff included the following. In
Fouche v Road Accident Fund ,13 decided on 11 March 2024 , the claimant was
injured when he was about 13 years old. His injuries included f racture of the right
clavicle; fracture of th e left humerus ; fracture of the left scapula ; fracture of the left
rib; lacerations to the face and mild concussive head injury . The court awarded an
rib; lacerations to the face and mild concussive head injury . The court awarded an
amount of R525 000 as compensation to the general damages. Counsel, further,
referred to the case of April v Road Accident Fund 14 in which a minor child was
10 Makeke v Road Accident Fund (611/09) [2010] ZAECBHC 18 (23 November 2010).
11 TJ Tobi v Road Accident Fund (unreported) Case no 868/2010, Eastern Cape Grahamstown
(9 September 2013).
12 April v Road Accident Fund (2338 /2018) [2021] ZAFSHC 206 (15 September 2021).
13 Fouche v Road Accident Fund [2024] JOL 63577 (FB).
14 April v Road Accident Fund [2021] JOL 51777 (FB).
injured with head abrasions was awarded the amount of R500 000 in 2021 as
general damages, which equated to R630 000 in 2024 terms.
[27] I considered the above submissions against the facts of this matter. In my
view a fair and reasonable compensation for plaintiff’s claim for general damages is
in the amount of R 600 000. Obviously, this amount was erroneously not included in
the amount reflected in the Order made on 13 December 2024.
Conclusion and costs
[28] Therefore, the amounts awarded to the plaintiff as compensation are
R6 351 690 for past and future loss of earnings, and R600 000 for general damages.
The total for these figures is R 6 951 690. I considered these amounts to be fair and
reasonable compensation under the circumstances of this matter . Costs also
followed this result. As previously, the date of the Order will be deemed to be 26
November 2024.
[29] As indicated above, when I received the revised actuarial calculation, I
immediately inserted in the draft , a figure that was incorrect and did not accord with
the judgment reached on the matter. The request for these Reasons alerted me to
the patent errors made. Therefore, the previous order granted would be varied in
terms of Rule 4215 of the Uniform Rules of this Court. To facilitate matters any of the
parties can avail for signature, a draft order reflecting the relief appearing below.
Order
[30] In the premises, the following order is made:
1. the order granted on 13 December 2024 and reflecting the date stamp of 13
December 2024 by the Registrar , appearing on CaseLines 019 -1 to 019 -3 is
hereby rescinded in terms of Rule 42(1)(b) and substituted with the following
order, with the date of the order deemed to be 26 November 2024:
15 Uniform Rule 42 (1)(b) reads as follows: ‘[ t]he court may, in addition to any other powers it
may have, mero motu or upon the application of any party affected, rescind or vary:
(a) …
(a) …
(b) an order or judgment in which there is an ambiguity, or a patent error or omission, but
only to the extent of such ambiguity, error or omission…’
1.1 the Defendant is 100% liable for Plaintiff’s proven or agreed damages;
1.2 the Defendant is hereby ordered to pay the Plaintiff the sum of
R6 951 690 (six
million nine hundred and fifty one thousand six hundred and ninety
rand) in respect of general damages and loss of earnings or earning
capacity;
1.3 the sum referred to in 1.2 above shall be payable within 180 (One
Hundred and
Eighty) days from the date hereof;
1.4 the Defendant shall not be liable for interest on the aforesaid amount, if
paid as
per paragraph 1.3 above. Should the Defendant fail to make payment
as aforesaid, then the Defendant shall be liable to pay interest at the
prescribed rate.
1.5 the Defendant shall pay the sum referred to in 1.2 above into the
Plaintiff’s
attorneys of record’s trust account as follows: -
Name of Bank : First National Bank
Account Holder : Sotshintshi Attorneys
Account Number : 6[...]
Branch Number : 2[...]
Type of Account : Trust Account
Branch Name : Hatfield (PRETORIA)
1.6 the Defendant is ordered to furnish the Plaintiff with undertaking
certificate in terms of Section 17 (4) (a) of Act 56 of 1996, for the cost
of future accommodation of (‘the patient’) in a hospital or nursing home,
or the treatment of or rendering of a service or the supplying of goods
to him arising out of injuries sustained by patient in a motor vehicle
collision which occurred on the 29th April 2018;
1.7 subject to the discretion of the taxing master, the Defendant shall pay
Plaintiff’s
taxed or agreed costs on the High Court party and party scale, which
costs shall be:
1.7.1 the costs of Counsel up to and including the costs for 11 and 26
November 2024 subject to scale B of sub-rule (3) of rule 67A;
1.7.2 the costs of making bundles for trial;
1.7.3 the costs of obtaining, by the Plaintiff, of all experts reports,
including reasonable travelling, accommodation and subsistence
costs.
1.7.4 the reasonable travelling costs including reasonable
accommodation costs when attending trial.
1.8 there is a valid contingency fee agreement entered into
between the Plaintiff and the attorney.
Khashane La M. Manamela
Acting Judge of the High Court
15 August 2025
Appearances:
For the Plaintiff : Ms N Soviti-Zwedala
Instructed by : Sotshintshi Attorneys Inc, Pretoria
For the Defendant : Mr K Phokwane
Instructed by : State Attorney, Pretoria