SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: A2024-114920
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between
ABRAHAM ZWELISHA MTSHALI Appellant
And
ROAD ACCIDENT FUND Respondent
Coram: L DE SOUZA -SPAGNOLETTI, AJ
(J DLAMINI, J AND M KRUGER, AJ CONCURRING )
Heard on : 10 SEPTEMBER 2025
Delivered: 30 SEPTEBER 2025
JUDGMENT- FULL BENCH APPEAL
BACKGROUND
1. This matter centres around a claim against the Road Accident Fund (RAF) arising
from injuries sustained by the appellant in a motor vehicle collision on 7
February 2020. Appellant was 46 years old at the time of the collision. The claim
was lodged with the respondent on 22 April 2021 and summons was served on 2
September 2021. The respondent failed to defend the summons.
2. Subsequent to service of summons and on 7 th of December 2022 , an order was
handed down by Honorable Maier Frawlay, J granting leave to the appellant to
approach the registrar for the allocation of a default judgment hearing date 1.
3. It is clear from the record, or what should have been included in the record of the
appeal, that the respondent ha d ample opportunity to attend to the matter, was
called upon to do so and simply neglected to. The bundle of documents
reflecting this communication between the parties, which is referred to in
appellant’s heads of argument as Bundle “C” could not be found but there is a
bundle found on the Caselines file of the default judgment itself 2 which reflects
such communication. This bundle does not appear to have been included in the
record of the appeal but does, nonetheless form part of such record irrespective
of its apparent, erroneous exclusion.
4. An application for default judgment was served on the respondent on 29 March
2023 3. This application for default judgment came before Honorable Maisela, AJ
on 24 January 2024 and was subsequently dismissed by her on 26 January 2024.
5. For the sake of completeness, the application for condonation brought by the
appellant for the late application for a hearing date of the appeal is granted. The
1 Caselines in the default judgment court file at 07-2
2 Caselines in the default judgment file at D.1
3 Caselines at 004-7
papers in that application reflect a conscientious and ongoing attempt on the
part of the appellant to procure a hearing date and to bring the matter before the
appeal Court. In the circumstances, i t is in the interests of justice to grant the
same.
6. It is clear from the reasons for judgment of the Court a quo 4 that the entitlement
of the appellant to apply for default judgment was not placed in issue , nor does
this Court find issue therewith.
7. The grounds of appeal herein are numerous and with significant overlap. For the
sake of expedience and where appropriate, the appellant’s grounds of appeal
are grouped and tackled collectively.
LEGAL FRAMEWORK
8. Rule 31(2)(a) of the High Court Rules states the following:
“Whenever in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or liquidated demand and a defendant is in default
of delivery of notice of intention to defend or of a plea, the plaintiff may set the
action down as provided in subrule (4) for default judgment and the court may,
after hearing evidence, grant judgment against the defendant or make such
order as it deems fit.”
9. The appellant well sums up the standard of proof and credibility of the evidence
presented in his quotation of the Venter Du Plessis judgment
5 which in turn
4 Caselines 002.10 at 002-84
refers to the Stellenbosch Farmers Winery Group Pty Ltd case 6. It must be
noted that in the Venter du Plessis case, the court was faced with two
irreconcilable versions of events . That is not the case in the matter before this
court. The evidence of the appellant in this case is undisputed and non-
contradictory.
10. A court of appeal is generally reluctant to disturb the factual findings of a trial
court but will do so where such findings are based on false premises or where
relevant facts have been ignored or where the conclusions are plainly wrong.7
11. Findings of credibility cannot be judged in isolation but require to be considered
in the light of the proven facts and the probabilities of the matter under
consideration.
8
12. Rule 38(2) is discussed below und er the relevant ground of appeal.
GROUNDS OF APPEAL ON MERITS
13. The evidence in th is matter reflects that on 7 February 2020 and on t he R23,
Standerton, N3 , at or close to the onramp, the appellant was the driver of a
white, Toyota taxi T[…] involved in a collision.
5 Venter Du Plessis v RAF (138/2020) [2021] ZASCA 64 (26 May 2021)
6 Stellenbosch Farmers' Winery Group Ltd. and Another v Martell & Cie SA and Others (427/01) [2002]
ZASCA 98; 2003 (1) SA 11 (SCA)
7 R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 ; Beukes v Smith [2019] ZASCZ 48 para 22; ST v
CT (1224/16) [2018] ZASCA 73; [2013] 3 All SA 408 (SCA)
8 Santam Bpk v Biddulph [2004] ZASCA 11; [2004] 2 All SA 23 (SCA) para 5 ; Brits v Shoprite Checkers
(Pty) Ltd and Another [2025] ZANCHC 48
14. The Police Accident Report 9 confirms the aforementioned information,
including the identity number of the appellant and also records the conveyance
of several passengers in the vehicle at the time of the collision.
GROUNDS 1.2 - 1.4,1.7-1.8, 1.11 and 1.17-1.18
The Court a quo failed to have due regard or attach proper weight to the evidence
before it
15. The merits evidence placed before the Court a quo included inter alia the
following:
15.1 The police report of the accident 10;
15.2 An affidavit by the officer who attended the scene, Constable Monyana 11;
15.3 The police sketch plan of the collision and key 12;
15.4 Appellant’s section 19 affidavit 13;
15.5 Appellant’s sketch plan of the collision 14;
15.6 Appellant’s affidavit in support of default judgment 15.
16. The narrative description of the accident in the police report states the
following:
9 CL 003-7 at 003-20
10 CL 003-20
11 CL 003-35
12 CL 003-28
13 CL 003.6
14 CL 003.8
15 CL 004.5
“Driver was unable to explain to the police what happened before the accident
occurred, he was transferred to hospital. ” (own emphasis) 16.
“6 passengers taken by A0659 ambulance”
17. The police report also incorporates a detailed sketch plan and key 17 which plan
and key accords with the version of the collision as deposed to by the appellant .
The existence of a collision appears patently clear from the report and sketch
with the noting of an unclear point of impact but nevertheless recording that
there was debris strewn all over the road.
18. The warning statement of the appellant of 23 January 2021 18 notes the appellant
having foregone his right to remain silent. It also records that the appellant was
travelling on the R23 Road from Heidelber g and that when he reached the N3
Freeway bridge, he noticed a truck coming from the right hand direction, entering
the road when he was close by and with appellant being unable to avoid it. It
states that the truck hit his taxi. Appellant’s rough sketch 19 accords with this
and both the sketch and the warning statement accord with the police sketch
plan aforementioned.
19. The appellant’s affidavit in support of default judgment 20 also accords with the
balance of the evidence. In this affidavit, further information is provided by the
appellant who states that the insured driver failed to stop and executed a right
16 CL 003-21
17 CL 003-28
18 CL 003-31
19 CL 003-38
20 CL 004.5 at 004-19
hand turn when it was inopportune and unsafe to do so. He states that the
collision caused his vehicle to overturn.
20. The affidavit of Constable MS Monyana 21 confirms that he attended the scene of
the appellant’s collision. On his arrival, he found paramedics assisting the
passengers of what at that time appeared to be a badly damaged, white, Toyota
taxi with registration number and letters T […]. He confirms in this affidavit that
the driver of the taxi was already in one of the ambulances and he confirms that
the driver was seriously injured. He confirms that the passengers were all taken
to different hospitals. The witness to the collision stated that the truck never
stopped after causing the accident.
22
21. The appellant was made av ailable to lead oral evidence for the C ourt a quo
should it have sought clarity. This readiness to testify is noted by the appellant
at paragraph 23 of his affidavit in support of default judgment too 23. This Court
cannot find reason to penalize the appellant for the Court a quo’s refusal to hear
his evidence.
22. The evidence as a whole, as it was available at the time of hearing the
application in the Court a quo, provides ample proof of the occurrence of the
collision as well as ample detail in relation to how the collision occurred. The
sketch plan too confirms that the point of impact was on the roadway with
debris strewn over the intersection. The appellant confirms that the re was
21 CL 003-35
22 CL 003-37
23 CL 004.5 at 004-27
nothing he could do to avoid the collision 24. As stated afore, this evidence
stands before court undisputed.
Grounds 1.5 - 1.6, 1.13 - 1.16
Standard of proof, Rule 31 , discretion of the Court and operation of Rule 38(2)
23. Further to what is stated in the “ Legal Framework” section above, t he Court a
quo refused to hear viva voce evidence despite counsel noting the appell ant’s
presence and availability to lead such evidence. The Court declined to hear
such evidence on the basis that leave had been granted under Rule 38(2) for the
hearing to proceed on the papers. 25
24. Rule 38(2) of the Uniform Rules of Court states the following:
“38 (2) The witnesses at the trial of any action shall be examined viva voce, 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.”
25. The Court a quo would have had a discretion to hear the viva voce evidence of
the appellant and this Court finds that such discretion was not exercised
24 CL 4.5 AT 004-19
25 Paragraph 12 of reasons for judgment; Caselines 02.10 at 002-87
judiciously. It was well within the discretion of the Court a quo to hear such
evidence while c oncurrently agreeing to evidence being presented on affidavit.
The refusal of the Court a quo to hear such evidence, particularly bearing in mind
the questions posed by it , was misplaced as the appellant would have been
capable of resolving at least some of the queries raised by Court a quo . This
Court however does not find that the answers, or the absence thereof to the
questions posed, were crucial to the consideration of the matter nor did they
impact materially on the finding that this Court makes.
26. The dismissal of the application for default judgment reflects a misplaced
exercise of the Court a quo’s discretion under Rule 31.
27. The failure of the appellant to provide a version to the police on the scene is
amply explained on the papers, particularly in the police report and in the
affidavit of Mr Monyana who confirms that the appellant was seriously injured
and already in one of the ambulances on the scene. The Court a quo erred in
finding this to be of relevance in the analysis and assessment of the matter.
28. The absence of any defence in an application for default judgment can of course
heighten the caution of a court . A court should not rely blindly on the evidence
of an applicant as a respondent is not represented or present to give its version
of events. Despite this caution however, it must be borne in mind that the onus
of proof in a matter such as this remains on a balance of probabilities.
Grounds 1.9 - 1.10
Failure of appellant to obtain witness statements or to call taxi passengers
29. The appellant’s version of the collision was and is amply supported by the
collateral evidence, including the police report, sketch plan and the affidavit of
Constable Monyana who attended the scene. The absence of the witness
statement in these circumstances is not fatal to the appellant’s case.
Ground 1.12
Appellant ’s charge and apparent detention for reckless and negligent driving as a
reason for dismissal
30. The format of the police warning statement is noted by this court 26. Such format
is seen commonly in our Courts with the sheer volume of RAF cases running
through them week to week. It is noted that the appellant willingly provided this
warning statement, foregoing his right to remain silent and further that such
statement does not conflict with his Section 19 affidavit nor with his affidavit in
support of default judgment. The Court a quo enjoyed ample opportunity to
question the appellant and refused such opportunity. This Court does not find
the format of this warning statement nor the information contained therein to
hold any basis for dismissal of the appellant’s action.
CONCLUSION ON MERITS
26 CL 003-30
31. It is trite for the purposes of liability that culpa arises if a reasonable person in
the position of the driver in question would foresee the reasonable possibility of
his conduct causing harm and would take reasonable steps to guard against
such occurrence.27
32. In the normal course, where a Defendant has pleaded contributory negligence
and an apportionment, the Defendant would have to adduce evidence to
establish negligence on the part of the Plaintiff on a balance of probabilities
28.
That is not the case here as the appellant’s version sits before the Court in
patent clarity and uncontested.
33. The insured driver is noted to have left the scene of the collision. Considering
the extent of the collision which caused the taxi to overturn, this departure is
significant. The driver would have been aware of the harm caused yet appears to
have left rather than face the music.
34. The appellant in this appeal states that he could not avoid the collision 29. In
appellant’s warning statement it is clear that he was aware of his surroundings
as he had noticed the approaching truck prior to the collision. He states that
when he was close to the bridge, the truck entered the road. This indicates on
his version, that the truck was simply too close for him to avoid the collision 30.
27 Kruger v Coetzee 1966 (2) SA 428 (A)
28 Johnson, Daniel James v Road Accident Fund, Case Number 13020/2014 GHC at para 17 confirming
Solomon and Another v Musset and Bright Ltd 1916 AD 427
29 CL 003.6
30 CL 003-32
35. On the evidence presented, there is no basis upon which this Court can find
reason for apportioning blame. The Court is alive to the fact that this aspect
could have possibly been placed in issue had the respondent taken any one of
the many opportunities it had to apply itself to a defence of the matter. It
neglected to do this as it neglected to engage in an attempt to resolve the matter
prior to the handing down of judgment.
36. This Court finds that the appellant proved his case on a balance of probabilities.
GROUNDS OF APPEAL ON QUANTUM
37. It does not appear from the reasons for judgment in the Court a quo that the
injuries of the appellant were related to the dismissal of the appellant’s action.
For the sake of completeness, the ample evidence on record reflects that he
sustained the following injuries:
37.1 A mild traumatic brain injury with significant neuropsychological
impairment;
37.2 Multiple lacerations and abrasions;
37.3 Significant, right sided conductive hearing loss;
37.4 Injuries to the neck and right shoulder.
38. The impairments found by the neuropsychologist, which are significant are also
considered permanent and while the traumatic brain injury sustained has been
classified as a mild one, from an outcome based perspective, things look to be
very different 31.
39. On the evidence, which evidence is clear and undisputed, this Court accepts the
nature and extent of injuries as presented and further that the appellant has
been rendered unemployable in the open labour market.
Grounds 2.2 - 2.5 and 2.7
Proof of appellant’s earnings
40. The evidence reflects that the appellant worked as a taxi driver for a living. His
affidavit in support of default judgment confirms this at paragraph 20 32.
41. Much is made by the C ourt a quo of the appellant’s belonging to a taxi
association. It is further stated that the taxi association would have been
capable of providing crucial information in relation to the appellant’s earnings.
Whether this would have been the case or not is unclear but irrespective of this,
there is ample evidence that the appellant was working as a taxi driver at the
time of the collision.
42. This Court notes the recordal on appellant’s warning statement that he was
unemployed. It must be highlighted that such statement was signed on
23 January 2021, almost a year after the collision at a time which on the evidence
and at that time, he was unemployed.
31 CL 005.12
32 CL 004.5 at 004-24
43. Validation of earnings in the informal sector is not always easy . It is often
impossible to assess such earnings with accuracy in a manner that one would of
a victim employed in the formal sector . To refuse a claim for such loss solely
because a victim in the informal sector neglected to formally record his
earnings, would be patently unjust , particularly in circumstances where proof of
his vocation is clear on the papers.
44. A court must exercise caution where evidence on loss of income is lacking and
of course the less the proof, the greater the caution. Bearing in mind however ,
the historic absence of formal record keeping in the informal sector, it is not
uncommon for a court to rely on peripheral evidence in combination with the
viva voce evidence of the victim. It is curious and somewhat unfortunate that the
Court a quo refused to hear th e evidence of the appellant . Nonetheless, the
confirmation on the police report coupled with the appellant’s evidence on oath
makes out a clear case that he was indeed working as a taxi driver/owner . This
evidence in combination with that of the medico legal experts discharges the
onus of proof with which the appellant is encumbered. T his Court finds that the
appellant was indeed working as a taxi driver at the time of the collision in
question and that he was earning a living at the time of the collision as a taxi
driver.
45. Appellant’s undisputed evidence is that he was earning a net income of
R2 500.00 per week, approximately R10 000.00 per month and that he received
his earnings in cash. He further confirms that he has not been able to work since
the collision which accords with the evidence of the medico legal experts. 33
46. In her report, industrial psychologist , Ms Shein states that considering the
appellant’s working experience and education, he would have been mainly
employable in jobs categorized as unskilled to semi -skilled and that such
occupations tend to be more physically demanding. She opines it likely that but
for the accident, he would have continued to work as a self-employed taxi driver.
She also opines that should he have had to, he would have been able to secure
alternate employment due to the experience he possessed and further that he
would have been capable of working until retirement age of 65 years.
34
47. In paragraph 8.1.2 of her report, Ms Shein states that the appellant was most
probably earning according to the Suggested E arnings Assumptions for non-
corporate workers as reported in The Quantum Yearbook (Robe rt K. Koch2020),
which for taxi owners was as follows:
• Taxi driver – Owner – Driver : R86 000 – R374 000 per year 35.
48. It is not ed that the appellant in his calculation has utilized his own earnings
figures rather than relying on those set out above. The earnings of approximately
R10 000.00 per month and accordingly R120 000.00 per annum, fall very much at
the low end of Koch’s suggested earnings for a taxi driver/owner.
33 CL 004-25 to 004-26
34 CL 006.10 at 006-98
35 CL 006.10 at 006-102
Grounds 2.6 and 2.11
Application of contingency deductions on appellant’s loss of earnings calculation
49. Future loss of income and/or earning capacity is at the best of times, a
speculative endeavour . Courts sit with the unenviable task of speculating on
scenarios placed before them by the parties. These scenarios have become
commonly known as the “but for” and “having regard to” scenarios or “pre -
morbid” and “post-morbid scenarios”.
50. In order to calculate a victim’s loss of income, a probable exposition of his
earnings trajectory both before and after the harm causing event is necessary.
51. The term general contingencies refers to the risk factors present in everyday life.
The vicissitudes of life are such that even in the absence of a harm causing
event, life and earning capacity is not without risk of loss.
52. Application of appropriate contingency deductions is a crucia l component to
reducing loss of earnings and earning capacity to a finite, monetary value.
53. The Goodall principle, commonly used in our Courts is premised upon the notion
that a general contingency deduction of 0.5% per annum until date of retirement
should be deducted off a victim’s losses.
36
36 Goodall v President Insurance Co Ltd 1978 (1) SA 389 (W)
54. In addition to the aforementioned principle, specific contingency deductions
should be applied to a loss of earnings calculation where appropriate and also
depending on the facts of each particular case. The application of contingency
deductions falls within the discretion of the Court, it tasked with making a call on
what is fair and reasonable
37.
55. This Court cannot ignore the absence of appellant’s proof of earnings and caters
for the same by way of increased contingency deductions on both the accrued
and future loss calculations.
55.1 The contingency deduction of 5% on accrued loss is increased to 15% .
The contingency deduction of R38 901 is accordingly increased to
R116 703 rendering an accrued loss figure of R661 319;
55.2 The contingency deduction of 10% on future loss is increased to 25%. The
contingency deduction of R152 433 is accordingly increased to R381 082
rendering a future loss figure of R1 143 246.
Grounds 2.8 - 2.9
Evidence that appellant indeed was a taxi driver
56. The police accident report in the matter cites the appellant as the driver of a taxi
involved in the collision and further confirms that he was conveying 6
passengers at the time of the collision
38. The appellant confirms his vocation in
37 Oosthuizen v Road Accident Fund (2014/04972) [2015] ZAGPJHC 172
38 CL 003.7
his supporting affidavit and the experts who have also provided affidavits 39
confirm the same. Had the C ourt a quo had reservations over this, it was placed
in a position to view the appellant’s pre -accident membership with the taxi
association and also to hear his evidence. It refused this evidence which while
unfortunate, is not fatal to the appellant’s case as the evidence on record proves
amply on a balance of probabilities that the appellant was indeed a taxi driver at
the time of the collision.
Ground 2.12
Failure to postpone issue of general damages
57. This Court notes the error to address the issue of general damages. It is trite that
a Court is not placed currently to make a finding on seriousness in the context of
Regulation 3 of the RAF Regulations. This head of damages and the entitlement
of the appellant to such an award ought to have been postponed sine dies.
Ground 2.13
Future medical and related expenses
58. The appellant is in need of an array of treatments and interventions, all of which
are articulated in detail in appellant’s medico legal reports. 40
ORDER
In keeping with the aforegoing the following order is made:
39 CL at section 006
40 CL at sections 005 and 006
1. The appellant’s appeal is upheld on both merits and quantum;
2. The respondent is liable for 100% of the appellant’s damages;
3. The respondent shall pay an amou nt of R 1 804 565 to the appellant for loss of
income within 14 days of date of judgment and if unpaid within such period, with
interest a tempore morae to date of final payment;
4. The respondent shall furnish the appellant with an undertaking to cover 100% of
appellant’s future medical, hospital and related expenses arising out of the
injuries sustained by the appellant in a motor vehicle collision on 7 February
2020, after such costs have been incurred and upon proof thereof;
5. The issue of general damages is postponed sine dies with the entitlement of the
appellant to such award to be referred to the Health Professions Council of
South Africa for determination;
6. The respondent shall pay the taxed or agreed, party and party costs of the
appellant on a High Court scale inclusive of the costs of counsel on scale B for
24 and 26 January 2024. Such costs shall further include those of all appellant’s
expert witnesses utilized for and in support of appellants application for default
judgment.
___________________________
L. DE SOUZA-SPAGNOLETTI
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Appellant: Advocate M Roller
Instructed by Moss and Associates
(ref: RAF/JM/ac/m4177)
Respondent: Road Accident Fund, 560/128795872/1101/10
Link number: 51381702