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, PRETORIA
Case no: 53505/2016
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 16/9/2025
SIGNATURE:
In the matter between:
JOSEPH HAPPY MLOTSHWA Applicant/Plaintiff
and
ROAD ACCIDENT FUND Respondent/Defendant
JUDGMENT
PIENAAR AJ
Introduction
[1] This was on the default judgment roll for the 25 June 2025. When the matter
was called, there was no appearance for the RAF, despite due notice of the trial date
being given to it. The matter proceeded on a default basis.
[2] The Defendant defence h as been struck off before the Honorable Judge
Basson for non-compliance with the Court Order dated 15 August 2022.
[3] The plaintiff lodged a claim with the defendant (“the RAF”) in terms of the
provisions of the Road Accident Fund Act, No, 56 of 1996 (“t he Act”) claiming
damages resulting from the injuries sustained in the collision.
[4] Ms Tsabedze, the Attorney for the Applicant, proceeded to present her case
in respect of all issues of liability and quantum [excluding the claim for General
Damages, because the RAF hasn’t elected yet the RAF 4 assessment reports].
[5] Plaintiff served a notice of amendment of the Particulars of Claim on the
Defendant on 14 March 2025, which the following amounts has been amended:
5.1 Past loss of earnings R1 000 000,00
5.2 Future Loss of earnings R5 000 000,00
5.3 General Damages R2 000 000,00
[6] Application was made in terms of Rule 38(2) of the Uniform Rules of Court
that I hear evidence on affidavit, as it would be expedient to do so. The affidavits
deposed to by all the expert witnesses are filed of record.
[7] Havenga v Parker 1993 (3) SA 724 (T), confirmed by the Supreme Court of
Appeal in Madibeng Local Municipality v Public Investment Corporation 2018 (6) SA
55 (SCA) found it is permissible to place expert evidence before the Court buy way
of affidavits in terms of Rule 38(2). Accordingly, that application was granted.
[8] After hearing the evidence of the Plaintiff Attorney, Ms Tsabedze, I reserved
judgment.
Merits
[9] The Plaintiff bears the onus to prove that the RAF is liable under the
provisions of the Act, to compensate him for damages suffered because of the
injuries in the collision.
[10] According to the Plaintiff’s Section 19(f) affidavit the following occurred: “On or
about the 9 August 2015, I was involved in a car accident. I was a pedestrian walking
on the left side of the road in Bronkhorstspruit. While so walking a motor vehicle with
registration number D[...] came at a high speed from the opposite di rection. The said
motor vehicle failed to negotiate a curve and collided with me outside the road. I was
badly injured and lost consciousness as a result of the impact and regained it same
day at Kwa Mhlanga hospital and I was hospitalized there for four days”
[11] The next document of relevance is the Accident Report. From it one deduces
that the 9 August 2015 was a Sunday. The Accident Report Form does not contain
any version of how the accident may have occurred.
[12] According to Kwa Mhlanga Hospital records he was admitted on 10 August
2015 and was diagnosed with right tibia fracture and was discharged on 12 August
2015.
[13] Ms Tsabedze for the plaintiff referred the Court to case law which is to the
effect that as a pedestrian walking on a sidewalk the plaintiff will not foresee a
vehicle without warning coming from behind to strike him.
[14] With only the plaintiff’s version before the Court, I accept this version on how
the accident occurred and, therefore, found negligence to have been establis hed on
the part of the insured driver. Consequently, I find that the liability of the defendant
has accordingly been established. Therefore, I will hold the defendant fully (i.e. 100%)
liable for any damages proven on behalf of the plaintiff arising from t he injuries
sustained by the plaintiff and/or their sequelae caused by the negligence of the
insured driver whose vehicle hit the plaintiff on 9 August 2015.
Quantum
[16] It is trite that the Plaintiff bears the onus to prove how the injuries have
affected him in respect of his earning capacity.
[17] It is trite that any enquiry into damages for loss of earning capacity is by
nature speculative. All the court can do is estimate the present value of the loss
whilst it is helpful to take note of the actua rial calculations, a court still has the
discretion to award what it considers right.
Dr Joseph Sibanyoni - Orthopedic Surgon
[18] With the above as background I now turn to the medico legal reports filed of
record. The first of these that must be considered is that of the Orthopaedic Surgeon,
Dr Joseph Sibanyoni. He assessed the Plaintiff on 10 July 2023. The Plaintiff
sustained the following injuries as result of the accident: Right tibia/fibula fracture,
left leg distal tibia laceration, right heel inju ry and left shoulder soft tissue injury. He
was admitted and discharged the following day to go home on pain medication.
Dr P M Mpanza - Neurosurgeon
[19] Dr Mpanza summaries that the claimant sustained a mild concussion with loss
of consciousness of unknown duration and the recorded admission, GCS is 15/15
with no documented head injury. He suffers from chronic headaches. Dr Mpanza
reported that he does not qualifies under 5.3 on the narrative test.
Itumeleng Faku - Clinical Psychologist
[20] Dr Faku assessed the Plaintiff on 12 February 2025. Based on the information
obtained and psychological assessment, the Plaintiff has sustained significant
injuries as the direct results of the reported accident.
Sagwati Pearl Sebapu - Occupational Therapist
[21] Having regard to the diagnosis and prognosis, the claimant is limited to
sedentary to light occupations. He is therefore a poor match for this pre and post
accident occupations.
Talifhani Ntsieni - Industrial Psychologist
Pre accident
[22] Mr Mlotshwa reported that he passed Grade 12 level of education, Skills
Program, Blasting Assistant in Surface Mines and Quarries Certificate and
Articulated Dump Truck Operator (ADT) Certificate and a Haul and Dump Material
Using a Haul Track Bell B40E (NQF Level 2) Certificate. At the time of the accident
he was employed by Aircycle Refrigeration CC as Casual and has earn gin
R1350,00 basic pay per week and R13 50,00 total earnings per week, as per the pay
slip.
[23] Ms Ntsieni reported that he has a Code 10 driver’s license, it is accepted that
Mr Mlotshwa would have secured employment/ better prospects as a Truck Driver
within 12-24 months with his earnings ranging slightly above the lower quartile of the
Truck Driver’s scale and he would have managed to progress his career and
earnings to reach his ceiling toward the upper quartile of the Truck Driver’s earnings
at the approximately age of 55 years, through promotions, changes of jobs and or for
better prospects.
Post accident:
[24] During July 2023 Mr Mlotshwa was given an ADT Operator position (light duty)
as he was not able to cope with his duties as a General Worker/Blasting Assistant
due to accident related challenges (he complained of pains on the right leg, could not
stand/ walk for long and he was also not able to carry heavy objects).
[25] Mr Mlotshwa’s performance was very poor and he was not able to cope with
his duties, he complained of pains on his right leg and he would get tired easily.
[26] He is an unequal competitor at the open labour market compared with his
healthier peers and he will not be able to perform functions efficiently and effectively
as compared to his counterparts.
Munro Actuaries
[27] The calculations of loss of earnings is based on two Scenario’s. Scenario one
is in the formal sector and Scenario two is based as a truck driver. The court is of the
view that Scenario two is the better option, based on the expert reports.
[28] Munro Actuaries applied a 15% contingency for pre morbid future and 25% for
post morbid future contingencies. The total amount of damage s awarded under this
head is therefore R3 776 460,00.
Order
[29] In the circumstances, the following order is made:
1. The Defendant is declared to be liable for 100% of the Plaintiff’s proven
damages.
2. The Defendant is ordered to pay the Plainti ff an amount of R3 776
460,00 (Three Million Seven Hundred and seventy six thousand and four
hundred and sixty rand only) in respect of the Plaintiff’s claim for Loss of
Earnings, payable into the Plaintiff’s attorneys of record’s trust account with
the following details:
Account Houlder : Mariana Mashedi Inc Attorneys
Bank name :
Branch code :
Account number :
3. The Defendant shall be liable for interest on the aforementioned
amount from the 15 th day after date of this order, at the prevailing rate of
interest, as determined from time to time, in terms of the prescribed rate of
interest Act 55 of 1975, as amended.
4. The Defendant is ordered to furnish the plaintiff with an undertaking in
terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996, for the
payment of 100% of the costs of future accommodation in a hospital era
nursing home or treatment of or r endering of a service or supplying of goods
to the injured after such costs have been incurred and on proof thereof,
relating to the injuries sustained by the Plaintiff on 9 August 2015.
5. The Defendant is ordered to pay the Plaintiff’s taxed or agreed party
and party costs on the High Court scale in accordance with Rule 70 of the
High Court, subject to the discretion of the taxing master.
6. The costs of Ms Tsabedze, briefed and appearing for the trial.
7. The above costs shall be payable within 14 days from the date of upon
which the costs are taxed by the taxing master and/or agreed between the
parties .
8. In the event that the Defendant fails to pay said costs timeously, it shall
be liable for interest on the taxed and/ or agreed party and party costs at the
prevailing rate of interest, as determined from time to time in terms of the
prescribed rate of interest Act 55 of 1975 as amended.
9. it is noted that there is what appears to be a valid contingency fee
agreement between the plaintiff and the plaintiff’s attorneys of record.
M PIENAAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was handed down electronically by circulation to the parties’ and/or
parties’ representatives by email and by being uploaded to Case Lines. The date and
time for hand-down is deemed to be 16 September 2025
Date of hearing : 25 June 2025
Judgment delivered : 16 September 2025
APPEARANCES
For the Plaintiff : Ms B M Tsabedze
Attorney for the Plaintiff : Mariana Mashedi Inc
For the Defendant : Road Accident Fund
No appearance
Link no: 3859286