1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO:17394/2019
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
01/10/2025
In the matter between:
NICOLAAS JOHANNES RAUBENHEIMER N.O. PLAINTIFF
In his capacity as curator ad litem to a minor child
V[…], L[…]
And
THE ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
MOGOTSI AJ
Introduction
1. This is an action against the Road Accident Fund (hereinafter referred to as RAF)
instituted by R […] V[…] in her capacity as a natural mother and legal guardian of
her minor child, K[…] B[…] V[…] due to injuries sustained by a minor child as a
2
result of a motor vehi cle accident which occurred on 25 November 2017, at or near
Dipuo Street, Braamfscherville, Soweto.
2. The matter was allocated to the default trial court on 25 August 2025, in the virtual
court for the determination of loss of earning capacity.
The factual matrix
3. The plaintiff launched an application by virtue of Rule 38(2) of the Uniform Rules of
the Court and Section 3(1)(c) of the Law of Evidence Amendment Act
1 45 of 1998
that was served on the Defendant on 04 July 2025. The application was granted. It
is apposite to state at this stage that the parties filed no joint minutes.
4. According to the orthopaedic surgeon, Dr Oelofse, the minor was hospitalised for 12
days from 29 October 2017 to 10 November 2017. Currently, the minor experiences
severe headaches probably twice per week ; he has sleep pattern disturbances ,
such as nightmares and talking in his sleep. According to the information obtained
from the minor’s mother, he has the following behavioural disturbances, viz, severe
aggression, moderate depression and mild anxiety. He diagnosed the minor as
having sustained a traumatic brain injury ; however, the final opinion was deferred to
the relevant experts. Regarding education and employability , the expert stated that
at the time of the accident, he was in grade 3, progressed to grade 4 in 2016, and
repeated grade 4. The mother advised that the minor child is required to attend the
remedial school due to a lack of concentration in class.
5. A clinical psychologist, Dr L Grootboom , rehashes the circumstances of the
accident initially, and the same will not be repeated herein. The minor continues to
experience headaches; he talks in his sleep, and his mother states that his
handwriting has changed for the worse. He continues getting headaches and suffers
from urinary incontinence, in that he is unable to hold his urine at times . He suffers
1 The Law of Evidence Amendment Act 45 of 1998.
3
from visual difficulties and can therefore not sit at the back of the class; and lastly,
the minor now suffers from motor and coordination difficulties in that his handwriting
has worsened post-accident.
6. According to him, cognitively, the patient forgets items, for example, his stationery;
he forgets to do tasks , such as what to buy when sent to the shops . He appears to
be a minor and seems distracted. He is being bullied and is regarded as “crazy” by
other bullies . At night , he sees a figure which he believes is a vampire and has
difficulty sleeping. He has poor self-esteem and increased aggression. He becomes
anxious and distressed when he sees a car behind him, and he avoids anything that
is accident-related. He developed irritable behaviour, feels disconnected from
others, has exaggerated startle response and is hyper vigilant. The
neuropsychological test revealed that he that he has a highly defective non- verbal
working memory, defective visual scanning, highly defective visual -spatial attention,
defective immediate attention, defective short -term/rote memory, highly defective
auditory recognition, impaired immediate verbal recall, compromise delayed verbal
recall, compromise narrative memory, defective Visio- graphic, clerical, psychomotor
and processing speed and divided attention, compromise verbal conceptual abstract
reasoning, significantly impaired non-verbal abstract and social reasoning.
7. The expert concurs with the educational psychologist in stating that his premorbid
intellectual functioning was likely at least lower average. The minor appears to have
mild to more significant neurocognitive outcomes following the accident, which, in all
likelihood, exacerbated his premorbid difficulties . He is currently a psychologically
vulnerable individual. His neuro-cognitive deficits will probably impact his future
functioning in the academic environment ; his overall deficit indicates that he
functioning in the academic environment ; his overall deficit indicates that he
struggles in most domains. According to educational psychologist K. Lazarus, the
minor’s assumed pre- accident IQ, given their history and family, is of low average.
The expert is of the opinion that the minor may have been able to complete his
4
primary and high school with a probability of furthering his studies in tertiary
education, but for the accident.
8. He opined that post -accident, a minor presented with exceptionally low intelligence
levels, which is a decline compared to the low average estimation of his pre-
accident intellectual ability. Therefore, he will not be able to achieve his pre-accident
potential. He recommends that t he minor’s present intellectual difficulties should be
considered permanent, and recommends that he attend a special needs
school/remedial school.
9. An ophthalmologist, Dr Kunzman, recommends that, given the traumatic brain injury,
the minor requires lifelong annual evaluations to monitor the risk of developing
Glaucoma at a later stage.
10. Dr Matyaba, a neurosurgeon , stated that the minor suffered a moderate to severe
traumatic brain injury in the accident and currently suffers from residual sequelae .
His prognosis is at best guarded.
11. Dr Kleinhans, a therapist, opined that from a physical perspective, the minor should
be able to obtain any employment of his choice; however, he will not be an equal
competitor to his uninjured peers because of the affected cognitive skills, coupled
with neuropsychological sequelae, all of which have a negative impact on
occupational sustainability and stability.
12. According to the industrial psychologist, Nel & Schoeman, pre -accident, the minor
was of low average intellectual ability. He may have been able to complete his
primary and high school education, with the probability of furthering his tertiary
education (the diploma/university degree). Post-accident, he presents with
extremely low intelligence, which represents a decline compared to his lower
average intellectual ability prior to the accident. It is further recommended that the
minor attend a special needs school/remedial school.
5
13. Regarding pre-accident, he opined that two scenarios were postulated: Firstly, with
a diploma and an NQF level 6 qualification, it is assumed he may have entered
the open labour market at Patterson level B3 and reached a career plateau with an
earning potential at Patterson level C4. Secondly, with a degree or qualification, it is
assumed he may have entered the open labour market at Patterson level B5 and
reached his career plateau with an earning potential at Patterson level D1. Post -
accident scenarios: He will certainly not reach his pre- accident earnings potential
because he is unfit to perform any form of employment in the open labour market
due to the head/brain injury sustained in the reported accident and its sequelae. As
a result of the accident and injury sustained, he has become unemployable in all
labour markets.
14. PG Human, an actuary, opined that there are two scenarios. The first scenario, and
not applying the RAF cap, being that, but for the accident , a three- year diploma
qualification, and a career as a skilled worker versus unemployable, amounted to
the following calculation:
6
15. The second scenario is but for the accident , a three-year degree qualification with a
career in middle management versus unemployable, the calculation comes to the
following:
16. Contingencies include any possible relevant future event which might cause
damage or a part thereof , or which may otherwise influence the extent of the
plaintiff's damage. The traditional principle and rationale guiding restitution loss of
earning capacity was expressed in Dippenaar v Shield Insurance Co Ltd 2 per
Rumpf JA, where he held that:
‘In our law, under the lex Aquilia, the defendant must make good the difference
between the value of the plaintiff's estate after the commission of the delict and the
value it would have had if the delict had not been committed. The capacity to earn
money is considered to be part of a person's estate, and the loss or impairment of
that capacity constitutes a loss, if such loss diminishes the estate. 3This was the
approach in Union Government (Minister of Railways and Harbours) v Warneke 1911
AD 657 at 665, where the following appears: "In later Roman law , property came to
2 Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A), para 9.
3 Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657 at 665
7
mean the universitas of the plaintiff's rights and duties, and the object of the action
was to recover the difference between the universitas as it was after the act of
damage, and as it would have been if the act had not been committed (Greuber at
269) …”
17. It should be noted that contingencies are arbit rary and also highly subjective, and
this was best described in Goodall v President Insurance Co Ltd 4 where the court
said:
“In the assessment of a proper allowance for contingencies, arbitrary considerations
must inevitably play a part, for the art or science of foretelling the future, so
confidently practised by ancient prophets and soothsayers, and by authors of a
certain type of almanack, is not numbered among the qualifications for judicial
office.”
18. The trial court has a wide discretion when it comes to determining contingencies.
An appeal court will therefore be slow to interfere with a contingency award of a trial
court and impose its own subjective estimates.
19. The advantage of applying actuarial calculations to assist in this task was
emphasised in the leading case of Southern Insurance Association Ltd v Bailey 5
1984 1 SA 98 (A) 113H-114E, where the Court stated:
“…Any enquiry into damages for loss of earning capacity is of its nature speculative.
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 , of course, upon the soundness of the assumptions, and
these may vary from the strongly probable to the speculative. It is manifest that
4 Goodall v President Insurance Co Ltd 1978 1 SA 389 (W)
4 Goodall v President Insurance Co Ltd 1978 1 SA 389 (W)
5 Southern Insurance Association Ltd v Bailey 1984 1 SA 98 (A) 113H-114E.
8
either approach involves guesswork to a greater or lesser extent. But the Court
cannot, for this reason, adopt a non-possums attitude and make no award. In cases
where the Court has before it material on which an actuarial calculation can be
made usefully, I do not think that the first approach offers 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' (to
use the words of appellant's counsel) as to what is fair and reasonable is nothing
more than a blind guess."
20. The courts have, over time, developed general rules regarding contingency
deductions, one being the age of a claimant. It is generally accepted that t he
younger a claimant, the more time he or she has to fall prey to the vicissitudes and
imponderables of life.
21. In Baliso v Firstrand Bank Limited t/a Wesbank6, the Constitutional Court articulated
the procedure of dealing with a default judgment as follows,
“In terms of our civil procedure, default judgment for a debt or liquidated demand is
granted on an acceptance of the allegations as set out in the summons, without
any evidence. Where the claim is not for a debt or liquidated demand, the court
may, after hearing evidence, grant judgment. This is usually only evidence on the
amount of unliquidated damages. The reason for not hearing evidence on the
other factual allegations made in the summons or particulars of claim is that,
because the claim is not opposed, it may be accepted that those allegations are
admitted or not disputed.”
Analysis
22. It is clear ex facie the expert ’s reports the minor’s current intellectual difficulties are
permanent, and given the traumatic brain injury the minor sustained, it is apparent
6 Baliso v Firstrand Bank Limited t/a Wesbank6 [2016] ZACC 23
9
that the minor requires lifelong annual evaluations to monitor the risk of developing
Glaucoma at a later stage. What exacerbates the minor’s difficulties is that he
currently suffers from motor and coordination difficulties , in that his handwri ting has
worsened post -accident, and he is required to attend a special needs
school/remedial school. The plaintiff, in my view, proved his case on the balance of
probabilities. Although I considered the reports of the defendants, I am of the view
that they are not properly on the record since no application for the admission
thereof was launched.
Order
23. The draft order marked “X” is made the order of the court.
______________
MOGOTSI AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG, GAUTENG
This Judgment was handed down electronically by circulation to the parties and or their
representatives by email and by being uploaded to CaseLines. The date and time for
the hand down is deemed to be 17H00 on 01 October 2025
Date of Hearing: 12 August 2025
Date of Order: 12 August 2025
Date of Judgment: 01 October 2025
For the Plaintiff:
Ms J Barrows instructed by Van der Elst
Inc
For the Defendant: Ms P Letsoalo / Mr L Klaas instructed by
the Road Accident Fund
10