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, PRETORIA
CASE NUMBER: 31955/22
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE
SIGNATURE
In the matter between:
M[...] MA OBO PLAINTIFF
M[...] PP
And
ROAD ACCIDENT FUND DEFENDANT
This judgement is handed down electronically by circulation to the e-mail addresses of
the legal representatives of the parties. The date of the order is as indicated herein
below.
JUDGMENT
DE JAGER J AJ
(1) This matter was before me on 25 and 26 June 2025.
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(2) The Plaintiff was a passenger who is a minor (assisted by her biological
mother) in a vehicle which was involved in a collision on 9 November 2020 on
the R 511 in Pretoria and was subsequently transported to Kalafong hospital
by ambulance.
(3) The issues to be determined by this Court are the merits of the Plaintiff’s claim
and the quantum of damages to be awarded should the claim be successful.
(4) Summons was issued on 13 June 2022 [Caselines: 013];
(5) The matter was defended by the State Attorney on 3 June 2024 [Caselines:
0001-0002];
(6) A notice of bar was served on the Defendant on 12 July 2024 [Caselines
018:1]. Subsequently the Defendant was ipso facto barred, and no
subsequent application to uplift the bar was filed;
(7) The Plaintiff requested that the affidavits in terms of Rule38(2) as well as the
affidavits of the medical experts be accepted by this Court as evidence.
Evidence was also presented by two experts being the educational
psychologist and the Neuro Clinical Psychologist (referred to later herein).
MERITS
(8) The fact that the Plaintiff was a passenger is supported by the documents
included in [Caselines 014].
(9) A complete affidavit in terms of section 19(f) was requested and received on
30 October 2025. This confirmed the phone call between the Plaintiffs’ mother
and the insured driver where he admitted to her that he “lost control of the
vehicle” This was also referred to in the comprehensive head of argument on
[Caselines 016:2].
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(10) On the basis that the Plaintiff was a passenger she needs to prove 1%
negligence by the insured driver in support of her claim. On the finding that the
insured driver was 1% negligent, the Defendant is liable for 100% of the
plaintiffs proven damages (See: Groenewald Road Accident fund
(74920/2014[2017]).
(11) The accident report reflects that the insured driver could not speak due to his
injuries.
(12) In the affidavit attested to by the Plaintiff’s mother [Caselines 015:1] it is stated
that the insured driver lost control of the vehicle that subsequently overturned.
(13) I therefore find that the Plaintiff has proven the negligence of the insured driver
on a balance of probabilities.
(14) The merits of the Plaintiff’s claim are upheld.
QUANTUM
(15) The next issue is to determine the quantum of the Plaintiffs claim.
(16) The quantum of the claim concerned are (a) general damages and (b) the
Plaintiff’s loss of earnings.
(17) The following experts were appointed by the Plaintiff to provide medico - legal
reports: Dr Seroto Neurosurgeon
De Baloyi Orthopaedic surgeon
Dr Mputi Neuro Clinical Psycologist
Mrs Y Segabulte Educational Psychologist
L Lauauise Industrial Psychologist
Mrs Phasa Occupational therapist
Dr Moja Neurosurgeon
Mr Mureiriwa Actuary
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(18) The hospital records confirmed the date of the accident and the Plaintiff’s
injuries including the admission documents confirming a head and spine injury,
an MRI report and various scripts.
(19) The minor was in hospital for 8 days and was released on the 17 November
2020.
BRIEF SUMMARY OF EXPERT REPORTS
(20) Not all expert reports will be referred to and summarized but was duly
considered. Two experts were called to testify to clarify their reports. They are
Dr Mputi the Clinical psychologist that specializes in neuropsychology and the
education psychologist Mrs M Segabutle. The most important expert evidence
is summarised in paragraph (21-24 herein below).
(21) Dr Seroto (neurosurgeon):
a) The minor sustained a head injury with bruising on the face and neck .
Clinical records show that the Glascow Scale was 15/15 when she
admitted.
b) The plaintiff has post concussive syndrome and this is evidenced by
frequent headaches (twice a week) , irritability, memory problems and
dizziness, neuro cognitive and neuro physical impairment, specifically
memory impairment and suffers from emotional liability and some signs
of post-traumatic stress disorder.
c) A definite change is personality is also recorded.
d) Unsightly scarring in the face is recorded.
e) A mild traumatic brain injury [Caselines 002-128].
f) Qualifies is the narrative test is applied of more than 30% WPI.
(22) Dr Mphuthi (Neuro clinical psychologist report):
a) The neuro psychological performance as indicated by the
neurocognition index, is very low denoting the presence of neuro
cognitive impairment and deficit.
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b) The quantit ative EEG results indicate that the brain connectivity
measures show indicators of poor integration of information.
c) Persistent patters in the cognitive domains specifically referring to
executive function, cognitive flexibility and complex attention are
recorded.
d) Low performance could be due to neuro cognitive deficits as a result of
the brain injury and is aggravated by the chronic pain and stress
response interfering with the allocation of cortical resources.
e) Specific reference is made to the three factors that compounds the
seriousness of brain injuries being; a) trauma to the cranium) alter
consciousness and c ) a period of post traumatic amnesia. It is
confirmed that all three factors were present with the Plaintiff.
f) Head injuries sustained earlier in childh ood interrupt developmental
processes leading to neurological deficits when the n met with cognitive
and self-monitoring skills emerge during the adolescent years.
g) The minor child suffers from greater neuro cognitive impairment than
the apparent injury and neuro cognitive impairment is over moderate
severity. There is a very poor prognosis with the sleeper effect , and
therefor the cognitive deficit should be considered to be permanent.
h) The expert clarified two main aspects in this testimony being:
1) What the sleeper effect referred to in this report is and the
seriousness of the sle eper effect in the functioning of the life of
the claimant.
2) That verbal IQ (intelligence sufficient) that remains in the normal
category after the inci dent is a direct indication that the minor
was able to achieve normal milestones as this function was
intact prior to the accident. This clarification was necessary as
the educational psychologist could not adequately address this.
3) He further emphasized the that a head injury in early
developmental stages interrupt developmental processes
leading to neurological deficits that present during early
leading to neurological deficits that present during early
adolescent years when the functions of self - monitoring skills
and meta cognisance emerge.
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4) The conclusion of his testimony is that this claimant suffers from
greater neuro cognitive impairment than the apparent injury and
neuro cognitive impairment is greater than moderate severity.
5) There is therefore a poor prognosis given the confirmed sleeper
effect of the head injury and this is considered permanent.
(23) Mrs Y Segabulte (educational psychologist):
a) Her report indicated that the claimant failed both grade 2 and grade 4 of
her foundation phase schooling. No pre -accident school reports were
attached to the expert report, and she was called to testify and
specifically address this issue.
b) She testified that she contacted the different primary schools where the
claimant attended but that they did not have electronic copies of the
reports, as it was provided on a physical piece of paper and handed to
the parents at the time.
c) She indicated that no negative inference could be drawn from the
claimant’s failure of grade 2 and 4 respectively as the minor underwent
two separate events (unrelated to the accident) , the one being a
change of school with an abrupt change in the langue of instruction that
made it impossible for the claimant to excel at school . The other event
was the covid pandemic where the claimant did not attend school for an
extended period and due to lack of resources of the school to facilitate
an online platform had to repeat the year as they children barely had
school for the period of the pandemic.
d) She confirmed that her parents both reached an d completed grade 12
and that her siblings were in grade 9 and in a creche respectively.
e) She premised that the claimant would have finalised grade 12 and be
able to obtain her qualification at bachelor's level. [Caselines 002-54]
f) She detailed the claimants continued struggles at school post-accident
and that she would most likely fail out of the school system at grade 9.
She also referred to her continued medical symptoms being
headaches, confusion and forgetfulness.
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(24) Against the testimony of Dr Mputi and Mrs Y Segabutle the remainder of the
reports of the Industrial Psychologist (Lowane Mayayise) and the occupational
therapist (Mrs Adedlaide Phasa) was considered.
(25) Having regard to the different expert reports, the Claimant has proven the
nexus between the accident and her loss.
(26) The court assesses loss of earnings by estimating wat the Plaintiff would have
earned had the accident not occurred compared to her current earning
potential.
(27) The principles governing these calculations are established in inter alia:
(27.1) Santam Versekering BPK vs Byleveldt 1973 (2) SA 146 A ; Southern
Insurance Association Ltd vs Bailey No 1984(1) Herman v Shapiro and
Co 1926 (TPD 379); Anthony and Another v Cape Town Municipality
1976(4) SA 445(A); Union and National Insurance Co Ltd vs Coetzee
1970(1) SA 295 (A) and Roe v Road Accident Fund QOD Volvi J2-59.
(28) An amended calculation based on the level of a diploma (and not a Bachelor’s
degree was requested) and the actuary was r equested by the claimant to
apply a 15% contingency and the Plaintiff’s loss was calculated at: R
9 450 860.00.
(29) The actuaries applied a 15 % contingency.
CONTINGENCIES APPLIED
(30) In Ralph v Road Accident Fund (3069/2018) [2023] ZAFSHC 102 (3
February 2023) a detailed approach on the determination of contingencies is
set out as follows by Molitsoane, J:
“[20] The court in Oosthuizen v Road Accident Fund 2015 JDR 1717
(GJ) gave a useful summary of case law on contingencies and I refer
extensively as follows:
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“Matters which cannot otherwise be provided for or cannot be
calculated exactly, but which may impact upon the damages
claimed, are considered to be contingencies, and are usually
provided for by deducting a stated percentage of the amount or
specific claims. (De Jongh v Gunter 1975 (4) SA 78 (W) 80F).
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. ( Erdmann v
SANTAM Insurance Co Ltd 1985 3 SA 402 (C) 404 -
405; Burns v National Employers
General Insurance Co Ltd 1988 3 SA 355 (C) 365).
In a wide sense contingencies are described as “the hazards
that normally beset the lives and circumstances of ordinary
people”. (AA Mutual Insurance Association Ltd v Van
Jaarsveld 1974 4 SA 729 (A); Van der Plaats v SA Mutual Fire &
General Insurance Co Ltd 1980 3 SA 105 (A); Southern
Insurance Association Ltd v Bailey 1984 1 SA 98 (A) 117).
Contingencies have also been described as “unforeseen
circumstances of life”. ( De Jongh v Gunther 1975 (4) SA
78 (W) 80F).
The percentage of the contingency deduction depends upon a number
of factors and ranges between 5% and 50%, depending upon the facts
of the case. ( AA Mutual Association Ltd v Maqula 1978(1) SA 805
(A) 812; De Jongh v Gunther 1975(4) SA 78 (W) 81, 83,
84D; Goodall v President 1978(1) SA 389 (W) 393; Van der
Plaats v SA Mutual Fire & General Insurance Co Ltd 1980(3) SA
105(A) 114-115A-D).
Contingencies are usually taken into account over a particular period of
time, generally until the retirement age of the plaintiff
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(Goodal v President Insurance Co Ltd 1978 1 SA 389 (W) 393; Rij
NO v Employers’ Liability Assurance 1964 (4) SA
737 (W); Sigournay v Gillbanks 1960 2 SA 552 (A) 569; Smith v SA
Eagle Insurance Co Ltd 1986 2 SA 314 (SE) 319).
Often, what is described as a “sliding scale” is used, under which it is
allocated a “1/2% for year to retirement age, i.e 25% for a child, 20%
for a youth and 10% in middle
age”. (Goodall v President Insurance Company Limited 1978(1) SA
398(W) and Road Accident Fund v Guedes 2006(5) SA 583(A) 588D-
C. Likewise, see Nonwali v Road Accident Fund (771/2004) [2009]
ZAECMHC 5 (21 May 2009) (para 23))
Colman J provided a useful exposition Burger v Union National South
British Insurance Co 1975 (4) SA 72 (W) 75 of the approach to be
adopted by the Court:
“A related aspect of the technique of assessing damages is this
one; it is recognized as proper, in an appropriate case, to have
regard to relevant events which may occur, or relevant
conditions which may arise in the future. Even when it cannot be
said on a preponderance of probability that they will occur or
arise, justice may require that what is called a contingency
allowance be made for a possibility of that kind. If, for example,
there is acceptable evidence that there is a 30 percent change
that an injury to the leg will lead to amputation, that possibility is
not ignored because 30 percent is less than 50 percent and
there is therefore no proved preponderance of probability that
there will be an amputation. The contingency is allowed for by
including in the damages a figure representing a percentage of
that which would have been included if amputation had been a
certainty. That is not a very satisfactory way of dealing with such
difficulties, but no better way exists under our procedure.”
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But the difficulty with this approach was appreciated by Margo J
in Goodwill v President Insurance Co Ltd 1978(1) SA 389 W at
392H:
“In the assessment of a proper allowance for contingencies,
arbitrary considerations must inevitably play a part, for the art of
science of foretelling the future, so confidently practiced by
ancient prophets and soothsayers, and by modern authors of a
certain type of almanac, is not numbered among the
qualifications for judicial office”.
(31) If one considers the principle of a ½% a year until retirement age calculated
form the age of 25-65, a period of 40 years it will be a contin gency of 2 0
percent.
(32) Considering the severity of the injury compounded by the sleeper effect I am
satisfied that the 15% as calculated by the actuary is fair in this instance.
(33) The Plaintiff sought an order that general damages be postponed sine die.
(34) Counsel stated that there is a valid contingency fee agreement.
[35] Accordingly, the following order is made:
1. The Defendant is ordered to pay 100% of the Plaintiffs proven damages.
2. The Defendant shall pay the Plaintiff an amount of R 9 450 860 .00 ( NINE
MILLION FOUR HUNDRED AND FIFTY THOUSAND, EIGHT HUNDRED AND
SIXTY RAND) as payment of the Plaintiffs claims for loss of earnings. Such
amount is to be paid within 180 days from the date of the order.
3. In the event of the aforesaid amount not being paid timeously, the Defendant
shall be liable for interest on the amount at the prescribed legal rate, calculated
from the 15th calendar day after the date of this Order to date of payment.
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4. The Defendant/Respondent shall furnish the Plaintiff with an undertaking in
terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996, for the
costs of future accommodation in a hospital or a nursing home or treatment of
or rendering of a service or supplying of goods to the Plaintiff/Applicant after
such costs have been incurred and on proof thereof.
5. The Defendant/Respondent shall pay the Plaintiff's taxed or agreed party and
party costs on the High Court scale in respect of both merits and quantum, from
the onset of the matter, up to and including 25 and 26 June 2025, and
notwithstanding, and over and above the costs referred to in paragraph 5.2.1
below, subject to the discretion of the Taxing Master:
5.1. In the event that the costs are not agreed:
5.1.1. The Plaintiff/Applicant shall serve a notice of taxation on the
Defendant's attorneys of record;
5.1.2. The Plaintiff/Applicant shall allow the Defendant 14
(FOURTEEN) days from date of allocator to make payment of
the taxed costs;
5.1.3. Should payment not be affected timeously; the Plaintiff will be
entitled to recover interest at the prescribed legal rate on the
taxed or agreed costs from date of allocator to date of final
payment.
5.2. Such costs shall include:
5.2.1. The costs incurred in obtaining payment of the amounts
mentioned in paragraphs 2 and 3 above;
5.2.2. The costs of and consequent to the appointment of the
counsel, h is preparation and h is day fee for the 25 and 2 6
June 2025 on scale B;
5.2.3. The costs of all medico -legal reports, as well as such reports
and/or forms furnished to the Defendant and/or its attorneys of
record, as well as reports and/or forms in their possession and
all reports and/or forms contained in the Plaintiffs trial bundles;
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5.2.4. The reasonable and taxable preparation, qualifying and
reservation fees if any;
5.2.5. The reasonable costs incurred by and on behalf of the Plaintiff
in attending all the medico -legal examinations as well as all
the medico-legal expert reports that have been served to the
Defendant;
5.2.6. The costs incurred transporting the Plaintiff as the only witness
and as a necessary witness, if any.
6. The amounts referred to in paragraph 2, 3 and 5 will be paid to the Plaintiff's
attorneys of record, MOLEFE MACHAKA ATTORNEYS INC, by direct transfer
into their trust account with details as follows:
ACCOUNT HOLDER : MOLEFE MACHAKA ATTORNEYS INC.
ACCOUNT TYPE : TRUST
ACCOUNT NUMBER : 4[...]
NAME OF BANK : ABSA
BRANCH CODE : 6[...]
REFERENCE NO : MMP/0195/2022
7. General Damages are postponed sine die / referred to HPCSA for
determination.
J DE JAGER
ACTING JUDGE, THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing : 25-26 June 2025
Date of Judgment : 5 November 2025
Appearances:
For The Plaintiff : Adv. Ruben Maphutha
Instructed by : Molefe Machaka Attorneys Inc
For The Defendant : No Appearances
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