IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 17722/2017
REPORTABLE
In the matter between:
ANDISIWE SITHELA Plaintiff
and
PASSENGER RAIL AGENCY OF SOUTH AFRICA (PRASA) Defendant
HEARING DATE: 6 October 2025
DATE OF JUDGMENT: 19 November 2025 (Handed down Electronically)
ORDER
As a result, the following order is made:
1. The application in terms of Uniform Rule 38(2) is granted.
2. The experts’ reports and joint minutes are admitted into evidence.
3. The defendant shall pay the plaintiff the sum of R14 462 064,40
(fourteen million four hundred and sixty -two thousand and sixty -four
rand and forty cents).
4. The defendant shall pay the plaintiff’s costs of suit, which shall include:
a) The costs of this application;
b) The costs of counsel, including the preparation of heads of
argument, on the party -and-party scale, including any reserved
costs;
c) The reasonable qualifying fees and expenses of the following
experts:
i) Dr P A Olivier (orthopaedic surgeon);
ii) Mr E Rossouw (orthotist and prosthetist);
iii) Ms M Labuschagne (occupational therapist);
iv) Ms D Turner (human resource and earnings specialist); and
v) Munro Forensic Actuaries.
JUDGMENT
HIGGINS, AJ
INTRODUCTION:
[1] This matter concerns a claim for damages arising from a tragic incident on
27 February 2017, when the plaintiff, Mr Andisiwe Sithela, then aged 26, fell from
a moving train operated by the defendant, the Passenger Rail Agency of South
Africa (PRASA). The plaintiff sustained severe injuries, most notably a traumatic
above-the-knee amputation of his left leg. Liability was settled on 28 October
2020, with the defendant conceding 70% responsibility for the plaintiff’s proven or
agreed dama ges. The matter now proceeds before this court solely for the
determination of quantum, specifically future medical and related expenses, loss
of earnings and earning capacity, and general damages.
[2] The plaintiff has brought an application under Uniform Ru le of Court 38(2),
read with Rule 39(20), seeking an order that:
2.1 The evidence of the parties’ experts is to be adduced by affidavit,
without viva voce testimony; and
2.2 The evidence in the experts’ joint minutes is to be admitted without
further proof.
[3] The trial was set down for 6 October 2025. The procedural history has
been protracted: the matter was certified trial -ready by Mantame J in June 2023;
the defendant’s legal representation has changed, with Jose Attorneys now
acting; and a judicial case management conference before Erasmus J in October
2024 led to a postponement for settlement discussions, which proved
unsuccessful.
ISSUES:
[4] The key issues for determination are:
4.1 Whether to grant the Rule 38(2) application.
4.2 Quantification of damages under:
a) Future medical and related expenses;
b) Loss of earnings and earning capacity; and
c) General damages.
4.3 Appropriate contingency deductions for loss of earnings.
4.4 Costs.
THE PLAINTIFF’S ARGUMENT:
[5] The plaintiff’s case, as articulated in Ms Chimone Claassens’ founding
affidavit and Mr D F Claassens’ heads of argument, is summarised below:
5.1 Rule 38(2) application: The parties agreed at a judicial case
management conference to proceed under Rule 38(2). This application is
precautionary. It promotes cost and time savings - critical amid congested
court rolls - and suits the largely uncontested expert evidence in reports
and joint minutes.
5.2 Future medical expenses: Relying on joint minutes from
orthopaedic surgeons, prosthetists, and occupational therapists, the
experts agree substantially on the plaintiff’s lifelong needs, including two
advanced prostheses, future surgeries (e.g., stump revisions and overuse
injury management), and ongoing conservative care. Accepting the
defendant’s more conservative actuarial figures, the plaintiff claims R17
183 250. The two prostheses are clinically essential for mobility and
function, entitling the plaintiff to care that restores dignity and autonomy,
regardless of their pre-accident socioeconomic status.
5.3 Loss of earnings: Industrial psychologists and actuaries align
closely. Before the accident, the Grade 9 -educated plaintiff worked as a
trolley porter in a medium -demand, unskilled role. Following the accident,
he is uncompetitive in the open market, likely earning only a negligible
income from self -employment. The plaintiff adopts the defendant’s
actuarial global loss of R1 676 842 (R496 109 past; R1 180 733 future),
incorporating 5% past and 15% f uture contingencies. The brief disability
grant received should not be deducted.
5.4 General damages: The plaintiff seeks R1 900 000, citing the injury’s
severity, permanent limb loss, enduring pain (past and future), young age
(26 at the time of the inci dent), and diminished life enjoyment. Inflation -
adjusted comparable cases support this.
THE DEFENDANT’S ARGUMENT:
[6] In the heads of argument by Ms K D Masupye, the defendant opposes the
application and contests the quantum:
6.1 Future medical expenses: The plaintiff must mitigate damages and
cannot claim a costlier lifestyle than pre -incident. Two prostheses are a
“luxury,” given the plaintiff’s management with one state -provided
prosthesis since 2019. All treatment, including prosthetics and s urgery,
should be provided in public hospitals at the corresponding costs. The
claims are excessive for someone in the plaintiff’s position.
6.2 Loss of earnings: The defendant doubts pre -accident employment
due to absent payslips and the employer’s alleged non -operation. Higher
contingencies (60% past, 50% future) are recommended, reflecting a
precarious history.
6.3 The heads omit direct response to the Rule 38(2) application or a
counter on general damages.
ANALYSIS:
A. The Rule 38(2) Application
[7] Rule 38(2) empowers the court to direct that evidence be adduced by way
of affidavit in suitable cases, exercising its discretion judicially regarding cost and
time savings, as well as the nature of the evidence. The parties’ prior agree ment
at a judicial case management conference weighs heavily in favour of granting
the application.
[8] The expert evidence is comprehensively detailed in the reports and joint
minutes, with a remarkable degree of consensus. The orthopaedic surgeons note
no disagreements. The occupational therapists and industrial psychologists
concur on all material aspects, with only minor differences noted. As held in Bee
v Road Accident Fund, agreements recorded in a joint minute bind the parties
unless they are timely repudiated, which is absent here.
[9] Given that the facts and expert opinions are largely uncontested, and the
disputes are chiefly legal and policy -based, determination by way of affidavit is
appropriate. Requiring live specialist testimony in these circumstances would be
an inefficient use of scarce judicial and legal resources, contrary to the interests
of justice and the efficient administration of the court roll. The application is
therefore granted.
B. Future Medical and Related Expenses
[10] The central dispute here revolves around the defendant’s contention that
the care recommended by the experts constitutes a “luxury” that elevates the
plaintiff beyond his pre -accident station in life, and that public sector alternatives
are sufficient.
[11] This view fundamentally misconstrues our constitutional order, which is
founded on human dignity, the achievement of equality, and the advancement of
human rights and freedoms. Section 9 of the Constitution guarantees the right to
equal protection under the law. It prohibits unfair discrimination, directly or
indirectly, on one or more of the listed grounds, which include grounds associated
with socioeconomic status.
[12] Section 27(1)(a) guarantees everyone the right to have access to h ealth
care services. While the state’s duties in this regard are qualified by its available
resources and must be progressively realised, this constitutional framework
cannot be used to justify a delictual damages regime that entrenches a tiered
system of compensation, condemning an injured person of limited means to a
lifetime of substandard care that they would not have required but for the
defendant’s negligence. Such an approach would perpetuate the very inequality
the Constitution seeks to dismantle.
[13] As the Constitutional Court emphasised in Minister of Health v Treatment
Action Campaign, the realisation of rights must be reasonable, and measures
cannot exclude a significant segment of society. By analogy, a delictual award for
future medical exp enses must be reasonable and aimed at adequately restoring
the plaintiff, rather than perpetuating their pre -accident socioeconomic
disadvantages. The purpose is to provide the plaintiff with adequate care to
ensure a life of dignity and function, not to c ompensate him for his loss by
cementing him in a position of deprivation.
[14] The expert evidence is unanimous and compelling: two prostheses are
essential for functionality, maintenance, hygiene, and adaptability. These are not
luxuries but necessities for basic mobility, independence, and a semblance of a
quality life. To relegate the plaintiff to the public healthcare system for his
prosthetic needs, in the face of this evidence, would be to undervalue his
constitutional rights to dignity and access to healthcare, and to penalise him for
his poverty effectively.
[15] The defendant’s reliance on cases such as Mogano v PRASA and Dyssel
NO v Shield Insurance misapplies the principle of mitigation. A plaintiff is required
to act reasonably. Seeking the n ecessary care as endorsed by a full suite of
experts, and preferring a privately funded solution over an under -resourced
public one where funding is available through a court award, is eminently
reasonable.
[16] The plaintiff has prudently accepted the de fendant’s own actuarial
calculation of R17 183 250, which is grounded in the joint minutes of the experts.
I find no reason to deviate from this figure, and it is accordingly awarded.
C. Loss of Earnings and Earning Capacity
[17] The joint minute of the industrial psychologists, Ms. Turner and Mr.
Malherbe, provides a sound basis for assessment: the plaintiff had a pre-accident
capacity for unskilled labor, and post -accident, he is doubtful to secure formal
employment and will, at best, earn a negligible income from self-employment.
[18] The defendant’s suggestion of applying contingency deductions of 50% or
60% is without merit. The case of AA Mutual Assurance Association Ltd v
Maqula, upon which the defendant relies, involved a plaintiff with a sporadic work
history. In the present matter, the plaintiff’s employment at the time of the incident
is not seriously challenged, and the defendant has adduced no credible evidence
to the contrary. The absence of payslips is not fatal to his claim. The
contingencies applied by the defendant’s own actuary (5% for past loss and 15%
for future loss) are in line with conventional practice and are fair in the
circumstances.
[19] I therefore accept the calculation of the global loss of earnings in the
amount of R1,676,842. The defendant’s argument for a deduction of the disability
grant is rejected. Such grants are a fulfilment of the state’s constitutional and
statutory duties and are distinct from delictual compensation.
D. General Damages:
[20] The assessmen t of general damages is a matter of discretion, with
reference to comparable cases, while acknowledging that each case is unique.
The plaintiff, a young man at the time of the incident, has suffered a permanent
and profound loss. He has endured and will co ntinue to endure significant pain
and discomfort, psychological trauma, severely restricted mobility, and the
prospect of future surgical procedures.
[21] The plaintiff’s counsel provided a helpful analysis of comparable cases,
adjusted for inflation, suggesting a range of R1,700,000 to R1,900,000. Having
considered the nature and sequelae of the injury, the plaintiff’s age, and the
profound impact on his life, I am of the view that an award of R1 800 000 is fair
and reasonable.
CONCLUSION:
[22] The damages, before the apportionment in terms of the liability settlement,
are therefore as follows:
a) Future medical expenses: R17 183 250
b) Loss of earnings: R1 676 842
c) General damages: R1 800 000
Total: R20 660 092
[23] Applying the 70% apportionment in the plaintiff’s favour, the total award
payable by the defendant is R14 462 064,40.
ORDER:
[24] As a result, the following order is made:
5. The application in terms of Uniform Rule 38(2) is granted.
6. The experts’ reports and joint minutes are admitted into evidence.
7. The defendant shall pay the plaintiff the sum of R14 462 064,40
(fourteen million four hundred and sixty -two thousand and sixty -four
rand and forty cents).
8. The defendant shall pay the plaintiff’s costs of suit, which shall include:
d) The costs of this application;
e) The costs of counsel, including the preparation of heads of
argument, on the party -and-party scale, including any reserved
costs;
f) The reasonable qualifying fees and expenses of the following
experts:
i) Dr P A Olivier (orthopaedic surgeon);
ii) Mr E Rossouw (orthotist and prosthetist);
iii) Ms M Labuschagne (occupational therapist);
iv) Ms D Turner (human resource and earnings specialist);
and
v) Munro Forensic Actuaries.
HIGGINS, AJ
JUDGE OF THE HIGH COURT
APPEARANCE:
Applicant’s Counsel: Adv. D F Claassens
Instructing Attorney: Laubscher & Hattingh
Respondent’s Counsel: Adv. K D Masupye
Instructing Attorney: Jose (Attorney)