IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
CASE NO: 1221/2019
In the matter between:
JOSEPH NANGU Plaintiff
and
ROAD ACCIDENT FUND Defendant
Heard on: 1 September 2025
Delivered on: 28 November 2025
Coram: Olivier AJ
Summary: Civil trial – Motor vehicle accident – Quantum – Past and future loss of
income / earnings – Contingencies.
ORDER
The following order is made:
1. The defendant shall be liable for 100% ( ONE HUNDRED PERCENT ) of the
plaintiff’s damages arising from the injuries sustained in a collision which occurred
on 28 November 2015.
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
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Case No: 1221/2019
2. The defendant shall pay to the plaintiff, in respect of the plaintiff’s general
damages, the amount of R1 000 000,00 ( ONE MILLION RAND), which amount
is to be paid within 180 ( ONE HUNDRED AND EIGHTY ) days from date of this
order.
3. The defendant shall pay to the plaintiff, in respect of the plaintiff’s past and future
loss of earnings, the amount of R4 983 382,00 ( FOUR MILLION, NINE
HUNDRED AND EIGHTY -THREE THOUSAND, THREE HUNDRED AND
EIGHTY-TWO RAND), which amount is to be pai d within 180 (ONE HUNDRED
AND EIGHTY) days from date of this order.
4. The plaintiff shall not issue a writ of execution in respect of the amounts
mentioned in paragraphs 2 and 3 above prior to the expiry of the period of
180 (ONE HUNDRED AND EIGHTY) days.
5. The defendant shall be liable for interest on the capital amounts at the prescribed
rate of interest which will be calculated as from 14 (FOURTEEN) days from date
of this order up and until date of final payment.
6. Payment of the amounts mentioned in paragr aphs 2 and 3 supra, shall be
effected directly into the banking account of the plaintiff’s attorneys of record, the
details of which will be provided to the defendant within 10 (TEN) days from date
of this order.
7. The defendant shall provide the plaintiff with an Undertaking in terms of the
provisions of Section 17(4)(a) of the Road Accident Fund Act, Act 56 of 1996 ,
to compensate the plaintiff for 100% ( ONE HUNDRED PERCENT) of the costs
relating to the future accommodation of the plaintiff in a hospital or nursing home
and/or for the future treatment of and/or the rendering of services to and/or the
supplying of goods to the plaintiff after such costs have been incurred , on
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Case No: 1221/2019
condition that the defendant has to submi t proof of incurring such costs , and on
condition further that such costs must have arisen from the collision that occurred
on 28 November 2015.
8. The defendant shall pay the plaintiff’s taxed or agreed party and party costs on
the High Court scale to date, which shall include the costs of plaintiff’s instructing
and correspondent attorneys.
9. The defendant shall pay the taxed or agreed costs of plaintiff’s counsel on Scale B
in terms of Rule 67A(3), read with Rule 69(7) of the Uniform Rules of Court, such
costs to include consultations in preparation for trial, advice of quantum, written
submissions and/or heads of argument, trial preparation and appearance fees for
24 March 2025 and 1 and 2 September 2025.
10. The defendant shall pay any costs attendant upon the obtaining of payment of
the amounts mentioned in paragraphs 2 and 3 above;
11. The defendant shall pay the taxed or agreed fees, qualifying expenses,
reservation fees (including travel expenses actually incurred) and all costs
attached to the procurement of medico-legal reports, addendum reports where
relevant and other relevant reports as well as x-rays and scans and related costs
in respect of the following experts:
11.1 Dr L van Oudenhove
11.2 Dr PA Olivier
11.3 Me E Burke
11.4 Dr L Panieri-Peter
11.5 Dr Z Domingo
11.6 Me M Stander
11.7 Mr D Malherbe, and
11.8 ARCH Actuaries
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12. The aforesaid costs shall include the costs of attending all plaintiff’s and
defendant’s medico -legal examinations, the amount(s) of which will be at the
discretion of the Taxing Master.
13. The defendant shall pay the reasonable travelling, accommodation and related
costs in respect of plaintiff as well as plaintiff’s legal representatives as well as
plaintiff’s expert Mr D. Malherbe for attendance at trial on 24 March 2025, as well
as 1 and 2 September 2025; and
14. The plaintiff shall comply with the provisions of Section 4(1) and Section 4(2) of
the Contingency Fees Act, Act 66 of 1997 , by filing the required affidavits with
the Court within 20 (TWENTY) days from date of this order.
JUDGMENT
OLIVIER AJ
1. Summons was issued on behalf of the plaintiff on 29 May 2019 based on injuries
sustained by the plaintiff during a motor vehicle accident that occurred on
28 November 2015 on the N14 road between Pofadder and Kakamas in the
Northern Cape Province (“the accident”).
2. It was alleged in the plaintiff’s particulars of claim that the accident was caused
by the negligence of the driver of the insured vehicle and it was not in disp ute
that, as a result of the accident, the plaintiff suffered various injuries, the details
of which are irrelevant for purposes hereof.
3. The action was initially defended but became largely settled when the defendant
accepted liability for 100% of the pl aintiff’s proven damages and when the
respective parties reached agreements in respect of the plaintiff’s claims for past
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Case No: 1221/2019
and future medical and related expenses as well as the amount of general
damages to be paid to the plaintiff by the defendant.
4. I was tasked with determining the plaintiff’s claim in respect of past and future
loss of income/earnings and, as will become evident herein under, specifically the
percentages of the contingencies that have to be applied in this instance.
5. In this regard the plaintiff relied on the testimony of Mr DG Malherbe (Counselling
Psychologist), as well as on the following:
5.1 Medico-Legal Report by the afore -said Mr DG Malherbe (herein after
referred to only as “Mr Malherbe”), dated 15 September 2020.
5.2 Addendum Report by Mr Malherbe dated 17 May 2021.
5.3 Joint Minute compiled by Mr Malherbe and Mr SJS Nteso (Industrial
Psychologist) (“Mr Nteso”), dated 24 January 2024.
5.4 Report by Arch Actuarial Consulting (Pty) Ltd (Actuaries) (“the
actuaries”), dated 30 January 2025.
6. Huge reliance was placed on behalf of the plaintiff on the joint minute prepared
by Mr Malherbe and Mr Nteso in terms whereof they were ad idem that, as a
result of the accident and the injuries sustained during the accident, the plaintiff
must be regarded as unemployable as he will not be able to compete for
alternative employment in the open labour market.
7. Mr Malherbe and Mr Nteso further agreed as follows in respect of the plaintiff’s
pre-morbid career path:
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7.1 That the plaintiff left school after completing Grade 8 or 10 and that he
had no further education or training but that he did obtain a driver’s
license.
7.2 That he performed some unskilled work early during his career before he
gained some skills and supervisory responsibilities and that he
subsequently worked in various capacities in employed and self -
employed environments.
7.3 That, at the time of the accident, the plaintiff was permanently employed
as a personal protection officer for the mayor of the Kai! Garib
Municipality in Kakamas (“the municipality”).
7.4 That the plaintiff had been employed as such for a period of a year prior
to the accident and that he envisaged working for the municipality on a
continuous basis.
7.5 That the plaintiff was 38 years old at the tim e of the accident , that his
work was at a level where certain skills and qualifications were necessary
(which was already advanced given his qualifications) and that, as a
result, significant career progression was not expected; and
7.6 That the plaintiff would, in all likelihood, have worked until retirement age
of 65 years.
8. In respect of the plaintiff’s pre-morbid earnings, the joint minute states as follows:
8.1 That, although the plaintiff could not provide proof of income at the time
of the accident, his salary in August 2020 was indicated as R24 094,00
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(Twenty Four Thousand and Ninety-Four Rand) per month, which placed
him on a municipal post grade of T10.
8.2 That the plaintiff’s salaries in future would have been determined by
negotiations.
8.3 That his salary in 2015 was on Notch 8 of Level 10 and that he would
have received annual notch increases reaching Notch 12 in 2019.
8.4 That one job grade progression to Level 11 at around age 43 could not
be excluded and that he would have received annual notch increases
thereafter reaching Notch 12 in 2025.
9. Mr Malherbe and Mr Nteso agreed as follows in respect of the plaintiff’s post -
morbid career path:
9.1 That the plaintiff was injured at age 38 and that he returned to work at the
municipality after a recovery period of between 7 and 9 months.
9.2 That it was uncertain whether he suffered any financial losses during the
period of his absence.
9.3 That he continued working for the municipality, but that he had to be
alternatively accommodated as a result of his physical and cognitive
deficits.
9.4 That the plaintiff’s services were eventually terminated on 4 February
2021 as he could no longer be accommodated due to his cognitive and
psychological difficulties and the fact that he experienced difficulties in
getting along and working with others.
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9.5 That, since the termination of his services and other than receipt of his
provident fund savings, the plaintiff has not received any further
payments; and
9.6 That the plaintiff is unable to mee t the physical demands of his pre -
accident job and that he must be regarded as being unemployable.
10. Mr Malherbe and Mr Nteso further agreed as follows in respect of the plaintiff’s
pre-morbid career path:
10.1 That subsequent to the accident, the plaintiff continued to earn at
anticipated pre-morbid levels, but that this situation ended in February
2021 upon the resignation of the plaintiff.
10.2 That since his resignation, the plaintiff has been unable to generate any
income; and
10.3 That the plaintiff will, most likely, remain unemployed for the remainder
of his working life.
11. The contents of the joint minutes and the issues agreed upon were not
questioned or repudiated by the defendant and in keeping with the current legal
position, I am of the view that the plaintiff should be entitled to rely on the contents
of the joint minute and proceed on the basis that the matters agreed upon are not
in issue and that this Court is further also entitled to accept these matters as
uncontested.1
1 Bee v Road Accident Fund [2018] ZASCA 52 (29 March 2018), paras 64 and 65; Van Der Merwe obo MH v
Member of the Executive Council for Health and Social Development, Gauteng Provincial Government [2024]
ZAGPJHC 437 (4 April 2024), par 29.
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12. In amplification of the plaintiff’s earning capacity post -accident, it was stated by
Mr Malherbe that after it became obvious that the patient would not be able to
fulfill his duties as personal protection officer at the municipality any longer, the
municipality attempted to assist him to remain in service as long as possible and
that the plaintiff was utilised in various posts at the municipality, amongst others
as customer services officer, as roads works supervisor and as an inspector in
the water and electricity department.
According to Mr Malherbe, the above meant that the plaintiff, subsequent to the
accident and whilst still in the employ of the municipality, did not suffer any loss
in remuneration and that, as a consequence, the plaintiff did not experience a
clear loss of earnings prior to his resignation in February 2021.
13. It is evident from the various expert reports and from the evidence presented by
Mr Malherbe that, although the plaintiff’s future career path at the municipality did
not promise a steep incline, he would have been able to work at the municipality
until his retirement at age 65 (if it was not for the accident) and that he would have
received his normal annual salary adjustments.
14. The p laintiff did , however, unfortunately continue to experience cognitive
difficulties as a result of the accident which lead to d ifficulties in dealing with
customers and his services were eventually terminated on 4 February 2021 by
way of resignation.
15. Mr Malherbe reiterated the fact that the plaintiff is in fact unemployable in the
open labour market as he would not find alternative emp loyment in his current
condition and that, if it was not for the municipality that treated him with a great
amount of sympathy, his services could have been terminated at an earlier stage
already.
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16. Mr Kagee, who appeared for the defendant, did not dispute the fact that the
plaintiff is unemployable, but during his cross-examination of Mr Malherbe,
Mr Kagee attempted valiantly to show that the plaintiff should in fact have been
subjected to a medical assessment and that his duties should have been
terminated on medical grounds , and that he should not have been required to
resign.
It became evident during the testimony of Mr Malherbe that the municipality was
considering terminating the plaintiff’s services on medical grounds , but that the
prescribed process for doing so would have taken too long and that the parties
(the plaintiff and the municipality) agreed that the plaintiff would resign.
Mr Kagee’s argument was that if the plaintiff was not in effect forced to resign, he
could have been in the employ of the municipality for a longer period.
17. Mr Malherbe conceded that, if the plaintiff was not required to resign, he could
have continued with his empl oyment but he stated that, at the time, the
termination of the plaintiff’s duties was on the cards in any event due to the fact
that he could not perform the duties for which he had been appointed.
18. It therefore appears to be inevitable that the plaintiff’s services would have been
terminated by the municipality on medical grounds if he did not resign during
February 2021.
19. In view of the above and the undisputed fact that the plaintiff is unemployable and
that he has suffered a loss of earnings, the only aspect that in fact needed to be
determined is the appropriate contingency deductions that should be applied in
respect of the loss of earnings suffered by the plaintiff.
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20. In terms of the actuarial report submitted by the plaintiff (which stands
uncontested since the defendant has not filed a similar report) , the plaintiff
suffered a total loss of earnings in the amount of R4 983 382,00 (Four Million,
Nine Hundred and Eighty -Three Thousand, Three Hundred and Eighty -Two
Rand) after taking into consideration the relevant “cap” and contingencies.
The above calculation done by the actuaries, is based on a 7,5% contingency
deduction in respect of past loss of earnings and a 10% contingency deduction
in respect of future loss of earnings as they were requested to do by the attorneys
for the plaintiff.
21. Mr Kagee argued that the normal contingencies should not apply seeing that
there was, despite the evidence presented by Mr Malherbe, no physical evidence
to suggest that the plaintiff’s services would have been terminated by way of
dismissal or retrenchment , and he submitted that the Court should consider
applying higher contingencies or setting some perimeters in respect of the
contingencies to be applied for the actuaries to do further calculations on.
22. Mr Coughlan, who appeared for the plaintiff , argued that even if higher
contingencies as proposed by Mr Kagee were to be applied, it would have no
effect on the amount as cal culated by the actuaries after the required “cap” was
applied.
Mr Coughlin even boldly suggested that one can in fact do away with the
contingencies all together and only apply the required “cap”, and that the end
result would be exactly the same.
23. The fact of the matter is that the uncontested report by the actuaries, that was
based on the contents of the joint minutes , indicates that after the above
contingency deductions of 7,5% and 10% were applied , and before the
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prescribed “capping” of the quantum was done, the total amount of loss of income
came down to R7 154 251,00 ( Seven Million, One Hundred and Fifty -Four
Thousand, Two Hundred and Fifty-One Rand).
The application of the prescribed “ cap” consequently significantly reduces the
amount of compensation due to the plaintiff to the end-amount of R4 983 382,00
(Four Million, Nine Hundred and Eighty -Three Thousand, Three Hundred And
Eighty-Two Rand).
24. I agree with Mr Coughlin’s contentions in this regard as it became obvious, after
testing various scenarios, that even if significantly higher contingencies were to
be applied, it will have no bearing on the end result of the actuaries’ findings in
respect of past and future loss of income after the required “cap” was applied.
I can also see no reason why further time, effort and costs should be wasted by
the Court requesting the actuaries to do further calculations based on scenarios
given to the actuaries by the Court as suggested by Mr Kagee.
No propositions in this regard was made on behalf the defendant in any event.
25. In as far as costs are concerned, Mr Coughlin argued that costs should be
awarded on Scale C as provided for in Rule 67A(3), read with Rule 69(7) of the
Uniform Rules of Court, based thereon that the matter was sufficiently complex ,
especially given the fact that 8 (eight) expert witnesses were utilised and since
the claim itself, was not a straightforward claim.
Mr Coughlin further argued that the defendant’s conduct added to the complexity
of the matter in the sense that the matter became settled , in as far as the merits
are concerned, only shortly before trial and general damages were settled during
the course of trial.
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It was argued that the plaintiff had to be prepared to present evidence and to
argue his claim to the very end and that this should be taken into consideration
by the Court.
Mr Coughlin also submitted that the present matter holds significant importance
to the plaintiff as he is an innocent victim whose life has been altered as a result
of the accident which rendered him unemployable.
26. Mr Kagee argued that the matter was not complex and that, although the plaintiff
utilised the services of 8 (eight) experts, the issues in the matter was in fact
simplified by the joint minute referred to herein above.
It was argued by Mr Kagee that the question is not what the importance of the
matter is for the plaintiff since all claims will be important to all plaintiffs, but that
the question that should rather be asked is what the importance of the matter is
to the public.
27. I have to agree with Mr Kagee’s arguments in respect of the issue of costs.
The joint minute did in fact simplify the matter significantly and in the end,
probably saved a lot in as far as time and costs are concerned.
28. I am also not persuaded by the argument that costs should be awarded on
Scale C, because the matter holds significance for the plaintiff and, if regards are
to be had to all the circumstances of the present matter, I can find no other reason
why costs should be awarded on any other scale than Scale B.
ORDER:
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29. On the above premises, the following order is made:
1. THE DEFENDANT SHALL BE LIABLE FOR 100% (ONE HUNDRED
PERCENT) OF THE PLAINTIFF’S DAMAGES ARISING FROM THE INJURIES
SUSTAINED IN A COLLISION WHICH OCCURRED ON 28 NOVEMBER 2015.
2. THE DEFENDANT SHALL PAY TO THE PLAINTIFF, IN RESPECT OF THE
PLAINTIFF’S GENERAL DAMAGES, THE AMOUNT OF R1 000 000,00 (ONE
MILLION RAND) WHICH AMOUNT IS TO BE PAID WITHIN 180 (ONE
HUNDRED AND EIGHTY) DAYS FROM DATE OF THIS ORDER.
3. THE DEFENDANT SHALL PAY TO THE PLAINTIFF, IN RESPECT OF THE
PLAINTIFF’S PAST AND FUTURE LOSS OF EARNINGS, THE AMOUNT OF
R4 983 382,00 (FOUR MILLION, NINE HUNDRED AND EIGHTY -THREE
THOUSAND, THREE HUNDRED AND EIGHTY-TWO RAND) WHICH AMOUNT
IS TO BE PAID WITHIN 180 (ONE HUNDRED AND EIGHTY) DAYS FROM
DATE OF THIS ORDER.
4. THE PLAINTIFF SHALL NOT ISSUE A WRIT OF EXECUTION IN RESPECT
OF THE AMOUNTS MENTIONED IN PARAGRAPHS 2 AND 3 ABOVE PRIOR
TO THE EXPIRY OF THE PERIOD OF 180 (ONE HUNDRED AND EIGHTY)
DAYS.
5. THE DEFENDANT SHALL BE LIABLE FOR INTEREST ON THE CAPITAL
AMOUNTS AT THE PRESCRIBED RATE OF INTEREST WHICH WILL BE
CALCULATED AS FROM 14 (FOURTEEN) DAYS FROM DATE OF THIS
ORDER UP AND UNTIL DATE OF FINAL PAYMENT;
6. PAYMENT OF THE AMOUNTS MENTIONED IN PARAGRAPHS 2 AND 3
SUPRA, SHALL BE EFFECTED DIRECTLY INTO THE BANKING ACCOUNT
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OF THE PLAINTIFF’S ATTORNEYS OF RECORD, THE DETAILS OF WHICH
WILL BE PROVIDED TO THE DEFENDANT WITHIN 10 (TEN) DAYS FROM
DATE OF THIS ORDER;
7. THE DEFENDANT SHALL PRO VIDE THE PLAINTIFF WITH AN
UNDERTAKING IN TERMS OF THE PROVISIONS OF SECTION 17(4)(A) OF
THE ROAD ACCIDENT FUND ACT, ACT 56 OF 1996 TO COMPENSATE THE
PLAINTIFF FOR 100% (ONE HUNDRED PERCENT) OF THE COSTS
RELATING TO THE FUTURE ACCOMMODATION OF THE PLAINTIF F IN A
HOSPITAL OR NURSING HOME AND/OR FOR THE FUTURE TREATMENT
OF AND/OR THE RENDERING OF SERVICES TO AND/OR THE SUPPLYING
OF GOODS TO THE PLAINTIFF AFTER SUCH COSTS HAVE BEEN
INCURRED ON CONDITION THAT THE DEFENDANT HAS TO SUBMIT
PROOF OF INCURRING SUCH COSTS AND ON CONDITION FURTHER
THAT SUCH COSTS MUST HAVE ARISEN FROM THE COLLISION THAT
OCCURRED ON 28 NOVEMBER 2015;
8. THE DEFENDANT SHALL PAY THE PLAINTIFF’S TAXED OR AGREED
PARTY AND PARTY COSTS ON THE HIGH COURT SCALE TO DATE, WHICH
SHALL INCLUDE THE COSTS OF PLAINTIFF’S INSTRUCTING AND
CORRESPONDENT ATTORNEYS;
9. THE DEFENDANT SHALL PAY THE TAXED OR AGREED COSTS OF
PLAINTIFF’S COUNSEL ON SCALE B IN TERMS OF RULE 67A(3) READ
WITH RULE 69(7) OF THE UNIFORM RULES OF COURT, SUCH COSTS TO
INCLUDE CONSULTATIO NS IN PREPARATION FOR TRIAL, ADVICE OF
QUANTUM, WRITTEN SUBMISSIONS AND/OR HEADS OF ARGUMENT,
TRIAL PREPARATION AND APPEARANCE FEES FOR 24 MARCH 2025 AND
1 AND 2 SEPTEMBER 2025;
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10. THE DEFENDANT SHALL PAY ANY COSTS ATTENDANT UPON THE
OBTAINING OF PAYMENT OF THE AMOUNTS MENTIONED IN
PARAGRAPHS 2 AND 3 ABOVE;
11. THE DEFENDANT SHALL PAY THE TAXED OR AGREED FEES,
QUALIFYING EXPENSES, RESERVATION FEES (INCLUDING TRAVEL
EXPENSES ACTUALLY INCURRED) AND ALL COSTS ATTACHED TO THE
PROCUREMENT OF MEDICO -LEGAL REPORTS, ADD ENDUM REPORTS
WHERE RELEVANT AND OTHER RELEVANT REPORTS AS WELL AS X -
RAYS AND SCANS AND RELATED COSTS IN RESPECT OF THE
FOLLOWING EXPERTS:
11.1 DR L VAN OUDENHOVE
11.2 DR PA OLIVIER
11.3 MS E BURKE
11.4 DR L PANIERI-PETER
11.5 DR Z DOMINGO
11.6 ME M STANDER
11.7 MR D MALHERBE; AND
11.8 ARCH ACTUARIES
12. THE AFORE-SAID COSTS SHALL INCLUDE THE COSTS OF ATTENDING
ALL PLAINTIFF’S AND DEFENDANT’S MEDICO -LEGAL EXAMINATIONS,
THE AMOUNT(S) OF WHICH WILL BE AT THE DISCRETION OF THE TAXING
MASTER;
13. THE DEFENDANT SHALL PAY THE REASONABLE TRAVELLING,
ACCOMMODATION AND RELATED COSTS IN RESPECT OF PLAINTIFF AS
WELL AS PLAINTIFF’S LEGAL REPRESENTATIVES AS WELL AS
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Case No : 1221/2019
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PLAINTIFF'S EXPERT MR D. MALHERBE FOR ATTENDANCE AT TRIAL ON
24 MARCH 2025 AS WELL AS 1 AND 2 SEPTEMBER 2025; AND
14. THE PLAINTIFF SHALL COMPLY WITH THE PROVISIONS OF SECTION 4(1)
AND SECTION 4(2) OF THE CONTINGENCY FEES ACT, ACT 66 OF 1997 BY
FILING THE REQUIRED AFFIDAVITS WITH THE COURT WITHIN 20
(TWENTY) DAYS FROM DATE OF THIS ORDER.
A.O. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
REPRESENTATIVES OF PARTIES:
For Plaintiff:
O n instructions of:
For De fendant:
ADV. W.S. COUGHLAN
Lester & Associates
Cape Town
c/o Roux, Welgemoed & Du Plooy
Kimberley
MR M.R. KAGEE
The State Attorney
Kimberley