REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
(GAUTENG DIVISION, PRETORIA)
Case No: 4283/20 20
Reportable: No
Of interest to other Judges: No
Revised: No
Date:
3 December 2025
SIGNATURE
In the matter between:
PHENDUKANI CYPRIAN KHUZWAYO Plaintiff
and
THE ROAD ACCIDENT FUND
Defendant
JUDGEMENT
_____________________________________________________________________________________________
MOOKI J
2
1 The plaintiff was involved in a car accident on 31 March 2019. He was a
pedestrian when a car drove onto him. He sues the defendant (the Fund)
pursuant to section 17(1)(b) of the Road Accident Fund Act, 56 of 1996 (the
Act).
2 The plaintiff pleaded that he was struck by an unidentified driver whilst he
was standing on the side of the road. The plaintiff pleaded the usual standard
averments in relation to the conduct said to render the driver negligent,
including that the driver travelled at an excessive speed and that the driver
failed to keep a proper lookout.
3 The plaintiff gave the following evidence. The accident occurred near a busy
area, with shops in the vicinity. He was standing on the left side of the road,
intending to cross the road to get to the shops. A car appeared suddenly and
struck him. He sought to escape but could not do so in time. He was trapped
underneath the car. He woke up at the hospital. He did not recall the details
of the car, save that the car was white in colour. The court, following an
address by counsel, found the Fund liable for 100% of such damages as
agreed by the parties or proven by the plaintiff.
4 The plaintiff sought leave for the court to consider evidence by his experts
on affidavit. This evidence was tendered in support of the claim for loss of
earnings. The court granted leave. The plaintiff then introduced evidence by
the orthopaedic surgeon, the occupational therapist, the industrial
psychologist, and by an actuary.
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5 The plaintiff gave the following evidence in support of his claim for loss of
earnings. He worked as a builder at the time of the accident. He dug trenches,
built walls, and erected roofs. He started by working for someone else, which
is where he learnt to build. He then went solo. Clients would call him. Clients
would ask how much he charged. He answered by telling them that it
depended on the size and type of the structure being considered. He would
thereafter agree a price with a client.
6 He charged R10 000,00 for a small structure. A client would make a partial
payment. He would use the money to pay his assistants. He was paid in cash.
He would make R15,000.00 on a good month. He had a bank account, but
preferred being paid in cash.
7 He did not return as a builder following the accident. His right knee was
affected. He had surgery on the knee, whi ch kept failing. He could not stand
or sit for a long time. He could not climb a ladder. He also experienced pain
if he stood for five minutes.
8 The orthopaedic surgeon mentioned that the plaintiff suffered a serious knee
injury and needed a knee replacement. The occupational therapist
mentioned, among other things, that the plaintiff could not climb ladders and
that he could not do what he did before the accident. Counsel submitted that
there was a problem with the plaintiff having furnished the court with proof
of earnings.
9 The RAF 1 form records that the plaintiff suffered the following injuries: s
oft
tissue injuries, knee and facial bruises. There were no fractures. Treatment
4
included analgesics and antibiotics. I accept that the plaintiff was injured in
the car accident. He claims the amount of R2 547 014.00 for loss of earning.
I am not persuaded that the plaintiff has shown that he suffered a loss of
earnings because of the accident.
10 C
ounsel for the plaintiff accepted that there was a problem because the
plaintiff did not supply proof of his earnings. The court requested the
plaintiff to submit bank statements. This was because the plaintiff had told
the court that he had a bank account. The plaintiff submitted bank
statements from Capitec, African Bank, and ABSA. The bank statements are
for the period after 31 March 2019. The plaintiff submitted an affidavit,
stating that he did not have a bank account on January 2018 and that he only
opened a bank account on 1 March 2019.
11 The plaintiff’s claim is riddled with falsehoods. He caused to be reported, in
the RAF 1 form, completed on 2 August 2019 (five months after the accident),
that he was employed at the time of the accident and that he was required to
take time off work. He referenced “payslips” on the section dealing with
proof of income. The section on the form on “self-employed” was left blank.
This is wholly at odds with the case that he presented, namely that he was
self-employed at the time of the accident and that he preferred being paid
cash. He said in his evidence that he had a bank account when he worked as
a builder, but preferred being paid in cash. He then changed in a later
affidavit, stating that he first opened a bank account on 3 March 2019. The
accident occurred on 31 March 2019.
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12 He gave evidence that he worked for some person where he learned the
trade as a builder before he “went solo” in 2017. I do not credit this evidence.
He did not tell any of his experts that he was employed as a builder before
becoming self-employed.
13 The plaintiff had no vocational training. He never explained where he
learned to build houses, be a roofer, and be an electrician. He was, according
to what he told the industrial psychologist, employed as a general worker at
Cart Sack from 2008 to 2010. This was a year after finishing Grade 11. He
then worked as a petrol attendant from 2010 to 2016, also for Cart Sack. He
was retrenched in 2017. He was thereafter self-employed, working as a
builder. He told the occupational therapist that he worked with si x
assistants.
14 The plaintiff did not put up any evidence to support his claim that he was
self-employed as a builder from 2016 to 2019. He told the orthopaedic
surgeon that he had 15 years’ experience as a construction builder. That was
false. There is equally no evidence that he earned in the region of R10,000.00
to R15,000.00 per month as a builder. He says that he lost the contact details
of his clients. This was when questioned about the absence of proof of
earnings. I do not accept this. He would surely know where to find his former
clients if he did build houses for them. It bears pointing out that there was
no support that he worked with six assistants.
15 The industrial psychologist says Cart Sack retrenched the plaintiff in 2017,
and that the plaintiff then became self-employed as a builder from 2017,
until the accident in 2019. Cart Sack was, on the evidence, the plaintiff’s sole
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employer since the plaintiff left school in 2009. He started working at Cart
Sack as a general worker in 2010, earning R95/day. Cart Sack, in 2012,
employed him as a petrol attendant, with the plaintiff earning R700/week.
Cart Sack retrenched the plaintiff in 2017.
16 The evidence supports the plaintiff, contrary to his evidence, being
unemployed at the time of the accident. His claim that he was self-employed
as a builder is untenable. There is no support that he worked for some
person in the building industry before striking out on his own. He was only
ever employed by Cart Sack, until his retrenchment in 2017. He was a petrol
attendant just before his retrenchment. He had no vocational training. He
does not have a driver’s licence. This puts into question how he conducted a
business building houses earning income in the region of R10,000.00 to
R15,000.00 per month. He told the occupational therapist that he was helped
by six assistants in his business as a builder. There was no evidence in
support of this claim.
17 The industrial psychologist postulated that the plaintiff ’s loss be computed
with reference to the plaintiff having income in the region of R10,000.00 to
R15,000.00 per month. The industrial psychologist accepted that the
plaintiff did not furnish proof of earnings. It is puzzling that the industrial
psychologist would contend for a loss based on the self-reported earnings.
The industrial psychologist assessed the plaintiff on 22 September 2022. She
however prepared her report on 1 June 2023, which is almost a year since
the assessment of the plaintiff. The plaintiff’s purported earnings are
mentioned in an affidavit dated 31 May 2023. This was a date long after the
7
industrial psychologist first assessed the plaintiff. It is curious that the
industrial psychologist does not say anything about what the plaintiff said
about his earnings when the industrial psychologist first assessed the
plaintiff on 22 September 2022.
18 The plaintiff would clearly have mentioned his claimed earnings when he
was assessed on 22 September 2022. The industrial psychologist could not
have assessed the plaintiff on 22 September 2022 and not enquire into the
plaintiff’s employment history. I therefore expected the industrial
psychologist to say how the plaintiff’s affi davit of 31 May 2023 about his
earnings compared with what the plaintiff must have told the industrial
psychologist on 22 September 2022. This failure by the industrial
psychologist puts the integrity of her report into question.
19 There are other odd aspects to the evidence on behalf of the plaintiff. Those
include the orthopaedic surgeon concluding that the plaintiff walked with a
gait on the right leg. The occupational therapist, on the other hand, found that
the plaintiff walked with a normal gait. These two specialists assessed the
plaintiff on the same day, 22 September 2022. There is no explanation why
they differed on such
a basic observation.
20 Cart Sack employed the plaintiff after the plaintiff finished grade 11 in 2009.
Cart Sack retrenched the plaintiff in 2017. Cart Sack was the plaintiff’s only
employer. I do not accept that the plaintiff was self-employed on 31 March
2019. I conclude that the plaintiff failed to show that he suffered a loss of
earnings
because of the accident.
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21 I make the following order:
(1) The plaintiff’s claim for loss of earnings is dismissed.
(2) 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
treatment or rendering of services in connection with injuries
sustained by the plaintiff in the collision on 31 March 2019.
(3) The defendant is ordered to pay the reasonable and taxable costs in
respect of the following expert witnesses:
(3.1) Dr R S Ngobeni (orthopaedic surgeon).
(3.2) T Sibiya (occupational therapist)
(3.3) C Nyahwema (industrial psychologist)
(3.4) N Waisberg (actuary)
(4) The cost for engaging counsel, including the day fee on 21 and 22
August 2025, on scale B.
(5) The claim for general damages is postponed sine die.
O MOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for the plaintiff: J G van der Berg
Instructed by: T Tshabalala Inc. Attorneys
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No appearance for the defendant
Date heard: 22
August 2025
Date of judgement:
3 December 2025