SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case Number: 39867/2022
1. Reportable: NO
2. Of interest to other Judges: NO
3. Revised
Date: 09/12/2025
Signature:
In the matter between:
KARABO MMABATHO RAMOSHABA Plaintiff
And
ROAD ACCIDENT FUND Defendant
Delivered: 09 December 2025- This judgment was handed down electronically.
JUDGMENT
Ncongwane AJ:
Introduction
[1] This matter came before me on the 31 st of July 2025 when I sat in the trial
default judgments' roll. I directed plaintiff's counsel to file heads· of argument, and
rolled the matter over to the 1 st of August 2025. Counsel filed his heads of argument
and the record confirms that counsel addressed the court on the application for
default judgment on both merits and quantum, and I reserved judgment.
[2] It is highly regrettable that the matter fell through the cracks and I only
became aware that judgme nt is still outstanding when I received a letter from the
Registrar on the 28 th of November 2025 enquiring whether judgment was handed
down in the matter. I undertook to hand down the judgment not later than the second
week of December 2025. I completely f orgot about the reserved judgment and I
apologise to the parties for this inordinate delay.
[3] The plaintiff is a major unemployed female, born on the 01st March 2000.
[4] The plaintiff was involved in a motor vehicle collision as a passenger, on the
18th June 2021 wherein she sustained multiple injuries. As a consequence of the
injuries sustained, she had to undergo medical treatment, will in future have to
undergo medical treatment, and suffered loss of income earning capacity.
[5] Before me is an a pplication for default judgment against the defendant for
having failed to enter a notice to defend. The issues are both on liability and the
quantum of the plaintiff's claim.
[6] Counsel for the plaintiff applied for the reports of the experts, more specifically
the facts, assumptions and opinions, be admitted into evidence during the hearing
and that evidence be presented by way of affidavits as provided for in terms of the
Uniform Rules 38 (2). I granted the application.
[7] With regards the plaintiff's c laim , for general damages , I was informed that
the RAF has failed to exercise an election on whether or not to accept the plaintiff's
RAF4 form in terms of Regulation 3. Counsel however, persisted in his oral
submission and in the heads of argument that the court should deal with plaintiff's
general damages and make a fair and reasonable awards.
[8] The full bench of the Division of this High Court, handed down a judgment on
[8] The full bench of the Division of this High Court, handed down a judgment on
the 2nd November 2022, in Knoetze obo Maling a and Another v Road Accident
Fund (77573/2018 & 54977/2020[2020] , where this court, as per the full bench,
declared that it was bound, by the decision in Marine and Trade Insurance CEO
Ltd v Katz N O 1 , even though that decision predates the Constitution af ter
referencing that decision, the court concluded in paragraph 16 as follows:
"It is clear from the above -quoted judgment that a court has no jurisdiction to
direct the Fund to furnish an undertaking where the Fund did not make such
an election. The coro llary is that, if a court cannot grant such relief, neither
can a plaintiff claim it. Where the Fund has not made an election to furnish an
undertaking either by choice or by default, the consequence is that it will only
be competent for a court to award p ayment of an amount calculated to cover
future medical expenses, once proven, taking into account the contingencies
referred to above."
[9] In so far as it relates to the plaintiff's claim for general damages and for the
non-compliance of the methods prescribed in s. 17 (1A) of the RAF Act which follow
the Regulation 3 assessment of the serious injuries, the court made it clear that until
the Fund has made an election whether it will accept the Regulation 3 assessment or
not, the court has no jurisdiction to deal with this aspect of the plaintiff's claim. This is
evident in paragraph 65 of the judgment which states:
"The Fund's failure to accept or reject serious injury assessment reports or
even after being compelled to do so, does not detract from the Supreme Court
of Appeal's interpretation that regulation 3 renders a court without jurisdiction
to entertain a claim for general damages where the Fund has not accepted a
plaintiff's serious assessment report. In view of the above, it is evident that a
deviation from the procedure pertinently prescribed by regulation 3 cannot be
justified ..."
[10] Accordingly, with the Road Accident Fund having made no election in respect
[10] Accordingly, with the Road Accident Fund having made no election in respect
of general damages and has not elected to furnish an undert aking to compensate
1 1979 (4) SA 961 (A)
plaintiff's claim for damages in terms of s. 17 of the RAF Act, the court has no
jurisdiction to deal with these aspects of the claim.
The merits
[11] Plaintiff alleges in the s 19f 2 affidavit that she was a passenger in a motor
vehicle with registration numbers and letters: D[...] driven by a certain Honour Zuma.
It was on or about the 18th day of June 2021 at around 20h00 along R71 Phalaborwa
road, Limpopo, when the motor vehicle in which the plaintiff was a passenger had a
tyre burst and the driver lost control and hit the bridge bank, a tree and overturned.
The plaintiff sustained serious personal injuries from the accident.
[12] The officers' accident report ("OAR") indicates that a blue m ini cooper motor
vehicle was travelling straight when the tyre burst and the driver lost control of the
motor vehicle which hit the bridge iron, thereafter, a tree and it overturned resulting
to the driver and the passenger sustaining serious injuries
[13] During the hearing, I quizzed counsel to address the court on whether the tyre
burst constitute negligence on the part of the driver of the vehicle or was it not in a
situation of sudden emergency. Counsel argued that it has not been pleaded and to
the extent that it was not pleaded it should not be an issue that is to be raised by the
court. In support of his argument Counsel referred me to the unreported judgment of
the JFS v Road Accident Fund case number 096870/2023 handed down on the
28th of January 2025.
[14] It is trite that for the plaintiff to succeed with the issue of the merits the plaintiff
needs only to prove a proverbial 1% negligence on the part of the insured driver to
get 100% of damages that she is entitled to recover from the Fund.3
[15] In consideration of the description of the accident above, the proverbial 1%
negligence on the part of the insured driver is proven in my view, due to the fact that
2 19f affidavit in terms of the Road Accident Fund, 1996, (Act No 56 of 1996).
2 19f affidavit in terms of the Road Accident Fund, 1996, (Act No 56 of 1996).
3 Prins v Road Accident Fund (21261/08) [2013] ZAGP JHC 106 (28 March 2014)
para 4.
had the insured driver not have driven the vehicle at the time of the accident, the
accident would not have occurred. In this regard, I was referred to the SCA authority
on a motor accident occasioned primarily by a tyre burst and it is apposite that a
reference is made to the most pertinent issue in the judgment. The SCA in the matter
of RAF v Abrahams (276/2017)[2018] ZASCA49 (29 March 2018) per Makgoka
AJA, as he then was, para 24 and 25, in a single motor vehicle accident for a driver's
entitlement to claim against the RAF, the SCA stated the following:
" [24] For present purposes it must be assumed that the respondent would
prove his allegations against the insured driver at the trial. It is clear that the
insured motor vehicle was driven at the time o f the accident. The tyre burst
was dependent on this fact. As a result, the causal connection between the
injuries suffered by the respondent and the driving is sufficiently real. In the
circumstances there is no merit in the appellant's contentions."
"[25) In sum, I conclude that the respondent's claim falls within the ambit of s
17 of the Act. Section 18 of the Act is not applicable in the circumstances of
this case. The court a quo was apparently of the erroneous view that for the
respondent's claim to be within the ambit of the Act, he had to base his claim
on s 18, hence its reasoning that the respondent was a contractor on behalf of
the insured owner at the time of the accident. That was not necessary. The
liability of the appellant for the injuries sustained by the respondent must be
found in the plain wording of s 17, read together with s 21 of the Act."
[16] S. 17 (1) reads:
"The Fund or agent shall
(a)...
(b)...be obliged to compensate any person (the third party) for any Joss or
damage which th e third party has suffered as a result of any bodily injury to
himself or herself or the death of or any bodily injury to any other person,
caused by or arising from the driving of a motor vehicle by any person at any
caused by or arising from the driving of a motor vehicle by any person at any
place within the Republic, if the inju ry or death is due to the negligence or
other wrongful conduct of the driver or of the owner of the motor vehicle or of
his or her employees in the performance of the employees' duties as
employee…"
[17] S. 21 (1), on the other hand, abolishes common law claims against the owner.
With the plain reading of s 17(1), the defendant is accordingly liable for a 100% of
such damages as the plaintiff may be able to substantiate.
Plaintiff's injuries
[18] In her particulars of claim the plaintiff avers that she suffered the following
body injuries from the aforesaid collision, namely, right elbow fracture, left shoulder
joint fracture, fracture of the distal right humerus, traumatic brain injury, disfigur ing
scars on the face and upper limbs. Plaintiff was admitted to receive hospital and
medical treatment at the Medi-Clinic Hospital in Tzaneen.
[19] The hospital records confirm plaintiff's admission at the hospital with motor
vehicle related injuries. He r injuries were noted as right elbow fracture, left shoulder
joint fracture and left humerus fracture.4
[20] She was injured on her face, left shoulder and she had right elbow injuries
that was operated. She was hospitalised for about a week.
The Experts
[21] Plaintiff instructed experts to evaluate and assess her and to prepare Medico
Legal reports. The appointed experts, Professor Mokgokong, a Neurosurgeon, Ms L.
Selamolela, a Clinical Psychologist, Ms Z. Gumede, an Educational Psychologist,
Professor M. Lukhele, an Orthopaedic Surgeon, Dr SS Selahle, a Plastic and
Reconstruction Surgeon, Ms P. Manana, an Occupational Therapist, Ms Zizinzile
Nkosi, an Industrial Psychologist and the plaintiff's Actuary Ms Valentini, deposed to
damages' affidavits that were accepted as evidence in the hearing.
4 Hospital records, caseline 003 to 13.
[22] From the hospital records and the Medico legal reports, the plaintiff suffered
the following injuries in the accident. It is indicated in the Neurosurgeon's report that
she sustained a head injury with bilateral periorbital ecchymosis ( clinical base of
skull fracture), and a post traumatic amnesia of about five days, a severe traumatic
brain injury, and she had severe orthopaedic injury, left shoulder and the right elbow
fractures. There were also reportedly ser ious neuropsychological problems and she
had poor academic performance after the accident. She allegedly also had
significant personality and emotional disturbance. It was noted that the severe
multiple injuries sustained, severe TBI and multiple severe or thopaedic impediments
reported, call for general damages to be awarded for the plaintiff.
[23] The Clinical Psychologist reports that plaintiff has symptoms associated
with head injury or traumatic brain injury. These typically include, impaired judgment,
memory difficulties, poor attention capacity and poor abstraction ability. It was further
noted that she presents with emotional and behavioural changes. She recommends
physiotherapy for all these symptoms. She defers to the opinion of an Industrial
Psychologist to determine the effects of the accident on her future career prospects
and earnings.
[24] The Occupational Therapist , noted that plaintiff who is 22 years and 7
months and holds a Grade 12 level of education does not have any qualification and
she has a drivers licence, She was unemployed and still currently unemployed. She
is financially dependent on her parents. Plaintiff's current accident related complaints
include experiencing left shoulder pain with prolonged sleeping on the left side. She
experiences left shoulder pain with stretching the left arm. She experiences pain with
carrying heavy items. She has pain in cold weather conditions. She experiences right
elbow pain with prolonged writing. She experiences pain with strenuous work.
elbow pain with prolonged writing. She experiences pain with strenuous work.
[25] Based on the findings of the assessment, the Occupational Therapist is of the
view that the plaintiff is not competitive for light, medium, heavy and very heavy
occupations in the open labour market. Her vocational choices are limited to
sedentary occupations. The Occupational Therapist however notes that plaintiff lacks
the vocational experience and qualification for sedentary occupations. This further
excludes her from for possibility of securing employment in the open marker. And
since sedentary occupation requires prolonged use of both hands, this will aggravate
her bilateral upper limb pain and consequently affect her work performance and
productivity. It is concluded by the OT that plaintiff has been compromised in her
occupational choices as well as competing equally in an open labour market with her
uninjured counterparts. Therefore, the accident had a negative effect on her earning
capacity.
[26] The Educational Psychologist reports that had the accident not occurred,
the plaintiff could have man aged to further herself and obtained and National N
Diploma whenever the need arises. She would have been employable in an open
labour market as a skilled person and would have started a year or two years later.
Her learning deficits are deemed to be perma nent disabilities and they are likely to
have been exacerbated by injuries she sustained following the motor vehicle
accident. Plaintiff is not able to achieve the same scholastic level at the same rate as
she would have, had she not been injured. She is l ikely to find progression in a job
difficulty since she cannot learn through observation at a rate comparable with same
age peers.
[27] The Industrial Psychologist notes that plaintiff's employment options have
been reduced. She is now limited in the kin d of employment that she can accept and
safely perform without aggravating her ongoing pain symptoms. Her compromised
academic capabilities following the accident, which has left her unlikely to cope with
the demands of the current studies, plaintiff will likely always require workplace
accommodation in any employment she may secure. With her educational preclusion
to compete in sedentary work duties compared to her uninjured peers, as well as her
physical limitations in light, medium, heavy to very heavy w ork demands, plaintiff's
employment option will therefore remain reduced. She is rendered an unequal
competitor in the labour market and the Industrial Psychologist is of the view that
competitor in the labour market and the Industrial Psychologist is of the view that
plaintiff's capabilities have been significantly impaired by the acci dent which is likely
to continue until her retirement age and in fact for the rest of her life.
[28] It is evident that plaintiff will need future medical treatment involving
specialist's consultations and treatment for aches and pains and other subsequ ent
but related complaints. She will need to attend psychotherapy to assist her accepting
and coping with her post morbid condition and inter alia will also need treatment for
the intermittent pains she is experiencing.
Loss of future earnings
[29] In order to assess the plaintiff's future loss of earnings, a comparison of her
pre-morbid earnings and what she is likely to earn post-morbidly should be made.
[30] Experts opinions are frequently used to assist the courts, but courts are not
bound by the opinions of the experts. It is the duty of the experts to furnish the court
with the necessary scientific criteria for testing the accuracy of the experts'
conclusions so as to enable it to form an independent judgment for the application of
this criteria to the facts.
[31] Indisputably, the determination of contingencies is a process of subjective
impression or estimation. The application of contingencies is largely arbitrary and
dependents on the court's impression of the case. The future is unce rtain and it is
difficult to judge how a person's career prospects may change over a considerable
period of time what other factors may influence the career, either positively or
negatively. The facts and all relevant circumstances must be considered as best as
possible in order to adjudicate the matter.
[32] As a consequence of the accident, the plaintiff is a different individual. She
suffered from depression, anxiety and physical pain. She now has a reduced
employment prospects, she is more vulnerabl e and an unequal competitor in the
open labour market. She at a high risk of future unemployment. But for the accident,
the plaintiff would have progressed in her career path. She is disadvantaged by the
accident which is likely to impact her employability and earning potential, thereby,
suffering loss of earnings. All these factors and all the other risks affecting her
income should be taken into account.
[33] I am therefore satisfied with the assumptions and the contingencies applied
by the Actuarial to provide for future uncertainties. I find that the amount claimed is
by the Actuarial to provide for future uncertainties. I find that the amount claimed is
fair and reasonable compensation for the plaintiff in respect of loss of earnings.
Order
In the result, I make the following order:
1. The defendant is liable for 100% of the plai ntiff's proven or agreed
damages.
2. The defendant to pay the plaintiff's an of R 3 548 120.00 (Three million
five hundred and fourty eight thousand one hundred and twenty rand) in
respect of past and future loss of earnings together with interest a tempora
morae calculated in accordance w ith the prescribed rate from the date of this
judgment.
3. The issue of the furnishing to plaintiff by the defendant of an
undertaking in terms of Section 17 (4)(a) in respect of future medical
treatment is postponed sine die.
4. The issue of General Damages is postponed sine die.
5. The defendant is to pay the plaintiff's agreed or taxed high court costs
as between party and party, on scale B, such costs to include the costs of
counsel, the costs of the preparation and qualifying fees of experts, the
plaintiff's reasonable travel and accommodation costs to attend experts and
counsel.
6. There is a valid contingency fee agreement between the plaintiff and
her attorney.
Ncongwane AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
APPEARANCES:
For the Plaintiff: Adv A.K. Maluleka.
For the Defendant: No appearance.
Date of judgment: 09 December 2025.
This judgment was handed down electronically by circulation to the parties and/or
parties' representatives by email and by upload to Caselines. The date and time for
the hand down is deemed to be 10h00 on the 09 December 2025.