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 NO: 65300/2020
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE: 17 NOVEMBER 2025
SIGNATURE
In the matter between:
R[...] M[...]P[...] Obo
O[...] B[...] I[...] P[...] PLAINTIFF
and
ROAD ACCIDENT FUND Defendant
Summary: Amount of general damages suffered in a motor vehicle collision. The minor
suffered a mild brain injury.
_________________________________________________________________________
JUDGEMENT
___________________________________________________________________
MATIKA AJ
BACKGROUND:
1. This is a personal injury claim that was before me on the 29th of September
2025 and appeared on the roll as matter number: 27B. The ma tter stood
down until the 01 st October 2025, at the request of the plaintiff’s counsel, the
court was informed that the parties are still trying to settle the matter
themselves, the Court agreed to stand the matter down until 01 st October
2025 as requested. On 01st October 2025, the court was informed that the
parties could not settle, and as such the matter is ready to procced on the
issue of general damages.
2. The only issue before me at this stage is the amount of general dagames to
be paid to the plaintiff . It is common cause that the plaintiff qualifies for
general damages as per the outcome from the Health Professions Council
South Africa (“HPCSA”) dated 17th of September 2025.
3. The defendant initially rejected RAF 4 serious injuries assessment completed
on behalf of plaintiff by Dr J.A Ntimbani (Neurosurgeon) on the 22 nd of May
2024, the issue was then refereed to HPCSA which then found that the
plaintiff’s injuries are serious. The outcome from HPCSA is uploaded on case
lines under section 37 from pages 37-1 to 37-3.
4. The issue of merits and future medical expenses in terms of section 17(4) (a)
of the Act1 had previously been adjudicated upon by virtue of the court order
dated 23rd of May 2024 granted by Honourable Justice Flatela J, on the basis
that the defendant is 100% liable to the plaintiff’s proven and or agreed
damages and quantum postponed sine die.
5. The matter proceeded on an unopposed basis on the default judgement roll of
the 01st October 2025 in respect of the amount of general damages.
1 Road Accident Fund, No 56 of 1996 (“Act “) as Amended.
6. The issue of the plaintiff’s loss of income/earnings was postponed sine die at
the request of the parties.
7. The claim is in terms of the Road Accident Fund Act 56 of 1996 as amended.
THE DEFAULT OF THE DEFENDANT
8. The plaintiff R[...] M[...] P[...], an adult female born on the 09 th August 1970,
instituted action against the d efendant in her representative capacity as the
legal guardian of O[...] B[...] I[...] P[...] a minor born on the 01 st of January
2011.
9. This claim arose out of a motor vehicle accident that occurred on or about the
05th June 2016 along Shiluuhene Street, Mamelodi East, Pretoria, Gauteng
Province. At the time of the accident, the minor was a pedestrian.
10. At the time of the accident the minor was 5 (Five) years of age and currently
as at date of this order 14 (Fourteen) years of age.
11. The summons were issued on the 11 th December 2020 and served on the
defendant on the 14th December 2020.
12. On 23rd May 2023, the defendant delivered notice of intention to defend the
action in terms of Rule 19(5) of the uniform Rules.
13. On 13 March 2024, the Plaintiff served the defendant attorneys with notice of
bar.
14. The defendant is under bar, t here is no agreement between the parties to
uplift the bar and to date the defendant failed to uplift the bar.
15. Application for this defaul t judgment was served on the defendant on the 17th
of May 2024.
16. The notice of set down for this matter to proceed on Monday, 29th of
September 2025 was served on the Defendant on 07th of May 2025 and
uploaded on case lines under section 17 item 2 page 17-4 until 17-5.
APPLICATION IN TERMS OF RULE 38(2)
17. Application to present evidence of the Plaintiff and his expert witnesses, and
any other relevant witness by way of affidavit in terms of Rule 38(2) of the
Uniform Rules was sought and granted.
18. In Havenga vs Parker 2, confirmed by the Supreme Court of Appeal in
Madibeng local Municipality vs Public Investment Corporation 2018(6) SA the
(“SCA”), found that it is permissible to place expert evidence before the court
by way of affidavit in terms of Rule 38(2 ), accordingly that application was
granted.
MEDICO-LEGAL REPORTS
19. The Plaintiff obtained medico -legal reports from the followi ng experts and the
reports were served on the defendant in terms of Rule 36(9)(a) & (b): Dr
Ntimbani (Neurosurgeon); Dr Linda Maya (Clinical psychologist); Dr Ndzungu
& associates (Occupational Therapist); Dr Zethu Gumede (educational
Therapist); Sechudi (industrial psychologist) and Munro (Actuary).
20. The Defendant elected not to appoint any experts and therefore the plaintiff’s
experts reports, and hospital records are uncontested.
2 1993 (3) SA 724(T)
21. Having regard to the Defendant’s aforesaid failure, due regard should be had
to the principles as set out in Prince v Road Accident Fund 3 per Lowe, J ,
and at paragraphs 55, 56 and 59 thereof in the evaluation of the probabilities
in respect of the aforesaid experts evidence, as follows:
“ It is useful to be reminded, again at the first principle level, that the party
in a civil trial whose version of the facts appears to be the more probable
is entitled to judgment, the proof being on a balance – preponderance – of
probabilities.”
“ Sufficient proof is established when an inference can be drawn
about the fact in issue, provided that the inference is consistent
with all the prove n facts. In civil matters, it suffices if the
inference is the most probable inference.”
“ Further, once prima facie proof or evidence has been provided,
That is proof calling for an answer. This becomes conclusive
proof on the point in issue usually if no evidence is produced to
rebut it. The fact of the matter is, however, that the Court must at
the end of the case review all the evidence and evaluate this
according to the applicable primary criterion.”
“ It must be accepted, of course, that whe re, for example, a
Defendant fails to produce evidence, this does not mean
necessarily that the opponent’s version in the case, falls to be
accepted. The acceptance of Plaintiff’s case depends on the
probative strength of Plaintiff’s case, being whether or not it is
3 CA 143/2017) [2018] ZAECGHC 20 (20 March 2018)
sufficient to cast, an evidential burden on the Defendant to
present evidence.”
THE PLAINTIFF INJURIES AND SEQUELAE
22. The injuries sustained by the plaintiff are not in dispute.
23. Hospital records from stanza Bopape Clinic 05/06/20216 states that the minor
sustained abrasion to the right forehead and immediately awake and ran off
after.
24. According to Dr Ntimbani (Neurosurgeon) report concluded that, the minor
sustained the following injuries : Head Injury -facial abrasion which is
categorised as mild brain injury and Bilateral knee injury .The minor complains
of: Headaches; average 3-4 episodes a week, associated with nose bleeding
and relived by analgesia. Memory problem: e asily forgets what i s taught in
class, forgets given tasks and when asked to go buy sugar he buys back salt ,
Poor concentration and Right knee pain. The risk of post traumatic epilepsy
has not increased. The whole person impairment (WPI) is 24% .The GCS is
not recorded
25. According to Dr Linda Maye (Clinical Psychologist) concluded that: His
experience of a mild traumatic head injury with post -concussive symptoms
and cognitive decline may further affect his academic performance,
progression and quality and enjoinment of life.
26. Dr Ndzungu (Occupational therapist) concluded that the minor sustained: mild
brain injury, soft tissue injury to forehead and right knee injury.
Treatment received: Radiological scan examination, Pain
management/analgesic medication, antibiotics, wound care and consecutively
managed.
27. Loss of Life Amenities : The claimant presents with right knee pain affecting
his daily life and school activities . He has right limb limitations which are
affecting his engagement in physical tasks and may a ffect his future work
capacity. He has cognitive limitations and psychological lim itations affecting
his learning, Reduced future earnings capacity, Loss of enjoinment of life. The
accident in question has had a negative impact on his vocational capacity. His
amenities of life have been negatively affected by his involvement in the
accident under review.
GENERAL DAMAGES
28. The Plaintiff’s Counsel submitted that an amount of 1,5 million (One million -
Five hundred Thousand) will be fair and reasonable in the circumstances.
29. Counsel refereed the court to the matter of: Torres v Road Accident Fund 4.
This court f inds that the facts in Torres are distinguishable from the current
matter in that in Torres plaintiff suffered a severe diffuse brain injury, soft
tissue injury to the neck, and soft tissue injuries to the face and chin,
Significant neuro-cognitive and neuro -behavioural deficits associated with
concentration, working memory, impulsive control and abstract reasoning.
Depression and adjustment disorder. Probable successful career in jewellery
4 2007(6A4) QOD 1(GSJ)
design no longer possible and limited to sympathetic employer. Value of this
case in 2007 was R600 000.00 and value as in 202 3 is around R1 4 64
000.00.
30. In this matter before the c ourt, all the plaintiff’s experts agreed that the minor
sustained mild brain injury/mild head injury.
APPROACH TO GENERAL DAMAGES:
31. The assessment of general damages is a discretionary function of the court
which has been described by the Supreme Court of Appeal ( The “SCA”) in
the matter of Road Accident Fund v Marunga5 at page 169 E-G as follows:
“ This Court has repeatedly stated that in cases which the question of
general damages comprising pain and suffering, disfigurement,
permanent disability and loss of amenities of life arises, a trial Court in
considering all the facts and circumstances of the case has a wi de
discretion to award what it considers to be fair and adequate
compensation to the injured party….”
32. The exercise of this discretion referred to above is not always an easy task. In
the matter of Minister of Safety and Security v Seymour 6 at par [17] th e
SCA held that:
“ The assessment of awards of general damages with reference to
awards made in previous cases is fraught with difficulty. The facts of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a usef ul guide to what other courts have
considered to be appropriate, but they have no higher value than
that…”
33. In the case of Dikeni v RAF 2002 (5) 171 GP Van Heerden J stated:
5 2003 (5) SA 164 (SCA)
6 2006 (6) SA 320 (SCA)
“ Although these cases have been of assistance, it is trite law that each
case must be adjudicated, on its own merit. No one case is factually
the same as the other. It only provides a guide in the assessment of
damages.”
34. In considering comparable case law, the following cases come to the fore:
34.1 In Maele v Road Accident Fund 7 A 7-year-old scholar suffered, Mild
concussive brain injury and fractured left tibia. The fracture and alignment of
the left tibia had healed well after the accident. The child was hospitalised for
five days after the accident and had a plaster of Paris cast applied to the leg.
She endured acute pain for approximately four to five days after the accident
and was in moderate pain for about eight weeks. She had some discomfort
when running, standing or walking for long distances and when kneeling. The
fracture healed completely, but provision was made for conservative future
treatment with possible arthroscopy and debridement of left knee. She
experienced serious learning difficulties prior to the accident and had a dismal
school record which was not exacerbated by the injuries. He was awarded
R330 000 in respect of general damages, which translate to R569 000.00 in
2025 terms in terms of Robert Koch 2025 quantum year book by Robert Koch
page 19.
34.2 In the matter Methule obo Minor v The Road Accident Fund8 In this matter
a minor boy, 7 years old at the time of the accident and 16 years old at the
time of the trial. sustained a Face and head. Minor concussive head injury.
7 2015 (7E4) QOD 1 (GNP),
8 2022 (8G4) QOD 1 (GNP)
Scarring on forehead (two scars), right eyebrow and right lateral upper eyelid.
The latter scar is hyperpigmented, irregular, very visible and is said to cause
distortion and destruction of the minor's right lateral eyebrow and distortion of
his right upper eyelid. Scalp abrasions which have healed without leaving
serious scarring, save for o ver the right temporal scalp where there is a scar
visible close to the anterior hairline and is said to be very unsightly. Other
scars are over the minor's right wrist, left wrist and left hand. Also internal
derangement of the right knee joint. The minor would require, as future
treatment, surgery for scar revision. However, he will retain considerable
scarring which will not lend itself to any further surgical improvement. He has
been left with serious permanent disfigurement and scarring. He suffers fro m
headaches and will require future treatment for the management of the
headaches. He suffers from symptoms of post -traumatic stress disorder and
the accident has rendered him psychologically more vulnerable. He seems
prone to emotional vulnerability and h as been rendered more vulnerable on
cognitive and emotional levels. General damages in the amount of R
500 000.00 was awarded in 2022 and the current value is R 586 000 in 2025
quantum year book by Robert Koch page 23.
34.3. In Sauerman v Road Accident Fu nd9 a 36-year-old policeman employed by
SAPS Synopsis of injuries and after -effects: Concussive head injury of, at
most, moderate to severe intensity leading ultimately to so -called 'concussive
syndrome' which became irreversible, whereas concussive patie nts normally
recover fully within about 3 months, provided the symptoms are immediately
addressed effectively. If not, they can become irreversible, which is what the
9 2004 (5B4) QOD 190 (AF)
expert believed had occurred in the claimant's case. Such symptoms
commencing with a fail ure to cope with the demands of everyday living and
work, and developing into poor attention and memory, irritability, headaches,
dizziness, fatigue and eventually anxiety. The claimant fitted this typical
picture, and improper management and a lack of tim eous rehabilitation had
rendered his symptoms irreversible. His behaviour and personality had
changed dramatically. From the outset (at hospital) he was very aggressive
and difficult to control. He now lacked interpersonal skills and had become
violent and abusive and was constantly coming into conflict with others,
family, colleagues and members of the public alike, and he was unable to
cope with any jobs, even menial ones. For this reason he was repeatedly
transferred internally to other departments, but the complaints about his
aberrant behaviour and his inability to cope continued until he was finally
declared by the Medical Board to be permanently unfit for duty. Tests showed
his neuro -psychological and intellectual functioning and his concentration to
be severely impaired, and that he made an inordinate amount of errors, and
he was no longer considered to be employable. Also a whiplash injury of the
neck with no significant permanent after-effects. The plaintiff awarded general
damages in the amount of R 200 000.00 in 2004 and the current value is
R620 000.00 in 2025.
ANALYSIS
35. Despite what is presented as the case and injuries of the plaintiff, it is
important to note further that this court is not a rubber stamp of amounts being
presented by the Plaintiff to support their case even though their matters is
undefended by the Road Accident Fund.
36. The Court considers the total evidence presented to sustain the claims
brought by the Plaintiff in any action. In matters of this nature where the
defendant did not oppose the claim, the court is even extra -cautious to avoid
being used as a rubberstamp of the plaintiff’s claims. The Road Accident
Fund is not a largesse as stated in Pitt v Economic Insurance Co.
Ltd[16] where the following was stated:
“ The courts must take care to see that its awards are fair to both sides -it
must give just compensation to the plaintiff, but it must not pour out
largesse from the horn of plentily at the defendant’s expense ”.
37. Having regard to the submissions of Counsel and the comparable cases
above, as well as the caution outlined in the Protea Assurance case 10, and
Marunga judgement above, I am of the view that a fair and reasonable
amount for general damages is an amount of R600 000-00 [Six Hundred
Thousand Rands].
38. In respect of the costs of this action, there is no reason to deviate from the
norm of the costs that costs follow the result. Accordingly, the Defendant is
liable for the costs of the Plaintiff, including the costs of counsel on scale B. It
is my view, however, that all the expert reports dealing with the loss of
earnings or earning capacity should not be awar ded costs at this stage and
should be dealt with at the time this head of damage is finalised.
10 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) @ 535H – 536B
39. Plaintiff’s Counsel prepared a Draft Order which excludes the amount for
general damages which has now been inserted an mount . The Draft Order
also makes provision for the creation of trust, the court is in agreement that
any funds awarded should be protected by way of trust for the benefit of the
minor .
40. Accordingly, the following Order is made:
a). The Court Order marked “X” as amended is made an order of Court
_______________________________
F MATIKA (AJ)
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA, GAUTENG
DIVISION, PRETORIA
Heard: 01 October 2025
Judgment delivered: 17 November 2025
Appearances:
For the Plaintiff: Adv TC Maphelela
Instructed by: E T NKUNA ATTORENYS INC
Email: Info@etnkunaattorenys.co.za
For the defendant: No Appearances