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.THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO. 2024/147099
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE 05/01/2026
SIGNATURE
In the matter between:
THOKAZANI GLADNESS MPOFU Plaintiff
And
ROAD ACCIDENT FUND Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
BHOOLA AJ,
Introduction
[1] The plaintiff, Ms Thokazani Gladness Mpofu, institutes action against the
Road Accident Fund (“RAF”) seeking damages arising from a motor vehicle collision
which occurred on 30 July 2021 near Khuzani Road, Emadanyeni Section C,
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Osizweni Township, Newcastle, KwaZulu Natal Province. At the time of the collision,
the plaintiff was a passenger in the motor vehicle.
.
[2] The issue of merits, general damages and future medical expenses has
become settled. The only issue for determination is future loss of earnings and past
medical expenses.
[3] Summons was served on the defendant on 13 December 2024. The
defendant served a notice of intention to defend, on 31 March 2025 but failed to
plead timeously. Despite a notice of bar being served on 8 May 2025, the defendant
did not plead and is accordingly barred from doing so in terms of Rule 26 of the
Uniform Rules.
[4] The matter proceeds by way of default judgment in terms of Rule 31(2)(b),
which was served on 9 June 2025 together with Rule 38(2) of the Uniform Rules, to
procced by way of affidavits, which was served on the defendant on the 22 May
2025, and is accordingly granted.1 The plaintiff is only required to prove her claim on
quantum2 and past medical expenses.
.
Factual background
Merits
[5] The plaintiff’s factual account of how the motor collision occurred was not
contested. The medico-legal reports prepared by the plaintiff’s expert witnesses were
admitted into evidence in terms of Rule 38(2) of the Uniform Rules. All the reports
remained unchallenged and uncontroverted. This justified the court in hearing the
matter by way of affidavits without oral testimony.
[6] The plaintiff, born on 1 January 1974, was 47 years old at the time of the
accident and, is now 51 years old. She matriculated in 1994, and thereafter
registered for a Secretarial Course. In 2009 she obtained a teacher’s diploma,
followed by an advanced Certificate in Education in 2012. At the time of the accident
1 Havenga v Parker 1993 (3) SA 724 (T), confirmed by the Supreme Court of Appeal in Madibeng Local
Municipality v Public Investment Corporation 2018 (6) SA 55 (SCA)
2 Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49
3
she was employed as an Educator. The plaintiff had previously been involved in
another motor vehicle accident.
[7] On the day in question, the plaintiff was a passenger in a Hyundai motor
vehicle which was been driven by Mr. B. Sizwe. The driver of the other insured motor
vehicle emerged at a high speed and collided with the Hyundai motor vehicle, which
was stationed next to the road, with its hazards on, off-loading passengers. After the
collision, the plaintiff was transported to the New Castle Hospital, by car.
[8] As a result of collision the plaintiff sustained a head injury with loss of
consciousness and amnesia, left temporal haematoma, soft tissue injuries of the C3
fracture, thoracic fracture and dislocation of lumber joints. The plaintiff was admitted
for four days and re -admitted in August 2021 where a lumbar puncture was
performed which was reported normal. She was absent from work for five months
and was remunerated for this period. Shen then returned to her pre - accident
occupation.
Quantum
[9] The expert reports, summarised below, were admitted into evidence, and are
relevant to assessing the plaintiff’s damages. They provide findings on the nature,
extent, and long -term implications of the injuries, assisting the court in arriving at a
just, equitable and fair quantum.
Orthopaedic Surgeon:
[10] Dr E.A. Mjuza examined the plaintiff on 18 June 2024. He opined the plaintiff’s
neck has restriction and lateral movement. She bends her thoracic and lumber spine
fully without pains or restrictions. There was an abnor0al union of the C3 vertebral
body upper articular facet, while the lumber spine has normal alignment,
demonstrates facet arthrosis.
Neurosurgeon
[11] Dr A. Mazwi consulted with the plaintiff on 18 June 2024 and again on 7
August 2025. He opined that she sustained loss of consciousness and amnesia,
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resulting in a mild brain injury with long - term mental disturbance. The plaintiff
suffered acute headache immediately post – accident, with loss of amenities of
normal living and impairment of activities of daily life. He noted a 2 -3% risk of
epilepsy.
Clinical Psychologist
[12] Dr Maisa examined the plaintiff on 9 July 2025. He found the plaintiff
presents with long -term physical and mental impairments. According to him the
plaintiff suffers from mild head injury, brain contusion, neck fracture, spinal arthritis
has resulted in chronic pain, poor memory, difficulty concentrating and severe
headaches, emotional mood swings, decreased self -esteem, anxiety, depression
and physical limitation. These emotional difficulties may result in decreased focus,
motivation, and interaction.
Occupational Therapist
[13] Mr Makananisi examined the plaintiff on 19 June 2024. He found that she
struggles with sitting and standing, with elevated work -hands above shoulder level
and with step ladders/stairs, pushing/pulling weight, lifting or carrying weights,
exercise, physical activity and running. Her physical capacity does not meet the
requirements for heavy to medium work, rendering her unemployable in such work.
She remains suited to light or sedentary work. Including teaching but not at her pre -
accident level of performance.
Industrial Psychologist
[14] Mr. Clement Bell, assessed the plaintiff on 19 June 2024 and recorded his
findings on 22 July 2025. He found pre - accident, the plaintiff’s career trajectory
progressed from a sewing machinist, to a secretary, to a Grade R Practitioner, and
then to a teacher. She aspired to complete her Master’s degree and could have
advanced to head of department level, earning an amount of R346,995 to R859,332
by 55 and retirement age would be 60 to 65.
5
[15] Post-accident she was hospitalised for five days and she was later
readmitted. She was off work for a period of about five months. She was
remunerated for that period. Due to occupational limitations and the need for work
accommodation, her employment prospects are curtailed. She is suited for light
sedentary work and can continue teaching, but not at her pre accident level. At the
time of her assessment, she remained employed as a teacher.
Actuaries
[16] Mr Namir Waisberg, the actuary, relied on the other expert reports as well as
the plaintiff’s salary payslips and proof of earnings from employees’ tax to compile
his reports dated the 25 July 2025 and 26 September 2025. Retirement age pre and
post-accident is calculated at 62.5. Counsel for the Plaintiff presented a draft order
relying on the report dated 25 July 2025 in the amount of R3 262, 959.00 (three
million two hundred and sixty-two thousand nine hundred and fifty rand).
Legal Framework
[17] Section 17(1) of the Act obliges the Fund to compensate for loss or damages
caused by the negligent driving of a motor vehicle. In this case, the driver of the
insured vehicle was travelling at an excessive speed and collided with a vehicle that
was stationed with its hazards on, constituting prima facie negligence.3 Liability has
already been settled at 100% in favour of the plaintiff.
[18] The court finds that the accident directly caused the injuries sustained by the
plaintiff. The hospital records and the accident report substantiates this. Authorities
such as Southern Insurance Association Ltd v Bailey NO 4 guide the court in
assessing future loss of earnings, emphasising the use of actuarial calculations
tempered by judicial discretion.
Evaluation
[19] The plaintiff’s injuries were not disputed, and the opinions expressed by the
various expert witnesses are admitted uncontested. I have considered the actuarial
3 Ngubane v South African Transport Services 1991(1) SA 756 (1) SA 756 (A)
3 Ngubane v South African Transport Services 1991(1) SA 756 (1) SA 756 (A)
4 1984 (1) SA 98 (A)
6
reports, which provides two sets of projections. The Court accepts that actuarial
evidence provides a reliable and principled method for quantifying the plaintiff’s loss,
consistent with the approach endorsed in Mlotshwa v Road Accident Fund.5
[20] Contingency deductions are applied, to account for the uncertainties and
vicissitudes of life that may affect a claimant's future financial position. 6 Robert
Koch's guidelines suggest 5% for past loss and 15% for future loss, but Courts may
adjust these figures depending on the facts.
[21] With regard to the past earnings, the plaintiff returned to her pre -accident
employment with no reduction in salary. She was remunerated for the five months
she was recuperating. The Court therefore finds that no actual financial loss was
suffered in respect of past earnings. Furthermore, the past loss of earnings is
recorded as nil, which is in accordance with the Court order dated 30 July 2025.
[22] I am satisfied that whilst the plaintiff’s ability to engage in her existing work
has been adversely affected, she retains residual earning potential. Her capacity to
generate income is not extinguished, as she remains employed in her current job,
albeit it is in a limited capacity.
[23] The future uninjured earnings, reflect the plaintiff’s projected income had the
accident not occurred, adjusted for career progression. A contingency of 15% is
applied. This accounts for uncertainties such as potential interruptions to
employment, fluctuations in promotions, and general vicissitudes.7
[24] The future injured earnings reflect the plaintiff’s projected earning capacity
considering the permanent injuries sustained in the accident. A 25% contingency is
applied to recognise long -term vulnerability, reduced competitiveness in the labour
market, and potential early retirement.
5 (53505/2016 [2025] ZAGPPHC 1019
6 Road Accident Fund v Guedes (611/04) [2006] ZASCA 19; 2006 (5) SA 583 (SCA) (20 March 2006), Southern
Insurance Association Ltd v Bailey NO (1984) (1) (SA) 98 (A)
7
[25] After applying the respective contingencies, the actuarial value of the
plaintiff’s loss is R 1,631,148 (one million, six hundred and thirty -one thousand, one
hundred and forty -eight hundred rand). I do agree that these are calculations as
depicted, represents a fair and realistic measure of her loss.
Category Income (R) Contingency
%
Contingency
Amount
Adjusted
income
Loss
Past Earnings
(uninjured)
R1, 636,005 5% R 81,800 R1,554,205
Past Earnings
(injured)
R1,554,205 5% R 76,024 R1,444,452
Past Loss 0
Future (uninjured) R 7, 218,259 15% R 1, 082,739 R 6,135,552
Future (injured} R 6,152,167 25% R 1, 538,042 R 4,614,125
Future Loss R1, 521,395
[26] According to the Court order dated 30 July 2025, the claim for past and future
medical expenses were postponed sine die. The draft order now presented repeats
the postponement of past medical expenses but omits future medical expenses,
which is procedurally irregular.
[27] The inflated figure of R3,262,959 (three million, forty -six thousand, two
hundred and thirty rand), which improperly adds past loss of earnings to future loss,
is rejected. The Court order dated 30 July 2025 reflects that the plaintiff suffered no
past loss of earnings, so the only compensable loss suffered is the future loss of
earnings. The actuarial calculations reflect a 5% past loss recommends and amount
of R1,631,148 (one million, six hundred and thirty -one thousand, one hundred and
forty-eight hundred rand).
Conclusion
8
[28] The Court has considered both actuarial reports. The first projected a higher
quantum of R3,046,230 (three million, forty -six thousand, two hundred and thirty
rand), while the latter projected R1,631,148 one million, six hundred and thirty -one
thousand, one hundred and forty -eight hundred rand). Counsel submitted a draft
order for the former amount without justification as to why the court should accept
the former calculations as opposed to the latter one. I am not persuaded that I
should accept the former projection. Actuarial evidence is not binding but serves as
an aid to judicial discretion ( Southern Insurance Association Ltd v Bailey NO ). In the
exercise of that discretion, the Court prefers the latter projection, which incorporates
more conservative and realistic contingency deductions consistent with the plaintiff’s
residual earning capacity and ongoing employment. However, applying the court
order of 30 July 2025, since no past loss was suffered, the total loss of earnings is
R1, 521, 395 (one million, five hundred twenty -one thousand, three hundred and
ninety five rand). This figure represents a fair, just, and reasonable award in the
circumstances.
[29] Finally, the requests for costs on scale B is unjustified. This was a default
judgment application, not a matter of exceptional complexity.
[30] Obiter: The Court considers it necessary to record an observation. A draft
order was presented that recycled portions of a previous order, repeated relief
already granted, omitted relief previously postponed, and failed to address the
existence of a second actuarial report in his heads of argument. This silence,
coupled with reliance only on the more favourable report, is unbecoming. Officers of
the court bear a duty of candour and fairness to assist the court fully, not selectively.
[31] The profession is reminded that draft orders must be scrutinised carefully
when exercising judicial oversight, and that legal representative’s duty extends
when exercising judicial oversight, and that legal representative’s duty extends
beyond the interests of a client to the proper administration of justice. Careless
litigation of this nature undermines confidence in the process and places
unnecessary burdens on the court.
Order
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[32] In the result, I make the following order:
32.1. Application in terms of Rule 38(2) is granted.
32.2. The claim in respect of liability is recorded as settled on 6 August 2024
whereby the “RAF”, is liable to compensate the plaintiff for 100% of her
proven damages arising from the motor collision of 30 July 2021.
33.3. The claim for general damages is recorded as settled is in accordance
with the order dated 30 July 2025 and is not before this court.
33.4. The claim for past medical and hospital expenses was recorded as
being postponed sine die in the order dated 30 July 2025 and remains so.
33.5. The claim for past loss of earnings was recorded in order dated 30
July 2025 as “the plaintiff has no past loss of earnings.
33.6. The defendant is liable ordered to make the following payment to the
plaintiff - a capital amount of R 1,631,148 (one million, six hundred thirty -one
thousand, one hundred and forty-eight rand.)
33.7. The capital amount referred to in paragraph six shall be payable within
one hundred and eighty (180) days of service of this Court Order into the trust
account of the plaintiff’s attorneys of record with the following details:
Account Holder Name: Ramakgwakgwa Attorneys
Bank: Standard Bank
Account Type: Attorneys Trust Account
Account Number: 0[...]
Branch: Johannesburg
Branch code: 0[...]
33.8. The defendant shall pay the plaintiff’s taxed or agreed party - and- party
costs on the High Court scale, such costs to include reasonable costs of all
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expert reports, medico -legal reports, actuarial reports, counsel’s fees,
preparation and attendance at court, if any, as allowed by the Taxing Master.
33.9. No interest shall be payable on the capital amount referred to in
paragraph six except in the event of default, in which case interest will accrue
at a rate of 10.50% per annum calculated from the date of service of this
Court Order.
33.10. If costs are not agreed, the plaintiff shall serve a notice of taxation on
the defendant. Following taxation or settlement of the costs, the defendant
shall make payment within thirty days (30) days.
33.11. No interest shall be payable on the costs referred to in paragraph
eight, except in the event of default, in which case interest will accrue at the
prescribed legal rate of 10.5% per annum, calculated from the date of taxation
or agreement.
33.12. No reservation fees shall be paid to experts for the trial as the trial
proceeded in terms of Rule 38(2);
33.13. There is no contingency fee agreement.
CB. BHOOLA
Acting Judge of the High Court
Gauteng Division of the High Court, Johannesburg
Delivered: This judgment was prepared and authored by the Judge whose name
is reflected on 5 January 2026 and is handed down electronically by circulation to the
parties/their legal representatives by e mail and by uploading it to the electronic file
of this matter on CaseLines. The date for hand -down is deemed to be 5 January
2026.
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APPEARANCES
Date of hearing: 21 October 2025
Date of judgment: 5 January 2026
For the plaintiff: Adv. JMV Malema
(Tel: 082 590 5934, Email: malema@adv21.co.za)
Instructed by: G Mathidisa Attorneys
(Tel: 011 6611 6779, email: gloria@ramainc.co,za )
For the defendant: No appearance