SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO. 017706/2025
In the matter between:
LIONEL ELIZE NENE Plaintiff
and
ROAD ACCIDENT FUND Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
BHOOLA AJ,
Introduction
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
…...05/01/2026................ ..............................................
DATE SIGNATURE
[1] The plaintiff Mr. Lionel Elize Nene, institutes action against the Road Accident
Fund (“the RAF”) seeking damages arising from a motor vehicle collision that
allegedly occurred on 11 June 2021 along the N1 Majuba pass, Volksrust,
Newcastle.
[2] The relief sought against the RAF includes payment of 100% of all proven
damages in favour of the plaintiff, referral of general damages to HPCSA, payment
of R2 590 246.00 (two million, five hundred and ninety thousand two hundred and
forty six rand) in respect of past and future loss of earnings, and an undertaking in
terms of section 17(4). The claim for general damages was postponed. The only
heads of damages to be determined by this Court are the plaintiff’s claim for liability,
referral of general damages to HPSCA and for past and future loss of income.
[3] The summons was served on the defendant on 13 February 2025. The
defendant elected to defend the matter by serving and filing its notice of intention to
defend on 27 February 2025 and its plea on 25 March 2025. In doing so it placed
both quantum and merits in dispute. On 5 June 2025, the court granted a compelling
order for the defendant to file its discovery affidavit and attend a pre -trial conference,
which was served on the same day. The defendant failed to comply, and the
defence was struck out.
[4] The matter thereafter proceeded by way of default judgment in terms of Rule
32(1)(b) together with Rule 38(2) of the Uniform Rules, for evidence to be led by way
of affidavits, which was granted.
Factual background
[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 and without the need for any further oral evidence.
[6] The plaintiff, born on 1 November 1982, was 38 years old at the time of the
accident and is currently 41 years old. She reported that she had completed grade
twelve (12), with a focus on business studies: Secretarial. Additionally, she obtained
a certificate in Business Management and a certificate of competency in Office
Computing Proficiency. Proof of all qualifications was admitted into evidence.
[7] Her last recorded employment was in 2009, when she resigned from the
position of Administrative Clerk at Junit Farm, where she earned R900 (nine hundred
rand) on a fortnightly basis. At the time of the collision she was actively see king
employment. Because of the collision, the plaintiff is unable to resume her pre -
accident employment. She recuperated at home and remains unemployed.
[8] On the evening in question, Ms Nene was a passenger in a Mazda CX3 motor
vehicle with registration number N[…] when it collided with a VW Polo motor vehicle
with registration N[…]. The cause of the accident was the Polo driver moving into the
lane of oncoming traffic while overtaking unsafely colliding with the motor vehicle in
which the plaintiff was a passenger. This is corroborated by the accident report and
the applicant’s affidavit in submission of its claim.
[9] The plaintiff was subsequently taken to Madadeni Hospital. According to the
hospital records, the plaintiff sustained a right tibia fracture and a painful left wrist.
Treatment included clinical and radiological examination, closed reduction of right
tibia, application of an above the knee Plaster of Paris (POP) which was later
removed and pain management. She suffered sev ere acute pain for two weeks,
subsiding over four weeks and she continues to experience chronic pain from the
right leg. The x- rays taken on 12 June 2024 showed a facture right tibia and there
was no bony pathology in the right knee.
[10] Ms Nene’s condition has progressively deteriorated. She experiences swelling
[10] Ms Nene’s condition has progressively deteriorated. She experiences swelling
in her right leg, difficulties standing, walking, sitting for prolonged periods, crouching
and performing household chores. She struggles to lift and carry heavy objects. She
continues to exper ience pain, discomfort and physical functional restrictions and
limitations. These impairments are likely to present significant obstacles to securing
employment in competitive industries where physical strength endurance or multi -
tasking are essential. On the evidence, she appears best suited to light
administrative, clerical or support service roles in structured environments that
provide appropriate physical accommodation.
[11] The RAF1 form, the accident report, the plaintiff’s affidavit in terms of s ection
19(f) of the Act and hospital records were submitted to the RAF on three different
occasions on 31 May 2024, 6 March 2025 and the 4 March 2025. On each of the
occasions the RAF objected to the application as there was no compliance with
paragraph 24(5) of the Act. The serving of the RAF form on 31 May 2024 interrupted
prescription.
[12] Regarding negligence, it is trite the slightest degree of negligence suffices
under section 17(1) of the Act to hold the RAF liable. The defendant’s version has
been struck out, leaving only the plaintiff’s version before this court.
[13] The principle governing damages in South African law is restitutio in integrum
— the injured party must, insofar as money can achieve it, be placed in the position
she would have occupied had the wrongful act not occurred. Authorities such as
Southern Insurance Association Ltd v Bailey NO1 guide the court in assessing future
loss of earnings, emphasising the use of actuarial calculations tempered by judicial
discretion.
[14] The expert reports, which are summarised below, were admitted into
evidence and are relevant to assessing the plaintiff’s damages. They provide
detailed findings on the nature, extent, and long -term implications of the injuries,
assisting the court in arriving at a fair quantum.
1 1984 (1) SA 98 (A)
Orthopaedic Surgeon
[15] Dr Kumbirai, examined the plaintiff on 12 June 2024, opined that she
sustained right tibial fracture and an injury to the left wrist. Treatment included
clinical and radiological examination, close reduction of right tibia, above the knee,
application of a POP cast which was later removed, and pain management. The
plaintiff’s major complaints are pain in the right leg/tibia, which is exacerbated by
prolonged walking and standing, lifting of heavy w eights and cold weather. She has
episodes of locking in the right knee. Dr Kumbirai concluded that although he
calculated Ms Nene’s WPI at 3%, considering the factors mentioned, the injuries
have resulted in serious long- term impairment or loss of body function.
Occupational Therapist
[16] Ms. A. Mnisi evaluated Ms Nene on 13 June 2024 and compiled an updated
report dated 25 April 2025. The assessment included structured interviews,
collateral information, clinical observations, expert opinions, and a variety of
assessment modalities. The plaintiff had a limping gait pattern. She observed
uncoordinated movements when transitioning between various postures. She
experienced pain in the right hip and knee. She possesses an adequate capacit y for
sedentary to lower ranges of medium physical occupations in the open labour
market.
[17] She noted that the applicant’s prior work experience consisted of semi - skilled
clerical duties, but that she was unemployed at the time of the collision. She opined
that the applicant retains the capacity to meet physical demands characteristic of
low- range medium work up to 10 kilograms. However, owing to the accident related
injuries, she is now considered a vulnerable candidate in the open labour market
when compared to her none- injured peers.
[18] Ms Mnisi reported that Ms Nene will experience discomfort in the right hip and
knee when executing her duties, rendering her less productive. She concluded that
sustained medium to heavy tasks will cause in creased pain. She concluded that the
claimant’s physical capacity and her competitive participation in the open market
have been diminished.
Industrial Psychologist
[19] Mr. S Mahlasela, an industrial psychologist, assessed Ms Nene’s pre - and
post-accident earning capacity on 13 June 2024 and 30 April 2025, considering her
educational background, employment history, and the impact of the injuries
sustained in the motor vehicle accident. He based his projections using the plaintiff’s
earning capacity of approximately R 900.00 per fortnight in 2009.
[20] Based on the collateral information and assessments, Mr. Mahlasela opined
that Ms. Nene would likely have progressed in her career, re - entering the open
labour market at midpoint between the lower quartil e and median earnings
assumptions for semi -skilled and progressing towards the median - upper quartile
range.
[21] Post-accident, her participation in the open labour market has been restricted.
Her working and earning capacity has been diminished, and s he has remained
unemployed since the accident. Her physical and cognitive impairments have
severely compromised her employability as she suffers from travel related anxiety,
and emotional instability resulting in isolation. She is unlikely to secure emplo yment
in a competitive market until she is eligible for a government pension grant.
Actuary
[22] The actuarial assessment by Mr Tatenda Mureriwa actuaries, was based on
the opinions of the other experts and he quantified the plaintiff’s total past and fu ture
loss of earnings to be in the amount of R2,059,246.00 (two million, fifty - nine
thousand, two hundred and forty -six rand) before judicial adjustment for
contingencies.
Evaluation
[23] Flowing from the facts, since it is uncontested that the insured driver of the
Polo is the sole cause of the accident, being a passenger in a car should be awarded
merits 100% in her favour. I accept that causation exists between the incident and
the plaintiff’s injuries sustained, and no apportionment of fault arises. The defendant
therefore bears complete responsibility for the damages flowing from the accident.
The accident report corroborates the plaintiff’s affidavit lodged in terms of section
19(f) of the RAF Ac 2t, regarding the occurrence of the collision. Furth ermore, the
hospital records substantiate the injuries sustained, supporting the plaintiff’s version.
[24] The quantification of loss proceeds based on full liability, with contingencies
applied only to reflect general and injury ‑specific risks, and not to diminish the
defendant’s accountability. This ensures that the plaintiff is compensated fairly and
equitably for both past and future loss of earnings, as well as the broader impact of
the injuries sustained.
[25] Before turning to the assessment of damages, it is imperative to address the
defence of prescription raised in the defendant’s plea. The defendant contended that
the plaintiff’s claim had prescribed due to alleged non - compliance with section 24(5)
of the Act in relati on to the lodgement of the RAF1 forms. However, the defendant’s
plea has been struck out for failure to comply with court orders, and accordingly the
defence of prescription is no longer before this Court. However, it is prudent to
mention the plaintiff lodged the claim on three separate occasions, before the claims
had prescribed, thereby placing RAF in possession of the material facts of the claim.
On the evidence, the claim has not prescribed, and the plaintiff’s right of action
remains valid and enforceable.
[26] When evaluating the damages, the plaintiff’s injuries were not disputed, and
[26] When evaluating the damages, the plaintiff’s injuries were not disputed, and
the opinions expressed by the various expert witnesses are admitted uncontested. I
2 Road Accident Fund Act 56 of 1996 as amended
am satisfied that, but for the accident, the plaintiff was unemployed but actively
seeking work. As a result of the accident, she has been left with physical, cognitive,
and emotional impairments that have materially compromised her functional abilities.
These post -accident deficiencies have significantly reduced her employment
prospects, making it challenging for her to secure suitable job opportunities.
[27] I am not persuaded, however, that the plaintiff is permanently unemployable.
Whilst her ability to engage in work has been adversely affected, I accept that she
retains a degree of residual ear ning potential. Her capacity to generate income is
limited but not entirely extinguished.
[28] Contingency deductions are applied, to account for the uncertainties and
vicissitudes of life that may affect a claimant's future financial position. 3 Robert
Koch's work is often used to determine the contingency deductions, typically 5% for
past loss and 15% for future loss. Courts are not bound by these figures and may
adjust them based on case - specific facts. Koch’s “sliding scale," deducts a
percentage based on age and remaining working life. For example, a common rule
of thumb is a 0.5% deduction per year to retirement, resulting in a 15% deduction
for a person between 30 – 45 years. I intend to deviate from that considering all the
risk factors and the plaintiff’s current employability status.
[29] With regard to quantum and loss of earnings, the plaintiff’s actuary calculated
the present value of total loss of earnings R2 059, 246.00 (one million, and fifty -nine
thousand, two hundred and forty-six rand) after contingencies and using a past
contingency of 5% and future contingency of 15% as an illustration. According to
Koch’s Quantum Yearbook 4, a pre - morbid contingency of 15% is the baseline
contingency guideline for individuals aged 30–45.
3 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)
4 The Quantum Yearbook, by Robert J Koch, 2024, page 125
[30] In the circumstances, the plaintiff’s projected income figures for the pre - and
post-accident scenarios remain the same. However, a higher than usual contingency
deduction is justified. For the pre accident scenario, an elevated contingency is
warranted since there was no collateral proof of the plaintiff’s income earned such as
salary advices, or bank statements. For the post -accident scenario income, an even
greater deduction is appropriate to reflect the plaintiff’s diminished competitiveness ,
reduced functional capacity, and uncertainty surrounding residual earning potential.
Although the plaintiff is not permanently unemployable, her ability to secure and
sustain gainful employment is materially constrained. Regarding future injured
earnings, I have considered the plaintiff’s diminished employability, the socio-
economic risks inherent in the labour market, prolonged unemployment, and expert
opinions confirming serious orthopaedic injuries with lasting functional impairments.
She cannot resume her pre -accident occupation and t she is likely to remain
unemployed until she is legible for government grant.
[31] The actuary applied a past contingency of 5% and a future contingency of
15%, suggesting a total loss of earnings of R2059,246.00. 00 (one million, and fifty -
nine thousand, two hundred and forty-six rand).
[32] However, Counsel for the plaintiff submitted that a past contingency of 15%
and a future contingency of 45% should be applied, yielding a total loss of earnings
of R1 195 837.00 (one million one hundred and ninety -five thousand eight hundred
and thirty -seven rand). I am not persuaded that these contingencies are justified
considering the plaintiff’s prolonged periods of unemployment. I am satisfied that a
past contingency of 20% is appropriate, given the absence of proof of employment
and earnings. I have also considered the plaintiff’s serious orthopaedic impairments,
and earnings. I have also considered the plaintiff’s serious orthopaedic impairments,
diminished employability, and the prevailing economic conditions. I am of the view
that the contingencies should be calculated as follows past loss of earnings 20%
contingency for future 50% is just, equitable and fair. Consequently, the plaintiff’s
past and future loss of income is calculated as follows:
Category Pre- accident Post-accident Contingency
Amount
Loss
Past income 210 840.00 0 (20%):
42,168.00
168 672.00
Future Income 1 848 406.00 0 (50%):
924 203.00
924 203.00
Total loss R 1 092 875
Order
[33] In the result, I make the following order:
33.1. The defendant is ordered to compensate the plaintiff 100% of her
proven damages.
33.2. The issue relative to the general damages is postponed sine die and
referred to the Health Professions Council of South Africa (HPSCA).
33.3. The defendant is ordered to make the follo wing payment to the plaintiff
a capital amount of R 1,092, 857.00 (one million, ninety two thousand, eight
hundred and fifty seven rand) in respect of past and future loss of earnings.
33.4. The defendant shall furnish the plaintiff with an underta king as
envisaged in Section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, for
100% of the costs of the future accommodation of the plaintiff in a hospital or
nursing home or treatment of or rendering of a service to or supplying of
goods to her aris ing out of the injuries sustained in the motor vehicle collision
which occurred on the 11 June 2021, after such costs have been incurred and
upon proof thereof.
33.5. The capital amount referred to in paragraph three is payable within one
hundred and eigh ty (180) days from service of this Court Order into the trust
account of the plaintiff’s attorneys of record with the following details:
Account Holder Name: Mukovhanama Tshilidzi Attorneys
Bank: First National Bank
Branch name: Woodbridge Kempton Park
Code: 205609
33.6. No interest will be payable in respect of the capital amount referred to
in paragraph three except in the event of default, in which case interest will
accrue at a rate of 10,5% per annum from the date of service of this Court
Order.
33.7. 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
expert reports, medico -legal reports, actuarial calculations, and counse l’s
fees, together with costs of preparation and attendance at court, on 24 th
October 2025.
33.8. If costs are not agreed, the plaintiff shall serve a notice of taxation on
the defendant, and following taxation or settlement of the costs, the defendant
shall make payment within one hundred and eight (180) days.
33.9. No interest will be payable on t he costs referred to in paragraph seven
above, except in the event of default, in which case interest will be payable at
the prescribed legal rate of 10.5% per annum, calculated from the date of
taxation or agreement.
33.10. No reservation fees shall be paid to experts, as the trial proceeded in
terms of Rule 38(2).
33.11. The parties have entered into a valid 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.
APPEARANCES
Date of hearing: 21 October 2025
Date of judgment: 05 January 2026
For the plaintiff: Adv. SB Vukeya
(Tel: 083 857 7027, email vukeyasb@gmail.com)
Instructed by: Mukovhanama Tshilidzi Attorneys
(Tel: 065 586 0244 / E-mail: mulimisigp@gmail.com )
For the defendant: No appearance