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in compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO. 2024/057378
In the matter between:
KAKOTA SHEDREK Plaintiff
and
ROAD ACCIDENT FUND Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
BHOOLA AJ,
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
..05/01/2026............... ..............................................
DATE SIGNATURE
Introduction
[1] The plaintiff, Mr Kakota Shadreck, institutes action against the Road Accident
Fund (“RAF”) seeking damages arising from a motor vehicle collision which occurred
on 15 August 2022 near Van der Bijl Avenue and Nanyuki Road, Sunninghill,
Sandton, Gauteng 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 27 May 2024. The defendant
served a notice of intention to defend, via email, on 5 June 2024 but failed to plead
timeously. Despite a notice of bar being served on 16 July 2024, the defendant did
not plead and is accordingly barred from doing so in terms of Rule 26 of the Uniform
Rules.
[4] On 9 December 2024, the merits was settled 100% in favour of plaintiff’s
proven or agreed damages.
[5] The matter proceeds by way of default judgment in terms of Rule 31(2)(b),
read with Rule 38(2) of the Uniform Rules, to procced by way of affidavits, was
served on the defendant on the 16 October 2025, and is accordingly granted.1
.
Factual background
Merits
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)
[5] The merits have become settled and it was ordered that the defen dants is
100% liable for the plaintiff’s proven or agreed damages. factual account of how the
motor collision occurred was not contested.
Quantum
[6] The medico -legal reports prepared by the plaintiff’s expert witnesses were
admitted into evidence in ter ms 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.
[7] The plaintiff, born on 2 February 1989, was 33 years old at the time of the
accident and, is now 35 years old. He is a Malawian citizen, where eight years of
education is compulsory. At the time of the collision he worked as a gardener and a
handyman, renovating houses, painting, and tiling. After the collision r e never
returned to gainful employment.
[8] On the day in question, at approximately 08h10, the plaintiff was riding his
bicycle when he was hit by an unknown motor vehicle who was trying to overtake
another motor vehicle, at a robot intersection, as t he plaintiff was manoeuvring a
right turn. off-loading passengers. After the collision, the plaintiff was transported by
ambulance to Tembisa Hospital, where he was admitted for surgery which was
conducted on 30 August 2022. He was discharged on 19 September 2022.
[9] As a result of collision the plaintiff sustained a Trans scaphoid peri lunate
fracture dislocation of the right wrist. This led to wrist instability where the dislocated
scaphoid bone pressed on the median nerve.
Quantum
[10] 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:
[11] Professor C.T. Frey examined the plaintiff on 28 February 2024. He opined
the injury involved a dislocated lunate bone pressing on the median nerve, leading to
wrist instability where the dislocated scaphoid bone caused a break in the proximal
row at carpel bones, resulting in dorsal intercalated segment instability.
Occupational Therapist
[12] Mr R Hunter examined the plaintiff on 12 June 2025. He found that he
displayed limitations in the right wrist active range motion due to pain and the right
forearm muscles were slightly weaker. His right-hand grip strength was reduced, and
slight atrophy was noted in the right hand. He displayed adequate precision grasps
in the right hand but reported pain with prolonged use.
[13] The main area of dysfunction was dynamic strength and manual dexterity,
resulting in right wrist instability and pain. His physical capacity remains best suited
to work falling in the light category and he is precluded from medium, heavy and very
heavy work. work, rendering her unemployable in such work. Gardening, painting
and tiling remained unskilled work and will fall within the medium category work
depending on the lifting demands and hours. He remains suited to light or s edentary
work and would be limited in his use of his right dominant hand for tasks.
Industrial Psychologist
[14] Dr J de Beer, assessed the plaintiff on 23 September 2025 and recorded his
findings in a report. He found pre- accident, the plaintiff’s career trajectory from 2008
to 2021, progressed from gardening, building houses, painting, tiling, and drawing
house and garden plans part -time, earning an amount of R 91 520 annually. But for
the accident, the plaintiff would have continued w orking as an independent
contractor, on a casual basis, engaged in gardening and handyman work, and
diversified his work to include semi -skilled, higher - paying work, such as tiling,
painting, building maintenance, and renovation jobs. He would have earned
R166 000 per annum as his career ceiling, up to retirement age of 65. No
confirmation could be obtained in respect of other work or earnings.
[15] Post-accident the plaintiff has not returned to work after the injury. He could
not find work as an inde pendent contractor. His post - accident earnings are
projected to remain within lower quartile to median range for unskilled workers in the
informal sector. His earnings would be R40 400 per annum upon retirement.
Actuaries
[16] Mr N. Waisberg, the actuary, relied on the other expert reports and performed
calculations in respect of the plaintiff’s loss of earnings to compile his reports dated
the 6 October 2025. The only form of proof of earnings was by way of affidavit dated
25 September 2025. Retireme nt age pre and post -accident is calculated at 65. For
the past loss, a contingency of 5% pre and post morbid was recommended and for
future loss but for the accident a 15% contingency was recommended and having
regard to the accident a contingency of 45% w as recommended. Applying those
said contingencies, a total loss of earnings in the amount of R2 909, 707 was
recommended. (two million nine hundred and nine thousand, seven hundred and
seven 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, constitu ting prima facie negligence.2 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. This is evident from the plaintiff’s admission into hospital for a period of five
days and her readmission to hospital, and her prolonged recovery period of five
months. The expert medical testimony confirms the causal connection between the
accident trauma and the sequelae. The hospital records and the accident report also
substantiate this. Authorities such as Southern Insurance Association Ltd v Bailey
NO3 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 are not disputed, and the opinions expressed by the
various expert witnesses are admit ted uncontested. I have considered the actuarial
reports. 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.4
[20] Contingency deductions are applied, to account for the uncertainties and
vicissitudes of life that may affect a claimant's future financial position. 5 Robert
Koch's guidelines suggest 5% for past loss and 15% for future loss, but Courts m ay
adjust these figures depending on the facts.
2 Ngubane v South African Transport Services 1991(1) SA 756 (1) SA 756 (A)
3 1984 (1) SA 98 (A)
4 (53505/2016 [2025] ZAGPPHC 1019
5 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)
[21] With regard to the loss of earnings, the plaintiff did not return to his
employment. Additionally, the plaintiff is a foreign national from Malawi. It was
unclear whether the plaintiff was in possessi on of a work permit. However, the
absence of a work permit does not disqualify the plaintiff from receiving
compensation. In such instances compensation should be subjected to higher
contingency deduction at the percentages to be determined together with q uantum,
as was applied in Rumbidzai v Road Accident Fund. 6 Counsel for the plaintiff
suggested that in the current matter, the contingency for past loss of earnings shall
be subjected to a 25% contingency deduction, 35% in respect of but for the accident
future loss of earnings contingencies and 25% in respect of having regard to the
accident future loss of earnings. Contingencies must reflect increased uncertainty
and risk post -morbid. An injured contingency lower than uninjured is not supported
by the evidence.
[22] I am satisfied that whilst the plaintiff’s ability to engage in his existing work has
been adversely affected, he retains residual earning potential. His capacity to
generate income is not extinguished, but limited to light sedentary work, a lbeit it is in
a limited capacity.
[23] Taking into account the plaintiff’s age, nature of his pre- accident employment,
the absence of formal proof of income, and his restriction post - accident to light
sedentary work for which he has no established work history, the contingencies
recommended by counsel is fair and reasonable as a higher than normal
contingency is applied in such circumstances. According to Counsel, The
contingencies to be applied are past loss of earnings is 25%, future loss of earn ings
(uninjured) is 35% and future loss of earnings (injured) 25%. This accounts for
uncertainties such as potential interruptions to employment, fluctuations in
6 [2015] ZAGPPHC 1071
promotions, and general vicissitudes. 7 These contingencies as suggested is not
consistent with the evidence before the court.
[24] The future injured earnings reflect the plaintiff’s projected earning capacity
considering the permanent injuries sustained in the accident cannot be less than the
uninjured considering long -term vulnerability, re duced competitiveness in the labour
market, and potential long -term unemployment. Considering Counsels suggestions I
am satisfied with the past and future injured contingencies but not the future injured
contingencies. Therefore, the contingencies to be ap plied are, past 25%, future
uninjured 35% and future injured is 45%.
[25] After applying the respective contingencies, the actuarial value of the
plaintiff’s loss as submitted by counsel is R 2, 130, 854 (two million, one hundred
thirty thousand, eight hundred and fifty- four rand) This represents a fair and justified
measure of his loss of earnings.
Category Income (R) Contingency
%
Contingency
Amount
Adjusted
income
Loss
Past Earnings
(uninjured)
R399,184 25% R 99, 796 R 299,388
Past Earnings
(injured)
0 0 0 0
Past Loss R299,388
Future (uninjured) R 3, 495,087 35% R 1, 223,280
1,0485,261
R 2,271,807
Future (injured) R 800,620 45% R 360,279 R 440, 341 R1, 831,466
Future Loss R2. 130,854
[26] Finally, the requests for costs on scale B is unjustified. This was a default
judgment application, not a matter of exceptional complexity. There is no justification
for costs on scale B,
Order
[27] In the result, I make the following order:
27.1 Application in terms of Rule 38(2) and section 3(1)(c) of the Law of
Evidence Amendment Act is granted.
27.2 In terms of Uniform Rule 33(4), the question of the plaintiff’s claim for
general damages is separated from all other issues and the determination
hereof is postponed sine die.
27.3 The defendant is ordered to make the following payment to the plaintiff
- a capital amount of R 2, 130, 854 (two million, one hundred thirty thousand,
eight hundred and fifty- four rand).
27.4. The defendant shall f urnish the plaintiff with an undertaking 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 in a hospital or nursing home
or treatment of or rendering of a service, or supplying of goods to him arising
from the injuries sustained in the motor vehicle collision of 15 August 2022,
after such costs have been incurred and upon proof thereof.
27.5. The capital amount 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: Leon JJ van Rensburg
Bank: ABSA Bank
Account Type: Attorneys Trust Account
Account Number: 2[…]
Branch: President, Germiston
Branch code: 334 542
27.6. The defendant shall pay the plaintiff’s taxed or agreed party - and- party
costs on the High Court scale A, such costs to include reasonable costs of all
expert reports, medico -legal reports, a ctuarial reports, counsel’s fees,
preparation and attendance at court, if any, as allowed by the Taxing Master.
27.7. No interest shall be payable on the capital amount except in the event
of default, in which case interest will accrue at the rate of mora interest,
calculated from the 15 th calender date from the date of service of this Court
Order.
27.8. 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 fourteen days (14) calender days.
27.9. No interest shall be payable on the costs, except in the event of
default, in which case interest will accrue at mora interest rate, calculated
from the 15th calender day after taxation or agreement.
27.10 No reservation fees shall be paid to experts for the trial as the trial
proceeded in terms of Rule 38(2).
27.11 The plaintiff and his attorneys 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 05 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 05
January 2026.
APPEARANCES
Date of hearing: 24 October 2025
Date of judgment: 05 January 2026
For the plaintiff: Adv. DJ Smit
(Tel: 078 138 3272, Email: danielj.smit@icloud.com)
Instructed by: Leon JJ van Resnsburg Attorneys
(Tel: 082 333 7309, email:
uys@leonjjvanrensburgattorneys.co.za)
For the defendant: No appearance