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THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO. 2022/14857
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 05/01/2026
SIGNATURE:
In the matter between:
SIBEKO SELLO PETRUS Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
BHOOLA AJ,
Introduction
[1] The plaintiff, Mr Petrus Sello Sibeko, institutes action against the Road
Accident Fund (RAF) seeking damages arising from a motor vehicle collision that
allegedly occurred on 6 March 2021 along R553 Road, next to extension 12,
Vanderbijilpark, Johannesburg.
[2] The relief sought against the RAF includes:
2.1 payment of past hospital expenses in the sum of R1000.00 (one
thousand rand) and future medical/ hospital expenses,
2.2 an undertaking for future medical/hospital expenses in terms of section
17(4)(a) of the Road Accident Fund Act 56 of 1996 (the Act),
2.3 estimated compensation for past loss of earnings in the amount of R
169 495,
2.4 estimated future loss of earning capacity in the amount of R895,741.00
and,
2.5 general damages in the sum of R600 000,00.
[3] The claim for general damages has been postponed. The only heads of
damages to be determined by this Court are the plaintiff’s claim for liability and for
past and future loss of income.
[4] The summons was served on the defendant on 16 May 2022. The defendant
elected to defend the matter by serving and filing a notice of intention to defend on 9
June 2022. However, the defendant failed to file its plea timeously. This led to the
defendant being barred on 24 June 2022. Despite being ba rred, there was no plea
was forthcoming from the defendant.
[5] The matter proceeded by way of default judgment in terms of Rule 32(1)(b),
read with Rule 38(2) of the Uniform Rules for evidence to be led by affidavits. Since
the defendant was barred, the plaintiff was required to prove his claim on both the
merits and quantum.
Factual background
[6] 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.
[7] The plaintiff, born on 6 September 1984, was 36 years old at the time of the
accident and is currently 39 years old. He reported his highest qualification to be
grade ten (10). At the time of the collision, he was employed as a general worker – a
construction worker at Martins Concrete Products/ Rogans Concrete products,
earning approximately R 5770.84 per month. The experts based their calculations on
an approximate earnings of R4000.00 per month. His employment was physically
demanding and involved pro longed standing, frequent walking, bending, lifting and
carrying of heavy objects.
[8] On the evening in question, Mr Sibeko was crossing the road at approximately
18h00, when the collision occurred. He recalled having been knocked down by a car
from behind while walking in a pedestrian lane. The driver of the insured motor
vehicle fled the scene. He reported not to have lost consciousness and was
subsequently taken to Sebokeng Hospital where he was admitted for approximately
one month. He was discharged with a walking frame which was used for
approximately three weeks. During the period he was hospitalised, he was
remunerated and did not suffer any past loss.
[9] As a result of the motor collision the plaintiff sustained the following injuries: a
left tibial segment fracture, multiple abrasions of the left lower limbs, with loss of
sensation and movement of toes, poor balance on both lower limbs, lip laceration
and general body pains. During his period of hospitalisation, he received treatment
from medical experts and underwent an operation in the form of left suprapatellar
tibial nail , issued with elbow crutches for mobility. The x - rays indicate an
intramedullary pin in the left tibia. Proximally, there is no complication, but slight
irregularity in the tibial plateau especially on the medial side. Distally the transverse
screws go into syndesmosis between the tibia and fibula, which can cause the ankle
screws go into syndesmosis between the tibia and fibula, which can cause the ankle
joint synovitis and persistent pain. Mr. Sibeko’s condition has progressively
deteriorated. He struggles to lift and carry heavy objects due to ongoing leg pain on
his left knee and ank le. His left knee tends to swell, and he wears a knee brace to
assist with the swelling and instability.
[10] The RAF1 form, the accident report, the plaintiff’s affidavit in terms of section
19(f) of the Act and hospital records were submitted to the RAF in 2021.
[11] Regarding negligence, it is trite the slightest degree of negligence suffices to
satisfy the requirements of negligence under section 17(1) of the Act and
consequently to hold the RAF accountable and liable. The defendant has not placed
any version before this court to challenge the plaintiff’s contention that he was a
pedestrian who was a victim of a hit - and - run motor collision caused by the insured
motor vehicle.
[12] 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
he would have occupied had the wrongful act not occurred. Authorities such as
Southern Insurance Association Ltd v Bailey NO 1 guide the court in assessing fu ture
loss of earnings, emphasising the use of actuarial calculations tempered by judicial
discretion.
[13] The expert reports, which are 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 for damages.
Orthopaedic Surgeon
[14] Dr J. Breytenbach examined Mr Sibeko on 25 May 2023 in relation to the
injuries he sustained during the motor collision. His diagnosis included a head injury,
a healed double fracture of the left tibia with good alignment, but 1cm shortening of
the left leg. The internal fixation causes pressure, pain and surgical scarring. The left
knee shows intra-articular cartilage damage with pain and loss of movement.
[15] Dr Breytenbach concluded that Mr Sibeko’s residual physical ability falls
within the “unable to perform even sedentary work” category. He does not meet the
physical requirements of his job, which fall in the heavy physical demand level. His
injuries have reduced his capacity to engage in manual occupations with the same
1 1984 (1) SA 98 (A)
ease and productivity a s he could before the accident, as well as his overall daily
functioning, given his chronic pain.
Occupational Therapist
[16] Ms. C. Sivhabu evaluated Mr Sibeko on 18 April 2024. The assessment
included structured interviews, direct observation, clinical judgment and standardised
functional tests. The plaintiff was unable to perform even sedentary-level work due to
severe pain in the left lower limb and moderate to severe functional deviations which
resulted in functional limitations.
[17] Ms Sivhabu r eported that Mr Sibeko exhibited severe pain of the left lower
limb and moderate to severe deviations. He has suffered a decline in physical
function and loss of workability. His overall level of work falls within an “unable to
perform even sedentary level of work range”. The report concluded that with
rehabilitation and psychosocial intervention, he may be able to experience
minimisation of his pain and deviations with partial restoration of function. However,
he will never be able to return to the open labour market to assume a job within his
area of experience.
Industrial Psychologist
[18] Mr. Sebastian Clifton, an industrial psychologist, assessed Mr. Sibeko’s pre -
and post -accident earning capacity, considering his 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 4 000.00 per month.
[19] Based on the collateral information, and the occupational and psychological
assessments, Mr. Clifton opined that Mr. Sibeko would likely have progressed in his
career, gaining enough exposure and experience to move from his pre - accident
earnings towards the median to higher end of the relevant market -related salary
range for an unskilled worker.
[20] Post-accident, his participation in the open labour market has been restricted.
His working and earning capabilities have been diminished, and he has remained
unemployed since the accident. His physical and cognitive impairments have
severely compromised his employability. He will struggle to secure work and could
be expected to earn towards the lower end of the relevant market related salary
range for unskilled workers.
[21] He is now considered uncompetitive in the open labour market, even in
positions requiring minimal skill or physical effort. His chronic pain, emotional
instability, cognitive deficits, and reduced physical ability significantly limit his ability
to obtain or maintain employment. He may find it difficult to maintain work and
generate meaningful earnings on a consistent basis.
[22] The actuarial assessment from Tsebo actuaries, which was done: by Karidza
and Miya, was based on the opinions of the other experts. They quantified the
plaintiff’s total past and future loss of earning s at R1,065,236.00 (One million, sixty -
five thousand, two hundred and thirty -six rand) before judicial adjustment of
contingencies.
Evaluation
[23] The merits of the matter have been fully established, with liability determined
at 100% in favour of the plaintiff. 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 repor t corroborates the occurrence of the collision, and the
hospital records substantiates the injuries sustained, supporting the plaintiff’s version.
[24] The Court notes that while the plaintiff alleges the collision occurred on 6
March 2021 and that he w as conveyed by ambulance to hospital immediately
thereafter, the hospital records reflect an admission date of 7 March 2021. I am
satisfied that this discrepancy is not material, as hospital records often reflect the
satisfied that this discrepancy is not material, as hospital records often reflect the
formal administrative admission date ra ther than the precise time of arrival. There
has been substantial compliance with the medical records which confirm injuries
consistent with the plaintiff’s account. This aligns with the approach adopted in Road
Accident Fund v Kerridge 2 and Ntandoyenkosi v RAF3, where minor inconsistencies
of this nature do not undermine the credibility of the plaintiff’s version where the core
facts are corroborated.
[25] The quantification of loss proceeds based on full liability, with contingencies
applied only to re flect 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 l oss of earnings, as well as the broader impact of
the injuries sustained.
[26] Having considered the plaintiff’s account of the accident, the Court is satisfied
that the insured driver was negligent. The evidence establishes negligence on the
part of the insured driver who was undeniably at least 1% negligent regarding the
accident.4 I am satisfied that the defendant is 100% liable for damages suffered by
the plaintiff as a result of the motor vehicle accident.
[27] When evaluating the damages, the plaintiff’s injuries were not disputed, and
the opinions expressed by the various expert witnesses are admitted uncontested. I
am satisfied that, but for the accident, Mr Sibeko would have continued working as a
construction worker at Martins Concrete Products or obtained similar employment
elsewhere. As a result of the accident, however, he has been left with physical,
cognitive, and emotional impairments that have materially compromised his
functional abilities. These deficiencies have significantly reduced his employment
prospects and diminished his earning capacity as he is no longer able to compete
equally with his peers in the open labour market.
[28] I am not persuaded, however, that Mr. Sibeko is permanently u nemployable.
Whilst his ability to engage in work has been adversely affected, he retains a degree
2 (1024/2017) [2018] ZASCA 151
3 (2023/116432) [2025] ZAGPJHC 466
2 (1024/2017) [2018] ZASCA 151
3 (2023/116432) [2025] ZAGPJHC 466
4 See “Van der Walt and Midgley and Cases” Vol 1 par 96, Cooper: Delictual liability
in motor law; Kabini v RAF (26209/2018) [2020] ZAGPPHC 100 (19 February 2020)
at para 21.
of residual earning potential. His capacity to generate income is limited but not
entirely extinguished.
[29] Contingency deductions are applied, to accou nt for the uncertainties and
vicissitudes of life that may affect a claimant's future financial position. 5 Robert
Koch's work is often used to determine the contingency deductions, typically 5% for
past loss and 15% for future los s. Courts are however not bound by these figures
and may adjust them based on the specific facts of the case. Koch "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 ye ar to retirement, resulting in a 15%
deduction for a person between 30 – 45 years. I intend to deviate from this,
considering the plaintiff’s risk factors and current employability status.
[30] With regard to quantum and loss of earnings, the plaintiff’s actuary calculated
the present value of total loss of earnings R1 065 236.00 (one million, and two
hundred and sixty- five thousand two hundred, sixty -five thousand, two hundred and
thirty six rand) using a past contingency of 5% and future contingencies of 10% and
35%. According to Koch’s Quantum Yearbook 6, a pre- morbid contingency of 15% is
the baseline contingency guideline for individuals aged 30–45.
[31] 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 due to the fluctuating socio -economic risks inherent in the labour market,
particularly for plain tiff without tertiary education and employed in a physically
intensive role. Furthermore, the grade ten certificate was never produced to any of
the experts. For the post-accident scenario, an even greater deduction is appropriate
to reflect the plaintiff’ s diminished competitiveness, reduced functional capacity, and
to reflect the plaintiff’ s diminished competitiveness, reduced functional capacity, and
the uncertainty surrounding his residual earning potential. Although Mr Sibeko is not
permanently unemployable, his ability to secure and sustain gainful employment is
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)
6 The Quantum Yearbook, by Robert J Koch, 2024, page 125
materially constrained. The higher post-accident contingency appropriately accounts
for this reality.
Conclusion
[32] The actuary has applied a 10% contingency to the plaintiff’s future uninjured
earnings, and a 35% to future injured earnings. I am not persuaded that these
contingencies are justified. I am satisfied with the past contingency of 5% as the past
is relatively certain. I have considered the plaintiff’s serious orthopaedic impairments,
limited education of matric, diminished employability at the lower end of unskilled
work, as well as no grade ten certificate was produced, or any bank statements and I
find that a 20% contingency for pre -accident (uninjured) earnings and 35% post -
accident (injured) earnings is just, equitable and fair. Consequently, the plaintiff’s
past and future loss of income is calculated as follows:
Category Income (R) Contingency
%
Contingency
amount
Adjusted
income
Past (uninjured) 178,416.00 5% 8,920.80 169,495.20
Future
(uninjured)
1 337,728.00 20% 267,545,60 1,070,182,40
Future injured 474,175.00 35% 165,961,25 308,213.75
Future loss
(net difference)
761, 968.65
Total loss
(past and future)
931,643.85
Order
[33] In the result, I make the following order:
33.1. The application in terms of Rule 38(2) is granted.
33.2. The defendant is ordered to compensate the plaintiff 100% of his
proven damages.
33.3. The defendant is ordered to make the following payment to the plaintiff
a capital amount of R 931,643.85 (nine hundred and thirty -one thousand, six
hundred and forty -three rand and eighty -five cent) in respect of past and
future loss of income.
33.4. The issue relative to the general damages is postponed sine die
33.5. The defendant shall furnish 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, treatment of or rendering of a
services, or goods to her aris ing from the injuries sustained in the motor
vehicle collision of 6 March 2021, after such costs have been incurred and
upon proof thereof.
33.6 The total capital amount referred to in paragraph 33.3 above is payable
within hundred and eighty (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: Mkwanazi MI &Associates Attorneys Inc
Bank: FNB
Account Type: Attorneys Trust Account
Account Number: 6[…]
Branch code 210554
REF: Ms. K Nkadimeng /mva / 3616/21
33.7. No interest will be payable in respect of the capital amount referred to
in paragraph 2 above 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.
33.8. 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
expert reports, medico -legal reports , actuarial calculations, and counsel’s
fees, together with costs of preparation and attendance at court, if any.
33.9. If costs are not agreed, the plaintiff shall serve a notice of taxation on
the defendant. Following taxation or settlement of the cost s, the defendant
shall make payment within fourteen (14) days.
33.10. No interest will be payable on the costs referred to in paragraph seven,
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.
33.11. No reservation fees shall be paid to experts for the trial as the trial
proceeded in terms of Rule 38(2);
33.12. The parties have entered into a 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: 21 October 2025
Date of judgment: 05 January 2026
For the plaintiff: Adv. Rutendzo Matiza
(Tel: 073 063 7448 / E-mail: <advmatizarutendo@gmail.com>
Instructed by: Mkwanazi MI & Associates
Ms. K. Nkadimeng (Tel: 083 522 0907/
E-mail: keba@mkwanaziandasssociates.co.za
For the defendant: No appearance