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2026
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[2026] ZAGPJHC 33
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Mashele v Road Accident Fund (2021/30859) [2026] ZAGPJHC 33 (22 January 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
No: 2021/30859
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
22/01/2026
IN
THE MATTER BETWEEN:
MASHELE,
HORISANI DON
PLAINTIFF
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MOSTERT
AJ
1.
In this matter I handed down a Judgment on
the 13
th
of October 2025 dismissing the Plaintiff’s claim for loss of
earnings and earnings potential.
2.
The Plaintiff filed an application for
leave to appeal. The most important points of the application
for leave to appeal were
the following:
2.1
No costs were awarded in favour of the
Plaintiff for appearance in the RAF Default Court for the week of 2
September 2025.
2.2
The Court granted an application in terms
of Rule 38(2) therefore admitting into evidence affidavits deposed to
by the Plaintiff’s
experts in the matter, meaning that the
court was bound to accept the opinions of the experts.
2.3
The Court failed to understand the role of
the actuary.
2.4
The Court ignored the admitted evidence of
the Plaintiff’s experts and did not understand the argument
made in respect of
the contingency deductions.
2.5.
There is a reasonable prospect that a
different Court will come to a different conclusion.
3. For a number of
reasons, I do not agree that the Plaintiff’s submissions are
sound.
4.
The fact that an application in terms of Rule 38(2) was granted does
not mean that a Court is duty bound to accept the
evidence of a
particular witness. All that such application being granted
means is that it is not necessary for a particular
litigant to call
such witness to give evidence
viva voce
,
the witness’s evidence is evaluated purely on affidavit.
It is still for the court to decide whether to accept the
opinion
expressed by the witness or not.
5. The function of
the actuary in motor vehicle collision matters is to place
contingencies before a court as to what reduction
or increase needs
to be applied to losses that the victim of a motor vehicle collision
personal injury has suffered. He deals with
complicated mathematical
calculations Invariably the actuary bases his calculation on the
opinion or factual conclusions of other
experts. The court is not
bound by the calculations that the actuary provides. See Visser &
Potgieter
Law of Damages
First Edition p 367. See also
Legal
Ins v Botes
1963 (1) SA 608
A. The Court is entitled and in fact
duty-bound to evaluate the conclusions of the actuary.
6. In the instant
case the Plaintiff has failed to prove causation, namely failed to
prove that the accident in which he suffered
injury to his two wrists
caused the amount that he claimed for future loss of income. At
the time of the accident the Plaintiff
had a successful career at the
bank. The evidence of Talmud does not establish that in his farming
business the Plaintiff suffered
financial damage. The “but
for” test that is frequently applied in delictual matters was
not satisfied.
7.
As far as costs are concerned the Plaintiff is not without recourse.
The only cost that was not allowed was the Plaintiff’s
costs
for appearances in the RAF Default Court for the week 2 September
2025. All the other expenses incurred by the Plaintiff
are still
alive insofar as he incurred such costs to pursue his claim for
general damages.
8. The test for
whether leave to appeal should be granted is set out in
Section
17(1)(a)(i)
of the
Superior Courts Act, 10 of 2013
namely whether
there is a prospect of another court coming to a different
conclusion, i.e. whether there exists a reasonable prospect
of
success. I am not convinced that there is a reasonable prospect
that a different court will come to a different conclusion.
ORDER
9. The application
for leave to appeal is dismissed with costs.
DNH
MOSTERT
ACTING
JUDGE OF THE
HIGH
COURT JOHANNESBURG
This
Judgment is handed down electronically by circulation to the
Plaintiff’s Legal Representative and the Defendant by email,
publication on Case Lines. The date for the handing down is deemed 22
January 2026
Date
of appearance: 27 November 2025
Date
Judgment delivered: 22 January 2026
Appearances
For
the Plaintiff: Adv N Makopo
Instructed
by: Levin Tatanis Inc
For
the Defendant: Ms Booysens (RAF State Attorney)