IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
THABISO TLATSANA
and
ROAD ACCIDENT FUND
Coram: WESSELS AJ
Date of hearing
Date of judgment
Not Reportable
CASE NUMBER:3884/24
PLAINTIFF
DEFENDANT
:3 February 2026
: 11 February 2026
2
Delivered: This judgment was handed down electronica lly by circulation to the
parties' representatives via email. The date and time for the hand-down of the
judgment is deemed to be 14h00 on 11 February 2026.
Summary: Delict - Action for damages - Loss of earning capacity -
Motor veh icle accident - Assessment of cont ingencies - Princ iples in
Southern Insurance Association Ltd v Bailey NO app lied - Co urt rejecting
35% post-morbid contingency in favour of 20% deduction in absence of
unique risk factors - Practice - Evidence by way of affidavit - Rule 3 8(2).
ORDER
The defendant is ordered to pay the plaintiff the amount of Rl33,473
as damages in the form of past and fut ure loss of income.
11 The defendant is ordered to pay interest on the judgment debt
(mentioned in paragraph 1 of this order), which shall accr ue at the interest
rate of 11. 75% per annum from 14 days after the date of this order to the date
of final payment.
111 The defen dant is ordered to pay the plaintiffs costs of suit as between
party and party on Scale A.
3
JUDGMENT
Wessels AJ
Introduction
[ 1] This is a defau It judgment emanating from a claim instituted by the
plaintiff against the defendant for damages suffered as a result of a motor
vehic le accident.
Facts
[21 On l July 2023. an unknown motor vehicle ran over the plaintiff , who
was at the time a pedestrian. As a resull of this accident , the plainliff was
admitted to the Mahikeng Provincial Hospital, where it was established that
the plaintiff had sustained a segmental fracture of the left tibia and fibula.
Following the accident, surgical procedure s were performed on the plaintiff.
An intramedu llary nail (a metal rod inserted into the marrow canal of long
bones such as the femur or tibia to stab ilise fractures) and locking screws
were inserted into his left tibia. According to the evidence of the plaintiff 's
orthopaedic surgeon , the plaintiff suffered severe acute pain for about two
weeks, which subsided after a period of four weeks. Still, he continues to
suffer discomfort in the form of chronic pain in his left leg.
[3] The plaintiff was 30 year s old at the time of the accident. Before the
accident, he was a self-employed street vendor earning R3200 per month and
had no pre-existing medical conditions or injuries. His highest educational
4
qualification is matric. After the accident, the plaintiff found employment as
a temporary driver earning Rl500 per month.
[ 4] The heads of damages set out in the plaint iff's particulars of claim are
general damages, as well as past and future loss of earning capacity. The
merits of the claim had been conceded, and general damages were settled .
Only the adjudication of the plaintiff's past and future loss of earning capacity
is to be determined.
[5] The plaintiff served a notice of bar on the defendant's attorneys on 27
February 2025, which the defendant ignored. Against this backdrop, the
appl ication for default judgment was enrolled for a hearing. The plaintiff
brought an app lication in terms of Ru le 38(2), seeking leave from this Court
to adduce the evidence of his medical experts by way of affidavit, which was
granted.
Application of lega l principles
[6] The pla intiff succeeded in estab lishing that he has a serious long-term
impairment and loss of bodily funct ion that wou ld impair his ability to
maintain prolonged standing, walking, and Ii-fling heavy items, all directly
associated with the physical requirements of street vending.
[7] Although the plaint iff's occupational therapist recommended future
therapy and assistive devices, a case had not been made out for such a claim
in the papers before me. Plaintiff's only remaining relief was damages in the
form of past and future loss of earning capacity.
5
[8] The plaintiff's act uary arrived at a median figure for semi-sk illed labour
of R86, 142 per annum, with a retirement age of 65 yea rs. The past loss of
incom e was calcula ted at R59,911 . The expert evidence adequately supports
this figure.
[9] In calculating the future loss of earni ng capac ity, plaintiff's actuary
applied a 1 5% pre-morbid contin gency deduction mounting to a net value of
income but for the accident of R 1,250,551. In calc ulating the future loss of
income, consi dering t he accident, the plaintiff's actuary applied a 35% post
morbid contingency deduction amounting to a net value of income having
regard to the accide nt of R956,304. In calc ulatin g the net future loss of
incom e, the plaintiff 's actuary arr ived at a future loss of income of R294,24 7.
[ 1 O] Essentia lly, a contingency 1s a flexible, discretionary adjustment to
actuarial damages that accounts for uncertainties and risks related to human life
or specific to the plaintiff. These factors may have affected a plaintiff 's income,
but cannot be precisel y measured.
[11] In Southern Insuranc e Association v Bailey' the Supreme Court of Appea l
defined contingencies as follows:
'One of the elements in exerc 1smg that discretion is the making of a discount for
"contingencies" or the "vicissitudes of life". These include such matters as the possibil ity that
the plaintiff may in the result have less than a "normal" expecta tion of life; and that he may
expe rience periods of unemployment by reason of incapacity due to illness or accident, or to
labour unrest or general econo mic condition s. The amount of any discount may vary, depending
upon the circumstances of the case.'
1 Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) 116 G-H
6
[12] Factors s uch as the severity of the injury, labour market vulnerability, the
need for early retirement, risks of future medical complications, and loss of job
security are considered.
[ 13] The plaintiff's counse l cou ld not identify any unique factors that would
justify apply ing a higher-than-normal cont ingency to the plaintiff's claim for
loss of future earning capacity. As a result, no basis exists to depart from
standard contingency sca les based on the severity of the inju ry, labour market
vulnerab ility, or the risk of future medical complications and loss of job
secur ity to the plaintiff's future income capacity.
[ 14] The plaint iff's actuary calculated the pre-morbid net value of the
plaintiff's future loss of income as R 1,250,551, to which a 15% cont ingency
deductio n had been app lied. Having considered the opinions of the plaintiff's
expert wit nesses, I coul d not find any justification for applying a cont ingency
on the plaintiff's post- morbid loss of income of greater than 20%, even taking
into account the plaint iff's age. This results in the following calculation:
Gross post- morbid value
20% Cont ingency deductio n
Tota l
Rl,471,237
R294,247
Rl, 176,990
[ 15] To calculate the future loss of the plaintiff, the post-morbid loss of
inco me is deducted from the premorbid loss of income.
[ 16] In the final ana lysis, having applied the principles as set out above, the
plaint iff is entit led to Rl33,472 as damages in the form of his past and future
loss of income.
7
Order
(17] Resultantly, the following order is made:
1. The defendant is ordered to pay the plaintiff the amount of R 133,473
as damages in the form of past and future loss of income.
11 The defendant is ordered to pay interest on the judgment debt
(mentioned in paragraph 1 of this order), which shall accrue at the interest
rate of 11.75% per annum from 14 days after the date of this order to the date
of final payment.
111 The defendant is ordered to pay the plaintiffs costs of suit as between
party and party on Sca le A.
M WESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
Counsel for plaintiff
Instructed by
:Adv KG Moiloa
: Mokhetle Attor neys
:Mahikeng