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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 87131/ 19
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 21/01/2026
SIGNATURE:
In the matter between:
ROSEMARY MOKOENA PLAINTIFF
Obo
Minor
and
THE ROAD ACCIDENT FUND DEFENDANT
This judgment was handed down electronically by circulation to the parties'
legal representatives by email. The date of hand down is deemed to be 19
January 2026.
JUDGMENT
SEIMA, AJ
"He who profits by another's misfortune through deceit is no less a thief
than one who steals with his hands."
1. The Road Accident Fund, once conceived as a bulwark of social justice and
restorative compensation, now stands beleaguered by systemic mismanagement,
fiscal insolvency, and administrative opacity. Its failure to honour claims timeously ,
and its inability to litigate effectively have culminated in a surge of default judgments.
Yet, in this climate of dysfunction, legal practitioners as officers of the court and
custodians of ethical advocacy must resist the temptation to convert procedur al
lapses into windfall enrichment. The pursuit of justice must not be distorted into a
quest for overnight affluence. Inflated claims, speculative damages, and
opportunistic litigation risk undermining the very integrity of the legal system and
eroding pu blic trust in the profession. It is precisely in moments of Institutional
fragility that the ethical compass of the legal fraternity must remain most resolute: to
vindicate rights without exploiting weakness, and to restore justice without
compromising its moral foundation.
2. I am opening with statement as I am constrained to record its displeasure at
the manner in which the Plaintiff's legal representatives have pursued this action.
Legal practitioners are duty -bound to furnish proper and responsible ad vice to their
clients, and to ensure that claims advanced before the Court are supported by
admissible, cogent, and reliable expert evidence.
3. The Plaintiff is a minor child whose mother has instituted a claim against the
Road Accident Fund arising from injuries sustained when the child, a pedestrian,
was struck by a motor vehicle bearing registration number S[...] on 09 May 2018.
4. The issue of negligence and liability has been settled between the parties.
5. Counsel for the Plaintiff has informe d the Court, both in oral submissions and
5. Counsel for the Plaintiff has informe d the Court, both in oral submissions and
in her heads of argument, that the matter proceeds on default basis solely in respect
of the issue of loss of earnings and earning capacity, with the issue of general
damages postponed sine die.
6. The amount claimed for the loss of earning capacity is in the amount of R6
710 000.00 (Six Million Seven Hundred and Ten Thousand Rand)
7. It is trite that the onus rests upon the Plaintiff to establish, on a balance of
probabilities, the extent of any loss of earni ngs or earning capacity attributable to the
accident.
8. The incidence of the onus is a matter of law. The general rule is that the
plaintiff bears the onus of establishing the facts upon which the cause of action is
based.
9. The plaintiff must prove th e damages claimed as a result of the accident. The
evidentiary burden rests upon the claimant to establish the causal link between the
accident and the alleged sequelae.
10. In PJ Schwikkard et al in his work titled Principles of Evidence, 5 th Edition
2023 states this principle is formulated as follows:
"In civil cases the burden of proof is discharged as a matter of probability. The
standard is often expressed as requiring proof on a "balance of
probabilities" but that should not be understood a s requiring that the
probabilities should do no more than favour one party in preference to the
other. What is required is that the probabilities in the case be such that, on a
preponderance, it is probable that the particular state of affairs existed."
11. In Miller v Minister of Pensions 1947 2 All ER 372, Lord Denning articulated
the civil standard of proof as follows:
"It must carry a reasonable degree of probability but not so high as is required
in a criminal case. If the evidence is such that the tribunal can say, "we think it
is more probable than not, but i f the burden is discharged, but if the
probabilities are equal, it is not.”
12. In terms of s 17(1)(a) of the Road Accident Fund Act ('the RAF Act') and
regulations promulgated thereunder, the defendant is liable to compensate victims of
motor vehicle accidents arising from the driving of a motor vehicle where the i dentity
of the owner or the driver has been established. The relevant provision provides:
"17. Liability of Fund and agents
(1) The Fund or an agent shall-
(a) subject to this Act, in the case of a claim for compensation under this
section arising from the driving of a motor vehicle where the identity of the
owner or the driver thereof has been established;
be obliged to compensate any person (the third party) for any loss or damage
which the third party has suffered as a result of any bodily injury to himself or
herself or the death of or any bodily injury to any other person, caused by or
arising from the driving of a motor vehicle by any person at any place within
the Republic, if the injury or death is due to the negligence or other wrongful
act of the driver or of the owner of the motor vehicle or of his or her employee
in the performance of the employee's duties as employee."
13. The minor child, sustained the injuries to his left lower leg, he was clinically
examined by the Orthopaedic Surgeon, Dr Kumbirai, was found to have sustained a
greenstick fracture of the distal tibia. The nature of the injury, while duly noted, is of a
relatively minor character and does not present with features of seriousness or long -
term sequelae.
14. The minor child's orthopaedic injury, being a greenstick fracture of the distal
tibia, was conservatively managed by the treating Orthopaedic Surgeon, Dr Kumbirai,
through immobilisation in plaster of Paris, The child was discharged from hospltal
on the very same day, a fact which in itself is indicative of the limited gravity of the
injury.
15. Subsequent follow-up confirms that the fracture has united, with radiological
corroboration provided by Radiologist Mkhabela and Indunah Radiologist. The
orthopaedic evidence is unequivocal: the injury is neither serious nor permanent, and
is expressly categorised by the treating specialist as non -serious. No residual
deformity, functional limitation, or long -term sequelae are anticipated. The injury is
consistent with a transient orthopaedic insult, fully resolved without complication, and
incapable of impairing the minor's developmental trajectory or future occupational
capacity.
16. In consequence, the Plaintiff's injuries fall squarely within the category of
minor, non-serious orthopaedic trauma, and do not warrant elevation to the realm of
permanent or disabling harm.
17. The Court further notes the findings of the Orthopaedic Surgeon, corroborated
by the Radiologist, that there were no anomalies in the right forearm o n clinical
examination and that the left tibia was normal. These objective medical findings
reinforce the absence of any structural or neurological sequelae attributable to the
accident.
18. The Court has considered the report of the Occupational Therapi st. It is
expressly noted therein that occupational therapists are not experts in the evaluation
of psychosocial problems, and that a detailed assessment of cognition, affect and
cognitive abilities properly falls within the domain of a Clinical Psychologist.
19. The Occupational Therapist records no cognitive challenges in respect of the
minor child, and confines his findings to the fracture of the left tibia, as corroborated
by the Orthopaedic Surgeon and Radiologist. That fracture was minor, treated
conservatively with plaster of Paris, and is clinically normal. Notwithstanding these
findings, the Occupational Therapist opines that should the minor child fail to attain
Grade 12, he may be restricted to sedentary or light work. The Court is una ble to
Grade 12, he may be restricted to sedentary or light work. The Court is una ble to
discern any evidentiary basis for this conclusion. In the absence of cognitive
impairment, neurological sequelae, or persisting orthopaedic disability, the
suggestion that the minor child's vocational potential is compromised lacks
foundation. The C ourt accordingly accords limited weight to the Occupational
Therapist's speculative vocational opinion, and relies instead upon the consistent
medical evidence and school reports, which demonstrate both physical recovery and
scholastic improvement.
20. The court accepts that Dr Thoko Mngunl, the Educational Psychologist,
correctly records that the minor child was discharged from hospital on the same day
of the accident and was unable to attend school for three days thereafter. It is further
noted that the accident occurred while the child was in Grade 1, and that he has
since progressed very well in his scholastic achievements. Dr Mnguni states that she
was informed by the minor child's mother of alleged problems in the right forearm.
This assertion is unsupported by any expert evidence or hospital records, and is
contradicted by the Orthopaedic Surgeon and Radiologist, who fo und the forearm
and left tibia to be clinically normal.
21. Dr Mnguni seeks to attribute poor handwriting and tiredness in writing to this
alleged forearm difficulty, which the Court finds to be an absurd and unfounded
inference. She further speculates that the minor child may have poor fine motor skills
or experiences pain in writing, yet no medical or occupational evidence substantiates
such a claim. The psychologist also records that the child made errors in long
division and multiplication, but fails t o establish any nexus between these mistakes
and the accident. In the absence of demonstrable cognitive impairment, neurological
sequelae, or orthopaedic disability, the Court finds that Dr Mnguni's attribution of
scholastic difficulties to the accident is speculative, without causal foundation, and
cannot be accorded probative weight.
22. The Court is further fortified in its rejection of the Educational Psychologist's
opinion by the objective evidence contained in the school reports. These records
demonstrate not a decline, but in fact an improvement in the minor child's scholastic
performance post -accident. The Occupational Therapist expressly records no
performance post -accident. The Occupational Therapist expressly records no
cognitive impairment or fall -out. Neither the Neurosurgeon nor Neurologist has
furnished any report suggesting brain injury, and the Orthopaedic Surgeon, on the
mother's account, confirms the absence of neurological sequelae. In the face of
consistent medical and occupational evidence disclosing no cognitive sequelae, and
contemporaneous school reports ev idencing academic improvement, the
Educational Psychologist's attribution of diminished scholastic potential to the
accident is speculative and without nexus. The Court accordingly finds that the report
is tailored to suit the plaintiff's damages narrative and cannot be accorded probative
weight. Greater reliance is placed upon the objective medical and occupational
findings, corroborated by the school records, which collectively demonstrate that the
minor child's educational trajectory has not been impaired by the accident.
23. The Court is required to evaluate the credibility and probative value of expert
evidence. It is trite that expert opinion must be grounded In fact and demonstrate a
clear causal nexus between the alleged sequelae and the conclusions drawn. In M R
v Road Accident Fund (Case No. 2457/2017, Free State Division), Opperman J
emphasised that expert evidence must be based on facts proved before the court
and the reasoning which led to the conclusion must be disclosed. An expert is not
entitled to merely state a conclusion without indicating the factual basis and the
reasoning which led to it. And he stated:
"[17] It is vital that the evidence pinioned by an expert is solid. "Solid"
supposes veracity of the facts of the particular case, expe rtise on the issue
and an opinion that makes legal sense based on the facts combined with the
expertise.
[18] In Southern Insurance Association v Baily NO 1984 (1) SA 98 (A) that
was supported in Adv Johan Malherbe Kilian N.O Plaintiff in his capacity as
Curator Ad Litem to Jansen Van Rensburg: Andre Abraham Petrus Le Grange
v Road Accident Fund, The High Court of South Africa (Gauteng Division,
Pretoria) Case No. 34116/2016 Judgement 15/9/2016 Gauteng Division,
Pretoria it was held that:
"[1] Any enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augurs or oracles. All that the court can
benefit of crystal balls, soothsayers, augurs or oracles. All that the court can
do is to make estimates, which is often a very rough estimate, of the present
value of loss. It has open to it, two possible approaches: One is for the judge
to make a round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter of guesswork, a blind plun ge into the
unknown. The other is to try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the evidence. The validity
of this approach depends of course upon the soundness of the assumptions,
and these may vary from the strongly probable to the speculative.
[2] It is manifest that either approach involves guesswork to a greater or
lesser extent. When it comes to scanning the uncertain future, the Court is
virtually pondering the imponderable, but must do the best it can, on the
material available even if the result may not inappropriately be described as
an informed guess, for no better system has yet been devised for assessing
general damages for future loss.
[6] I must however emphasise that because of the speculative nature of the
enquiry, when parties elect to approach the court on a stated case and lump
sum of money is claimed, as in the present case, R6 653 636.00 from the
public coffers, it is incumbent on the parties to place before the court sufficient
evidence in the form or admissions and other admitted format.”
[19] The case of National Justice Compania Naviera S.A v Prudential
Assurance Co Ltd 1993 (2) Lloyds Reports 68 -81 set out the duty and role of
an expert.
"1. Expert evidence presented to the court should be, and should be seen to
be, the independent product of the expert uninfluenced as to form or content
by the exigencies of litigation.
2. An expert witness should provide independent assistance to the court
by way of objective, unbiased opinion in relation to matters within his
expertise. An expert witness should never assume the role of an advocate.
3. An expert witness should state the facts or assumptions upon which his
opinion is based. He should not omit to consider material facts which could
detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or
issue falls outside his expertise.
5. If an expert opinion is not properly researched because he considers
that insufficient data is available, then this must be stated with an indication
that the opinion is no more than a provisional one. In the case of where an
expert witness who has prepared a report could not assert that the report
contained the truth, the whole truth and nothin g but the truth without some
qualification, that qualification should be stated in the report."
[20] The above duties were reaffirmed in Nicholson v Road Accident Fund
(11453/2007) 2012 SGHC (unreported):
"A number of expert witnesses called on behalf of the plaintiff overstepped the
mark by attempting to usurp the function of the court and to express opinions
based on certain facts as to the future employability of the plaintiff and to
express views on probabilities. It is the function of the court to ba se its
inferences and conclusions on all the facts placed before it. “
[21] In Mathebula v RAF (05967/05) [2006] ZAGPHC it was stated that:
"An expert is not entitled, anymore more than any other witness, to give
hearsay evidence as to any fact, and all facts on which the expert witness
relies must ordinarily be established during the trial, except those facts which
the expert draws as a conclusion by reason of his or her expertise from other
facts which have been admitted by the other party or establish ed by
admissible evidence.”
[22] In Schneider NO & Others v AA & Another 2010 (5) 203 WCC, which
was quoted in the Nicholson judgment, Judge Davis stated at paragraph
211J-212B:
"In short, an expert comes to court to give the court the benefit of his or her
expertise. Agreed, an expert is called by a particular party, presumably
because the conclusions of the expert, using his or her expertise, are in
favour of the line of argument of the particular party. But that does not absolve
the expert from providing the court with as objective and unbiased an opinion,
based on his or her expertise, as far as possible. An expert should not be a
hired gun who dispenses his or her expertise for the purpose of a particular
case. An expert does not assume the role of an advocate, nor gives evidence
which goes beyond the logic which is dictated by the scientific knowledge
which that expert claims to possess.“
[23] In RAF v Zulu [2011] ZASCA 223 the court dealt with the approach to
expert evidence that has to be adopted by the courts. The court reaffirmed the
principles set out in Michael v Linksfield Clinic (Pty) Ltd 2001 (3) SA 1188
(SCA) that:
"What is required in the evaluation of such evidence is to determine whether
and to what extent their opinions advanced are founded on logical reasoning.”
[24] The common theme is that courts must jealously protect their role and
powers. Courts are the ultimate arbiters in any court proceedings. The facts
that caused the expert opinions in this case are vital. It was supp lied by the
plaintiff.
[25] It is not for the opposing party to prove the true facts of the plaintiff's
case; it is the onus of the plaintiff.
[26] Only if the expert's opinion based on the correct facts is questioned
could it be expected that a countering expert should be called. It is the
expertise that will then be at issue and not the accuracy of the facts on which
it is based. Counsel must identify and separate the two aspects. The
argument of the actuary in this case that the failure to call an expert in the
defendant's case is tantamount to a default judgment is wrong. It is not the
expert's veracity that is in dispute; it is the facts on which he based his
calculations. Experts must assist the court not a party to the dispute.
24. Applying this principle, the Court finds that the Educational Psychologist's
opinion is speculative. Dr Mnguni correctly records that the minor child was
discharged from hospital the same day, missed three days of school, and has since
progressed well in scholasti c achievements. However, her reliance on the mother's
report of right forearm problems is contradicted by the Orthopaedic Surgeon and
Radiologist, who found no anomalies. The attribution of poor handwriting, tiredness
in writing, and mathematical errors to the accident is unsupported by medical or
occupational evidence and lacks causal nexus.
25. Similarly, the Occupational Therapist expressly acknowledges that
occupational therapists are not experts in psychosocial evaluation. He records no
cognitive chal lenges, notes only the minor fracture of the left tibia (treated
conservatively and clinically normal), yet speculates that the child may be restricted
to sedentary work if Grade 12 is not attained. This conclusion is without evidentiary
foundation.
26. The Court is guided by the principle articulated in MR v Road Accident Fund
that the duty of an expert witness is to assist the court. An expert must provide
independent assistance to the court by way of objective, unbiased opinion in relation
to matters within his expertise.
27. Measured against this standard, the Educational Psychologist's and
Occupational Therapist's speculative opinions cannot be accorded probative weight.
By contrast, the Orthopaedic Surgeon and Radiologist provide consistent, objectiv e
findings: no anomalies in the right forearm, normal left tibia, and no neurological fall -
out. The school reports further demonstrate improvement in scholastic
performance, contradicting any suggestion of diminished educational trajectory.
28. The Court has considered the report of the Industrial Psychologist. His
trajectory and conclusions are premised upon the findings of the Occupational
Therapist and Educational Psychologist. While he cannot be faulted for adopting
those opinions as the foundati on of his assessment, the Court has already found
both reports to be speculative, lacking causal nexus, and without probative value. It
both reports to be speculative, lacking causal nexus, and without probative value. It
follows that the Industrial Psychologist's report, being derivative of those rejected
opinions, cannot stand independent ly. In the absence of reliable underlying expert
evidence, the Court is unable to place reliance upon his conclusions regarding the
minor child's vocational potential.
29. I reiterate the principle governing expert evidence is well established as also
espoused in Road Accident Fund v Kerridge 2019 (2) SA 233 (SCA) that expert
evidence should not be accepted on face value.
"[50] The role of experts in matters such as these and the opinions they
provide can only be as reliable as the facts on which they rely for this
information. Too read ily, our courts tend to accept the assumptions and
figures provided by expert witnesses in personal injury matters without
demure. The facts upon which the experts rely can only be determined by the
judicial officer concerned . An expert cannot usurp the function of the judicial
officer who is not permitted to abdicate this responsibility - the court should
actively evaluate the evidence. Ideally, expert evidence should be
independent and should be presented for the benefit of the court. It is not the
function of an expert witness to advocate the client's cause and attempt to get
the maximum payout, as most seem to believe.15 This problem is
exacerbated by the Road Accident Fund (the Fund) which fails to properly
investigate the true situation of a claimant and is content to rely on projections
and assumptions of experts with no factual basis.''
30. Expert evidence must be based on facts proved before the court and the
reasoning which led to the conclusion must be disclosed. An expert is not entitled to
merely state a conclusion without indicating the factual basis and the reasoning
which led to it.
31. The duty of an expert witness is to assist the court. An expert must provide
independent assistance to the court by way of obje ctive, unbiased opinion in relation
to matters within his expertise.
32. The Court has also considered the report of the Industrial Psychologist. It is
apparent that his trajectory and conclusions are premised upon the findings of the
Occupational Therapist and Educational Psychologist. While the Industrial
Occupational Therapist and Educational Psychologist. While the Industrial
Psychologist cannot be faulted for adopting the opinions of those experts as the
foundation of his assessment, the Court has already found the reports of both the
Educational Psychologist and Oc cupational Therapist to be speculative, lacking
causal nexus, and without probative value. It follows that the Industrial Psychologist's
report, being derivative of those rejected opinions, cannot stand independently. In
the absence of reliable underlying expert evidence, the Court is unable to place
reliance upon his conclusions regarding the minor child's vocational potential. The
report is accordingly accorded no weight.
33. The Industrial Psychologist's report cannot be accorded probative weight. His
conclusions are derivative of expert opinions already rejected as speculative and
unfounded. The Court accordingly accords no reliance to his report and places
weight instead upon the consistent medical evidence, occupational findings limited to
physical as sessment, and school records, which collectively demonstrate that the
minor child's educational and vocational trajectory has not been impaired by the
accident.
34. It is trite that the onus to discharge rests upon the plaintiff. The plaintiff bears
the duty to establish, on a balance of probabilities, that the minor child's educational
and vocational trajectory has been impaired by the accident.
35. I find that the Educational Psychologist's report is speculative and
unsupported; the Occupational Therap ist's vocational opinion is without foundation;
and the Industrial Psychologist's conclusions are derivative of those rejected findings.
By contrast, the medical and radiological evidence, corroborated by school records,
demonstrate recovery and scholastic improvement. The plaintiff has accordingly
failed to prove impairment of the minor child's educational or vocational trajectory.
36. I am compelled to observe that Counsel bears a dual and solemn duty first, to
advance the cause of her client with vigour, yet always in a manner that assists the
Court in its pursuit of justice. In the present matter, however, both in her written
Court in its pursuit of justice. In the present matter, however, both in her written
heads of argument and in oral submissions, Counsel persisted in pressing a case
long bereft of merit. In so doing, she soug ht to elevate the interests of her client
above the broader demands of justice. Such an approach, though zealous,
regrettably amounts to little more than the flogging of a horse long since dead, and
does not serve the proper administration of justice.
37. The Court is unable to comprehend the submission advanced by Counsel, Ms
Sobukwa, that the injuries sustained in the accident have impaired the minor child's
learning and comprehension abilities. The medical evidence before us, as curtailed
in the orthopa edic surgeon's report, records only a Greenstick fracture of the tibia.
No mention is made of neurological sequelae or any other injuries of the nature now
alleged. The subsequent introduction of an arm injury and purported neurological
deficits appears to be an attempt to inflate a claim that is, in truth, non -existent. Such
embellishment is regrettable, for it undermines the integrity of the forensic process
and detracts from the solemn duty of Counsel to assist the Court in the fair
determination of issu es before it. Advocacy must be anchored in evidence; where it
strays into invention, it ceases to serve either the client or the Court.
38. Moreover, Counsel Sobukwa herself conceded that no neurological report
exists to substantiate her assertions. Equal ly, there is no evidence from the
orthopaedic surgeon to support the alleged arm injury. In the absence of such
corroboration, these claims cannot be sustained. The Court is therefore compelled to
regard these submissions as speculative and unfounded, serv ing only to balloon the
Plaintiff's claim without evidentiary foundation.
39. Measured against the afore mentioned standards, I therefore find that the
plaintiff failed to prove the damages claimed as a result of the accident and failed to
discharge the onus upon her. I therefore make the following order:
39.1 The Plaintiff claim for loss of earnings or earning capacity is dismissed.
E SEIMA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 24 October 2025
Judgment delivered: 19 January 2026
APPEARANCES:
Counsel for the Applicant: Ms Sobokwa
Attorneys for the Applicant: Ngqumshe M Attorneys
Counsel for the Respondent: No Appearance
Attorneys for the Respondent: No appearance