IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
ROAD ACCIDENT FUND
and
NICOLAAS CONLEY MIENIE
Reportable/ Not Reportable
Case no: CA & R 40/2024
Appellant
Respondent
Coram: PHA TSHOANE DJP, WILLIAMS and MAMOSEBO JJ.
Heard: 15 September 2025.
Delivered: 6 February 2026.
Summary: Delict - Appeal against quantum - Claim for loss of earnings -
Compensation in tenns of the Compensation for Occupational Injuries and
Diseases Act 130 of 1993 not delictual-Road Accident Fund's liability not to be
adjusted in accordance with Compensation Fund's methods - Court to scrutinize
expert evidence even in the absence of controverting evidence - Court a quo
having fa.tied to do so - Appeal succeeds.
2
ORDER
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced with the following:
"a) The defendant is ordered to pay the plaintiff the sum ofR502 862,06
and costs of suit, which shall exclude the costs already awarded by
Sieberhagen AJ on 10 November 2022.
b) Interest on the amount ofR502 862,06 from 12 May 2023 to date of
payment on the applicable scale."
3. The respondent is to pay the costs of the appeal.
4. The appellant is to pay the costs of the application for condonation.
JUDGMENT
Williams and Mamosebo JJ (Phatshoane DJP concurring)
Introduction
[ 1] This is an appeal, with leave from the Supreme Court of Appeal, against
the whole of the judgment and the following order by Tlaletsi JP, made on
12 May 2023:
" l. The defendant is ordered to pay the plaintiff the sum of RI 050 412,06 which
shall exclude the costs already awarded by Sieberhagen AJ on 10 November
2022.
2. Interests on the amount of Rl 050 412,06 from the date of the order until the
date of payment on the applicable scale,"
[2] The distilled issues to be adjudicated upon by this Court are the following:
2.1. The failure by the appellant to seek condonation for the late filing of
its Notice of Appeal;
2.2. The failure by the appellant to file its heads of argument timeously
and its failure to apply for condonation thereof; and
2.3. The merits of the appeal should 2.1 and 2.2 above be decided in
favour of the appellant.
Condonation
[3] As alluded to, the filing of the notice of appeal was out of time. In simple
terms, the appeal has lapsed and for the appeal court to consider its re
instatement, a substantive application with cogent reasons advanced to
revive it must be filed.
[4] Rule 49(2) of the Uniform Rules of Court stipulates that:
'If leave to appeal to the Full Court is granted the notice of appeal_ shall be delivered to
all the parties within twenty days after the date upon which leave was granted or within
such longer period as may upon good cause shown be permitted.'
[ 5] Leave to appeal was refused by Tlaletsi JP on 08 September 2023. The
appellant, the Road Accident Fund ("the RAF"), approached the Supreme
Court of Appeal (SCA) on petition whereafter leave was granted to the Full
Court of this Division on 26 April 2024. Whereas the RAF was supposed
to deliver the Notice of Appeal by not later than 29 May 2024, it was only
filed on 18 July 2024, almost eight weeks late.
[6] The RAF's explanation for the delay is the following. After the SCA
granted it leave, there was correspondence between the local State
Attorney, Mr Mogano, who had deposed to the affidavit explaining what
had transpired and the efforts he took to enrol the appeal timeously and the
RAF's correspondent attorney m the State Attorney's office,
Bloemfontein, Ms Comelize Cronje, who noted the SCA order. She
notified the Kimberley office thereof, but only emailed the order two
months later. According to her, she struggled with servers and emails. The
RAF's counsel was appointed on 04 September 2024 and consultation with
him only took place on 11 September 2024. Ms Cronje was requested to
draft an affidavit explaining cause of the delay, but she failed to even
respond to the request. This explanation is flimsy and inadequate and does
not meet the trite principle governing condonation. This Court is loath to
penalize the RAF for Ms Cronje's lack of diligence.
[7] Condonation is not to be had merely for the asking. The Constitutional
Court in Van Wyk v Unitas Hospital and Another (Open Democratic
Advice Centre as Amicus CuriaeY held:
"This court has held that the standard for considering an application for condonation is
the interests of justice. Whether it is in the interests of justice to grant condonation
depends on the facts and circumstances of each case. Factors that are relevant to this
enquiry include but are not limited to the nature of the relief sought, the extent and
cause of the delay, the effect of the delay on the administration of justice and other
litigants, the reasonableness of the explanation for the delay, the importance of the issue
to be raised in the intended appeal and the prospects of success."
[8] Regard being had to the facts and circumstances of this case, it appears that
the RAF has reasonable prospe-ets of success on appeal. Additionally, there
are important legal issues inclining this Court to grant the relief sought. It
follows therefore that the appellant should not be, non-suited because it
would be in the interests of justice to grant it condonation. The appeal is
consequently revived.
J 2008 (2) SA 472 (CC) para 20.
5
[9] The second aspect of the RAF's non-compliance pertains to the late filing
of the heads of argument. The RAF's heads of argument reached us after
the respondent, Mr Nicolaas Mienie, hereinafter referred to as "the
plaintiff', had already filed his. The plaintiff made an issue of the late filing
of the heads. The purpose and timeframes pertaining to the filing of heads
are set out in these terms in Rule 49( 15) of the Uniform Rules of Court:
"Not later than fifteen days before the appeal is heard the appellant shall deliver a
concise and succinct statement of the main points (without elaboration) which he
intends to argue on appeal, as well as a list of the authorities to be tendered in support
of each point, and not later than ten days before the appeal is heard the respondent shall
deliver a similar statement. Three additional copies shall in each case be filed with the
registrar."
The Court has not been considerably inconvenienced by the late filing of
the heads. The plaintiff has also not been prejudiced. Accordingly, such
non-compliance with court rules should not detain us, it is accordingly
condoned. Afterall, the heads are for the benefit of the Court.
Merits
[IO] The grounds of appeal can be summarised as follows:
9 .1 That the court a quo erred in accepting the evidence of Mr W H
Boshoff, that the same principles applied by the Compensation
Commissioner in calculating the pension payable to the plaintiff
should be applied in determining the award for loss of earnings.
9.2 The court a quo erred in rejecting the RAF's argument based on the
judgment in Road Accident Fund v Maphiri2.
2 2004 (2) SA 258. (SCA).
6
[ 11] The plaintiff was involved in a work-related motor vehicle accident whilst
on duty on 27 October 2017. He instituted an action for damages against
the RAF as a result of his injuries sustained.
[12] The RAF conceded liability for the plaintiff's proven damages and on 10
November 2022, Sieberhagen AJ made an order inter alia that the RAF
pay the plaintiff general damages in the amount of RI .5 million and
provide him with the statutory undertaking in respect of future and related
medical expenses. The RAF also made an interim payment ofR 474 705.00
to the plaintiff.
[ 13] The claim relating to the loss of earnings was postponed for future
determination. At the hearing to determine this head only the plaintiffs
actuary, Mr W H Boshoff from Munro Actuaries, testified. He had first
been instructed by the plaintiffs attorneys to compile an actuarial report
during 2020. Based on the generally accepted actuarial methodology
employed and assumptions made, his first report dated 3 March 2020,
which took into account a contingency deduction of 5% for past and a 10%
deduction for future loss of earnings, provided for an mounted of
R3 161 930,00.
[ 14] Due to the effiuxion of time and the impact it has had on past and future
loss of earnings, Mr Boshoff was instructed during 2022 to provide an
updated actuarial report. This report dated 4 July 2022, reflects the value
of the plaintiffs loss of earnings as R3 761 500,00.
[15] Mr Boshoff testified that at the time of compiling the July 2022 report, he
had in his possession a letter from the Compensation Fund placing a value
on the plaintiffs pension. He however did not have the underlying actuarial
basis used by the Compensation Fund to determine their capitalisation
factor, but immediately realised that the actuarial basis used by the
Compensation Fund was different from that used by Munro Actuaries and
other actuaries working in the damages arena.
[16] Mr Boshoff explained that up until 2021, when using his usual actuarial
basis to calculate a loss of earnings capitalisation, he would arrive at more
or less the same figure as that used by the Compensation Fund, which for
a male aged 42, as was the age of the plaintiff, would be approximately 15.
The capitalisation factor used by the Compensation Fund would be more
or less the same as . the one used by Munro Actuaries. In those
circumstances, he would be content to calculate the loss of earnings on his
usual actuarial basis, since there would be no discrepancy or prejudice to
any party.
[ 17] It is common cause that the capitalisation factor adopted by the
Compensation Fund increased to 25.68. After many attempts at
determining why the capitalization factor used by the Compensation Fund
differed so vastly to what was used in the past, the actuaries for the
Compensation Fund were subpoenaed to provide the actuarial basis for the
increase.
[18] Mr Boshoff testified that they (Munro Actuaries) discovered that the
actuarial basis for the new capitalisation factor used by the Compensation
Fund's actuaries differed from theirs in that inter alia, different mortality
and interests assumptions were used. According to Mr Boshoff, the
actuarial basis used by the Compensation Fund was incompatible with that
which is normally used by the damages actuaries. The incompatibility is in
the sense that one must calculate the difference ( subtracting one figure
8
from another) between two differently calculated figures. He stated that
you would then not be comparing apples with apples, but apples and pears,
which could be prejudicial to either the plaintiff or the RAF.
[19) Mr Boshofftestified as follows in this regard:
"MR BOSHOFF: The problem being you use incompatible actuarial bases. The only
way actuarially you can arrive at the correct answer is either you calculate both
[mechanical interruption - audio distorted #27:27] that the bases used by the
compensation fund must be used by law. Even ifl may as an actuary say well, I think
the bases is too light or to heavy it does not matter. By law that bases is prescribed. I
do not have a choice. We have to use it to calculate the capital value of the ...
[indistinct] pension.
The only reasonable action that remains for me as an actuary is then to adjust my basis
in determining the capitalised value of the uninjured or premorbid earnings and use the
same bases as the bases used by the commissioner." (Sic)
[20) Mr Boshoff then applied the same actuarial factors used by the
Compensation Fund in order to determine the compensation due to the
plaintiff/ to quantify the damages (loss of earnings) claimed by the plaintiff
from the RAF. The capital total loss of earnings as reflected in his latest
report of 11 December 2022 amounted to R4 309 050,00.
[21] During cross-examination, Mr Boshoff explained as follows:
"MR BOSHOFF: I just stated it is not just my personal preference. I would expe-et any
actuary to do the same. M 'Lord, if I may, the fact that the actuarial basis for the
compensation is prescribed by law even though I am not prescribed by law as to which
actuarial basis I should use as an actuary, as a professional in this area I will
immediately use the same actuarial basis if I can obtain it, because that is the correct
way to do the calculation. The law does not prescribe what mortality I should use in
9
any case and the law does not prescribe what interest or inflation assumption I should
use in any case. That is completely within the ambit of my expertise as an actuary who
is also accountable to my professional body, for professionalism and to my colleagues
that we as many actuaries will have the same conclusions to maintain the integrity of
the profession. Within that ambit, M 'Lord, 1 see it as the only position I have that if
the compensation basis is prescribed and I have to adopt that same basis and there is no
law that says I must, but there is also no law that says I must not in my ambit as an
actuary and as an expert that I make that decision to do to maintain actuarial integrity."
(Sic)
[22] The court a quo accepted the evidence of Mr Boshoffthat the only way to
mitigate against any prejudice would be to use the same actuarial basis used
by the Compensation Commissioner. The court a quo, in the absence of
any controverting evidence, ordered that the compensation awarded by the
Compensation Fund, plus the part-payment already made to the plaintiff
by the RAF, be deducted from theamountofR4 309 050,00, as determined
by Mr Boshoff in his December 2022 report. Tbis then determined the
amount the RAF was liable to pay the plaintiff (RI 050 412,06) for loss of
earnings.
[23] It bears to have another look at s 36 of the Compensation for Occupational
Injuries and Diseases Act3 (COIDA), which reads as follows:
"Recovery of damages and compensation paid from trial parties.
(1) If an occupational injury or disease in respect of which compensation is payable,
was caused in circumstances resulting in some person other than the employer of
the employee concerned (in this section referred to as the "third party") being
liable for damages in respect of such injury or disease-
3 130 of 1993.
(a) the employee may claim compensation in terms of this Act and may also
institute action for damages in a court of law against the third party; and
(b) the Commissioner or the employer by whom compensating is payable may
institute action in a court of law against the third party for the recovery of
compensation that he is obliged to pay in tenns of this Act.
(2) In awarding damages in an action referred to in subsection (l)(a) the court shall
have regard to the compensation paid in terms of this Act.
(3) In an action referred to in subsection ( 1 )(b) the amount recoverable shall not
exceed the amount of damage, if any, which in the opinion of the court would
have been warded to the employee but for the Act.
(4) For the purposes of this section compensation includes the cost of medical aid
already incurred and any amount paid or payable in terms of section 28, 54(2) or
72(2) and, in the case of a pension the capitalized value as determined by the
commissioner of the pension, irrespective of whether a lump sum is at any time
paid in lieu of the whole or a portion of such pension in tenns of section 52 or 60,
and periodical payments or allowances, as the case may be."
[24] It is no coincidence that s 36 distinguishes between compensation and
damages. Compensation in terms of CO IDA is paid to the employee by the
Commissioner or employer by reason of his/her statutory obligation and
not because he/she is liable in delict4.
[25] In the court a quo and again during argument of the appeal, counsel for the
RAF referred the court to Road Accident Fund v Maphiri 5. In Maphiri the
SCA rejected the "like for like" principle where the respondent in that case
contended that compensation must be deducted against certain heads of
damages and not against general damages. The court . a quo held that
Maphiri did not deal with the question whether the plaintiff could use the
same capitalization factors used by the Compensation Commissioner.
4 See South African Railways and Harbours v South African Stevedores Services Co Ltd 1983 (I) SA 1066 (A) at
1088F-H.
5 2004 (2) SA 258 (SCA).
11
(26] The Maphiri case is however instructive in that it restates the distinction
between compensation and damages. Mthiyane JA stated the following:
"In my view, the whole amount of the compensation (R38 346, 17) is to be deducted
from the plaintiffs total award irrespective of the fact that it exceeded what the plaintiff
has been held to be entitled to in respect of the beads of damage to which the
compensation related (ifit can be related!). It is true that the plaintiffs general damages
are being re,duced by the amount of the excess. But does the Compensation Act prevent
the court from deducting the excess merely because it exceeds the amount to which the
plaintiff would be entitled under the particular head of damage to which the
Commissioner's payment relates? That would only be so, if one interprets the 'like from
like' dictum in the Klaas case as requiring a qualitative correlation between the
particular amounts being considered. There is nothing in the Act or in the
Klaas judgment itself to suggest that the Act was to be interpreted in that way. The
Judge a quo in a detailed judgment has not pointed to such correlation. As a matter of
law the contrary is true. The form in which compensation is awarded does not
mirror the heads of damage to be found at common law. It has been said that
compensation paicl under the Act is not the same as damages. Nor is there room
to compare 'compensation' received under the Compensation Act to a benefit
under a policy of insurance. An attempt to do so was rejected by Schreiner J in
the Maasberg case supra, where the learned judge said 'compensation received by
the workman should [not] be approximated to, and treated on the same basis as,
insurance moneys, sick-fund benefits and the like'.
It does not matter under whicb head of damage the Commissioner has paid or wilJ be
liable to pay compensation, nor that the amount exceeds the amount to which the
plaintiff has been found entitled under that head by the court. It is sufficient that it is an
plaintiff has been found entitled under that head by the court. It is sufficient that it is an
amount which the Commissioner was obliged to pay and that the notional total sum of
damages to which the plaintiff would be entitled is equivalent to or exceeds that sum.
In short, if it means that the award for general damages is reduced or wiped out,
that simply is the consequence of the application of the Compensation Act or as
Viljoen J put it in the Bothtl case supra 'the impact of the provisions of an Act of
Parliament upon the common law' ."6 (Emphasis added.)
[27] The RAF is liable in delict for the proven damages suffered by the plaintiff,
in casu, loss of earnings. Harmse .TA in Maphiri, held that:
"The second point, which tends to be overlooked, is that the Act is not for the
benefit of third parties, such as the RAF, who are liable in delict; it is for the
benefit of the employee and the employer, and 'premiums' have to be paid for this
'insurance'. This means that the starting point of any litigation under s 36 is a
determination of the third party's liability. Some cases have referred to it as
'common law liability', a concept that gave the Court below some trouble. AH it
means is 'delictual liability' and what the courts have attempted to do by using the
phrase was to distinguish between 'compensation' and 'damages'. Once this is
understood, an apportionment of damages under the Apportionment of Damages
Act 34 of 1956 does not give rise to any problems or to another method of
calculation. In this case the starting point is then the RAF's liability for 50% of
the plaintiff's damages which is RSl 166,33.
The converse point bas often been made and that is that s 36 does not increase the
liability of a third party. Consequently, the full amount of its liability (in this case
50% of the plaintiff's loss) has to be divided between the employee and the
Comrnissioner."7 (Emphasis added.)
[28] It is not for the plaintiff's actuary to adjust the RAF's liability in
accordance with the methodology used by the Compensation Fund. There
can be no basis for that. The capitalization factors used by the
Compensation Fund are used to determine the value of the pension payable
to a claimant and not for delictual damages due to the plaintiff. The
plaintiff's damages should be determined separately and independently
6 Ibid paras 37 and 38.
7 Ibid paras 8 and 9.
13
from that of the Commissioner. It is also not an issue of fairness towards
the parties that the Compensation Fund's capitaUsation factors be used to
determine the plaintiffs loss of eamings. Mr Nalane SC, who appeared for
the RAF, is correct in his contention that such an application of the
Compensation Fund's methodology would in fact be unfair and create
inequity in the compensation of damages for those plaintiffs who are
covered by CO IDA and those who are not. On Mr Boshofr s reasoning, the
damages of plaintiffs who have been compensated under CO IDA would be
calculated using the Compensation Fund's higher capitalization factor and
those who are not compensated in tenns of CO IDA would be su~jected to
the normal lower damages capitalization factor.
[29] The normal and acceptable principles used in the computation of damages
should be used whether or not compensation has been paid to the plaintiff
under COIDA.
[30] The fact that the RAF had not presented controverting evidence should be
neither here nor there. The court must be satisfied that the opinion of an
expert has a logical basis, in other words, that the expert has considered
comparative risks and benefits and has reached a defensible conclusion.8
The approach of Mr Boshoff to the calculation of the plaintiffs loss of
earnings is not logically supported.
[31] The appeal must therefore succeed. We have been provided with draft
orders which have been presented after argument to the court a quo,
reflecting the RAF's as well as the plaintiffs contentions. The draft order
which was handed up by the RAF makes provision for a calculation of the
8 See Michael and Another v Links.field Park Clinic (Pty) Ltd and Another 200 1 (3) SA 1188 (SCA) para 37. See
also Bolitho v City and Hackney Health Authority [l 998) AC 232 (HL (E)) at 241 G - 242B.
14
RAPs liability to the plaintiff on the basis of Mr Boshoff's July 2022
actuarial report which was compiled without regard to the Compensation
Fund's capitalization factors, and which we are of the view is the correct
approach.
[32] Therefor the calculation of the plaintiff's loss of earnings should be as
foJlows:
Total loss of earnings:
Less compensation awarded
Less interim payment by RAF
Balance due to plaintiff
R3 761 500, 00
R2 783 932, 94
= R977 567, 06
R474 705, 00
= R502 862, 06
[33] With regard to the costs of the appeal, there is no reason why costs should
not follow the result.
[34] In the result, the following order is made:
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced with the
following:
"a) The defendant is ordered to pay the plaintiff the sum of
R502 862,06 and costs of suit, which shall exclude the costs
already awarded by Sieberhagen AJ on 10 November 2022.
b) Interest on the amount ofR502 862,06 from 12 May 2023 to
date of payment at the applicable scale.))
3. The respondent is to pay the costs of the appeal.
4. The appellant is to pay the costs of the application for condonation.
Appearances
For the Appellant:
Instructed by:
For the Respondent:
Instructed by:
Adv. FJNalane SC
15
C CWILLIAMS
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Office of the State Attorney (Kimberley)
Adv. J H Roux SC
DSC Attorneys
c/o Engelsman & Magabane Inc.