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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 3268/2018
In the matter between
M[…] K[… ] PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: M K[… ] v Road Accident Fund (3268/2018) [2026] ZAFSHC 61
(18 February 2026)
Coram: MHLAMBI J
Heard: 19 November 202 5
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email and released to SAFLII. The date and time for
hand-down is deemed to be 9h30 on 18 February 2026.
Summary: Road Accident Fund – general damages – quantum –minor
pedestrian – mild traumatic brain injury – orthopedic injuries – scarring –
comparative case law – discretion of the court.
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ORDER
The draft order is made an order of court , with the following amendments to
paragraphs 2.2 and 3.1:
‘2.2 The defendant shall pay the plaintiff the sum of R540 000.00 (five hundred
and forty thousand rands) in respect of general damages within 180 days.
3.1. The defendant is to pay the plaintiff’s taxed or agreed party and party costs,
up to and including the trial dates of 18 and 19 November 2025 and the date
when this order is made an order of court.’
JUDGMENT
Mhlambi J
[1] This is a minor’s claim against the Road Accident Fund arising from a
collision in which the insured driver struck a 15- year-old pedestrian. When the matter
came before me, it was partially settled, and, by agreement between the parties, a
draft order was submitted, which reads as follows:
‘1.
1.1 The issues of general damages and future medical expenses are separated from past and
future loss of income in terms of Rule 33(4).
1.2 The issue of loss of earning capacity is postponed to the pre-trial date of 02 February 2026.
2.
2.1 The Defendant is liable to pay 90% (Ninety Percent) of the Plaintiff ’s proven or agreed
damages;
2.2. The Defendant shall pay the Plaintiff the sum of R 720 000 , 00 (SEVEN HUNDRED AND
TWENTY THOUSAND RAND) in respect of general damages within 180 days.
2.3 The Defendant shall pay the abovementioned amount into the Plaintiff ’s Attorneys' trust
account.
The Plaintiff’s Attorney's trust account details are as follows:
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ACCOUNT HOLDER: VZLR INC
BRANCH: ABSA BUSINESS BANK HILLCREST
BRANCH CODE: 632005
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 3[…]
REFERENCE: MAT115081
2.4 The Defendant shall furnish the Plaintiff with an Undertaking in terms of Section 17(4)(a) of
Act 56 of 1996, limited to 90%, in respect of future accommodation of the Plaintiff in a hospital or
nursing home or treatment of or the rendering of a service or supplying of goods of a medical and non-
medical nature to the Plaintiff (and after the costs have been incurred and upon submission of proof
thereof) arising out of the injuries sustained in the collision which occurred on 26 May 2015.
2 .5 In the event that the Defendant does not, within 180 (one hundred and eighty) days from the
date on which this order is handed down, make payment of the capital amount, the Defendant will be
liable for payment of interest on such amount at 10.5% (the statutory rate per annum) compounded
and calculated fourteen days from date of this order.
3.
3.1 The Defendant to pay the Plaintiffs taxed or agreed party and party cost, up to and including
the trial dates of 18 & 19 November 2025 and the date when this order is made an order of court, for
the instructing and correspondent attorneys, which cost shall include, but not be limited to the
following:
3.2 The fees of Counsel, in terms of amended Uniform Rule 67A(3)(a) read with Rule 69(7) on
scale B, which costs shall include, but not limited to, the preparation for trial; preparation,
consideration and completion of the "submission document", heads of argument accompanying this
order; and day fee in respect of the trial dates of 18 & 19 November 2025;
3.3 The reasonable qualification fees of all the Plaintiff ’s experts of whose reports had been
furnished to the Defendant and/or its experts:
3.3.1 Dr LF Oelofse -Orthopaedic Surgeons
3.3.2 Dr JJ Labuschagne- Neurosurgeon
3.3.3 Dr S Van Heerden-Plastic & Reconstructive Surgeon
3.3.3 Dr S Van Heerden-Plastic & Reconstructive Surgeon
3.3.4 Dr A Naicker-Educational Psychologist
3.3.5 Ms Anel Booyse-Rita van Biljon Occupational Therapists
3.3.6 Mr Ben Moodie-Industrial Psychologist
3.3.7 Mr Johan Sauer-Actuary
3.4 In the event of default on the costs payment, interest shall accrue on such outstanding
amount at the statutory more rate on the date of taxation / settlement of the bill of cost, as per the
Prescribed Rate of Interest Act, 55 of 1975, as amended, per annum, calculated from due date until
the date of payment.’
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[2] The only issue for adjudication is the amount in respect of general damages
to be awarded. In support of its claim, the plaintiff relied on the expert reports of the
orthopedic surgeon and neurosurgeon, Doctors LF Oelofse and JJ Labuschagne.
According to Doctor Oelofse, the plaintiff sustained a head injury and right shoulder
and upper -arm injuries. She was diagnosed with a united clavicle fracture with a
painful AC joint and a united humerus fracture with residual pain. She continues to
experience headaches due to the head injury, which are associated with
forgetfulness and behaviou ral changes. The injuries have affected the patient's
productivity, ability to work, and quality of life, and continue to do so. From an
orthopedic perspective, successful treatment of her injury will improve the patient's
productivity.
[3] Dr. Labuschagne reports mild cognitive disturbances consistent with a mild
head injury, with mild residual memory and concentration deficits. The claimant
exhibited neuropsychological and neurocognitive effects from her head injury. An
accurate quantification should be performed by a clinical psychologist. The Plastic
and Reconstructive surgeon, Dr S van Heerden, described the injuries sustained as
a facial injury, a right upper limb injury, and bilateral thigh injuries. There was a
horizontal, hyperpigmented scar measuring three cm x two mm on the plaintiff’s
forehead, which became obvious with animation of the frontal muscles.
[4] The plaintiff referred me to the following three cases: Sefuthi v Road Accident
Fund (Sefuthi),
1 MJM obo LJM v Road Accident Fund (MJM obo LJM),2 and Methule
obo Minor v The Road Accident Fund (Methule).3 The plaintiff argued that, in light of
the comparative case law, the amount claimed was fair, even though those cases
were not on all fours with the facts of this matter. In Sefuthi, the plaintiff did not
sustain a brain injury, but the case dealt with orthopaedic injuries and scarring of the
sustain a brain injury, but the case dealt with orthopaedic injuries and scarring of the
face. In MJM obo LJM , the plaintiff was diagnosed with a mild traumatic brain injury
and extensive scarring, but no orthopaedic injuries. In Methule, the minor sustained a
concussive head injury, forehead scarring, headaches, and post -traumatic stress
1 Sefuthi v Road Accident Fund [2022] ZAFSHC 268 paras 20-27.
2 MJM obo LJM v Road Accident Fund [2022] ZAFSHC 154 para 7.
3 Methule obo Minor v The Road Accident Fund [2022] ZAGPPHC 192 paras 8 and 30.
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disorder, but no orthopaedic injuries. In this case, an award of R 500 000 was made
in 2022, with a 2025 value of R 580 000.
[5] The plaintiff argued that her injuries resulted in chronic right shoulder and arm
pain, aggravated by lifting or carrying heavy objects and radiating to the elbow.
Range of motion was restricted (40° difference in flexion and abduction, 15° in
external rotation compared to the left side). Physical capacity was limited to
sedentary to light work, with occasional elevated- arm tasks. She struggled with daily
activities, household tasks, and productivity. Her neurological and cognitive injuries
resulted in concentration disturbances, daily headaches, dizziness, mood
disturbances, difficulty concentrating, distractibility, anxiety, and fear when walking.
There was a 2- 3 percent risk of epilepsy. These cognitive issues contributed to her
withdrawal from school.
[6] The defendant noted that, according to the expert report, the orthopaedic
injury would not adversely affect the patient’s life expectancy. She also noted that the
clinical neuropsychologist's report had not been filed, as the neurosurgeon had
suggested. She referred to Nkephang v Road Accident Fund,
4 in which the plaintiff
was awarded R400 000 on 17 September 2024 for a laceration of the left wrist, a
right cheek soft tissue injury, a right shoulder neck of humerus fracture,
thoracolumbar spine soft tissue injuries, and extensive scars on the face and upper
limbs. She also referred to Smith v Road Accident Fund (Smith),5 in which an award
of R300 000, equivalent to R612 800, was made.
[7] The defendant contended that in Smith , the plaintiff suffered more severe
orthopaedic injuries that had not united and required surgical intervention, unlike the
present matter. Because the plaintiff's fractures had united, with no past or future
surgical intervention, the defendant submitted that an award of R400 000.00 for
general damages would be fair and reasonable.
general damages would be fair and reasonable.
[8] In Road Accident Fund v Marunga,
6 the court stated that when the question of
4 Nkephang v Road Accident Fund [2024] ZANWHC 239 para 21.
5 Smith v Road Accident Fund [2011] ZAGPJHC 203 para 30.
6 Road Accident Fund v Marunga [2003] ZASCA 19 ; [2003] 2 All SA 148 (SCA); 2003 (5) SA 164
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general damages for pain and suffering, disfigurement, permanent disability, and loss
of amenities of life arises, a trial court, in considering all the facts and circumstances
of a case, has wide discretion to award what it considers fair and adequate
compensation to the injured party. Regard should be given to awards in previously
decided cases, even though it may be difficult to find a case on all fours with the one
being heard. Nevertheless, awards in decided cases may provide useful guidance.
Assistance may be derived from the general pattern of previous awards.
[9] I have considered the plaintiff's injuries and the sequelae thereto and I am of
the view that an amount of R 600 000 is a fair and reasonable compensation for the
plaintiff’s general damages. The defendant is , however, liable to pay 90 percent of
the plaintiff’s proven or agreed damages.
[10] Consequently, I make the following order:
The draft order is made an order of court with the following amendments to
paragraphs 2.2 and 3.1:
‘2.2 The defendant shall pay the plaintiff the sum of R540 000.00 (five
hundred and forty thousand rands) in respect of general damages within 180
days.
3.1. The defendant is to pay the plaintiff’s taxed or agreed party and party
costs, up to and including the t rial dates of 18 and 19 November 2025 and the
date when this order is made an order of court.’
____________________
J J MHLAMBI
JUDGE OF THE HIGH COURT
Appearances
For the plaintiff: A Sander
Instructed by: Du Plooy Attorneys,
(SCA) paras 23, 24 and 33.
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Bloemfontein
For the respondent: C Bornman
Instructed by: State Attorney,
Bloemfontein.