(1)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
REPORT ABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
2026/02/10 DATE ......................... SIGNATURE. ... .
In the matter between:
WELMA NKOE NGOET JANA
and
ROAD ACCIDENT FUND
JUDGMENT
BURNETT. AJ
CASE NO: 4322/2024
Plaintiff
Defendant
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INTRODUCTION
[1 ] T his is an application for default judgment against the Road Accident Fund in terms
of Rule 31 (2) of the Uniform Rules of Court read with the Practice Directives of this
division.
[2] T he merits have previously been finalised, and the matter was enrolled for
determination of quantum only, and more specifically loss of earnings. In respect of
merits, it is noted that the court applied an apportionment and found that the
Defendant was 80% (eighty percent) liable for the accident.
[3] T he necessary original documentation, i.e. a) combined summons; b) return of
service; c) application for default judgment; d) notice of set down and e) merits court
order, was properly filed with this court. There was proper service of the combined
summons, application for default judgment and notice of set down on the Defendant.
The court was satisfied that the matter was correctly enrolled and proceeded to hear
the matter.
[4] T here was no appearance on behalf of Defendant.
APPLICATION IN TERMS OF RULE 38 (2)
[5] At the start of the hearing, the Plaintiff brought a formal application in terms of Rule
38 (2) of the Uniform Rules of Court, in terms of which she sought for her evidence
to be led by way of affidavit. Rule 38 (2) reads as follows: -
"The witnesses at the trial of any action shall be orally examined, but a court may at
any time, for sufficient reason, order that all or any of the evidence to be adduced at
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any trial be given on affidavit or that the affidavit of any witness be read at the
hearing, on such terms and conditions as to it may seem meet: Provided that where
it appears to the court that any other party reasonably requires the attendance of a
witness for cross-examination, and such witness can be produced, the evidence of
such witness shall not be given on affidavit."
[6] T he original application was filed before the court. Having regard to the fact that the
matter before the court is a default judgment application, and that it would be
practical and convenient to hear the evidence of the Plaintiff, and her expert
witnesses via affidavit, the court granted the application in terms of Rule 38 (2).
EXPERT EVIDENCE
[7] T he Plaintiff appointed five expert witnesses to give evidence in support of her claim,
namely: -
[7.1] Dr. F.C Baloyi (an Independent Medical Examiner).
[7.2] Dr. J.T Makwela (an Orthopedic Surgeon).
[7.3] Ms. MA Ramela (an Occupational Therapist).
[7.4] Ms. M Kheswa (an Industrial Psychologist).
[7 .5] Quantum Actuaries (Actuary).
[8] T he court is satisfied that all five witnesses are in fact expert witnesses, and their
evidence is accepted as such.
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INJURIES
[9] T he Plaintiff's injuries are orthopedic in nature, more specifically a right tibia and
fibula fracture. The Plaintiff was issued with a walking frame after the accident,
which she used for approximately three months, whereafter she used crutches for
three months thereafter.
[1 O] The Plaintiff's prognosis indicates post-traumatic chronic pain and an impairment of
the right lower limb. The Plaintiff is prone to s welling in her right leg and cannot
stand for long periods of time. The Plaintiff has a decreased range of motion of the
right ankle and muscle wastage on the right calf which suggests a decreased right
lower limb use.
[1 O] The Plaintiff has reached maximum medical improvement.
[12] Ms. M A Ramela (the Occupational Therapist) opines that the Plaintiff will tolerate a
significant amount of pain when handling any loads exceeding that of entry-range
medium work as well as tasks requiring prolonged dynamic position endurance. The
Plaintiff injuries, which affect her mobility, make her an unequal competitor on the
open labour market. She is an undesirable candidate compared with other women
of her age and with her qualifications. She is further disadvantaged by her lack of
employment history.
LOSS OF EARNINGS
[13] The Plaintiff is 32 (thirty-two) years of age and unemployed. The Plaintiff was 28
(twenty-eight) y ears old at the time of the accident and was unemployed. The
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Plaintiff has in fact, never entered the open labour market, and does not have a
driver's license.
[14] The Plaintiff completed schooling and obtained her matric certificate, whereafter she
completed an N6 in Marketing management in 2018 at Capricorn FET College.
[15] Ms. M Kheswa (the Industrial Psychologist) opines that the Plaintiff probably would
have obtained employment pre-accident, on the lower quartile of the Paterson level,
and continued to be employed until the age of 65 (sixty-five years old).
[16] The intensity of the pain that she suffers will directly correlate with an impairment on
her work capacity. Ms. M Kheswa further opines that her pain, discomfort and
restrictions as per Ms. M A Ramela's findings will mean that she will remain an
unequal competitor on the open labour market and always be a vulnerable
employee.
[17] According to Ms. M Kheswa, the Plaintiff will be restricted in terms of choice of
employment and the type of employment that she is able to seek and further that
she will suffer extended periods of unemployment.
[18] The actuary calculates the total loss of earnings (before the apportionment and
contingencies) to be R 5 913 778.00 (five million nine hundred and seventy-eight
thousand seven hundred and seventy-eight rand), which is calculated as follows: -
[18.1] Past Loss of earnings amounts to R 184 523.00.
[18.2] Future loss of earnings amounts to R 5 729 255.00.
[18.3] The total loss of earnings thus amounts to R 5 913 778.00
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CONTINGENY DEDUCTIONS
[15] A contingency deduction allows for the possibility that the Plaintiff may have less
than normal expectations of life, and that she may experience periods of
unemployment by reason of incapacity due to illness, accident, unrest or unstable
economic conditions. The underlying rationale is that contingencies allow for
general hazards of life. 1
[16] Having regard to the Plaintiff's lack of employment history and the fact that as at the
time that the accident occurred when she was 28 (twenty-eight) years old, she had
no employment history of any kind, a higher contingency than normal should be
applied. It would be prudent in this situation to apply a contingency reduction of 30%
(thirty percent).
ORDER
[17] I accordingly make the following order: -
[17 .1] The Defendant pays the Plaintiff an amount of R 3 311 715.48 (three
million three hundred and eleven thousand seven hundred and fifteen
rand and forty-eight cents) in respect of her loss of earnings in the
above matter.
[17.2] The Defendant shall be liable for the Plaintiff's costs of suit on a party
and party High Court Scale B.
Van der Plaats v Southern African Mutual Fire and General Insurance Co 1980 (3) SA 105 (A) page
114 - 115.
APPEARANCES
FOR THE APPLICANT: -
INSTRUCTED BY: -
DATE OF HEARING: -
DATE OF JUDGMENT: -
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BURNETT, E J
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE; LIMPOPO DIVISION
ADV. N MANYISE
12 NOVEMBER 2025
10 FEBRUARY 2026