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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
GAUTENG DIVISION, PRETORIA
CASE NO: 36141/13
(1) REPORTABLE:YES/NO
(2) OF INTERST TO OTHER JUDGES :YES/NO
(3) REVISED
DATE 2/02/2026
SIGNATURE
In the matter between:-
ADV APJ BOUWER N.O (CURATOR AD LITEM PLAINTIFF
OF [...] K[...])
And
ROAD ACCIDENT FUND DEFENDANT
JUDGEMENT
___________________________________________________________________
MATIKA AJ:
2
Introduction
1. In this matter, the plaintiff, brought an application for default judgment against
the Defendant, the Road Accident Fund (“Hereinafter to be referred to as
RAF’’).The application emanated from the action which the Plaintiff instituted
against RAF for compensation arising from the negligent driving of the insured
driver in terms of section 17 of the Road Accident Fund Act1.
Facts
2. The plaintiff was as a passenger in motor vehicle accident that occurred on
the 24 October 2008.
3. On 28 April 2023, Justice Munzhelele struck out the defendant ’s defence for
their failure to comply with a compelling order dated 8 August 2022.
4. Application for default judgement and notice of set -down for the 09 December
2025, were properly served on the defendant.
5. The merits were previously settled togethe r with future medical treatment in
terms of section 17(4) (a) of the Road Accident Fund Act.
6. On 6 June 2024, Justice Ramlal ordered the defendant to pay R2 000 000.00
in respect of the plaintiff’s claim for general damages and the court ordered
that a trust be created.
7. The plaintiff is assisted by a curator ad litem Adv APJ Bouwer and he filed a
report.
8. According to the Plaintiff’s neurosurgeon, the plaintiff suffered a significant
concussive brain injury with a Glasgow Coma Scale (GCS) of 9/10 recorded in
available Hospital/clinical records, she underwent a tracheotomy and was in
1 Act 56 of 1996
3
comma for two months and was on mechanical ventilation in the ICU .She
present with possible focal brain damage with a slight left hemiparesis (albeit
less than optimal cooperation) and Her extent of posttraumatic amnesia is
also in favour of a significant concussive brai n injury /diffuse axonal damage,
ongoing neurocognitive and physiological Sequalae have been diagnosed.
9. The plaintiff was 17 years of age at the time of the accident and a scholar
doing grade 11.
10. Post-accident due to the injuries sustained in the accident in question, she is a
recipient of government permanent disability grant from the year 2016.
Issues
11. The matter was before me for argument in respect of loss of income only.
12. The Plaintiff, on behalf of the patient, is claiming an amount of R 1 400 000.00
in respect of past loss of income and R 4 800 000.00 in respect of the future
loss of income, in his amended particulars of claim.
Rule 38(2) application
13. Application to present evidence of the Plaintiff and his expert witnesses, and
any other relevant witness by way of affidavit in terms of Rule 38(2) of the
Uniform Rules was sought and granted.
14. In Havenga vs Parker2, confirmed by the Supreme Court of Appeal in
Madibeng local Municipality vs Public Investment Corporation 2018(6) SA the
(“SCA”), found that it is permissible to place expert evidence before the court
by way of affidavit in terms of Rule 38(2), accordingly that application was
granted.
2 1993 (3) SA 724(T)
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15. In the matter of Baliso v Fir st Rand Bank Limited t/a Wesbank 3, the
Constitutional Court outlined the law relating to the evaluation of evidence in
cases of default judgment as follows:
“In terms of our civil procedure, a default judgment for a debt or
liquidated demand is granted on an acceptance of the allegations as set
out in the summons, without any evidence. Where the claim is not for a
debt or liquidated demand, the court may, after hearing evidence, grant
judgment. This typically provides evidence only on the amount of
unliquidated damages. The reason for not hearing evidence on the other
factual allegations made in the summons or particulars of claim is that,
because the claim is not opposed, it may be accepted that those
allegations are admitted or not disputed. ”
Expert’s reports
16. The plaintiff appointed the following experts and the reports have been duly
served in terms Rule 36 (9) (a) & (b): Dr PT Kumbirai (Orthopaedic
Surgeon), Dr VM Close (Orthopaedic Surgeon), Ms A Wyrley -Birch
(Occupational Therapist), Ms L Mashishi (Occupational Therapist), Ms N
Sewpershad (Clinical Psychologist), Dr F Colin (Psychiatrist) (2018) (2023),
Dr PJ Viljoen (ENT) (2023), Ms M du Plooy (Audiologist) (2023), D r T Bingle
(Neurosurgeon) (2015) (2018), Ms M Grové (Industrial Psychologist) (2015)
and GRS Actuarial Consulting (Actuary) and The defendant did not appoint
any expert.
3 [2016] ZACC 236 par 12
5
17. According to Dr Kumbirai (Orthopaedic Surgeon) report, it is concluded that
Plaintiff had the following complaints: personalit y changes, now short -
tempered, r ecurrent headaches, poor short -term memory, p oor academic
performance, pain left elbow – this is exacerbated by lifting of heavy weights,
Reduction in her ability to perform activities of daily living e.g. personal
hygiene, Poor self -esteem due to recurrent discharging sinus left elbow. Dr
Kumbirai calculated a 61% whole person impairment and qualified the
plaintiff’s injuries as serious under the narrative test.
18. According to Dr VM Close (Orthopaedic Surgeon), it is concluded that: “in
the accident under review, the documented injury was a fracture dislocation
of left elbow, consisting of comminuted fractures of the humerus, proximal
radius and ulna. At debridement it was noted that the elbow was not
salvageable and subsequent an attempt was made to arthrodesis the elbow
.the plate utilized is very short and the arthrodesis has failed, the fixation
device has broken, the screws have pulled out and the joint space is
completely destroyed .Clinically and radiologically I also suspect the
presence of underlying low –grade sepsis .the fixation device needs to be
removed and the area thoroughly debrided with possibility an irrigation
system. Microbiological samples should be obtained and once the sepsis
has been completely eradicated or excluded , a formal arthrodesis of
elbow should then be performed by an orthopaedic surgeon, preferably with
an interest in elbow surgery, noting that this is a complicated situation at this
stage. The rest of the clinical examination revealed back pain for which no
radiological abnormality was detected.” Dr Close calculated a whole person
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impairment of 25% and qualified the plaintiffs’ injuries as serious under
narrative test.
19. Dr T Bingle (Neurosurgeon) noted from the available hospital / clinical
records that the patient was involved as a 17 -year-old female in a motor
vehicle accident when she fell from a moving bakkie and sustained several
injuries consisting of an open humerus fracture, concussion to the head, left
elbow injury/crush injury and an open wound to the right eyelid. On
admission, the patient's GCS was recorded as 9/10 and she was restless,
had secretions in the mouth, bleeding from the right ear, and periorbital
oedema. The patient was diagnosed i n hospital with a moderate head injury
and skull X -rays were requested. Patient was administered Dormicum and
Scoline and was intubated. She received oxygen and I V fluids. Her wounds
were sutured and she was transferred to Polokwane for a C T scan.
According to Dr Bingle the patient reported the loss of recall of the impact of
the accident and lost consciousn ess. She reportedly only came t o her
senses again 3 months later in hospital indicative of significa nt dense post -
traumatic amnesia . According to Dr Bingle, during consultation the patient
complained of chronic and ongoing headaches with a detrimental effect on
her quality of life and her e mployability a s well a s neurocognitive and
neuropsychological sequelae. She also reported a significant loss of physical
abilities in her left upper limb in relation to the orthopaedic injuries and
sequelae. The clinical examination revealed a left hemipar esis and anosmia.
Dr Bingle also noted that the patient sustained a significant concussive brain
injury and underwent a tracheotomy and was reportedly in a coma for two
7
months on mechanical ventilation in the ICU. The patient further present with
possible focal brain damage with a slight left hemiparesis.
20. Ms N Sewpershad (Clinical Psychologist) examined the patient and noted
that the neuropsychological profile confirmed reduced behavioural control,
with irritability, increased frustration, and impulsivity affecting the patient's
neurocognitive performance. The plaintiff presented with widespread
neurocognitive deficits, affecting multiple domains, including attention,
memory, repetition and verbal learning, language skills and verbal reasoning,
executive function, and motor performance.
21. Dr F Colin (Psychiatrist) diagnosed a major neurocognitive disorder
associated with brain injury directly related to the motor vehicle accident.
She further suffers from vague depressive symptomology which must be
seen as part of the major neurocognitive disorder. Dr Colin noted that the
major neurocognitive disorder due to the brain injury is an essentially
untreatable condition and should the patient develop any complications,
such as a depression or psychosis, then the patient should consult a
psychiatrist for treatment in future. In a follow-up examination by Dr Colin in
2023 noted that since the initial assessment in 2018, the patient developed a
complication of Bipolar Type II disorder which she shows rapid shifts of mood
between hypomanic and depressive states. Patient should consult a
Psychiatrist on a monthly basis until th e condition i s controlled with mood
stabilization treatment. The treatment must be administered for the rest of
her life, as this condition is irreversible and permanent. Dr Colin noted that
the patient is unable to manage her own affairs and she is unable to instruct
her legal team to any degree of certainty. She will require the appointment o f
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a curator to look after her financial needs and assist in managing her legal
case.
22. Dr P J Viljoen (Ear, Nose and Throat Specialist) indicated that the patient
sustained anosmia (loss of smell) and dyspepsia (foul metal lic taste
sensation in mouth) as a result of the accident.
23. The Occupational Therapists, A Wyrley-Birch and L Mashishi concluded that
the patient is likely to remain unemployed for the rest of her working career.
At best the patient will be suitable for unskilled, routine and repetitive
sedentary type occupations in a protective work environment. Her physical
deficits, neuropsychological deficits and behavioral irregularities render her
unemployable in the open labour market.
24. Ms Grove (industrial psychologist) postulated three scenario’s as follows :
Pre-morbid potential
24.1 Uninjured Scenario1, She would have completed Grade 12 in
December 2008 and remained unemployed for 3 years, She would
have started working on 1 January 2012, earning R21’158 per year
(median earnings unskilled workers + annual bonus of 75% of wages
+ 7 ,5% retirement contribution).Increasing in a straight line until
reaching: R60’856 per year (median earnings semi -skilled workers +
annual bonus of 75% of wages + 7,5% retir ement contribution) in 5
years R155’041 per year (upper quartile earnings semi -skilled
workers + annual bonus of 75% of wages + 7,5% retirement
contribution) at age 45 and Thereafter, increasing with earnings
inflation until retirement at age 65.
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24.2 Uninjured scenario 2: She would have started working on 1 January
2012, earning R21’158 per year (median earnings unskilled workers +
annual bonus of 75% of wages + 7,5% retirement
contribution).Increasing in a straight line until reaching R215’000 per
year (midpoint between the average and maximum earnings for
skilled workers) at age 47½ and Thereafter, increasing with earnings
inflation until retirement at age 65.
24.3 Uninjured scenario 3: She would have started working on 1 January
2012, earning R21’158 per year (median earnings unskilled workers +
annual bonus of 75% of wages + 7, 5% retirement contribution; in July
2015 terms).Increasing in a straight line until reaching R330’035 per
year (average of median packages Paterson B5/C1/C2; in April 2015
terms) at age 47½. and Thereafter, increasing with earnings inflation
until retirement at age 65.
Post -Morbid potential
25. It is common cause between the experts that the plaintiff is unemployable in
the open labour market due to the accident in question.
Postulated Scenarios
26. The question now is which scenario amongst the three mentioned above will
be best suited for the plaintiff in the absent of the accident in question?
Analysis of the evidence
27. According to Ms M Grove (industrial psychologist) report dated 15 October
2015 paragraph10 of the report, it is concluded that:
” In sofar as Ms K[...]’s pre-educational prospects are concerned, deference is
given to the educational psychologist as to the level of education she would
10
have been able to obtain had the accident not occurred, it is concluded that in
the absence of the recommendation of the educational psychologist ,on the
basis of the available information, taking into consideration the family
background ,the educational and the occupational level of her parents, her
reported school progress and her health at the time of the accident, the
indicators suggest that Ms K[...] would most probably have completed a grade
12 level of education”.
28. Ms M Grove addendum report dated 13 May 2024 and on paragraph 5.1.1
reaffirms her views and opinions as expressed in the original report insofar as
likely pre-morbid prospects and earnings.
29. In light of the above it is clear that, in the absence of the educational
psychologist report and in the absence of any evidence to the contrary, the
plaintiff’s highest level of education pre -morbid would have been a grade 12
level of education, such a postulation is fair and reasonable taking into
account the fact that the plaintiff was in grade in 11 at the time of the accident
in question.
30. In my view it is probable that the plaintiff would have attained grade 12 level of
education in the pre-morbid scenario, line with scenario 1 as postulated by the
plaintiff’s own industrial psychogist report.
Loss of earnings and/or earnings capacity
31. In respect of a claim for loss of earnings and/or earnings capacity the
following trite legal principles are applicable :
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31.1 In the matter of Southern Insurance Association Ltd v Bailey NO ,4 His
Lordship Appellate Justice Nicholas stated as follows:
“ 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 do is to make an estimate, which is often a very rough
estimate, of the present value of the loss. It has open to it two
possible approaches:
- One is for the judge to make a random estimate of an amount which
seems to him to be fair and reasonable. That is entirely a matter of
guesswork, a blind plunge 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.
It is manifest that either approach involves guesswork to a greater or
a lesser extent. But the court cannot for this reason adopt a non -
possums attitude and make no award.”
31.2 In Walker v Road Accident Fund,5 Durban Division the court not only
with approval referred to the aforementioned judgement of Nicholas AJ
but also continued as follows:
4 1984 (1) SA 98 AD at 116H
5 Case no. 17955/04 reported on the 28th of October 2009 in the High Court of South
Africa Kwazulu Natal
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“This principle applies with equal force to the manner in which a
judge is called upon to deal with any aspect of the assessment
of the loss of earnings – if it is relevant to the assessment,
he/she must make the best of the material before the court,
notwithstanding that the result may well be open to criticism.”
31.3 In view of the inherent difficulties and uncertainties it has generally
been accepted that it is preferable to make an assessment based on
actuarial calculations rather than to take a blind plunge into the
unknown.
31.4 In the matter of De Kock v Road Accident Fund ,6 the Court once
again confirmed the approach to be taken with the calculation of loss
stated in paragraph 22 as follows:
“[22] In approaching claims of this nature, the courts have always had
open to it two possible approaches, namely:
22.1 Either that the Judge makes a round estimate of an
amount which seems to him to be fair and reasonable.
That process is entirely a matter of guesswork - a blind
plunge into the unknown or
22.2 That the Judge tries 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.
6 Case no. 2237/2013 reported on the 22nd of April 2015 in the High Court of South
Africa (Gauteng Division, Pretoria)
13
23 It is manifest that either approach involves guesswork to
a greater or lesser extent. However, the court cannot for
this reason adopt a non possumus attitude and make no
award.
24 The inherent difficulties and uncertainties therein manifest, it has
generally been accepted that it is preferable to make an
assessment based on actuarial calculations rather than to take a
blind plunge into the unknown.
25 I prefer this approach.
26 Where the actuarial approach is adopted, the traditional method
entails a four stage process as follows:
26.1 Calculate the present value of the future income which
the plaintiff would have earned but for the injuries and the
consequent disability.
26.2 Calculate the present value of the plaintiff’s future
income, if any, having regard to the disability.
26.3 Subtract the figure obtained under 26.2 from that
obtained under 26.1.
26.4 Adjust the figure obtained as a result of this subtraction in
the light of all relevant factors and contingencies.
27 Applying the above criteria, in calculating the plaintiffs estimated
future income, the traditional method entails the following
steps:
27.1 Ascertain the likely career path that the plaintiff would
have followed had she not been injured. This requires
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assessment of elements such as academic and
vocational qualification; promotion; chosen profession or
job; likely rate of remuneration including fringe benefits;
working lifespan; and retirement.
27.2 The raw data obtained in step 27.1 above is then fed to
an actuary who calculates the present value of the
plaintiff’s future income stream by taking into account the
net capitalisation rate which, in turn, takes into account
the expected rate of investment return less the expected
fixed rate of inflation; the relevant life tables i.e. the
claimant’s mortality index; and the applicable rate of
income tax.
27.3 Ascertain the same facts as in 27.1 above relating to the
plaintiff, now that she is injured and repeat the exercise in
27.2 above with regard to the plaintiff’s future income
stream in her injured position or condition.
28 Only after the above exercises had been performed will the final
adjustment be made in order to provide for contingencies in
respect of both income streams separately, after which the
plaintiff’s net loss can be determined.
29 Where the above method is followed, a lot of guesswork is
removed from the process of quantification while at the same
time, casing the cash flow of the Road Accident Fund (“the
Fund”). The disadvantage of this method is that it undoubtedly
adds immeasurably to the administrative workload of the Fund.
15
Furthermore, it requires the co -operation and substantial
agreement of both parties.”
32. This court in order to calculate the plaintiff’s loss of earnings and/or earnings
capacity it is in particular necessary to have regard to the pre -and post -
accident earnings and career postulations provided by the industrial
psychologist.
Actuarial calculations
33. An actuarial calculation was obtained GRS Actuarial consulting dated 19
November 2025 based on the report of the plaintiff’s industrial psychologist
report of Ms M Grove, dated 15 October 2015 and the addendum report
dated 13 May 2024 . The basis of the calculation of the loss of income
appears in paragraph 2.2 for the income had the accident not occurred and
in paragraph 2.3 for the income having regard to the accident.
34. The Actuary deducted 15% on the past loss of income and 20% on the
future pre-morbid contingencies.
35. The actuary calculated three scenario’s as recommended by industrial
psychogist report of Ms M grove, read together with the addendum report.
36. I have considered all three scenarios and I came to the conclusion that the
most probable scenario which is best suited for the plaintiff is Scenario1,
in the absence of the report by the educational psychologist . The only
problem with scenario 1 is that it is indicated that plaintiff would have
started working on 1 January 2008 earning m edian earnings of unskilled
workers, there is no explanation why she would have started earning on the
median quartile, instead of lower quartile of unskilled worker for that reason
16
coupled with other reasons below, the court deems it fit to increase a future
pre-morbid contingencies from 20% to 25% on scenario 1. The cap does
not apply to scenario 1.
37. Scenario’s 2 and 3 would have been applicable in this case “if Ms K[...] was
able to complete further training she would have continued as a skilled
worker in the no n-corporate/ semi–formal sector of the labour market
reaching career ceiling earnings at the midpoint between the average and
maximum earnings for skilled workers (i.e. about R 215 ‘000 per annum,
2015 values) at age 45 to 50 years..”
“Having completed further training Ms K[...] would have had a 25% chance
to enter the formal corporate where she would have reached her career
ceiling at a Paterson B5/C1/C2 level ,at age 45 -50 years ,earnings on the
stated annual guaranteed package ,median incomes scale.. ” retirement at
age 65 years.
Submissions
38. During argument and on the heads of argument the plaintiff counsel argued
for an amount of R 6 149 654.00 which amount represent scenario 3,
alternatively an amount of R 5 410 253, which represent scenario 2, as
actuarial calculated and having taken into account contingencies and Capp,
but no reasons supported by evidence before the court advanced during
argument and on the heads of argument as to why the court should
disregard the recommended scenario 1, in the absence of the educational
psychologist report.
39. Despite what is presented as the case of the plaintiff, it is important to note
that this court is not a rubber stamp of amounts being presented by the
17
Plaintiff to support their case even though their matters is undefended by
the Road Accident Fund.
40. The Court considers the total evidence presented to sustain the claims
brought by the Plaintiff in any action. In matters of this nature where the
defendant did not oppose the claim, the court is even extra-cautious.
41. In light of the above and in the absence of the educational psychologist
report, I came to the conclusion that scenario 1 is fair and reasonable and
Ms K[...] would most probably have completed grade 12 level of education
and therefore the defendant will pay the plaintiff an amount of R 4 369 979.
25, as actuarial calculated, such an amount took into account 15%
contingencies o n the past loss of income and 25 % contingencies on the
future pre-morbid.
42. The amount in paragraph 41 above arrived at as follows:
Uninjured Injured
Past loss: R 1 226 788.00 -
Minus 15% contingency deduction - (R184 0818)
R 1 042 770.00
Future loss: R 4 436 279.00 -
Minus 25% contingency deduction -(R 1 109 069, 75)
R 3 327 209, 25
Net past loss: R 1 042 770.00
Net future loss: R 3 327 209, 25
Total loss R 4 369 979, 25
Contingencies
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43. The actuarial calculations took into account contingencies of 15% on the Past
loss of income and 20% on the future pre-morbid income. With regards to the
plaintiff in this case and her specific capabilities, I am of the view that, a 25%
future pre-morbid contingency deduction would cater for the risk that she
might not have (even if the accident had not occurred) obtained the grade 12.
This caters inter a/ia for the eventualities that her studies may have taken
longer due pre -existing learning difficulties (i.e. She repeated grade 11 once
prior to the accident in question ), or that she would have taken longer to
obtain employment, given the unemployment rate in this country, and that it is
postulated that she will enter labour market as unskilled worker earning
medium quartile instead of starting at a lower quartile as discussed above.
44. In terms of Road Accident Fund v Sweatman 7 and in SIL and Others v
RAF8, the SCA held that contingencies must first be applied and then the
statutory cap. The cap does not apply to this case in scenario 1.
45. In Nel v RAF9 the court held that the court is to first deduct the merits
apportionment and the apply the cap. However, in the present case, the cap
makes no difference at all
Legal principles on contingencies
46. The legal principles applicable to the assessment of contingencies have been
set out on numerous occasions in the past in various case law. It is by now
accepted that in the assessment of these kinds of damages, which cannot be
assessed with any amount of mathematical accuracy the court has a wide
discretion. See for example, A A Mutual Insurance Association Ltd v
7 2015 (6) SA 186 (SCA)
8 2013 (3) SA 402 (GSJ)
9 2016 (2) SA 517 (GP) para 13
19
Maqula 1978 (1) SA 805 (A). It was more convenient to deal first more
specifically with the plaintiff’s claim for loss of earnings and earning capacity
as well as the legal principles applicable thereto. The latter were also set out
succinctly in Southern Insurance Association Ltd v Bailey NO 1984 (1) SA
98 (A) at 114. At 114C-D, Nicholas JA said:
“ In a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the first approach
offers any advantage over the second. On the contrary, while the result
of an actuarial computation may be no more than an “informed guess”,
it has the advantage of an attempt to ascertain the value of what was
lost on a logical basis; whereas the trial Judge’s “gut feeling” (to use
the words of appellant’s counsel) as to what is fair and reasonable is
nothing more than a blind guess. (cf Goldie v City Council of
Johannesburg 1948 (2) SA 913 (W) at 920.)”.
47. In Gwaxula v Road Accident Fund (09/41896) [2013] ZAGPJHC240 , the
following was stated:
“ It is a now well-settled that contingencies, whether negative or positive,
are an important control mechanism to adjust the loss suffered to the
circumstances of the individual case in order to achieve equity and
fairness to the parties. There is no hard and fast rule regarding
contingency allowance.”
48. Koch, in The Quantum Yearbook 2022 at 121 said:
20
“ General contingencies cover a wide range of considerations which may
vary from case to case and may include: taxation, early death, saved
travel costs, loss of employment, promotion prospects, divorce, etc.
There are no fixed rules as regard general contingencies. The following
guidelines can be helpful:”
49. Sliding scale : ½ % per year to retire age, i.e., 25% for a child, 20% for a
youth and 10% in middle age ( see Goodall v President Insurance 1978 1 SA
389 (W); for child claims see Bailey v Southern Insurance 1984 1 SA 98 (A)).
50. Normal contingencies: The RAF usually agrees to deductions of 5% for past
loss and 15% for future loss, the so-called “normal contingencies”.
51. There are also unforeseen contingencies based on factors such as errors in
the estimation in future earnings and life expectancy, loss of earnings due to
unemployment and sickness, retirement at an earlier age an d hazards of life,
the list can never be exhaustive.
Conclusions
52. Having regard to the plaintiff’s injuries and Sequalae, the actuarial
methodology employed by the plaintiff’s actuary.
53. The plaintiff should therefore be awarded the amount of R 4 369 979,25 as
compensation for the past and the future loss of earnings, which represents
a fair and balanced award, properly reflecting both the evid ential record and
the risks faced by the plaintiff.
Order
51. In the result, I make the following order:
1. The application in terms of Rule 38(2) is hereby granted.
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2. The Defendant shall pay to the plaintiff the amount of R 4 369 979, 25
(FOUR MILLION, THREE HUNDRED AND SIXTY NINE THOUSAND
RAND, NINE HUNDRED AND SEVENTY NINE RANDS , TWENTY
FIVE CENTS) in respect of the claim for loss of earnings.
3. The capital amount in paragraph 2 above shall be protected by way of
Trust already established by virtue of the court order dated 06 June
2024.
4. The amount above in paragraph 2 shall be paid to the plaintiff within
14 court days of the date of this Order.
5. In the event of the aforesaid amount not being paid timeously ,the
defendant shall be liable for interest on the amount a tempore morae ,
calculated 14 (Fourteen ) days after the date of this Order to date of
payment ,as set out in section 17(3)(a) of the Road Accident Fund Act
56 of 1996.
6. The defendant shall pay the plaintiff’s taxed or agreed party and party
costs on the High Court scale, including the costs of and consequent
to the employment of Counsel, Adv FHH Kherhahn and Adv APJ
Bouwer (Curator adlitem) in respect of full day fee for 09 December
2025 on scale B and reasonable costs of expert reports delivered,
within the discretion of the taxing master.
7. The amounts referred to above will be paid to the plaintiff’s attorney
Gary Stuart garden Inc, by direct transfer into their trust account,
details of which are the following:
ACCOUNT HOLDER: GARY STUART GARDEN INC
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BANK : FIRST NATIONAL BANK
TYPE OF ACCOUNT: TRUST
ACCOUNT NUMBER: 6[...]
BRANCH : CENTURION
BRANCH CODE : 2[...]
REFERENCE NUMBER: GSG0247/NO/GS GARDEN
___________________
F MATIKA
Acting Judge of the
High Court of South Africa
Gauteng Division, Pretoria
For the plaintiff
Adv FHH KHERHAHN (072 761 6078)
Instructed by:
Gary Stuart Garden Inc
Ref: GSG0247/NO/GS GARDEN
Curator Ad Litem: Adv APJ Bouwer (072 381 5853)
For the Defendant: No Appearances
Date of hearing: 09 December 2025
Date of Judgement: 02 February 2026