SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case No: 20/38204
IN THE MATTER BETWEEN:
ADV JOHAN MALHERBE KILIAN N.O
In his capacity as Curator ad Litem to
G[…] , A[…] PLAINTIFF
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT ON APPLICATION FOR LEA VE TO APPEAL
MOSTERT AJ
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DELETE WHICHEVER IS NOT APPLICABLE
) REPORTABLE: NO
) OF INTEREST TO OTHER JUDGES: NO
) REVISED: YES
DATE SIGNATURE
1. In this matter I handed down a written Judgment as well as an Order on
the 13th of October 2025.
2. The monetary component of the Order was an award of R9601500,00 to
the Plaintiff in his representative capacity being calculated as follows:
2.1 R3 570 000,00 in respect of the patient’s past loss of income claim;
2.2 R4 531 500,00 in respect of the patient’s future loss of income claim;
2.3 R1 500 000,00 in respect of the patient's claim for general damages.
3. The Plaintiff was not satisfied with the Court Order as well as the Court’s
reasoning and launched an Application for Leave to Appeal.
4. The facts of the case is to a certain extent unique. The patient ’s claim
against the Defendant was based on the damages that she suffered as a
result of an accident that took place on the 14
th of March 1991 where she
was knocked over by an unidentified motor vehicle. She suffered a
severe brain injury in the accident. She was 9 years and 3 months old at
the date of the accident. She was still in primary school at the time of the
accident, currently she is 44 years of age.
5. The current claim against the Defendant was instituted in 2020.
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6. The Multilateral Motor Vehicle Accident Fund Act, 93 of 1969 was
applicable at the date that the accident occurred. The current Road
Accident Fund Act, 56 of 1996 came into operation on the 1 st of May
1997.
7. The reason why the claim was only instituted against the Road Accident
Fund in 2020 is not known. After institution of the claim it was defended
by the Defendant. The Defendant filed a generic plea to the Plaintiff’s
Particulars of Claim from which it is clear that the drafter of the p lea did
not apply his mind.
8. The way that the Defendant dealt with this claim illustrates a serious
dereliction of duty on the part of the Fund and a disregard for the fact that
payments to members of the public such as the patient in the instant case
is funded by the taxpayer, as well as motorists. There was no engagement
on quantum with experts who appeared on the part of the Plaintiff even
though the quantum in the case is considerable.
9. On the 2
nd of June 2025 Manoim J struck out the Defendant’s defence and
authorised the Plaintiff to proceed to trial by default.
10. When the matter came before me in the RAF Defaults Court the week of
2 September 2025 the Plaintiff appeared with two counsel. The curator
ad litem advocate Johan Killian was also present.
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11. On behalf of the Fund there were two counsel present, however none of
them held any instructions or engaged in the argument of the matter.
12. The Plaintiff utilised the services of a number of experts. The experts can
only base their opinions on the proven facts and cannot make up the facts
themselves as they go along.
13. The facts are relatively simple taking into account that the motor vehicle
accident left the patient permanently brain damaged.
14. She is 44 years of age currently. She has given birth to three children,
one of whom resides with her.
15. Plaintiff’s counsel submitted that the fact that she had children was a
liability and not an advantage that added to her quality of life and affected
her claim for general damages. The submission that a mentally
challenged person cannot enjoy parenthood is certainly a startling
proposition. This will mean that no mentally challenged person can ever
enjoy amenities of life that is associated with “normal” people.
16. Plaintiff’s counsel also submitted that as a result of the accident the
patient became promiscuous.
17. The function of the actuary in motor vehicle collision matters is to place
contingencies before a court as to what reduction or increase needs to be
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applied to the personal injury losses that the victim of a motor vehicle
collision has suffered. He deals with complicated mathematical
calculations. Invariably the actuary bases his calculation on the opinion
or factual conclusions of other experts. The court is not bound by the
calculations that the actuary provides. See Visser & Potgieter Law of
Damages First Edition p 367. See also Legal Ins v Botes 1963 (1) SA 608
A. The Court is entitled and in fact duty -bound to evaluate the
conclusions of the actuary.
18. Based on the speculative nature of the patient’s education and what she
would have achieved in life there is a high degree of contingency
variation applicable in this case.
19. The patient suffers from HIV . According to the Plaintiff’s counsel the
patient’s HIV condition is under control as she receives proper treatment.
However, it is a medical fact that HIV infection increases the risk of
chronic diseases such as cardiovascular disease, certain cancers and
diabetes (www.verywellhealth.com).
20. It is a fact that woman who bear children often compromise their career
opportunities by deciding to rather focus on the rearing of their children.
See article “The complexity of childbearing and career advancement in
senior leadership in South African”, reference https://repository.up.ac.za.
This fact invariably leads to reduction in earning capacity.
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21. The actuary Whitaker submitted two expert reports, one dated 3 August
2023 and the other dated 18 June 2025. In the latter report he reduced the
patient’s claim for past and future loss of income based on an addendum
of a report of the industrial psychologists Linde and Jooste. The latter
compiled an addendum dated 10 August 2023 where they concluded that
should the patient have completed an NQF5 qualification (post matric) it
is expected that she would have worked in internship and contract
positions for 2- 3 years while completing her tertiary studies and gaining
workplace experience. During this period of time, she would have earned
at the Patterson A1 level (basic salary). She would then have entered the
open labour market earning within the Patterson B2 level. The fact that
the same actuary provided two reports against emphasizes the highly
speculative nature of the patient’s claim. The actuary did not consider the
patient's HIV status on her career path, nor the fact that she had children.
22. I did not agree with the conclusions of the Plaintiff’s witnesses insofar as
it related to the quantum of the patient’s claim. I t is a known fact that a
court of first instance has a wide discretion to apply contingencies to
proposed quantifications. I made due provision to the fact that in all
likelihood the patient would not have worked until the age of 65. I also
make provision for unemployment due to motherhood.
23. In terms of the claim for general damages the claim significantly
escalated during the pursuit of the claim. When Summons was initially
instituted the patient’s claim amounted to general damages of R1 million.
Subsequent to the issue of the Summons the claim was amended to R2
million. When the matter was argued counsel brought an application for
general damages to be awarded in R3 million. The question can be asked
how can a claim
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for general damages increase with the facts giving rise to the claim for
general damages not changing.
24. The test for whether a court should grant leave to appeal is set out in
Section 17(1)(a)(i ) of the Superior Courts Act, 10 of 2013 namely
whether there is a reasonable prospect of success . I am not convinced
that a different court will come to a different conclusion.
25. ORDER
Application for leave to appeal is refused
_______________________
DNH MOSTERT
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
This Judgment is handed down electronically by circulation to the Plaintiff’s Legal
Representative and the Defendant by email, publication on Case Lines. The date for the
handing down is deemed 25 February 2026
Date of appearance: 3 February 2026
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Date Judgment delivered: 25 February 2026
Appearances
For the Plaintiff: Adv Danie Combrink
Instructed by: Erasmus De Klerk Inc
For the Defendant: NO APPEARANCE