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, PRETORIA
Case Number: 84339/2018
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 13/2/2026
SIGNATURE:
In the matter between:
S SAYED N.O. Plaintiff
(Curator ad litem of MLN)
and
ROAD ACCIDENT FUND Defendant
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation t o the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Case lines. The date for hand-down is deemed to be 13th February 2026.
JUDGMENT
MAUBANE, AJ
Introduction
[1] The plaintiff is Advocate Sayed, practicing as such in the Pretoria Bar. The
plaintiff acts herein as duly appointed curator ad litem of MLN a minor who is nine
years of age.
[2] The aforesaid minor was involved in a motor vehicle accident on 6 July 2017.
At the time of the accident, the minor was six months old.
Background
[3] As a result of the accident and the injuries sustained by the minor, summons
was issued against the defendant.
[4] It is stated in the particulars of claim that the minor sus tained the following
injuries:
4.1 head injury,
4.2 Left femur fracture,
4.3 Right hemiparesis,
4.4 Left silver subdural haematoma, and,
4.5 Convulsions and seizures.
[5] After the accident, the minor was transported to Laingsburg hospital where he
was stabilized and then transferred to Tygerberg hospital for further treatment.
[6] The defendant entered appearance to defend and subsequently served and
filed a plea.
[7] It is clear from the documents filed on record that, after filing a plea, the
defendant failed to participate any further insofar as court processes were concerned.
[8] It bears mentioning that the issue of liability was settled by the parties and the
issues to be ventilated before this court were general damages and loss of earning
capacity.
[9] At the commencement of trial, counsel for the plaintiff requested that general
damages be postponed and only loss of earning capacity be dealt with.
[10] The application in terms of Rule 38(2) of the Uniform Rules of Court was
granted.
Quantum
[11] The plaintiff filed several medico -legal reports, and the defendant did not file
any reports.
[12] All the experts opined that the minor suffered from brain injuries, has long
term neurocognitive, neuro -psychiatric shortcomings and further than that, has
physical limitations which will adversely affect her esteem, -interpersonal functioning,
quality of life, scholastic outcomes as well as her future employability and earning
capacity.
[13] Dr Englebrecht (Orthopedic surgeon) opines that the minor suffered notable
traumatic brain injury with significant sequelae.
[14] Ms Cumming (Occupational Therapist) opines that the minor has a
combination of severe, multiple, physical, cognitive, emotional, behavioral and
functional deficits. These challen ges render her incapable of formal or informal
employment. She will not even be a suitable candidate for sympathetic employment.
She will emerge unemployable within the open market. As a result of multiple
functional limitations that she presents with, the combination of physical sequelae,
the aetiology of her deficits, and the length of the time since the accident in question,
her occupational prognosis will not improve with intervention.
[15] Dr Seabi (Educational Psychologist):
15.1 She opines that the accident caused both diffuse and focal brain
injuries and lasting effects on her development. The neurological damage has
led to seizures, significant changes in personality. and emotional
dysregulation, evident through her irritability and oppositional de fiance. These
challenges are consistent with long-term cognitive impairments typically
associated with brain injury.
15.2 It is highly unlikely that she will be able to meet the demands of the
senior phase, given the increasing complexity of the curricul um, which
requires advanced thinking and learning skills. Her cognitive, behavioral,
academic, and physical challenges place her at a distinct disadvantage.
15.3 Her highest level of education will, ·in all likelihood, be Grade 9, with
support (repetition of two or three grades with condoned passes). Without a
matric qualification, she will face major limitations in the job market and is
likely to be restricted to unskilled, low-paying employment.
[16] Dr Moja (Neurosurgeon):
16.1 She is suffering from r esidual weakness on her right arm and right leg.
She sustained severe diffuse and focal traumatic brain injury: Her repeated
seizures have resulted in secondary brain injury.
16.2 The CT brain scan showed evidence of a thin left acute subdural
hematoma and brain contusion.
[17] Dr Naidoo (Psychiatrist): There is evidence of a traumatic brain injury, and
there is a marked worsening of pre -existing seizure disorder, visual field cuts,
anosmia, and hemiparesis.
[18] Dr Smuts (Neurologist): She opined that th e EEG is extremely abnormal and
indicates an:
18.1 Excessive background slowing; and,
18.2 Generalized epileptiform dysfunction.
[19] According to Ingrid Jonker (Neuropsychologist), the minor is left with neuro -
cognitive difficulties, which have been dem onstrated by the results of
neuropsychological assessment as well as by the following reports:
19.1 Memory difficulties as she has, for instance, been forgetful when sent
on errands,
19.2 Mental slowing and a slow working pace, observed during the
assessment,
19.3 Verbal fluency difficulties, and,
19.4 Delayed developmental milestones (she spoke much later than her
peers).
[20] Dr Fredericks (Disability and impairment assessor) opine d that the minor has
been rendered unemployable in the open market.
[21] T Talmud (Industrial psychologist):
21.1 He opined that since the minor is a minor, there is no loss of past
earnings, however noted that she has been rendered unemployable in the
open labour market and as such, future loss of earnings arise.
21.1.1 Pre-morbid: At the time of the accident, the minor was only six
months old. According to the psychological report of the industrial
psychologist, the minor was attending Grade 2 in 2024. T he industrial
psychologist opined that but for the accident, she would have
completed Grade 12 at the age of eighteen, that is in 2034.
21.1.2 It would have taken 3 to 5 years to secure formal employment.
During that time, she would have worked in temporar y positions,
earning in line with the National Minimum Wage for 6 months per
annum.
21.2 Post-morbid:
21.2.1 Given the accident and injuries sustained by the minor, it was
concluded that she is regarded as unemployable, and as such, a total
loss of earnings is assessed until the age of 65.
Contingencies
[22] Contingencies in Road Accident fund cases reflect the uncertainties or risks
associated with future outcomes, especially in claims for loss of earning capacity.
The courts recognise that exact quantification is often impossible, resulting in
reliance on expert evidence, actuarial calculations, and judicial discretion (which
should not be malicious or unjust).
[23] In Van der Plaats v South African Mutual Fire & General Insurance Co
Ltd,1 the court emphasised that provision for contingencies is a matter falling within
the discretion of the trial Court, and that the amount allowed for contingencies is
variable and closely related to the facts and circumstances of each case.
[24] It was further held in Road Accident Fund v Guedes2 that:
"In assessing damages for loss of earnings or support, it is usual for a
deduction to be made for general contingencies for which no explicit
allowance has been made in the actuarial calculation. The deduction is the
prerogative of the court."
[25] Robert Koch, in The Quantum Yearbook, 2025 (at 133) emphasized that the
normal or general contingencies are 5% for past loss of earnings and 15% for future
loss of earnings.
[26] In Phahlane v Road Accident Fund,3 the court stated that:
"Contingencies are the hazards of life that normally beset the lives and
circumstances of ordinary people and there should therefore, by its very
nature be a process of subjective impression or estimation rather than
objective calculation.
[27] In Southern Insurance Association Ltd v Bailey NO,4 the court said that:
1 1980 (3) SA 105 (A) at 114F-115C-D.
2 2006 (5) SA 583 (SCA) at para 9.
3 [2017] ZAGPPHC 759.
4 1984 (1) SA 98 (A) at 99E-F.
"Where the method of actuarial computation is adopted in assessing damages
for loss of earning capacity, it does not mean that the trial judge is "tied down
by inexorable actuarial calculations". He has "a large discretion to award what
he considers right" ..
.. The amount of any discount may vary, depending upon the circumstances
of the case".
Amount claimed
[28] The plaintiff claimed an amount of R 6 257 408. for future loss of earnings.
She submitted that a 20% contingency on future loss of earnings should be applied.
Having regards to all available evidence pre sented to the court, I fully agree with the
plaintiff's submission regarding the contingencies applied and after such application,
the defendant is liable to pay the plaintiff an amount of R 5 005 929.
Order
[29] Having considered the evidence led, the court is convinced that a proper case
has been made out, and the following order is granted:
IT IS ORDERED THAT:
1. The Plaintiffs application in terms of Rule 38(2) is granted as per the prayers
in the Notice of Motion.
2. Merits were previously finalised on the basis that the Defendant was liable for
100% of the Plaintiff's agreed or proven damages.
3.1 The Defendant pay the Plaintiff an amount of five million five
thousand nine hundred and twenty -six rand (R5 005 926.00) in full and
final settlement of the Plaintiff's claim for Loss of Earnings, Sand such
payment should be made within 180 days from the date of judgment, payable
into the Plaintiff's attorneys of record trust account with the following details:
Account Holder: Ehlers Attorneys
Bank Name: FNB
Branch Code: 261550
Account Number: 6[…]
3.2 The Plaintiffs claim, in respect of General Damages is separated in
terms of the provisions of Rule 33(4) and postponed sine die. The Plaintiff is
permitted to refer the issue of General Damages to the HPCSA without the
input and/or assistance of the Defendant in order to obtain a final
outcome/resolution.
4. The Defendant shall be liable for interest on the above -mentioned amount, at
the prevailing rate of interest, as determined from time to time, in terms of the
Prescribed Rate of Interest Act, 55 of 1975 , as amended, per annum, from and
including 15 days after date of order, up to and including date of payment thereof.
5. The Defendant is ordered to furnish the Pla intiff with an undertaking, in terms
of Section 17 (4) (a) of the Road Accident Fund Act 56 of 1996 , for the costs of
the administration of the proposed trust,
6. future accommodation in a hospital or a nursing home or treatment of or
rendering of a servic e or supplying of goods to the injured after such costs have
been incurred and on proof thereof, relating to the injuries sustained by the Plaintiff
on 6 July 2017.
7. The Defendant is ordered to pay the Plaintiffs taxed or agreed party and party
costs on High Court scale, in accordance with Rule 70 of the High Court, subject to
the discretion of the taxing master , which costs may include, but will not be limited
to the following:
7.1 The reasonable taxed fees for consultation with the experts mentioned
below, together with delivery of expert bundles including travelling and time
spent travelling to deliver such bundles, preparation for trial, qualifying and
reservation fees (if any and on proof thereof), including the costs of all
consultations (inclusive o f telephonic consultations) with Counsel and/or
Plaintiffs attorney and the costs of all consultations, as well as costs of the
reports, addendum reports, full day fees for court attendance (if at Court) of
the following experts:
7.1.1 Dr Engelbrecht - Orthopaedic Surgeon
the following experts:
7.1.1 Dr Engelbrecht - Orthopaedic Surgeon
7.1.2 Dr Moja - Neurosurgeon
7.1.3 Dr JA Smuts - Neurologist
7.1.4 Jonker - Neuropsychologist
7.1.5 Dr Seabi - Educational Psychologist
7.1.6 Dr M Naidoo - Psychiatrist
7.1.7 Dr Weitz - Ophthalmologist
7.1.8 K Cumming - Occupational Therapist
7.1.9 Dr Fredericks - Disability and Impairment Assessor
7.1.10 T Talmud - Industrial Psychologist
7.1.11 G Jacobson - Actuary
7.2 The costs for Accommodation and transportation (as per the prescribed
AA rates) of the plaintiff and/ or family members, to the medical legal
examination(s) arranged by Plaintiff.
7.3 The costs for Accommodation and transportation with JT
Transportation Services or any alternative transport provider, for the Plaintiff
as well as a family member to attend Court.
7.4 The costs for preparation of Plaintiffs bundles of documents for trial
purposes, as well as the travelling costs (as per the prescribed AA r ates) and
time spent to deliver these bundles.
7.5 The costs for preparation of Plaintiffs bundles of documents for experts,
as well as the travelling costs (as per the prescribed AA rates) and time spent
to deliver these bundles and loading same on Case lines.
7.6 The costs and fees of the Curator ad litem shall be on scale B in
accordance with Rule 69 and Rule 70 of the High Court. These costs shall
include, but not be limited to, any consultations deemed necessary, such as
consultations with trustees, the Master's office, the Pla intiff's attorney, family
members of the injured, medical experts, and any other experts deemed
necessary.
Additionally, the costs shall cover the drawing of reports and day fees for 19
January 2026.
7.7 The costs for preparation of Plaintiffs bundles of documents for the
curator ad litem, as well as the travelling costs to deliver these bundles.
7.8 The costs of Adv JF Grobler SC shall be on scale C in accordance with
Rule 69 and Rule 70 of the High Court, brie fed and appearing for trial,
including but not limited to the following:
7.8.1 Preparation for Trial;
7.8.2 Consultations with Plaintiffs Attorney in respect of Preparation
for Trial;
7.8.4 Drafting heads of argument.
7.8.5 Day fee for 19 January 202 6.7.9 The costs of the Affidavits
compiled by the listed Experts in order for the Plaintiff to proceed to
trial or on a default Judgment basis.
8. The Defendant is ordered to pay the Plaintiffs taxed and/or agreed party and
party costs within 14 days from the date upon which the accounts are taxed by the
Taxing master and/or agreed between the parties.
9. The Defendant shall be liable for interest on the costs aforementioned, at the
prevailing rate of interest, as determined from time to time, in terms of the Prescribed
Rate of Interest Act, 55 of 1975, as amended, per annum, from and including 15
days after date of allocatur, up to and including date of payment thereof.
10.1 A trust is to be established for the protection of the funds awar ded in
this matter;
10.2 The trust shall subsist for the lifetime of the plaintiff, subject to plaintiff ’s
right to apply to the High Court, for the dissolution of the trust.
10.3 The following trustees for the trust are appointed: Saqsby
Administrators (Pty) Ltd and RW Robbertse . Attached is the draft trust
instrument, marked annexure "XYZ".
11. The trustees shall provide security in accordance with the requireme nts of the
Master of the High Court. The Plaintiff's attorneys, Ehlers Attorneys, are authorised
to pay from the abovementioned funds held in trust, the costs to set security to the
Master of the High Court by the trustees of the trust to be created, which costs in
turn shall be refunded by the Defendant to the Plaintiff on proof of payment thereof.
12. The Plaintiff's attorneys of record, Ehlers Attorneys, shall appoint a company
specialising in Road Accident Fund trust registrations t6 -attend to the creation of the
inter vivos trust in order to protect the awarded funds for the exclusive benefit of the
injured. It is noted that such company has the authority to act as the founder of the
trust.
injured. It is noted that such company has the authority to act as the founder of the
trust.
13. The remuneration of the trustees shall be in accordance with the trust
instrument, attached hereto.
14. Amendments to the trust instrument relating to the termination or
remuneration of the trustees shall be subject to the approval of the High Court
15. The Defendant shall be liable for the costs and exp enses for the creation and
management of the trust, which form part of s 17(4)(a) of the Road Accident Fund
Act. Such costs will include the fees of the trustees as set out in the trust instrument,
attached hereto and mentioned in paragraph 12.
16. The Plaintiff's attorneys, Ehlers Attorneys, shall keep the monies received as
set out in paragraph 3.1 of this order in their Attorney's trust account and will only be
allowed to pay such monies over to the trustees of the trust to be created in terms of
paragraph 11 of this order, once the Master of the High Court has issued the
trustees with the necessary letters of authority.
17. The Plaintiff's abovementioned attorneys are, however, authorised and
ordered until such time as the trustees are able to take control of the capital sum and
to deal with same in terms of the trust deed, to pay from the capital amount:
18.1 Any reasonable payments to satisfy any of the Plaintiff's needs that
may arise and that are required in order to satisfy any reasonable need for
maintenance, treatment, care, aids or equipment that may arise in the interim;
18.2 The attorney and client fees and expenses of the Plaintiff from the
abovementioned funds held in their Attorney's trust account.
19. It is recorded that a Contingency Fee A greement is applicable. The aspects
relating to VAT issue in the contingency fee agreement shall be determined by the
outcome an appeal relating to this issue.
M C MAUBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Plaintiff: ADV J.F GROBLER SC
Instructed by: EHLERS ATTORNEYS
For the Defendant: No Appearance