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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.
2026/03/03 DATE ......................... SIGNATURE. ... .
In the matter between:
BOITUMELO MOHLALA
and
ROAD ACCIDENT FUND
JUDGMENT
BURNETT. AJ
CASE NO: 7675/2022
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 general damages only, the previous heads of damage having
already been finalised.
[3] I n her Particulars of Claim, the Plaintiff claims R 1 000 000.00 (one million rand) in
respect of general damages.
[4] 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
it.
[5] T here was no appearance on behalf of Defendant.
APPLICATION IN TERMS OF RULE 38 (2)
[6] 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: -
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"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
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."
[7] T he original application, as well as a supplementary affidavit to further support her
application, was filed before the court.
[8] 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).
PREVIOUS ORDERS
[9] On 5 May 2023 the Honourable Judge Kganyago made an order that: -
[9.1] Merits settled in favour of the Plaintiff.
[9.2] T he Defendant shall pay 100% (hundred percent) of the plaintiff's
proven or agreed damages.
[9.3] T he issue of quantum is to be posted sine die.
[9.4] Costs in the cause.
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[1 0] On 31 January 2025 the Honourable Acting Judge Mashifane ordered inter a/ia that:
[10.1 ] Default Judgement was granted.
[10.2] The Defendant compensates the Plaintiff an amount of R 2 973 229.31
(two million nine hundred and seventy-three thousand two hundred
and nine rand and thirty cents only) after deductions of the merits
apportionment.
[10.3] The issue of general damages is postponed sine die pending the
outcome of the defendant.1
SERIOUS INJURIES
[11] Compensation for general damages (otherwise known as non-pecunia ry loss) in
Road Accident Fund matters is governed by section 17 of the Road Accident
Fund Act2 read with the regulations. When the Road Accident Fund Act3 was
amended, it placed certain limitations on claims for general damages .
[12] From the time of enactment of the Amendment Act, non-pecuniary loss became
limited to "compensation for a serious injury." 4 If a claimant wants to claim general
damages against the fund, the claimant must have a serious injury, and in order to
prove that she does have a serious injury, she must be assessed by a medical
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3
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It is unclear what ''pending the outcome of the Defendant " means .
injuries are serious .
Act 56 of 1996.
Act 19 of 2005 .
Section 17 (1) of the Road Accident Fund Amendment Act 19 of 2005.
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practitioner. The medical practitioner must complete a Serious Injury Assessment
Report. Regulation 1 defines this report as a duly completed RAF4 Form.
[13] The amendment in section 17(1 )(A) is regulated by Regulation 3 of the Amendment
Act which sets out the prescribed method of assessing a serious injury and the
definition thereof.5
[14] Upon receipt of the RAF4 Form and after consideration thereof, if the Road Accident
Fund is not satisfied that the injuries were correctly assessed as serious, it can reject
the RAF4 Form and in consequence thereof the claim for general damages. 6 The
Road Accident Fund has 90 days "from the date on which the Serious Injury
Assessment Report was sent by registered mail or delivered by hand to the
Respondent, to accept or reject the Serious Injury Assessment Report or direct that
the third party submit himself or herself to a further assessment. '17 Neither the Road
Accident Fund Act, nor the regulations prescribes whether the acceptance or
rejection of the RAF4 Form must be in writing.
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6
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Regu lation 3 of the Act prov ides that: - "(1) (a) a third party who wishes to claim compensation
for non-pecuniary loss shall submit himself or herself to an assessment by a medical practitioner
in accordance with the regulation. {b) The Medical practitioner shall assess whether the t hird
party's injury is serious in accordance with the following method: (ii) If the injury resulted in 30%
or more impairment of the W hole person as provided in t he A MA G uides, the injury shall be
assessed as serious. (iii) An injury which does not result in 30% or more impairment of the Whole
Person may only be assessed as serious if that injury: (aa) r esulted in a serious long-term
impairment or l oss of a body function; (bb) constitutes permanent serious disfigurement;
(cc)resulted in severe long-term mental or severe long-term behavioural disturbance or
disorder; or {dd) resulted in loss of a foetus." (2 December 2022) para 15 for an explanation on the
effect of the change.
See Mertz v RAF (A96/2021) [2022] ZAGPPHC 961 (2 December 2022) para 16 for a discussion on
this.
Regulation 3(3)(c).
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[15] Following the promulgation of the Road Accident Fund Amendment Act and its
accompanying regulations, it was held in Road Accident Fund v Faria8 that the
assessment of serious injuries is an administrative function and not a judicial one. 9
The court cannot assume an administrative function and decide on whether the
claimant's injuries are serious.10 A trial court in an action for damages cannot
decide as to whether a Plaintiff a sustained a serious injury.11 The trial court can
only quantify the damages in relation to the serious injury, if it has been accepted by
the Road Accident Fund that the Plaintiff's injury is serious.
DISCUSSION
[16] If the Plaintiff's injuries resulted in a 30% or higher whole-body impairment, the injury
is deemed serious, and the claimant is entitled to claim general damages. In
circumstances where the injuries have not resulted in a 30% whole body impairment,
general damages may be awarded if, according to the narrative test, the injury has
resulted in "serious long-term impairment or loss of body function, permanent
serious disfigurement, severe long-term mental or severe long-term behavioural
disturbance or disorder, or the loss of a foetus."
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2014 (6) SA 19 (SCA) para 36. Also see Adv Knoetze obo NB Malinga and Another v Road Accident
Fund (2022] ZAGPPHC 819 (2 November 2022).
Mertz v RAF (A96/2021) [2022] ZAGPPHC 961 (2 December 2022) para 18.
Alvina Chetty v Road Accident Fund (A91/21) (2021] ZAGPPHC 848 (7 December 2021) para 19.
See the Road Accident Fund v Duma, Road Accident Fund v Kubeka, Road Accident Fund v
Meyer, Road Accident Fund v Mokoena (2012] ZASCA 169 at p ara 19 where in it was held t hat:
"in accordance with the model that the legislature chose to adopt, the decision whether or not the
injury of a third party is serious enough to meet the threshold requirement for an award of
general damages was conferred on the Fund and not on the court. That much appears from the
general damages was conferred on the Fund and not on the court. That much appears from the
stipulation in regulation 3(3)(c) that the und shall only be obliged to pay general damages if the
Fund-and not the court-is satisfied that the injury has correctly been assessed in accordance with
the RAF 4 form as serious. Unless the Fund is so satisfied the plaintiff simply has no claim for
general damages . This means that unless the plaintiff can establish the jurisdictional fact that the
Fund is so satisfied, the court has no jurisdiction to entertain a claim for general damages against
the Fund. Stated somewhat differently, in order for the court to consider a claim for general
damages , the third party must satisfy the Fund, not the court, that his or her injury was serious."
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[17] The Plaintiff submitted herself for a medical assessment and a RAF4 Form was duly
completed and submitted to the Road Accident Fund and received a whole-body
impairment determination at 9%. The Plaintiff has not achieved 30% or more bodily
impairment and accordingly seeks general damages based on the narrative test.
(18] It was found in Mngomezulu v RAF12 that the narrative test is a safety net for those
claimants who have not achieved a 30% whole bodily impairment in accordance with
the AMA 13 guidelines.
(19] In Daniels and 2 Others v RAF14 found that the narrative test was not limited to rare
and isolated cases but could be applied in any instances where the claimant has not
achieved a 30% whole bodily impairment. The test is based on the daily activities
of the claimant, which include inter alia such as grooming, toileting, feeding,
dressing, bathing, driving, sexual function, money management, shopping and
housework and the role that the claimant plays in life. The narrative test is a
broader test than the whole-body impairment test.
[20] The Plaintiff appointed expert witnesses to give evidence in support of her claim
based on the narrative test. The court is satisfied that these witnesses are in fact
expert witnesses, and their evidence is accepted as such.
[21 ] The Plaintiff further filed a s upplementary affidavit at the commencement of the
matter in which she deposed to under oath, inter a/ia that: -
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Unreported case no 4643/2010 (Gauteng High Court).
American Medical Association.
Unreported case no 8853/2010 (Western Cape High Court) .
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"On 30 October 2024 the defendant rejected General Damages, and we proceeded
with loss of earnings on 31 January 20225. A copy of the rejection letter is attached
as Annexure 81 ." No letter was attached.
"The matter was then referred to the HSCSA on the 29 January 2025. On the 22
July 2025, HPCSA accepted the seriousness of the injuries. A copy of the outcome
is attached hereto and marked 82. " The letter was not attached as an annexure to
the affidavit; however, a copy of the letter was handed up separately by the Plaintiffs
counsel.
[22] The letter from the HPCSA (Health Professions Council of South Africa) stated inter
alia that: -
"After consulting all available evidence presented to the committee, it was found that
the injuries sustained by the patient is classified as Serious in terms of the narrative
test."
[23] The question is whether this letter alone is sufficient to prove to the court that the
Road Accident Fund has taken an administrative decision pertaining to the
seriousness of the Plaintiffs injuries. The answer to this is negative.
[24] Firstly the rejection letter of the Road Accident Fund was not attached to the
supplementary affidavit, and there is no explanation from the Plaintiff as to why she
referred the serious injury assessment to the HPCSA as opposed to taking the Road
Accident Fund's administrative decision on review, if there was in fact a decision. A
letter from the Health Professions Council cannot simply be submitted to court
without giving it any factual context.
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[25] According to the supplementary affidavit, the Road Accident Fund rejected the
Plaintiff's injuries as serious on 30 October 2024, but there is no explanation as to
what the order of 31 January 2025 means when it states that: "The issue of general
damages is postponed sine die pending the outcome of the defendant" and if this
condition has been fulfilled.
ORDER
[26] I accordingly make the following order: -
[26.1] The matter is postponed sine die.
[26.2] The Plaintiff must submit a supplementary affidavit to satisfy this court
that: -
[26.2.1]
[26.2.2]
[26.2.3]
It has fulfilled paragraph 3 of the order dated 31 January
2025 and more particularly the section that refers to
"pending the outcome of the defendant".
The Road Accident Fund has taken an administrative
decision on whether the Plaintiff's injuries are serious.
The role of the HPCSA in this matter, to what extent the
referral of the assessment of the injuries to the HPCSA
was by agreement with the Road Accident Fund, and
whether the Road Accident Fund has accepted the
decision taken by the HPCSA.
[24.3] Costs in the cause.
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 PHATUDI
NKP MANAMELA ATTORNEYS
11 NOVEMBER 2025
3 MARCH 2026