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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:
MAGANTSHE ISSAC MAILA
and
ROAD ACCIDENT FUND
JUDGMENT
BURNETT. AJ
CASE NO: 2808/2021
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 default application before this court is in respect of merits and quantum. In
respect of general damages, the Plaintiff seeks an order for loss of earnings.
[3] T he necessary original documentation, i.e. a) combined summons; b) return of
service; c) application for default judgment and d) notice of set down were properly
filed with t his 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.
MERITS
[5] T he Plaintiff was called to g ive oral testimony on the merits o f the matter. The
Plaintiff testified as to his age, address and the fact that he was a passenger in a
motor vehicle and that there was a collision with another motor vehicle ("the other
motor vehicle"). The Plaintiff further testified that t he collision occurred by the
negligent driving of the other motor vehicle and confirmed the reasons for this
accord with those that have been pleaded in the particulars of claim. The Plaintiff,
as a passenger, cannot be to blame for the collision and there was no fault on his
part.
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[6] T he Plaintiff testified that he sustained injuries because of the collision.
[7] T he Plaintiff was a credible witness and there was no reason before this court to
reject his evidence.
APPLICATION IN TERMS OF RULE 38 (2)
[8] After the Plaintiff testified to the merits of the matter, he brought a formal application
in terms of Rule 38 (2) of the Uniform Rules of Court, in terms of which he sought for
his evidence in respect of quantum 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
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."
[9] T he original application was filed before the court. Having considered the
application and 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 his expert witnesses via affidavit, the court granted the
application in terms of Rule 38 (2).
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EXPERT EVIDENCE
[1 0] The Plaintiff appointed expert witnesses to give evidence in support of his claim.
The court is satisfied that these witnesses are in fact expert witnesses, and their
evidence is accepted as such. Such experts included a Specialist Orthopedic
Surgeon, an Occupational Therapist, an Industrial Psychologist and an Actuary.
INJURIES
[11] The Plaintiffs injuries were mostly orthopedic in nature for which he has reached a
maximum medical improvement. The Plaintiffs orthopedic injuries have caused him
to suffer chronic pain. He cannot stand and walk for prolonged periods, and neither
can he climb stairs. He cannot lift heavy objects or engage in any strenuous
activity.
[12] Both the occupational therapist and the industrial psychologist opine that the
Plaintiffs work capacity has been affected by his injuries and that he is deemed to
be vulnerable in the open labour market.
LOSS OF EARNINGS
[13] The Plaintiff is a construction worker performing heavy physical labour. A
construction worker is deemed to be a semi-skilled worker. The occupational
therapist opines that his current physical capacity does not meet the demands of his
pre-accident duties. He is not suited for work that requires weight handling above
14 kilograms and prolonger elevated work. He is suited for sedentary, light and up
to lower range medium category work.
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[14] Hard physical work is part and parcel of being a construction worker and accordingly
it is not possible for him to continue working in this capacity. Construction workers
spend all their time inter alia walking, standing, bending, climbing and carrying heavy
loads. It is a major physical job. The Plaintiff cannot meet these physical demands
post-accident.
[15] The industrial psychologist opines that the Plaintiff would have been able to continue
to work as a construction worker until the age of 65 (sixty-five) years old, but for the
accident. The Plaintiff is not suitable for sedentary (deskbound) roles because he
does not have a matric qualification; his highest level of schooling is only grade 10.
The Plaintiff will struggle to find suitable work, and probably not at all.
[16] The actuary calculates the total loss of earnings (after contingency deductions) to be
R 3 627 497 (three million six hundred and twenty-seven thousand four hundred and
ninety-seven rand). I am satisfied that the above actuarial calculations are a true
reflection of the Plaintiff's loss of earnings.
CONTINGENY DEDUCTIONS
[17] The actuary has included a contingency deduction of 10% (ten percent) in respect of
pre-morbid loss of earnings and 15% ( fifteen percent) on the post morbid loss of
earnings.
[18] A contingency deduction allows for the possibility that the Plaintiff may have less
than normal expectations of life, and that he may experience periods of
unemployment by reason of incapacity due to illness, accident, unrest or unstable
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economic conditions. The underlying rationale is that contingencies allow for
general hazards of life. 1
[19] I deem the contingency loss applied by the actuary reasonable in the circumstances.
ORDER
[20] I accordingly make the following order: -
[20.1] The Defendant is 100% (one hundred percent) liable for the Plaintiffs
proven and/or agreed damages.
[20.2] The Defendant pays the Plaintiff an amount of R 3 6 27 497 (three
million six hundred and twenty-seven thousand four hundred and
ninety-seven rand) in respect of loss of earnings.
[20.3] The Defendant shall provide the Plaintiff with an undertaking in terms
of 17 (4) (a) of the Road Accident Fund Act 56 of 1996 (as amended)
in respect of future medical expenses.
[20.4] The Plaintiffs claim for general damages be postponed sine die.
[20.5] The Defendant shall be liable for the Plaintiffs 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. PS HOPANE
LLSENYATSIATTORNEYS
11 NOVEMBER 2025
10 FEBRUARY 2026