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[2026] ZAGPJHC 305
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Tsotetsi v Road Accident Fund (2025/106758) [2026] ZAGPJHC 305 (20 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number:2025/106758
(1)
REPORTABLE: YES /
NO
(2)
OF INTEREST TO OTHER JUDGES: YES /
NO
(3)
REVISED: YES /
NO
20
March 2026
In
the matter between:
THUBA
POLICEMAN TSOTETSI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MAKGATE AJ:
INTRODUCTION
[1]
The Plaintiff is a 47-year-old male,
previously self-employed as a livestock trader, selling goats to the
public and allegedly earning
R20 000.00 per month (net). This is a
default judgment application wherein the Plaintiff seeks damages
arising from a hit-and-run
motor vehicle collision that occurred on
27 February 2023 on the R23 Road, Greylingstad, Mpumalanga, which
amount is computed as
follows:
[1.1]
R2000.00 for past medical and hospital expenses.
[1.2]
R50 000.00 for future medical expenses.
[1.3]
R2 808 555.00 for past and future loss of earnings /
earning capacity.
[2]
In
this default judgment application, the Plaintiff, proceeded on both
aspects of merits and quantum. The issue of general damages
was
however postponed
sine
die.
An order in terms of Rule 38(2) of the Uniform Rules was sought and
granted.
MERITS
[3]
The collision occurred on the 27 February
2023 at approximately 18H00 on the R23 Road, Greylingstad,
Mpumalanga. Same was reported
at Greylingstad Police Staton under
case number AR 071/02/2023.
[4]
According to the Plaintiff’s section
19(f) affidavit which details how, where and when the collision
occurred, he alleges
that he was a pedestrian walking along the
sidewalk when a white Land Cruiser motor vehicle with unknown
registration numbers left
the roadway and collided with him. The
driver immediately fled the scene without stopping or rendering
assistance.
[5]
Section 17(1)
of the
Road Accident Fund Act
56 of 1996
states that the Road Accident Fund “
shall
be obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result
of any bodily
injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from
the driving of a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence
or other wrongful act of the driver
or of the owner of the· motor vehicle or of his or her
employee in the performance of
the employee's duties as employee.”
[6]
This statutory obligation includes hit-and-run
cases and what is required of the claimant to succeed in his or her
claim, is that
the accident was caused by a motor vehicle, that same
was due to a negligent driving of the motor vehicle, and that, as a
result
of the negligent driving of the motor vehicle, bodily injuries
have been sustained.
[7]
That said,
liability in a hit-and-run claim
is typically governed by the ordinary principles of delict, read
together with the
Road Accident Fund Act 56 of 1996
, particularly
section 17
(1)(b).
[8]
It is trite that the onus rests on the Plaintiff
to prove the Defendant's negligence which caused the damages suffered
on a balance
of probabilities. To avoid liability, the Defendant must
produce evidence to disprove the inference of negligence on its part,
failing which it risks the possibility of being found to be liable
for damages suffered by the Plaintiff.
[9]
In the circumstances, for the
Defendant’s
liability to diminish, the Defendant must adduce evidence to prove
that the Plaintiff was negligent in causing
the collision. The
Defendant in this case did not present any evidence to this effect.
There is only one version before this Court
which version I find very
probable. Same is also corroborated by the accident report and the
medical records. As a result, there
is no basis to doubt it.
[10]
In the matter of the
Manuel
v SA Eagle Insurance Co. Ltd
1982 (4) SA 352
at 357 A – D,
it
was held that:
"The
principles to be extracted from these cases are as follows. A
motorist who sees a pedestrian on the roadway or about to
venture
thereon, should regulate his driving so as to avoid an
accident.
Whether the motorist
is reasonably entitled to assume or infer, from the conduct of the
pedestrian, that his right of way is being
recognised and respected,
is a question of fact to be decided in each case. When the assumption
is not justified, the motorist
must regulate his driving to allow for
the possibility, or probability, that his vehicle may not enjoy an
unobstructed passage."
[11]
Based on the aforesaid and for purposes of
determining liability, particularly in this case, corroboration is
imperative. As a result,
the Courts will place weight on the accident
report, medical records and independent witness statements, if any.
[12]
In this matter, although the Plaintiff has
opted to deal with his evidence by way of an affidavit, I am
satisfied that documents
relied on do corroborate with his version in
that there is an accident report at Caselines 014-40 detailing how
the collision occurred.
Also, there are medical records at Caselines
014 -44 confirming the nature of the injuries sustained with a brief
description recorded
by the medical staff on how those injuries were
sustained.
[13]
On the other hand, there was nothing
presented by the Defendant to persuade me that a different view
should be applied.
For the above reasons, the insured
driver’s negligence was the sole cause of the collision.
[14]
Based on the aforesaid, I find the
Defendant 100% liable for the Plaintiff’s proven damages.
Aftermath of the
collision
[15]
Immediately following the collision, the
Plaintiff attended at a clinic, where he received initial assessment
and stabilization.
He was then transferred by ambulance to Standerton
Hospital on 28 February 2023.
[16]
Upon admission to Standerton Hospital, the
Plaintiff underwent medical evaluation, including radiological
examination. The diagnostic
findings revealed that he had sustained a
lateral malleolar fracture of the right ankle. This injury required
orthopaedic intervention,
and the Plaintiff's right leg was
immobilized in a plaster cast and he was discharged the following
day. He then returned for follow-up
treatment on 22 March 2023.
MEDICO LEGAL
EXPERTS
ORTHOPAEDIC SURGEON –
Dr Tshibidi
[17]
The orthopaedic assessment confirms that
the Plaintiff sustained a right ankle fracture. The report further
stated that the injury
was treated conservatively with plaster of
paris and the fracture has united
albeit
persistent residual symptoms, including
pain, reduced range of motion and functional limitations in the right
lower limb. It is
further stated in the report that the Plaintiff
presents with an antalgic gait and requires a crutch for ambulation.
He further
reported difficulty with prolonged standing, walking long
distances, and carrying heavy objects. According to the orthopaedic
surgeon,
the Plaintiff has reached maximum medical improvement.
[18]
The orthopaedic’ s opinion recognises
that the Plaintiff’s
sequelae
will
impact on his employability and amenities of life due to ongoing
pain. The orthopaedic surgeon further noted pre-existing conditions
relating to a right humerus fracture and head injury as a result of a
motor vehicle accident during 2019. The pre-existing conditions
are
unrelated to the case in casu.
OCCUPATIONAL THERAPY –
MS NIEUWOUDT.
[19]
The Occupational Therapist, Ms Nieuwoudt, opines
that the
Plaintiff’s assessment results indicate
possible neurological fallouts including pain in the entire right
side of his body,
tremors in his limbs and body, but more pronounced
to the right side, avoiding the use of the right hand,
incoordination/ataxia
and difficulty planning movement. These
limitations render the Plaintiff unfit for manual type of work,
including his former work
as a farmer. According to the OT, she is of
the opinion that if these limitations were present prior to the
accident in question,
the Plaintiff would not have been capable of
functioning independently or to farm.
[20]
She further opines that there is currently
no evidence to support the reason the Plaintiff needs to walk with an
elbow crutch since
the fracture has healed and there are no
indications of significant orthopaedic pathology or degenerative
changes such as osteoarthritis.
From a functional point of view and
that’s according to the OT, it thus appears more plausible that
the need for the elbow
crutch can be supported by reasons other than
the ankle fracture, such as his current limitations to the right side
of his body,
tremors, incoordination, etc.
[21]
Importantly, she opined that given the
injury he sustained in the accident in question, one would have
expected a level of recovery
that would have allowed him to walk
unaided.
INDUSTRIAL PSYCHOLOGIST –
DEL VALLE
[22]
The Industrial Psychologist evaluated the
Plaintiff’s pre- and post-accident employability and earning
capacity. According
to the IP, pre-morbidly, the Plaintiff was a
self-employed farmer engaged in livestock rearing and sales, with
earnings dependent
on informal or unverified income streams.
Post-accident, the Plaintiff is recorded as unemployed, with the
assessment explicitly
considering both hypothetical uninjured career
progression and the current injured scenario. The IP’s report
incorporates
medical expert findings of the orthopaedic, OT and
labour market data, concluding that the accident has had a direct and
material
impact on his employability.
[23]
The IP has concluded that the Plaintiff’s
physical limitations significantly reduced his competitiveness in the
open labour
market, particularly given his limited education (Grade
11), lack of formal skills, and prior reliance on physically
intensive
work. His inability to perform sustained physical tasks,
combined with ongoing pain and mobility restrictions, renders him
unemployable
or at best restricted to low-demand, sedentary roles,
for which he is not suitably qualified. The report therefore supports
a substantial
diminution, if not a total loss of earning capacity,
which aspects forms the primary basis for actuarial quantification.
ACTUARIAL REPORT –
VALENTINI
[24]
The actuarial report quantifies the Plaintiff’s
loss of earnings based on the industrial psychologist’s
postulations
and standard actuarial assumptions. The calculation is
based on a projected uninjured earning trajectory aligned with
semi-skilled
upper earnings (R233 000.00 per annum), adjusted for
inflation and contingencies.
[25]
The actuarial outcome reflects a total loss of earnings of
R2,808,555, comprising:
Past
loss: R549,765
Future
loss: R2,258,790.
[26]
In his calculations, the actuary has applied contingencies of 5% for
past and 15% for future regarding the uninjured
scenario, with no
earnings assumed post-accident. The report therefore adopts a total
loss of earnings premised on complete unemployability.
ANALYSIS
[27]
On the evidence presented, the Plaintiff’s
case on quantum is vulnerable on the extent of functional incapacity,
proof of
pre-morbid earnings, and the assumption of total
unemployability. The OT has opined that there is a healed ankle
fracture despite
the Plaintiff’s contention that he has
suffered total loss of earnings. On the contrary, the medico legal
reports reveal
discrepancies and important concessions which place
the Plaintiff’s case in doubt.
[28]
The Plaintiff reported to the experts that
because of the ankle fracture that has since healed and united, he
has suffered and continues
to suffer a range of permanent
disabilities that have fundamentally altered his quality of life and
economic prospects. In the
immediate post-accident period, extending
for approximately three months, the Plaintiff reported that he was
unable to attend to
basic personal hygiene and self-care functions
without assistance. This included activities such as bathing,
dressing and other
activities of daily living that able-bodied
individuals take for granted.
[29]
According to the Plaintiff’s version
as reported to the experts, he continues to experience chronic pain
at the site of the
fracture. This pain is particularly exacerbated
during periods of inclement weather. The pain is also aggravated
during physical
activity, effectively limiting the Plaintiff's
ability to engage in any occupation or recreational activity that
requires sustained
ambulation, standing, or physical exertion.
[30]
It is recorded that his functional
limitations extend to difficulty walking even moderate distances. It
is further recorded that
the Plaintiff could previously walk for
extended periods as required by his livestock trading occupation,
however, he now experiences
significant discomfort and fatigue after
minimal ambulation.
[31]
Furthermore, as reported to the experts, it
was submitted by the Plaintiff’s counsel that the Plaintiff is
totally unable
to return to his pre-accident occupation as a
livestock trader since this occupation inherently requires
substantial physical capability,
including the ability to handle
animals, walk long distances across farm terrain, load and offload
animals from transport vehicles,
and maintain balance on uneven
surfaces. All these activities are now impossible or extremely
difficult for the Plaintiff given
his ankle injury.
[32]
Consequently, he is confined to seeking
light duty employment only, meaning sedentary or minimal physical
exertion roles that would
represent a substantial diminution in his
earning capacity even if such employment could be secured.
[33]
Amongst
other heads of damages that the Plaintiff claim is past and future
loss of earnings or earning capacity. That said, the
principle
relating to this head of damages is that loss of earnings or earning
capacity is assessed on the basis that the Defendant
must make good
the difference between the value of the Plaintiff’s estate
after the commission of the delict and the value
it would have had if
the delict had not been committed. See
Santam
Versekeningsbemaatskappy beperk v Beyleveld
[1]
and
Dippenaar
v Shield Insurance Co Ltd.
[2]
[34]
As a result, there must be a proof that the
disability gives rise to a patrimonial loss, this in turn will depend
on the occupation
or nature of the work which the Plaintiff did
before the accident or would probably have done if he or she had not
been disabled.
[35]
Having regard to the aforesaid, the enquiry
is not whether the Plaintiff was injured, but whether the accident
caused a patrimonial
diminution of earning capacity. What therefore
needs to be determined is whether the Plaintiff has suffered loss of
earnings, either
actual or probable. In the circumstances, the
evidence presented must demonstrate that the Plaintiff is worse off
in the labour
market than he would probably have been but for the
accident.
[36]
The Plaintiff claims R2 808 555.00 for past
and future loss of earnings arising from a right ankle fracture that
is now united.
The Plaintiff has established, at best, a healed
orthopaedic injury with residual symptoms. He has not proved that the
accident
caused the broader disabling now relied upon to justify
total economic loss.
[37]
On the evidence presented, the
OT expressly
states that the Plaintiff's broader limitations relate to tremors,
incoordination, amongst others, and that the use
of a crutch do not
appear to be related to the accident and is possibly neurological in
origin. As a result, there is no evidence
justifying the continued
use of a crutch given the ankle injury sustained. In the
circumstances, these additional limitations far
outweigh the ankle
injury and are the main reason for his unemployability.
[38]
Also, the Plaintiff’s inability to resume farming is partly
attributable to theft of livestock which is a non-accident
cause
entirely outside the RAF's liability.
[39]
Further, the Industrial Psychologist's opinion of effective
unemployability rests on a compromised foundation in that
his
pre-accident earnings were cash-based and unverifiable, yet the IP
adopted an upper-quartile semi-skilled benchmark of R228
000.00 per
annum as a convenience rather than proven fact. The IP's own report
concedes that the OT's clinical concern in that
the functional
limitations are disproportionate to the orthopaedic injury and
remains unresolved.
[40]
Having regard to the Plaintiff’s case as presented, I could not
find any evidence that tends to
exclude his prior
injury as a contributing or dominant cause. As a result, the Court
cannot safely attribute these deficits to a
subsequent ankle fracture
in the absence of a specialist neurological opinion.
[41]
Further, the
actuarial calculations assumes that
the Plaintiff has not earned a living since the accident and due to
the
sequelae
of the injuries, he will not be able to earn in the future. This
assumption is driven entirely by the IP's unemployability opinion
which is not in agreement with the Orthopaedic Surgeon who opines
that the Plaintiff is suited to sedentary work until age 65,
thereby
attributing unemployability to non-accident causes.
[42]
Also, there is no
documentary evidence of the
Plaintiff's pre-accident income, no bank statements, livestock
registers, or invoices. The IP herself
acknowledged that
self-employment income of this kind is inherently variable. Despite
this, she has selected an upper-quartile
semi-skilled benchmark with
no proof of income
.
[43]
Based on the above, my considered view is
that the Plaintiff has not discharged the onus of proving loss of
earnings at this stage.
The Plaintiff has
proved a healed ankle fracture with residual symptoms. He has not
proved that the accident caused the broader
disabling picture now
relied upon, nor that it has destroyed all earning capacity to
retirement. The current quantum claim is speculative
and overstated.
[44]
Accordingly, whilst the Plaintiff has
placed before this Court experts’ opinions, the actuarial
figure of R2 808 555.00 is
not a proven loss. This matter accordingly
requires referral to trial, where the Plaintiff must be put to the
proof of the material
assumption underlying his quantum case, where
the causal nexus between the ankle fracture and the alleged total
unemployability
must be established properly.
[45]
Considering the above, this Court is not
willing to exercise its discretion and grant default judgment against
the Defendant in
respect of the Plaintiff’s claim for loss of
earnings. In the circumstances, this Court, in the interest of
justice, is also
not prepared to dismiss the claim for loss of
earnings.
[46]
It may well be so that the Plaintiff has a
potential claim for loss of earnings, however, on the available
evidence, this Court
has its own doubts. As a result, the aspect of
loss of earnings requires a trial. In that way, the interest of
justice would be
better served.
[47]
In the result, the following order is made:
Order
1
The Defendant is liable for 100% of such
loss as agreed or as proven by the Plaintiff.
2
The Defendant is ordered to furnish the
Plaintiff with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996.
3
The application for default judgment in
respect of the Plaintiff’s claim for loss of earnings is
refused.
4
The Defendant is ordered to pay the
Plaintiff’s costs on High Court Scale B.
T J MAKGATE
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
For
the Plaintiff: Adv P Uys instructed by Austin & Allan Attorneys.
Date
of Hearing: 25 February 2026.
Date
of Judgment: 20 March 2026.
[1]
1973
(2) SA 146
(A) 150 B - D
[2]
1979
(2) SA 904
(A) 917 B - D