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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 2483/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE 31 March 2026
SIGNATURE
In the matter between:
MAMBA JABULILE NOMINI APPLICANT
(ID NO: 6[...])
And
THE ROAD ACCIDENT FUND RESPONDENT
(LINK NO: 3640072)
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date and time for hand -down is deemed to be ………at
10h00.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
MANGENA AJ:
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[1] Applicant seeks leave to appeal the judgment and order of this court delivered on 03
March 2026. The application is opposed by the respondent.
[2] By way of a reminder, Ms Mamba was born on 20 June 1965 and was employed as a
diagnostic radiographer until she retired in 2025.
[3] She was involved in an accident on 30 September 2012. She continued to work until
she retired at the age of 60. I dismissed her claim for loss of earnings on the basis that
she did not suffer any loss as a result of the accident. My reasons appear in the judgment.
No purpose will be served by repeating them.
[4] The basis upon which leave to appeal is sought is that the court erred in its evaluation
of probabilities regarding the continued employment of the plaintiff. It is submitted that
plaintiff opted for an early retirement because of the injuries sustained as a result of the
accident. If it was not for the accident, so the argument goes, plaintiff would have
continued to work until she retired at the age of 65. In support of this averment , Mr
Mashele, counsel for the applicant drew my attention to the report by the industrial
psychologist where it was stated that should she retire early from her employment due to
not coping with her work demands, it will not be easy for her to secure alternative
employment in the open labour market.
[5] There is simply no merit in this submission. It is an undisputed fact that Ms Mampa has
not retired early as postulated by her experts. She continued to work until her pensionable
and retirement age of 60. No evidence was tendered regarding the circumstances of her
retirement. In fact when this matter was argued she was already at home, retired because
she reached the age of 60. If her retirement was accident related, it was incumbent upon
her to adduce evidence to support that contention. This she failed to do and it is simply
not enough to rely on a paragraph that postulates the future in a report. The practical
not enough to rely on a paragraph that postulates the future in a report. The practical
reality is that she worked for almost 12 years without any reported difficulties either
directly from her or her supervisors. Indeed, the industrial psychologist recorded all her
attempts to verify the information provided by Ms Mamba and did not succeed. The
attorneys could have called hospital officials to appear in court under subpoena if they
were not cooperative. This was not done. They are to carry the blame for this lapse and
presenting the case in the manner they did. An appeal court is not a forum to correct
tactical errors committed during the trial.
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[6] The threshold to grant leave to appeal is high and the SCA has on a number with
count cautioned trial courts for granting leave in circumstances where same was not
necessary. In Ramakatsa v African National Congress, (724/2019) [2021] ZASCA 31 (31
March 2021), the court said:
" [10] Turning the focus to the relevant provisions of the Superior Courts Act [5] (the SC
Act), leave to appeal may only be granted where the judges concerned are of the opinion
that the appeal would have a reasonable prospect of success or there are compelling
reasons which exist why the appeal should be heard such as the interests of
justice.[6] This Court in Caratco[7], concerning the provisions of s 17(1) (a)(ii) of the SC
Act pointed out that if the court is unpersuaded that there are prospects of success, it
must still enquire into whether there is a compelling reason to entertain the appeal.
Compelling reason would of course include an important question of law or a discreet
issue of public importance that will have an effect on future disputes. However, this Court
correctly added that ‘but here too the merits remain vitally important and are often
decisive’.[8] I am mindful of the decisions at high court level debating whether the use of
the word ‘would’ as opposed to ‘could’ possibly means that the threshold for granting the
appeal has been raised. If a reasonable prospect of success is established, leave to
appeal should be granted. Similarly, if there are some other compelling reasons why the
appeal should be heard, leave to appeal should be granted. The test of reasonable
prospects of success postulates a dispassionate decision based on the facts and the law
that a court of appeal could reasonably arrive at a conclusion different to that of the trial
court. In other words, the appellants in this matter need to convince this Court on proper
grounds that they have prospects of success on appeal. Those prospects of success must
grounds that they have prospects of success on appeal. Those prospects of success must
not be remote, but there must exist a reasonable chance of succeeding. A sound rational
basis for the conclusion that there are prospects of success must be shown to exist.[9"
[7] Applying the above test to the grounds relied upon by the applicant to attack the
judgment I am not persuaded that there are reasonable prospects of success. Applicant' s
counsel seems to be labouring under an (false) impression that once physical impairment
is proved, plaintiff automatically becomes entitled to payment for loss even in cases where
impairment does not result in loss. In this case Ms Mamba was gainfully employed at the
time of the accident, she continued to work and earned her salary. The impairment did not
result in the reduction of her earning capacity and she did not therefore suffer any loss as
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a result of the accident. I therefore do not agree that the court failed to apply the but for
test expounded in Bailey.
[8] As an added bow to the string, counsel submitted that the court erred with regard to
costs in that it did not make a cost on the special plea argued. There was simply no need
to do so because the special plea was argued together with the merits. Costs are in the
discretion of the court and in exercising its discretion the court determined that no costs
should be awarded on the special plea, hence no specific cost order was made.
[9] In the result, application for leave to appeal is dismissed with costs.
_________________________
M I MANGENA
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
APPEARANCES:
Attorney for the Applicant: M.H MKHABELA ATTORNEYS
C/O VM NKOSI ATTORNEYS
13 DE Kock Street,
Sonheuwel
MBOMBELA
Tell: 013 753 3212
E-mail: VMnkosi@gmail.com;
mkhabelaattorneys@gmail.com
Ref.: RAF/T019/24/NOTHANDO
Attorney for the First Respondent: STATE ATTORNEY, NELSPRUIT.
3rd Floor, Admin Block, West Wing
R104 Samora Machel Drive
5
NELSPRUIT
Tel.: 013 101 3722
E-Mail: gugu1@raf.co.za
Date of Hearing: 30 March 2026
Date of delivery: 31 March 2026