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2026
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[2026] ZAMPMBHC 37
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Buda v Road Accident Fund (5094/2021) [2026] ZAMPMBHC 37 (20 April 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
JUDGMENT
Case
No.:
5094/2021
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED
YES/NO
DATE
20 APRIL 2026
SIGNATURE
NSIBANDE AJ
In
the matter between:
MARTA
NYANYEKILE BUDA
PLAINTIFF
And
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGEMENT
Introduction
[1]
The Plaintiff is claiming in her personal capacity for damages as a
result of a motor vehicle accident
that occurred on the 29
th
March 2018, the Plaintiff was a passenger. The claim is against the
Road Accident Fund (RAF). The Plaintiff is a major female
born
on the 05
th
May 1972.
[2]
The issue of merits was settled 100% in favour of the Plaintiff. The
issue of General Damages has been
rejected by the Defendant and has
been referred to the Health Profession Council of South Africa
(HPCSA). The Plaintiff abandoned
her claim in respect of past medical
expenses as she was treated at a Provincial Hospital and no expenses
were incurred.
[3]
The issue that is to be decided by this Court is the issue of loss of
earnings, past and future loss
of earnings.
[4]
The Defendant submitted that the Plaintiff had only sustained a
capacity loss, while the Plaintiff seeks
to rely on the postulation
made by its Industrial Psychologist that the Plaintiff will in fact
suffer a total future loss of earnings.
The Defendant further
submitted that as the Plaintiff was not employed at the time of the
accident the Plaintiff suffered no past
loss of earnings.
The
Plaintiff’s case
[5]
The Plaintiff testified that she was involved in a motor vehicle
accident as a passenger on the 29
th
March 2018 and she was
injured on her hand, back and chest.
[6]
She was taken to Lydenburg Hospital by ambulance and she was admitted
for three days at the hospital.
After being discharged she became an
outpatient as she would regularly take pills for high blood pressure
and pain.
[7]
She further testified that when the weather changes, the pains become
severe. She testified that she
had never been to any other motor
vehicle accident except the one of the 29
th
March 2018.
[8]
She further testified that sometime in 2020 she slipped and fell and
injured her leg, and the leg was
plastered with cement and she was
given pain killers. She does not receive any grant for herself but
does receive one for her child.
[9]
She further testified that at the time of the accident she was not
employed, her last employment was
as a domestic worker whereat she
was employed by a Mann family from 2008 until 2016 when the family
relocated to Johannesburg,
and she was never employed after that.
[10]
She was earning R2 500.00
(
Two Thousand Five Hundred
Rands
)
per month and did not receive a payslip. She stated
that at commencement of her employment she used to be paid in cash,
but as
times went by, she received her salary through the bank.
However, as there were no funds coming into the account since 2016
the
account was closed by the bank.
[11]
Her highest level of education is Grade 9, and she was never trained
for any other employment. At the time of the
accident, she was still
looking for employment as a domestic worker.
[12]
After the accident she continued looking for employment but found
none. At the time of the motor vehicle accident
she had lost contact
with the former employer and she had no contact details of the former
employer.
[13]
She stated that because of the injuries sustained in the motor
vehicle accident as well as the injury to her leg
she cannot stand
for a long time and her hand cannot work normally.
[14]
In proving income, Affidavits of Minah Mtsweni, Makoma Mphuti, Bheki
Magagula and Enock Magagula were submitted
and admitted as evidence
by consent and by agreement between the parties. The Plaintiff also
called as her witness Barend Maritz;
an Industrial Psychologist who
testified as follows.
[15]
That he is a registered and practicing Industrial Psychologist since
2015. He knows the Plaintiff as he consulted
with her, and the
purpose of the consultation was for him to formulate an expert
opinion.
[16]
He testified that the Plaintiff’s first consultation was with
Ms. Viljoen, who has since left his practice
and went overseas. He
testified that the Plaintiff was unable to provide contact details of
the former employer, the bank statement
or any record of employment
due to the lapse of time.
Pre-morbid
[17]
He testified that Pre-Morbid the Plaintiff worked as a domestic
worker but at the time of accident she was unemployed,
and seeking
alternative opportunities and she was aged 45 years, that had it not
been for the accident, she would have mostly probably
found
employment within two years and earning the minimum wages for South
African Domestic Workers.
[18]
He testifies that considering the Plaintiffs level of education, work
experience, age, socio economic circumstances
and collateral
information provided to him, he opined that it was not likely that
the Plaintiff had the potential to progress within
her career beyond
the level of domestic worker, that is, it was unlikely for the
Plaintiff to be considered for a more senior position
and to enjoy
advancement opportunities.
[19]
He testified that the Plaintiff would have been able to function in a
similar occupation until retirement of the
age of 65 years, however,
considering the nature of her employment, as well as her
socio-economic circumstances, very few people
can afford to retire at
that age. He testified that following a consecutive approach, the
Plaintiff would have most likely continued
with the employment until
the age of 70 years, depending on health and motivation.
Post
Morbid
[20]
He testified that the Plaintiff was not employed at the time of
accident on the 29
th
March 2018, and that as a consequence
no past loss of income should be calculated in this regard.
[21]
In so far as it relates to future loss of earnings the witness
testified that the Plaintiff is currently still
unemployed and has
not been able to retain employment and she is currently 50 years old.
[22]
He testified that in consideration of the other experts opinions, it
is evident that the accident has had a negative
impact on the
Plaintiff’s physical functioning, and will continue to do so in
future. As a result her employability will
always be negatively
affected and that she is at a high risk of remaining
unemployme
d
in future, which is currently
the reality.
[23]
The Plaintiff filed a Notice of Application in terms of Rule 38(2),
which was to be heard on the day of hearing
of the main proceedings,
however the Court was advised that the Defendant does not oppose the
Application and that by agreement
between the parties the Application
be granted, to the exclusion of the evidence of the Industrial
Psychologist Mr. Bernard Maritz,
who testified.
[24]
The Application was duly granted and the following Affidavits and
Medico Legal Reports were admitted as evidence
in the proceedings;
·
Dr. Piet Engelbrecht, Orthopaedic Surgeon.
·
Dr. Pieter Kritzinger, Neurologist.
·
Dr. Lesley Taylor, Occupational Therapist.
·
Mr. Johan Sauer, Actuary
This
then concluded the Plaintiff’s evidence. The Plaintiff closed
its case.
Defendant’s
Case
[25]
The Defendant submitted that it has no witness to call and had no
expert medico-legal reports filed and will rely
on the Plaintiff’s
reports as a consequence there is no opposition to the evidence led
by the Plaintiff and no further evidence
to be examined, as no
version has been placed before the Court by the Defendant.
Analysis
[26]
It is important to state that the cross-examination of a witness does
not equate to a version, it may only point
to inconsistence here and
there as a result a court faced with such a situation cannot be said
to have before it a version based
on the cross of examination of a
witness.
[27]
There court therefore accept the medico-legal reports of the experts
witness of the Plaintiff as the version that
is before court
uncontested.
[28]
The court accept and acknowledge that even though the version of the
Plaintiff is uncontested, it must still be
credible and probable in
all
matters and aspects
considered.
[29]
The court finds that the evidence of the Plaintiff
and
the evidence of Mr Barend Maritz, the Industrial Psychologist
was credible and probable as such accepted by the court.
Valuation
of the Evidence
[30]
As indicated above, the Defendant has provided no version to
contradict that of the Plaintiff. The parties are
in agreement with
almost all the facts raised by the Plaintiff and her expert
witnesses.
[31]
The only matter in dispute, which the court is called upon to make a
determination is the amount to be considered
fair and
reasonable for compensation for loss of earnings.
[32]
The court agrees with the Industrial Psychologist that as the
Plaintiff was not employed at the time of the accident
up to the date
of the hearing of this matter, there can not be a claim of past loss
earnings.
[33]
The issue therefore that this court must make a decision on is the
claim for future loss of earnings as a result
of the motor vehicle
accident.
The
plaintiff argued for compensation for a total future loss of earning
capacity as a result of the motor vehicle accident, as
she was
rendered totally unemployable, while on the other hand the Defendant
argued for a partial loss of future earnings as a
result of the motor
vehicle accident, taking into considerations the other proven medical
deficiencies that pre dates the accident
and post date the accident.
[34]
It is indeed correct, as submitted by the Defendant that the
Plaintiff contradicted her evidence in so far as to
the period of
employment before the accident, whether the employment period was
between 2008 -2016 as per her evidence in chief
or between 2009- 2025
as indicated in the medico legal report of the neurologist.
[35]
In this regard, the court finds that this contradiction is not a
material contradiction which should discredit
the evidence that the
Plaintiff was once employed and had the earning capacity.
[36]
The Defendant also took issue with the absence of proof of earnings,
as well as confirmation from the former employer
of the employment or
remuneration of the Plaintiff.
[37]
It is an unfortunate situation and a reality of a majority of South
African men and women that they find themselves
being employed in
informal employment, where there are no payslips provided by the
employer to prove their earnings and payment
is made in cash by
handing of an envelope. Or where, because of the scarcity of
employment as well as the lack of certainty and
stability in the
workplace, and in some instances, the hostility of the employer, the
employe
e
will leave the employment and have
no further contact with the employer.
[38]
In such circumstances, there exist a possibility that such a person
will never be able to provide any proof of
earnings and might for all
intents and purposes have no contact of the former employer. Should
the Court simply dismiss their claim
of being employed at that
particular point, the Court think not
where the
interest of justice dictate that the Court must come to the
assistance of the vulnerable groups of our society, this Court
will
not hesitate to do so.
[39]
The plaintiff has submitted Affidavits of people who confirmed her
employment and her remuneration at the time
when she was employed.
The Court accepts these affidavits as confirmation of the earnings of
the Plaintiff.
[40]
The Orthopaedic Surgeon, Dr P Engelbrecht, reports that the Plaintiff
was assessed by him on the 11
th
May 2022 and again on the
21
st
August 2024. The expert confirms the presence of age
related degeneration in the cervical as well as the lumber spine as
well as
the acromioclavicular joint osteoarthritic changes, possible
impingement of the supraspinatus tendon.
[41]
The expert further opined that, from an orthopaedic perspective, in
calculating the Plaintiff’s loss of work
capacity, the
contribution of the accident should be seen as 10-15%. The
aforementioned takes into account age degeneration of
the left AC
joint, degeneration of the neck as well as the lumber spine. He
further opined that the injuries need to be 50% apportioned
to make
provision for the indications of age -related degeneration in the
left AC joint.
[42]
The court has taken the above opinion into consideration as well the
other expert opinions in coming to a determination
in this matter.
Legal
Principles
[43]
In coming to a determination in this matter the court is also guided
by the law and legal principles applicable.
The assessment of loss of
earnings or earning capacity were set out by the Appellate Division
in the matter of :
Southern Insurance
Association Ltd v Bailey
1984 (1) SA 98
(A), where it was held;
“
Any enquiry
into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.
It has open to it two
possible approaches.
One is for the Judge
to make a round estimate of an amount which seems to him to be fair
and reasonable. That is entirely a matter
of guesswork, a blind
plunge into the unknown.
The other is to try to
make an assessment, by way of mathematical calculations, on the basis
of assumptions resting on the evidence.
The validity of this approach
depends of course upon the soundness of the assumptions, and these
may vary from the strongly probable
to the speculative.
It is manifest that
either approach involves guesswork to a greater or lesser extent. But
the Court cannot for this reason adopt
a non possumus attitude and
make no award.”
[44]
The Court is also mindful that when determining suitable
contingencies deduction in loss of income claims, exercises
a wide
discretion which need le
s
s to say is to be
exercised judicially.
[45]
In the matter of Pitt v Economic Insurance Co Ltd
1957 (3) SA 284
(D), though dealing with the awarding of general damages, the
principle is applicable to loss of future income or earning capacity,
the Court held as follows;
“
The Court must
take care to see that its award is fair to both sides- it must give
just compensation to the Plaintiff, but it must
not pour out largesse
from the horn of plenty at the defendant’s expense”
[46]
As a result the Court will follow a conservative approach in applying
contingency deduction in respect of the future
loss of earnings from
the actuarial calculations.
[47]
As already indicated above, there shall be no past loss of earnings
as per the reasons provided above.
Order
[48]
After carefully examining the evidence before me, and applying the
conservative 50% contingency
deduction, the Court makes the following
order
1. The
Defendant is liable to pay the Plaintiff’s Future Loss of
Earnings in the amount of R330 020.00
2.
Claim
for past loss of income is dismissed.
3. The
Defendant to pay the agreed or taxed party and party costs on scale
B.
NSIBANDE AJ
ACTING JUDGE OF THE
HIGH COURT,
MPUMALANGA DIVISION
Date
of hearing: 14
October 2025
Date
of judgment: 20 April 2026
Counsel
for the Plaintiff: Adv X
Wahl
Instructed
by:
Pieter Nel Attorneys
Email
Address:
[email protected]
Counsel
for the Defendant: Mr FG Siliga
Instructed
by:
State Attorney
Email
Address:
[email protected]