SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case no: 30134/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: NO
DATE: 20 January 2026
SIGNATURE:
In the matter between:
C H DE BEER PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
K STRYDOM, AJ
Introduction
1. The Plaintiff was injured in a motor vehicle collision on the 29 th of October 2020.
The incontrovertible medical and expert evidence indicates that he sustained significant
orthopaedic injuries that have had a devastating impact on his general enjoyment of life
and more specifically to the issue in casu, his ability to earn an income.
2. Summons was served on the Defendant on the 2 nd of June 2022. The Defendant
did not defend the matter and as such default judgment was applied for on the 19 th of
January 2023. It was only after the notice of set down for the default judgment date of
the 12th of April 2024 was served on the Defendant, that it on the 9 th of April 2024 filed a
notice of intention to defend.
3. As it had not delivered a plea and was in any event under bar from pleading due
to a notice of bar that had previously been served on them, the Court, on the 12 th of
April 2024, proceeded to hear the default judgment application and found that the
Defendant is 100% liable for the damages suffered by the Plaintiff. It also ordered that
the Defendant provide the Plaintiff with a Section 17(4)(a) undertaking for his future
medical expenses as well as a R2 million interim payment for past and future loss of
income (“the 2024 order”).
4. The application for the present default judgment was served on the Defendant on
the 11th of July 2024.
5. More than a year later, on the 27 th of August 2025, the Defendant served an
application to stay a writ of execution (presumably based on the April 2024 order) on the
Plaintiff. The basis for the application to stay the writ was a purported rescission
application of the April 2024 order to be brought. The Plaintiff opposed the stay
application and filed its answering affidavit timeously. From the documentation that was
before this court, it does not appear if that stay application was further pursued by the
Defendant.
6. When the application was called on the trial default judgment roll of the 25 th of
November 2025, I was informed that the Defendant sought a postponement of the
matter.
7. The State Attorney appearing on behalf of the Defendant indicated that no
substantive application for postponement had been prepared. I was informed from the
bar that the postponement was sought pending the application for the stay of the writ
and the stay of the writ of execution. As the writ itself related to an order previously
granted, clarification was sought from the Defendant’s legal representative. From his
oral submissions, it became evident that the pending rescission application alluded to in
that application to stay the writ was the actual basis for seeking a postponement. From
the submissions made it would appear that at some stage after the court in April 2024
found the Defendant to be 100% liable for the Plaintiff’s damages, the Defendant
conducted an internal investigation into the so called merits and came to the conclusion
that the Plaintiff should be held to be at least 50% responsible for the occurrence of the
accident. The findings of this investigation would then seemingoly form the basis of a
rescission application. Notably, however, was the fact that no such rescission
application had been issued at the time when this matter was heard.
8. The lack of any detail or proper substantiation as to reasons why a
postponement should be granted under the circumstances, resulted in the request for
postponement being dismissed on the day.
9. As indicated supra, the Defendant was barred from pleading. However, mindful of
the judgments 1 of this division in relation to the right of a defendant to participate in
proceedings under circumstances where it does not have a plea, the State Attorney was
afforded an opportunity (on the 2 nd day of hearing) to direct questions to the witnesses
led by the Plaintiff. He, however, indicated that no questions would be put as the
Defendant remained of the view that it would apply for rescission of the ‘merits order’
(the 2024 Order).
1 See for instance: Stevens and Another v RAF (26017/2016) [2022] ZAGPJHC 864 (31 October 2022); T
P Ralele obo P M Makhudubela Case number 9117/2019, High Court Gauteng, Pretoria, 18 April 2024
10. The present determination of loss of earnings was therefore made in the absence
of any address of argument from the Defendant, despite the Defendant’s
representatives being present at the hearing hereof and having been afforded the
opportunity to do so.
11. For purposes of the present hearing, only the loss of income suffered by the
Plaintiff stands for determination. The question of general damages stands to be
postponed in view of the fact that the Defendant has as yet failed to make any
determination as to whether it accepts the seriousness of the injuries for purposes of
vesting this court with the jurisdiction to make a determination.
12. The Plaintiff had applied for the evidence of his experts to be led by way of
affidavit in terms of Rule 38(2). However, given the queries and uncertainties relating to
the basis upon which his loss of income was quantified by the industrial psychologist
and more crucially the chartered accountant, it was ordered that both the Plaintiff and
the chartered accountant should present their evidence orally. The matter was
consequently stood down to the 28th of November 2025 for such evidence to be led viva
voce.
Evidence
13. At the time of the collision the Plaintiff was self -employed working within the
construction industry. According to the industrial psychologist’s analysis of his pre -
morbid bank statements, he had at that time already reached his career ceiling in terms
of earnings within his industry. She formed the view that had he not been in the accident
he would have been able to work up until the age of 65.
14. Given the extent of the injuries sustained in the accident and the severe
sequalae thereof, he initially had to downscale his business which resulted in a
significantly lower income. The occupational therapist confirms that he meets some but
not all of the physical demands of his pre -accident employment. He was not suited for
work that requires high ambulatory demands, high staying tolerance and repeated of
use of lower limbs or lifting or carrying of medium duty objects and heavy duty objects.
The industrial psychologist postulated that his post -morbid income should be calculated
on the basis that he would have earned 50% of his pre -morbid income up until the 7 th of
May 2021, thereafter a loss of 75% until April 2024 (the date of the industrial
psychologist’s report) whereafter he would suffer a complete loss of earnings.
15. Both the industrial psychologist as well as the chartered accountant had limited
financial documentation at their disposal:
15.1. Bank statements for the Plaintiff’s businesses for the period July 2020 to
May 2021;
15.2. Bank statements for one of the businesses for the period January 2024
until May 2024.
16. The experts therefore only had sight of bank statements for a period of three
months preceding the accident (July, August and October 2021).
17. The chartered accounted calculated the Plaintiff’s pre morbid earnings on the
following basis:
17.1. The expert relied on the actual income per the bank statements for the
period of five months (July 2020 to February 2021) of R594 857.73 which he then
annualised.
17.2. The annualised income of R1 427 656.15 for 2021 is used as the basis for
postulating the future income until age 65. This amount is adjusted year on year
to account for inflation. Additionally, to account for growth of the business, a
growth factor of 8% per annum to this amount was applied.2
2 1.1. During evidence he testified that the 8% growth is based on a variety of statistics and could be
considered a ‘best case’ scenario. According to his recollection at the time, StatSA’s statistic put the
growth within the construction industry at 4%. He was requested to verify this information and to update
his report by applying the relevant StatSA growth factor to his pre morbid calculation. His addendum
18. A different methodology was used to calculate the post morbid income:
18.1. As was (correctly) pointed out by the chartered accountant in evidence,
given the nature of the Plaintiff’s industry and the usual delay between
completion of work done and payment thereof, one cannot strictly delineate
between pre -morbid and post -morbid earnings on the basis of the date of the
accident alone.
18.2. The expert used the average monthly income per the bank statements for
the period July 2020 to October 2020 (which was R80 957.00) multiplied by four
to calculate an income R323 830.00 for the 4 months for which no statements
were available i.e. March 2020 to June 2020. To this amount he added the actual
income per the bank statements of R594 857.00 (June 2020 to February 2021)
which equates to an income of R918 687.00 for that year.
18.3. The calculated income of R918 687.00 for the 2021 financial y ear is
reflected as the income for the 2022 financial year whereafter the actual income
per the bank statements for financial years 2024 and 2025 annualised are used
to determine the average income for the financial year 2023 in the amount of
R546 205.00.
18.4. No income was calculated after 2025 as the Plaintiff was rendered
unemployable by the accident.
Evaluation
19. The application of different methodologies in calculating the injured vs the
uninjured income, is problematic. For instance, in terms of the calculation of the
Plaintiff’s injured income for the 2021 financial year:
report, made available on the 21 st of January 2026, however seems to indicate the average growth factor
per Stats SA is also 8%.
19.1. The rationale for including payments received between November 2020
and February 2021 in calculating his earnings is that payments made during this
period could relate to work done prior to the accident date.
19.2. That being so, those earnings could also be used to calculate the average
earnings for the four months for which no statements were available i.e. March
2020 to June 2020. If, instead of using the average earnings for July 2020 to
October 2020, the actual income of R594 856.73 (noted for purposes of the
uninjured), is used, the average monthly income would have been R118 971.02
instead of the calculated R80 957.00.
19.3. Using the same methodology used by the expert (average earnings
multiplied by four), the averaged earnings for March 2020 to June 2020 R475
884.08. Added to this the actual earnings of R594 857.00, the total income for the
2021 financial year would be R1 070 741.80 in the injured scenario.
20. Likewise, the methodology applied in calculating the uninjured income for 2021 is
problematic:
20.1. The expert calculated the uninjured income to be R1 427 656.15 and the
injured income as R918 687.00 for that year. In simple terms, this means that, in
the four months between date of accident (29 October 2020) and end of the
financial year (February 2021) the Plaintiff would have earned R508 968,15 had
he not been injured. This loss of income is however calculated on the basis of
earnings for work done prior to the accident and despite the fact that the Plaintiff
would not have been able to earn any income during the so -called ‘builder’s
holiday’ of approximately three weeks between mid December and mid January
in any event.
20.2. Furthermore, if one were to accept that, had he not been injured, the
Plaintiff would have earned R1 427 656.15 in 2021, the average monthly
earnings for March 2020 to June 2020 would have been R118 971.02, as
opposed to R80 957.00 per month calculated in the injured scenario. As the
period predates the accident, the difference in averaged earnings would be non -
sensical.
20.3. Given the brief timeframe involved and the nature of the building industry,
it is perplexing that the expert had to reconstruct the Plaintiff’s potential earnings
for the period November 2020 to February 2021 at all: The Plaintiff could
reasonably have been expected to have been aware of which building projects
were scheduled during that period that could not be attended to or which referrals
for work he had to decline during that period, as a result of his injuries.
20.4. During his viva voce evidence I pertinently enquired from the Plaintiff why
he had failed to disclose a proper record of bank statement or financial
statements for the years predating the accident, which statements would have
constituted a far more informed indication of the state of his business and
potential growth therefor. He indicated that initially he provided his attorney with
all the statements he had available at the time (presumably when the matter was
initially investigated) thereafter it was only after the previous default judgment
trial date in April 2024 that bank statements were requested from him again.
Presumably the two (2) months of statements relating to 2024 and 2025
respectively were provided as a result of this request. The Plaintiff indicated that
the statements that he provided were those that he had available electronically.
When queried as to why he did not physically go to his bank to obtain a complete
set of statements, he could not provide any particular reason for his failure to do
so.
21. The post morbid income calculated by the chartered accounted for the 2021
financial year is only relevant to the relatively short period between the accident and the
date upon which the Plaintiff is deemed as unemployable (2025).
22. The uninjured income calculated for the 2021 financial year, however, has a
significant effect on the calculation for the entire period until retirement at age 65. As
significant effect on the calculation for the entire period until retirement at age 65. As
indicated supra, the calculated amount of R1 427 656.15 assumed to be the uninjured
earnings for 2021, is used as the basis for postulating the year -on-year earnings until
retirement by applying inflationary increases and a yearly ‘growth factor’ of 8%.
Concomitantly, the effect of any errors or overestimations in the assumed uninjured
2021 earnings are exponentially increased year on year until retirement.
23. It is also important to note the vast variations of the growth rate within the
construction industry each year: For instance, in 2020 growth was at -4%, in 2021 it was
-7%, in 2022 it was 8%, in 2023 it was 26% whereas in 2024 it went down to 16%.
Whilst the years referenced might indicate an average growth rate of 8%, the severe
fluctuations only serve to illustrate the relative inconsistency in growth within the
construction industry as a whole.
Findings on loss of income
24. The various issues mentioned supra are not intended to constitute a
comprehensive exposition of the mathematical or factual problems inherent to the
postulation of the Plaintiff’s pre and post morbid earnings. The postulation of the career
path of a self employed person is always inherently more speculative and uncertain
than that of a person in formal employment. To this end the use of experts, such as
accountants, to quantify baseline earnings is of great assistance to the Court. However,
the value of such an expert’s opinion is contingent on the cogency of the factual
information upon which it is based. In casu, the expert was provided with bank
statements spanning a total of five months from which he was required to postulate
what the Plaintiff could have earned for a period spanning 27 years. Whilst one can
certainly appreciate that within the South African self -employed market, proof of
earnings may not always be readily available, this is usually in instances of self
employment within the informal market where cash payments are made. That is not the
case in casu. The failure to provide the expert with comprehensive bank statements (at
the very least) for the financial years immediately prior to date of accident up until date
the very least) for the financial years immediately prior to date of accident up until date
of trial, is entirely attribut able to the Plaintiff’s failure to simply request same from his
bank.
25. However, the fact that the Plaintiff could and, in fact, should have presented a
properly substantiated basis and case for loss of income, does not mean that his claim
for loss of income has not been proven per se. In RAF v CK 3 the Supreme Court of
Appeal explained:
“[25] Indeed, a physical disability which impacts on the capacity to an income
does not, on its own, reduce the patrimony of an injured person. There must be
proof that the reduction in the income earning capacity will result in actual loss of
income. However, where loss of income has been established but proof of the
quantum thereof cannot be produced in the usual manner, the courts have
shunned the non-suiting of a claimant and have preferred to make the best of the
evidence tendered to give effect to the finding of proved reduction in loss of
income earning capacity. As long as almost a century ago, in Herman v Shapiro
the court said the following:
‘Monetary damage having been suffered, it is necessary for the Court to
assess the amount and make the best use it can of the evidence before it.
There are cases where the assessment by the Court is very little more
than an estimate; but even so, if it is certain that pecuniary damage has
been suffered, the Court is bound to award damages.’
[26] Since then this dictum has been quoted with approval in a number of cases.
In Esso Standards SA (Pty) Ltd v Katz the court held that ‘where the best
available evidence to the plaintiff has been produced, though it is not entirely of a
conclusive character and does not permit a mathematical calculation of the
damages suffered still, if it is the best evidence available the court must use it
and arrive at a conclusion based on it.’.”
26. In determining damages, a Court has a large discretion 4 which it will exercise on
the particular set of facts of the case before it. Even though the underlying facts of each
case differs, previous determinations under similar circumstances may prove useful in
case differs, previous determinations under similar circumstances may prove useful in
3 Road Accident Fund v C K (1024/2017) [2018] ZASCA 151
4 AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A)
gauging how this discretion should be exercised. In casu, I have for instance had regard
to the following cases:
26.1. The matter of Mullins v The Road Accident Fund 5 where the Court was
presented with a Plaintiff who had only reported earnings. The Court, referring to
the well-known passage from the judgment in Hersman v Shapiro and Co where
it was stated that once monetary damages has been suffered it is necessary for
the Court to assess the amount with the best evidence forward, found or placed
reliance on the scales used by the industrial psychologist and not necessarily on
the reported earnings per se. The Court proceeded to apply a 20% pre -morbid
contingency deduction stating that:
“I’m not persuaded that the circumstances of this matter required a higher
contingency allowance should be made even though the plaintiff did not submit
any records to back or support his evidence of how much he earned. Not even
copies of agreements he alleged would be signed before police
officers...uncertainty has been factored into the consideration of the award to be
made. In my view the appropriate deduction to be made for contingency in
respect of loss of income should be 20%.”6
26.2. In Khumalo v Road Accident Fund7 the Court held that:
“In regard to the second question, Mr Pilusa referred me to A A Mutual Insurance
Association Ltd v Magula 1978(1) SA 805 (A) at 945, in which a plaintiff who had
an unstable work record had his loss of income reduced by a contingency of
50%. The plaintiff’s evidence as to her employment as a domestic worker was
quite unsatisfactory. In his opening address, Mr Du Plessis informed me that she
had left her employer during the period December 1997 until June 1998. The
plaintiff gave no such evidence, insisting that she worked for 8 years before the
collision for the family concerned. Then she informed Dr Wessels, whose report
is before me, that she had worked for the family for 14 years. At one stage she
5 (3650/2014) [2016] (ZAECPEHC) 32 (August 2016)
5 (3650/2014) [2016] (ZAECPEHC) 32 (August 2016)
6 bid, paragraph 36
7 (A5020/05) [2006] ZAGPHC 26 (24 March 2006) ALSO SEE: Road Accident Fund v Reynolds
(Unreported WLD Case No A5023/04 18 February 2005 – Full Court)
testified that she came to the urban areas when she was about 20 years old. If
she worked as a domestic for 8 years, that would leave her with about 13 years
unaccounted for before the collision. In the light of all this, her record of
employment must be regarded as unstable, and the argument for a contingency
of 30% must accordingly be acceded to”.
26.3. In the case of Nonzinyana v Road Accident Fund 8 the Plaintiff reported
that she earned R7 000 -00 to R13 000 -00 per month from sewing and it
supported her entire family through this. However, given the lack of proof of
income, the Industrial Psychologist used the comparative income of semi -skilled
workers in the non -corporate/informal sector as a guideline for the basis of
earnings. The Court applied a 30% contingency deduction to the pre -morbid
earnings.
27. In casu, given the relative uncertainties prevalent, I am of the view that a
deduction of 30% to the earnings calculated (both past and future earnings) calculated
would be appropriate.
28. I had requested that the actuary provide various calculations illustrating the
application of various different contingency deductions. different deductions.
29. In view of my finding above, the relevant calculation is as follows:
30% pre-morbid contingency deduction
Pre-morbid Post-morbid Loss
(Difference)
Past loss
1 482 453
- 444 736
Minus contingency deduction (30%)
8 Nonzinyana v Road Accident Fund (59682/13) [2015] ZAGPPHC 345 (15 May 2015)
Past loss of earnings
0 1 037 717
Future loss of earnings
7 995 555
0
Minus contingency deduction (30% /
0%)
- 2 398 667
Future loss of earnings
5 596 888 0 5 596 888
Total loss of earnings
6 634 605
Minus effect of RAF cap (given the above contingency values
apply)
- 234 633
Total loss of earnings after RAF cap
6 399 972
30. From the calculated loss of income of R6 399 972.00, the interim payment of R2
million for loss of earnings stands to be deducted.
31. The total award for loss of earnings is therefore R4 399 972.00.
ORDER
32. As a result, the following order is made:
1. The evidence of the following experts are accepted by way of affidavit in terms of
Rule 38(2):
1.1 Dr Enslin;
1.2 I Kleynhans;
1.3 Dr Irsigaer;
1.4 Dr Havenga;
1.5 M Beytell;
1.6 J Sauer.
2. The Defendant’s oral application for postponement is refused:
3. The Defendant is ordered to pay the Plaintiff the sum of R4 399 972.00 in respect
of his loss of income, which amount shall be paid to the Plaintiff’s attorneys Slabbert &
Slabbert Attorneys within fourteen (14) days.
4. In the event that the Defendant fails to make payment as to paragraph 2, the
Plaintiff will be entitled to recover interest at the rate of 10.5% per annum on the capital
amount when payment is due to date of final payment.
5. The remainder of the quantum, being general damages and past medical
expenses, is postponed sine die.
6. The Defendant shall pay the Plaintiff’s taxed or agreed party and party costs on
the High Court scale with counsel fees determined at Scale C including appearances for
both 25 November and 28 November 2025 as well as the furnishing of the further report
by the chartered accountant as well as the actuarial calculation pursuant thereto, as well
as the costs of drafting and settlement of the heads of argument by counsel.
7. All amounts payable in terms of this order shall be made to the Plaintiff's
attorneys, Slabbert & Slabbert Attorneys, by direct transfer into their trust account, the
details of which are as follows:
Account holder : SLABBERT ATTORNEYS INC
Bank : FNB
Branch Code : 250655
Account no : 6[...]
Ref : TPC/0459
K STRYDOM
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION PRETORIA
Judgment reserved: 21 January 2026
Date of judgment: 20 April 2026
Appearances:
On behalf of the Plaintiff:
Adv. P. Van Der Schyf, instructed by Slabbert & Slabbert Attorneys
On behalf of the Defendant:
State Attorney, Pretoria