SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 22409/2021
(1) REPORTABLE:YES/NO
(2) OF INTERST TO OTHER JUDGES :YES/NO
(3) REVISED:NO
DATE 23/03/2026 SIGNATURE
In the matter between:-
XIKOMBISO MATHEBULA PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
JUDGEMENT
___________________________________________________________________
MATIKA AJ:
Introduction
1. This is an application for default judgment against the Defendant, the Road
Accident Fund (“Hereinafter to be referred to as RAF’’).The application
emanated from the action which the Plaintiff instituted against RAF for
compensation arising from the negligent driving of the insured driver in terms
of section 17 of the Road Accident Fund Act1.
Facts
2. The plaintiff was involved in a motor vehicle collision on 3 December 2016. At
the time of the collision, the plaintiff was a passenger in the motor vehicle.
3. The combined summons served on the defendant on 11 May 2021, defendant
defended the matter on 8 April 2024 and filed a plea.
4. On 30 October 2024 , Strydom AJ handed down an O rder to strike the
Defendant’s defence for their failure to comply with compelling Order dated 26
August 2024 handed down by Honourable Justice Mokose J.
5. Application for default J udgement was served on the defendant on 04 March
2025 and notice of set-down served on 05 December 2025.
6. The defendant settled merits 100% in favour of the plaintiff , future medi cal
treatment in terms of section 17(4) (a ) of the Road Accident Fund Act and
general damages in the amount of R 650 000.00 on the 13 November 2025
and the plaintiff accepted the offer.
The issues
7. The only issue for determination is loss of earnings. The Plaintiff is claiming an
amount of R 7 500 000.00 in respect of loss of earnings, in her amended
particulars of claim dated 29 May 2025.
Rule 38(2) application
1. Act 56 of 1996
8. Application to present e vidence of the Plaintiff and her expert witnesses, and
any other relevant witness by way of affidavit in terms of Rule 38(2) of the
Uniform Rules was sought and granted.
Plaintiff’s education and employment
9. Plaintiff’s training and education history consists of the following:
2009-Completed Grade 12;
2009 and 2014- Completed an Electrical engineering (N6) qualification
2017- She completed Electrical Electrician Trade Test
2011- She completed a Computer literacy at Science Centre Giyani.
10. The plaintiff was 25 years at the time of the accident and was an intern
employed at Gautrain and earning R2 300.00 per month. The plaintiff is
currently 34 years of age.
Expert’s reports
11. The plaintiff appointed : Dr MI Malaza (Orthopaedic Surgeon), Engela swart
(Occupational Therapist), Ms Monique Engelbrecht (Industrial Psychologist)
and WIM Loots Actuarial Consulting (Actuary).The plaintiff’s reports served in
terms of rule 36(9) (a) and 36(9) ( b) of the uniform Rules of Court. The
defendant did not appoint any expert.
Plaintiff’s injuries
12. According to Hospital records and RAF 4 Form completed by Dr Mthobisi
Malaza on 2 September 2024, plaintiff was diagnosed with Right chronic
lisfranc joint injury with post -traumatic osteoarthritis and According to RAF 1
form X-rays were part of the treatment plan for: Cervical spine, thoracic and
lumbar spine, Pelvis and right tibial fibula.
Medical Findings (Dr Malaza – Orthopaedic Surgeon)
13. Dr M I Malaza assessed the Plaintiff and concluded that: “outcome diagnosis
and Prognosis: Right lower limb, Right chronic Lisfranc joint injury with post -
traumatic osteoarthritis. The prognosis for this injury is poor .The chronic
injury to the Lisfranc joint renders the foot unstable and posttraumatic
osteoarthritis that has resulted, will progress .Even with succes sful treatment
, a full recovery is not expected .The pain in the right lower leg is secondary
pain referred from the lisfranc joint of the right foot. Control views of the left
foot and left leg reveal normal join ts and a normal midfoot with no soft tissue
swelling and no previous fractures, Ms Mathebula sustained injuries to her
right foot. She suffered acute pain for about 3 weeks following injuries that
she sustained in this accident .She continues to suffer from pain in the right
foot, Ms Mathebula is likely to have difficulties in engaging normally in
activities which require extensive mobility demands and heavy load handling.
Loss of Income and Future Employability: At present she is employed, The
Claimant is considered a disadvantaged job seeker in t he open labour
market, Her current prognosis is poor , future deterioration is anticipated ,
which would further impact her functional/ work abilities thus making her
vulnerable to early retirement of 45 years especially considering the manual
labour nature of her job . She would therefore excluded to any and all forms
of a manual labour in the future.
Medical findings (Ms Swart-Occupational Therapists)
14. Ms .Swart: Occupational Therapists, assessed the plaintiff concluded as
follows in her report : Ms Mathebula’s physical capacity has been
compromised by the accident related injury to her right foot and with the
assessment findings in mind ,she currently retains the weight -handling
capacity to perform sedentary or seated lig ht physical work .based on the
performance of individual tasks, Ms. Mathebula is currently limited in tasks
requiring frequent sustained standing, dynamics postural demands, mobility ,
skills such as crouching and kneeling are also limited by the noted bal ance
difficulties and reports of pain.
15. The assessment findings confirm that a job match no longer exists between
Ms Mathebula’s residual capacity and overall demands of her pre -accident
Electrical Engineering internship position .The position interfere nce is
therefore considered accident related.
16. Given her present work position as an Operator , although a job match exists
between her residual capacity and most of the demands of her position, it is
considered that the accident Sequalae still interfer ences given the reported
difficulties that she experiences whilst at work. Compliance with the
prescribed treatment is therefore recommended.
17. Noting the Orthopaedic surgeon’s outcome diagnosis of the “Right chronic
Lisfranc joint injury with post -traumatic osteoarthritis” (P.12): the assessment
findings and Ms Mathebula’s reported pain is therefore considered accident
–related and justified. The assessor concurs and notes that even after
undergoing the recommended treatment, with the use of assistive de vices,
Ms Mathebula will be better suited to sedentary work with limited mobility
demands.
18. Noting that Ms Mathebula has recently had to rely on her physical capacity
to generate an income, one has to consider that the loss of physical
functioning –which is expected to worsen over time, will have a restrictive
effect on her occupational performance and job options. Therefore, Ms
Mathebula’s competitiveness in the open labour market is considered
compromised due to the accident related Sequalae, especial ly when
compared her uninjured counterparts.
19. Ms Mathebula has an El ectrical engineer qualification, considering the
physical requirement of her aspired position working as an Electrician , the
assessor anticipates that the accident Sequalae will continue to adversely
affect her physical capacity and impose on -going challenges on her
occupational p erformances and productivity : Her pain symptomology is
likely to deteriorate over time, esp ecially in view of the increased physical
requirements of such a position, and the work performance issues may
eventually result in reduced job security and early retirement vulnerability as
indicated by the orthopaedic surgeon.
20. The assessor agrees wit h Dr Malaza that “The claimant is considered a
disadvantage job seeker in the open labour market.”
Medical findings (Ms Monique Engelbrecht-Industrial psychologist)
21. Ms Monique Engelbrecht (industrial psychologist) assessed the plaintiff and
concluded as follows:
21.1 “Pre-morbid employment potential: The plaintiff would likely have continued,
in her field of studies and completed her theoretical and practical studies to
qualify for the National Diploma. She would likely have continued compl eting
her Trade as an Electrician in 2017.Therefore for quantification purposes, it
is postulated that she would have entered the job market in a temporary
capacity for one year, earning in line with a Paterson B2/B3 (R 183,000 – R
209,000 - lower quartile basic salary) before securing permanent
employment in the formal labour market in line with a Paterson B4 – lower
quartile – guaranteed package), progressing to a Paterson C2 (R 566 000)
median quartile – total package). If she secured a supervisory role after
gaining skills and experience, the plaintiff could have progressed to a C3 (R
659,000), a median guaranteed position, which could be seen as her career
ceiling. She would have reached her career ceiling at 45 – 48 years where
after, inflationary-related increases would have applied until retirement age
of 65 years ,health permitted , and according to the retirement policy of the
employer.
21.2 Post –Morbid employment potential: The plaintiff is currently employed as a
Medicine Machine Operator at Adcock Ingram. She is earning a basic salary
of R19 394.77. Capacity to work and level of truncation curtailed.
Dr Malaza indicated that Ms Mathebula’s prognosis for the injuries sustai ned
is poor and future deterioration is expected which will impact her functional
and work abilities. Dr Malaza has indicated early retirement at the age of 45
years considering the manual labour nature of her work”
21.3 Ms Monique Engelbrecht (industrial psychologist) concluded that the
plaintiff’s likely earnings are as follows: “Within her current employment, her
earnings appear to be in line with her pre -accident scenario. She is however,
benefiting from a sympathetic employer and work accommodations .The
accident –related Sequalae may adversely affect her ability to secure a
promotion opportunity. Without obtaining additional skills, it appear that she
will not progress in line with her pre -accident scenario. Within the open
labour market, she has been significantly compromised and her post -
accident vulnerability and curtailed function ing could negatively influence
future earnings post-accident contingency “.
Actuarial calculations
22 An actuarial calculation was obtained from Wim Loots Actuarial consulting,
the report dated 31 January 2025, based on the report of the plaintiff’s
industrial psychologist report of Ms Monique Engelbrecht , dated 19
December 2024. The basis of the calculati on of the loss of income appears
in paragraph 3 for the income had the accident not occurred and in
paragraph 4 for the income having regard to the accident.
23 The Actuary deducted 5% on the past loss of income, 15% on the future pre-
morbid and 35% on the future pre-morbid contingencies.
The actuary calculated four scenarios:
23.1 Scenario 1A: C2 Ceiling (Pre -Accident) and normal retirement age (Post -
Accident) which amounts to R 3 43 454 after contingencies . The cap does
not apply to scenario
23.2 Scenario 1B: C2 Ceiling (Pre -Accident) and Early retirement Age 45 (Post -
Accident) which amounts to R 5 769 670 after contingencies and Capp.
23.3 Scenario 2A: C3 Ceiling (Pre -Accident) and normal retirement age (Post-
Accident) which amounts to R 3 818 682 after contingencies. The Capp does
not apply to scenario
23.4 Scenario 2B: C3 Ceiling (Pre -Accident) and Early retirement Age 45 (Post -
Accident) which amounts to R 6 253 039 after contingencies and Capp.
Legal Principles
24 Section 17(1) of the Act obliges the Fund to compensate for loss or damages
caused by the negligent driving of a motor vehicle. In this case, Liability has
already been conceded 100% in favour of the plaintiff.
25 The expert medical testimony confirms the causal connection between the
accident injuries and the sequelae. The hospital records and uncontested
experts reports also substantiate this.
26 The approach to be followed in assessing the extent of the plaintif f’s loss of
earning capacity was laid down in Southern Insurance Association Limited
v Bailey NO2, where Nicolas JA stated.
“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, wh ich 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
2. 1984 (1) SA 98 (A) 99.
approach depends 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. In a case where the Court has before it material
on which an actuarial calculation can usefully be made, the first
approach does not offer any advantage over the second. On the
contrary, while the result of an actuarial computation may be no more
than an "informed guess", it has the a dvantage of an attempt to
ascertain the value of what was lost on a logical basis; whereas the
trial Judge's “gut feeling” as to what is fair and reasonable is nothing
more than a blind guess.’ 3Further, on the weight to be accorded to
actuarial computation, the learned judge said : ‘Where the method of
actuarial computation is adopted in assessing damages for loss of
earning capacity, it does not mean that the trial Judge is “tied down by
inexorable actuarial calculations”. He has “a large discretion to award
what he considers right”.’4
27. In Van der Merwe v RAF5 with reference to in Mutual Insurance Association v
Maqula6 held that:
“It is settled law that a trial court has a wide discretion to award what it
in the particular circumstances considers to be fair and adequate
compensation to the injured party for his bodily injuries and their
sequelae.”
3. At 113G – 114A-D.
4. Ibid, at 116G.
5. [2020] JOL 49701 (FB) at [20]
6. 1978(1) SA 805 (A) at 806
28. In Dippenaar v Shield Insurance Co Ltd 7, the Court articulated the principle
in the following terms at 917B-D:
“In our law, under the lex Aquilia, 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. The capacity to earn money i s considered to be part of a person’s
estate and the loss or impairment of that capacity constitutes a loss if such
loss diminishes the estate. This was the approach in Union Government
(Minister of Railways and Harbours) v Warneke 1911 AD 657 at 665 where
the following appears: “In later Roman law property came to mean the
universitas of the plaintiff’s rights and duties, and the object of the action was
to r ecover the difference between the universitas as it was after the act of
damage and as it would have been if the act had not been committed
(Greuber at 269). Any element of attachment or affection for the thing
damaged was rigorously excluded. And this pri nciple was fully recognised by
the law of Holland. See also Union and National Insurance Co Ltd v
Coetzee 1970 (1) SA 295 (A) where damages were cl aimed and allowed by
reason of impairment of loss of earning capacity.
29. Hartzenbeg J dealt with the legal principles applicable to a quantification of
damages for loss of earning capacity in Road Accident Fund v
Maasdorp,8 where he held that:
“The question of loss of earnings and loss of earning capacity is a
vexed one and is often considered by our courts. Usually, the material
7. 1979 (2) SA 904 (A)
8. (1552/1999) [2003] ZANCHC 49 (21 November 2003).
available to the court is scant, and very often, the contentions are
speculative. Nevertheless, if the court is satisfied that there was a loss
of earnings and/or earning capacity, the court must formulate an award
of damages. What damages the court will award will depend entirely on
the material available to the court.”
30. Van der Schyff J (Mabuse J et R Matthys AJ concurring) held in Advocate
Viljoen N.O v Road Accident Fund 9 that:
“[13] When a claimant's loss of earning capacity is assessed, courts
essentially use one of two methods. (So uthern Insurance Association v
Bailey NO 1984 (1) SA 98.) The first is e stablishing a reasonable and
fair amount based on the proven facts and the prevailing
circumstances. This entails the determination of a lump -sum that the
court regards to be fair and just in the given circumstances. The
second approach is to establish an amount by a mathematical
calculation based on the proven facts of the case. Millard (D Millard,
‘Loss of earning capacity: The difference between the sum -formula
approach and the ‘somehow -or-other’ approach’, Law, Democracy &
Development 2007, vol 11:1.) o pines that courts are likely to follow the
first approach in circumstances where it is impossible to make a
mathematical calculation, for example, where the claimant is a minor
who has not yet embarked on a career path.
[14] This court must take into consi deration the fact that the plaintiff did
not testify in person. There was no direct evidence from her. Her
9. (A76/19) [2021] ZAGPPHC 461 (19 July 2021)
evidence would have been valuable in assessing what the future might
hold for her. This, however, does not mean that the court cannot
consider the ev idence of the expert witnesses. It does, however,
impact on the quantification method that will be utilised. It is impossible
to accurately determine the patient's post -morbid progression without
evidence of how the claimant sees and experiences her future
unfolding. In the claimant's absence, insufficient light was shed on the
reason for her failing her first year and why she did not consider
another study field. Due to the patient's failure to testify, a considerable
measure of uncertainty prevails. This disregards the application of a
purely mathematical model, even if higher than normal contingencies
are applied. It is trite that in these circumstances, the court may decide
to fix a lump sum as compensation, although it considers the actuarial
calculations as one of the factors in determining the award . [15] Even
in determining a lump -sum, the court is guided by the evidence before
it.”
31. Stratford J, in Hersman v Shapiro and Co, 10 held that:
“Monetary damage having been suffered, it is necessary for the Court
to assess the amount and make the best use it can of th e 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.”
10. 1926 TPD 367 at 379
32. Holmes JA, in Anthony and Another v Cape Town Municipality, 11 held that:
“I therefore turn to the assessment of damages. When it comes to
scanning the uncertain future, the Court is virtually pondering the
imponderable, but must do the best it can on the material available,
even if the result may not inappropriately be described as an informed
guess, for no better system has yet been devised for assessing general
damages for future loss; see Pitt v Economic Insurance Co. Ltd., 1957
(3) SA 284 (N) at p. 287, and Turkstra Ltd v Richards, 1926 TPD at
282 in fin - 283.”
33. Chetty J, in D’Hooghe v Road Accident Fund,12 held that:
“In a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the first approach
offers any advantage over the second. On the contrary, while the result
of an actuarial computation may be no mo re than an "informed guess",
it has the advantage of an attempt to ascertain the value of what was
lost on a logical basis; whereas the trial Judge's "gut feeling" (to use
the words of appellant's counsel) as to what is fair and reasonable is
nothing more than a blind guess. (Cf Goldie v City Council of
Johannesburg 1948 (2) SA 913 (W) at 920.)”
34. It was held in Sigournay v Gillbanks 13 that: “Where there has been a change
in the situation between the date of the delict and the date of the judgement,
11. 1967(4)SA 445 (A) at 451 B-C
12. 2010 (6J2) QOD 1 (ECP) at J2-8
13. 1960 (2) SA 552 (A) at 557
this change may affect the amount of damages.” No changes in the situation
applies.
35. Visser & Potgieter 14 states the following:
“... the assessment of all damages (general and special) takes place at
the time of the damage – causing event, whereas for purposes of
quantification of the damages to be awarded, all facts and other
evidence available at the time of quantification are taken into account.”
36. The extent of the reduction of the plaintiff’s ability to earn income as a result of
injuries sustained in the accident is the issue to which I now turn, with these
legal principles in mind.
Analysis of the evidence
37. The plaintiff’s injuries and Sequalae are not disputed, and the opinions
expressed by the various expert witnesses are admitted by the defendant.
The impacts of the plaintiff’s injuries and Sequalae on the plaintiff’s working
potential post-accident are not disputed.
38. In considering the evidence of the experts, the principle enunciated in NSS
obo AS v MEC for Health, Eastern Cape Province,15 is instructive, where
the Court said:
“In order to evaluate expert evidence, the Court must be appraised of
and analyse the process of reasoning which led to the expert’s
conclusion, including the premises from which that reasoning
14. Visser & Potgieter supra, at [6.7.4 – 6.7.5]
15. 2023(6) SA 408 (SCA) at para 25; Road Accident Fund v Kerridge 2019(2) SA 233 (SCA)
at para 50.
proceeds. The court must be satisfied that the opinion is based on facts
and that the expert has reached a defensible conclusion on the matter.
The purported admission by the defendant cannot, and does not,
absolve the court from this duty”.
39. Dr Malaza -Orthopaedic Surgeon, concluded that post -accident the plaintiff
would retire early at the age 45 due to the injuries and Sequalae of the
accident in question. Ms Swart -Occupational Therapists and Ms Monique
Engelbrecht (industrial psychologist) agreed to early retirement.
40. Having applied my mind to the totality of evidence before me and also taking
into account the agreed early retirement by the medical experts appointed in
this matter, I came to the conclusion that it is probable that the plaintiff will
retire early based on the experts findings that plaintiff is currently benefiting
from sympathetic employer and work accommodations.
41. My view is that, once this court accepted the above expert’s findings that the
plaintiff would retire early as postulated, it follows that pre -morbid earnings
and post-morbid earnings can never be the same and therefore Scenario 1A
and Scenario 2A finds no application in this matter , as the two scenari o are
based on the assumptions that uninjured scenario and injured scenario are
the same.
42. Ms Monique Engelbrecht concluded that plaintiff appears to be benefiting
from sympathetic employer and work accommodations. In my view to ca ter
for that risk a higher post-morbid contingencies need to be applied.
43. In light of the above it is my considered view that the plaintiff suffered loss of
earnings as a direct result of the accident in question.
Submissions
44. During argument and on the heads o f argument the plaintiff legal
representative argued for an amount of R 6 253 039.00 which amount
represent scenario 2B (Scenario 2B: C3 Ceiling (Pre -Accident) and early
retirement Age 45 (Post -Accident) after contingencies and application of
Capp.
45. I have considered all four scenarios and I came to the conclusion that the
most probable scenario which is best suited for the plaintiff is Scenario 1B: C2
Ceiling (Pre -Accident) and early retirement a ge 4 5 (Post -Accident) which
amounts to R 5 769 670 after contingencies and Capp.
46. Scenario 2B would be relevant, if plaintiff secured a supervisory role after
gaining skills and experience and in that event the plaintiff’s career ceiling
would be C3 Ceiling (Pre-Accident), before me there is no enough evidence to
prove plaintiff’s promotion. I find that scenario 2B asked for by the plain tiff’s
counsel is not proven.
Contingencies
47. The Actuary de ducted 5% on the past loss of income, 15 % on the future pre -
morbid and 35% on the future post-morbid contingencies.
48. With regards to the plaintiff in this case and her specific capabilities, I am of the
view that, a 5% contingency deduction on the past loss of income , 15% on
future pre -morbid and 3 5% on the future post -morbid already applied by the
plaintiff’s actuary is reasonable.
49. On future loss, a deduction o f 0.5% per year is usually made to the remainder
of the plaintiff’s working lifespan which in this case would be 3 0 years as the
plaintiff is turning 35 years this year(2026) . If the calculation based on
retirement age of 65 years is used, a 15% deduction would be a normal
deduction in relation to the pre-morbid scenario.
50. In Brits v Road Accident Fund ,16 STRIJDOM, J deducted 35% on the post -
morbid in the case where, the expert’s concluded that p rovision should
therefore be made for 10 years of early retirement.
51. The contingencies allow for general hazards of life such as periods of general
unemployment, possible l oss of earnings due to illness, the risk of future
retrenchment etc.
52. In terms of Road Accident Fund v Sweatman 17 and in SIL and Others v
RAF18, the SCA held that contingencies must first be applied and then the
statutory cap. The cap does apply to this case in scenario 1B.
53. In Nel v RAF 19 the court held that the court is to first deduct the merits
apportionment and the apply the cap. However, in the present case, the Capp
makes difference.
Legal principles on contingencies
54. The legal principles applicable to the assessment of contingencies have been
set out on numerous occasions in the past in various case law. It is by now
accepted that in the assessment of these kinds of damages, which cannot be
assessed with any amount of mathematical accuracy the court has a wide
discretion. See for example, A A Mutual Insurance Association Ltd v
Maqula 1978 (1) SA 805 (A). It was more convenient to deal first more
specifically with the plaintiff’s claim for loss of earnings and earning capacity as
16. (54415/2018) [2025] ZAGPPHC 417 (11 April 2025)
17. 2015 (6) SA 186 (SCA)
18. 2013 (3) SA 402 (GSJ)
19. 2016 (2) SA 517 (GP) para 13
well as the legal principles applicable thereto. The latter were also set out
succinctly in Southern Insurance Association Ltd v Bailey NO 1984 (1) SA
98 (A) at 114. At 114C-D, Nicholas JA said:
“ In a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the first approach
offers any advantage over the second. On the contrary, while the result
of an actuarial computation may be no more than an “informed guess”,
it has the advantage of an attempt to ascertain the value of what was
lost on a logical basis; whereas the trial Judge’s “gut feeling” (to use
the words of appellant’s counsel) as to what is fair and reasonable is
nothing more than a blind guess. (cf Goldie v City Council of
Johannesburg 1948 (2) SA 913 (W) at 920.)”.
55. In Gwaxula v Road Accident Fund (09/41896) [2013] ZAGPJHC240 , the
following was stated:
“ It is a now well-settled that contingencies, whether negative or positive,
are an important control mechanism to adjust the loss suffered to the
circumstances of the individual case in order to achieve equity and
fairness to the parties. There is no hard and fast rule regarding
contingency allowance.”
56. Koch, in The Quantum Yearbook 2022 at 121 said:
“ General contingencies cover a wide range of considerations which may
vary from case to case and may include: taxation, early death, saved
travel costs, loss of employment, promotion prospects, divorce, etc.
There are no fixed rules as regard general contingencies. The following
guidelines can be helpful:”
57. Sliding scale : ½ % per year to retire age, i.e., 25% for a child, 20% for a
youth and 10% in middle age ( see Goodall v President Insurance 1978 1 SA
389 (W); for child claims see Bailey v Southern Insurance 1984 1 SA 98 (A)).
58. Normal contingencies: The RAF usually agrees to deductions of 5% for past
loss and 15% for future loss, the so-called “normal contingencies”.
59. There are also unforeseen contingencies based on factors such as errors in
the estimation in future earnings and life expectancy, loss of earnings due t o
unemployment and sickness, retirement at an earlier age and hazards of life,
the list can never be exhaustive.
Conclusions
60. Having regard to the plaintiff’ s injuries and Sequalae, the actuarial
methodology employed by the plaintiff’s actuary.
61. The plaintiff should there fore be awarded the amount of R 5 769 670.00 as
compensation for the past and the future loss of earnings, which represents
a fair and balanced award, properly reflecting both the evid ential record and
the risks faced by the plaintiff due to accident inquestion.
62. The amount above is computed as follows:
Uninjured Injured
Past loss R 1 908 784 R 1 148 497
Less 5% Contingency (95 439) Less 5% contingency
(57 425)
=R 1 813 345 R 1 091 072
Total Past Loss R 722 273
Future loss R 9 040 602 R 3 943 330
-15% Contingency (1 356 090) -35% Contingency
(1 380 166)
=R7 684 512 =R 2 563 164
Total future loss of earnings R 5 121 348 + Total Past loss of earnings R 722 273
Total loss R 5 843 621
Loss of earnings (Capped) R 5 769 670.00
Costs
63. The general principle that the costs follow the results applies.
Order
64. In the premises draft order marked x is made an order of court.
___________________
F MATIKA
Acting Judge of the
High Court of South Africa
Gauteng Division, Pretoria
For the plaintiff
Mr R Madou
Instructed by:
Malange Madou Attorneys
012 321 0984
Info@malangemadou.co.za
For the Defendant: No Appearances
Date of hearing: 28 January 2026
Date of Judgement: 23 March 2026
“X”
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 22409/2021
BEFORE THE HONOURABLE JUSTICE MATIKA AJ HELD ON WEDNESDAY
THE 28 TH DAY OF JANUARY 2026, HEARD VIA TEAMS. THIS MATTER IS
NUMBER 24 ON THE TRIAL DEFAULT JUDGMENT ROLL OF 28 TH JANUARY
2026.
This Order is made an Order of Court by the Judge whose name is reflected herein,
duly stamped by the Registrar of the Court and is sub mitted electronically to the
parties/their legal representatives by email. This Order is further uploaded to the
electronic file of this matter on Case Lines by the Judge or his/her secretary. The
date of this Order is deemed to be 28TH DAY OF JANUARY 2026.
In the matter between:
XIKOMBISO MATHEBULA PLAINTIFF
Identity Number: 9[...]
and
ROAD ACCIDENT FUND DEFENDANT
(Link Number: 4099449
ORDER
HAVING read the documents filed of record and having heard the submissions by
the Counsel for the Plaintiff, Mr R. Madou,
IT IS HEREBY ORDERED THAT
1. The Application in terms of rule 38(2) is granted.
2. The issue relating to Merits and Generals were previously finalized
between the parties, wherein the Responden t/Defendant tendered an offer of 100%
in favour of the plaintiff on the 13th of November 2025.
3. The Defendant shall pay an amount of R 5 769 670.00 (Five Million,
Seven Hundred and Sixty Nine Thousand Rand, Six Hundred and Seventy
Rand) within 180 days from the date of this court order in full and final settlement of
the plaintiff's claim in respect of loss of income .
4. The Defendant is ord ered to pay the Plaintiff’s party and part costs on
the High Court scale, scale B, subject to Taxing Master’s discretion, which costs shall
include, but not be limited to:
4.1 The cost of the application in terms of rule 38(2),
4.2 The costs of Mr Madou ( attorney with right of appearance), including
his day fees; preparations; and consultation with the attorney,
4.3 The reasonable costs for the preparation of application for default
judgment trial,
4.4 The reasonable costs of attendance at court for trial of the attorney
4.5 The reasonable taxable and qualifying, reservation and p reparation
fee of the plaintiff's experts witness, as well as the cost of all reports and or
addendum reports of whom notice was given, or whose reports are in the
position of the Defendant including the cost of obtaining the reports of expert's
witnesses served on the Defendant, including any special investigations,
traveling fees incurred by and or on behalf of the Plaintiff to obtain the reports
concerned.
5. Should the Defendant fail to pay the capital sum referred in paragraph
3 above and the Plaintiff's party & party costs as taxed or agreed within 180 days
from the date of this court order on capital sum and 180 days from date of taxation,
alternatively date of settlement of such costs, the Defendant shall be liable to pay
interest at an applicable interest rate as prescribed per annum, such costs as from
and including the date of taxation, alternatively the date of settlement of such costs
up to and including the date of final payment thereof.
6. The Plaintiff shall, in the event that the parties are not in agreement as
to the costs referred to in paragraph 6 and 7 above, serve the notice of taxation on
the Defendant and on its attorneys and shall allow the Defendant 180 days to make
payment of the taxed costs.
7. The Trust Banking Details in which the capital and costs amounts
mentioned in the paragraphs above shall be paid within 180 days as follows, to;
NAME OF BANK: NEDBANK
ACCOUNT NUMBER: 1[...]
ACCOUNT TYPE: TRUST CHEQUE ACCOUNT
ACCOUNT HOLDER: MALANGEMADOUATTORNEYS
BRANCH CODE: 198765
REFERENCE: Malange/RM00214/20/RAF
8. No contingency fee agreement entered by and between the Attorney
and Plaintiff.
BY ORDER OF COURT
THE REGISTRAR
REPRESENTATIVE FOR THE PLAINTIFF: MR RENDANI MADOU [Duly
admitted in terms of section 4(2) of
Act 62 of 1995]
madourendani@gmail.com
081 769 0934
INSTRUCTED BY: MALANGE MADOU ATTORNEYS.
012 321 0984
info@malangemadou.co.za
REPRESENTATIVE FOR THE DEFENDANT: (NO APPEARANCE)