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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A66/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED: NO
DATE: 27 March 2026
SIGNATURE:
In the matter between:
ADV SAYED obo M[...] Appellant
and
THE ROAD ACCIDENT FUND Respondent
JUDGMENT
MOKOSE J (LEDWABA AJP and NEL AJ concurring)
[1] The appellant, Advocate Sayed, brings an appeal as the curator ad litem on
behalf of S[...] M[...] who was involved in a motor vehicle accident on 10 January
2019 when he was 12 years old. He is presently 20 years old. The appellant appeals
against the award for loss of earnings in the sum of R3 000 000,00 made by the
court a quo on 24 February 2024. The appellant is of the view that on a conspectus
of the evidence before the court, the award which should have been granted was the
sum of R5 774 802,00.
[2] It is noted that the respondent's defence was struck out by the court on the
date of the trial. No cross appeal has been brought by the respondent for the striking
of the defence by the respondent.
[3] The brief facts are as follows: S[...] M[...] was injured as a result of a motor
vehicle accident that occurred on 10 January 2018, when he was 12 years old. At
the trial, it was confirmed that the merits had been conceded 100% in favour of the
appellant. Furthermore, it was confirmed that general damages would be postponed
sine die for a determination by the Health Professions Council of South Africa as to
the seriousness of the injuries suffered by S[...] M[...]. The remaining item to be
determined was that of future loss of earnings and future medical expenses.
[4] The court a quo granted an application in terms of Rule 38(2) of the Uniform
Rules of Court allowing for the expert evidence of the appellant (plaintiff) to be heard
on the basis of their reports as confirmed by way of affidavit. No expert evidence had
been filed on behalf of the respondent.
[5] Following argument and engagement between the court and counsel for the
appellant an award of R3 000 000,00 in respect of loss of earnings was made
together with and undertaking in term s of Section 17(4) in respect of future medical
expenses. No reasons were provided but were subsequently formally requested and
furnished by Ba m J. On petition to the Supreme Court of Appeal, leave to appeal
was granted to this court which leave was sough t against the amount awarded in
respect of loss of earnings only.
[6] Having regard to the accident sustained by S[...] who was 12 years at the time
of the accident, the consensus between the experts was that he had sustained a
mild concussive head injury and that as a result thereof, he suffers from cognitive
psychological and physical deficits. He was found to suffer from post concussive
headaches and symptoms of depression and post -traumatic stress disorder. The
headaches and symptoms of depression and post -traumatic stress disorder. The
educational psychologist concluded that based on the available information, the
patient's highest level of education will in all likelihood be a Higher Certificate (NQF
Level 5), with support. The expert further noted that there had been a substantial
loss of potential.
[7] The Industrial Psychologist postulated that S[...] would in future suffer loss.
She postulated that had the accident not occurred, S[...] would have completed
Grade 12 by 2024, whereafter it would have taken him 1 to 3 years to secure formal
employment. Upon securing employment, he would have earned remuneration
commensurate with the basic salary at the Paterson A2 median level. While working,
he would have completed a part-time NQF level 7 qualification in line with his chosen
career within 5 to 6 years of securing f ormal employment. He would thereafter
compete for work in the Paterson B band. Upon completion of his qual1ficat1on, his
earnings would have increased with a guaranteed annual package at the Paterson
B3 median level. Upon reaching his career ceiling, he wo uld have been remunerated
commensurate with the guaranteed annual package at the Paterson D2 median
level, whereafter he would receive inflationary increases until retirement at the age
of 65.
[8] On the basis of the Industrial Psychologist's postulatio n, the actuary
calculated that the appellant's future loss of earnings would be the sum of R 5 774
802,00.
[9] The appellant appeals on the ground inter a lia, that the court erred by not
accepting the findings and conclusions of the experts of the appellan t in total,
specifically the Industrial Psychologist's findings and conclusions notwithstanding the
fact that there was no contradictory evidence adduced by the respondent.
Furthermore, the court erred in substituting its own interpretation of the importance of
the Glasgow Coma Scale with that of the relevant experts in finding that there was
no brain injury. This was in view of the unconte sted evidence of the neurologist,
neuropsychologist and educational psychologist who agreed that S[...] had sustained
at least a mild concussive brain injury. There was no scientific evidence before the
at least a mild concussive brain injury. There was no scientific evidence before the
court that could have justified such a conclusion, nor does the determination of a
brain injury fall within the expert knowledge of the court.
[10] In the matter of The Road Accident Fund v Guedes1 the court held as follows:
"The Appeal Court will interfere with the award of the trial court:
i. where there has been an irregularity or misdirection (for example, the
Court considered irrele vant facts or ignored relevant ones; the court was too
generous in making a contingency allowance; the decision was based on
totally inadequate facts).
ii. where the Appeal Court is of the opinion that no sound basis exists for
the award made by the trial court.
iii. where there is a substantial variation or a striking disparity between the
award made by the trial court and the award which the Appeal Court
considers ought to have been made. In order to determine whether the award
is excessive or inadequate, the Appeal Court must made its own assessment
of the damages. If upon comparison with the award made by the trial court
there appears to be a "substantial variation" or a "striking disparity", the
Appeal Court will interfere."
[11] The matter was argued based on the expert reports per Rule 38(2). The court
a quo did not indicate that it was of the opinion that the expert evidence stood to be
rejected. Furthermore, the determination of the existence, extent and sequelae of the
brain injury sustained by S[...] does not fall within the purview of the specialist
knowledge of the Judge. Accordingly, I am of the view that the Court a quo could not
rely on its own conclusions to the contrary.
[12] The appellant further contends that the Judge erred in failing t o properly
examine evidence and in so doing, failed to take cognisance of the true extent of
S[...]'s sequelae.
[13] It is evident from the record that from the inception of the hearing, the Judge
formed an opinion that the basis for the calculation by t he actuary was
unsubstantiated. The comments and views that "none of this is real" and that "... it is
all up in the air...." are indicative of same and certainly fly in the face of the expert
1 2006 (5) SA 583 (SCA) at para 8
evidence of the Educational Psychologist and Industrial Psychol ogist as to the
probable academic and career path of S[...] had the accident not occurred. She
further failed to take in account evidence that the minor child had been diagnosed as
suffering from post-traumatic stress disorder (PTSD).
[14] Furthermore, the court reasoned that:
"10. In the court's view, the projections of the IP reflect more the present
state of the South African economy. The court in this regard took into account
the country's sluggish economy, with negligible growth and chronic
unemployment, to the point that it is normal to hear of graduates sitting at
home, including medically trained graduates of various kinds, lawyers and
more. Thus, rather than being a reflection of the minor's inju ries, the
projections reflect the struggling economy of our country. These are matter
that the court took judicial notice of in reflecting on the circumstances of the
case."
[15] Although judges may, in arriving at de cisions, use their general information
and knowledge of common affairs, they may not act on their own private knowl edge
or belief regarding the facts of a particular case. 2 Furthermore, should a court intend
to take judicial notice of a fact, it has a duty to forewarn the parties.3
[16] The appellant furthermore appeals on the ground that there was no sound
basis for the award of R3 000 000,00 made by the Court. It was an arbitrary amount
where no mathematical basis for the figure was provided.
[17] Whilst the court referred to several cases in providing the reasons that confirm
the discretion of a Judge in making an a ward, they do so within the context of the
discretion in determining contingencies to be applied to an actuarial calculation. The
2 R v Tager 1944 A.D. 399
3 lmvula Quality Protection (Pty) Ltd v Licinio Loureiro & Others [2013] ZASCA 12
court failed to assess all the evidence place before it properly. In so doing, it
misdirected itself on the facts, thereby committing an irregularity.4
[18] For the reasons as set out above, I am of the view that the Judge erred and
accordingly, the following order is granted:
1. The appeal is upheld;
2. The order contained in paragraph 4.1 of the order of the Court a quo
dated 22 February 2024 is set aside and replaced with the following order:
The De fendant pay the Plaintiff an amount of R 5 774 802,00 (FIVE
MILLION SEVEN HUNDRED AND SEVENTY -FOUR THOUSAND EIGHT
HUNDRED AND TWO RAND ONLY) in full and final settlement of the
Plaintiff's claim for Loss of Earnings, payable into the Plaintiff's
attorneys of record trust account with the following details:
Account Holder: Ehlers Attorneys
Bank Name: FNB
Branch Code: 261150
Account Number: 6[…]
3. The Respondent is ordered to pay the costs of the applications for
leave to appeal in both the court a quo and the Supreme Court of Appeal.
4. The Respondent is ordered to pay the costs of this application on Scale
"B".
SNI MOKOSE J
Judge of the High Court of
4 Tromp N.O. v Road Accident Fund [2024] ZAGPPHC 529 (5 June 2024)
South Africa,
Gauteng Division, Pretoria
I agree,
AP LEDWABA AJP
Judge of the High Court of
South Africa,
Gauteng Division, Pretoria
I agree,
P NEL AJ
Acting Judge of the High Court of South Africa
Gauteng Division,
Pretoria
For the Applicant: Adv Karin Strydom
Instructed by: Ehlers Attorneys
For the Respondent: No appearance
Date of hearing: 19 January 2026
Date of judgment: 27 March 2026