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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 63103/2017
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 20 April 2026
SIGNATURE
In the matter between:
SINDISIWE ANGEL MAGWAZA Plaintiff
and
ROAD ACCIDENT FUND Defendant
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JUDGMENT
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PIENAAR M (AJ)
Introduction
1. The plaintiff filed an action against the Road Accident Fund claiming that she
sustained injuries when she was a passenger in a motor vehicle with registration
numbers and letters N[...] 3[...], which was involved in an accident that occurred on
28 August 2011, at or along R66 Gingindlovu in KwaZulu-Natal.
2. This matter was on the default judgment roll on 22nd January 2026. When the matter
was called, there was no appearance for the RAF, despite due notice of the trial date
being given to it. The Plaintiff served the notice of set down on 10 September 2024.
The matter proceeded on a default basis.
3. On 15th March 2023, before the Honorable Judge Voster AJ, the Respondent’s
defence was struck out.
4. The merits, which were conceded in full (100%), were settled on 12 March 2019 by
way of a court order before the Honourable Judge Rulinga (ADJP). The Defendant
also tendered future medical treatment by way of an undertaking of the RAF act 56 of
1996, limited to 100% of her claim.
5. The Fund did not admit the RAF 4 serious injury assessment of the Plaintiff.
Therefore, the issue of General Damages is postponed sine die.
6. The only issue for determination before the Court is loss of earnings.
7. The Plaintiff’s brought an application in terms of Rule 38(2) of the Uniform rules of
court for the expert reports and affidavits to be admitted into evidence. Havenga vs
Parker confirmed by the Supreme Court of Appeal in Madibeng local Municipality
vs Public Investment Corporation 2018 (6) the (“SCA”), found that it is permissible to
place expert evidence before the court by way of affidavit in terms of Rule 38(2)
accordingly that application was granted.
8. I reserved this judgment at the conclusion of the trial after listening to oral
submissions by Plaintiff Counsel, Adv Tshavhungwe.
Quantum
9. The Plaintiff served the following medico legal reports on the Defendant:
9.1 Dr Majeed - Neurosurgeon RAF 4 assessment report
9.2 Dr Mqhayi - Clinical Psychologist
9.3 Tumelo Molefe - Occupational Therapist
9.4 Moipone Kheswa - Industrial Psychologist
9.5 Wim Loots - Actuaries
Future loss of earnings/earning capacity
Dr Majeed - Neurosurgeon
10. Dr Majeed assessed the plaintiff on 13 June 2025 and reported that she
demonstrated with mild-moderate neuro cognitive deficts that are consistent with a
mild brain injury. The persisting symptoms provide an explanatory context for her
test performance and daily complaints, highlighting how pain and attentional
inefficiency interact to reduce her overall functional capacity.
11. Her prognosis is poor, she has long term mental and mood/behavioural disturbance/
disorder. Ms Magwaza never suffered from an epileptic fit. Her chances of
developing epilepsy are no different than normal population.
Dr Mqhayi - Clinical Psychologist
12. Ms Magwaza reported that she was in Grade 10 a learner at Mtwana Kamzizwe
High School at the time of the accident, despite being 26 years old.
13. After the accident she returned to school and completed Grade 10. However, she
dropped out during Grade 11 due to persistent symptoms from the accident,
including memory problems and recurring headaches. Emotionally, she is still
distressed by the deaths of her cousin and friend.
14. Dr Mqhayi stated that Ms Magwaza demonstrated with mild-moderate neuro
cogntiive deficts that are consistent with a mild brain injury. Her performance on
tasks of complex attention and concentration indicated marked weaknesses. Her
deficits in attention, executive functioning, visual memory and processing speed are
further magnified by the daily burden of chronic headaches, pain in her legs and left
arm and persistent fatigue.
Tumelo Molefe - Occupational Therapist
15. At the time of the accident she was doing Grade 10 and she failed as she couldn’t
return to school that year due to the injuries sustained. She repeated Grade 11
and failed as she couldn’t return to school that year due to the injuries sustained.
She dropped out of school because her left leg was swelling and painful. She worked
as a cleaner at Schooners restaurant. She found it difficult to climb the stairs thus
her employer moved her to the kitchen where she peels and chops vegetables. She
is currently employed as such.
16. Ms Magwaza reported that she experiences headaches, pain on the left shoulder,
right knee and right ankle, poor concentration and poor memory since the accident
occurred. She reported pain on the right knee and right ankle although she had
functional movement. When Ms Magwaza’s physical challenges are considered, she
is physically suited for sedentary, light to medium duties. However, her reported
symptomology of headaches, poor memory, poor concentration and pain on the left
shoulder and right knee and right ankle may negatively affect her productivity.
Moipone Kheswa - Industrial Psychologist
Pre morbid scenario
17. Ms Magwaza was 26 years of age at the time of the accident and is currently 41
years old. In considering the pre-morbid position, Ms Kheswa, an industrial
psychologist, proposed three possible scenarios:
Scenario 1 - Grade 11 scholar, assumed to leave school with Grade 11 level
education. She could have started earning between the lower and the medium
quartile of unskilled non-corporate workers. Then with experience and better
employment opportunities, her salary could have escalated to the upper quartile
band when she reached 45 years, with applicable inflationary increases until she
retired.
Scenario 2 - With a Grade 12 level of education obtained in 2012/2013, it could have
taken her about 1-2 years to secure employment. For the next 3-5 years she could
have opted for any fragmented work available earning on a Paterson level A1/A2.
After this period, she could have qualified for an income on Paterson level A3 with
gradual progression to Paterson level B4 upper quartile (total package) as a career
ceiling when she reached 45 years, with applicable inflationary increases until she
retired.
Scenario 3 - Post matric Certificate (NQF 5). After completing her matric, probably in
2012/2013, she could have enrolled for a post matric certificate of her choice. In this
regard, she is likely to have started earning at the lower quartile of Paterson level B3.
With experience, better employment opportunities and promotional prospects, she is
likely to have progressed and reached her ceiling at the upper quartile of Paterson
level C2 (total package) when she reached 45 years with applicable inflationary
increase thereafter.
18. Counsel for the Plaintiff submitted that Scenario 1 is fair and reasonable and ought
to be adopted as the appropriate postulation. The Court concurred, holding that
Scenario 1 represents the correct approach, having regard to the Plaintiff’s
uninjured background.
Post morbid scenario
19. She never returned to school for the remainder of the 2011 academic year (the year
of the accident. However, in 2012, she reportedly attempted to return to school and
enrolled at a different school. She was forced to drop out after at least 2 weeks due
to the challenges she was facing from the injuries she incurred in this accident. Her
memory was not as good as it used to be and she struggled with retaining as well as
recalling new information. She experienced pain in her right leg as weak as
discomfort of the right leg which were exacerbated by prolonged sitting and standing.
20. Ms Magwaza is currently employed as a Helper Cook on a permanent basis. Ms
Kheswa Moipone obtained collateral information from the Manager at Schooners
Restaurant, who reported that the Plaintiff is employed on a permanent basis and
has been in such employment for over a decade. She is described as a hard-
working employee who maintains a good relationship with her colleagues, and her
attendance record is satisfactory. She performs her duties well; however, she
experiences difficulties in remembering to amend or alter initial orders, which has,
on occasion, resulted in customer frustration due to delays.
21. According to the experts converge on a similar conclusion that the accident has
rendered her an unequal competitor for gainful employment as well as a much more
vulnerable employee having to compete with well-bodied individuals for employment.
The existence of her cognitive, psychological and physical challenges will always
render her an unequal and unattractive employee within the open labour market. As
a result, she is unlikely to reach her pre accident earning potential. Her employment
is compromised, and this simply implies that she is prone to a job loss, and any
increase to her current earnings will not occur except through inflation.
22. Counsel for the Plaintiff submitted that the plaintiff is totally unemployable. The
Court does not agree with this submission, having considered the expert reports and
collateral information, which demonstrate that she remains employed. The Court is
accordingly of the view that a higher contingency deduction ought to be applied in
respect of the post-morbid scenario.
Wim Loots Actuaries
23. The actuarial calculations of Mr Wim Loots are based on the report of the industrial
psychologist. On the basis of Scenario 1, applying a 15% contingency to the
uninjured scenario and a 40% contingency to the injured scenario, the calculation is
as follows:
Pre morbid scenario Past Future
639 596 - 5% = 607 616 1 945 600 - 15% = 1 653 760
Post morbid scenario 557 807 - 5% = 529 917 1 183 738 - 40% = 710 242,80
Sub total 77 699,00 933 517,20
Total R1 011 216,20
In the result the following order is made:
1. Judgment is granted in favour of the plaintiff for the payment of R1 011 216,20 in
respect of loss of earnings.
2. The issue of General damages is postponed sine die
3. Draft order “X” as amended is made an order of court.
PIENAAR (AJ)
ACTING JUDGE OF THE HIGH COURT
OF GAUTENG DIVISION, PRETORIA
Hearing date : 22 January 2026
Judgment delivered : 20 April 2026
This judgment was handed down electronically by circulation to the parties
representatives by email, by being uploaded to Case Lines. The date and time for hand-
down is deemed to be 20 April 2026.
APPEARANCES:
Plaintiff Counsel : Adv Tshavhungwe P
Instructed by : D D Kotlolo Attorneys Inc
email: kotloloattorneys@gmail.com
Ref: DDK/K867/17/NLS/GM
Respondent legal representatives : Road Accident Fund
No appearance
Link no: 3268633
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