SAFLII Note: Certain personal/privat e 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: 34073 /2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 21/04/2026
SIGNATURE:
In the matter between:
N[...] A[...] G[...] Plaintiff
Obo B[...] K[...]
and
ROAD ACCIDENT FUND Defendant
Link no: 4952983
JUDGEMENT
CORAM: ZITHA, AJ
HEARD ON: 09 DECEMBER 2025
DELIVERED ON: 21st APRIL 2026
INTRODUCTION
This is a delictual claim as a result of a motor vehicle collision, which occurred on
the 13th December 2018. The Plaintiff approaches the court by a way of default
judgment. This is a result of the Defendant’s failure to file a notice of intention to
defend and serve a plea.
PARTIES
[1] The Plaintiff is a female adult person with identity number 7[...] currently
residing at 1[…] N[...] Street, Grahamstown, Eastern Cape Province , who
sues herein in her representative capacity as the mother and natural
guardian of B[...] K[...] born on the 01 st of March 2008, a s a result of h is
involvement in a motor vehicle accident.
[2] The Defendant is the Road Accident Fund, a juristic person established in
terms of section 2(1) of the Road Accident Fund Act 56 of 1996 (" the Act")
with full legal personality and of address 3 […] I[...] Street, Menlo Park,
Pretoria, Gauteng.
[3] On 13 December 2018 at approximately 10:00 and in Mfitshane location ,
Mqanduli, Eastern Cape Province, the Plaintiff was a passenger on a
bakkie when the said vehicle was involved in an accident. This is an action
for damages which the Plaintiff suffered as a result of injuries he suffered in
the accident. The Plaintiff instituted the action in her representative
capacity. The issue of liability has already been resolved between the
parties.
[4] In terms of the particulars of claim the Plaintiff suffered the following
injuries:
4.1 Mild Traumatic brain injury;
4.2 Multiple bruises on the head; and
4.3 Laceration on the occipital;
AN APPLICATION IN TERMS OF RULE 38(2) OF THE UNIFORM RULES
[5] The Plaintiff made an application in terms of Rule 38(2), in order to lead
evidence by a way of an affidavit. Such application was properly served
and accompanied by the expert affidavits. The application was granted.
For future medical expenses the Plaint iff is awarded an undertaking in
terms of section 17 of the Road Accident Fund Act.
In this regard the Plaintiff’s evidence is unchallenged and uncontested as
the
Defendant’s plea was struck off by the Court.
The Plaintiff applied that his quantum eviden ce be admitted by way of
affidavit.
This included:
5.1. The Plaintiff’s quantum evidence;
5.2. Any collateral witness evidence; and
5.3. In terms of the Judge President’s Practice Directive 1 of 2021
(paragraph 29), evidence may be tendered by affidavit, and the
Trial Judge may exercise his/her discretion to accept such
evidence.
5.4. In the matter of Abraham v City of Cape Town1, the Court held:
“It was common cause before me that where an application for default
judgment serves before a Court, it has a clear and unfettered discretion in
terms of the relevant Rule of Court to decide whether or not to hear oral
1 1995 (2) SA 319
evidence on any of the i ssues which may require to be decided in order to
determine whether or not to grant the relief claimed.”
5.5. In Mnisi v The Road Accident Fund and Seven Similar
Matters2, the court held and quoted the following at paragraph 52:
“The subrule provides a mechanism whereby the court may on
application and if sufficient reason is shown, allow that evidence
be given on affidavit. Firstly, there must be an application to
adduce evidence by affidavit. Secondly, there must be sufficient
reason for doing so and thirdly, the court may lay down the terms
and conditions for the evidence to be adduced. In Madibeng Local
Municipality v Public Investment Corporation Ltd 2018 (6) SA 55
(SCA) at 25, the Supreme Court of Appeal expressed itself over
subrule 38(2):
‘The approach to rule 38(2) may be summarised as follows. A trial court has a
discretion to depart from the position that, in a trial, oral evidence is the norm.
When that discret ion is exercised, two important factors will inevitably be the
saving of costs and the saving of time, especially the time of the court in this
era of congested court rolls and stretched judicial resources. More importantly,
the exercise of the discretion will be conditioned by whether it is appropriate
and suitable in the circumstances to allow a deviation from the norm. That
requires a consideration of the following factors: the nature of the proceedings,
the nature of the evidence, whether the applicatio n for evidence to be adduced
by way of affidavit is by agreement, and ultimately, whether, in all the
circumstances, it is fair to allow evidence on affidavit.
And at paragraph 53:
2 [2022] ZAMPMBHC 23
“Plaintiffs in RAF matters often request the court to accept evidence upon
affidavit. Especially now where in most RAF matters there is no appearance by
the RAF or where the RAF has not participated in the pre -trial proceedings or
where the RAF has not defended the action and/or failed to deliver and file a
plea. Of course, wher e the RAF does not appear at the trial, there will be no
request for cross-examination as provided for in the subrule. Therefore, subject
to what I set out in paragraphs 61 3 and 62 4 below, I see no reason why Rule
38(2) may not actually be used to contri bute to the speedy and cost -effective
delivery of justice in RAF matters.
5.6. The Plaintiff served all information and documentation on the
Defendant.
5.7. This is a quintessential example of a matter that can be disposed of
by way of affidavit to save time and costs.
5.8. The Plaintiff requested that the expert affidavits and the affidavits in
respect of the quantum evidence of the Plaintiff be admitted as
evidence.
5.9. Insofar as any of the experts in their reports rely upon hearsay
evidence the Honourable Court was respectfully requested to admit
the said hearsay evidence as an exception to the hearsay rule.
ISSUES TO BE DETERMINED
[6] I am consequently called u pon to determine the future loss of income and
or earning capacity of the Plaintiff. In this regard the Plaintiff is claiming an
amount of R10 719 900 (Ten million Seven hundred and nineteen thousand
3 Paragraph 61 of the judgment: “ In my view, the approach in RAF matters in circumstances set out above where there is no
participation by the RAF at all or only limited participation or there is no appearance when the trial is called for hearing, the
approach to be adopted should be on b asis of what is set out by Froneman J Bengwenyama Minerals (Pty) Ltd and Others v
Genorah Resources (Pty) Ltd and Others (CCT 39/10) [2010] ZACC 26; 2011 (4) SA 113 (CC) ; 2011 (3) BCLR 229 (CC)”
4 Paragraph 61 of the judgment: “In my view, the approach of Froneman J applies to RAF actions where the circumstances set out in
this judgment apply. The court should be extremely astute and consider all the information before it which includes the plead ings,
documents that were discovered, all reports by the experts and all affidavits (if filed) before the trial commences to determine the
way to approach the trial. The pleadings, the facts that appear from what is in the court file and the expert reports, (espec ially
whether the findings therein) tally with the rest of the information ...”
and nine hundred rand) . I am furth er called upon to det ermine the future
medical expenses.
THE EVIDENCE:
[7] The Plaintiff relied on the medico -legal reports to adduce evidence that
dealt with the sequelae of the injuries that he sustained.
Documentary evidence:
[8] As part of the Plaintiff`s case, the following expert reports, as confirmed by
affidavits, were handed in as exhibits:
8.1 Ms Ntembeko Lungelo Nqapela, Industrial Psychologist,
8.2 Dr S.M KHANYILE, Orthopaedic Surgeon
8.3 Dr Akhona Mazwi, Neurosurgeon,
8.4 M. S Mthimkhulu, Educational Psychologist,
8.5 Ms Muyahavho Beauty Koko, Clinical Psychologist,
8.6 Ms Zethu Nkosi, Occupational Therapist, and
8.7 Mr Edwin Chauke , Tsebo Actuaries,
The Educational Psychologist medico-legal report:
Pre-accident:
[9] In respect of the pr e-accident scenario, the expert noted and concluded
as follows:
9.1. If the performance of his parents and sibling at school is taken into
account and the fact that he has not failed any grade before the
accident and looking at various factors that might determine the
learner’s education potential, including family members (both
maternal and paternal educational background ), environment ,
socio-economic factors of the family, it is likely before the accident
he could probably pass grade twelve (12) and obtain admission to
a Bachelor’s degree study. H e could probably pursu e the degree
study course of his choice and obtain an NQF level 7 qualification.
The trend now lately is that children often achieve more than their
parents, academically and vocationally. The educational
landscape has since changed to support the learners so that most
are able to complete high school education.
9.2 No pre-existing conditions were reported.
9.3 His gross developmental milestones followed a normal trajectory.
9.4 His medical history does not include any significant medical illness
prior to the accident. The expert opined that B[...]’s medical
history had included no previous head trauma, loss of
consciousness, epilepsy, or neurocognitive deficits prior to the
accident under discussion. Based on the above information
gathered the expert is of the view that the Plaintiff presented with
largely intact neurodevelopmental functioning.
9.5 He is staying with h is parents and siblings. Their family
relationships and interactions were reported to be satisfactory.
He had been a Grade 4 learner at the time of the accident. He
reportedly did not present with any cognitive difficulties as there
were no cognitive chal lenges reported prior to the accident. An
analysis of Grade 4 (2017, terms 1 -4) school report, it shows that
he passed terms 1, 3 and 4 and failed term 2.
9.6 He had the ability to pass matric with a Bach elor Endorsement
and the expert opine that he could have been able to obtain post -
school qualification at NQF Level 7.
(My emphasis)
9.7 The Educational expert further noted that at the time of the
accident, B[...] was undertaking Grade 4 studies. Prior to the
accident, he had completed Grades 1 -3 without a ny reported
-
scholastic challenges and had progressed to succeeding grades
with ease.
An analysis of Grade 4 (2017, terms 1-4) school report
9.8 It shows he passed terms 1, 3 & 4 and failed term 2.
9.9 In term 1 , his performance ranged between Moderate
achievement (40-49%) and Outstanding Achievement (80-100%).
9.10 In term 2, a slight decline was noted as it ranged between
Elementary Achievement (30-39%) and Outstanding Achievement
(80-100%).
9.11 In term 3, the same academic performance was noted.
9.12 In term 4, his performance ranged between Moderate
Achievement (40-49%) and Outstanding Achievement
(80-100%).
9.13 Even though he had failed term 2, his performance improved ,
suggesting recovery.
9.14 The Educational expert postulated that based on the above
information obtained, the writer is therefore of the opinion that had
the accident not occurred, B[...] would have likely completed
Grade 12 (NQF 4) and further obtained a Degree (NQF 7)
qualification. He would have obtained this qualification with a
possible 1-year delay.
Post-accident:
[10] With regard to the Plaintiff’s post-accident functioning, the expert stated
as follows:
10.1. The expert noted and agreed that he presents with forgetfulness,
short memory span and the inability to comprehend instructions
as expected. Furthermo re, he presents with physical and
emotional complaints.
10.2. It would seem that his neuropsychological, physical and emotional
problems have impacted negatively on his scholastic and
academic progress a nd on h is quality of life. H e experiences
feeling of anxiety , inadequacy and uncertainty . Muyahavho
Beauty Koko, Clinical psychologist states that he has moderate
Post Traumatic Disorder symptoms, mood dysregulation
associated with presence of depression, anxiety and irritability.
10.3. The accident has rendered him academically vulnerable. T he
prognosis of him passing grade 12 seems bleak. He will thus not
achieve his pre -accident potential. His highest level of education
will be Grade 12 (NQF level 6) post-accident.
Post-accident school results
10.4. An analysis by educational expert of his Grade 5 (2018, terms 1 -
4) school report shows his overall academic performance ranging
between Adequate Achievement (50 -59%) and Outstanding
Achievement (80-100%).
10.5. The same academic performance was also noted in hi s Grade 6
(2019, terms 1 -4) and Grade 7 (2020, terms 1, 3 & 4) school
reports.
10.6. Academic performance over the Grade 11 (2024) and Grade 12
(2025) school years reflects a consistent pattern of achievement
within the Diploma pass category. This performance indicates that
while he demonstrates commitment and progress across
academic terms, his overall attainment remains variable across
subjects and terms.
10.7. In Grade 11, his performance ranged from elementary
achievement (level 2) to outstanding achievement (lev el 7) , with
relative strengths observed in IsiXhosa Home Language , English
First Additional Language , and Life Orientation , where he
consistently performed at meritorious (level 6) or outstanding
(level 7) levels.
10.8. Conversely, he showed persistent challeng es in History, Life
Sciences, and Physical Sciences , where achievement levels
fluctuated between elementary (level 2) and adequate (level 4) ,
suggesting difficulties in conceptually demanding and abstract
subjects requiring higher -order reasoning and susta ined
concentration.
10.9. A similar performance trend is observed in his Grade 12 results,
where he once again attained an overall Diploma pass.
10.10. In this academic year, his language -based and personal
development subjects continued to be areas of strength,
particularly IsiXhosa HL, English FAL, and Life Orientation, with
scores ranging from substantial (level 5) to outstanding (level 7)
achievement.
10.11. However, his performance in Mathematics, Physical Sciences ,
History, and Life Sciences remained inconsistent, often ranging
between not achieved (level 1) and adequate achievement (level
4).
10.12. Considering all the information received, B[...] is likely to obtain
an equivalent of NQF 6 studies (Diploma) upon completion of
Grade 12 (NQF 4), p rovided he continues to receive adequate
academic support, such as extra classes.”
10.13. This inconsistency reflects cognitive vulnerability in his abstract
abilities.
Career aspiration
10.14. The Plaintiff reported that he wants to enrol for Computer
Science studies after completing Grade 12. Considering his
inconsistent performance in Mathematics, Physical Sciences and
Life Sciences, he might need to choose a career that does not
require these subjects that he may qualify for.
The medico-legal report of the Clinical Psychologist:
Pre-accident:
[11] The expert concludes that the Plaintiff had no history of cognitive -,
physical- or emotional challenges that would have impacted on the
neuropsychological test results.
[12] Socially, he had a good relationship with his family, he was sociable
individual with good relations with his peers.
[13] Physically, he had no physical difficulties or limitation noted. He would be
considered to have been a healthy individual with no significant illnesses
or injuries prior to the accident.
[14] Cognitively, he had no difficu lties in h is scholastic studies. His premorbid
aptitude was reportedly average.
[15] Psychologically, he had never had any psychological or psychiatric ills
nor any interventions report ed prior to the accident. H e had not reported
on any prior traumatic incidents.
[16] Academically/Occupationally, he was a scholar at the time of the
accident.
Post-Accident:
[17] With regard to the pos t-accident scenario, the expert concluded as
follows:
17.1. Socially, there is a decline in h is engagements with friends /peers
due to increased irritability.
17.2. Physically, he is no longer able to participate in sporting activities
due to his pain in the ankle. He currently suffers from headache s.
He experiences dizziness about once a week. H e reports on
lowered energy levels (fatigue) which occur most of the time. Pain
and physical difficulties affect him on a daily basis. As such he
reports on difficulties wit h standing for long and walking long
distances due to pain.
17.3. Cognitively, he has memory difficulties, with impact both within his
living and educational settings. H e has poor concentration and
distractibility.
17.4. Psychological, he has de creased appetite. H e experiences
fatigability. He has increased irrita bility with verbal outbursts. H e
has presence of moderate anxiety. H e is anxious when travelling
in a motor vehicle after the accident. He also presents with PTSD
symptoms.
17.5. Academically/Occupationally, he is currently in grade 12. He
indicated his post-accident scholastic performance as decreased
due to memory and concentration difficulties.
17.6. The Clinical Expert noted Mr. K[...] is experiencing moderate
levels of anxiety. Mr. K[...]’s anxiety symptoms are significant
enough to cause discomfort and may interfere with his daily
functioning and sense of safety, particularly in situations that
trigger his fear responses. The results of the Post Traumatic
Stress Disorder (PTSD) scale i ndicated moderate symptoms of
post-traumatic stress disorder.
17.7. He currently presents with physical, psychological, and cognitive
limitations that have emerged since the accident. This indicates a
noticeable decline in his overall functioning compared to his pre-
accident level. Based on the assessment findings, collateral
information, reviewed documentation, and expert reports, the
assessor concludes that a significant shift in Mr. K[...]'s functioning
post-accident suggests a negative impact on his physical an d
psychosocial well-being.
17.8. Results from the emotional assessment indicate mild mood
disturbance, moderate anxiety, and post -traumatic stress
symptoms. These symptoms reflect ongoing psychological
distress and suggest that Mr. K[...] continues to experience t he
emotional sequelae of the traumatic event, which may be
overwhelming and difficult for him to manage.
17.9. Neuropsychological assessment findings revealed a mixed
cognitive profile in Mr. K[...], characterized by intact, fluctuating,
and impaired cognitive fun ctions. His visual memory, perceptual -
motor skills, and constructional abilities were intact, indicating
preserved visuospatial and perceptual reasoning. However,
variability was observed in attention, concentration, and executive
functioning, while specific deficits emerged in verbal memory,
processing speed, and abstract and social reasoning.
17.10. The observed cognitive inefficiencies are likely to hinder his
optimal performance in daily and academic tasks. Empirical
studies support that even mild head injuri es sustained during
childhood or adolescence can lead to subtle but enduring
deficits, especially in memory processing, attention, and
processing speed (Bryant et al., 2004; Marasini et al., 2022).
17.11. Mr. K[...]’s emotional challenges, including symptoms of
depression and posttraumatic stress, likely exacerbate his
cognitive inefficiency. Clinically, mood disturbances such as these
can impair concentration, motivation, and academic persistence,
compounding the effects of his cognitive difficulties.
17.12. His neurocognitive profile demonstrates subtle inefficiencies in
domains critical for academic success, including attention,
concentration, verbal memory, processing speed, and verbal
learning. While these deficits are not global or severe, they signify
a notable decline from his pre -accident baseline. Additionally,
symptoms of depression, anxiety, and post -traumatic stress likely
compound his cognitive challenges, further hindering academic
performance and motivation. Without targeted educational
interventions and academic support, these difficulties may persist
and intensify with the increasing cognitive demands of senior
schooling
The medico-legal report of the Neurosurgeon:
Post-accident:
[18] The expert concluded as follows:
18.1. The Plaintiff sustained a head injury in the accident. The expert
suggested a mild head injury as evident by a Glasgow Coma
Scale 15/15 and no CT brain scan was performed. The head
injury was treated conservatively.
18.2. Since the accident, he has been complaining of headaches.
18.3. The Plaintiff complains of memory problems, short temper,
nightmares about the accident, anxiety.
18.4. The injuries sustained from the accident in question including
multiple head and forehead bruises, lacerated occipital. H e
reportedly sustained a head injury with an occipital laceration/
scalp wound and bruising to the right leg (thigh). He was
vomiting and drowsy. The treatment that he received includes
X-rays, CT scans, routine blood, wound debridement,
analgesia, and antibiotics.
18.5. He continued to receive outpatient care at Livingstone Hospital,
which involved suture removal and monitoring of his healing
progress.
18.6. The Neuro expert noted that claimant experienced head
trauma, also had occipital head scalp l aceration and
headaches, with loss of awareness. The claimant had brief loss
of consciousness and amnesia in keeping with a mild head
injury.
Symptoms according to the Neurosurgeon
18.7 Has recurrent nose bleeding epistaxis
18.8 Has occipital head scar
18.9 Has reduced educability
18.10 Combined whole person impairment is 18%
18.11 He complains of poor focus at school
18.12 Has declined school performance
18.13 Has post injury recurrent headaches
18.14 Has difficulty with focusing
18.15 Easily forgets, has poor recall
18.16 Has memory disturbances
The medico-legal report of the Occupational Therapist:
19.1 During the occupational therapy assessment , the Plaintiff struggled to
perform various activities that require repetitive bilateral lower limbs
movements as well as dynamic postures due to right ankle pain.
19.2 He had limitations in performing various body postures such as
crouching and repetitive squatting. He was concluded to have
limitations in lifting or carrying heavy objec ts. During the lifting
protocol, his lifting or carrying capacity was within sedentary to light
physical demands.
These physical assessment findings conclude compromised physical
and functional capacity to perform strenuous daily activities.
19.3 Neurocognitive and mood challenges were note d. The writer opined
that the presenc e of compromised neurocognitive , emotional and
psychological well-being may have a further negative impact on his
future work ability, interpersonal relations and day to day functioning.
19.4 His limitations will limit his productivity at work if he manages to
achieve future career aspirations. His injuries will make him a lesser
competitor in the open labour market compared to his peers.
19.5 Due to accident-related challenges, the Plaintiff ‘s career or job
options are likely to be curtailed as he will have difficulty in coping
with highly physical and cognitively demanding jobs.
19.6 His competitiveness in the open labour marke t is noted to be
compromised. H e will always be a disadvantaged employee from
promotions and career growth. This validates that the plaintiff will not
be a fair competitor in th e open labour market amongst his uninjured
peers. His injuries will make him a lesser competitor in th e open
labour market amongst his uninjured peers.
19.7. Considering the above , the Plaintiff does not retain enough physical
vocational capacity to compe te in the open labour market. H e will
have difficulty meeting the physical demands of his occupation role
due to accident acquired impairment.
The medico-legal report of the Industrial Psychologist:
Pre-accident performance: (Had the accident not occurred)
[20] The Plaintiff gross developmental milestones followed a normal
trajectory. He reportedly not presented with any cognitive difficulties as
there were no cognitive challenges reported. The Plaintiff had the pre -
accident ability to pass Matric with a Bachelor Endorsement and opined
he could have been able to obtain post -school qualification at NQF Level
7. He aspired to complete his studies and pursue a career as a teacher
(My emphasis)
[21] The industrial Expert noted and further postulated that based on the
educational opinion “ But If Not for the Accident ” B[...] would have most
likely passed Grade 12 in 2025 with an endorsement for a Bachelor’s
degree (NQF 7). Thereafter his completion of Matric he could have
registered a 4 -year bachelor’s degree qualification. He would have
obtained this qualification with a possible 1-year delay.
[22] Thereafter, contingent upon corporate labour market absorption rates and
the availability of opportunities in his line of quali fication, a provision 6-
months’ delay for job-searching may have been applicable; subsequent
to which he would have commenced with an internship or in -service
training in June 2029.
[23] Complete internship at least from July 2029 to the end of June or
December 2030 with NQF5 and maximum credits was set at R125 899
stipend per annum (2025 Quantum Yearbook, Robert J. Koch).
Then would have been eligible to enter the open labour market in semi -
skilled positions, earning a guaranteed total package on Paterson B5
(R380 000 - R431 000 - R516 000, lower to median quartile of the scale,
total package as from January 2031 (23 years of age).
In page 08 – 145
Progress in his career based on – compulsory inflationary increases,
annual performance evaluations, promotions, dedication to work, positive
work ethic, need for growth, benefit from on the job training and skills
continuous pro fessional development programs often offered by
employers, the acquisition of adequate work experience and managerial
skills and the availability of opportunities.
B[...] could have been motivated to improve his education and training in
order to adva nce in the organisational ladder and to differentiate his
output from the competition.
Competition for higher positions gets tough as one ascends the
organisational ladder, therefore those with bachelor’s degrees continue
studying through correspondence to enhance their competitiveness and
earnings potential and to avoid career stagnation.
He “would have qualified for job prospects within higher levels leading to
more specialized or professional and senior roles I. e. IT and
engineering, management, finance etc.” There is nothing reported in the
pre-accident scenario to doubt that he was going to have a fair chance to
compete and grow as required in his career of choice in an open labour
market.
In light of this, it is envisaged that after about a period of 10 -years from
(January 2031 to 2041 - 33 years) when he would have had time to
explore the different career paths in his line of work, B[...] could have
also opted to pursue an NQF 8 rated qualificati on (Honours / Advanced
Diploma). He would have chosen open distance learning to balance his
work, family and academic roles. He is likely to have commenced with
NQF8 rated qualification in January 2041 (aged 33) with potential to
complete the qualification within a period of 2-3 years (2043 - 35 years of
age).
Then he could have plateaued on a higher level in corporate.
He would have been positioned to compete for skilled and middle
managerial positions. He is likely to have enjoyed smooth increases with
potential to reach peak in Middle Managerial positions on Paterson D2,
earning a guaranteed total package per annum, between the median to
upper quartile of the scale at 45 years of age). The expert notes such
higher positions are not easily available and that he would have had to
higher positions are not easily available and that he would have had to
fight to earn or reach such positions in the open labour market. There is
however no reason to doubt that without limitations he had a fair chance
of competing for growth or advancement in his career.
Post-accident functioning: (Situation due to the accident)
[24] The expert noted and concluded as follows:
Post-accident
[25] POST ACCIDENT POSTULATION
25.1 There is persistent post -injury cognitive and somatic complaints,
including difficulties with concentration, memory disturbances, and
recurrent headaches.
25.2. These symptoms emerged following a head injury that resulted in an
occipital scalp laceration and transient loss of awareness variability was
observed in attention, concentration, and executive functioning, while
specific deficits emerged in verbal memory, processing speed, and
abstract and social reasoning.
25.3 These academic difficulties indicate that his neurocognitive deficits have
a direct and ongoing impact on his educability . B[...]’s neurocognitive
difficulties are likely to result in disturbances that will negatively affect his
ability to learn and perform academically like his pre-accident potential.
Educationally, this constellation of cognitive difficulties will likely limit his
ability to acquire, retain, and apply new knowledge effectively.
Additionally, recurrent nose bleeding (epistaxis) may also result in
academic setbacks as he may have to halt whatever he may be doing at
school so he can attend to his nosebleed.
25.4. Applicant submits that these difficulties ha ve already manifested
educationally and will continue in higher education resulting in the
postulated delays in obtaining a diploma. Post- accident
25.5. Based on the assessment results, his Verbal Comprehension and
Processing Speed fell within the Average range, while his Perceptual
Reasoning and Working Memory fell within the Low Average range.
There were significant discrepancies between verbal comprehension and
perceptual reasoning, between verbal comprehension and working
memory, between processing spe ed and perceptual reasoning, and
between processing speed and working memory abilities.
25.6. His Full IQ Scale is, however, estimated to be within the Low Average
range. The assessment results reveal cognitive decline. Performance on
the Bender Copy and Bender Recall tasks revealed some weaknesses,
with results falling within the Low and Low Average ranges, respectively.
25.7. These findings point to mild deficits in visual –motor integration,
perceptual organization, and visual memory skills essential for tasks
involving written output, copying from the board, and recalling visual
information.
Career path and loss of future earnings:
[26] As already evident, there is no past loss of earnings applicable, only
future loss of earnings. Pre-accident the plaintiff aspired to complete his
studies and pursue a career as a teacher. Post -accident his aspirations
remain the same.
Past loss of earnings:
[27] Considering that the Plaintiff was a student at the time of the accident, it
is surmised that he did not suffer past loss of income.
[28] In light of the totality of the evidence, I find that, on probabilities, with a
Degree (NQF Level 7) level of education, He would have entered the
open labour mar ket at a Paterson Level B5 , and progressed, reaching
his career ceiling earning at the uppe r quartiles of Paterson Level D2 , at
age around 45 years, and after ten (10) years he would have pursued
an NQF 8 (Honours) qualification, thereafter received inflationary
increases thereafter.
Future loss of earnings:
[29] It is probable that the severe sequelae of the injuries sustained has
affected the Plaintiff’s optimal scholastic and vo cational functioning and
thus, he will experience challenges comp eting on par with his healthier,
uninjured peers in the open labour market . Owing to the nat ure of the
injuries sustained, he has been rendered an unequal competitor and thus
will no longer be able to perform in h is pre-accident capacity. It is opined
that the difference between his pre-accident and post-accident vocational
potential be used to determine future loss of income.
[30] The Industrial Psychologist opines that he will work in the open labour
market until the normal retirement age of 65 years, depending on a
variety of factors, such as health status, personal circumstances,
personal preferences and conditions of employment, etc.
[31] From the totality of the evidence, I agree with the opinion of the Plaintiff’s
experts and the Plaintiff is to be considered as practically unemployable
in the open labour market. However, having said that, I do intend to
properly discount the vicissitudes of life, specifically in respect of the
Plaintiff personally, by means of a reasonable and fair contingency.
[32] With regard to the post-accident future earnings, after consideration of all
the relevant evidence, I am of the view that the Plaintiff will be a
jobseeker with NQF level 6 (Diploma) in the skills development sector
who could enter the open labour market as an skilled labourer earning at
the lowe r quartiles of Paterson Level A3 (Total package) and with a
potential to progress to skilled positions graded on C3/C4 (Total
package) a career ceiling earning at the median quartiles at P aterson
Level C3/C4 at around the age of 40 – 45 years, receiving inflationary
increases thereafter.
[33] Physically challenged and emotionally individuals have difficulties
sustaining jobs. Thus it is considered that having delayed securing and
completing an internship and first job post -internship and given the
prospect of entering the open labour market at a lower level than where
he could have entered with a degree, without a sustaining job to keep, it
will be very difficult for B[...] to progress beyond the semi-skilled category
( Paterson B3, median to upper quartile)
THE LAW
Contingencies:
[34] It is trite that it is for the court to determine the percentage of
contingencies to be applied in a matter such as this.
[35] Contingencies discount the vicissitudes of life, and it is a method used to
arrive at fair and reasonable compensation. The de termination of
contingencies was dealt with in Southern Insurance Association Ltd v
Bailey N.O. 1984 (1) SA 98 (A) at 113G and 116G – 117A:
“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.
…
Where the method of actuarial com putation is adopted, 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’ ( per HOLMES JA in Legal Assurance Co Ltd v Botes
1963 (1) SA 608 (A) at 614F). One of the elements in exercising that discretion is the
making of a discount for ‘contingencies’ or the ‘vicissitudes of life’. These include such
matters as the possibility that the plaintiff may in the result have less t han a ‘normal’
expectation of life; and that he may experience periods of unemployment by reason of
incapacity due to illness or accident, or to labour unrest or general economic conditions.
incapacity due to illness or accident, or to labour unrest or general economic conditions.
The amount of any discount may vary, depending upon the circumsta nces of the case.
See Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3)
SA 105 (A) at 114 - 5. The rate of the discount cannot of course be assessed on any
logical basis: the assessment must be largely arbitrary and must depend upon the trial
Judge's impression of the case.
…
It is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable. In dealing with the question of
contingencies, WINDEYER J said in the Australian case of Bresatz v
Przibilla (1962) 36 ALJR 212 (HCA) at 213:
‘It is a mistake to suppose that it necessarily involves a 'scaling down'. What it involves
depends, not on arithmetic, but on considering what the future may have held for the
particular individual concerned... (The) generalisation that there must be a 'scaling
down' for contingencies seems mistaken. All 'contingencies' are not adverse: All
'vicissitudes' are not harmful. A particular plaintiff might have had prospects or chances
of advancement and increasingly remunerative employment. Why count the possible
buffets and ignore the rewards of fortune? Each case depends upon its own facts. In
some it may seem that the chance of good fortune might have balanced or even
outweighed the risk of bad.’”
[36] In the judgment of Gillbanks v Sigournay 1959 (2) SA 11 (N) the
following was stated at 17 E – F in respect of contingencies in an
estimation of a Plaintiff`s claim for loss of earnings:
“In any estimate of a person's loss of earning capacity allowance must be made for all
contingencies including the accidents of life and certain deductions must be made from
the estimated gross income to allow for unemployment benefits, insurance and so on.
These contingencies would include -
(i) a possibility that plaintiff's working life may have been less than sixty-five years;
(ii) a possibility of his death before he reaches the age of sixty-five years;
(iii) the likelihood of his suffering an illness of long duration;
(iv) unemployment;
(v) inflation and deflation;
(vi) alterations in the cost-of-living allowances;
(vii) an accident whilst participating in sport such as hockey or cricket, or at any other
time which would affect his earning capacity; and
time which would affect his earning capacity; and
(viii) any other contingency that might affect his earning capacity.”
[37] In the judgment of Dlamini v Road Accident Fund (59188/13) [2015]
ZAGPPHC 646 (3 September 2015) at paras [ 29] – [31] the court dealt
with and applied some guidelines referred to by Koch in The Quantum
Year Book:
[29] In his book The Quantum Yearbook, Koch states that when assessing damages for
loss of earnings or support it is usual for a deduction to be made for general
contingencies for which no explicit allowance has been made in the actuarial
calculation. The deduction is in the prerogative of the court. General contingencies
cover a wide range of considerations which may vary from case to case and may
include taxation, early death, loss of employment, promotion prospect, divorce etc.
(My emphasis)
[30] Koch refers to the following as some of the guidelines as regards contingencies:
‘Normal contingencies’ as deductions of 5% for past loss and 15% for future loss.
‘Sliding scale’: 1/2 % per year to retirement age, i.e. 25% for a child, 20% for a youth and
10% in the middle age and relies on Goodall v President Insurance 1978 (1) SA 389.
‘Differential contingencies’ are commonly applied, that is to say one percentage applied
to earnings but for the accident, and a different percentage to earnings having regard to
the accident.
[31] When a court is called upon to exercise an arbitrary discretion that is largely based
on speculated facts it must do so with necessary circumspection. In the absence of
contrary evidence, the court can assume that a reasonable person in the position of t he
plaintiff would have succeeded to minimize the adverse hazards of life rather than to
accept them. Both favourable and adverse contingencies have to be taken into account
in determining an appropriate contingency deduction. Bearing in mind that
contingencies are not always adverse, the court should in exercising its discretion lean
in favour of the plaintiff as he would not have been placed in the position where his
income would have to be the subject of speculation if the accident had not occurred.”
[38] Contingencies
Nicholas J in Southern Insurance Association Limited v Bailey NO, held that:
‘Any enquiry into damages for loss of earning capacity is in its nature speculative,
‘Any enquiry into damages for loss of earning capacity is in its nature speculative,
because it involves a prediction as to the future, without the benefit o f 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 present value of the loss. It has open to it two
possibilities approaches.
One is for the Judge to make a round estimate of an amount which seem to him to be
fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the
unknown.
Or
Two is to try to make an assessment, by way of mathematical calculations, o n 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
nonpossumus attitude and make no award…’.
A court has wide discretion “when it assesses the quantum of damages due to loss of
earning capacity” and will award what it conside rs right. Even though the actuarial
calculations are useful in guiding the court, the court “is certainly not tied down by
exorable actuarial calculations” . The percentage of the contingency deduction depends
upon a number of factors and ranges between 5% and 50%, depending on the facts of
the case.
A 50% contingency deduction for a minor postulated at Paterson D level pre-accident is
highly unusual and would only be justified in exceptional circumstances. Paterson D
implies a skilled supervisory or junior management role , which typically warrants lower
deductions (e.g., 15%–25%). However, courts may still apply a 50% deduction if there
are compounding risk factors that severely undermine the reliability of that projection.
Circumstances That Could Justify a 50% Deduction include speculative or Weak Basis
for Paterson D Projection that the projection is based on aspirational assumptions
rather than concrete evidence (e.g., no academic record; no family history of similar
achievement); T he child is very young and the Paterson D level is not supported by
actuarial or educational assessments; socioeconomic disadvantage’ ; the child comes
from a severely disadvantaged background with limited access to quality education,
healthcare, or stable home life. A Courts may view the Paterson D projection as overly
optimistic in such contexts.
optimistic in such contexts.
Other considerations are Pre -existing Developmental or Health Concerns. If the child
had developmental delays, learning disabilities, or chronic health condition s before the
accident, these could have limited their ability to reach Paterson D. Lack of Academic
profile. If school reports or psychological assessments pre -accident show below-
average performance, poor attendance, or behavioural issues, the court may f ind the
projected trajectory unrealistic. Courts have applied a 50% contingency deduction for
minors postulated at Paterson D level in the above exceptional cases where the
projected career path was deemed highly speculative and unsupported.
[39] In Mdibi v Road Accident Fund [2023] ZAGPPHC 1158
Facts: The plaintiff, acting on behalf of a minor, claimed damages for
future loss of earnings after a motor vehicle accident. The child was
postulated to reach Paterson D level.
Key Issue: The court questioned the realism of the Paterson D
projection, given th e child’s young age, lack of academic record , and
socio-economic background.
Outcome: The court applied a 50% contingency deduction , citing the
speculative nature of the career projection and the absence of concrete
evidence to support the child’s ability to reach that level.
[40] In Kagiso Mosetlhe v Road Accident Fund (Case No: 2993/2015,
ZAGPPHC 254)
Facts: The plaintiff, a minor at the time of the accident, was projected to
reach a Paterson D level. However, the court scrutinized the educational
and familial context , noting limited academic performance and uncertain
future prospects.
Outcome: A 50% contingency deduction was applied to the pre-accident
earnings, based on the high level of uncertainty surrounding the child’s
ability to achieve the projected career level.
The general observation from case study is that Courts are cautious
about accepting hig h-level career projections for minors without strong
supporting evidence. A 50% deduction is typically justified when The
Paterson D projection is aspirational rather than evidence -based. If the
child’s background, education, or health casts doubt on future earning
potential.
[41] In Sayed N.O v Road Accident Fund (34250/2020) [2024] ZAGPPHC
881 (5 September 2024) where judgement was handed down by:
Retief J directing that the Court agrees that the pre -morbid calculation is
on the generous side having regard to all the facts, the Question was is it
reasonable to accept that the minor living on the farm with his family, in a
remote area of the Western Cape would have followed in the footsteps of
his father and brother after attaining a grade 12 and, if not, whether he
would have been committed enough to achieve a degree over a long
period whilst already being active in the open labour market. Having
regard to the minor’s socio demographics this is an important enquiry
considering the facts before the Court. This uncertainty can be dealt with
by making an adjustment.
The minor’s mother was unemployed but previously was employed as a
domestic worker. She attained a grade 7.
His father achieved a grade 10, worked on the farm at the time of the
accident and later became a long-distance truck driver.
The minor’s older brother followed in his father’s footsteps, although he
obtained a grade 12 he remained and worked on the farm.
The minor’s uncle has a grade 8 and is a truck driver.
Of some significance is that the IP too, postulated the minor’s pre-morbid
path without obtaining any pre-morbid information, collateral. There
was insufficient or no pre-morbid information.
The Defendant ‘s Counsel had argued that the Court should consider a
higher pre-morbid contingency by applying a 35% deduction.
To ensure an appropriate award the Court directed that Plaintiff’s actuary
to provide it with separate calculations for all three stages (discussed
infra) as postulated pre -morbidly. The first stage the most probable and
as such the normal contingency deduction of 20% remains undisturbed.
The Court deemed a 50% contingency deduct ion in respect of the
calculation in respect of stage 2 and 3 is to be applied. A 15% post -
morbid deduction was applied accepting that the minor will receive the
treatment he requires and be able to function in a semi -skilled working
environment in the Wes tern Cape. ( We wish to humbly place on record
our sincere error in previous court submissions of 35% pre -morbid in
relation to the above authority noting that this was merely a suggestion in
submissions by Defendant’s counsel)
For the benefit of the Court the factual background in the above authority
is that t he minor was 5 (five) years old when he fell off the back of a
trailer hauled by a tractor, suffering from third degree burns on his back
and sustained a mild concussive head injury . When the matter finally
went before Court the minor was 13 years and attending school and
progressing very well. He has never repeated a grade.
His psychological dysfunction is associated with chronic post -traumatic
stress disorder symptoms [PTSD] and attention deficit and hyperactivity
disorder [ADHD]. On reassessment in 2022 by Ingrid Jonker, the
neuropsychologist, she recorded the presence of significant
concentration problems and that the minor’s overall cognitive profile
remained more depressed than one would have expected. minor’s
cognitive abilities which range from his narrative memory, his visu al
mental tracking, his verbal abstract reasoning, and mental inflexibility are
impaired and are expected to in time, become more impactful resulting in
inconsistent scholastic outcomes.
Minor’s career pre -morbid postulation is that he possessed average
intelligence, as a result of which, it is postulated by the IP in the latest
report of 2024, that:
STAGE 1
The minor will pass all his schooling years on his first attempt,
completing his grade 12 at the end of 2029; Thereafter , it would take him
1 (one) to 2 (two) years to secure formal employment. Initially securing
work in the informal sector was 50% at the time, earning a national
minimum wage;
STAGE 2
After 3 (three) years he would have then obtained and secured formal
employment with the job complexity and remuneration commensurate for
a basic salary as provided by Paterson A2 median level. Whilst working
in the formal sector he could have passed his NQF 7 (degree) level
qualification within a period of 4 (four) to 5 (five) years after securing the
formal employment;
STAGE 3
Upon completion of his qualification (NQF 7) his earnings would have
increased to job complexity remuneration commensurate of an annual
package of Paterson B3 median level;
At age 45 (forty -five) he would have reached his career ceiling on
Paterson D2 medial level, thereafter, receiving an inflationary increase
until retirement age of 65 (sixty -five). In that case the pre -morbid
postulation above was considered by the IP as a conservative
approach, inter alia having regard to the minor’s perceived average
intelligence, that children appear to do better than their parents and
having regard to the unemployment possibilities in the future.
Consideration too, was given to the minor’s family socio -economic
demographic information, namely
[42] Mr Ngobeni submitted during argument that 35 % and 40% contingency
deduction for loss of earnings should be applied. In the heads of
argument, a different percentage of 20% and 35% contingency deduction
for loss of earnings was suggested that it should be applied as being
fair and just. As a result, we sat with two different contingency proposals.
[43] There appears to be an actuarial report., The Plaintiff’s actuarial report is
dated 28 October 2025, drafted by Mr Edwin Chauke of Tsebo Actuaries,
and which was handed in by the Plaintiff as an exhibit. This is the report
which the Plaintiff seek to rely upon for loss of earnings.
[44] Mr Ngoveni is rely ing on the actuarial calculations , where con tingency
deductions of 20% and 35% is made and the total loss of future earnings
amounts to R 9 203 856.
[45] Be that as it may, since I have not made same findings similar to those
postulated in the actuarial calculation’s scenario presented by the
actuary, same are not in order.
[46] With regard to the post -accident contingency , I take the following
relevant information into consideration in exercising my discretion:
46.1. He has been rendered a vulnerable employee/jobseeker in the
open labour market.
46.2. The Educational Psychologist concludes that he may struggle to
complete NQF Level 6 . he may need to be emp loyed by a
sympathetic employer.
46.3. The Clinical Psychologist concludes that the Plaintiff’s
neurocognitive deficits would affect his academic outcomes.
46.4. The Neurosurgeon agreed that severe long -term mental or severe
long-term behavioural disturbances or disorders are evident. The
expert also suggested that he has a 1 – 2% chance of
developing epilepsy in future.
46.5. The Industrial Psyc hologist also concludes that with psychological
limitations and potential health decline, his employability has
been compromised in the open labour market. The Educational
Psychologist opined that he may need to be employed by a
sympathetic employer. The Ind ustrial psychologist concludes
thus he has been rendered an unequal competitor and a
vulnerable jobseek er in the open labour market. H e may
experience difficulty securing and sustaining employment in h is
injured state.
46.6. Due to his neurological and cognitive deficiencies. He is not on par
with jobseekers who do not have these deficiencies. There is
also the possibility of periods of unemployment in-between.
[47] I am consequently of the view that a 35% contingency for future earnings
pre-morbid and 45% contingency post-accident will be fair and
reasonable in all the circumstances.
PRE-MORBID POST MORBID
PAST
NIL
PAST
NIL
FUTURE
15 642 170
LESS 35%
10 167 410
FUTURE
5 069 214
LESS 45%
2 788 067
Total loss R 7 379 343
Less cap R14 891
Net total loss R 7 364 452
Costs:
[48] In Bauer v Bauer & Another 5 it was re -affirmed that the principle in
awarding costs to a successful litigant is to strive to indemnify insofar as
possible that litigant for the expenses he has incurred to initiate or defend
litigation. These principles were also confirmed in Zeelie v General
Accident Insurance Co Ltd ,6. This purpose of an award for costs has
been acknowledged for a very long time, authoritatively ever since Texas
Co (SA) Ltd v Cape Town Municipality7.
5 (361104) [2008] ZAECHC 2008 (17 April 2008)
6 1993 (2) SA 776 (EJ at 779 D-F
7 1926 AD 467 at 488. (See Cilliers, Costs, par 1.03 at 1-4/5)
[49] In Society of Advocates of KwaZulu - Natal v Levin 8 the Court also
stated as follows in respect of Counsel fees:
“[19] A useful guide, which would find application in most cases where the
reasonableness or otherwise of counsel’s fee had to be determined on the taxation,
was formulated in C ity of Cape Town v Arun Property Development (Pty) Ltd and
Another:
‘(a) Consideration should have been given to the importance of the matter, its
financial value to the parties and the complexity of the issues raised and/or
required to be canvassed”.
[50] Pursuant to the recent amendment of Rule 69 and 70 (effective 12 April
2024) in terms of which Rule 67A was also introduced, it is incumbent
upon a Court to make a ruling on the applicability of the new scales
introduced for the employment of counsel. The scales lis ted in the
amended Rule are Scales A, B and C. These scales govern the
recoverability by the Plaintiff of counsels' costs on taxation.
[51] In Buhle Waste (Pty) Ltd v MEC for Health Gauteng & Others 9 Cajee
AJ held as follows regarding the abovementioned Rule amendment.
"28. While I am cognizant of the fact that the new taxable costs regime no longer
considers seniority of counsel, but rather complexity of the matter and value of the
claim or importance of the relief sought to be the deciding factors, in my view a court
should be wary not to grant or approve costs on a scale which counsel of a certain
seniority would not ordinarily charge his or her own attorney and client. This would
run counter to the intention of the new regime…"
[52] With regard to this present matter it is held by the court that the employ of
8 4564/13) [2015] ZAKZPHC 35; 2015 (6) SA 50 (KZP); [2015] 4 All SA 213 (KZP) (6 July 2015)
9 (Gauteng Division Johannesburg, Case Number 2023-102560)
a senior counsel was warranted and that counsels' fees on Scale C are
appropriate for inter alia, the following reasons:
52.1. Value of the claims:
The value of the claim should be evaluated in the eye of the Plaintiff
who was injured. It is apparent that the Plaintiff needs to rely on his
compensation to sustain himself especially in the later years of his
life. From his point of view the amount concerned is considerable.
52.2. Importance of the relief sought
The relief sought is for damages aimed at the compensation of the
unfortunate Plaintiff and his family who was involved in a motor
vehicle accident. The Plaintiff suffered severe bodily and
psychological injuries. The Plaintiff will suffer physical and
psychological for the rest of his life; who has a permanent loss of
his earning capacity; who has therefore lost the ability to properly
earn a living. The matter has obvious importance to the Plaintiff in
that his entire remaining working lifespan has been blighted.
As trenchantly observed by His Lordship Baqwa J in Adv AJ Du
Toit N.O. obo Cee-Jay Lee Johnson v The Road Accident Fund
10 the Plaintiff has only one shot at obtaining due compensation
from the Defendant and the Plaintiff’s whole life depends on
obtaining a proper award.
52.3. Complexity of the matter
10 20147/2021) Gauteng Division, Pretoria (23 April 2024)
This case involves the input by various experts of different
disciplines. It involves an Orthopaedic surgeon to assess the
functional sequelae; Psychologist in respect of neurological
sequelae; an Occupational psychologist regarding the impact on his
occupation;. an Industrial psychologist regarding employment
prospects; and the Actuary regarding the calculation of the loss of
earnings/earning capacity.
The reporting of all the experts is not in plain layman's language,
but in more complex and specific language and terms used in the
respective expert disciplines. A proper understanding of the
reporting requires special and specific knowledge by the legal
practitioners.
- the matter involves preparation in regard to several different expert
disciplines and expert witness reports; the drafting of heads of
argument on the issue of the loss of earning capacity; and the
research of the case law regarding awards of general damages.
52.4. It is therefore submitted that the value of the total claim is
substantial, that the relief sought is of great importance to the
Plaintiff; and that the matter involves issues of a high degree of
complexity.
52.5. The specific circumstances and the various factors attendant in this
matter, rendered it wise and reasonable for the Plaintiff to have
briefed a more senior counsel. 11 There can be no justification for
11 it was certainly a wise and reasonable precaution to employ the services of two counsel ( compare Newman v Prinsloo and Another
1974 (4) SA 408 (W) at 411A; Zweni v Minister of Law and Order (1) 1991 (4) SA 166 (W) at 170A). The disputes involved potentially
wide-ranging issue of both fact and law. It is not by any means a minor matter. The case was sufficiently difficult to justify the
engagement of two counsel. (compare DE NMMLOZE VENNOOTSCHAP ALINTEX v VON GERLACH 1958 (1) SA 13 (T) at 16-7).
any contention that it was not necessary, or that it was wrong to
employ a senior coun sel; or that it is unfair to Defendant that it
should be required to bear the costs incurred in the employment of
a senior counsel. The Defendant could have settled this claim a
long time ago had it complied with its statutory duties timeously.
“In an unr eported judgment of this Court, Road Accident Fund v Roman
Klisiewicz, case No 192/2001, handed down on 29 May 2002, Howie JA set out
the extent of the respondent's responsibilities, saying in para [42]: 'The [Road
Accident Fund] exists to administer, in the interests of road accident victims, the
funds it collects from the public. It has the duty to effect that administration with
integrity and efficiency. This entails the thorough investigation of claims and,
where litigation is responsibly contestable, t he adoption of reasonable and
timeous steps in advancing its defence. These are not exacting requirements.
They must be observed'." 12
52.6. It was the Defendant that obliged the Plaintiff to approach this
Honourable Court for relief.
52.7. It should be borne in mind that by awarding counsels' costs on
scales A or B the Honourable Court will effectively be penalizing the
Plaintiff. Counsel are entitled to mark and recover reasonable fees
for their work done (Algemene Balieraad van Suid-Afrika v Burger
en 'n Ander 13LPC Code of Conduct 15.1 and 23.1). That is not
affected by the particular scale under Rule 67 A. Rule 67 A merely
restricts the ability of the Plaintiff to recover more than the specified
amounts on scales A, B or C, respectively, from the unsuccessful
Defendant. The balance of counsels' fees unfortunately have to be
paid by the successful Plaintiff out of the capital awarded. This
impinges on the trite principle set out in paragraph 3 above.
12 (Madzunye and Another v Road Accident Fund 2007 (1) SA 165 (SCA) par [17) at 171).
13 1993 (4) SA 510 (T);
52.8. In the premises, it is respectfully submitted that Plaintiff is entitled to
an order that the fees consequent upon the employment of a senior
counsel are allowed; and for a direction that such fees are granted
on scale C.
52.9. Since the advent of the Covid pan demic and the consequential
change that it had on the normal Court and trial procedures, the
Court has placed more and more emphasis on comprehensive
heads of argument to be filed by the representatives of litigants to
assist the Court. Presiding judges re ly more and more upon the
written submissions of counsel to assist them rather than
entertaining hours of oral argument.
52.10. In this sense the normal practise for presenting argument in the High
Court has become more similar with the practice in the Constituti onal
Court. The court in Society of Advocates of KwaZulu - Natal v
Lev matter supra held as follows:
“ii) In President of the Republic of South Africa & Others v Gauteng Lions
Rugby Union & Another[41] Kriegler J drew a distinction between the practice in
the Constitutional Court and the SCA in respect of the heads of argument and
the associated appearance of counsel at the hearing. He pointed out that ‘in the
SCA the emphasis is on the oral presentation of argument by counsel in open
court with heads of argument serving largely as a preliminary guide to the
Court, while in the Constitutional Court, the emphasis is on wri tten submissions,
which are not regarded as succinct heads of argument forming the basis of the
argument to be presented, but the argument itself together with all the
supporting material.’
And further that ‘In an appropriate case, therefore, it may be r easonable to
make some special allowance for counsel’s fees for preparing written argument
for this court. This is expressly contemplated by sub rule (2) of the CC Rule 21.’
--
iii) There is no reason why a similar consideration should not apply to the
assessment of counsel’s fees in this matter.
iv) I have perused the relevant heads of argument and having considered the
submissions of Ms Annandale on the general and specific purpose and content
of heads of argument, I am of the view that the taxing mistress misdirected
herself in assessing the fee at R600 per page, as such an assessment even on
a per page basis, is disproportionate to the effort involved in drafting the heads
and fails to take into account the issues dealt with therein.
v) I have already com mented on the need for a uniform practice in accordance
with the generally accepted computation of fees on a time spent basis, which
will provide fair and reasonable remuneration for the service rendered.”
52.11 It has further become an acceptable practice that Counsel be
allowed to ask for the drafting of his Heads of Argument premised
upon the actual time (although must be reasonable) spent.
52.12 In the Society of Advocates of KwaZulu - Natal v Lev matter
supra the Court stated as follows:
[17] Counsel’s fees in the bill of costs under review were charged on a time spent
basis. I share the view expressed by Sholto-Douglas AJ in City of Cape Town
v Arun Property Development (Pty) Ltd and Another:
‘The modern trend- if I may call it that- of charging a fee based on time
actually expended is both acceptable and in the interest of
transparency’.”
52.13 In the premises it is held by the court that any order as to costs
should include Counsel’s time spent for drafting Heads of Argument
as well.
[53] There is no reason why the costs are not to follow the outcome.
Order:
[54] The following order is consequently made:
1. The application in terms of Rule 38(2) is granted.
2. The defendant is held liable hundred percent (100%) of plaintiff’s
agreed and /or proven damages.
3. The Defendant shall furnish the Plaintiff with an Undertaking, in
terms of Section 17(4)(a) of Act 56 of 1996, in respect of future
accommodation of the Plaintiff in a hospital or nursing home or
treatment of or the rendering of a service or supplying of goods of a
medical and non-medical nature to the Plaintiff (and after the costs
have been incurred and upon submission of proof thereof) arising
out of the injuries sustained in th e collision which occurred on 13th
December 2018.
4. The Plaintiff is awarded an amount of R 7 364 452 (Seven Million
Three Hundred Sixty Four Thousand Four Hundred Fifty Two
Rands) as compensation for future loss of earnings.
5. The issue of general damages is postponed sine die.
6. Counsel’s fees awarded in terms of scale C.
_________________
J. ZITHA AJ
Judge of the High Court
Gauteng Division, Pretoria
Appearances:
On behalf of the plaintiff: Adv. Elleck Ngoveni
Instructed by: M G Mali Attorneys
On behalf of the defendant: No appearance