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: 130475/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 21/04/2026
SIGNATURE:
In the matter between:
MATETOA TSEBO PLAINTIFF
(ID NO: 8[...])
And
THE ROAD ACCIDENT FUND DEFENDANT
NR-O: 0411202524509
JUDGMENT
CORAM: ZITHA, AJ
Heard on: 09th December 2025
Delivered: 21st April 2026
INTRODUCTION
[1] This is a delictual claim for damages as a result of a motor vehicle collision
which occurred on the 29 th of October 2022 . The matter appeared before
Court by a way of Default Judgment application on the 09 th of December
2025.
PARTIES
[2] The Plaintiff is Matetoa Tsebo an adult male, who was born on 24 July 1981
(“the Plaintiff”) and who is currently 44 (forty four) years of age. At the time of
the collision, the Plaintiff was 41(forty one) years old.
[3] 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.
ISSUES TO BE DETERMINED
[4] Liability/ merits of the matter
[5] Past medical expenses
[6] Future medical expenses
[7] Loss of earnings (Past and Future)
[8] General damages will have to be postpone d sine die, as the Defendant has
not made a determination about the seriousness of the injuries.
APPLICATION TO ADMIT EVIDENCE BY WAY OF AFFIDAVIT IN TERMS OF
RULE 38 (2) OF THE UNIFORM RULES
[9] 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 Plaintiff is awarde d 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 evidence be admitted by way of
affidavit.
This included:
9.1. The Plaintiff’s quantum evidence;
9.2. Any collateral witness evidence; and
9.3. In terms of the Judge President’s Practice Directive 1 of 2021 (paragraph
29), evidence may be tendered by affidavit and the Trial Judge ma y
exercise his/her discretion to accept such evidence.
9.4. 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
1 1995 (2) SA 319
relevant Rule of Court to decide whether or not to hear oral evidence on any of the
issues which may require to be decided in order to determine whether or not to
grant the relief claimed.”
9.5. In Mnisi v The Road Accident Fund and Seven Similar Matters 2, 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 c onditions
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 follo ws. A trial court has a
discretion to depart from the position that, in a trial, oral evidence is the norm.
When that discretion 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 requir es a
consideration of the following factors: the nature of the proceedings, the nature of
the evidence, whether the application 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 th e pre-trial proceedings or where the RAF
has not defended the action and/or failed to deliver and file a plea. Of course, where
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
contribute to the speedy and cost-effective delivery of justice in RAF matters.
9.6. The Plaintiff served all information and documentation on the Defendant.
9.7. This is a quintessential example of a matter that can be disposed of by
way of affidavit to save time and costs.
9.8. The Plaintiff requested that the expert affidavits and the affidavit s in
respect of the quantum evidence of the Plaintiff be admitted as evidence.
9.9. 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.
9.10. Application in terms of Rule 38(2) was granted.
[10] THE MERITS:
10.1. The issue of liability is resolved as follows:
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 basis 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 pleadings, documents
that were discovered, all reports by the exper ts 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, (especially whether th e findings
therein) tally with the rest of the information ...”
The plaintiff’s version was based on the section 19(f) affidavit and the
accident report. Accordingly, the Defendant is held liable for hundred
percent (100%) of the Plaintiff's proven or agreed damages. The Plaintiff
was at all material times a passenger. The Plaintiff’s version is contained
in the section 19 (f) affidavit. The names of the Plaintiff appear in the
accident report.
[11] QUANTUM:
11.1. The issues to be decided in this matter are what should be the fair,
reasonable and appropriate amount for special damages (loss of
earnings), the contingencies to be applied to the calculations and future
medical expenses.
11.2. In quantifying it’s claim , the Plaintiff obtained medico-legal reports from
the following experts in support of her claim:
11.2.1 Dr V M Close (Orthopaedic Surgeon);
11.2.2 Dr D Campbell (Nephrologist);
11.2.3 Ms M Petschel (Occupational Therapist);
11.2.4 Ms M Grove (Industrial Psychologist); and
11.2.5 Mr M J Minnaar (Actuary).
[12] The Defendant did not appoint any medico-legal reports.
[13] The expert opinions.
a) Dr CLOSE (Orthopaedic Surgeon)
13.1. THE INJURIES SUSTAINED BY THE PLAINTIFF:
According to the expert, the Plaintiff sustained a Left femur fracture with
mild angulation and non-union and shortening.
The Plaintiff had an injury to the cervical and thoracic regions.
He had a post-accident renal failure.
13.2. COMMENTS ON HOSPITAL RECORDS:
13.2.1. His d ate of admission was documented as 29 October
2021 at 06h08.
13.2.2. On 1 November 2022 the possibility of a head injury was
mentioned with headaches, dizziness, and vomiting.
13.2.3 On 29 October 2022, i.e., on admission, the haemoglobin was
14.3 and the haematocrit was just within normal range at
0,41.
13.2.4. The hemoglobin and hematocrit subsequently dropped to 10
and 0.3 respectively by 31 October 2022, and this indicate
acute blood loss rather than any anaemia due to chronic renal
disease.
13.2.5. A left femur fracture was identified, and he was tender over the
cervical thoracic region, as well as injured over the left flank
and left leg.
13.3. TREATMENT RECEIVED – HIGHLIGHTS:
13.3.1. The surgeon records a femoral corticotomy, as well as a
capsulotomy, in order to introduce an intramedullary nail to
the femur.
13.3.2. Surgery to the left femur was performed on 30 October 2022.
Post operation he was referred to physiotherapy but was noted
to be dizzy and sweating.
13.3.3. According to the operative notes he had to repeat surgery on
03rd of November 2022, stated to be a left femur middle fracture
fragment, open reduction, and cerclage x 3, 'de compression'
and open reduction.
13.3.4. A psychological consult ation was requested due to the loss of
his sister-in-law in the accident.
13.3.5. He attended approximately three physiotherapy sessions during
which he commenced walking with crutches. The O rthopaedic
Surgeon later advised that therapy be discontinued due to
complications with one screw.
13.3.6. At the beginning of 2023 Dr Hadebe identified the need for a
second surgical procedure and he underwent surgery in
February 2023; according to the pa tient one of the screws was
removed and replaced with a longer screw.
13.3.7. Post surgery he attended physiotherapy and mobilised with
bilateral elbow crutches until July 2023.
13.4. RENAL FAILURE:
13.4.1. The patient reported no pre-accident diseases, illnesses, use of
medication or orthopaedic complaints.
13.4.2. In approximately July 2023 i.e.09 months post-accident he was
diagnosed with renal failure and now receives dialysis three
times weekly. His treating Physician, 'Dr Do Vale' indicated that
renal failure could be associated with the trauma of the
accident.
13.5. PRESENT COMPLAINTS:
13.5.1. He reports experiencing lower back pain which was worse prior
to him being put on dialysis treatment.
13.5.2. The headaches that he experienced over both temples also
improved since he started receiving dialysis.
13.5.3. Currently he only experiences low back pain intermittently and
headaches occur approximately twice weekly.
13.5.4. He experiences pain over his left thigh. The pain is usually
worse when he sits or lies in one position for extended periods
of time. W alking helps pain to dissipate. However, walking
extensively, elicits pain. He needs to rest if he walks for longer
than 1 km.
13.5.5. He also reports experiencing 'a click' in his left hip and this is
associated with pain. The click usually occurs when he transfers
from sitting to standing.
13.6. OPINION AND DIAGNOSIS:
13.6.1. He walks without an assistive device but with an obvious limp.
13.6.2. He has a catheter inserted into the right side of the chest for his
dialysis treatment.
13.6.3. With the patient undressed and standing, there is shortening of
the left leg in comparison to the right and he prefers the right
leg for weight bearing.
13.6.4. With the patient supine, there is residual left thigh muscle
wasting and, shortening of the left leg ari sing from above the
level of the knee.
13.6.5. From proximal on the left thigh, there is a 5 cm scar for the
insertion of the femoral nail. Then there is a 4 cm scar, and
then a 24 cm scar in keeping with an open reduction. Distally,
there is a 2 cm scar a nd a 1 cm scar for the insertion of distal
locking screws.
13.6.6. In the lower legs there are two scars identified - on the proximal
right shin there is a 2 cm x 1 cm atrophic scar, and on the
lateral aspect of the left lower leg, a healed abrasion of
approximately 2 cm in length.
13.6.7. The patellofemoral grind test is positive.
13.6.8. X-rays of 3 October 2023 were reported on by Dr Mafole
stated that i n the lumbar spine there is a loss of the normal
lumbar lordosis, possibly due to muscle spasm.
13.6.9. In the left femur there is an intramedullary nail and interlocking
screws in the femur shaft with evidence of a previous
comminute mid femur shaft fracture with non -union. Fracture
lines still visible.
13.6.10.There is an atrophic non -union of both fracture sites - i.e.,
proximally and distally, with no attempt at callus formation
detected.
13.7. WORK CAPACITY:
In his current condition Mr Matetoa cannot be expected to return to
employment. The femur fracture is ununited and he requires dialysis
three times per week. The requirement for dialysis is permanent unless
Mr Matetoa is fortunate enough to receive a kidney transplant, but this
is entirely for the renal physician to discuss.
Currently the expert considers him unemployable.
b) Dr CAMPBELL (Nephrologist):
13.8. PRE-MORBID CONSIDERATION:
13.8.1.Prior to the accident, the patient reported no medical issues. He
had not seen doctors except for minor ailments. No hypertension
had ever been noted.
13.8.2.He has been diagnosed with end -stage kidney failure and is on
dialysis 3 (three) times per week. There is no evidence of
excessive anti -inflammatory drugs. His blood tests for kidney
function were normal on initial presentation and when he
returned for a s econd surgery on the left leg. His kidney failure
was diagnosed 06 (six) months later.
13.9. DISCUSSION:
The possibility of an undiagnosed vascular injury causing chronic
ischemia and subsequent kidney failure has not been completely
excluded.
By making use of the sine qua non principle, the only explanation for
the renal failure is the injuries sustained in the accident with the
associated blood loss and subsequent drop in the hemoglobin and
hematocrit levels as described by Dr Close.
c) Megan Petschel (Occupational Therapist):
13.10. PRE- AND POST ACCIDENT VOCATIONAL CAPACITY:
Pre-accident:
13.10.1. At the time of the accident, Mr. Matetoa worked as a key
accounts manager. He reported no limitations in his ability to
perform his work duties with efficiency prior to the accident.
13.10.2. This work can be classified as sedentary physical work with
constant (more than 66% of the day) dynamic postural
tolerances, occasional (up to 33% of the day) mobility, upper
limb involvement/dexterity and occasional (up to 33% of the
day) sedentary load handling demands.
13.10.3 He had the potential to work until reti rement age of sixty five
(65) years to perform his own or similar employment
Post-accident:
13.10.4. As a result of his injuries sustai ned in the accident, the
plaintiff was unable to return to work for nine months. He was
on sick leave for the entire nine months and was reportedly
remunerated during this period of time.
13.10.4. He was retrenched a month after his return to work.
13.11. RESIDUAL VOCATIONAL CAPACITY:
13.11.1. He is unable to sustain frequent mobility or dynamic postural
tolerances.
13.11.2. It is noted that he is able to meet the requirements of his pre -
accident job as a key accounts manager or similar
employment. However, this is now done in the presence of pain
relating to the accident in question and he will benefit from
adjusted measures and assistive devices to reduc e pain
experienced and improve his productivity and job satisfaction.
This will therefore be found to influence his rate of
work/productivity. Significant pain will affect his ability to
continue comfortably for the duration of a full workday and will
therefore not be sustainable in occupations which requ ires
sympathetic accommodation.
13.11.3. The plaintiff currently undergoes dialysis three times a week
due to renal failure. This would have a significant impact on his
ability to work in the open labour market.
13.11.4. His scores on the Contextual Memory Test indicated that there
may be difficulties with contextual memory retrieval and could
suggest underlying cognitive impairment.
13.11.5. While his work is sedentary in nature, his greatest pain stems
from remaining in one position for extended periods of time
such as sitting. Cognitively, he may be vulnerable to error
making due to poor immediate and long-term memory.
13.11.6. The Plaintiff will have difficulty even meeting the demands of
sedentary physical work with his current need for dialysis three
times a week. The effects of dialysis which include
hypotension, headaches, muscle cramps, nausea and vomiting
as well as fatigue and weaknes s would hinder his ability to
engage in any type of work in the open labour market.
13.11.7. As noted by Dr. VM Close, with his current condition relating
both to his femur fracture and dialysis three times a week, he
is considered unemployable.
13.12. TREATMENT ENVISAGED IN THE FUTURE:
13.12.1. The Neurosurgeon recommends an allowance of analgesia, which
costs R 10 000.00 (ten thousand rand) . An allowance of R350
000.00 (three hundred and fifty thousand rand) should be made
available for the investigation and treatment of late post -traumatic
seizures.
13.12.2. The Plaintiff will require future treatment for the management of pain.
13.12.3. The Plaintiff is incapable of independent living; provision will need
to be made for home -based care should family members no longer
be able to cater for him.
13.12.4. The Plaintiff will require psychiatry assessment and treatment for
the depressive, post -traumatic stress disorder related and
psychotic symptoms.
As a result, the Plaintiff is awarded future medical expenses in terms
of Section 17 of the Road Accident Fund Act. In the matter of
Knoetze obo Malinga and Another v Road Accident Fund
(77573/2018; 54997/2020 [2022 ZAGPPHC 819; [2023] 1 All SA
708 (GP), the CEO of the Defendant offered a blank undertaking for
all proven future medical hospital and related expenses in all cases
before the Court where such are proven and therefore it is held that
the Plaintiff is entitled to such an undertaking.
Future treatment and assistive devices have been indicated. This
should be covered from an undertaking to be awarded to the
Plaintiff.
d) M GROVE (Industrial Psychologist):
13.13. PRE-ACCIDENT EMPLOYMENT:
13.13.1. He was employed as an account manager/technical sales
specialist for a chemical manufacturing company at the time of
the accident. He stated that his job required extensive travel to
maintain relationships and secure new business. His travel
destinations included Kenya, Nigeria, Ghana, Zimbabwe,
Botswana, East Africa, and Mozambique. He worked five days a
week, from 08:00 to 17:00.
13.14. POST-ACCIDENT EMPLOYMENT:
13.14.1.Upon returning to work, he noted difficulties with back pain and
headaches. As an accommodation, he was removed from
traveling and allowed to work from home.
13.14.2.A month or two after his return, he received a notice of
retrenchment, effective 30 June 2023. He believes his absence
from work contributed to his retrenchment. He feels that if he
had been present when critical decisions were being made, he
would have remained employed.
13.14.3.He has been unemployed since his retrenchment in June 2023.
13.15. PRE-MORBID EARNING POTENTIAL:
13.15.1.His vocational history indicates that he has experience working
as a projects coordinator, technical sales specialist and
accounts manager, with the latter being the job he occupied for
the last 10 (ten) years and at the time of the accident.
13.15.2. He would have been suited for positions falling within the
semi-skilled to skilled spectrum of employment in the broader
job market.
13.15.3. The Plaintiff’s actual earnings at the time of the accident, as
per the available salary advice, should be taken as the basis
for future earning potential calculations. Related inflationary
increases until retirement is recommended.
13.15.4. His recommended career progression and earnings
postulation is stated in the industrial psychologist report.
Retirement at 65 is recommended.
13.16. POST-MORBID EARNING POTENTIAL:
13.16.1. It is evident from the expert opinions to hand that the Plaintiff
remains with orthopaedic, physical and functional sequelae,
following the injuries he sustained in the accident under
review.
13.16.2. The ununited femur fracture impairs his ability to perform even
sedentary work without significant interruptions and pain and
the same would affect his ability to maintain performing work
task of his former position for the duration of a full workday.
13.17. Scenario 1 - Likely future earnings (kidney failure not attributable
to the accident):
13.17.1. It is advisable to use the salary figures provided in the 'overall'
group for the purpose of quantification by the industrial
psychologist. The 'overall' group figures provide a general
benchmark that can be applied across different sectors, allowing
for a more realistic estimation of potential earnings.
13.17.2.The postulated post -morbid career progress and earnings, are
summarised in the actuar ial report with contingency
considerations, to account for his elevated post -accident
employment vulnerability.
13.17.3.The claimant also presents with post -accident employment
vulnerability, which are factors that have the potential to
influence his anticipated post-accident career trajectory. A higher
post-morbid contingency deduction should therefore be applied.
13.18. Scenario 2 - Likely future earnings (kidney failure attributable to
the accident:
13.18.1. The Plaintiff, with the kidney failure attributable to the accident,
is considered unemployable due to his need for permanent
dialysis. Even if he were fortunate enough to receive a kidney
transplant, his residual work capacity would likely remain
significantly restricted, rendering him unemployable for all
practical purposes.
e) Mr IJ Minnaar (Actuary):
13.19. INCOME IF THE ACCIDENT HAD NOT OCCURRED:
13.19.1. At the time of the accident the Plaintiff was employed and at 1
July 2023 he would have earned an income of R 1,443,794 (one
million four hundred and forty three thousand seven hundred
and ninety four rand) per annum (Basic R 68,864.42 (sixty eight
thousand eight hundred and sixty four rand and forty two cents)
plus cash allowances of R 13,200 (thirteen thousand two
hundred rand) per month plus benefits of R 25,144.69 (twenty
five thousand one hundred and forty four rand and sixty nine
cents) per month as well as a bonus of R 157,284.26 (one
hundred and fifty seven thousand two hundred and eight four
rand and twenty six cents) per annum [per payslip for April 2023]
and it is assumed that his income would have increased at the
average rate of inflation as measured by CPI to R 1,561,811
(one million five hundred and sixty one thousand eight hundred
and eleven rand) per annum at the present time, then remaining
constant apart from inflationary increases to his retirement at
age 65 (sixty five).
13.19.2. It is likely that the Plaintiff's income would have increased in the
future to allow for inflation and it is assumed that his in come
would have further increased at the rate of 5% per annum from
the present time to his retirement.
13.20. INCOME NOW THAT THE ACCIDENT HAS OCCURRED:
13.20.1. The Plaintiff has been unemployed since 1 July 2023.
13.20.2. The industrial psychologist postulates two scenarios, namely:
13.21. Scenario 1:
13.21.1. Having a residual earnings capacity of R 266,215 (effective at 1
January 2024 and adjusted for inflation as measured by CPI to
R 279,088 per annum at the present time) from mid – 2025
(present time) and it is assumed that his income will remain
constant apart from inflationary increases to his retirement at
age 65.
13.21.2. As a result of his injuries he will be more prone to extended
periods of unemployment/ unemployability and this aspect will
be dealt with below (higher post -morbid contingency deduction
to be applied).
13.22. Scenario 2:
Remaining unemployed/ unemployable.
13.23. CONTINGENCIES:
13.23.1. In assessing the value of the income allowance may be made
for the various contingencies of life that occur such as sickness
and unemployment. For the reason stated above, the industrial
psychologist recommends a higher than normal post -accident
contingency adjustment.
13.23.2. For illustrative purposes he deducted 5% from the accrued value
had the accident not occurred, 12% from the prospective value
had the accident not occurred and 42% from the prospective
value now that the accident has occurred.
13.23.3. It is the Court’s view that under the circumstances of this
particular case, a 30% spread between pre - and post -morbid
contingencies on future earnings is reasonable.
14. THE CALCULATION:
(a) Limitation of Compensation (CAP):
14.1. The expert confirms that the CAP is applicable on these
calculations. Thus the loss of income does exceed the Statutory
Limit during every year and the appropriate adjustment is set out
in Table A of his report. For convenience the Plaintiff’s counsel
attached a copy of Table A to the next page below.
(b) SUMMARY OF LOSS:
14.2. Loss of income Maximum Compensation
Scenario 1: R 13,484,519 R 7,523,461
Scenario 2: R 15,591,261 R 7,523,461
As can be seen from the above, it does not make a difference whether
the loss is calculated on scenario 1 or 2 as the limited amount will
remain the same.
[15] LAW
15.1. LOSS OF EARNINGS
It is accepted that earning capacity may constitute an asset in a person's
patrimonial estate. If loss of earnings is proven the loss may be
compensated if it is quantifiable as a diminution in the value of the estate. It
must be noted, a physical disabili ty which impacts on the capacity to an
income does not, on its own, reduce the patrimony of an injured person. It
is incumbent on the Plaintiff to prove that the reduction of the income
earning capacity will result in actual loss of income.
15.2. In quantifying such a claim an Actuary is often used to make actuarial
calculations based on proven facts and realistic assumptions regarding the
future. The role of the Actuary is to guide the court in the calculations to be
made. Relying on its wide judicial discretion the court will have the final say
regarding the correctness of the assumptions on which these calculations
are based. The court should give detailed reasons if any assumptions or
parts of the calculations made by the actuary are rejected. I t must be borne
in mind that the actuary depends on the report of the Industrial
Psychologists, who in turn are dependent on the information provided by
the claimant.
15.3. The learned author Dr R.J. Koch in The Quantum of Damages Year
Book states at pa ge 118 that the usual contingencies which the Road
Accident Fund accepts is 5 % on the past income and 15 % on the future
income. The aforesaid is only a guideline, but it indicates the general
approach adopted by the defendant in similar matters. The lear ned author
continues on page 118 to suggest (based upon the authorities of Goodall v
President Insurance and Southern Insurance Association v Bailey
N.O. that as a general rule of thumb, a sliding scale can be applied, i.e.
“1/2% per year to retirement ag e, i.e. 25% for a child, 20% for a youth and
10% in middle age:”
15.4. The Court, in the case of Road Accident Fund v Guedes at paragraph
[9] referred with approval to The Quantum Yearbook, by the learned author
Dr R.J. Koch, under the heading 'General Contingencies ', where it 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 the prerogative of the Court...”.
15.5. The percentage of the contingency deduction depends upon a
number of factors and ranges between 5% and 50%, depending
upon the facts of the case
15.6. The importance of applying actuarial calculations and its
advantages was discussed in the case of Southern Insurance
Association v Bailey NO , the court referred with approval to the
case of Hersman v Shapiro and Company at 379 per Stratford J
where the following was said:
‘Monetary damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence before it. There are
cases where the assessment by the Court is little more than an estimat e; but
even so, if it is certain that pecuniary damage has been suffered, the Court is
bound to award damages.'
“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.
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 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 non possumus attitude and
make no award.”
15.7. Ultimately, the award for future loss of earnings or earning capacity must
be based on good medical evidence and corroborating facts. There must
be some reasonable basis for arriving at a particular figure. In the event of
a mathematical approach, one has to first work out what the third party’s
earnings would have been but -for the accident (that is, if the accident had
not occurred), and secondly, one has to calculate what the Plaintiff’s
earnings are now that the collision has occurred (having regard to t he
accident) and the difference between these two amounts will then
represent the loss.
[16] APPLICATION OF LAW TO FACTS
16.1. The Plaintiff’s future loss of earnings or capacity to earn has been
actuarially calculated and the basis of such calculations, which is
discussed below are consistent with the facts and probabilities in the
matter.
16.2. The Plaintiff’s case remains undisputed and remains unchallenged. The
Defendant has not appointed a single expert to challeng e and or
contradict the Plaintiff’s expert witnesses. There is also no evidence
before me that prior to the collision the Plaintiff had any renal and
orthopaedic problems.
16.3. In so far as the injuries are concerned, it has not been disputed that the
Plaintiff sustained a left femur fracture and renal failure and or injury
which was consequent to the motor collision. It remains u ndisputed that
the Plaintiff’s kidney problems arising fro m the accident has severely
affected his well-being.
16.4. The occupational therapist opines that the Plaintiff’s employment has
been adversely affected and as result curtailed . His injuries make
himhe is an unfair competitor in the open labour market.
16.5 The occupational therapist opines that the Plaintiff’s productivity and
career prospects may be limited due to his physical and psychologic al
impairments.
16.6 The occupational therapist opines that the orthopaedic and renal failure
deficits would have a n egative impact on his work abilities and fu ture
employment. His competitiveness in the open labour market has been
compromised, especially for roles exceeding medium physical
demands. He is unemployable in the open labour market. His career
options are significantly reduced as a result of the injuries sustained.
16.7 The industrial psychologist’s uncontested postulations regarding the
pre and post morbid future loss of earnings prior to and but for the
accident is the only evidence that is before me which I must accept.
16.8 I accept that the Plaintiff would require an understanding employer who
will be willing to accommodate his cognitive limitation should he secure
work in future. His working environment would also need to be less
cognitively demanding as he would struggle to perform with the
pressures of work, as an accounts manager/technical sales specialist. I
have also considered that he is no longer performing at his pre-
accident potential as a result of the accident.
The Plaintiff is therefore likely to suffer a future loss of earnings to be
calculated as the difference between his pre-accident earning potential
and he post-accident earning potential.
16.9 I am mindful that the Plaintiff will be an unequal competitor at the open
labour market compared with his healthier peers and that he will not be
able to perform functions efficiently an d effectively as compared to his
counterparts. The injuries sustained from the accident will hinder h is
career and future employability. The Plaintiff has suffered a medically
justifiable loss of earnings or work capacity as a direct result of the
accident.
16.10 I find that the Plaintiff’s expert witnesses remain the only evidence
before me. The submissions ma de by industrial psychologist are clear,
reasonable and persuasive. I therefore find that the evidence before me
is credible and I accept it as reliable and plausible.
[17] According to the actuarial calculations by Minnaar.
17.1 Pre-Morbid (retirement age 65)
According to the report of the industrial psychologist , dated 11 th
November 2025, Plaintiff earned an income of R1 443 794 per annum,
as an accounts manager/technical sales. He worked for five days per
week. He would probably have continued working as such with straight
line increases and earnings inflation to 65 years. It is postulated that he
would have earned R 1 561 811 per annum at the pre sent time . It is
postulated that he would have reached a career ceiling at 45 years, he
would probably earned in the upper quartile for skilled workers and for
2025, this is expressed as R 1 561 811 per annum.
17.2 Post-Morbid (retirement age 65)
According to the report of the Industrial Psychologist , it is postulated
that the Plaintiff will remain une mployed for the remainder of his
working life and a total loss of earnings has occurred.
A total loss of earnings had occurred from the date of the termination of
his/retrenchment on 30TH JUNE 2023. At that stage he was forty two
(42). He had a future working life span of twenty three (23) , that was
interrupted and affected by the injuries sustained in the accident.
[18] Plaintiff’s counsel submitted that contingencies are to be applied as the
actuarial calculations since the Road Accident Fund Amendment Act 19 of
2005 cap does have an impact on this case. In this regard counsel argues the
contingency deductions for past loss earnings of 5% on uninjured earnings and
5% on injured future earnings should be applied. I agree with the contingencies
applied in the past loss of earnings.
I hold a same view with respect to the contingencies as applied by the actuary
and submitted by the Plaintiff’s counsel:
A 5% deductions on past pre-morbid income is acceptable.
A 5% deductions on past post-morbid income is acceptable.
A 12% deductions for future pre-morbid income is acceptable.
A 42% deductions for future post-morbid is acceptable.
A future contingency deductions of 30% spread is acceptable.
THE ILLUSTRATIVE ACTUARIAL CALCULATIONS:
[19] The loss of earnings after the above -stated contingency deductions amount to
R 7 523 461 ( Seven Million Five hundred and Twenty Three thousand Four
hundred and Sixty One Rand). The calculations were on the basis that the
Plaintiff is not expected to reach the suggested pre -accident career potential
and that he might suffer losses that are directly quantifiable and should be
address via contingencies. The retirement age is at 65 years.
TABLE A Soenario 1 Sc,enario 2
R R
Accrued Value from 1 July 2-023
Had the ace ident rtot oce urred 2007570 .2007570
Less : Co:ntirtg;eneies ( 5%) 100379 ( 5%) 100379
[A] 1907191 1907191
Now that t!he ace ident has oce urred 0 0
Less : Co:nt!ing;eneies ( 00/a} 0 ( 00/a) 0
[13] 0 0
Acomed Loss l[AHB] 1907191 1907191
Prospective Value
Had t!he ace ident rtot oce urred 15550080 15550080
Less : Cont!ing;encies ( 12%) 1866010 ( 12%) 1866010
~q 13684070 13684070
Now that th:e ace idem has oce urred 363.2314 0
Less : Co:ntting;encies ( 4.2%) 15.25572 ( 00/a) 0
[D] .210674.2 0
Prospective Loss l[CHD] 11577328 13684070
Total Loss ,(A }1[B])+1ICHDD 1348451:9 15591261
Less : Sttatutory adjustment 4053867 61160609
Maximum Compensation 7523461 7523461
[20] It is trite that in considering what damages to award in damages claims, the
court exercises discretion. In doing so, the court has to ensure that the award
for damages made is fair and reasonable. This is usually achieved through
judicial precedent. The a ctuaries recommend the so called normal
contingencies apply as discussed above.
[21] When considering the contingency deductions to be applied on actuarial
calculations of loss of earnings, allowance for contingencies involves, by its
very nature, a proce ss of subjective impressions or estimations rather than
objective calculations. The so-called normal contingencies referred to takes into
account that a Plaintiff might ordinarily sustain some loss in his future income
by virtue of: falling sick from time to time; the prospect of unemployment and an
inability to secure alternate employment immediately; the prospect of being
injured in circumstances where th e Plaintiff would receive no compensation
from any source; the saved costs of unemployment.
I ap plied my mind to the Plaintiff’s circumstan ces. I have considered the
Plaintiff’s background and family history.
[22] ACTUARIAL CALCULATIONS IN RESPECT OF LOS S OF
EARNINGS:
22.1 The calculations are submitted to be fair and reasonable in the
circumstances, and the Court is satisfied to grant the total nett
loss of income in the amount of Seven Million Five Hundred
and Thirty Two Thousand Four Hundred and Sixty One
Rands (R 7 532 461 ) as set out in the 30 % contingency
spread scenario above.
For this reason, I am satisfied that the Plaintiff suffered a loss of
earnings in the amount of R 7,523,461.
Having regard to the aforementioned cas es, it is the Court’s view that special
damages in the amount of Seven Million Five Hundred and Thirty Two Thousand
Four Hundred and Sixty One Rand (R7 532 461) is fair and reasonable under the
circumstances.
COSTS:
[23] 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.
[24] In Society of Advocates of KwaZulu - Natal v Levin 8 the Court also stated
as follows in respect of Counsel fees:
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)
8 4564/13) [2015] ZAKZPHC 35; 2015 (6) SA 50 (KZP); [2015] 4 All SA 213 (KZP) (6 July 2015)
“ [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 City 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 an d/or
required to be canvassed”.
[25] 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 listed in the amended Rule are Scales A,
B and C. These scales govern the recoverability by the Plaintiff of counsels'
costs on taxation.
[26] 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…"
[27] With regard to this present matter it is held by the court that employment of a
senior counsel was warranted and that counsels' fees on Scale C are
appropriate for inter alia, the following reasons:
9 (Gauteng Division Johannesburg, Case Number 2023-102560)
27.1. 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.
27.2. 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.
27.3. Complexity of the matter
- 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 occu pation;. an Industrial
10 20147/2021) Gauteng Division, Pretoria (23 April 2024)
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 lan guage 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 exp ert 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.
27.4. 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.
27.5. The specific circumstances and the various factors attendant in this
matter, rendered it wise and reasonable for the Plaintiff to ha ve briefed
a more senior counsel. 11 There can be no justification for any
contention that it was not necessary, or that it was wrong to employ a
senior counsel; 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 unreported 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]
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).
exists to administer, in the interests of road accident victims, the funds it collects
from the public. It has the duty to eff ect that administration with integrity and
efficiency. This entails the thorough investigation of claims and, where litigation is
responsibly contestable, the adoption of reasonable and timeous steps in advancing
its defence. These are not exacting requirements. They must be observed'." 12
27.6. It was the Defendant that obliged the Plaintiff to approach this
Honourable Court for relief.
27.7. 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.
27.8. In the premises, it is held by the court 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.
27.9. Since the advent of the Covid pandemic and the consequential change
that it ha d 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.
12 (Madzunye and Another v Road Accident Fund 2007 (1) SA 165 (SCA) par [17) at 171).
13 1993 (4) SA 510 (T);
Presiding judges rel y more and more upon the written submissions of
counsel to assist them rather than entertaining hours of oral argument.
27.10. In this sense the normal practise for presenting argument in the High
Court has become more similar with the practice in the Constitutional
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 p reliminary guide to the Court, while in the
Constitutional Court, the emphasis is on written 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 reasonable 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 speci fic 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 he ads and fails to take
into account the issues dealt with therein.
--
v) I have already commented 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.”
27.11 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.
27.12 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 C ity 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’.”
27.13 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.
[28] CONCLUSION:
In the premises I make the following order:
1. The Defend ant is liable hundred percent ( 100%) in respect of the Plaintiff’s
agreed and or proven damages;
2. Future hospital and medical expenses: Section 17(4)(a) Undertaking;
3. General damages Post pone sine die
4. Loss of earnings R 7 532 461;
5. Costs of counsel on scale C
Total R 7 532 461
_________________
J. ZITHA AJ
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 09TH December 2025
Judgment delivered: 21st April 2026
APPEARANCES:
For the Plaintiff: Mr Theron
Attorney for the Plaintiff: HW THERON INC
For the Defendant: None
Attorney for the Defendant: None