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: 35777/21
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 21/04/2026
SIGNATURE:
In the matter between:
X[...] L[...]
Id NO: 0[...]
PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
CLAIM NO: 560/1287976936/1043/0
LINK NO: 5067724
JUDGMENT
CORAM: ZITHA, AJ
Heard on: 11th 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 07th July 2020. The matter appeared before Court by a
way of Default Judgment application on the 11th December 2025.
PARTIES
[2] The plaintiff is X[...] L[...] an adult female, currently unemployed born on the
18th June 2004 and who is currently 21 (twenty-one) years of age. At the time
of the collision, the plaintiff was sixteen (16).
[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 postponed sine die, as the Defendant has
not made a determination about the seriousness of the injuries.
The Plainti ff 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 awar ded 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 adm itted by way of
affidavit.
[9]. APPLICATION TO ADMIT EVIDENCE BY WAY OF AFFIDAVIT IN TERMS OF
RULE 38 (2) OF THE UNIFORM RULES
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 may
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
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 wh ereby 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 discretion is exercised, two important factors will inevitably be the saving
of cost s 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 circumst ances to allow a deviation from the norm. That requires a
consideration of the following factors: the nature of the proceedings, the nature of
1 1995 (2) SA 319
2 [2022] ZAMPMBHC 23
the evidence, whether the application for evidence to be adduced by way of affidavit
is by agreement, and ultimat ely, whether, in all the circumstances, it is fair to allow
evidence on affidavit.
And at paragraph 53:
“Plaintiffs in RAF matters often request the court to accept evidence upon affidavit.
Especially now where in most RAF matters there is no appearance b y 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, 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 affidavits i n
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. The application in terms of Rule 38(2) was granted.
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 Frone man 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)”
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 actio ns 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 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, (especially whether th e findings
therein) tally with the rest of the information ...”
[10]. THE MERITS:
10.1. The issue of liability is resolved as follows:
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.
[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 P.M. Mpanza (Neurosurgeon);
11.2.2. Dr H.N Masipa (Orthopaedic Surgeon);
11.2.3. S.F. Mphuthi (Clinical Psychologist);
11.2.4. Dr. R.E. Mnisi (Gynaecologist);
11.2.5. Prof. R. Chauke (Cardiothoracic Surgeon);
11.2.6. Dr. Z. Gumede (Educational Psychologist);
11.2.7. L. Mashishi (Occupational Therapist);
11.2.8. Dr. T. Kalanko (Industrial Psychologist);
11.2.9. Wim Loots (Actuary).
[12]. The defendant did not appoint any medico-legal experts.
[13]. INJURIES SUSTAINED:
13.1. According to the neurosurgeon:
13.1.1. The plaintiff sustained a moderate to severe brain injury
with residual sequalae, with a history of loss of consciousness
GCS of 13/15 on arrival at the hospital.
13.1.2. It is unclear whether she suffered the hypotension due to
pelvic fracture or the pregnancy.
13.1.3. She was 17 weeks pregnant and was confirmed via an
ultrasound which she requested a termination of
pregnancy.
13.2. Post-accident
She suffers neurocognitive deficits, with personality changes which
might be related to the severity of the head injury. She forgets tasks
and she suffers from post-traumatic headaches and she is short -
tempered.
[14]. According to the Orthopaedic Surgeon:
14.1. The plaintiff sustained a right clavicle fracture, head injury and
multiple rib fractures with a left pneumothorax.
14.2. Occupation and future employability
With the recommended treatment, the plaintiff symptoms are
expected to improve.
[15]. According to the Clinical psychologist
15.1. Conclusions and recommendations
15.1.1. Brain connectivity measures show indicators of mild to
moderate inefficient information processing ( hyper
coherence and increased phase) as well as inhibitory
mechanism problems (decreased phase lag), in turn
rendering her vulnerable to diminished social activity
problems, such as irritability and aggression towards
others.
15.1.2. We conclude that her lower -than-expected average
performance can be attributed to neurocognitive deficits
due to the traumatic brain injury (TBI) sustained,
aggravated by chronic pain and stress response
interfering with the allocation of cortial resources.
15.1.3. The three indicators were present when plaintiff sustained
injury and thus, we conclude that her head injury
contributed significantly to the neurocognitive deficits
evident from her test results.
16.2. Clinical formulation
16.2.1. Impact of head / brain injury
Based on the foregoing, we conclude that the traumatic brain
injury that the plaintiff sustained at the time of the accident
has resulted in significant neurocognitive deficits. The
negatively impact her ability to function both intellectually and
socially.
16.2.2. Clinically psychologically status and recommended
psychotherapy
The plaintiff’s clinically psychologically status is characterised
by symptoms of post -traumatic stress mood dysregulation
associated with diminished neurocognitive capacity as well as
persistent pain and changed social functioning and status.
16.2.3. Vocational consequences
From a neuropsychological perspective, her pattern of
performances on cognitive testing a nd her clinical
psychological profile have implications for her vocational
functioning and prospects.
She now performs tasks at a slower pace than prior to the
accident, forgets important details, requires more time to
comprehend complex tasks and will have difficulty managing her
levels of frustrations in the workplace.
[17]. Gynaecologist
The report of the above expert is not acceptable as it has factual and material
contradictions.
[18]. Cardiothoracic Surgeon
Loss of work capacity
Work capacity was lost for at least three (03) months following the chest and
clavicular injuries. Further loss of work capacity is to be expected as a result
of chronic chest pains.
[19]. Educational psychologist
19.1. Premorbid School functioning
The effect of her head injury has stunted her cognitive potential and
subsequently her vocationally / occupational prospects.
19.2. Intellectually
Pre-morbidly, the plaintiff would probably have managed to function at
further up within the above average range of intelligence. This is
indicated by the following factors:
19.2.1. Her global intellectual functioning according to the ISXSP and
CPM are in the average range after being injured which
suggest that she had sound intellectual functioning pre -
morbidly.
19.2.2. She passed grade 1 to 10 pre morbidly and matriculated with
Diploma endorsement after the accident with her deficits. The
capacity to pass at school is consistent with at least an
average intellectual functioning. This performance post injury
using her residual ability and with her deficits suggests that
she would have performed even better if she was not injured.
19.3. Educationally
19.3.1. Plaintiff pre -morbid estimates of above average intellectual
ability are consistent with functioning at a level where she
could have matriculated with Bachelor endorsement and
proceeded to obtain a tertiary qualification, a university
degree.
19.4. Had the accident not occurred
19.4.1. The plaintiff could have matriculated with a Bachelor pass and
thereafter proceeded to obtain a tertiary qualification. She
would then have been employed in the open labour market as
a skilled or professional person.
19.5. Post injury school functioning
19.5.1. Intellectual ability
Her IQ deteriorated. Plaintiff is post-morbidly functioning in the average
range in terms of global IQ. The neurosurgeon opined that the plaintiff
suffered a mild traumatic brain injury and hypotension secondary brain
injury. It is thus probable that she suffered a degree of IQ deterioration.
19.5.2. Educational ability
She displayed a severe cognitive and scholastic deficits that impacted
negatively on her classroom performance. S he was only able to
matriculate with a diploma endorsement with low marks and proceeded
to TVET College, passed N4 to N5 and N6 in Human Resource
Management.
19.5.3. Now that the accident has occurred
1. She performs within the average range of global inte llectual
functioning. However, they are indication of problems with her
concentration and memory, and her scholastic and cognitive
deficits will always act as impediments in any academic and
vocational endeavour.
2. Her deficits impacted negatively on her classroom performance;
she only matriculated with diploma endorsement and obtained N6
in Human Resources Management at TVET College in 2024. She
is unemployed in 2025.
3. She was unable to become a chartered accountan t as she aspired
before being injured. It is a concern that she performed at the level
of a nine years and three months old pupil. That is i.e. grade four
level scholastically when assessed on 07/12/2021, however, she
coped with the demands of TVET College up to N6.
4. Furthermore, her physical wellbeing will always compromise her
work prospects and quality of life.
[20]. Occupational therapist
20.1. The writer is of the opinion that the plaintiff possessed the residual
work capacity to execute sedentary to light strength requirement work
load, with the exclusion of above shoulder and overheard level reach
action.
20.2. She is suitable for unskilled to semi-skilled and trainable in skilled
occupations, operating in an accommodative work environment, where
reasonable accommodations can be provided for her physical
challenges and cognitive deficits.
[21]. Loss of earning capital
21.1. The writer is therefore of the opinion that from a functional perspective,
the plaintiff has suffered a declined in earning capacity.
21.2. Her vocational potential has been compromised by accident injuries.
21.3. Her need for reasonable accommodations will render her a vulner able
competitor in the open labour market, when compared to her uninjured
counterparts.
[22]. Industrial Psychologist
Career and remuneration potential
Career aspirations
22.1. Pre-accident: the plaintiff aspired to become chartered accountant.
22.2. Post-accident: her aspirations remain the same.
Employment scenarios
In-school pre-morbid (had the accident not occurred)
22.3. The plaintiff was a grade11 scholar when the accident occurred.
22.4. The writer notes that none of her fa mily members hold a post -matric
qualification, however taking into account the above mentioned
educational policies and learner support, with motivation and hard work
she would have likely attained educational qualifications higher than
those of her family members.
22.5. The writer believes that she is slightly to have persevered and
achieved educational qualifications similar if not higher than those of
family members.
Grade 12 with a degree (NQF 7) qualification
22.6. It is anticipated that the plaintiff would have continued with her
schooling and would have completed her grade 12 in 2021 and
thereafter pursue a degree in a field of her choice.
22.7. Upon successful attaining her degree in 2024/2025 (depending on the
career of her choice) it is p resumed that she would have proceeded to
search for employment. However, due to the high unemployment rate
in the country, she would have likely suffered from a period of
unemployment (six months to one year) before entering the open
labour market with the corporate sector.
22.8. It is opined that upon obtaining employment, she would have first
secured a preliminary/ internship position where she would have
worked for one year before acquiring a permanent position / earning at
B1/B2 basic salary.
22.9. STATSSA (Koch, 2025) indicates that Bachelor degree holders enter
employment earning at R173 000 per annum. It is therefore assumed
that she would have then secured permanent employment, (with a
degree level of education), and she would have started earning wi thin
Paterson Level B4, basic salary, as obtained from the quantum year
book (R.Koch, 2025).
22.10. Career growth through improving her skills, gaining more experience
and further work -related training is herein assumed. Using the
STATSSA upper quartile ea rnings for those with grade 12 with a
degree as a guide (R1 053 000 per annum). It is presumed that she
would have reached her earning career potential with her earnings in
Paterson level C5/D1 (total packages) by approximately age of 45.
22.11. Thereafter, annual inflationary increases would have applied until
retirement age of sixty five (65) years
22.12. The writer notes that workers generally retire at age of sixty five ( 65)
when they qualify for a pension. It is therefore assumed that the most
probably scenario for retirement for the plaintiff would have been sixty
five ( 65) years depending on her health, motivation and retirement
policy of her employer at the time.
Unemployed post-morbid (situation due to the accident)
22.13. The plaintiff is searching for an internship where she can do her
practical’s. Her occupational freedom has been restricted due to the
injuries emanating from the accident under discussion. It is opined that
she has been rendered a vulnerable contender in the open labour
market.
22.14. It is further opined that she might be delayed into securing one seeing
that she is now a candidate for accommodative employment, which the
writer notes that is scared.
22.15. The writer opined that the noted behavioural issues would have a
negative impact on the plaintiff’s workplace.
22.16. It is opined that due to the noted psychological issues, she will have
challenges interacting well with her peers and in the future, with her
colleagues.
22.17. She will find it challenging to thrive whe n she has to be involved in a
team. This will affect her as well a team member.
22.18. It is therefore accepted that this will have a negative bearing on her
career in future as this has the potential to hinder her career growth, for
instance, she will not be first choice candidate for supervisory roles.
22.19. The writer opines that the plaintiff’s competitiveness in the open labour
market will depend on the level of education that she will be able to
attain.
22.20. It is accepted that the plaintiff’s academic potential has been
diminished due to the accident -related injuries. She will not be able to
realize her pre -morbid potential. She has been disadvantaged as an
academic and as a prospective competitor in the open labour market,
as she will not be able to compete on par with her uninjured peers.
Grade 12 with the diploma
22.21. It is assumed that the plaintiff will complete her practical’s likely in
2026/2027. Thereafter, it is opined that she will search again for gainful
employment, within the corporate sector, although cognisance is taken
that due to the high unemployment rate in the country, it is assumed
that she will suffer from marked periods of unemployment
(approximately 1 to 2 years) before entering into an interns hip/
preliminary, position, earning within the Paterson level A1/A2 (basic
salaries), low quartile in the corporate sector.
22.22. Individuals with a diploma in their early career usually earn within the
starting range of R114 000 per annum. It is therefor e accepted that
during the course of her preliminary/ internship position the plaintiff will
likely be earning within the aforesaid range.
22.23. Considering residual challenges, she remains with, it is opined that she
will likely reach her career plateau earning the average of the lower
quartile and median range of those with a diploma in their late career
stage, (R292 500 per annum). These are earnings within Paterson
level B2/B3, total packages by the approximate age of 45.
22.24. Upon reaching a career plateau, normal inflationary increases will
apply until she reaches the standard age of retirement. The writer
opines a 1-2 year delay should be anticipated.
22.25. The plaintiff remains with a residual impairment that will have a
negative impact on her fu ture occupational endeavours she will find it
challenging to progress in her career due to said challenges.
22.26. It therefore reads that she will not be likely to reach her pre -morbid
career plateau. Hence, she has been disadvantaged in the future.
[23]. LAW
Loss of Earnings
23.1. 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 disability 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 actu al loss of
income.
23.2. 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. It 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.
23.3. The learned author Dr R.J. Koch in The Quantum of Dam ages Year
Book states at page 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 i n similar matters. The
learned 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 age, i.e. 25% for
a child, 20% for a youth and 10% in middle age.”
23.4. 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...”.
23.5. 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.
23.6. 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 estimate; 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 estimat e 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 th e Court cannot for this reason adopt a non
possumus attitude and make no award.”
23.7. 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 the accident) and the difference between these two
amounts will then represent the loss.
[24]. APPLICATION OF LAW TO FACTS
24.1. 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.
24.2 The plaintiff’s case remains undisputed and remains unchallenged. The
defendant has not appointed a single expert to challenged and or
contradict the plaintiff’s expert witnesses. There is also no evidence
before me that prior to the collision the plaintiff had any neurocognitive
problems.
24.3. In so far as the injuries are concerned, it has not been disputed that the
plaintiff sustained moderate to severe head injury (with 1 3/15 GCS )
and fractured clavicle (orthopaedic injury) which was consequent to the
motor collision. It remains u ndisputed that the plaintiff’s
neuropsychological, neurocognitive and neurobehavioral arising from
the accident has been impaired.
24.4. The Clinical psychologist opines that the plaintiff’s employment will be
adversely affected. H er cognitive challenges including memory and
attention deficits , make h er an unfair competitor in the open labour
market.
24.5. The occupational therapist opines that the cognitive deficits would have
a n egative impact on h er work abilities and fu ture emplo yment. H er
competitiveness in the open labour market has been compromised,
especially for roles exceeding medium physical demands.
24.6. 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 accepted.
24.7. I accept that the plaintiff would require an understanding employer who
will be willing to accommodate his cognitive limitation should she
secure work in future. H er working environment would also need to be
less cognitively demanding as she would struggle to perform with the
pressures of work.
I have also considered that she is no longer performing at h er 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 h er pre-accident earn ing potential and h er post-
accident earning potential.
24.8. I am mindful that the plaintiff will be an unequal competitor at the open
labour market compared with h er healthier peers and that she will not
be able to perform functions efficiently and effect ively as compared to
her counterparts. The injuries sustained from the accident will hinder
her career and future employability. The plaintiff has suffered a
medically justifiable loss of earnings or work capacity as a direct result
of the accident.
24.9. I find that the plaintiff’s expert witnesses remain the only evidence
before me. The submissions made by industrial psychologist is clear,
reasonable and persuasive. I therefore find that the evidence before me
credible and I accept it as reliable and plausible.
[25]. According to the actuarial calculations by Wim Loots dated 22nd July 2025,
there were no contingencies applied.
[26]. Plaintiff’s counsel submitted that contingencies are to be applied as usual since
the Road Accident Fund Amendment Act 19 of 2005 cap does have an impact
on this case. The cap was equal to R294 300 at the date of the accident. The
cap was applied in accordance with the interpretation of the ruling in RAF v
Sweatman 2015 (SCA). In this regard counsel argues the contingency
deductions on uninjured earnings 25% and 25% on injured earnings should be
applied.
I hold a different view:
40% deductions for future pre-morbid income;
40% deductions for future post-morbid income.
Pre-morbid Post-morbid Loss
(difference)
Future earnings R13 524 934 R4 608 240 __________
Minus contingency 40% -(R5 409 973.60) 40% -(R1 843 296)_____
R8 114 960.40 R2 764 944____________
Total loss of earnings R5 350 016.40
[27]. The loss of earnings after the above -stated contingency deductions amount to
R 5 350 016.40 (Five Million Three hundred and Fifty thousand and
Sixteen Rand and Forty Cents ). The calculations were on the basis that the
plaintiff is not expected to reach the suggested pre -accident career potential
and that she might suffer losses that are not directly quantifiable and should be
address via contingencies. The retirement age is at 65 years.
[28]. 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.
[29]. When considering the contingency deductions to be applied on actuarial
calculations of loss of earnings, allowance for contingencies involves, by its
very nature, a process 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 emplo yment in the future ; the prospect of being
injured in circumstances where the plaintiff would receive no compensation
from any source; the saved costs of unemployment. I ap plied my mind to the
plaintiff’s circumstances. I have considered the plaintiff’s background and family
history, the lack of collateral information from the plaintiff’s class teachers. I
have considered the plaintiff's school reports before the accident, the plaintiff
was an average performing learner. I am not satisfied that the plainti ff would
have obtained the projected pre -morbid postulations. Generally, a D1 with full
packages is attained by a small segment of the population. Few graduates are
admitted and/ or qualify as Charted Accountant. I have also taken into account
the minimum entry requirements and examinations into the said profession . As
a result, I am of the opinion that higher contingencies should be applied in this
case.
[30]. ACTUARIAL CALCULATIONS IN RESPECT OF LOSS OF
EARNINGS:
Wim Loots compiled an actuarial calculation report dated 22nd July
2025. Plaintiff’s projected income is based on the information and
reports of the industrial psychologist.
30.1. Assumptions
Pre-morbid retirement age: 65 years.
Post-morbid retirement age: 65 years.
Accident date: 07/07/2020
Calculation date: 2025/07/22.
Contingency Deductions
Pre-morbid deductions:
Future earnings: 40% deduction.
Post-morbid deductions:
Future earnings- 40% deduction.
[31]. 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 Five Million Three Hundred and Fifty
Thousand and Sixteen Rand and Forty Cents (R5 350 016.40) as
set out in the contingency scenario above.
[32]. The plaintiff is currently unemployed, and she has obtained N6
certificate in Human Resource Management.
[32]. Her career progression is therefore significantly compromised.
[33]. She suffers from significant cognitive fallouts for immediate memory and verbal
learning, making it difficult for her to learn and retain new work skills.
[34]. She is unlikely to reach her pre-MVA occupational potential. Her occupational
functioning has been negatively impacted by the sequelae of the injuries
sustained in the MVA and resulted in a loss of productivity and efficiency.
[35]. She has been compromised from a physical, neurocognitive and
psychological perspective by his MVA-related injuries and their sequelae.
[36]. In general, it is acknowledged that employees with impairments would be
disadvantaged, to a greater extent or lesser extent, iro their competitiveness
in the open labour market, especially in comparison with uninjured peers.
[37]. Her ability to seek and secure other suitable sympathetic accommodative
employment has been significantly curtailed by h er physical neurocogni tive
and psychological sequelae.
Having regard to the aforementioned cases, it is respectfully submitted that special
damages in the amount of Five Million Three Hundred and Fifty Thousand and
Sixteen Rand And Forty Cents (R 5 350 016.40) is fair and reasonable under the
circumstances.
[38]. Costs:
[39] 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.
[40] 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 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 and/or
required to be canvassed”.
[41] 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
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)
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.
[42] 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…"
[43] With regard to this present matter it is held by the court that the employ of a
senior counsel was warranted and that counsels' fees on Scale C are
appropriate for inter alia, the following reasons:
43.1. 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.
43.2. Importance of the relief sought
9 (Gauteng Division Johannesburg, Case Number 2023-102560)
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 Plaintif f 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.
43.3. 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 occup ation;. 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 lang uage and terms used in the respective
10 20147/2021) Gauteng Division, Pretoria (23 April 2024)
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 expe rt 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.
43.4. 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.
43.5. 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]
exists to admini ster, 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
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).
responsibly contestable, the adoption of reasonable and timeous steps in advancing
its defence. These are not exacting requirements. They must be observed'." 12
43.6. It was the Defendant that obliged the Plaintiff to approach this
Honourable Court for relief.
43.7. It should be born e 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 A nder
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 unsucces sful 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.
43.8. 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.
43.9. 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.
12 (Madzunye and Another v Road Accident Fund 2007 (1) SA 165 (SCA) par [17) at 171).
13 1993 (4) SA 510 (T);
43.10. 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 argu ment 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 written submissions, which are not
regarded as succinct heads of argument forming the basis of t he 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 fo r 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 pe r 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 commented on the need for a uniform practice in accordance with
the generally accepted computati on of fees on a time spent basis, which will
provide fair and reasonable remuneration for the service rendered.”
--
43.11 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.
43.12 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’.”
43.13 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.
[44] There is no reason why the costs are not to follow the outcome.
[45]. 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 Postponed sine die;
4. Loss of earnings R 5 350 016.40
5. Costs of counsel on scale C
Total R 5 350 016.40
_________________
J. ZITHA AJ
Judge of the High Court
Gauteng Division, Pretoria
Appearances:
On behalf of the plaintiff: Adv. D. Thumbati
Instructed by: AM Komane & Associates
On behalf of the defendant: No appearance