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[2026] ZAMPMBHC 41
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Marule v Road Accident Fund (1846/2025) [2026] ZAMPMBHC 41 (28 April 2026)
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FLYNOTES:
RAF – Loss of income –
Pre accident
prospects
–
Plaintiff
injured at age 15, sustained permanent impairment and
psychological sequelae – Claimed general damages and
future
loss of earnings – Experts assumed pre accident
prospects of obtaining degree and law career – Fund
disputed
assumptions as speculative – Court held academic record
showed no realistic prospect of degree, expert projections
illogical and unsupported – Loss of earnings claim dismissed
– General damages of R800,000 awarded with costs.
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE: 1846/2025
(1) REPORTABLE:
NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED
DATE 28 April 2026
SIGNATURE
In
the matter between:
THATO
PENELOPE
MARULE
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
This judgment
was handed down electronically by circulation to the parties’
legal representatives by email. The date and time
for hand-down is
deemed to be 28 April 2026 at 10h00.
JUDGMENT
MANGENA AJ:
[1] Ms Thato Penelope Marule is an
adult female person and the plaintiff in this matter. She alleges
that she was involved in an
accident on 29 October 2021 when the
motor vehicle she was travelling in collided with another. She
sustained bodily injuries described
as a right tibia and fibula
fracture and ugly scarring on her right leg.
[2] She lodged a claim with the Road
Accident Fund and same was duly accepted. The liability was conceded
100% in her favour. On
the date of the hearing, plaintiff's counsel
applied to present quantum evidence by way of affidavits as provided
for in Rule 38(2)
of the Uniform Rules of Court. The defendant's
counsel agreed and indicated that she does not have any witness to
call, nor does
she need to cross-examine any of the plaintiff's
expert witnesses. I duly granted the application and the parties
agreed to file
written submissions in respect of quantum. I am
indebted to them.
[3] Plaintiff filed reports by the
following experts in support of her claim, an orthopaedic surgeon,
clinical psychologist, educational
psychologist, occupational
therapist, industrial psychologist and an actuary. The defendant did
not file any expert report.
[4] The report by the orthopaedic
surgeon, Dr Tladi, says that after the accident, plaintiff was
admitted at Mapulaneng (Masana)
hospital where she was placed in an
intensive care unit where an open reduction and internal fixation of
the right leg was done.
Subsequent to this treatment, she received
follow-up treatment at Sunshine hospital.
[5] During consultation she reported
that she was still feeling pain on the right leg, though
intermittently. The right heel does
not touch the floor due to a
deformed ankle which will require that she undergoes postero-medial
structure lengthening and release.
This will result in her not having
a normal right lower limb function like pre-accident. The surgeon
opines that she will have
difficulties with future jobs that require
walking, standing and lifting of objects. She may not be able to
compete fairly for
a job on the open market
[6] The x-ray reports show that the
fracture has united with implants in situ. She will however have
difficulty walking, standing
and lifting objects as she used to do
prior to the accident. She will need to undergo surgery for the
removal of the implants and
ankle lengthening and release. The
surgeon anticipated 12 weeks of post-surgery recuperation.
[7] The clinical psychologist assessed
Ms Marule and concluded that based on the reported complaints her
cognitive functioning has
been impaired. She has developed a
significant post-traumatic stress disorder as well as anxiety
symptoms. This has impacted on
her total quality of life and will
require that she receives further treatment from a clinical
psychologist to deal with the PTSD.
[8] The occupational therapist
reported that Ms Marule has residual physical ability of occupation
falling in the category of sedentary
to light duty work. She will
struggle with tasks which require intense physical force as she
experiences pain on her right leg.
Based on the report of the
orthopaedic surgeon, the occupational therapist opined that Ms Marule
will struggle in the open market
as her occupational prospects have
been negatively affected by the nature of the injuries sustained.
[9] The plastic surgeon noted that Ms
Marule is presented with ugly scars which are unsightly and hideous.
The scars are reportedly
itchy and painful and had resulted in her
having a low self-esteem. The scars have also resulted in her having
a permanent disfigurement
and impairment. She will need to undergo
future treatment for the revision of the scars, and the estimated
costs are about R100
000.00.
[10] The educational psychologist
reports that Ms Marule's cognitive profile reflects strengths in
verbal comprehension and perceptual
reasoning, with performance
falling within the average range. Pre-accident school reports
show that she had learning potential
with strength in language-based
subjects whilst struggling in numerical and conceptually demanding
subjects. She returned
to school after the accident and
completed her matric in 2024 where she obtained a Diploma
endorsement. Her academic profile post-accident
shows a decline in
numerical and conceptually demanding subjects while the
language-based subjects remained preserved. However,
her performance
on working memory and processing speed tasks is below average which
can be attributed to the ongoing physical pain,
depressive symptoms
and the emotional impact of the injuries. She will not be able to
cope with heavy reading, writing and sustained
concentration. In
short, she will not cope with academic pressure.
[11] Based on the reports and the
impact of the injuries on the overall life of Ms Marule, Ms
Mahlalela, counsel for the plaintiff
submitted that a fair and
reasonable compensation is R800 000.00 in respect of general damages
and R 6 276 623.50 in respect of
future loss of earnings.
[12] Ms Shabangu, counsel for the
defendant takes issue with the conclusion of the educational
psychologist. She says that the report
by the educational
psychologist reveals that Ms Marule has always been a below average
learner whose highest level of education
could not be above NQF level
6 qualification. She says that this is consistent with the grades she
obtained pre-accident as well
as in matric. There is accordingly no
basis upon which it can be concluded that there was a loss of income
as postulated by the
experts.
[13] The approach to the loss of
earnings or earning capacity claim has not been without difficulty.
Various courts in our country
and elsewhere in the world have
grappled with it (both in terminology and how to assess it) as our
law reports attest. It has also
received commentary from the academic
writers. Professor Daleen Millard, writing on the subject in, Loss of
earning capacity: The
difference between the sum-formula approach and
the somehow -or other approach; Law, Democracy and Development,
2007,vol 11:1 says
the following : A claimant should be
compensated for the loss that was caused by an unlawful act.
Loss of the capacity
to earn an income is a loss of capacity and not
a loss of income, even though the loss is calculated by using
expected income as
a measure. Before the claim can succeed, there
must be proof of a loss of earning capacity before there can be any
future loss
of earnings. The actual loss of earnings is a
manifestation of the inability of a person to earn the same income as
before, because
of the damage causing event. Once it has been
established that, there is, in fact a definite loss of earning
capacity, an amount
must be attached to the incapacity. Earning
capacity is a diminution of claimant's ability to generate an
income. I agree
with her.
[14] In
Rudman v Road Accident
Fund,
2003 (2) SA 234
(SCA) the supreme court of appeal said that
for a claimant to succeed in a claim for loss of earnings or earning
capacity, he or
she must prove physical disabilities resulting in
loss of earnings. What this tells us is that it is not every
physical disability
which results in the reduction of the earning
capacity and therefore loss of earnings. There must be a connection
or link between
the injury and the resultant loss. It is therefore
not sufficient for the plaintiff to file multiple reports which do
not assist
in creating a nexus between the injury and the claimed
loss as it is often done.
[15] In this case, plaintiff was 15
years old when she got involved in an accident. She sustained
injuries described in the preceding
paragraphs and returned to school
thereafter. Prior to the accident, she was performing well on
language-based subjects and had
learning problems on numerical
and conceptually demanding subjects. According to the educational
psychologist, she maintained this
trend post the accident. It is
therefore unclear to me why her academic performance in matric should
be attributed to the accident.
Ms Shabangu is correct to question the
assumptions made by both the educational and industrial
psychologists that Ms Marule
would have obtained a bachelor's
degree and proceeded to study for a law degree but for the accident.
That conclusion is not founded
on an independent and established
facts but the say so of Ms Marule who was clearly expressing a career
wish. Her wish was unrealistic
given her academic performance prior
to the accident.
[16] In this regard, we will do well
to remember the caution by the higher courts on the role of
experts more especially in
RAF matters. More often than, parties ask
that evidence be tendered by way of affidavit as provided for by Rule
38(2) of the Uniform
Rules of Court. The approach is perfectly valid
and serves a useful, valid and legitimate purpose. However, the
fact that
evidence was received by way of affidavit does not absolve
the court of its duty to evaluate it. In
Summermania Eleven
(Pty) Ltd v Hattingh NO
(316/2022)
[2024] ZASCA 42
(5 April
2024) the court said:
"[16] In trial proceedings
parties discharge the onus on them by giving oral evidence. The words
" shall be orally examined"
in Rule 38(2) affirm this as
the standard procedure. Reliability and credibility of the evidence
given is then assessed and analysed
through cross examination. The
trial court, however, has a discretion under the rule,to receive
evidence given by way of affidavit.
[17] ....The admission of the
evidence nevertheless required the court to consider whether it was
sufficiently reliable and credible
and whether the evidence given
thereby was sufficient, when considered against the rest of the
evidence led at the trial, to discharge
the onus".
[17] Regarding
the role of experts and their duty to the court, Nicholls AJA (as she
then was) said:
"[50] The role of experts in
matters such as these and the opinions they provide can only be as
reliable as the facts on which
they rely for this information. Too
readily, our courts tend to accept the assumptions and figures
provided by expert witnesses
in personal injury matters without
demure. The facts upon which the experts rely can only be determined
by the judicial officer
concerned. An expert cannot usurp the
function of the judicial officer who is not permitted to abdicate
this responsibility. The
court should actively evaluate the evidence.
Ideally,expert evidence should be independent and should be presented
for the benefit
of the court. It is not the function of an expert
witness to advocate the client's cause and attempt to get the maximum
payout
,as most seem to believe. The problem is exacerbated by the
Road Accident Fund which fails to properly investigate the situation
of the claimant and is content to rely on projections and assumptions
of experts with no factual basis". RAF v Kerridge, (1024/2017)
[2018] ZASCA 151
(01 November 2018)
[18] I align myself with the above
views and having analysed and evaluated the various reports submitted
as evidence in support
of the loss of earnings claim, I am
unable to accept the assumptions made by both the educational
psychologist as well as the industrial
psychologist that Ms Marule
would have obtained a bachelor's degree and qualified to study law if
it was not for the accident.
Her academic performance both prior to
the accident and post the accident is consistent and I do not accept
that the accident had
a bearing on her academic performance. The
postulations by the actuary are based on a wrong and illogical
assumption and cannot
be supported. I am fortified in my views by
what Satchwell J said in
Bvuma v RAF,
(17220/2010)
[2012] ZAGPJHC 258 (14 December 2012) that " The opinion
of an expert witness is only receivable in
evidence and only to be
relied upon where there are issues before the court requiring
specialised skill and knowledge and where
the opinion is based upon
facts which have been proved by admissible evidence". see
also
Mokoena obo Minor RAF
, (87131) [2026] ZAGPPHC 56 (19
January 2026)
[19] On the facts of this case I am
not persuaded that plaintiff has succeeded to prove her case for loss
of earnings. It follows
that the claim for loss of earnings or
earning capacity should fail.
[20] The general damages claim does
not present a difficulty. Plaintiff will still have to undergo an
operation and suffer pain
and discomfort. Having analysed the reports
and the applicable case law, a fair and reasonable award for the
injuries sustained
is R800 000.00.
[21] What remains is costs. The
general rule is that costs follow the results. Plaintiff was
successful in proving a portion of
her claim the defendant was not
keen to settle. She incurred substantial costs on experts and should
be allowed to recover them
in full, notwithstanding that some were
not helpful in so far as her claim for loss of earnings is concerned.
[22] In the result, the following
order is made:
1. The defendant is ordered to pay
plaintiff an amount of R800 000.00 in respect of general damages.
2. The claim for loss of earnings or
earning capacity is dismissed.
3. The defendant is liable for the
payment of the plaintiff's costs including the costs of
obtaining all expert reports filed
and referred to in paragraph 3 of
this judgment.
M
I MANGENA
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
APPEARANCES
:
Attorney
for the Plaintiff:
Ms EM Mabaso Mabaso
EM Attorneys
Pegasus Building 1
210 Amarand Avenue
018
Menlyn Maine
Pretoria 0181
Tel: 012 003 2869/
072 098 3611
Email:
[email protected]
C/O NP MADONSELA
ATTORNEYS
38 Mostert Street
Cherietta Building
second floor
Mbombela
Tel: 0676939360
Counsel
for the Plaintiff:
Adv.
Mahlalela
Attorney
For the Defendant: -
Caswell
Mkansi
State
Attorney - Mbombela
3
rd
Floor, Admin Block, West Wing
Samora
Machel Drive
MBOMBELA
Link
number: 5340218
Counsel
for the Defendant:
Adv.
Shabangu
Date
of Hearing:
26
January 2026
Date
of delivery:
28
April 2026