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[2026] ZAMPMHC 25
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Xaba v Road Accident Fund (A22/2025) [2026] ZAMPMHC 25 (4 May 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION
(MIDDELBURG LOCAL
SEAT)
CASE NUMBER: A22/2025
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED YES/NO
DATE
04 May 2026
SIGNATURE
In
the application between:
SANDILE
BANELE XABA
APPELLANT
AND
ROAD
ACCIDENT FUND
RESPONDENT
JUDGMENT
FOURIE AJ
(PHAHLAMOKLAKA J, BHENGU AJ CONCURRING)
INTRODUCTION:
[1]
This is an appeal ( heard by
this Court after the Supreme Court of
Appeal granted leave) against the Judgment and paragraphs 3 and 4 of
the Order of the Court
a quo
granted on 8 November 2024, in
which the Court
a quo
dismissed the Appellant’s claim
for loss of earnings and general damages with no order as to costs.
The appeal is with leave
of the Supreme Court of Appeal
[2]
The respondent opposes the appeal.
[3]
At the heart of this appeal lies
the question whether the Court
a
quo
correctly found that the discrepancies in the hospital
records advanced to the Court
a quo
when the matter was heard
in itself, and evaluated together with all the other evidence and
facts in the matter were deserving
of the Court
a quo
coming
to the conclusion that the Appellant had failed to prove his claim
and for his claim of loss of earnings and general damages
together
with costs to ultimately be dismissed.
BACKGROUND:
[4]
When the matter was brought before
the Court
a quo
the Court
was only to adjudicate the quantum of the Appellant’s claim as
the merits had become settled via offer and acceptance
on 17
September 2024 in that the Defendant in the main action, the
Respondent before this Court accepted 80% liability in respect
of the
Appellant’s claim, the essence of which is that the Defendant
is liable for 80% of the Appellant's proven or agreed
damages.
Of crucial importance is the Order made by the Court
a quo
in
paragraph 1 thereof, where the Court stated that:
“
1.
By agreement between the parties, the Defendant is liable to
compensate the Plaintiff for 80% of the proven delictual damages
suffered in the motor vehicle collision that occurred on 8 April
2023.”
[5]
The Respondent made no counterappeal
against the first Order of the
Court a quo, and it is thus uncontested that the agreement between
the Appellant and the Respondent
evolved from an agreement
inter
partes i
nto an Order of Court.
[6]
The fact that there are certain
discrepancies in the Appellant's
hospital records is common cause. The hospital records s, in
certain portions thereof, incorrectly
recorded the Appellant’s
surname as Nzimande and Nkosi. The times and dates were also recorded
incorrectly. The essence
of the finding by the Court
a quo
was that these discrepancies were enough to lead the Court
a quo
to believe that the threshold the Appellant needed to meet to prove
his case on the balance of probabilities was not met.
[7]
[8]
On this point, I propose that
the Court
a quo
was incorrect in
the manner in which it decided it.
THE
EFFECT OF THE ADMISSION OF LIABILITY AND SETTLEMENT IN FAVOUR OF THE
APPELLANT:
[9]
Something is to be said about
the effect of the Respondent’s
settlement of the Appellant’s claim in respect of the merits
and as such liability.
[10]
The Appellant’s claim is a claim in delict, and
as such, the
elements thereof are trite, being:
[18.1]
Conduct by another person,
[18.2]
Wrongfulness,
[18.3]
Negligence,
[18.4]
Damages; and
[18.5]
Causation.
[11]
At the exact moment the Respondent concedes liability
partially or
totally, it necessarily follows that all the elements of the delict
are conceded.
[12]
It flows from the aforesaid that, once a concession
is made of the
elements of delict, the Respondent concedes that the Appellant has
suffered damages. It remains dependent
on the Appellant to
quantify the damages and to prove its case in this regard on a
balance of probabilities. It can, however,
never be the case
for a Respondent, having conceded the elements of delict to aver that
no damages have been suffered, as it would
stand opposite to the
concession already made.
[13]
In their Heads of Argument and initial address at Court,
the
Respondents raise the issue of
ex turpi non causa,
which in
essence means that, from a dishonourable cause, no effect can flow.
This Court has already stated that the settlement
agreement has
neither been set aside nor is a counterappeal for us to decide on
this issue.
[14]
The maximum
ex turpi non causa
prohibits the enforcement of
immoral or illegal contracts.
[15]
Again, this is not an issue this Court is confronted
with by way of a
cross appeal. Even if the Court was in any event to entertain this
issue, it would be without merit as the contract
of settlement
entered into between the Appellant and the Respondent was entered
into freely and voluntarily under circumstances
where the Respondent
had all the available information and documentation at their disposal
and still elected to concede 80% of
the merits in favour of the
Plaintiff.
[16]
The application of the maxim
ex turpi non causa
, as derived
from Roman Law, is inspired by a specific moral principle that
discourages illegality and immorality and advances public
policy
[1]
.
[17]
In the current matter, this maxim finds no application.
[18]
The case advanced in the Court
a quo
by the Defendant, on
which the Court a quo made a finding, was seemingly that no damages
were suffered by the Appellant because
such was not proven.
Having evaluated all the evidence of the matter and in line with a
concession made by the Respondent
when the matter was heard before
this Court, that is a position that was incorrectly held under
circumstances where the Appellant
had, on the balance of
probabilities, proven that certain damages were sustained. What was
necessary to be evaluated was whether
or not the Court a quo could,
on the evidence presented to it, quantify the Appellant’s claim
and whether such quantification
was proven on a balance of
probabilities or not.
[19]
Having regard to the uncontroverted evidence presented
by the
Plaintiff, it is evident that the only just outcome in the matter can
be for damages to be awarded to the Appellant for
the loss suffered
in respect of the Plaintiff’s earning capacity as well as for
general damages. The prevailing evidence
led in the Court a quo
stands uncontested, and this Court finds no reason not to accept it.
QUANTUM:
[20]
EVIDENCE PRESENTED:
[21]
In the Court a quo,
the Appellant presented the following evidence:
21.1
The hospital records, which contained the complained-of
irregularities.
21.2
The expert evidence by way of an affidavit of the following experts:
21.3
An orthopaedic surgeon
21.4
An urologist
21.5
An occupational therapist
21.6
An industrial psychologist.
21.7
An actuary.
[22]
All the experts’ reports confirmed that the Appellant
sustained
the following injuries:
22.1
Open book pelvis fracture with scrotal
injury
22.2 Left distal femur
fracture with peroneal nerve palsy
[23]
This Court evaluated the possibility of remanding the
matter to the
Court a quo to address the quantification of the Appellant’s
claim. However, it is my considered view that
remitting the matter
back to the Court a quo would, under the circumstances and given the
time that has elapsed since the accident
forming the underlying cause
of the matter occurred, not be in the interest of justice. This Court
believes that it is in a position
to sufficiently deal with the
quantification of the Appellant’s claim.
[24]
Although the Judgment of the Court
a quo
did not expressly
deal with the quantification of the Appellant’s claim, both
parties thoroughly dealt with the quantification
of the Appellant's
claim in their papers as well as their arguments presented both to
the Court
a quo
and to this Court.
[25]
To deal extensively with each and every averment as
made in the
experts’ reports by the Appellant would serve no practical
purpose, having been satisfied that a diminishment
in the earning
capacity of the Appellant indeed exists, and that the other factors
to take into regard remain unopposed by the
Respondent, this Court is
satisfied that it can apply the relevant contingencies to the
actuarial calculations in order for
a suitable compensation to be
ordered in respect of the Appellant’s loss of earnings.
[26]
Contingencies discount the vicissitudes of life, and
it is a method
used to arrive at fair and reasonable compensation. The question of
contingencies was dealt with in
Southern Insurance Association Ltd
v Baily N.O
.
[2]:
‘
Any
enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or oracles.
All that the Court can do is to make an estimate, which is
often a
very rough estimate, of the present value of the loss.
Where the method of
actuarial computation is adopted, it does not mean that the trial
Judge is “tied down by inexorable actuarial
calculations”.
He has “a large discretion to award what he considers right”
(per HOLMES JA in Legal
Assurance Co Ltd v Botes
1963
(1) SA 608
(A) at 614F). One of the elements in exercising that
discretion is the making of a discount for “contingencies”
or the “vicissitudes of life’’. These include such
matters as the possibility that the plaintiff may in the result
have
less than a “normal” expectation of life; and that he may
experience periods of unemployment by reason of incapacity
due to
illness or accident, or to labour unrest or general economic
conditions. The amount of any discount may vary, depending
upon the
circumstances of the case. See Van der Plaats v South African
Mutual Fire and General Insurance Co Ltd
1980 (3) SA 105
(A) at
114 - 5. The rate of the discount cannot of course be assessed on any
logical basis: the assessment must be largely arbitrary
and must
depend upon the trial Judge's impression of the case.
It is, however,
erroneous to regard the fortunes of life as being always adverse:
they may be favourable. In dealing with the
question of
contingencies, WINDEYER J said in the Australian case of Bresatz
v Przibilla
[1962] HCA 54
;
(1962) 36 ALJR 212
(HCA) at 213:
“
It is a mistake
to suppose that it necessarily involves a 'scaling down'. What it
involves depends, not on arithmetic, but on considering
what the
future may have held for the particular individual concerned... (The)
generalisation that there must be a 'scaling down'
for contingencies
seems mistaken. All 'contingencies' are not adverse: All
'vicissitudes' are not harmful. A particular plaintiff
might have had
prospects or chances of advancement and increasingly remunerative
employment. Why count the possible buffets and
ignore the rewards of
fortune? Each case depends upon its own facts. In some it may seem
that the chance of good fortune might
have balanced or even
outweighed the risk of bad.’’’
[27]
In
Gillbanks v
Sigournay
[3]
the Court stated that:
‘
In
any estimate of a person's loss of earning capacity allowance must be
made for all contingencies including the accidents of life
and
certain deductions must be made from the estimated gross income to
allow for unemployment benefits, insurance and so on. These
contingencies would include –
(i) a
possibility that plaintiff's working life may have been less than
sixty-five years;
(ii) a
possibility of his death before he reaches the age of sixty-five
years;
(iii) the
likelihood of his suffering an illness of long duration;
(iv) unemployment;
(v) inflation
and deflation;
(vi) alterations
in the cost-of-living allowances; ……..”
[28]
Contingencies may consist of a wide variety of factors.
They
include matters such as the possibility of error in the estimation of
a person’s life expectancy, the likelihood of
illness, accident
or employment, which is any event that could have occurred and
therefore affects a person’s earning capacity
[4]
.
[29]
At the hearing of the matter in the court a quo and
in the
Appellant’s papers, the Appellant sought contingencies to be
applied on 5% for past loss and 15% for future loss of
earnings in
respect of the Appellant’s uninjured scenario. The Court
was satisfied that although contingencies were
to be applied, the
contingencies as proposed by the Appellant were not satisfactory and
the parties were requested to indicate
whether contingencies of 25%
in respect of past loss and 35% in respect of future loss would not
be more appropriate, considering
that no proof of earnings was
available. Both the counsel
s
appearing on behalf of the Appellant and the Respondent agreed that
it would be appropriate.
[30]
Being guided by the aforesaid, I propose that the Appellant
has
suffered a loss of earnings in the amount of R 1 300 000.00
(One Million Three Hundred Thousand Rand).
[31]
In determining general damages, the court is
called upon to exercise its discretion to award what it considers to
be fair and adequate
compensation having regard to a broad spectrum
of facts and circumstances connected to the plaintiff and the
injuries sustained
by him, including their nature, permanence,
severity and their impact on his lifestyle
[5]
.
[32]
This Court should allow general damages that are both
fair to the
Appellant as well as the Respondent.
[33]
Having regard to the comparative matters referenced
in the Heads of
Argument by the respective parties, most of the judgments referred to
in the parties’ Heads of Argument were
unfortunately either not
applicable to the matter at hand, or alternatively, the amounts were
outdated and not correctly calculated
at the value as at the day of
hearing.
[34]
Perhaps the matter closest resembling the sequel of
the accident of
the Plaintiff would be the matter of Ndaba v RAF
[6]
, where
the claimant sustained injuries, including a pelvic fracture and
fractures of the right femur and tibia, as well as a left
knee
injury. The Court awarded the Claimant in the matter of Ndaba,
supra
, damages in the amount of R 500 000.00 (Five
Hundred Thousand Rand) in 2011. This Court proposes that the
general damages
as suffered by the Appellant be awarded in the amount
of R 1 000 000.00 (One Million Rand).
[35]
Having found as aforesaid, the ancillary relief as prayed
for by the
Appellant becomes irrelevant. This Court, on the information
available to it, does not require the matter to be
referred back to
the Court a quo, nor does it require any order regarding the
admission of further evidence. The evidence
presented when the
matter was heard in the Court
a quo
is sufficient for the
Court to make the Order as proposed.
COSTS:
[36]
The Appellant prayed for the costs of two counsel.
I do not
believe that the matter is so complex as to warrant the employment of
both senior and junior counsel. Although costs
are warranted,
they remain a matter of discretion for the Court. In the
current circumstances, I do not see why the Appellant
should not be
awarded costs on a party and party Scale B, such costs to include the
costs of the appeal, costs for the application
for leave to appeal,
costs for the petition to the Supreme Court of Appeal, and the costs
in the Court a quo.
ORDER:
[37]
As such and for all the reasons above, I propose the
following Order
be made:
[37.1] The Appeal is
upheld.
[37.2]Orders 3 and 4 of
the Order of the Court
a quo
set aside and replaced with
the following Order:
“
3.
The Defendant shall pay the total sum of R 1
840 000.00
(One Million Eight Hundred Thousand Rand) to the Plaintiff in respect
of the Plaintiff’s claim against the
Defendant, which amount is
calculated as follows:
3.1.
Past and future loss of income/earnings R
1 300 000.00
3.2.
General damages
R 1 000 000.00
SUB-TOTAL
R 2 300 000.00
Less 20% Deduction on
merits
R
460 000.00
TOTAL
R 1 840
000.00
[37.3].
The Defendant shall pay the Plaintiff’s costs, including the
costs for the Application
for Leave to Appeal, the costs for the
petition to the Supreme Court of Appeal, and the costs of appeal on a
party and party Scale
B.”
H
F FOURIE
ACTING
JUDGE OF HIGH COURT
I
agree
JL
BHENGU
ACTING
JUDGE OF THE HIGH COURT
I
agree, and it is so ordered
K
F PHAHLAMOHLAKA
JUDGE
OF THE HIGH COURT
Judgment
reserved on:
06 FEBRUARY 2026
Date
of delivery:
04 MAY 2026
[1]
See Jajbhay v Casim
1939 AD 537
[2]
Southern Insurance Association Ltd v Baily N.O.
1984 (1)
SA 98
(A) at 113 G and 116 G to 117 D
[3]
Gillbanks v
Sigournay
1959
(2) SA 11
(N)
[4]
Road Accident Fund v Reynolds
(A5023/04)
[2005] ZAGPHC 19
(18 February
2005)
[5]
D
v Road Accident Fund
(15/24390)
[2017] ZAGPJHC 61 (3 March 2017)
at para 17
[6]
Ndaba v
RAF 2011 (6) QOD E3-14 (ECB)