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[2026] ZAGPJHC 469
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Buthelezi N.O. Nyathi v Road Accident Fund (A2025/089899) [2026] ZAGPJHC 469 (4 May 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG
LOCAL
DIVISION, JOHANNESBURG
Case Number:
A2025-089899
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
NO
4
May 2026
In
the matter between:
ADVOCATE
ZINHLE BUTHELEZI NO
NYATHI
NHLANHLA HOPEWELL
Appellant
and
ROAD
ACCIDENT
FUND
Respondent
CORAM:
MALI J, MODIBA J AND MITCHELL AJ
JUDGMENT
MITCHELL
AJ (with whom MALI J and MODIBA J agree)
Introduction
[1]
This appeal arises from an action for damages arising from personal
injuries sustained by the Appellant in the motor vehicle
accident of
8 September 2019. In that action the Appellant claimed damages for –
a.
past hospital and future medical expenses;
b.
future medical expenses;
c.
past loss of income;
d.
estimated future loss of income; and
e.
general damages for pain and suffering, disablement and disfigurement
and loss
of amenities of life.
[2]
On 8 September 2019, the vehicle in which the Appellant was
travelling as a passenger was involved in a motor vehicle
collision.
The collision resulted from the negligent driving of the other
vehicle. As a result of the collision, the Appellant
sustained severe
bodily injuries, most notably:
a.
a severe diffuse traumatic brain injury; and
b.
associated soft tissue injuries (including injuries to the wrist and
forehead).
[3]
He lost consciousness at the scene and was admitted to Sebokeng
Hospital, where his Glasgow Coma Scale score was recorded
as low as
6/15 on admission, with evidence of an intraparenchymal brain bleed
on CT imaging. The Appellant required intensive medical
treatment,
including admission to the intensive care unit, ventilation, and
prolonged hospitalisation. Post accident, the Appellant
exhibited
persistent neurocognitive, neuropsychological and behavioral
impairments, including memory loss, poor concentration,
irritability,
and impaired executive functioning. Expert evidence which was
accepted established that he has reached maximum medical
improvement
but has continued to suffer permanent residual deficits.
In
the trial court
[4]
Prior to the commencement of the trial, the Respondent conceded
liability in full for Appellant’s proven damages.
The issues
that the trial court was called upon to determine were -
a.
whether the Appellant had established, on a balance of probabilities,
that he
had suffered a loss of earning capacity as a result of the
injuries sustained in the motor vehicle accident;
b.
if so, whether that loss translated into a patrimonial loss
warranting compensation;
c.
if established, the quantification of such loss;
d.
whether the Appellant had proved an entitlement to compensation for
future medical
expenses;
e.
whether the Appellant was entitled to an undertaking in terms of
section 17(4)(a)
of the Road Accident Fund Act for the costs of
future medical treatment, services, or care.
f.
an appropriate costs order.
[5]
On 6 November 2024, Botsi-Thulare AJ delivered judgment awarding the
Appellant
general damages in the amount of R1 350 000.00 and dismissing the
Appellant’s
claim for damages for loss of past and future earnings. The
Respondent was ordered to pay the Appellant's costs
limited to the
issues of liability and general damages while the Appellant was
ordered to pay the Respondent's costs relating to
the issue of loss
of earnings.
[6]
Although listing damages for future medical expenses as one of the
issues for determination, the learned judge did not
deal with this
claim in the judgment and made no order in that regard.
[7]
The trial court rejected the Appellant’s claim for past and
future loss of earnings holding that -
[34]
In my view, I am not satisfied that with the opinion of the
Industrial Psychologist that the earning capacity of the plaintiff
had been lost to a point that his patrimony is reduced in due course.
[35]
To my mind, the opinion of the Industrial Psychologist is not
properly motivated at all. It is unhelpful to this Court. In
my view
it is contradictory. In addition, the conclusion is based on
information which the Industrial
Psychologist
was unable to verify. In other words, some of the Industrial
Psychologist's conclusion were based merely on information
which was
supplied by the plaintiff only. Accordingly, it follows therefore
that the actuarial calculations made by the Actuaries
cannot stand
since they arrived at using the opinion of the Industrial
Psychologist which is contradictory and not properly motivated
at
all.
[36]
Another point which works against the plaintiff is that he
indicated that he has been employed as a taxi driver without having
obtained
a driver's licence as well as the applicable Professional
Driving Permit (PDP). This means that the plaintiff was operating a
public
vehicle transporting passengers without the required
documentation to do so. Accordingly, it would be illogical for this
Court
to order the defendant to compensate the plaintiff for future
loss of earnings based on an earning which he alleges to have been
receiving without possessing the valid documents which by law he was
required to possess in order to perform such a duty.
[37]
It was further confirmed in the expert opinion of the
Industrial Psychologist that the plaintiff does not have past loss of
earnings
as he was unemployed time of the accident.
[38]
Therefore, the claim for past and future loss of earnings
falls away.
[8]
The Appellant applied for leave to appeal the judgment insofar as it
related to the dismissal of the Appellant’s’
claims for
damages for past and future loss of income and future medical
expenses. This appeal comes before this full court as
a result of
leave to appeal that judgment having been granted by Botsi-Thulare AJ
on 18 May 2025.
Before
this court
[9]
The issues for determination in this appeal are limited to the
Respondent’s
liability
for -
a.
future medical expenses;
b.
past and future loss of earnings; and
c.
costs.
There
was no appearance for the Respondent at the hearing of this appeal.
Future
Medical Expenses
[10]
In
terms of section 17(4)(a) of the Road Accident Fund Act
[1]
,
where a claim includes future medical treatment, the Fund is entitled
to furnish an undertaking for such costs once incurred and
proven.
[11]
The Appellant adduced uncontroverted evidence establishing the need
for future medical treatment and expressly submitted
that an
undertaking was the appropriate form of compensation.
[12]
In addition, the Appellant’s counsel informed this Court that
Respondent conceded, on record, that the Appellant
is entitled to an
undertaking under section 17(4)(a) and that an offer to this effect
was made and accepted. The Appellant is therefore
entitled to an
order in this regard.
Past
and future Loss of Earnings
[13]
In my opinion the learned judge has misinterpreted the evidence of
the industrial psychologist (“Marais”).
For example, it
was not only the opinion of Marais that the Appellant’s
‘earning capacity’ had been reduced.
Both the clinical
psychologist and the occupational therapist reported that the
Appellant was unemployable. This evidence was unchallenged
by the
Respondent as was Mr Marais’ evidence in this regard. The
Respondent had not filed countervailing expert reports.
[14]
Furthermore,
while the calculations of the actuaries were based in part on Marais’
report, the financial information was not
based on the information
given to Marais by the Appellant. The financial information was
sourced by Mr Marais from the Quantum
Yearbook and the Road Freight
Industry
[2]
.
The correctness or accuracy of this information was not challenged by
the Respondent.
[15]
As regards the fact that the Appellant did not possess a Professional
Driving
Permit,
the question of the legality or otherwise of the claimant’s
earnings has been dealt with by the courts before. It
has, for
example, been held that illegal earnings such as illegal
taxi-driving, may be taken into account as an indication of earning
capacity and that a deduction of 30% should be made for the
changeover from illegal to legal taxi driving
[3]
.
[16]
The evidence before the trial court was that –
a.
the Appellant had a driver’s licence and had worked as a
driver;
b.
due to the injuries sustained in the accident, the Appellant has been
rendered
unemployable in the open labour market.
[17]
There was no evidence suggesting otherwise on either of these issues
and the inescapable conclusion is, therefore, that
the Appellant has
suffered a loss of earning capacity and is entitled to damages as a
result. In my opinion, therefore, the trial
court erred in rejecting
the Appellant’s claim for loss of earnings.
[18]
The
assessment of these damages is not capable of precise mathematical
calculation and is, by its nature, necessarily speculative.
A court
is required to make an estimate, often on a broad basis and, in doing
so, the court enjoys a wide discretion as to the
quantum to be
awarded. While actuarial calculations provide a useful guide in
quantifying the loss, they are not determinative,
and the court
remains at liberty to award such amount as it considers fair and just
in the circumstances
[4]
.
[19]
To quantify his damages, the Appellant tendered actuarial evidence in
support of his claim. The actuaries put forward
three bases for
calculating the damages. The first (Basis I) assumed ‘
Pre-accident
ceiling at the median earnings for a Taxi Driver
’, the
second (Basis II) assumed ‘
Pre-accident ceiling at the upper
quartile earnings for a Taxi Driver
’ and the third (Basis
III) assumed ‘
Pre-accident ceiling at the minimum wage for a
Light Motor Vehicle Driver
’
[20]
In all cases the actuaries split their calculations under the
headings “
Past loss
” and “
Future loss
”.
The calculation of ‘
Past loss
” is not really a
calculation of actual
past
loss of earnings. It was common cause that the Appellant was not
working at the time of the accident. The ‘
Past loss
’
calculation appears to be a calculation of the loss of earning
capacity from the date of the accident to the actuaries’
calculation date (which was 1 August 2023).
[21]
Under the headings of ‘
Past loss
’ and ‘
Future
loss
” the actuaries provide calculations for ‘
Value
of income uninjured
’ and ‘
Value of income injured
’
(which in each case was correctly nil) as well as a contingency to be
applied to the ‘
Value of income uninjured
’
amounts. The difference between ‘
Value of income uninjured
’
and ‘
Value of income injured
’, after applying the
contingency, gives an estimate of the loss of earning capacity.
[22]
The contingency used by the actuaries was 5% for ‘
Past loss
’
and 17.5% for ‘
Future loss
’. Under these
assumptions the actuaries calculated the Appellant’s loss of
earning capacity as follows –
a.
Basis I - R886 125
b.
Basis II - R1 247 357
c.
Basis III - R1 904 013
[23]
In
arriving at a quantification of the Appellant’s loss of earning
capacity, I take into account the vicissitudes of life
[5]
;
the fact that the Appellant was not working and had never had regular
work; the Appellant did not possess a Professional Driving
Permit;
the work that the Appellant had consisted mainly of driving motor
vehicles used to transport school children and workers
often in
family run or informal arrangements; he did not have stable,
long term formal employment; and his work history
was
intermittent and informal in nature. While Basis I assumes median
earnings for a taxi driver, the school children and transport
work
the Appellant had would have required shorter hours and commanded
less income than a taxi driver or a light delivery van driver.
[24]
For these reasons, I am the view that, while Basis I is the
appropriate starting point, the contingencies of 5% for ‘
Past
loss
’ and 17.5% for ‘
Future loss
’ are
too low and that a contingence of 25% should be applied to both ‘
Past
loss
’ and ‘
Future loss
’.
[25]
The Appellant’s total loss of earnings for ‘
Past loss
’
and ‘
Future loss
” on Basis I, as calculated by the
actuaries, was R1 057 765. Applying the contingency of 25% results in
a loss of earning
capacity and earnings and thus damages under this
heading of R793 323.
Costs
[26]
There is no reason why the costs should not follow the result.
Order
A.
The appeal is upheld.
B.
Paragraphs 2, 3 and 4 of the order of
the trial court are set aside
and replaced by the following:
“
2
a)
The Defendant shall pay to the Plaintiff an amount of R793 323
(seven hundred
ninety-three thousand, three hundred twenty-three
rands) in respect of the Plaintiff’s claim for Past and
Future Loss
of Income.
b)
The Defendant shall furnish the Plaintiff with an undertaking
in terms
of
Section 17
(4) (a) of the
Road Accident Fund Act, 56 of
1996
, to pay 100%, of the reasonable costs of future accommodation of
the Plaintiff in a hospital or nursing home, treatment of,
or
rendering of a service to him, or supplying of goods to him arising
out of the injuries he sustained in a motor vehicle collision
on 08
September 2019 and the
sequelae
thereof after such costs have
been incurred and upon proof thereof.
c)
The attorneys for the Plaintiff:
i)
must cause a Trust (herein after referred
to as “the trust”)
to be established in accordance with terms of the Trust Property
Control Act 57 of 1988 and to pay
all monies held in trust by them
for the benefit of NHLANHLA HOPEWELL NYATHI to the Trust.
ii)
shall be entitled to deduct their fees and disbursements
for
professional services from the aforesaid capital amount, only after
the taxation of the party and party bill of costs.
d)
The Trust instrument shall make provision for NHLANHLA HOPEWELL
NYATHI to be
the sole beneficiary of the trust with the nomination
and appointment of an employee of a banking or financial institution,
as
the trustee.
e)
The Section 17(4)(a) undertaking shall include the costs incurred in
the administration
of the Trust, the appointment of trustee(s), the
reasonable costs incurred in the administration of the award and
costs incurred
in providing security to the satisfaction of the
Master of the High Court of South Africa.
f)
The amount referred to in paragraph (a) above shall be paid into the
Trust
Account of the Plaintiff’s Attorneys of record being
JERRY NKELI & ASSOCIATES for the sole benefit of NHLANHLA
HOPEWELL
NYATHI, which amount shall be paid within 30 days of service
of this order on the Defendant.
g)
Should the Defendant fail to make payment within 30 days as
aforesaid, the Defendant
shall be liable to pay interest on the
amount referred to in paragraph (a) above at the prescribed rate
calculated from the 31st
day after service of this order on the
Defendant to date of payment.
3.
The Defendant shall pay the Plaintiff's taxed party and party
costs, on the High Court Scale B, including the qualifying
fees of –
(a)
Dr Tshepo P Moja
(b)
Robert Macfarlane
(c)
Lance Marais Incorporated
(d)
Algorithm Consultants & Actuaries
(e)
Alison Crosbie Inc.”
C.
The Respondent shall pay the party and party costs of the Appellant’s
application for leave to appeal and this appeal,
taxed on High Court
Scale B.
MALI
J
Judge
of the High Court
MODIBA
J
Judge
of the High Court
MITCHELL
AJ
Acting
Judge of the High Court
This
judgment is handed down electronically by circulation to the parties
or their legal representatives by email, by uploading
it to the
electronic file of this matter on Caselines, and by publication of
the judgment to the South African Legal Information
Institute. The
date for hand-down is deemed to be 4 May 2026.
HEARD
ON:
03/03/26
DECIDED
ON:
05/05/26
For
the Applicant:
KG
Sadiki
Jerry
Nkeli & Associates
011
838 7280 079 6321812
[email protected]
For
Respondent;
No
appearance
[1]
No. 56 of 1996
[2]
page 104 of the Appeal Record
[3]
Dlamini
v Multilateral Motorvoertuig Ongelukkefonds
1992 (1) SA 802
(T); see also
Masiza
v
Road
Accident Fund
2014 JDR 1075 (GP)
[4]
See
Road
Accident Fund v Guedes
2006 (5) SA 583 (SCA)
[5]
For example illness, life expectancy and other unforeseen factors
(see
Road Accident Fund v Guedes p585 supra)