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: 81640/2017
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 06/05/2026
SIGNATURE:
In the matter between:
T[...] O[...] P[...]
PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
LINK NO : 4121127
JUDGMENT
INTRODUCTION
[1] This is a delictual claim for damages as a result of a motor vehicle collision
which occurred on the 17 th September 2015 . The matter appeared before
court by a way of default judgment application on the 03rd of February 2026.
PARTIES
[2] The Plaintiff is T[...] O[...] P[...] an adult female person with full legal c apacity,
who was born on 19th of April 2003 (“the Plaintiff”) and who is currently
twenty three (23) years of age. At the time of the collision, the Plaintiff was
twelve 12 (twelve) years old.
[3] The Defendant is the ROAD ACCIDENT FUND, a juristic person established
in terms of section 2(1) of the Road Accident Fund Act 56 of 1996 (" the Act")
with full legal personality and of address 3[...] I[...] Street, Menlo Park,
Pretoria, Gauteng.
ISSUES TO BE DETERMINED
[4] Liability/ merits of the matter
[5] Future medical expenses
[6] Loss of earnings (Past and Future)
[7] General damages will have to be postponed sin e die, as the Defendant has
not made a determination about the seriousness of the injuries in terms of the
RAF 4 forms.
APPLICATION TO ADMIT EVIDENCE BY WAY OF AFFIDAVIT IN TERMS OF
RULE 38 (2) OF THE UNIFORM RULES
[8] The Plaintiff made an application in terms of Rule 38(2), in order to lead
evidence by a way of an affidavit. Such application was properly served and
accompanied by the expert affidavits. The application was granted. For future
medical expenses the Plaintiff is awarded an undertaking in terms of section
17 of the Road Accident Fund Act
In this regard the Plaintiff evidence is unchallenged and uncontested as the
Defendant’s plea was struck off by the court.
The Plaintiff applied that his quantum evidence be admitted by way of
affidavit.
This included:
8.1. The Plaintiff’s quantum evidence and collateral witness evidence; and
8.2. 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.
8.3. In the matter of Abraham v City of Cape Town1, the Court held:
1 1995 (2) SA 319
“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.”
8.4. In Mnisi v The Road Collision Fund and Seven Similar Matters2, the
court held and quoted the following at paragraph 52:
“The subrule provides a mechanism whereby the court may on
application and if sufficient reason is shown, allow that evidence be
given on affidavit. Firstly, there must be an application to adduce
evidence by affidavit. Secondly, there must be sufficient reason for
doing so and thirdly, the court may lay down the terms and 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 costs and the saving of time, especially the
time of the court in this era of congested court rolls and stretched
judicial resources. More importantly, the exercise of the discretion will
be conditioned by whether it is appropriate and suitable in the
circumstances to allow a deviation from the norm. That requires a
consideration of the following factors: the nature of the proceedings, the
2 [2022] ZAMPMBHC 23
nature of the evidence, whether the application for evidence to be
adduced by way of affidavit is by agreement, and ultimately, whether, in
all the circumstances, it is fair to allow evidence on affidavit.
And at paragraph 53:
“Plaintiffs in RAF matters often request the court to accept evidence
upon affidavit. Especially now where in most RAF matters there is no
appearance by the RAF or where the RAF has not participated in 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 sent 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.
8.5. The Plaintiff served all information and documentation on the
Defendant.
8.6. This is a quintessential example of a matter that can be disposed of by
way of affidavit to save time and costs.
3 Paragraph 61 of the judgment: “ In my view, the approach in RAF matters in circumstances set out above where there is no participation
by the RAF at all or only limited participation or there is no appearance when the trial is called for hearing, the approach to be adopted
should be on basis of what is set out by Froneman J Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd a nd
Others (CCT 39/10) [2010] ZACC 26; 2011 (4) SA 113 (CC) ; 2011 (3) BCLR 229 (CC)”
4 Paragraph 61 of the judgment: “ In my view, the approach of Froneman J applies to RAF actions where the circumstances set out in this
judgment apply. The court should be extremely astute and consider all the information before it which includes the pleadings, documents
that were discovered, all reports by the experts and all affidavits (if filed) before the trial commences to determine the wa y 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 ...”
8.7. The Plaintiff requested that the expert affidavits and the affidavits in
respect of the quantum evidence of the Plaintiff be admitted as
evidence.
8.8. 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.
8.9. The application in terms of Rule 38 (2) was granted by the court.
8.10. The court also granted the application to set aside the notice of
intention to defend, as it was considered to be an abuse of the court
process.
[9] THE MERITS:
9.1. The issue of liability is resolved as follows:
Accordingly, the Defendant is held liable for hundred percent (100%) of
the Plaintiff's proven or agreed damages. The Plaintiff was at all
material times a passenger in a motor vehicle with registration numbers
and letters FHX 442 NW . The Plaintiff’s version is contained in the
section 19 (f) affidavit. The names of the Plaintiff appear in the accident
report.
[10] QUANTUM:
10.1. 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 to be incurred by the Plaintiff in the future.
10.2. In quantifying its claim, the Plaintiff obtained medico-legal reports from
the following experts in support of her claim:
10.1.1. Dr J P Marin (Orthopaedic Surgeon);
10.1.2. Dr Schalk Van Heerden (Plastic and Reconstructive Surgeon);
10.1.3. Dr Jameel Desai (Maxillofacial and Oral Surgeon);
10.1.4. Dr Michael B Huth (Neurologist);
10.1.5. Dr Ian Erasmus (Dentist);
10.1.6. Dr Aloshna Naicker (Educational Psychologist);
10.1.7. Ms Shailendra R. Senzere (Occupational Therapist);
10.1.8. Ms Voula Samouris (Clinical Psychologist);
10.1.9. Ms Michelle Baig (Industrial Psychologist); and
10.1.10. Mr Johan Sauer (Actuary).
[11] The Defendant did not appoint any medico-legal reports.
[12] The Plaintiff’s reports are unchallenged , it was correctly submitted by the
Plaintiff’s counsel that they remain uncontested, and they should be admitted
as evidence in terms of Rule 38(2). An application in terms of the said rule
was granted.
Herewith follows a summary of the Plaintiff's claim based on the
aforementioned reports.
QUANTUM
[13] EXPERT MEDICO-LEGAL REPORTS:
There are ten (10) experts for the Plaintiff. No expert reports were filed by the
Defendant. Consequently, there are no joint minutes, as only the Plaintiff’s
expert opinions are on record.
[14] Past medical expenses
The Plaintiff attended a public hospital, hence there are no past expenses that
were incurred. The court was not referred any medical vouchers incurred.
[15] FUTURE TREATMENT AND ASSISTIVE DEVICES:
Future treatment and assistive devices have been indicated. This should be
covered from an undertaking to be awarded to the Plaintiff.
TREATMENT ENVISAGED IN THE FUTURE:
15.1. The Neurologist recommends conservative treatment. Total cost per
annum for comprehensive pharmacological and non -pharmacological
treatment of chronic post –Traumatic Headaches_Migrane Type
including treatment for sequela and complications that are in private
sector of RSA is R70 000 -00 (seventy thousand rand) per annum
conservatively. This includes pharmacological and non –
pharmacological treatment, doctor’s visits, and medication expenses
and is a comprehensive sum.
15.2. The Plaintiff will require non –pharmacological treatment options.
Education on lifestyle changes. Environmental stimulus control and
sleep hygiene. Stress management. Exercise. Acupuncture. Hydration.
Relaxation training. Biofeedback. Massage. Hot compress/cold
compress.
15.3. The Plaintiff will require pharmacologic treatment option.
15.4. According to the Orthopaedic Surgeon the Plaintiff will require
conservative with NSAIDS (NONSTEROIDAL ANTI -INFLAMMATORY
DRUGS) and ANALGESICS
15.5. The Plaintiff will require a treatment by a physiotherapist.
15.6. The Plaintiff will require a referral to the headache clinic, which will cost
approximately R50 000.00 (fifty thousand rand).
As a result, the Plaintiff is awarded future medical expenses in terms of
Section 17 of the Road Accident Fund Act. In the matter of Knoetze obo
Malinga and Another v Road Accident Fund (77573/2018; 54997/2020
[2022 ZAGPPHC 819; [2023] 1 All SA 708 (GP), the CEO of the Defendant
offered a blank undertaking for all proven future medical hospital and related
expenses in all cases before the court where such are proven and therefore it
is held that the Plaintiff is entitled to such an undertaking.
[16] The expert opinions.
(a) Dr JP Marin (Orthopaedic Surgeon)
THE INJURIES SUSTAINED BY THE PLAINTIFF:
According to the expert the Plaintiff sustained soft tissue injury to
the head and face, including a loose teeth, chewing difficulties ,
dizziness, loss of balance and long-term memory loss.
The Plaintiff had no prior history of injuries, operations, pain and or
neurological problems.
Post accident, she has symptoms that include daily headaches, jaw
pain, loose teeth, forgetfulness and difficulty concentrating.
The chronic headaches , reduced concentration and fatigue may
limit her ability to perform in high pressure clinical environments.
(b) Dr Jameel Desai Maxillofacial and Oral Surgeon:
She was diagnosed with a soft tissue injury of the upper lip.
She complains of frequent headaches.
(c) Dr Michael B Huth Neurologist:
The Plaintiff sustained a head injury and left facial nerve palsy, lost
consciousness and woke up at the hospital the same day.
Symptoms of headache, cognitive and behavioural disturbances began
five (5) days after the accident.
She complains of post traumatic behavioural disturbances, post
cognitive disturbance and memory loss.
She sustained a mild head injury and it has caused chronic symptoms
and impairment.
(d) Dr Ian Erasmus Dentist:
The Plaintiff will not suffer any loss of earnings or earning capacity due
to injuries sustained in the accident, from a dental perspective.
(e) Dr Aloshna Naicker Educational Psychologist:
Her mother has a matric and an N4 in business Management and her
father’s history is unknown.
Pre-accident, her language development and medical history were
normal, with no significant illness or head trauma.
Pre- accident she passed all her grades with strength in Mathematics
and English.
Post–accident her performance declined with weaknesses in
Mathematics and Physics.
The expert concluded that Pr e-accident without the accident, she likely
would have achieved a stronger matric pass and pursued a career in
Medicine.
She is currently studying a Nursing degree at WITS University but
struggles with course material. It is unlikely she will be able to switch to
Medicine due to cognitive challenges.
The expert further compiled an addendum report.
Pre-accident, the Plaintiff was a healthy, high achieving student with
strong intellectual abilities. She is likely to have pursued a career in
Medicine without the accident.
Post-accident, she has excelled in her Nursing studies but struggles
with memory, attention and emotional regulation due to the accident
related sequelae.
(f) Occupational Therapist:
In her report opines that:
Pre-accident, the Plaintiff progressed through school without repeating
grades, thus completing grade 12 in 2021.
Post accident, she is currently in her third (3 rd) year of Nursing
program. Academic performance has been impacted by attention,
memory, anxiety, depression and verbal reasoning deficits.
In her addendum report opines that the Plaintiff’s academic trajectory
has been disrupted, requiring increased effort and support to maintain
performance. Her educational capacity is below her pre -accident
potential.
(g) Clinical Psychologist:
The Plaintiff shows signs of challenges in her immediate memory and
verbal learning.
Chronic pain and restricted movement may hinder her ability to perform
labour intensive ta sk, making her an unfair competitor in the labour
market.
Pain and memory issues may affect her ability to focus, learn and
complete her Nursing degree within the standard timeframe.
The accident has caused significant physical , emotional, and cognitive
challenges, affecting the Plaintiff’s ability to study, work and socialize.
(h) Ms Michelle Baig Industrial Psychologist
(i) PRE-MORBID ASPIRATIONS:
Prior to the accident, the Plaintiff aspired to be a doctor and
complete a degree in Medicine.
Post-accident, she aspires to become a Nurse and specialize in
Paediatrics.
The Educational Psychologist opined that Plaintiff could have
pursued a career as a doctor and risen to a specialist level in the
health sector.
The Plaintiff’s future earnings have been significantly compromised
due to the accident sequelae.
Her career prospects and occupational functioning have been
curtailed to a moderate to significant degree.
She has been rendered a vulnerable employee in the open labour
market.
In the addendum report two scenarios are postulated:
Scenario 1 : the Plaintiff may pursue a Masters and Doctorate in
Nursing Science, optimizing career prospects in research, clinical work
or academia.
Scenario 2 : Plaintiff may gain entry into Medicine via the Graduate
Entry Medical Programme (GEMP) and pursue a career as a medical
doctor, though with significant challenges due to the accident-related
impairments
(ii) CONTINGENCIES:
In assessing the value of the income allowance may be made for the
various contingencies of life that occur such as sickness and
unemployment. For the reason stated above, the industrial
psychologist recommends a higher than normal post -accident
contingency adjustment.
For illustrative purposes he deducted 20 % from the accrued value h ad
the accident not occurred, 30 % from the prospective valu e had the
accident not occurred.
It is the court’s view that under the circumstan ces of this particular
case, a 1 0% spread between pre - and post -morbid contingencies on
future earnings is reasonable.
(iii) THE CALCULATION:
(a) Limitation of Compensation (CAP):
- The expert confirms that the CAP is applicable on these
calculations. Thus, the loss of income does exceed the
Statutory Limit during every year and the appropriate
adjustment is set out in actuary’s report.
(b) SUMMARY OF LOSS:
- Loss of income Maximum Compensation
Scenario 1: R 12 862 142 R 11 577 373
Scenario 2: R 12 320 999 R 11 036 229
Scenario 3: R 4 652 165 R 4 078 848
Scenario 4: R 4 621 897 R 4 048 579
As can be seen from the above, it does make a difference whether the
loss is calculated on scenario 1, 2, 3 and 4 as the limi ted amount will
be different.
The actuary made several postulations with respect to the loss of
earnings as a result of the injuries sustained by the Plaintiff.
The average between the four (4) scenarios is appropriate under the
circumstances.
I cannot disregard the other over another scenario.
All the scenarios are probable and are supported by evidence before
the court.
It correctly argued by the Plaintiff’s counsel Mr Nel, under the
circumstances the average of all the scenarios should be considered.
For this reason, I am satisfied that the Plaintiff suffered a loss of
earnings in the amount of R 7 685 257.25 (seven million six hundred
and eight five thousand two hundred and fifty-seven rand and twenty
five cents).
[17] LAW
17.1. LOSS OF EARNINGS
It is accepted that earning capacity may constitute an asset in a
person's patrimonial estate. If loss of earnings is proven the loss may
be compensated if it is quantifiable as a diminution in the value of the
estate. It must be noted, a physical 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 actual loss of
income.
17.2. 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.
17.3. The learned author Dr R.J. Koch in The Quantum of Damages Year
Book states at page 118 that the usual contingencies which the Road
Accident Fund accepts is 5% (five percent) on the past income and
15% (fifteen percent) on the future income. The aforesaid is only a
guideline, but it indicates the general approach adopted by the
Defendant in 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:”
17.4. 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...”.
17.5. The percentage of the contingency deduction depends upon a number
of factors and ranges between 5% (five percent) and 50% (fifty
percent), depending upon the facts of the case.
17.6. 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 estimate of an amount which
seems to him to be fair and reasonable. That is entirely a matter of
guesswork, a blind plunge into the unknown.
The other is to try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the evidence. The
validity of this approach depends of course upon the soundness of the
assumptions, and these may vary from the strongly probable to the
speculative.
It is manifest that either approach involves guesswork to a greater or
lesser extent. But the Court cannot for this reason adopt a non
possumus attitude and make no award.”
17.7. 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.
[18] APPLICATION OF LAW TO FACTS
18.1. 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.
18.2. The Plaintiff’s case remains undisputed and remains unchallenged. The
Defendant has not appointed a single expert to challeng e and or
contradict the Plaintiff’s expert witnesses. There is also no evidence
before me that prior to the collision the Plaintiff had any cognitive, neuro-
cognitive and orthopaedic problems.
18.3. In so far as the injuries are concerned, it has not been disputed that the
Plaintiff sustained a left facial nerve palsy, head injury (mild) and or
injury which was consequent to the motor collision. It remains
undisputed that the Plaintiff’s chronic post traumatic headaches
(migraine type) problems arising fro m the accident have caused the
patient impairment and disability.
18.4. The occupational therapist opines that the Plaintiff’s employment has
been adversely affected and as result curtailed . Her injuries make h er
an unfair competitor in the open labour market. The claimant is capable
of performing light work. However , due to her chronic headaches,
which developed following the accident, she will require reasonable
accommodations in the workplace to manage her symptoms. These
headaches are not only physically debilitating but also affect her
cognitive functions, such as concentration and focus, which are
essential in her role as a Nursing student and future Nurse.
18.5. The occupational therapist opines that the Plaintiff’s chronic condition
creates a significant vocational prejudice, limiting her ability to perform
at her full potential in a demanding and time sensitive profession like
Nursing. The unpredictability of her headaches , coupled with the
physical and mental fatigue they cause, may lead to frequent breaks,
reduced productivity, and difficulty meeting the demands of the
profession, particularly in high stress environment like hospitals.
18.6. The occupational therapist opines that without formal accommodations,
such as flexible work hours, reduced exposure to stressful situations,
or a supportive work environment, the claimant’s chronic condition may
further hinder her career progression, placing her at a disadvantage
compared to peers without such impairments . The accident has ,
therefore, introduced barriers to her full participation in her chosen
profession, affecting not only her current academic performance but
also her future vocational opportunities.
18.7. The industrial psychologist’s uncontested postulations regarding the pre
and post morbid future loss of earnings prior to and but for the accident
is the only evidence that is before me which I must accept.
18.8. I accept that the Plaintiff would require an understanding employer
who will be willing to accommodate h er cognitive limitation
should she secure work in future. Her 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 earning potential
and her post-accident earning potential.
18.9. I am mindful that the Plaintiff will be an unequal competitor at the open
labour market compared with her healthier peers and that she will not
be able to perform functions efficiently an d effectively 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.
18.10 I find that the Plaintiff’s expert witnesses remain the only evidence
before me. The submissions ma de by industrial psychologist are clear,
reasonable and persuasive. I therefore find that the evidence before me
is credible and I accept it as reliable and plausible.
[19] Plaintiff’s counsel submitted that contingencies are to be applied as the
actuarial calculations since the Road Accident Fund Amendment Act 19 of
2005 cap does have an impact on this case. In this regard counsel argues the
contingency deductions of 20% on uninjured earnings and 30% on uninjured
future earnings should be applied. I agree with the contingencies applied in the
past loss of earnings.
I hold a same view with respect to the contingencies as applied by the actuary
(addendum report) and submitted by the Plaintiff’s counsel.
COSTS:
[20] 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 she has incurred to initiate or defend litigation. These
principles were also confirmed in Zeelie v General Accident Insurance Co
Ltd6. 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.
[21] 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 an d/or
required to be canvassed”
[22] Pursuant to the recent amendment of Rule 69 and 70 (effective 12 April 2024)
in terms of which Rule 67A was also introduced, it is incumbent upon a Court
to make a ruling on the applicability of the new scales introduced for the
employment of counsel. The scales listed in the amended Rule are Scales A,
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)
B and C. These scales govern the recoverability by the Plaintiff of counsels'
costs on taxation.
[23] 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…"
[24] 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:
24.1. 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 her compensation to
sustain herself especially in the later years of her life. From her point of view
the amount concerned is considerable.
24.2. 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 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 her life; who has a
permanent loss of her earning capacity; who has therefore lost the ability to
properly earn a living. The matter has obvious importance to the Plaintiff in
that her 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.
24.3. 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 occupation; an Industrial
psychologist regarding employment prospects; and the Actuary
regarding the calculation of the loss of earnings/earning capacity. There
are ten (10) experts which the plaintiff has appointed in order to quantify
this matter.
- The reporting of all the experts is not in plain layman's language, but in
more complex and specific language and terms used in the respective
expert disciplines. A proper understanding of the reporting requires
special and specific knowledge by the legal practitioners.
10 20147/2021) Gauteng Division, Pretoria (23 April 2024)
- the matter involves preparation in regard to several different expert
disciplines and expert witness reports; the drafting of heads of argument
on the issue of the loss of earning capacity; and the research of the c ase
law regarding awards of special damages (loss of earnings , past and
future).
[25] It is therefore held by the Court 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.
[26] The specific circumstances and the various factors attendant in this matter,
rendered it wise and reasonable for the Plaintiff to have briefed a senior –
Junior Counsel and or 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 administer, 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
11 it was certainly a wise and reasonable precaution to employ the services of two counsel (compare Newman v Prinsloo and Anothe r 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).
investigation of claims and, where litigation is responsibly contestable, the
adoption of reasonable and timeous steps in advancing its defence. These
are not exacting requirements. They must be observed'." 12
[27] It was the Defendant that obliged the Plaintiff to approach this Honourable
Court for relief.
[28] It should be borne in mind that by awarding counsels' costs on scales A or B
the Honourable Court will effectively be penalizing the Plaintiff. Counsel are
entitled to make and recover reasonable fees for their work done ( Algemene
Balieraad van Suid -Afrika v Burger en 'n Ander 13LPC Code of Conduct
15.1 and 23.1). That is not affected by the particular scale under Rule 67 A.
Rule 67 A merely restricts the ability of the Plaintiff to recover more than the
specified amounts on scales A, B or C, respectively, from the unsuccessful
Defendant. The balance of counsels' fees unfortunately have to be paid by the
successful Plaintiff out of the capital awarded. This impinges on the trite
principle set out in paragraph 3 above.
a. In the premises, it is held by the Court that Plaintiff is entitled to an order
that the fees consequent upon the employment of a senior counsel are
allowed; and for a direction that such fees are granted on scale C.
b. Since the advent of the Covid pandemic and the consequential change
that it had on the normal Court and trial procedures, the Court has place d
more and more emphasis on comprehensive heads of argument to be
12 (Madzunye and Another v Road Accident Fund 2007 (1) SA 165 (SCA) par [17) at 171).
13 1993 (4) SA 510 (T);
filed by the representatives of litigants to assist the Court. Presiding
judges rel y more and more upon the written submissions of counsel to
assist them rather than entertaining hours of oral argument.
c. In this sense the normal practise for presenting argument in the High
Court has become more similar with the practice in the Constitutional
Court. In this the court with approval in Society of Advocates of
KwaZulu - Natal v Lev matter supra held as follows:
“ii) In President of the Republic of South Africa & Others v Gauteng Lions Rugby Union &
Another [41] Kriegler J drew a distinction between the practice in the Constitutional
Court and the SCA in respect of the heads of argument and the associated
appearance of counsel at the hearing. He pointed out that ‘in the SCA the emphasis is
on the oral presentation of argument by counsel in open court with heads of argument
serving largely as a 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 the argument to be presented, but the argument itself
together with all the supporting material.’
And further that ‘In an appropriate case, therefore, it may be reasonable to make
some special allowance for counsel’s fees for preparing written argument for this
court. This is expressly contemplated by sub rule (2) of the CC Rule 21.’
iii) There is no reason why a similar consideration should not apply to the assessment of
counsel’s fees in this matter.
iv) I have perused the relevant heads of argument and having considered the
submissions of Ms Annandale on the general and 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 per 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 computation of fees on a time spent basis, which will provide fair
and reasonable remuneration for the service rendered.”
[29] It has further become an acceptable practice that Counsel be allowed to ask
for th e drafting of his Heads of Argument premised upon the actual time
(although must be reasonable) spent.
[30] 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’.”
[31] In the premises it is held that any order as to cost s should include Counsel’s
time spent for drafting Heads of Argument as well.
[32] CONCLUSION:
In the premises I make the following order:
1. The application to set aside the notice to defend is granted.
2. The application in terms of Rule 38(2) is granted.
3. The Defendant is liable hundred percent (100%) in respect of the Plaintiff’s
agreed and or proven damages;
4. Future hospital and medical expenses: Section 17(4)(a) Undertaking;
5. General damages Postponed sine die;
6. Loss of earnings R 7 685 257.25
7. Costs of counsel on scale C
Total R 7 685 257.25 (seven
million six hundred and
eight five thousand two
hundred and fifty seven
rand and twenty five cents).
_________________
J. ZITHA AJ
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 03rd February 2026
Judgment delivered: 06th May 2026
APPEARANCES:
For the Plaintiff: Adv Piet Nell
Attorney for the Plaintiff: Corne Nell Incorporated
For the Defendant: None
Attorney for the Defendant: None