1
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
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable / Reportable
Case no: 5982/2022
In the matter between
MALIA SUZAN MOTEKOANE PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Motekoane v Road Accident Fund (5982/2022) [2025] ZAFSHC
2 (7 January 2026)
Coram: BOKWA AJ
Heard: 14 October 2025
Delivered: This judgment was handed down electronically by circulation
to the parties' representatives by email and released to SAFLII. The date and
time for hand-down is deemed to be 09h00 on 7 January 2026.
Summary: Road Accident Fund 56 of 1996 - loss of earnings - proof of
income - uncontested expert evidence - contingency deductions - rule 38(2)
affidavits.
ORDER
1 The defendant accepts liability to pay 80 percent (eighty percent) of the
plaintiffs agreed or proven damages.
2 The defendant shall furnish to the plaintiff an undertaking in terms of s
17(4)(a) of the Road Accident Fund Act 56 of 1996, limited to 80 percent in terms
2
of which the defendant undertakes to pay the costs of future accommodation of
the plaintiff in a hospital or nursing home or treatment of or rendering of a service or
supplying of goods to him/her, pursuant to injuries sustained by him/her in a motor
vehicle collision which occurred on 1 of May 2019, after the costs have been
incurred and upon proof thereof. The said certificate to be served on plaintiff's
attorneys no later than 26 January 2026.
3 The plaintiffs claim in respect of general damages is postponed to the pre-
trial roll of 2 March 2026 and referred to the HPCSA for a serious injury
assessment.
4 The defendant shall pay to the plaintiff the sum (capital amount) of
R775 877.60 (seven hundred and seventy-five thousand eight hundred and
seventy-seven rand and sixty cent), after apportionment, as total for past and
future loss of income, general damages on or before 14 (fourteen) days from
date of this order.
5 The capital amount R775 877.60 is calculated as R969 847.00 less 20
percent apportionment.
6 The defendant will not be liable for interest on the capital amount should
same be paid before or on the expiry of the 180 days from date of judgment as
per the preceding paragraphs, failing which the defendant will be liable for interest
calculated from 14 days from date of court order.
7 The defendant pays the plaintiffs taxed or agreed party and party costs on
the High Court scale up to the date hereof, which costs will inter alia include:
(a) Costs incurred in preparation for and presentation of plaintiffs rule 38(2)
application as granted on date 14 October 2025 as well as the costs of drawing
and obtaining the associated expert affidavits.
(b) The reasonable cost of the medico legal reports, RAF 4 assessment reports
and the reasonable preparation and reservation fees (if any), addendum reports
and the affidavits of the experts whom plaintiff gave notice of including the fees
charged by the experts for purposes preparing and deposing to their affidavits in
charged by the experts for purposes preparing and deposing to their affidavits in
terms of the rule 38(2) application of the experts as well as the actuarial reports.
(c) The costs of counsel for the trial, which cost will include attendance of pre-
trial conference and drafting of minutes (other than that by the plaintiffs attorney,
if any), costs of drafting of Heads of argument (if applicable) and a settlement fee
to hand up the draft order on the settlement roll. The cost for counsel as from 12
3
April 2024 will be taxes on scale B.
(d) The reasonable travel expenses of the plaintiff in accordance with the AA
tariff for attendance and accommodation of the medico legal examinations and
attendance at court.
(e) The reasonable costs of instructing attorney and correspondent attorney at
the seat of court, which will include the costs for preparation for and attending the
hearing date as set down for the 14 th of and 15 th of October 2025 by the
instructing correspondent and accompanying travel time, travel expenses and
accommodation costs;
(f) The costs occasioned by the plaintiff attorney's preparation of trial bundles;
and
(g) The reasonable costs incurred to obtain payment of the capital as well as
taxed costs ands 17(4)(a) undertaking.
(h) Taxation or settlement of bills of cost will additionally be subject to the
following general conditions:
(i) The plaintiff shall, in the event that costs are not agreed, serve the notice
of taxation on the defendant's attorneys of record; and
(j) The plaintiff shall allow the defendant 14 (fourteen) court days to
make payment of the taxed costs from date of stamped allocator and/or settlement.
(k) The defendant will not be liable for interest on the party and party costs
except if not paid on or before the said agreed date in which case the defendant
will be liable for interest calculated from date of stamped allocated and/or
settlement.
(I) The interest rate on the outstanding monies due to the plaintiff will be
calculated as prescribed in s 1 of the Prescribed Rate of Interest Act 55 of 1975,
as amended by the Judicial Matters Amendment Act 24 of 2015, which act
was promulgated on 15 December 2015.
8 Payment of the capital amount and taxed costs shall be made into the
following bank account:
Account holder: Brandt & Lambrechts Attorneys
Bank: Standard Bank
Branch: Klerksdorp
4
Account Number 0[…]
Branch: 052 038.
JUDGMENT
Bokwa AJ
Introduction
[1] The plaintiff, Maelia Suzan Motekoane, an adult female currently residing
at 1[ …] R[…] Viljoenskroon, Free State Province instituted action against the
Road Accident Fund (RAF) arising out of a motor vehicle accident which occurred
on 1 May 2019. The plaintiff was struck down by a motor vehicle near house no
4[…] l[…] L[…] , R[… ] Viljoenskroon. The merits of the matter have been settled at
80 percent in favour of the plaintiff. The RAF 4 form has been rejected and the claim
for general damages has been set down for pre-trial on 2 March 2026. The claim
for future medical expenses and undertaking in terms of s 17(4)(a) of the Road
Accident Fund Act 56 of 1996, has been provided to the plaintiff.
Facts
[2] The only issue for this Court to adjudicate on, was the plaintiff's future loss
of earnings. At the hearing of the matter on 14 October 2025 counsel on behalf
of the plaintiff submitted a notice in terms of rule 38(2) of the Uniform Rules of
Court that the plaintiff be granted leave to present her evidence in respect of
quantum, read together with s 3(1)(c) of the Law of Evidence Amendment Act 45
of 1988. The court agreed and admitted the affidavit of the plaintiff's experts
pertaining to the issue of quantum and specifically the evidence of the following
experts:
(a) Dr Human Smeer Wentzel (General Practitioner);
(b) Or Lodewikus Andries Oelofse (Orthopedic Surgeon);
(c) Cindy-Lee du Randt (Occupational Therapist);
{d) Amanda Cornelia Rautenbach (Industrial Psychologist); and
(e) Johan Potgieter (Actuary).
5
[3] Dr Human Smeer Wentzel, examined the plaintiff for the purpose of
completing an RAF 4 (serious injury assessment report) on 25 April 2022. From
a general practitioner's perspective his evidence was that the plaintiff's presented
with a total whole person impairment rating equal to 17 percent and accordingly
she was entitled to claim in terms of regulation 3(1)(b)(iii)(aa). Further to that, as
far as the narrative test is concerned he indicated that the plaintiffs injuries were
indeed of such severity that it resulted in serious long-term impairment.
[4] Dr Lodewikus Andries Oelofse, consulted with the plaintiff on 29 June
2023. He formulated his medico legal opinion on 29 June 2023 and confirmed that
according to his observation as an orthopedic surgeon, and insofar as the narrative
is concerned the plaintiffs injuries were indeed serious.
[5] Ms Cindy-Lee du Randt, the occupational therapist, consulted with the
plaintiff on 13 June 2023. According to her opinion, the plaintiffs injuries and the
consequences thereof would affect her occupational performance as well as her
activities of living for the rest of her life. This opinion was formulated in a medico
legal report compiled on 14 October 2023.
[6] Ms Amanda Cornelia Rautenbach, the industrial psychologist, also
compiled a report after assessing the plaintiffs probable loss of earnings. She
took a wholistic approach to the plaintiffs probable pre -morbid career
progression and associated income, the plaintiff's career history, physical
abilities, personality, cognitive abilities, interpersonal relationships as well as
other psychological and behavioral factors. Her report also stated that the plaintiff
was left with a residual earning capacity and sustainability or feasibility thereof,
elaborated on having regards to the realities of both the plaintiffs post -morbid
circumstances and the South-African labour market.
[7] According to the industrial psychologist report together with the notes of
[7] According to the industrial psychologist report together with the notes of
the occupational therapist, the plaintiff does not present with a positive outcome
related to her future earning capacity. The plaintiff experiences chronic pain and
disfunction and her physical scope of employment has as a result, been reduced
from being capable of at least light work with significant mobility and agility
6
requirements, to work of sedentary nature with limited mobility and agility
requirements. The plaintiff had achieved grade 7 as her highest educational
qualification. She is dependent on her physical abilities and her loss of work
capacity will result in loss of productivity. Of significance, she postulates that the
plaintiff's career will not remain the same as in the uninjured scenario and was
rendered functionally unemployable in the open labour market and a higher pre-
accident contingency could be applied if deemed reasonable by the Court. Simply
put, the plaintiff lost her physical abilities to earn an income and simply does not
have the qualifications to obtain and sustain sedentary work.
[8] Mr Johan Potgieter is practicing as a consulting actuary at GRS Actuarial
Consulting. He prepared a report on 2 June 2025 after reading the
recommendations of the report of the industrial psychologist, Ms M Rautenbach
dated 12 February 2024. Based on the industrial psychologist report, the actuaries
calculated the plaintiffs past loss of income in the amount of R256 000.00 (two
hundred and fifty-six thousand rand) and future loss of income in the amount of
R713 847.00 (seven hundred and thirteen thousand eight hundred and forty-
seven rand), giving her a total loss of income in the amount of R969 847.00 (nine
hundred and sixty -nine thous and ei ght hundred and forty -seven rand). The
calculation of the plaintiff's future loss of earnings was based squarely on the
national minimum wage calculation to the age of retirement being 65.
[9] In oral submissions and written heads, counsel for the defendant asked the
Court not to consider the evidence of the plaintiff regarding her pre- morbid earnings
because she did not supply reliable evidence to the occupational therapist and
industrial psychologist of collateral documents in support of her earnings.
Regarding the post -morbid earnings, counsel for the defendant also submitted that
Regarding the post -morbid earnings, counsel for the defendant also submitted that
plaintiff's evidence was inconclusive and unreliable.
The law
[10] In Makhubu v Road Accident Fund, 1 Pienaar AJ quoted with approval
the unreported matter of Boy Petrus Modise and Passenger Rail Agency of South
1 Makhubu v Road Accident Fund (2023] ZAGPPHC 283 para 32.
7
Africa. On appeal against the dismissal of a claim for damages for loss of
earnings and damages for future loss of earnings, Wright J with Carelse J
concurring, held:
'This is an unfortunate case. One suspects that the plaintiff did suffer a
past loss of earnings and will suffer future loss of earnings. However, I may
not allow a suspicion, nor my sympathy for the plaintiff, to translate into a
basis for awarding damages where the evidence does not allow this. The
variables in the equation are simply to many.'
[11] Further to this, counsel for the defendant cited the matter of Road
Accident Fund v Madikane, 2 in support of its argument that in that case, the
Court held the appeal must succeed because there was no admissible factual
evidence to support the conclusions that Mr Madikane's medical witnesses drew.
Their opinions lacked the requisite factual foundation that our courts have
consistently demanded should be the basis for the expression of opinions by an
expert.
[12] In its heads of arguments, counsel for the defendant submitted further in
oral arguments as follows:
'2.11 In a trial action it is fundamental that the position of an expert must
be based on facts that are established by the evidence and the court
assesses the opinion of experts on the basis of "whether and to what
extent their opinions advanced are founded on logical reasoning". It is for
the court and not the witness to determine whether the judicial standard of
proof has been met.'3
2.12 The court must first consider whether the underlying facts relied on
by the witness have been established on a prima facie basis. If not, then
2 Road Accident Fund v Madikane [2019) ZASCA 103 para 42.
3 MV Pasquale Della Gatta; MV Filipppo Lembo; Imperial Marine Co. v Deiulemar Compagnia di
Navigasione Spa [2011) ZACSA 131; 2012 (1) SA 58; (2012) 1 All SA 491 (SCA) paras 25-26. See also Micheal
& Another v Linksfield Park Clinic (Ply) Ltd & Another [2001) ZASCA 12; [2002] 1 All SA 384 (A); 2001 (3) SA
1188 (SCA) paras 34-40.
8
the expert's opinion is worthless because it is purely hypothetical, based on
facts that cannot be demonstrated even on a prima facie basis. It can be
disregarded. If the relevant facts are established no a prima facie basis,
then the court must decide whether the expert's view is one that can
reasonably be held on the basis of those facts. In other words, it examines
the reasoning of the expert and determines whether it is logical in the light of
those facts and any others that are undisputed or cannot be disputed. If it
concludes that the opinion is one that can reasonably be held on the basis
of the facts and the chain of reasoning of the expert the threshold will be
satisfied.
2.13 In the case of Bee v Road Accident Fund,4 the court stated that:
"It is trite that an expert witness is required to assist the court and not to
usurp the function of the court. Expert witnesses are required to lay a
factual basis for their conclusions and explain their reasoning to the court."
In Road Accident Appeal Tribunal & Others v Gouws & Another, the Supreme
Court of Appeal said "courts are not bound by the view of any expert. They
make the ultimate decision on issues on which experts provide an opinion."
The court must satisfy itself to the correctness of the expert's reasoning the
facts on which the expert witness expresses an opinion must be capable of
being reconciled with all other evidence in the case. For an opinion to be
underpinned by proper reasoning, it must be based on correct facts Incorrect
facts militates against proper reasoning and the correct analysis of the facts in
paramount for proper reasoning, failing which the court will not be able to
properly assess the cogency of that opinion. An expert opinion which lacks
proper reasoning is not helpful to the court.'
[13] In the matter of Lorenzo Bevan Nelson v Road Accident Fund, 5 Naidoo
J, quoted with approval the judgment of Rudman v Road Accident Fund:
J, quoted with approval the judgment of Rudman v Road Accident Fund:
'Indeed, a physical disability which impacts on the capacity to earn an income
4 Bee v Road Accident Fund [2018) ZASCZ 52; 2018 (4) SA 366 (SCA) para 22.
5 Lorenzo Bevan Nelson v Road Accident Fund [2023] ZAFSHC 147 para 18.
9
does not, on its own, reduce the patrimony of an injured person. There must be
proof that the reduction in the income earning capacity will result in actual loss
of income... Put differently, there must be proof that the disability gave rise to
patrimonial loss.'
[14] Counsel for the plaintiff submitted in his oral and written heads that
the plaintiff's evidence as it appears from all expert reports, stated categorically
that she did not have any proof of her pre- accident earnings. She also testified to
this aspect that she was paid always in cash. This evidence was not disputed
during the trial. In the circumstances counsel for plaintiff submitted that her
testimony should stand because it was not contested. In support of this argument in
this regard, counsel submitted that this Court must have regard to the judgment of
Loubser J, (a judgment of this division), in the matter of Masimola v RAF6 where it
was held as follows:
In the present matter, the court has the benefit of an actuarial calculation presented
by the plaintiff. The actuary calculated the past loss of earnings to be R370 791.00
and the future loss of earnings to be R2 465 491.00. This amounts to a total loss of
earnings in the sum of R2 836 282.00. In calculating these figures, the actuary used
the alleged R46 000.00 profit
Draft Order, attached hereto should be granted.'
[16] In conclusion, I agree with the submission made by counsel for the plaintiff
that it would be incorrect to argue that the plaintiff could not prove her pre- accident
income as she could not produce any pay slips or any other confirmatory evidence
thereof. I do agree with the submission by counsel that her testimony in this regard
stood uncontested, and as such, this Court has to accept same. Further to this,
having studied the judgment of Loubser J in this regard in the Masimo la matter
which is quoted herein above, it is clear in my mind that the judgment of the court is
which is quoted herein above, it is clear in my mind that the judgment of the court is
correct and on point. I am persuaded that the legal principal extrapolated in that
judgment is relevant to the facts of this case.
6 Masimola v Road Accident Fund [2023] ZAFSHC 447 at paras 9 and 10.
10
[17] A draft order was prepared for me dated 05 November 2025 after the parties
prepared comprehensive heads of argument at request of the Court. I incorpor ate
that order as part of the judgment of the Court and as such the following order is
made:
4 The defendant accepts liability to pay 80 percent (eighty percent)
of the plaintiffs agreed or proven damages.
5 The defendant shall furnish to the plaintiff an undertaking in terms of s
17(4)(a) of the Road Accident Fund Act 56 of 1996, limited to 80 percent in
terms of which the defendant undertakes to pay the costs of future
accommodation of the plaintiff in a hospital or nursing home or treatment of
or rendering of a service or supplying of goods to him/her, pursuant to injuries
sustained by him/her in a motor vehicle collision which occurred on 1 of May
2019, after the costs have been incurred and upon proof thereof. The said
certificate to be served on plaintiffs attorneys no later than 26 January 2026.
6 The plaintiffs claim in respect of general damages is postponed to
the pre-trial roll of 2 March 2026 and referred to the HPCSA for a serious
injury assessment.
4 The defendant shall pay to the plaintiff the sum (capital
amount) of R775 877.60 (seven hundred and seventy-five thousand eight
hundred and seventy-seven rand and sixty cent), after apportionment, as
total for past and future loss of income, general damages on or before 14
(fourteen) days from date of this order.
5 The capital amount R775 877.60 is calculated as R969 847.00 less
20 percent apportionment.
9 The defendant will not be liable for interest on the capital amount
should same be paid before or on the expiry of the 180 days from date of
judgment as per the preceding paragraphs, failing which the defendant will
11
be liable for interest calculated from 14 days from date of court order.
10 The defendant pays the plaintiff's taxed or agreed party and party
costs on the High Court scale up to the date hereof, which costs will inter
alia include:
(a) Costs incurred in preparation for and presentation of plaintiffs rule
38(2) application as granted on date 14 October 2025 as well as the costs
of drawing and obtaining the associated expert affidavits.
(b) The reasonable cost of the medico legal reports, RAF 4 assessment
reports and the reasonable preparation and reservation fees (if any),
addendum reports and the affidavits of the experts whom plaintiff gave
notice of including the fees charged by the experts for purposes preparing
and deposing to their affidavits in terms of the rule 38(2) application of the
experts as well as the actuarial reports.
(c) The costs of counsel for the trial, which cost will include attendance
of pre-trial conference and drafting of minutes (other than that by the
plaintiff's attorney, if any}, costs of drafting of Heads of argument (if
applicable) and a settlement fee to hand up the draft order on the
settlement roll. The cost for counsel as from 12 April 2024 will be taxes on
scale 8.
(d) The reasonable travel expenses of the plaintiff in accordance with
the AA tariff
for attendance and accommodation of the medico legal examinations and
attendance at court.
(e) The reasonable costs of instructing attorney and correspondent
attorney at the seat of court, which will include the costs for preparation for
and attending the hearing date as set down for the 14 th of and 15 th of
October 2025 by the instructing correspondent and accompanying travel
time, travel expenses and accommodation costs;
(f) The costs occasioned by the plaintiff attorney's preparation of trial
bundles; and
(g) The reasonable costs incurred to obtain payment of the capital as well
12
as taxed costs ands 17(4)(a) undertaking.
(i) Taxation or settlement of bills of cost will additionally be subject to
the following general conditions:
(i) The plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the defendant's attorneys of record; and
(j) The plaintiff shall allow the defendant 14 (fourteen) court days to
make payment of the taxed costs from date of stamped allocator and/or
settlement.
(k) The defendant will not be liable for interest on the party and party
costs except if not paid on or before the said agreed date in which case the
defendant will be liable for interest calculated from date of stamped
allocated and/or settlement.
(m) The interest rate on the outstanding monies due to the plaintiff will be
calculated as prescribed in s 1 of the Prescribed Rate of Interest Act 55 of
1975, as amended by the Judicial Matters Amendment Act 24 of 2015,
which act was promulgated on 15 December 2015.
11 Payment of the capital amount and taxed costs shall be made into
the following bank account:
Account holder: Brandt & Lambrechts Attorneys
Bank: Standard Bank
Branch: Klerksdorp
Account Number 0[…]
Branch: 052 038.
I R O BOKWA
ACTING JUDGE OF THE HIGH COURT
Appearances
For the plaintiff: H E De La Rey SC
Instructed by: Brandt & Lambrechts Attorneys,
Klerksdorp
c/o Horn & Van Rensburg Attorneys,
13
Bloemfontein
For the defendant: SL Moodley
Instructed by: State Attorney,
Bloemfontein.