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
Case no: 1532/2018
In the matter between:
ADV MC LOUW NO BJ J[…] PLAINTIFF
And
ROAD ACCIDENT FUND RESPONDENT
Neutral citation: Adv Louw NO obo J[…] v Road Accident Fund ( 1532/2018) [202 6]
ZAFSHC 268 (29 April 2026)
Coram: MOLITSOANE J
Heard: 19 September 2025
Delivered: 29 April 2026.
Summary: Loss of future earning capacity – principles restated.
ORDER
2
1.1 The defendant shall pay the plaintiff's attorneys the sum of R3 839 809.00 (Three
Million, Eight Hundred and thirty -Nine Thousand, Eight Hundred and Nine rand and
Zero Cents) in respect of the future loss of income made up as follows:
Future Loss of Income: R6 339 809.00
Less interim payment: R2 500 000.00
Award due: R3 839 809.00
1.2 Plaintiff’s attorneys trust account, details are as follows:
ACCOUNT HOLDER: VZLR INC
BRANCH: ABSA BUSINESS BANK HILLCREST
BRANCH CODE: 632005
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 3[…]
REFERENCE: MAT110156
1.3 Interest shall accrue on such outstanding amount at 10.25% as per the Prescribe
Rate of Interest Act 55 of 1975, as amended per annum calculated from due date, as
per the Road Accident Fund Act 56 of 1996, until the date of payment.
2 The defendant is ordered to furnish the t rustee appointed in respect of B […]
J[…] J[…] (the minor / plaintiff) an u ndertaking in terms of s 17(4)(a) of the Road
Accident Fund Act, for the costs of the future accommodation of the minor p laintiff in a
hospital or nursing home or the treatment of or the rendering of a service or the
supplying of goods (of a medical and non -medical nature) to the minor p laintiff arising
3
out of injuries sustained by him in a motor vehicle collision on 9 August 2017, in terms
of which undertaking the defendant will be obliged to compensate the t rustee in respect
of the said costs after the costs have been incurred by either the minor plaintiff or by the
trustee or by any party on behalf of the minor p laintiff and on proof thereof. The
defendant is ordered to pay the reasonable travelling costs and accommodation for the
minor plaintiff and his/her caretaker to and from the location where he/she is to receive
treatment covered under the undertaking.
2.1 Without derogating from the generality of the foregoing, the undertaking shall
include the reasonable costs of the formation of an inter vivos trust for the benefit of the
minor plaintiff and the costs of administration of the said trust by the t rustee, including
the costs attendant upon the provision of security by the t rustee, and auditing and / or
accounting services.
2.2 A case manager be appointed, as per the discretion of the trustee, of which the
cost of such appointment (if necessary) is covered under the s 17(4)(a) undertaking.
3 The defendant to pay the p laintiff's taxed or agreed party and party cost, up to
and including the trial dates of 16, 17 and 19 September 2025 and the date when this
order is made an order of court, which cost shall include, but not be limited to the
following:
3.1 The fees of Counsel for the abovementioned dates in paragraph 3 above o n
Scale C;
3.2 The reasonable taxable reservation fees for 16 September 2025, of the following
experts:
Ms L Roos Educational Psychologist
Dr AC Strydom Industrial Psychologist
4
Johan Sauer Actuary
3.3 Interest shall accrue on such outstanding amount at 10.25% from the date of
taxation / settlement of the bill of cost, as per the Prescribe Rate of Interest Act as
amended, per annum, calculated from due date until the date of payment.
4 The award to the Plaintiff shall be protected by means of it being entrusted to a
trust to be formed for the benefit of the Minor Plaintiff.
5 Until such time as the trustee, JEANNE HELEN RABIE, still to be appointed and
the trust to be erected, is able to take control of the capital sum and to deal with same in
terms of this order, the plaintiff’s attorney of record:
5.1 shall be prohibited from dealing with the capital in any other manner unless
specifically authorised thereto by the court , subject to paragraphs 6.2-6.5
hereunder;
5.2 is authorised to invest the capital amount in an interest -bearing account with a
registered banking institution in terms of s 86(4) of the Legal Practice Act 28 of
2014, to the benefit of the minor plaintiff and will only be allowed to pay such
monies over to the trustee of the trust to be created in terms of paragraph 5 of
this order, once the Master of the High Court has issued the trustee with the
necessary letters of authority;
5.3 is further authorized to pay the costs to set security of the funds held in trust,
from the capital received, to the relevant insurer by the t rustee of the trust to be
created, which costs in turn must be refunded by the defendant to the plaintiff in
terms of paragraph 3;
5.4 from date of receiving the capital and up and till the Master of the High Court has
issued the trustee with the necessary letters of authority, is authorised and
ordered to make payment in the amount of R5 000.00 per month as, as well as
such other amount(s) that may reasonably be indicated and/or required for the
5
wellbeing of the p laintiff and/or in his/her interest which a diligent trustee would
have paid had such trustee been appointed;
5.5 is authorised to make payment of the attorney and own client costs, being fees,
disbursements and interest on paid disbursements, of the Plaintiff’s attorneys.
6 The nominated trustee is ordered to furnish security to the satisfaction of the
Master of the High Court.
7 The nominated trustee shall attend to the creation of an inter vivos trust in order
to protect the awarded funds to the exclusive benefit of the plaintiff.
8 That the trust to be erected for the benefit of the m inor plaintiff on these papers,
with powers which shall include (but not be limited to) the powers as referred to in the
trust deed attached hereto as Annexure ‘A’ and are regarded as incorporated into this
order.
9 The defendant is ordered to pay the costs in respect of the creation and future
administration of the said trust, to be formed in order to manage and administer the
compensation payable to the m inor plaintiff as referred to in paragraph 2, 3, 4 and 6 of
this order, which costs will include the fees of the trustee.
10 The reasonable remuneration to which the trustee will be entitled in respect of the
execution of the trustee’s official duties is as follows:
10.1 An acceptance/establishment fee of 1% ( excl. VAT) on all capital introduced into
the trust.
10.2 An annual administration fee based on a percentage of the value of the assets
under administration, which percentage will be subject to the following sliding scale:
6
10.2.1 R0.00 – R500 000.00 – 1.5% (excl. VAT)
10.2.2 R500 000.00 – R1 000 000.00 – 1.25% (excl. VAT)
10.2.3 R1 000 000.00 – 1% (excl. VAT)
10.3 The undertaking contemplated by s 17(4)(a) of the Road Accident Fund Act will
be administered by the t rustee, and the t rustee or his/her agent/attorney will be entitled
to an administration fee of 10% on all successful claims.
10.4 Travel expenses for purposes of attending to trust-related matters.
10.5 A termination fee of 2% ( excl. VAT) on the assets of the t rust at the time of
termination/dissolution of the Trust.
10.6 The parties recognise that the t rustee, an attorney, is a professional t rustee and
agree that the trust shall pay to the trustee the trustee’s usual charges for any work
performed by the trustee beyond the ambit of the trustee’s official duties, in her capacity
as attorney acting on behalf of the trust.
JUDGMENT
Molitsoane J
[1] This is a claim for loss of future earnings or earning capacity. The defendant had
previously admitted liability for 100% of the proven or agreed damages. On 24 April
2025, this court admitted into evidence the reports of the experts of the plaintiff together
with collateral evidence obtained by such experts in terms of s 3(1)(c) of the Law of
Evidence Amendment Act 45 of 1988 following a successful application in terms of
Uniform rule 38(2).
[2] The court also ordered the issue of general damages and loss of future earnings
to be separated in terms of rule 33(4) from the adjudication of loss of earnings . General
7
damages were settled. The defendant further agreed to pay the plaintiff , an interim
payment of R2.5 million towards the claim of loss of earnings . This court is thus seized
with the adjudication of the balance, if any, of the loss of earnings. I must indicate that,
although the defendant filed a number of its expert reports none of the experts testified
and no application was made on behalf of the defendant to admit their reports in terms
of rule 38(2).
[3] The plaintiff is Mr MC Louw, a member of the Free State Society of Advocates,
appointed as curator ad litem for B[…] J[… ] J[…] , (the minor child). The defendant is the
Road Accident Fund (RAF), a juristic person established in terms of s 2(1) of the Road
Accident Fund Act 56 of 1996 (the RAF Act).
[4] The collision out of which this dispute arose occurred on 9 August 2017. The
minor child was about four years and five months old at the time. The contemporaneous
and expert records establish major injuries which include severe traumatic pain with
cerebral oedema, a frontal skull fracture, a Glasgow Coma Scale 5 on admission; The
minor experiences residual headaches and has a possibility of post traumatic epilepsy.
He also has a persistent left lower limb pain and limitation as well as permanent
scarring and disfigurement. It is against this background that this dispute should be
determined.
[5] Dr Preddy confirms the severity of the trauma the minor sustained. He indicated
that the m inor would need operative fixation of the femur. He opines that the minor
would endure ongoing pain o n the left leg which would be aggravated by exertion and
cold. He also noted scarring and opines that the residual symptoms would impact on the
minor’s productivity and amenities of life. He deferred to neurological and psychological
medical specialists for examination of full vocational impact.
[6] Dr Naidoo, a neurologist diagnosed the minor with a severe traumatic brain injury
[6] Dr Naidoo, a neurologist diagnosed the minor with a severe traumatic brain injury
based on loss of consciousness GCS 5 / 15 requiring intubation and radiological
evidence with residual headaches: post traumatic epilepsy and neuropsychological and
8
neurocognitive symptoms. He recorded ongoing neurological morbidity including
infrequent but significant headaches, symptoms suggestive of post traumatic temporal
lobe epilepsy and neurocognitive complaints. He recommended comprehensive
neurological investigation, routine and overnight video, EEG and possible long- term
anti-epileptic treatment. He assesses more than 30% whole person impairment under
the AMA guidelines underscoring the magnitude of the neurological insult.
[7] Ms Roos, an educational psychologist also assessed the minor child. She
concluded that the minor child’s profile is consistent with severe traumatic brain injury
and shows prominent deterioration over time. The psychometric results indicate overall
average intellectual functioning with a marked verbal/non-verbal discrepancy, preserved
non-verbal reasoning but impaired verbal skills, and deficits in comprehension, working
memory, auditory processing, visual discrimination, reading, writing and mathematics .
She opined that the minor at grade 6 was performing at roughly grade 2 to grade 3
levels. Ms Roos attributes a permanent cognitive and learning disadvantage to the
accident, despite the vulnerabilities and prior medical history of the family of the minor
child. She concludes that the minor child is a learner at risk who will likely struggle in
mainstream education without urgent remedial suppor t. S he predicts a limited post
morbid educational and vocational trajectory , probably not exceeding grade 10 and
likely resulting in dropout , thereby forming foundational basis for the contention of
substantial collapse in scholastic and occupational potential for the minor child.
[8] Ms Liebenberg, an occupational therapist also assessed the child. She links the
child’s medical and educational impairments to practical work limitations , reporting low
trunk muscle tone, limited sitting tolerance, poor endurance for tabletop tasks, impaired
trunk muscle tone, limited sitting tolerance, poor endurance for tabletop tasks, impaired
manual dexterity, variable sustained attention, distractibility, visual perceptual deficits
and l ow motivation. She concludes , that absent a pass in grade 12 or diversion into
further education, the child is unlikely to access higher sedentary executive work and
would instead be confined to manual, repetitive routine roles dependent on physical
ability. According to her, such roles would leave him less competitive in the open labour
market and more vulnerable to job loss. Miss Liebenberg considered the possibility of
9
epilepsy and its impact on the job market and noted that epilepsy confirmed w ould bar
work at heights , near water, driving vehicles and such similar hazards, thereby
substantially narrowing the job opportunities for the minor child. She recommends that a
coordinated multidisciplinary support structure, being education, family occupational
therapy, psychology and paediatric neurology/psychiatry be implemented.
[9] Dr Strydom is an industrial psychologist. She translated the medical and
educational findings in respect of the minor child into two plausible pre accident
vocational scenarios. The first scenario related to the possibility of the minor attaining
grade 12 plus higher certificate or diploma. The second scenario being grad e 12 and
higher certificate only . She modelled likely labour market entry and made career
progression under each of the two scenarios. In contrast, her post accident assessment,
synthesizing severe paediatric brain injury, ongoing headaches and the possibility of
epilepsy, marked educational derailment, attentional and executive deficits, emotional
vulnerability and physical restrictions, she concluded that the child is unlikely to reach
premorbid potential. She opines that the minor child will probably progress only to about
grade 10 and then drop out. According to her the child would at best obtain structured,
routine supervised work . Taking all this into account Dr St rydom concluded that the
minor child was unlikely to be employed in the open labou r market with a total loss of
earning capacity suggested. The testimony of Dr Strydom is undisputed, and this court
has no other uncontroverted evidence to gainsay her opinion. In the absence of any
evidence disputing her conclusions, this court must accept her evidence.
[10] The clinical and neuropsychological reports, including an earlier assessment by
Dr Rapapa li and a later, detailed evaluation by M s Grootboom , confirmed significant
Dr Rapapa li and a later, detailed evaluation by M s Grootboom , confirmed significant
cognitive and emotional se quelae from the child’s severe traumatic brain injury . Ms
Grootboom identified slow learning, attention and executive dysfunction, visual
perceptual impairments, emotional vulnerability, headaches and scarring. She
emphasized the ‘ sleeper effect ’ whereby deficits become more pronounced as
academic demands increase. These findings support two central vocational themes ,
namely, that the minor child’s functioning will relatively worsen over time and
10
employability will be impaired not only by cognitive limitations but also by emotional
symptoms, physical appearance and ongoing symptom pattern.
[11] The courts are not bound by the opinions and views of the experts. What is
required of the experts is to assist the court by looking at the facts and based on those
facts, to provide factual basis for their conclusions. In Bee v Road Accident Fund
1 (Bee)
the court said the following:
‘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 militate against proper reasoning
and the correct analysis of the facts is 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. (See also Jacobs v Transnet Ltd t/a Metrorail [2014]
ZASCA 113; 2015 (1) SA 139 (SCA) paras 15 and 16; see also Coopers (South Africa) (Pty) Ltd
v Deutsche Gesellschaft Für Schädlingsbekämpfung mbH 1976 (3) SA 352 (A) at 371F.’
2
[12] In my view, the probabilities indicate that premorbid, the minor child had a
realistic prospect of completing Grade 12 and was likely to attain a higher certificate or
according to Dr Roos , to obtain a diploma. The accident has shuttered that likelihood.
He now has memory losses, attention deficits, deficient language processing. His
scholastic profile has deteriorated compared to that of his peers. It has deteriorated to
such an extent that the likely postmorbid educational ceiling is around grade 10 with a
possibility that he may drop out of school. Even if one were to consider the limited
structured work , the combined cognitive, emotional, physical and possible epilepsy
related limitations may render competitive open market employability unlikely . He is
related limitations may render competitive open market employability unlikely . He is
effectively unemployable as opined by the experts and a total loss of earning capacity
has thus endured.
1 Bee v Road Accident Fund [2018] ZASCA 52; 2018 (4) SA 366 (SCA).
2 Ibid para 23.
11
[13] The court in Dippenaar v Shield Insuranc Co Ltd3 said the following:
‘In our law, under the lex Aquilia , the defendant must make good the difference between the
value of the plaintiff’s estate after the commission of the delict and the value it would have had if
the delict had not been committed. The capacity to earn money is considered to be part of a
person’s estate and the loss or impairment of that capacity constitutes a loss, if such loss
diminishes the estate.’4
[14] The court in Southern Insurance Association Ltd v Bailey NO5 referred two
possible approaches in the assessment of earning capacity in cases akin to the one
before this court, namely, to make a round estimate of an amount which seem fair and
reasonable or to make use of mathematical calculations on the basis of assumptions
resting on evidence. The court went further to hold that engaging in either of the two
approaches ‘involves guesswork to a greater or lesser extent.’
[15] The plaintiff opted for mathematical calculations. Based on evidence and
assessment of experts. Mr. Sauer, an actuary was commissioned to calculate the future
loss of earnings of the minor . He applied a 20% premorbid contingency and 0%
contingency. It is submitted on behalf of the minor child that due to the age of the child,
premorbid vulnerabilities which includes prior medical issues as well as the expert
opinion of the educational psychologist that premorbid issues might have limited tertiary
potential, and thus an increase to 25 % in respect of contingencies was warranted. In
applying my discretion, I hold the view that the contingencies proposed by Mr Sauer are
fair and reasonable. Mr Sauer made his calculations on two scenarios. Scenario 1
grade 12 plus higher certificate or diploma yielded R6 695 796.00 and in scenario 2,
grade 12 plus higher certificate only yielded R5 983 822.00. Both scenarios assume no
post morbid income in line with Dr St rydom’s, conclusion that the plaintiff would not be
post morbid income in line with Dr St rydom’s, conclusion that the plaintiff would not be
employable. The plaintiff proposes adopting the median of the two actuarial figures
which comes to R6 339 809 as the fairest outcome. I agree with this calculation, but a
3 Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A).
4 Ibid at 917B-C.
5 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A).
12
deduction of R2.5 million interim payment should be reckoned from the overall loss. The
end result is that the minor child is entitled to a loss of R3 839 809.00.
[16] With regard to the costs, there is no reason t o depart from the established
principle that the costs follow the cause.
[17] Accordingly, I order as follows:
1.1 The defendant shall pay the plaintiff's attorneys the sum of R3 839 809.00 (Three
Million, Eight Hundred and thirty -Nine Thousand, Eight Hundred and Nine rand and
Zero Cents) in respect of the future loss of income made up as follows:
Future Loss of Income: R6 339 809.00
Less interim payment: R2 500 000.00
Award due: R3 839 809.00
1.2 Plaintiff’s attorneys trust account, details are as follows:
ACCOUNT HOLDER: VZLR INC
BRANCH: ABSA BUSINESS BANK HILLCREST
BRANCH CODE: 632005
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 3[…]
REFERENCE: MAT110156
1.3 Interest shall accrue on such outstanding amount at 10.25% as per the Prescribe
Rate of Interest Act 55 of 1975, as amended per annum calculated from due date, as
per the Road Accident Fund Act 56 of 1996, until the date of payment.
13
2 The defendant is ordered to furnish the t rustee appointed in respect of B […]
J[…] J[…] (the minor / plaintiff) an u ndertaking in terms of s 17(4)(a) of the Road
Accident Fund Act, for the costs of the future accommodation of the minor p laintiff in a
hospital or nursing home or the treatment of or the rendering of a service or the
supplying of goods (of a medical and non -medical nature) to the minor p laintiff arising
out of injuries sustained by him in a motor vehicle collision on 9 August 2017, in terms
of which undertaking the defendant will be obliged to compensate the t rustee in respect
of the said costs after the costs have been incurred by either the minor plaintiff or by the
trustee or by any party on behalf of the minor p laintiff and on proof thereof. The
defendant is ordered to pay the reasonable travelling costs and accommodation for the
minor plaintiff and his/her caretaker to and from the location where he/she is to receive
treatment covered under the undertaking.
2.1 Without derogating from the generality of the foregoing, the undertaking shall
include the reasonable costs of the formation of an inter vivos trust for the benefit of the
minor plaintiff and the costs of administration of the said trust by the t rustee, including
the costs attendant upon the provision of security by the t rustee, and auditing and / or
accounting services.
2.2 A case manager be appointed, as per the discretion of the trustee, of which the
cost of such appointment (if necessary) is covered under the s 17(4)(a) undertaking.
3 The defendant to pay the p laintiff's taxed or agreed party and party cost, up to
and including the trial dates of 16, 17 and 19 September 2025 and the date when this
order is made an order of court, which cost shall include, but not be limited to the
following:
3.1 The fees of Counsel for the abovementioned dates in paragraph 3 above on
Scale C;
14
3.2 The reasonable taxable reservation fees for 16 September 2025, of the following
experts:
Ms L Roos Educational Psychologist
Dr AC Strydom Industrial Psychologist
Johan Sauer Actuary
3.3 Interest shall accrue on such outstanding amount at 10.25% from the date of
taxation / settlement of the bill of cost, as per the Prescribe Rate of Interest Act as
amended, per annum, calculated from due date until the date of payment.
4 The award to the Plaintiff shall be protected by means of it being entrusted to a
trust to be formed for the benefit of the Minor Plaintiff.
5 Until such time as the trustee, JEANNE HELEN RABIE, still to be appointed and
the trust to be erected, is able to take control of the capital sum and to deal with same in
terms of this order, the plaintiff’s attorney of record:
5.1 shall be prohibited from dealing with the capital in any other manner unless
specifically authorised thereto by the court, subject to paragraphs 6.2-6.5 hereunder;
5.2 is authorised to invest the capital amount in an interest -bearing account with a
registered banking institution in terms of s 86(4) of the Legal Practice Act 28 of 2014, to
the benefit of the m inor plaintiff and will only be allowed to pay such monies over to the
trustee of the trust to be created in terms of paragraph 5 of this order, once the Master
of the High Court has issued the trustee with the necessary letters of authority;
5.3 is further authorized to pay the costs to set security of the funds held in trust,
from the capital received, to the relevant insurer by the trustee of the trust to be created,
which costs in turn must be refunded by the d efendant to the p laintiff in terms of
paragraph 3;
5.4 from date of receiving the capital and up and till the Master of the High Court has
15
issued the trustee with the necessary letters of authority, is authorised and ordered to
make payment in the amount of R5 000.00 per month as, as well as such other
amount(s) that may reasonably be indicated and/or required for the wellbeing of the
plaintiff and/or in his/her interest which a diligent t rustee would have paid had such
trustee been appointed;
5.5 is authorised to make payment of the attorney and own client costs, being fees,
disbursements and interest on paid disbursements, of the Plaintiff’s attorneys.
6 The nominated trustee is ordered to furnish security to the satisfaction of the
Master of the High Court.
7 The nominated trustee shall attend to the creation of an inter vivos trust in order
to protect the awarded funds to the exclusive benefit of the plaintiff.
8 That the trust to be erected for the benefit of the m inor plaintiff on these papers,
with powers which shall include (but not be limited to) the powers as referred to in the
trust deed attached hereto as Annexure ‘A’ and are regarded as incorporated into this
order.
9 The defendant is ordered to pay the costs in respect of the creation and future
administration of the said trust, to be formed in order to manage and administer the
compensation payable to the m inor plaintiff as referred to in paragraph 2, 3, 4 and 6 of
this order, which costs will include the fees of the trustee.
10 The reasonable remuneration to which the trustee will be entitled in respect of the
execution of the trustee’s official duties is as follows:
10.1 An acceptance/establishment fee of 1% ( excl. VAT) on all capital introduced into
the trust.
10.2 An annual administration fee based on a percentage of the value of the assets
16
under administration, which percentage will be subject to the following sliding scale:
10.2.1 R0.00 – R500 000.00 – 1.5% (excl. VAT)
10.2.2 R500 000.00 – R1 000 000.00 – 1.25% (excl. VAT)
10.2.3 R1 000 000.00 – 1% (excl. VAT)
10.3 The undertaking contemplated by s 17(4)(a) of the Road Accident Fund Act will
be administered by the t rustee, and the t rustee or his/her agent/attorney will be entitled
to an administration fee of 10% on all successful claims.
10.4 Travel expenses for purposes of attending to trust-related matters.
10.5 A termination fee of 2% ( excl. VAT) on the assets of the t rust at the time of
termination/dissolution of the Trust.
10.6 The parties recognise that the t rustee, an attorney, is a professional t rustee and
agree that the trust shall pay to the trustee the trustee’s usual charges for any work
performed by the trustee beyond the ambit of the trustee’s official duties, in her capacity
as attorney acting on behalf of the trust.
_________________
P E MOLITSOANE
JUDGE OF THE HIGH COURT
Appearances
For the Appellant: D Marx
Instructed by: VZLR Inc c/o Du Plooy Attorneys,
Bloemfontein
17
For the Respondent: P Banda
Instructed by: Road Accident Fund,
Bloemfontein.