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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Case No: 58628/10
Reportable: No
Of interest to other Judges: No
Revised: No
SIGNATURE
Date: 30 April 2026
In the matter between:
S P M[...] Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
2
JUDGEMENT
________________________________________________________________
MOOKI J
1 The plaintiff, together with her mother and other relatives, was involved
in a car accident on 1 July 2007. Her mother and a relative died following
the accident. The plaintiff, who was born on 10 February 2005, was 2
years and four months old at the time of the accident. The Road
Accident Fund conceded negligence. The claims for loss of support and
for general damages were settled. The matter is before court on a claim
for future loss of income.
2 The Fund did not participate in the trial. Its defence was struck because
of the Fund’s failure to comply with the Court’s Practice Directives,
including failing to participate in mediation.
3 The plaintiff sought leave to lead evidence by way of Rule 38(2). This
application was limited to evidence by K Polden, clinical psychologist; W
van der Walt, occupational therapist; L Rudenberg, educational
psychologist; Dr J A Smuts, neurologist; Dr J H Kruger, neurosurgeon; L
van Gass, industrial psychologist, Prof Du Plessis, actuary; and the
section 19(f) affidavit by the plaintiff. Each expert witness filed an
affidavit confirming the content of their respective reports.
4 The plaintiff pleaded the following injuries: head injury, bruising and soft
tissue injuries to the head, treated with the necessary pain and anti -
inflammatory medication; chest injury, bruising and soft tissue injuries to
the chest, treated with the necessary pain, anti -inflammatory medication,
and general body bruises treated with the necessary pain, anti -
inflammatory medication.
5 The plaintiff contended, in her written submissions, that she sustained
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the following injuries: severe head injury, abrasions and lacerations to
the face on the left parietal side of the scalp, nose bleeds, post traumatic
epilepsy, soft tissue injury to the left arm, post -traumatic stress disorder,
and cognitive difficulties.
6 The plaintiff discovered two sets of documents, namely school reports
over several years and a document in the name of Dr A C Botha, styled
‘medical report’ (Dr AC Botha document). The claim for future loss of
income is based on evidence as detailed below.
7 Dr J A Smuts, a neurologist, examined the plaintiff on 24 July 2025. The
plaintiff was 18 years old at the time. This assessment was in relation to
the accident that occurred on 1 July 2007, when the plaintiff was 2 years
and four months old.
8 Dr Smuts recorded the injuries suffered at the time of the accident as
being a head injury and multiple cuts and abrasions over the face, scalp
and the plaintiff’s body. Dr Smuts referenced the Dr AC Botha document
as the source of this information. Dr Smuts recorded too that the plaintiff
was allegedly thrown out of the car, and that she was seemingly taken to
a hospital and was discharged a week later. Dr Smuts noted that there
were no hospital records pertaining to the plaintiff.
9 The plaintiff, on being examined by Dr Smuts, complained about her
eyes, her hearing, headaches, and neck pain. Dr Smuts conducted a
neurological examination. He assessed the plaintiff as normal. Dr Smuts
concluded that the plaintiff’s headaches started after the accident and
that it was reasonable to classify those headaches as post -traumatic
headaches. He observed that the plaintiff had no history of epilepsy. Dr
Smuts opined that the plaintiff suffered a more significant head injury
than what was initially appreciated and that she was left with a possible
mild to moderate brain damage.
10 Dr J H Kruger, a neurosurgeon, prepared three reports pertaining to the
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plaintiff. He first assessed the plaintiff on 17 July 2013, when the plaintiff
was 8 years and 5 months old and in Grade 2 at school. Dr Kruger
considered reports by other experts, the Dr AC Botha document, and
‘incomplete hospital notes from Volksrust hospital’ for his report. The
plaintiff was accompanied by her grandmother, who is said was said to
have acted as the interpreter.
11 Dr Kruger recorded the history as related to him by the plaintiff’s
grandmother. The grandmother reported that the plaintiff was rendered
unconscious after the accident and that paramedics stabilised the
plaintiff at the scene. The plaintiff was then admitted to Volksrust
hospital. Dr Kruger wrote in his report that the plaintiff was found to have
the following injuries on admission at the hospital: a head injury and
multiple cuts and abrasions over the face, scalp and body.
12 Dr Kruger concluded that the plaintiff sustained a concussion and a soft -
tissue injury to the right shoulder. He recommended an evaluation of the
radiological extent of the concussion with a CT scan of the brain.
13 Dr Kruger prepared a further report on 28 March 2018. The plaintiff was
13 years and 1 month on this date. Dr Kruger reported that a CT scan of
the plaintiff’s brain was done on 28 March 2018 and that the scan was
“normal”. Dr Kruger recorded that the plaintiff had no new complaints. He
confirmed his clinical findings from the assessment made on 17 July
2013.
14 Dr Kruger prepared a third report, when the plaintiff was 20 years and 3
months. This was 17 years and 10 months after the accident. The
plaintiff complained of a loss of hearing on both ears. She also
complained of blurry vision. Dr Kruger concluded that those complaints
were unrelated to the accident. Dr Kruger opined that the plaintiff
sustained a mild traumatic brain injury, “as evidenced by the fact that the
patient had a loss of consciousness after the accident.”
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15 Ms S L Rudenberg, an educational psychologist, assessed the plaintiff
for the first time on 13 June 2013, when the plaintiff was 7 years and 3
months old. Her history of the plaintiff’s circumstances noted that the
plaintiff resided with her grandmother in a three -roomed shack made
from zinc. They used a coal stove. The family included the plaintiff’s
brother and sister. The grandmother told Ms Rudenberg that the plaintiff
was forgetful and that the plaintiff couldn’t always see the board at
school.
16 Ms Rudenberg had a further consultation with the plaintiff on 8 March
2018. The plaintiff was 13 years on this date and in Grade 7 at school.
The grandmother is said to have raised the following concern: that the
plaintiff was forgetful, had a fear of cars, and had a temper. The plaintiff
in turn said she could not see well and had to sit at the front of the class.
She also had nosebleeds.
17 Ms Rudenberg reported as follows in connection with the post -accident
period concerning the plaintiff: the plaintiff’s intellectual functioning fell
within the average range; that she had memory difficulties when
studying; that there was no need for remedial assistance in relation to
basic scholastic abilities, and that the plaintiff had apparent
concentration lapses.
18 Ms Rudenberg next assessed the plaintiff on 25 May 2020. The plaintiff
was aged 15 years and 3 months and was in Grade 8 at school. Ms
Rudenberg concluded that the plaintiff’s Grade 8 report showed that the
plaintiff was beginning to struggle with mathematics and that the plaintiff
was struggling with social sciences, a subject which Ms Rudenberg said
involved “a lot of memorising of facts.” Ms Rudenberg opined that the
Grade 8 report suggested that the plaintiff would not progress higher
than Grade 11.
19 Ms Rudenberg prepared a further report. She reported that the plaintiff’s
half sister had finished Grade 12, enrolled at a college, but then dropped
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out. The half sister worked as a domestic. The plaintiff’s brother was 20
years old and had dropped out of school in Grade 11. The plaintiff’s aunt
was aged 51 years and worked as a domestic. Ms Rudenberg wrote that
the plaintiff was given a condoned pass to Grade 9.
20 The plaintiff had dropped out of school when Ms Rudenberg was
preparing her last report. Ms Rudenberg contacted the plaintiff by
telephone on 11 December 2025. The plaintiff told Ms Rudenberg that
the plaintiff would like to return to school when the plaintiff’s living
circumstances had changed.
21 Ms Wilma van der Walt, an occupational therapist, assessed the plaintiff
on 26 August 2013. The plaintiff was 8 years and six months and in
Grade 2 at school. The purpose of the assessment was listed as “…to
comment on the effect of the injuries on functional ability and to discuss
assistance, equipment and adapters needed.”
Analysis
22 The plaintiff discovered two sets of documents in support of her claim,
namely school reports and the Dr AC Botha document. The school
reports were incomplete. Not all school terms are reflected. In addition,
not all reports show the comparative performance of the whole class.
23 The Dr AC Botha document states that the plaintiff was first seen on 19
April 2010. This would be 2 years and 9 months from the date of the
accident. The plaintiff was 5 years and 2 months on that date. This
document records the head as the only part of the plaintiff’s body that
was injured in the accident, with the injury stated to be “severe”.
24 The document is unsigned. It does not bear any stamp or signification
that it was received or considered by the Road Accident Fund. There is
no confirmatory affidavit in relation to this document. The source of
information recorded on the document is unknown. This document does
not speak for itself.
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25 There are no documents that substantiate both the injuries as contended
for in the pleadings and in the submissions. There is no evidence by a
person with direct knowledge of what transpired during the accident.
More particularly, there is no evidence on what happened to the plaintiff
during the accident, including whether the plaintiff was injured, whether
she was thrown out of the car, or whether she suffered any particular
injury.
26 The plaintiff sought leave to introduce the evidence of K Polden, a
clinical psychologist, in terms of Rule 38(2). K Polden was listed as one
of the witnesses in that application. There is no report on record by K
Polden. There is also no section 36(9)(a) notice that K Polden would be
called as an expert. The effect is that there was no evidence by a clinical
psychologist in relation to the claim by the plaintiff.
27 The plaintiff did not include Karin Vijoen (audiologist) and Dr M R
Mokabane (neurologist) as witnesses whose evidence was to be
admitted pursuant to the Rule 38(2) application.
28 I did not consider reports by experts who were not listed in the Rule
38(2) application. Similarly, I did not consider reports by experts listed in
that application, but who did not file affidavits confirming their respective
reports.
29 The plaintiff, in her written submissions, listed several experts whose
reports the plaintiff relied on to justify the quantum for the claimed loss of
income. There were no confirmatory affidavits by the following experts:
Leon Roper (clinical psychologist), Dr P R Cronje (ophthalmologist), Dr
D Le C Stolp (Ear, Nose, and Throat specialist), TC (a firm of
occupational therapists), Ntombizivumile Hankwebe (occupational
therapist), Sandra Crous (educational psychologist), Lance Marais
(industrial psychologist), Talifahni Ntsieni (industrial psychologist), and
Rosewood Technologies (a firm of actuaries). I did not consider the
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reports by these persons and firms as constituting evidence in these
proceedings.
30 The plaintiff, in the written submissions, referenced the opinion by Dr
Makobane that the plaintiff suffered post -traumatic epilepsy and that the
plaintiff sustained a severe post-traumatic brain injury. I reject this on two
bases. Firstly, Dr Mokabane’s reports were not introduced into evidence
in terms of Rule 38(2). Secondly, the findings are speculative. There is
no support for these findings. Dr Makobane’s examination of the plaintiff
revealed nothing untoward.
31 I mention Dr Mokabane because other experts rely on his findings in
support of their own conclusions. This is illustrated by the educational
psychologist, who speculated that the plaintiff’s stated inattentiveness in
school was related to the plaintiff having had seizures, thus affecting the
plaintiff’s memory. Similarly, the educational psychologist’s view that the
plaintiff’s stated on -off pattern of concentration may be due to
neurological underpinnings lacks foundation. Dr Smuts subjected the
plaintiff to a neurological examination. He assessed the plaintiff as
normal.
32 There is no evidence to support the pleaded injuries. The various experts
engaged by the plaintiff speculated that the plaintiff was injured in the car
accident. The plaintiff failed to establish that she was injured as alleged
in her pleadings. I also find that the plaintiff failed to show that she
suffered a loss of future earnings because of the accident.
33 Dr Kruger’s evidence on the injuries said to have been sustained by the
plaintiff was based on the hearsay accounting by the plaintiff’s
grandmother. There is no factual support that the plaintiff was rendered
unconscious, or that she presented with the mentioned injuries on her
admission to hospital. The plaintiff did not discover any hospital record.
There is no support that the plaintiff suffered a head injury and multiple
There is no support that the plaintiff suffered a head injury and multiple
cuts and abrasions over the face, scalp and body. These stated injuries
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are taken from the Dr AC Botha document, which is styled an MMF1
form.
34 The Dr AC Botha document is undated. The source of information
recorded on the document is unknown. There is no evidence that the
source of the information had personal knowledge of what is said to have
been told to Dr Botha. It bears repeating that the plaintiff was still a child
on the date recorded on the form. The plaintiff’s grandmother is illiterate.
There is no evidence that Dr Botha was able to communicate with the
plaintiff’s mother in an intelligible manner, on the assumption that the
plaintiff’s grandmother was the source of information recorded on the
document. Several experts engaged by the plaintiff mention that the
plaintiff’s grandmother required an interpreter in meetings with those
experts.
35 The educational psychologist made her conclusions on the premise that
the plaintiff suffered a severe injury to the head and that the injury in turn
negatively affected the plaintiff’s schooling, resulting in the plaintiff
not finishing school. The conclusion is unsound, absent demonstration
that the plaintiff, in fact, suffered the injuries contended for.
36 The educational psychologist recorded in her latest report that the
plaintiff had dropped out of school. The report does not say why the
plaintiff dropped out of school. There is thus nothing in this report to
suggest that the plaintiff dropped out of school because of the accident
of 1 July 2007. The educational psychologist, in preparing the report,
spoke to the plaintiff by telephone. It is puzzling that the educational
psychologist did not ask the plaintiff why the plaintiff left school. This is
more so because the educational psychologist last assessed the plaintiff
on 25 May 2020.
37 The conclusions by the educational psychologist that the plaintiff was
having difficulties at school because of the accident are unfounded. The
plaintiff’s performance at school over the years does not support these
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conclusions. The plaintiff’s performance at school is to be considered
together with reference to her home circumstances. I mention this point
because of the findings in several reports that the plaintiff
underperformed her “peers”, based on the testing by the experts.
38 The plaintiff stayed in three-roomed shack made from zinc, together with
her two siblings, her grandmother and her aunt. There was no evidence
that the plaintiff received help at home in relation to her schooling. There
was also no evidence about the state of facilities available at her school
for teaching and learning purposes. The various studies used and testing
referred to by the experts to assess the plaintiff are not based on
conditions that informed the plaintiff’s lived experience. A conclusion that
the plaintiff underperformed her “peers”, based on those studies lacks
foundation. Experts can’t simply invoke testing developed in a particular
environment, and then seek to make such testing as having universal
outcomes; such that any child could be assessed with reference to such
testing.
39 The various experts sought to suggest that the plaintiff’s performance at
school was informed by what happened to her because of the accident
on 1 July 2007. I do not accept this to be the case. The plaintiff’s
performance at school, on available information, was essentially no
different from the performance of her peers at the school. In fact, the
plaintiff could be said to, more often than not, have performed slightly
better than her peers. This conclusion is borne by examining the
plaintiff’s school reports.
40 I focus on the plaintiff’s marks in the social sciences and in
mathematics. These are the subjects which the educational psychologist
sought to rely on as the bases for her opinion that the accident affected
the plaintiff’s performance at school.
41 The plaintiff’s marks for social sciences in Grade 4 (2015) (relative to the
marks for her peers) over the three terms were 53% (33% grade), 60%
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(50% grade) and 83%.1 The marks for mathematics were 59% (61), 90%
(64), and 75%2 over the three terms.
42 The plaintiff’s performance in Grade 5 (2016) was as follows. The
plaintiff’s mark for social sciences for each of the three terms was
as follows (39% for the grade), 50 (39), and 65.3 Performance in
mathematics was as follows 68% (58), 67% (55), and 59 %.4
43 The plaintiff did not obtain mark lower than 50% over the three terms in
Grade 6 (2017). The plaintiff’s marks for social sciences over the three
terms were as follows 59%, 68%, and 81 % respectively. The marks for
mathematics were as follows 44%, 58%, and 58% respectively. The
marks for the class are not stated.
44 The marks for social sciences in Grade 7 (2018) were as follows over
two terms 30% and 51%. Her marks for mathematics were as follows
over the same period 30% and 46%. There is no information on the
marks for the third term. Also, there is no information on the marks for
the class as a whole.
45 This is the plaintiff’s performance in Grade 8 (2019). Her performance in
the social sciences over the three years relative to her peers was as
follows 24% (34%), 39% (35%), and 23% (24%). Her performance in
mathematics was as follows 53% (36%), 13% (32%), and 54% (43%).
46 There are no reports for the plaintiff’s performance in Grade 9
(2020). There is no explanation for the absence. The plaintiff discovered
her report for Grade 10 (2022). She did not take social sciences as a
subject. Her performance in mathematics (against the grade) was as
follows over the three terms: 6% (against 9%), 5% (against 12%), and
12% (against 10%). The plaintiff’s performance in Grade 10 can hardly
1 The class mark is not stated
2 The class mark is not stated
3 There is no class mark for term 3
4 There is no class mark for term 3
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be said to be a function of the accident on 1 July 2007. The results in
Grade 10 show the plaintiff to have performed equally badly as her
classmates.
47 It appears that the plaintiff dropped out of school in the year when she
was in Grade 10. There is documentation showing that she sought a
transfer to a different school, for Grade 11. The transfer document bears
a stamp by her current school, which is dated 20 May 2025. The
educational psychologist did not comment on this development in her
report.
48 The plaintiff’s performance at school was on par or marginally better than
that of her peers in her respective grades. The educational psychologist
stated that the plaintiff, in the upper grades, was struggling with
mathematics and that she was performing poorly in social sciences
because of the effects of the accident. The educational psychologist
referenced the plaintiff’s mark in social sciences in Grade 8, saying her
performance was indicative that the plaintiff would not be able to
complete higher grades at school.
49 The statement that the plaintiff’s performance in Grade 8 showed that
she was now experiencing difficulties with schooling because of the
accident is unfounded, as shown by the school reports. The plaintiff’s
performance in mathematics was continuously marginally better than the
class average. Her performance in social science was essentially the
same as the class average over the years. There is no substance to the
conclusion by the educational psychologist that the plaintiff was
experiencing difficulties at school because she could not memorise facts.
The plaintiff, together with the rest of her classmates, performed
equally poorly in social sciences. There is no basis for concluding that
the accident affected her memory such that she was now performing
poorly in a subject like social science.
50 The plaintiff’s schooling ended up essentially reflecting that of the rest of
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her family. Her brother dropped out of school in Grade 11. Her aunt
passed matric but dropped out of college. There is no evidence on the
aunt’s performance in matric. The report by the educational psychologist
is unhelpful. The educational psychologist didn’t enquire from the plaintiff
as to why the plaintiff dropped out of school. I say this because the final
report by the educational psychologist does not address why the plaintiff
left school.
51 The educational psychologist had no collateral information from the
plaintiff’s school (save the school reports). There is no collateral
information to support the claim of the plaintiff that she had poor vision
and poor hearing. There was, in any event, no evidence to support these
two complaints. The Rule 38(2) application did not include a report by an
audiologist. It also did not encompass a report in support of the plaintiff
stated poor vision.
52 I conclude that there is no support for the pleaded injuries. The plaintiff
did not produce a single document from a health facility showing that she
was injured on 1 July 2007. She also did not present a document from a
health facility that she presented with particular sequalae because of the
incident on 1 July 2007. There was no sound evidence on what
happened to the plaintiff on 1 July 2007. Accounts by the plaintiff’s
grandmother are hearsay, as she was not present during the incident.
Medical testing conducted on the plaintiff showed the plaintiff not to
present with any untoward afflictions. Evidence by the various experts
on what happened on 1 July 2007, and the stated injuries said to have
been suffered by the plaintiff, was speculative. These experts essentially
based their views on the unsupported and undated ‘medical report’ by a
Dr AC Botha.
53 The written submissions for the plaintiff relied on impermissible
evidence. This is illustrated by reliance on the report by Leon Roper, a
clinical psychologist and on the report by Dr Makopane, a neurologist.
clinical psychologist and on the report by Dr Makopane, a neurologist.
These reports were not introduced as evidence pursuant to Rule 38(2).
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There was, in any event, no support for Dr Makopane’s finding that the
plaintiff sustained a severe post -traumatic brain injury because the
plaintiff lost consciousness at the time of the accident. There is no
support that the plaintiff lost consciousness on 1 July 2007.
54 The evidence by the industrial psychologist and that by the actuary do
not add anything to change my overall view of the plaintiff’s case.
55 The court must formulate an award of damages if the court is satisfied
that there was a loss of earnings and/or earning capacity. 5 I am not
persuaded, on the case made for the plaintiff, that the plaintiff suffered a
loss of earnings and/or earning capacity.
56 I order as follows:
The plaintiff’s claim for future loss of income is dismissed.
O MOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for the plaintiff: M Smit
Instructed by: PAS Attorneys
No participation by the defendant
5 Road Accident Fund v Maasdorp [2004] 2 All SA 242 (NC)
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Date heard: 22 January 2026
Date of judgment: 30 April 2026