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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
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
CASE NO: 2007/25658
In the matter between:
S[…] P[…] K[…] PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Before: The Honourable Madam Justice N. Nkoenyane AJ.
Heard: 30 January 2026
Delivered: 21 May 2026
___________________________________________________________________
JUDGMENT
___________________________________________________________________
1. INTRODUCTION
1.1. This matter came before me on the unopposed default judgment roll. The
Defendant, the Road Accident Fund, had its defence struck out by order of
this Court on an unspecified date, with the result that liability was settled at
100% in favour of the Plaintiff. What remains for determination is the
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: NO
__________ _______________
DATE SIGNATURE
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quantum of damages, specifically: (i) past and future loss of earnings or
earning capacity; (ii) past and future medical expenses; and (iv) costs.
1.2. The Plaintiff was represented by counsel. The Defendant, having been
barred, did not appear.
1.3. The Plaintiff’s Heads of Argument sought a total award of Fifteen Million
Five Hundred and Forty -Seven Thousand Four Hundred and Thirty -Nine
Rand (R15,547,439.00), comprised of Thirteen Million Six Hundred and
Forty-Seven Thousand Four Hundred and Thirty -Nine Rand
(R13,647,439.00) for loss of income, One Million Nine Hundred Thousand
Rand (R1,900,000.00) for general damages, and Five Thousand Rand
(R5,000.00) for past medical expenses. In addition, the Plaintiff sought an
undertaking for future medical expenses in terms of section 17(4)(a) of the
Road Accident Fund Act
1.
1.4. Having carefully scrutinised the expert reports, the objective documentary
evidence, and the concessions properly made by Plaintiff's counsel during
argument, I am constrained to conclude that the claimed amounts are
grossly exaggerated and bear no reasonable relationship to the Plaintiff's
actual proven losses or the prevailing legal principles governing such
awards.
1.5. This judgment sets out the reasons for the order that follows.
2. FACTUAL BACKGROUND
2.1. The Plaintiff was born on the 10
th of February 2000. At the time of the
accident on the 15th of March 2007, she was 7 years old and a
pedestrian. She was struck by a motor vehicle with registration H […] ,
driven by one N Law.
1 section 17(4)(a) of the Road Accident Fund Act 56 of 1996 (“the Act”)
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2.2. According to the medical records, t he injuries sustained were objectively
serious. The Plaintiff suffered a severe traumatic brain injury with
subarachnoid and subdural haemorrhages, multiple abrasions, and a left
knee anterior cruciate ligament injury that was originally missed. Upon
admission to Chris Hani Baragwanath Hospital, she had a Glasgow Coma
Scale of 3/15, was intubated, and spent time in the intensive care unit.
2.3. However, the outcome is what matters for purposes of quantifying
damages. The Plaintiff has made a remarkable recovery. She completed
Grade 12 in 2017 with a degree endorsement. Between 2019 and 2021,
she completed a Bachelor of Commerce in Accounting at Damelin College,
achieving distinctions in numerous modules, including Taxation (92%),
Managerial Accounting (90%), and Auditing (91%).
2.4. Since November 2022, the Plaintiff has been employed by First National
Bank as a Universal Advisor. Her payslips for 2024 reflect net monthly
earnings ranging between approximately Thirteen Thousand Four Hundred
Rand (R13,400.00) and Thirty -Eight Thousand Six Hundred Rand
(R38,600.00), inclusive of performance bonuses and overtime
remuneration. The Plaintiff consistently achieves her Key Performance
Indicators and remains in good standing with her employer.
2.5. Critically, during oral argument, counsel for the Plaintiff conceded that the
Plaintiff “is doing well” and “is able to achieve her KPIs at work.” This
concession is significant insofar as it demonstrates that the Plaintiff
remains functionally employable and capable of meeting the performance
standards required in her current occupation.
3. THE PLAINTIFF'S EXPERT EVIDENCE
3.1. The Plaintiff filed expert reports and these are not the exhaustive list from
a neurosurgeon (Dr H.J. Edeling), an orthopaedic surgeon (Dr P.T.
Kumbirai), a psychiatrist (Dr D.A. Shevel), a neuropsychologist (M.J.
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Adan), an educational psychologist (Dr D. Mawila- Chauke), an
occupational therapist (T.L. Mahlangu), and an industrial psychologist (C
du Toit). An actuarial certificate compiled by J.J.C. Sauer quantified the
Plaintiff’s alleged loss of earnings at Thirteen Million Six Hundred and
Forty-Seven Thousand Four Hundred and Thirty -Seven Rand
(R13,647,437.00).
3.2. Dr. Edeling diagnosed a “Post -Traumatic Organic Neuropsychological
Disorder” and opined that the sequelae arising from the brain injury are
permanent in nature. He further noted that the Plaintiff carries an
increased lifetime risk of developing late post -traumatic epilepsy,
estimated at between 5% and 10%. Dr. Shevel confirmed the presence of
Organic Brain Syndrome, with co-morbid dysthymia.
3.3. The occupational therapist, Ms . Mahlangu, expressed the view that the
Plaintiff's physical work capacity is limited to "light to low -medium tasks"
and recommended 40 hours of occupational therapy, domestic assistance,
and various assistive devices. She administered the Beck Depression
Inventory, on which the Plaintiff scored 33, indicating "severe depression."
3.4. The industrial psychologist, Ms du Toit, projected a pre- accident career
ceiling of Paterson level D3/D4 with a total package of One Million Six
Hundred and Fifty-Three Thousand Rand (R1,653,000) per annum by age
45-50. She concluded that the Plaintiff's post -accident career ceiling is
Paterson A3 Two Hundred and Seventeen Thousand Nine Hundred and
Eight Rand (R217,908 per annum), resulting in a massive loss.
4. EVALUATION OF THE EXPERT EVIDENCE
4.1. General Principles
4.1.1. It is trite that expert opinion evidence must be evaluated against the
objective facts of the matter and not considered in isolation. In Michael and
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Another v Linksfield Park Clinic (Pty) Ltd 2, the Supreme Court of Appeal
emphasised that expert evidence cannot be blindly accepted where it is
inconsistent with the proven facts, and that the Court must exercise its
own independent judgment in assessing such evidence.
4.1.2. More recently, in Road Accident Fund v Mothupi 3, the Court reiterated that
actuarial calculations are only as reliable as the factual assumptions upon
which they are based. Where those underlying assumptions are shown to
be inconsistent with the Plaintiff’s proven post -accident employment
history and actual earnings capacity, such assumptions must be carefully
scrutinised and, where appropriate, rejected.
4.2. The Fallacy of the Pre-Accident Projection
4.2.1. The industrial psychologist’s projection that the Plaintiff would, but for the
accident, have attained a Paterson D3/D4 career ceiling (senior
management level) is, with respect, speculative and not borne out by the
objective evidence. At the time of the accident, the Plaintiff was a seven-
year-old child in Grade 2. Her socio -economic and educational
background reflects that her mother has a Grade 10 education and is
employed as a school cleaner. Her two sisters have attained Grade 11 and
Grade 12 respectively, with one currently pursuing a BCom degree. There
is no established family history of tertiary education or professional or
managerial attainment which objectively supports a projection of
progression to senior management level. Whilst such history is not
present, it does not necessarily precludes the Plaintiff reaching such
heights.
4.2.2. In Southern Insurance Association Ltd v Bailey NO
4, the Appellate
Division held that the assessment of damages for loss of earning capacity
2 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 118 (SCA)
3 Road Accident Fund v Mothupi 2024 ZASCA 12
4 Southern Insurance Association Ltd v Bailey NO [1984] 1 All SA 360 (A); 1984 (1) SA 98 (A) at 113G–114E
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must be approached on a realistic and balanced basis, having regard to all
relevant contingencies, including the imponderables and uncertainties
inherent in future career progression. A projection which assumes, without
sufficient evidential foundation, “Any enquiry into damages for loss of
earning capacity is of its nature speculative…” . future earnings projections
depend on assumptions that may range “from the strongly probable to the
speculative.” With respect, such an assumption is aspirational rather than
evidentially justified.
4.2.3. I therefore reject the pre- accident earnings projection. The Plaintiff has
not established a proven loss of earnings, particularly in circumstances
where she is already employed in a skilled occupation commensurate with
her actual qualifications and socio- economic background, and where her
current earnings demonstrate functional and stable employment post -
accident.
4.3. The Post-Accident Contingency is Unjustified:
4.3.1. The actuary applied a contingency deduction of 35% to the Plaintiff’s
future post -morbid earnings. This contingency is, with respect, grossly
excessive and not justified on the evidence before Court. In Road
Accident Fund v Guedes
5, the Supreme Court of Appeal held that
contingency deductions must be fair, reasonable, and tailored to the
specific circumstances of the particular claimant.
4.3.2. A contingency of 35% is generally reserved for claimants who present with
demonstrable risks such as an elevated likelihood of unemployment,
unstable employment history, significant residual disability impacting
employability, or other adverse vocational factors. None of these features
are present in the Plaintiff’s case.
5 Road Accident Fund v Guedes [2006] ZASCA 18; 2006 (5) SA 583 (SCA)
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4.3.3. On the contrary, the Plaintiff has been in continuous employment since
November 2022. She receives performance bonuses, which indicates not
only continued employment but also satisfactory performance and value
within her workplace. She has not been dismissed, nor has she
experienced any period of unemployment. The concessions made by her
own counsel further confirm that she meets her Key Performance
Indicators and performs adequately in her role.
4.3.4. The correct approach was articulated in Road Accident Fund v Forword
6,
where the Court held that where a plaintiff is already employed and
performing satisfactorily, a high contingency deduction based on
speculative future unemployment is not justified.
4.3.5. Similarly, in Mokobodi v Road Accident Fund
7, the Court rejected an
inflated loss of earnings claim in circumstances where the plaintiff had
achieved skilled post -accident employment, holding that a claimant’s
actual proven achievements constitute a reliable indicator of future earning
capacity.
4.4. The Plaintiff's Educational Achievements Contradict the Experts
4.4.1. The educational psychologist, Dr Mawila- Chauke, expressed the view that
NQF Level 7 would “probably remain her highest attained educational
level.” However, the Plaintiff has already achieved an NQF Level 7
qualification, namely a bachelor’s degree. Properly construed, the expert’s
opinion is therefore not predictive of future limitation, but rather descriptive
of the Plaintiff’s current educational status. On that basis, it does not, in
itself, support any demonstrable loss of educational achievement.
4.4.2. More significantly, the pleaded case advanced in the Particulars of Claim
filed in 2007 is materially inconsistent with the objective evidence now
before Court. At paragraph 8.3 thereof, it was alleged that “S […] can no
6 Road Accident Fund v Forword 2011 ZAGPJHC 96
7 Mokobodi v Road Accident Fund [2016] ZAGPPHC
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longer continue in mainstream education and shall have to be placed in a
remedial school.” That allegation is demonstrably incorrect in light of the
Plaintiff’s subsequent academic trajectory.
4.4.3. Contrary to the pleaded contention, the Plaintiff continued in mainstream
education and ultimately excelled. She successfully obtained a university
degree, including distinctions. The stark divergence between the pleaded
case and the established factual matrix is, with respect, a matter of serious
5Cconcern, as it reflects a material overstatement of the Plaintiff’s alleged
educational limitations.
4.4.4. In Road Accident Fund v Mzobe
8, the Court emphasised that
exaggerated or unsubstantiated claims undermine the integrity of the
compensation system. While a claimant is unquestionably entitled to fair
and just compensation, such entitlement does not extend to losses that
have not in fact materialised.
4.5. The Occupational Therapy Report Overstates Disability
4.5.1. The occupational therapist’s recommendation for approximately 40 hours
of therapy, together with domestic assistance of 16 hours per month and
the provision of various assistive devices, is, with respect, not supported
by the objective evidence of the Plaintiff’s actual day -to-day functioning.
The Plaintiff is in full -time employment, commutes independently using
public transport and e- hailing services such as taxis and Uber and is fully
capable of managing all essential activities of daily living. This includes
cooking, cleaning, personal care, and the management of her own
financial affairs. These demonstrated abilities are fundamentally
inconsistent with the level of dependency and functional limitation
suggested in the occupational therapy report.
8 Road Accident Fund v Mzobe 2023 ZAKZPHC 45
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4.5.2. Similarly, the reliance placed on the Beck Depression Inventory score of
33, indicating “severe depression”, is not borne out when considered
against the Plaintiff’s observed presentation and functional capacity. In
Smit v Abrahams
9, the Supreme Court of Appeal cautioned that
standardised psychometric test results must not be accepted in isolation or
uncritically where they are contradicted by objective facts, including the
plaintiff’s actual behaviour, functioning, and demonstrated achievements.
4.5.3. In the present matter, the Plaintiff’s daily functioning is plainly inconsistent
with the presence of severe, debilitating clinical depression. She maintains
stable full-time employment in a customer -facing role requiring sustained
cognitive, emotional, and interpersonal engagement. She is able to
interact appropriately with clients and colleagues, maintain structured work
performance, and meet occupational demands. In her personal life, she
sustains relationships, engages socially, and demonstrates clear forward-
planning and life orientation. In particular, her stated goals of acquiring
residential property and establishing a property -related business are
indicative of motivation, organisation, and future- directed thinking, rather
than the marked functional impairment associated with severe depressive
disorder.
4.5.4. Viewed holistically, the Plaintiff’s objective functioning contradicts the
extent of psychological and functional impairment suggested in the expert
assessments. The recommendations for extensive therapeutic
intervention, domestic assistance, and the classification of “severe
depression” are therefore not supported by the totality of the evidence and
are accordingly overstated.
4.6. The Claimed General Damages Are Disproportionate
4.6.1. The Plaintiff sought general damages in the amount of One Million Nine
Hundred Thousand Rand (R1,900,000.00), relying inter alia on Moneuoa v
9 Smit v Abrahams 1994 (4) SA 1 (A) [1]
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Road Accident Fund and Maribeng v Road Accident Fund, in which
awards in the region of One Million Nine Hundred Thousand Rand
(R1,900,000.00) (in present -day value) were made in respect of child
plaintiffs who sustained severe traumatic brain injuries.
4.6.2. However, those authorities are clearly distinguishable on their facts. In
both Moneuoa and Maribeng
10, the plaintiffs were left with profound and
enduring neurocognitive deficits, required placement in special education
environments, and had no realistic prospect of completing mainstream
schooling, obtaining tertiary qualifications, or engaging in skilled
employment. Their functional capacity was significantly and permanently
compromised.
4.6.3. By stark contrast, the Plaintiff in the present matter has achieved
outcomes fundamentally inconsistent with such levels of disability. She has
successfully obtained a university degree, is gainfully employed within the
banking sector, and earns a stable and substantial income. These
objective facts demonstrate a level of cognitive, educational, and
occupational functioning materially higher than that of the plaintiffs in the
comparator cases relied upon.
4.6.4. In De Jongh v Du Plessis
11, the Supreme Court of Appeal emphasised
that comparable awards must be applied with caution, and that each case
ultimately turns on its own facts. The Court further confirmed that a plaintiff
who has made a good functional recovery should not be placed on the
same footing, for purposes of general damages, as a plaintiff who remains
severely and permanently disabled.
4.6.5. In the circumstances, and having regard to the Plaintiff’s actual recovery,
functioning, and current quality of life, an award in the amount of Four
Million Five Hundred Thousand Rand (R4,5 00,000.00) is fair, reasonable,
and appropriate compensation for the Plaintiff’s proven non- patrimonial
10 Moneuoa v Road Accident Fund (2021) & Maribeng v Road Accident Fund (2021)
10 Moneuoa v Road Accident Fund (2021) & Maribeng v Road Accident Fund (2021)
11 De Jongh v Du Plessis 2005 (5) SA 457 (SCA)
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loss, including pain and suffering, residual headaches, photosensitivity, left
knee discomfort, and minor scarring. This amount properly reflects the
Plaintiff’s residual sequelae without overcompensating for injuries that
have not resulted in the profound limitations contemplated in the
comparator authorities.
5. THE CONCESSION BY PLAINTIFF'S COUNSEL
5.1. It is appropriate to record that, during argument, Plaintiff’s counsel was
candid and professional in his approach. When questioned regarding the
Plaintiff’s current occupational functioning, he fairly conceded that the
Plaintiff “is doing well” and “is able to achieve her KPIs at work.”
5.2. This concession was appropriately made and accords with counsel’s duty
to the Court. In Prince v President of the Law Society of the Cape of Good
Hope
12, the Constitutional Court affirmed that legal practitioners owe a
duty of candour to the Court and must not mislead, whether by
commission or omission. In making the above concession, counsel
properly discharged that duty.
5.3. However, the concession is materially significant and, with respect,
fundamentally undermines the Plaintiff’s claim for substantial loss of
earning capacity. A Plaintiff who is demonstrably performing well in her
employment, achieving her Key Performance Indicators, and functioning
effectively in a skilled occupational environment cannot, on the same facts,
sustain a claim premised on a severe diminution of earning capacity
resulting in multi -million rand losses. The two positions are, on any
reasonable assessment, irreconcilable.
12 Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 (CC)
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6. THE FUTURE MEDICAL EXPENSES UNDERTAKING
6.1. The Defendant is obliged in terms of section 17(4)(a) of the Road Accident
Fund Act 56 of 1996 to furnish an undertaking in respect of reasonable
future medical and related expenses arising from the injuries sustained in
the collision.
6.2. However, such undertaking is not unqualified. It is limited to treatment that
is both reasonably necessary and causally linked to the injuries sustained
in the accident. In Road Accident Fund v Mzobe
13, the Court reaffirmed
that the Road Accident Fund is not required to provide undertakings for
speculative, precautionary, or medically unsupported interventions.
6.3. In the present matter, the orthopaedic surgeon, Dr Kumbirai,
recommended a left anterior cruciate ligament reconstruction at an
estimated cost of One Hundred and Twenty Thousand Rand
(R120,000.00). However, the objective radiological findings do not support
such an invasive intervention. The MRI report of the left knee records only
a small effusion, with no evidence of a tear. Clinically, the Plaintiff presents
with Grade II ligamentous laxity.
6.4. Importantly, in standard orthopaedic practice, Grade II ACL laxity in the
absence of functional instability is generally managed conservatively
through physiotherapy, strengthening, and activity modification rather than
surgical reconstruction. The Plaintiff, in any event, ambulates with a
normal gait, maintains full-time employment, and does not report episodes
of functional instability or mechanical symptoms. Her complaints are
limited to intermittent pain, particularly in cold weather and after prolonged
standing.
6.5. In these circumstances, the proposed surgical intervention is not medically
indicated on the objective evidence and accordingly falls outside the scope
13 Road Accident Fund v Mzobe 2023 ZAKZPHC 45
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of reasonable future medical treatment for which an undertaking should be
furnished.
7. PAST MEDICAL EXPENSES
7.1. The Plaintiff claims Five Thousand Rands ( R5,000.000 for past medical
expenses. This amount is modest, unchallenged, and clearly reasonable.
It will be awarded in full.
8. COSTS
8.1. The general rule is that costs follow the result. The Plaintiff has achieved
an award for general damages, past medical expenses, and a limited
section 17(4)(a) undertaking.
8.2. The Plaintiff sought costs on scale C. However, Scale C is reserved for
matters of exceptional complexity or importance. This matter, while
significant to the Plaintiff, involved routine expert evidence and was
ultimately resolved on the basis of concessions and objective
contradictions. More importantly, the Plaintiff exaggerated her claim to a
degree that required judicial intervention. In Nel v Road Accident Fund
14 ,
the court reduced the cost award where a plaintiff had exaggerated her
claim, holding that "a plaintiff who succeeds on a fraction of her claimed
amount cannot expect a full indemnity for all costs incurred in pursuing
inflated claims."
8.3. In this matter, the Plaintiff claimed over Fifteen Million Five Hundred
Thousand Rand (R15,500,000.00) and has been awarded approximately
Four Million Five Hundred Thousand Rand (R4, 500,000.00) plus a limited
14 Nel v Road Accident Fund [2020] ZAGPJHC 189
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undertaking. She has succeeded on less than 3% of her claimed
patrimonial loss. In these circumstances, costs on Scale B are appropriate.
9. CONCLUSION
9.1. This matter illustrates a recurring tension in personal injury litigation: the
tendency to equate a severe mechanism of injury with an assumption of
catastrophic long- term impairment. There is no dispute that the Plaintiff
sustained a serious traumatic brain injury, evidenced by a Glasgow Coma
Scale of 3/15. She was critically ill and endured a significant period of
acute medical risk. She is, without question, entitled to fair and just
compensation for that ordeal and for the residual sequelae that persist.
9.2. However, the objective evidence demonstrates that the Plaintiff has, in
material respects, exceeded the pessimistic prognoses contained in
certain expert assessments. She has successfully completed tertiary
education, secured and maintained stable employment, and functions
independently in her daily life. These achievements are not irrelevant to
the assessment of damages; rather, they are central to the proper
evaluation of her actual loss. The law does not compensate for
hypothetical worst-case outcomes that did not materialise, but for proven,
probable loss.
9.3. In Road Accident Fund v Ndlovu
15, the Supreme Court of Appeal
emphasised that the assessment of damages is not a mechanical
exercise, but rather a flexible judicial evaluation based on all relevant
facts, requiring fairness to both the claimant and the defendant. The Court
reaffirmed that awards must reflect actual proven loss and not speculative
or inflated assumptions of future impairment.
9.4. In the present matter, a claim in the region of Fifteen Million Five Hundred
Thousand Rand (R15 500 000,00) is not borne out by the evidence. By
15 Road Accident Fund v Ndlovu 2024 ZASCA 85
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contrast, an award of approximately Four Million Five Hundred Thousand
Rand (R4,500,000.00), together with a properly tailored undertaking for
reasonable future medical expenses, appropriately reflects the Plaintiff’s
proven residual impairment and actual circumstances.
9.5. Such an outcome strikes the necessary balance between fully
compensating the Plaintiff for her actual loss while ensuring that the award
remains fair, reasonable, and grounded in evidence, as required by the
principles governing delictual damages.
9.6. The following order is therefore made.
10. ORDER
10.1. The Order granted on the 30th January 2026 stands.
_____________________
ACTING JUDGE OF THE HIGH COURT
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines/ Courtonline. The date for hand-down is deemed to be 21 May 2026.
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APPEARANCES:
Counsel for Plaintiff: Adv. R Mthembu
Email: rmthembu1@gmail.com
Cell: 076 742 2532
Name of Firm: MN MKANSI INC ATTORNEYS
E-mail address: reception@mnmkansiinc.co.za
Tel: 011 766 3304
Name of Claims Handler: ELIAS MATALENI
CLAIM NO: 67/1012774/02
LINK NO: 1978304
E-mail address: Mendowm@raf.co.za