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Introduction
[1] This is an application for default judgment against the Road Accident Fund ( “the
Defendant” emanating from an action instituted against the defendant following a
motor vehicle accident that occurred on 26 January 2017.
The parties
[2] The plaintiff is Kgomotso Comfort Thekiso, a 47 -year-old male, instituting this
action in his personal capacity.
[3] The defendant is Road Accident Fund.
Background
[4] The plaintiff instituted an action for damages by way of service of a combined
summons on the defendant.
[5] The defendant filed a notice of intention to defend on 8 August 2019 but
subsequently failed to deliver its plea. A notice of bar was served on the defendant
on 1 October 2025. Despite this, the defendant has not filed a plea. The plaintiff
now seeks default judgment on the merits and quantum for past and future loss of
earnings.
Accident and liability
[6] On 26 January 2017, at approximately 05h40 on Bron Street, Rustenburg , the
accident occurred between the plaintiff who was the driver of a motor vehicle with
registration H[…]NW and the insured driver, Mr Motswana Nikla Robert, drove
a vehicle with registration R […]NW. The plaintiff alleges that the insured driver
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executed a U -turn at an unsafe time and collided with the plaintiff’s vehicle,
causing the accident.
[7] The plaintiff’s attorney, Mr Clifford Mopedi, deposed to an affidavit confirming
that the summons was served on the defendant on 31 July 2019 and that the
defendant is in default of filing a plea. The plaintiff has complied with all
procedural requirements. There is no contradictory version to negate the plaintiff’s
version. Accordingly, default judgment is granted against the defendant on the
merits, with the defendant being held 100% liable for the plaintiff's proven
damages.
Rule 38(2) application
[8] On the hearing of the application for default judgme nt, the plaintiff brought an
application in terms of Rule 38(2) to lead evidence by way of affidavit. That
application was unopposed and is granted.
Injuries and sequalae
[9] The expert reports confirmed that because of the accident, the plaintiff sustained
the following injuries:
9.1. Head injury (with sequelae including personality change, poor short -term
memory, poor concentration, and recurrent headaches);
9.2. Laceration on the forehead (resulting in a 4cm x 1cm scar);
9.3. Fracture of the left patella (which has not united); and
9.4. Left knee haemarthrosis.
[10] The orthopaedic surgeon, Dr P.T. Kumbirai, recorded the assessment of a 9%
whole person impairment (WPI) but opined that the injuries constitute a serious
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long-term impairment or loss of body function. He noted that the plaintiff suffers
from chronic left knee pain exacerbated by prolonged standing, walking, and
driving. The fracture of the left patella has not united, and the plaintiff would
benefit from open reduction and internal fixation surgery.
[11] The occupational therapist, Mr Kgatale Malatse, found that the plaintiff is limited
to medium work demands with reasonable accommodation. According to his
assessment, the plaintiff struggles with prolonged sitting, standing, walking, and
lifting heavy items , and h is competitiveness in the open labour market has been
compromised.
[12] The industrial psychologist, Ms Faith Chamisa -Maulana, concluded that the
plaintiff is a vulnerable employee and an unequal competitor in the open labour
market due to his physical limitations, cognitive deficits, and emotional
challenges.
Analysis of loss of earnings
[13] It is settled that a ssessment of damages for loss of earning capacity is not a
mechanical exercise , and the court must , based on the evidence and guided by
comparable cases, exercise a wide discretion to award what it considers fair and
adequate compensation.
[14] In the present case, t he actuary, Mr Wim Loots, calculated the plaintiff’s loss of
earnings as R3 323 065.00 (comprising past loss of R494 544.00 and future loss
of R2 828 521.00). This calculation was based on the expert opinions and used no
contingency deductions, leaving those deductions to the court’s discretion.
[15] Without doubt, c ontingency deductions are a recognised tool to account for
general risks and vicissitudes of life that may affect a person’s earning capacity,
such as unemployment, illness, injury, economic downturns, or early retirement.
However, the court has a wide discretion in determining appropriate contingency
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deductions. The Appellate Division (now the Supreme Court of Appeal) in
Southern Insurance Association Ltd v Bailey NO 1, held that a court must make a
realistic assessment of the prospects of the hypothetical uninjured person and the
actual injured person, applying percentages that are fair in the circumstances.
[16] The Supreme Court of Appeal in Road Accident Fund v Kerridge 2 opined as
follows:
“Any claim for future loss of earning capacity requires a comparison of what a claimant
would have earned had the accident not occurred, with what a claimant is likely to earn
thereafter. The loss is the difference between the monetary value of the earning capacity
immediately prior to the injury and immediately thereafter. This can never be a matter
of exact mathematical calculation and is, of its nature, a highly speculative
inquiry. All the court can do is make an estimate, which is often a very rough
estimate, of the present value of the loss.”3 (Footnote omitted and emphasis added)
[17] In Southern Insurance Association Ltd v Bailey NO, it was held that contingencies
are a practical method of accounting for the unknown future and are in the
discretion of the trial court. The Court stated:
“One of the elements in exercising that discretion is the making of a discount for
‘contingencies’ or the ‘vicissitudes of life’. These include such matters as the
possibility that the plaintiff may in the result have less than a ‘normal’ expectation of
life; and that he may experience periods of unemployment by reason of incapacity due
to illness or accident, or to labour unrest or general economic conditions. The amount
of any discount may vary, depending upon the circumstances of the case.”
1 1984 (1) SA 98 (A).
2 1024/2017 [2018] ZASCA 151 (01 November 2018).
3 Id para 40.
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[18] In Brits v Road Accident Fund4, the court applied a 15% pre-morbid and 35% post-
morbid contingency differential. The court per Strijdom J stated:
“It was submitted by the plaintiff that the court must apply a 30% contingency
differential 15/45. I am of the view that in the circumstances of this case a 35%
contingency will be fair. Such a contingency takes into account that the plaintiff is still
employed and may remain in that position and also allows for the possibility that he
may be rendered unemployable if he should lose his job . The result would be a 15%
pre-morbid contingency and a 35% post -morbid contingency. A differential of 20%
contingency.”5 (Emphasis added)
[19] In light of the jurisprudence above, I am of the view that appropriate contingency
deductions must be applied as follows. A deduction of 30% for pre-accident is
appropriate given that t he plaintiff had a stable employment history as a driver,
but he was in a semi -skilled category. A higher than standard contingency is
justified given the potential for fluctuations in the transport industry, health
vicissitudes, and the general risk of unempl oyment. The usual range for such
workers is 15%–30%. A 30% deduction at the upper end is fair.
[20] Post-accident deduction of 35% is appropriate . While the plaintiff has retained
employment as a driver, he performs his duties with pain and difficulty. He is a
compromised and vulnerable employee. The risks of future unemployment, early
retirement, or reduced work capacity are substantially higher than for an uninjured
peer. A 35% deduction is reasonable.
4 (54415/2018) [2025] ZAGPPHC 417 (11 April 2025).
5 Id at para 24.
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Recalculation of loss of earnings
[21] I now consider recalcu lation of loss of ear nings in light of the adjusted
contingencies of 30% on pre-accident and 35% on post-accident.
[22] Applying these contingency deductions to the actuary’s base calculations yields
the following revised loss of earnings:
Description Actuary’s Base
Value
Contingency
Deduction
Deducted
Value
Pre-Accident
Earnings R2 773 750.00 30% R1 941 625.00
Post-Accident
Earnings R2 279 206.00 35% R1 481 484.00
Difference (Past Loss) R494 544.00 R460 141.00
Description Actuary’s Base
Value
Contingency
Deduction
Deducted
Value
Pre-Accident
Earnings R5 045 294.00 30% R3 531 706.00
Post-Accident
Earnings R2 216 773.00 35% R1 440 902.00
Difference
(Future Loss)
R2 828 521.00 R2 090 804.00
Actuary’s Base Value (R) Recalculated Value
Total Past Loss of Earnings R494 544.00 R460 141.00
Total Future Loss of Earnings R2 828 521.00 R2 090 804.00
TOTAL LOSS OF EARNINGS R3 323 065.00 R2 550 945.00
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[23] The recalculation results in a total loss of earnings of R2 550 945.00. This amount
represents fair and just compensation for the plaintiff’s past and future loss of
earning capacity.
General damages
[24] The plaintiff claims R700 000.00 for pain, suffering, and loss of amenities of life.
The orthopaedic surgeon opined that the injuries constitute a “serious long -term
impairment”.
[25] However, the plaintiff has requested that the claim for general damages be
postponed sine die to allow for further evidence or assessment. I agree to that
request. An order is granted postponing claim for general damages sine die.
An undertaking in terms of section 17(4)(a)
[26] The plaintiff claims an undertaking from the defendant in terms of section 17(4)(a)
of the Road Accident Fund Act 56 of 1996. The expert reports confirm that the
plaintiff requires future medical treatment, including potential surgery on his left
patella, pain management, and occupational therapy. The defendant is ordered to
furnish the plaintiff with an undertaking in terms of section 17(4)(a).
Costs and interest
[27] The plaintiff sought costs of suit on party and party scale B. I see no reason not to
award the costs in favour of the plaintiff . The defendant shall pay the plaintiff’s
taxed or agreed party and party costs on scale B , including the costs of 17 March
2026 when the matter was stood down to 18 March 2026 for settlement, the costs
of counsel, and the costs of obtaining expert reports, and all reasonable
disbursements.
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[28] The interest on the capital amount of R2 550 94 5.00 shall accrue at 10.5% per
annum if the amount is not paid within 180 days, calculated from the expiry of 14
days after the due date to the date of payment. Interest on costs shall accrue at
10.5% per annum from the date of the allocator to the date of payment.
Order
[29] Accordingly, I make the following order:
(1) An application in terms of Rule 38(2) is granted.
(2) The defendant shall be liable 100% of agreed or proven damages of
the plaintiff related to the accident that occurred on 26 January 2017.
(3) The defendant shall pay to the plaintiff a total amount of R2 550
945.00 (Two Million Five Hundred Fifty Thousand Nine Hundred
Forty Five Rand) in respect of loss of earnings within 180 days from
the date of this order.
(4) In the event the aforesaid amount in paragraph 3 above is not paid
timeously, the defendant shall be liable for interest on the amount at
the rate of 10.5% per annum calculated from the expiry of 14 days to
the date of payment.
(5) The defendant is ordered to furnish the plaintiff with an undertaking
in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996
to pay 100% for the costs of the plaintiff’s future accommodation in a
hospital or nursing home or treatment of or rendering of a service or
supplying of goods to him arising out of the injuries sustained by the
plaintiff and the sequelae thereof in the motor accident which occurred
on 26 January 2017 after such costs have been incurred and upon proof
thereof.