IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETOR IA
CASE NO: 36545/2016
DELETE WHICHEVER IS NOT APPLICABLE
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DATE
In the matter between:
DLANGAMANDLA MDUDUZI LOVEOSE
and
THE ROAD ACCIDENT FUND
LINK NO : 3667324 & 3913563
PLAINTIFF
DEFENDANT
2
JUDGMENT
INTRODUCTION
[1] This is a delictual claim for damages as a result of a motor vehicle collisions
which occurred on the 16th March 2014 and 12th of August 2014. The matter
appeared before court by a way of default judgment application on the 17th of
February 2026.
PARTIES
[2] The Plaintiff is Dlangamandla Mduduz i Loveose an adult male person with full
legal capacity, who was born on 31st of May 1976 ("the Plaintiff ') and who is
currently forty-nine (49) years of age. At the time of the collision, the Plaintiff
was thirty-eight (38) years old.
(3) The Defendant is the ROAD ACCIDENT FUND, a juristic person established in
terms of section 2(1) of the Road Accident Fund Act 56 of 1996 ("the Acf') with
full legal personality and of address 38 Ida Street, Menlo Park, Pretoria,
Gauteng.
ISSUES TO BE DETERMINED
(4] Future medical expenses
[5] Loss of earnings (Past and Future)
3
[6] General damages, as the Defendant has made a determination about the
seriousness of the injuries in terms of the RAF 4 forms.
APPLICATION TO ADMIT EVIDENCE BY WAY OF AFFIDAVIT IN TERMS OF
RULE 38 (2) OF THE UNIFORM RULES
[7] The Plaintiff made an application in terms of Rule 38(2), in order to lead
evidence by a way of an affidavit. Such application was properly served and
accompanied by the expert affidavits. The application was granted.
In this regard the Plaintiff evidence is unchallenged and uncontested as the
Defendant's plea was struck off by the court.
The Plaintiff applied that his quantum evidence be admitted by way of affidavit.
This included:
7 .1. The Plaintiff's quantum evidence and collateral witness evidence; and
7 .2. In terms of the Judge President's Practice Directive 1 of 2021 (paragraph
29), evidence may be tendered by affidavit, and the Trial Judge may
exercise his/her discretion to accept such evidence.
7.3. In the matter of Abraham v City of Cape Town1, the Court held:
1 1995 (2) SA 319
•• tt was common cause before me that where an application for default
judgment se,ves before a Court , it has a clear and unfettered discretion
4
in terms of the relevant Rule of Court to decide whether or not to hear
oral evidence on any of the issues which may require to be decided in
order to determine whether or not to grant the relief claimed."
7.4. In Mnisi v The Road Collision Fund and Seven Similar Matters2, the
court held and quoted the following at paragraph 52:
"The subrule provides a mechanism whereby the court may on
application and if sufficient reason is shown, allow that evidence be given
on affidavit. Firstly, there must be an application to adduce evidence by
affidavit. Secondly, there must be sufficient reason for doing so and
thirdly, the court may lay down the terms and conditions for the evidence
to be adduced. In Madibeng Local Municipality v Public Investment
Corporation Ltd 2018 (6) SA 55 (SCA) at 25, the Supreme Court of
Appeal expressed itself over subrule 38(2): 'The approach to rule 38(2)
may be summarised as follows. A trial court has a discretion to depart
from the position that, in a trial, oral evidence is the norm. When that
discretion is exercised, two important factors will inevitably be the saving
of costs and the saving of time, especially the time of the court in this era
of congested court rolls and stretched judicial resources. More
importantly, the exercise of the discretion will be conditioned by whether
it is appropriate and suitable in the circumstances to allow a deviation
from the norm. That requires a consideration of the following factors: the
nature of the proceedings , the nature of the evidence, whether the
application for evidence to be adduced by way of affidavit is by
'/202 2/ ZAMPMBHC 23
5
agreement, and ultimately, whether, in all the circumstances, it is fair to
allow evidence on affidavit.
And at paragraph 53:
"Plaintiffs in RAF matters often request the court to accept evidence upon
affidavit. Especially now where in most RAF matters there is no
appearance by the RAF or where the RAF has not participated in the
pre-trial proceedings or where the RAF has not defended the action
and/or failed to deliver and file a plea. Of course, where the RAF does
not appear at the trial, there will be no request for cross-examination as
provided for in the subrule. Therefore, subject to what I sent out in
paragraphs 613 and 624 below, I see no reason why Rule 38(2) may not
actually be used to contribute to the speedy and cost-effective delivery
of justice in RAF matters.
7.5. The Plaintiff served all information and documentation on the Defendant.
7.6. This is a quintessential example of a matter that can be disposed of by
way of affidavit to save time and costs.
1 Paragraph 61 of the Judgment: · in my view, the approach ,n RAF matters ,n circumstances set out above where there Is no port1cipotion by
the RAF at all or only limited participation or there Is no appearance when the trial Is called for hearing, the approach to be adopted should
be on basis of whot is set out by Froneman J Bengwenyama Minerals (Pry) Ltd and Others v Genorah Resources (Pty) Ltd and Others (CCT
39/10) (2010/ ZACC 26; 2011 (4) SA 113 (CC); 2011 (3/ BCLR 229 rccr
• Paragraph 61 of the judgm ent: "In my view, the approach of Froneman J applies to RAF actions where the circumstances set out in this
judgment apply. The court should be extremely astute and consider all the information before it which includes the pleadings, documents
that were discovered, all reports by the experts and all affidavits (if filed) before the trial commences to determine the way to approach
the trial. The pleadings, the facts that appear from what is in the court file and the expert reports, (especially whether the findings therein)
tally with the rest of the information ... •
6
7. 7. The Plaintiff requested that the expert affidavits and the affidavits in
respect of the quantum evidence of the Plaintiff be admitted as evidence.
7.8. Insofar as any of the experts in their reports rely upon hearsay evidence
the Honourable Court was respectfully requested to admit the said
hearsay evidence as an exception to the hearsay rule.
7.9. The application in terms of Rule 38 (2) was granted by the court.
[8) QUANTUM:
8.1. The issues to be decided in this matter are what should be the fair,
reasonable and appropriate amount for general and special damages
(loss of earnings), the contingencies to be applied to the calculations and
future medical expenses to be incurred by the Plaintiff in the future.
8.2. In quantifying its claim, the Plaintiff obtained medico-legal reports from
the following experts in support of her claim:
8.1.1. Or P Engelbrecht (Orthopaedic Surgeon);
8.1.2. Dr H Gauche' (Radiologist);
8.1.3. Dr N Adroos (Radiologist);
8.1.4 Dr M Bongers (Urologist);
8.1.5. W Pretorius (Industrial Psychologist);
8.1.6. Dr P Peirce (Ophthalmologist);
8.1.7. Or JPM Pienaar (Plastic and Reconstructive Surgeon);
8.1.8. G Cilliers (Physiotherapist);
8.1.9. Dr Mazabow (Neuropsychologist) ;
8.1.1 0.Dr PJ Nel (Specialist Surgeon);
8.1.11.Dr L Nel (Psychiatrist);
8.1.12. N Hyde (Occupational Therapist);
8.1.13. Alex Munro (Actuary)
[9] The Defendant did not appoint any medico-legal reports.
7
[10] The Plaintiff's reports are unchallenged, it was correctly submitted by the
Plaintiff's counsel that they remain uncontested, and they should be admitted
as evidence in terms of Rule 38(2). An application in terms of the said rule was
granted.
Herewith follows a summary of the Plaintiff's claim based on the
aforementioned reports.
INJURIES SUSTAINED
Mild concussive head injury, with a Glasgow coma scale of 13/15
Facial injuries including injury to both eyes
Injury to the left elbow
According to the Orthopaedic surgeon, S36, injury of intra-abdominal organs
(kidney contusion)
Injury to head and left eye
Injury to abdomen
Injury to knee
8
Laceration of 1.5cm above the right eye
Injury to neck, right scapula area as well as left ankle.
QUANTUM
(11] EXPERT MEDICO-LEGAL REPORTS:
There are twelve (12) experts for the Plaintiff. No expert reports were filed by
the Defendant. Consequently , there are no joint minutes, as only the Plaintiff's
expert opinions are on record.
(12] Past medical expenses
The Plaintiff attended a public hospital, hence there are no past medical
expenses that were incurred. The court was not referred to any medical
vouchers incurred.
[13] FUTURE TREATMENT AND ASSISTIVE DEVICES:
The experts foresee that future treatment will be required. It is the court's view
that this head of damage should be covered from an undertaking to be awarded
to the Plaintiff, in terms of section 17 (4)(a) of the Road Accident Fund Act.
TREATMENT ENVISAGED IN THE FUTURE:
13.1. The Neurologist recommends conservative treatment. Total cost per
annum for comprehensive pharmacological and non-pharmacological
treatment of chronic post - Traumatic Headaches/Migrane Type
including treatment for sequela and complications that are in private
sector of RSA is R70 000-00 (seventy thousand rand) per annum
9
conservatively . This includes pharmacological and non
pharmacological treatment, doctors.
13.2. The Plaintiff will require surgery to his left knee (arthroscopic procedure),
a decompression procedure of his right shoulder and a 3% (three
percent) possibility of a cervical spine decompression, fusion and
instrumentation. In addition, provision should be made for conservative
treatment.
13.3. The Plaintiff will require 50 (fifty) to 75 (seventy five) sessions of
psychotherapy.
13.4. According to the Orthopaedic Surgeon the Plaintiff will require
conservative with NSAIDS (NONSTEROIDAL ANTI-INFLAMMATORY
DRUGS) and ANALGESICS
13.5. The Plaintiff will benefit from scar revision surgery.
13.6. The Plaintiff will require occupational therapy as well as physiotherapy
and biokinetic rehabilitation. Provision should be made for special
adapted equipment as well as domestic assistance.
As a result, the Plaintiff is awarded future medical expenses in terms of Section
17 of the Road Accident Fund Act. In the matter of Knoetze obo Malinga and
Another v Road Accident Fund (77573/2018 ; 54997/2020 [2022 ZAGPPHC
819; [2023] 1 All SA 708 (GP), the CEO of the Defendant offered a blank
undertaking for all proven future medical hospital and related expenses in all
cases before the court where such are proven and therefore it is held that the
Plaintiff is entitled to such an undertaking.
10
GENERAL DAMAGES
[14] The expert opinions.
(a) Dr Piet Engelbrecht (Orthopaedic Surgeon)
THE INJURIES SUSTAINED BY THE PLAINTIFF :
According to the expert the Plaintiff has given up on sport due to leg as
well as neck symptoms. He cannot run.
The patient mentions blood in stools, occasional pain of abdomen as
well as discomfort.
He remains with pain around right eye, states that right eye vision is
impaired.
On daily basis he experiences neck pain, posterior aspect of neck and
rotation especially to right side impaired. Pain localises in neck and upper
thoracic spine area, described as cramp-like in nature.
Neck spasm noted, T6 compressing fracture with 35% anterior vertebral
body height loss.
(b) Dr P C Pierce Ophthalmologist:
Following the second accident, he complains that his eyes burn when
the light is bright.
He has decreased vision in bright light.
The right eye is painful when it is cold.
11
There was a significant scar of the right upper eyelid just below the brow
area and a linear scar in the brow laterally.
The scarring below the right brow involving the upper eyelid area is
cosmetica lly unacceptable .
(c) Dr Mazabow Neuropsychologis t:
The Plaintiff reports expe riencing pain in his abdomen when standing,
sitting or when walking for long, and he says that this began after the
accident of August 2014. He adds that at times he has blood in his urine.
The wife confirms this and says that it began after the accident of August
2014.
He has stiffness in his neck when turning his head to the right side, which
he says has been the case since the accident of August 2014.
His neck pain is also painful when sitting for long and when sleeping at
times .
He has lower back pain when walking, sitting for long or bending , and he
says that this began after the accident of August 2014.
He has pain in his left ankle after walking distances, and this began after
the first accident of March 2014, and this worsened after the accident of
August 2014, though he says that this is improving over time.
He no longer plays soccer , which he enjoyed prior to the first accident ,
because of the pain in his ankle.
(d)
12
He has occasional pain in his left knee, which he says began in 2017.
He has occasional headaches , which are not frequent or intense.
He says that the vision in his right eye remains blurred, especially in
bright conditions.
He has difficulty remaining asleep at night and he is fatigued in the
daytime, and he thinks that this began in 2020. The wife describes him
as "always tired, he does nothing and is always sleeping". She says that
this has been the case since August 2014.
Sustained a head injury and left facial nerve palsy, lost consciousness
and woke up at the hospital the same day.
Symptoms of headache, cognitive and behavioural disturbances began
five (5) days after the accident.
She complains of post traumatic behavioural disturbances , post
cognitive disturbance and memory loss.
She sustained a mild head injury, and it has caused chronic symptoms
and impairment.
Dr P J NEL Special Surgeon:
The Plaintiff walks with a limp.
He has daily abdominal pain and discomfort.
He has haematuria , which is unexplained except for the history of the
blunt abdominal trauma.
13
(e) Dr Lynette Nel Psychiatrist:
(f)
He has post-traumatic anxiety.
He has chronic severe major depressive disorder and post-traumatic
anxiety secondary to accidents of 16 March 2014 and 12 August 2014.
It is already seven years and ten months post-accident and no further
significant improvement is expected within the next year.
He qualifies through the narrative test 5.3 chronic nature and impairment
as per his psychiatric diagnosis and the life changing sequelae related
to the injuries sustained at the time of the accident.
APPLICABLE CASE LAW FOR GENERAL DAMAGES
I have considered the several case law as submitted by the Plaintiffs
Counsel and I am of the view that R850 000.00 (Eight Hundred and Fifty
Thousand Rand) is a fair compensation for his pain and suffering.
LOSS OF EARNINGS
Natasha Van Der Heyde Occupational Therapist:
Residual Work Capacity
In her report opines that, the Plaintiff displayed the strength and
endurance for work of light demand in the assessment with poor position
tolerance noted and pain reported in most aspect of mobility and agility
testing.
14
He does not meet the demand level for pre- and post-accident position
as a scaffold erector that is classified as work of heavy demand when
paired with similar positions in the DOT (Dictionary of Occupational
Titles)
Reported work related difficulties and conflict after the accidents as
reported by the Plaintiff are in line with findings noted on page 6 of
Christa Du Toit report after a conversation between herself and Mr
Kubayi the Plaintiff's supervisor.
He was a good worker but on return following the accident he struggled
with the physical demands of the job and complained about pain in his
left ankle.
He is frequently absent from work and noted that it is clear that he is
experiencing some physical difficulties that is exacerbated during colder
months.
Christa du Toit notes on page 9 that he will in all probability be subject
to much longer periods of unemployment for the rest of his career life. In
addition, she notes that workplace information confirmed pain and
absenteeism which confirms that he (at least in the interim) is a
vulnerable worker.
Dr Engelbrecht on page 13 is of the opinion that he has been left with
some loss of work capacity, probably not more than 5%. He notes that
this would indicate the ability to continue working until normal retirement
age although in a lighter capacity.
(g)
15
CLINICAL PSYCHOLOGIST
Dr Mazabow notes that Plaintiff was in possession of an unlicensed
firearm, which he says he was using for his protection, and he was
sentenced to four (4) years imprisonment. He was in prison for two (2)
years before being released on parole, in May 2000.
He was unemployed for the next two (2) years and in March 2002, he
found work at a steel factory in Boksburg as a steel-cutting machine -
operator.
He was retrenched sixteen (16) months later, and he was then
unemployed for a further 2 (two) years.
In 2005 he began working for Top Fix Scaffolding in Wadeville as a
scaffold-erector. After four (4) years he moved to New Horizons
scaffolding in Witbank, in a higher-salaried position, and he remained
there for a year.
He then left to take up higher-salaried employment at south scaffolding
in Limpopo, as a scaffold-erector, working on a contract, which ended
after six (6) months. He was then retrenched and he was unemployed
for a year, in 2013.
In January 2014 he began working for Stefanutti stocks in Secunda, as
a scaffolding-erector , based at Sasol , working in on oil-tanks. At that time
the first accident occurred in March 2014, he had been working there for
only twelve months.
(h)
16
Ms Michelle Baig Industrial Psychologist
Career growth and Earning Potential - 'But for the accident'.
Pre -Accident
(i) Mr Dlangamandla worked as a general worker for the most part
of his initial career and as a scaffolding charge hand during the
latter parts of his career.
(ii) The type of work he performed is in line with his primary level
education, reported to be Grade 7. His work experience includes
bricklaying, machine operation, and roadworks maintenance.
(iii) Mr Dlangamandla started gaining experience in erecting
scaffolding around 2001, when he also underwent formal training
in this regard. From his employment history, it appears he has
established a career in this line of work. We also note that he has
already experienced career growth working as team leader/
charge hand. Mr Dlangamandla has been mostly working on a
contract basis since 1998.
(iv) At the time of the first accident (6 March 2014), he worked at
Consortium Personnel Consultants (labour brokers for Stefanutti
Stocks). Mr Dlangamandla worked as a charge hand responsible
for erecting scaffolding.
(I)
17
(v) Based on Mr Dlangamandla's account of his work demands, he is
placed in the semi-skilled sector, which is generally associated
with physical manual labour. This is also a highly competitive
portion of the labour market, saturated with many job seekers with
similar profiles. We note that Mr Dlangamandla was employed on
a contract basis, which would further limit his earnings and growth
potential, due to potential periods of unemployment between
contracts and limited career growth opportunities.
(vi) Mr Dlangamandla was 38 (thirty eight) years old when the
accidents occurred. He was thus in the achievement phase of his
career. As indicated in collateral information, the nature of
scaffolding work is mostly on a contract basis, and he would likely
have remained working and competing for employment
opportunities on a contract basis, regardless of the accident. It is
probable that even if he were to secure other employment (similar
to work done in the past) it would likely also have been contract
work.
UNINJURED POSTULATION
Uninjured, given the information at hand, the following is postulated:
"But for the Accident" uninjured scenario:
(a) At the time of the accident, Mr Dlangamandla's gross earnings for
18
2013/2014 amounted to R103,350.00 (one hundred and three thousand
three hundred and fifty rand) per annum as discussed in 8.6.1.
(b) As indicated in 8.6.2 his earnings in 2018 have grown to at least an
average of R12,686.00 (twelve thousand six hundred and eighty six
rand) per month when employed. Mr Dlangamandla indicated that he
normally had employment for 12 (twelve) months. Although he noted that
he was pre-accident "most of the time" employed for 12 months a year,
for conservative calculations, the Court accepts employment for 10 (ten)
months a year. Based on this very conservative assumption, his annual
earnings could have amounted to R126,860.00 (one hundred and twenty
six thousand eight hundred and sixty rand) in 2018 (R12,686 x 10 months
employed per annum).
(c) The Court notes that (injured) in November 2018, Mr Dlangamandla was
dismissed due to pain and discomfort related to the accidents which
resulted in regular absenteeism. But for the accidents, he would likely
not have lost his employment. (He could also have worked for 12 months
a year).
(d) For conservative calculations, accept straight-line increases from his
2013/2014 earnings of R103,350.00 per annum, to earn a conservative,
probable income of R12,686.00 p/m, R126,860.00 per annum in
February 2018, assuming employed 10 months per annum.
19
(e) Mr Dlangamandla would likely have continued working as a Scaffolding
charge hand (or similar) on a contract basis. Therefore, the Court accept
at least inflation-related growth until retirement age 65. [Note the
conservative assumption of 10 months per year employment].
U) Contingency Considerations:
(a) Given the nature of Mr Dlangamandla's work he may have been
unemployed for periods between contracts regardless of the accident.
Above the very conservative assumption of employment 10 months a
year, the calculation base was suggested. The Court will apply
appropriate contingencies.
(b) As per Dr Mazabow "Mr Dlangamandla had managed to secure
employment for a large portion of his working-life, despite his very limited
education (Std 3), and despite his 2 years of imprisonment (and with
periods of unemployment also present during that history.) [par. 10.5.2).
(c) Dr Bongers indicated in his latest report, "the kidney in the left, with its
abnormality, is not the result of the accident. There are no urological
sequelae related to the accident". The potential impact of non-accident
related health factors on his work and earning capacity should not be
considered.
(k) POST-MORBID - IMPACT ON EMPLOYABILITY AND WORK
CAPACITY
(I)
20
Impairment and disability
(a) We refer to the previous report and addendum report section
9. 1 . 1 to 9. 1 .4.
(b) From the more recent expert reports received, it is noted that WPI
ratings from the different experts remain unchanged.
Post-accident employability and work capacity
Based on the newest available information and expert opinion, the Court
notes (with reference also to the previous reports), the following:
(m) Physical Ability to Work
(a) Post-accident the claimant struggles with pain. Gerda Cilliers
indicated " ... the claimant complained of experiencing pain to his
left thigh and neck. [par 12.1) ... he struggles with left shoulder and
upper arm pain as well as left ankle pain ... also struggles with
frontal headaches spreading to the right eye, cervical spine pain,
left knee pain and left abdominal groin/thigh pain as well as lumbar
spine pain. [par 12.2).
(b) The occupational therapist (Ms van der Heyde) supported this
indicating that "Various experts are in agreement that he remains
with physical limitations and pain negatively impacting on and
restricting his personal and work functioning" [p15).
(n)
21
(c) Ms Cilliers indicated that "He most definitely does not meet the
requirements needed for work in the heavy work demands level as
a scaffolding erector in my opinion". [par 12.7).
Scarring, Psychological and Psychiatric impact on work:
(a) Dr JPM Pienaar indicated that ''His facial scars subject him to social
rejection and stigmatization ... This accident has left this gentleman
with serious permanent scarring and disfigurement. It seriously
affects his appearance and dignity. It causes social anxiety and
embarrassment".
His opinion remains unchanged in his updated report.
(b) The claimant, during the assessment, complained of emotional
difficulties. Gerda Cilliers, as well as Ms van der Heyde, indicated
"depressed mood".
(c) Both Dr Mazabow and Dr Nel indicated that he at most experienced
a mild head injury with no long-term impact expected.
(d) Dr Mazabow opines that " ... the primary residual difficulties
following from the accident pertain to Mr Dlangamandla's
experience of chronic pain and to the psychosocial sequelae of the
accident. [par 10.2]. Dr Nel, in this regard, also indicated that he
sustained a mental and behavioural disorder" [p22] and that
22
"During psychiatric evaluation , he met the criteria for Major
Depressive Disorder with post-traumatic anxiety secondary to the
accidents". [p24].
(e) Dr Mazabow indicated that the depressive symptoms include the
following: "chronic sadness, discouragement about the future,
anhedonia (reduced capacity to experience pleasure, a desire to
cry, loss of social interest, difficulty making decisions, lowered
energy, sleep disturbance , irritability and fatigue)" [par 10.2.2.2].
(f) Dr Nel indicated that he needs "an optimised psychiatric treatment
plan, .. . even with optimally treated, the prognosis will be
complicated by the chronic pain he still experiences due to the
orthopaedic injuries and the significant scarring" [p24].
(g) In both Dr Nel and Dr Mazabow's updated reports of 2025, they
maintain their opinions and prognosis.
(h) An Industrial Psychologist it is noted that the relationship between
pain and psychological factors and the impact this has on
employment and productivity are well documented. From both a
research perspective and our experience , depression and mood
disorders serve as highly disruptive factors for both performance
level and motivation levels (which in turn also affect performance
levels).
23
(i) Psychological and Psychiatric factors, as diagnosed and mentioned,
are known and expected to influence an individual's work
performance. The impact can be incremental at times and significant
at others, but overall, this tends to influence the individual's ability to
sustain consistent levels of workplace performance , either due to
inattention, negligence, or simple loss of motivation.
U) Thus, Mr Dlangamandla is considered psychologically more
vulnerable because of the accident in question , and his work
performance and effectiveness are expected to be negatively
affected as a result, should he ever engage in work again (which,
from a physical perspective, appears to be unlikely).
(k) As a charge hand (which also requires a large percentage of heavy
work), he is also required to supervise others, delegate tasks,
perform very basic administrative work, organise work, etc., all of
which require higher levels of cognitive functioning. This is a work
element in which he is much more vulnerable after the accidents.
(I) In summary , we thus agree with Ms van der Heyde, who concluded
that "Psychological issues ... (if not optimally treated - note poor
prognosis expected as per Dr Nel) are expected to maintain a low
mood and energy levels that in turn would keep him from seeking
and maintaining gainful employment in future".
24
(o) Impact on Work Choices:
(a) The Court notes that considering the contract nature of employment
and the physical nature of scaffolding erector and charge hand work
it is practically unlikely that high levels of accommodation can and
will be allowed [The chance that contracted employees are
accommodated is small]. Contractors (labour brokers) have a large
pool of job seekers at their disposal and thus do not need to employ
individuals with limitations or accommodation needs.
(b) As was above discussed, both Ms van der Heyde and Ms Cilliers are
of the opinion that from a purely physical work capacity perspective
that he "does not meet the demand level (heavy) for his pre- and
post-accident position as a scaffold erector in terms of strength, with
poor position tolerance and biomechanical weakness noted (and
pain reported in his left lower limb and spine noted as the limiting
factor) in inherent job demands. [p15]. Ms van der Heyde, in fact,
concludes in her 2025 report that he can be viewed as unemployable
in the open labour market (p 14, conclusion).
(c) Psychologically, psychiatrically (also due to pain and scarring), his
intrapersonal functioning (motivation, drive, energy, self-regard,
executive functioning , etc) as well as interpersonal functioning is
limited. His work choices are therefore also severely limited in this
regard.
25
(d) The expert concluded that he is a very poor candidate for
employment with extremely limited (if not no) real/realistic job
options. The fact that he has remained unemployed since 2018/2019
after job loss, probably due to the accident) and reportedly failed
medical assessments during job applications (reported but not
validated; reasonable expectation), further supports this. Mr
Dlangamandla can well be expected to remain uncompetitive in the
open labour market and Psycho-Legal Evaluation Report Dr. W.
Pretorius Confidential 25 PS0054771.
(e) Ms van der Heyde expressed a similar opinion indicating that "He is
physically deconditioned and does not meet the demand level
(heavy) for his pre- and post-accident position as a scaffold erector
in terms of strength , with poor position tolerance and biomechanical
weakness noted (and pain reported in his left lower limb and spine
noted as the limiting factor) in inherent job demands. [p15].
(f) In her updated report (2026/02/09) Ms vd Heyde notes that he still
only displayed the strength for work up to light demand in her
reassessment, with poor position tolerance noted and pain reported
in most aspects of mobility and agility testing (p 13, par 8.2.1 ), and
ultimately remains of the opinion that he is unemployable in the open
labour market and remain unemployed. In the unlikely event of
26
securing employment , it will probably be for a short contract or for
limited days per month, with a considerable risk of not maintaining it.
(p) Competitiveness
(a) The claimant was employed before the accident most of the time. It
can be expected that he was at least an equal competitor with his
peers in his uninjured state, and his experience and skills likely
counted in his favour, supporting the regular employment he enjoyed
and was expected to continue to secure.
(b) Mr Dlangamandla employment pattern thus drastically changed post
accident. It is not uncommon to see a pattern in which a financially
motivated competitor initially secures employment, often because of
pre-accident reputation and work performance. After accepting
employment (that he is not suitable for and were no substantial
accommodation was possible or offered) a pattern starts where the
competitor struggle to retain employment (he lost employment
twice), due to pain, need for treatment, physical and psychological
work capacity limitations negatively impact on work performance), a
pattern then develops of longer periods of unemployment between
contracts, and loss of work, until the individual reaches a point where
they struggle to compete for any contract work. Past contractors
become aware of their limitations and inability, and the relationship
deteriorates, the employers become less willing to offer new
(q)
27
contracts, and ultimately, the individual no longer secures
employment from these contractors as they become known for their
inability.
(c) As discussed above, the claimant's physical and psychological work
capacity, as well as work choices, are very limited.
(d) Ms van der Heyde, in this regard, notes that "His low level of
education (Grade 6) limited skills repertoire and current displayed
physical ability (light demand work) is expected to significantly limit
his employment options in the open labour market. His low level of
education is expected to exclude him from sedentary to light
positions (he is physically suited for), and his physical ability would
exclude him from physical manual labour (medium/heavy demand)
within his field of experience/skill ". She ultimately concludes in her
2025 report that he is unemployable, and the writer is inclined to
agree with this assessment as the most likely scenario. His physical
capacity and prolonged unemployment support the view that he has
probably become uncompetitive for the work associated with his
profile, leading to the expectation that he will simply remain
unemployed.
Career prospects and residual work and earning capacity
28
(a) It is concluded that Mr Dlangamandla is post-accident not suited to
work in his pre-accident position of scaffolding erector or charge
hand [Note: post-accidents, he twice lost his employment in this
capacity]. He is also not a candidate for the work that meets his
residual capacity.
(b) The current writer agrees with the opinion of Ms van der Heyde and
that he will probably remain unemployed.
(c) From a considerably optimistic possible scenario perspective, it is
possible that he could secure some form of highly accommodated
and sympathetic employment for a short contract period or "piece
job" employment for limited days per month. In this scenario, he will,
however, remain with a considerable risk of not maintaining such
employment.
(r) "Having regard to the accident" (Injured) postulation.
With reference to the discussion in sections 8 and 10.2 we conclude as a
basis for the injured earnings postulation:
(a) As indicated by the occupational therapist, he will not be suitable for
other manual worker jobs such as " ... driver, cleaner, security guard,
etc." The Court agrees with Ms van der Heyde that he is probably
uncompetitive and unemployable in the open labour market.
(s)
29
(b) Considering Mr Dlangamandla's level of education (Grade 7),
current age (42) and past work experience (physical labour
positions) as well as considering the discussion in section 10.2 it
seems that the most probable future scenario for the claimant is that
he will remain uncompetitive and unemployed.
(c) From a very optimistic perspective, it seems possible that he could
benefit from treatment. If it is further considered that he may be able
to secure some or other highly accommodative and sympathetic
employment, then it is theoretically possible that he can secure
employment (accept very optimistically for 20% of the time with
earnings comparable to the national minimum wage), growing with
inflation to age 60 when he will become totally unemployable. [Note
this is considered a considerably optimistic postulation].
"Having regard to the Accident " (Injured) Calculation :
(a) After the accidents Mr Dlangamandla resigned 9 March 2015 as he
was unable to cope with the job demands. [Accept that he at the time
was earning gross earnings for 2013/2014 which amounted to
R 103,350.00 per annum as discussed in 8.6.1 ].
(b) All ·information indicates a period of unemployment following Mr
Dlangamandla's resignation.
30
(c) He secured employment on 24 February 2017 until 31 May 2017
when he lost his employment due to ill health. [Employment
confirmed per employer certificate. Remuneration, however, is not
confirmed. In the absence of validated earnings, he accepted that he
earned in line with postulated earnings for the uninjured scenario,
what he was expected to earn during this period, uninjured. Accept
(very optimistically), he earned at a value comparable to the 2018
value of R12,686.00 per month during this period.]
(d) He signed a new contract on 2018/02/07 until he was dismissed on
2018/11 (as per the last payslip received 11 November 2018). As
reported by Mr Dlangamandla he was dismissed due to being
frequently absent from work as a result of accident-related injuries.
As was discussed in section 8.6.2), based on the payslip dated
2018/11/11 (see also table 8-7 with summarized YTD totals), Mr
Dlangamandla's year-to-date earnings was R114, 174.51 (note it was
over a 9-month period) thus indicating an average total monthly
salary of R12,686.00 (R114,174.51 over 9 months). This includes
overtime, public holidays and leave pay.
(e) Since he lost his employment in November 2018, he has reportedly
remained unemployed to date (2026).
31
(f) From a future earnings perspective: Except for optimistic
calculations two potential scenarios:
1. Very optimistic possible injured scenario A (Accept a 25% chance to
realise):
(a) Mr Dlangamanda is currently unemployed, and he will most likely remain
unemployed at least until conservative treatment has been received.
(b) The Court accepts that he can (possibility) , by 2028/01, at best only be able to
secure part time employment , depending on the type of work opportunities he
is presented with. Taking into consideration his limited skills and the type of
employment (based on job requirements and restrictions), his job choices will
be significantly limited. He will be a poor competitor , seeking employment that
is not in line with his residual work capacity or profile.
(c) The Court accepts that it is possible that he can secure a short contract or part
-time employment (accept very optimistically for 20% of the time) with earnings
comparable to the national minimum wage.
(d) The Court accepts these earnings from 2028/01 of R12,575.68 p/a (20% of
NMW, 2026 rate of R62,878.40, 40-hour work week).
32
(e) The Court accepts inflationary earnings growth to age 60 when he will become
totally uncompetitive and unemployable.
(f) The Court accepts the very optimistic nature of the above postulation and that,
in this regard, considerably high post-accident contingencies should be applied.
2. Probable injured scenario B: (Accept 75% chance to realize).
(a) For calculations of this scenario, accept that the claimant remains
uncompetitive and unemployable in future.
(b) For calculations of the injured earnings scenario, accept the weighted average
between injured scenarios A and B as the basis for calculations. Appropriate
higher post-accident contingencies are to be applied. [Note the injured
calculation table A-1-2 as a summary for injured calculations].
3. LOSS OF EARNINGS
For loss-of-earnings purposes, the following is postulated for calculation:
4. Past loss of earnings
In terms of past loss of income, the following is noted;
During the claimant's recuperation period;
(a) Based on the employer certificate , Mr Dlangamandla was not absent
33
from the first accident, and therefore, no loss of earnings is noted. This
was also confirmed in the collateral information.
(b) Mr Dlangamandla indicated that following the second accident, he was
absent for one month/4 weeks without payment. This could not be
confirmed with his employer at the time of the accident. The Court defers
to validation of earnings. The writer notes that even if he was paid during
his absence, he probably incurred a loss in terms of overtime income.
Appropriate contingencies to be applied considering the risk/ probability
of some loss of earnings during this period.
5. Past Loss of Earnings or Employment
(a) Compare the uninjured postulation (9) with the injured postulation (11.2)
from the date of the accident to the current date as a basis for
calculations.
(g) Apply appropriate contingencies considering the assumptions made.
6. Future loss of earnings:
The impact of the accidents on Mr Dlangamandla and his career has been discussed
in section 10.2 and 11 of this report.
It is thus recommended that:
34
I. The "but for the accident" uninjured scenario as discussed in section 9 remains
applicable and should be used as uninjured calculation base.
II. Accept "having regard for accident" injured scenario, as discussed in section
11 .2 as post-accident earning potential.
Ill. It is recommended that he be compensated for future loss of earnings due to
the difference between the "but for the accident Scenario" and the "having
regard for the accident Scenario".
An appropriate higher post-accident contingency is recommended for the probability
that he will remain unemployed in future. Apply appropriate contingency considering
the assumption to postulate a weighted average. Also consider the considerably high
risk that the injured optimistic postulation will not play out as postulated.
The Court acknowledges that applying appropriate contingencies is the court's
prerogative. It is thus acknowledged that our opinion regarding the application of the
contingency is the prerogative of legal argument and court adjudication. The use of a
specific phrase indicates our opinion regarding the risks and vulnerabilities to earn
less than what was postulated. As reference, we (see Annexure A) note a copy of a
slide "Contingency- The phrase that pays", presented at an SIOPSA presentation on
12/05/2018. [It is noted that Mr G Whittaker (the presenter who used the slide) made
it clear that the slide does not represent his own opinion or any form of research, but
phrases he noted used by Industrial Psychologists. Considering the information at
hand, we suggest, based on our interpretation and assumptions, the following phrases
to indicate our opinion.
Contingency Recommendations
Phrase Percentage spread/ Recommended
Contingency Value
Slightly Higher
Moderately Higher
Higher
Substantially Higher
Considerably Higher
CONTINGENCIES:
5%
10%
20%
35%
45%
35
In assessing the value of the income allowance may be made for the various
contingencies of life that occur such as sickness and unemployment. For the reason
stated above, the industrial psychologist recommends a higher-than-norma l post
accident contingency adjustment.
For illustrative purposes the actuary provide for a 25% differential on future earnings.
Uninjured 7.5% on future earnings. An injured 32.5% on future earnings. For past loss
of earnings contingencies were not applied.
It is the court's view that under the circumstances of this particular case, a 15% spread
between pre- and post-morbid contingencies on future earnings is reasonable.
Uninjured future 15% and injured future 30%. For past loss of earnings uninjured 5%
and injured 5%.
THE CALCULATION :
(a) Limitation of Compensation (CAP):
36
- The expert confirms that th(:! CAP is not applicable on these calculations.
Thus , the loss of income does not exceed the Statutory Limit during every year,
and the appropriate adjustment is set out in actuary's report.
(b) SUMMARY OF LOSS:
Capital value of loss of earnings :
Uninjured injured Loss of
Earnings Earnings Earnings
Past R1 532 200 233 600
Less 5% R 76 610 11 680
R1455590 221 920 1 233 670
Future R1 997 100 21 500
Less 15% R 299 565 30% 6450
R1697535 15 050 1 682 248
TOTAL LOSS OF EARNING R2 916 155
For this reason, I am satisfied that the Plaintiff suffered a loss of earnings in the amount
of R 2 916 155 (Two million nine hundred and sixteen thousand one hundred and fifty
five rands).
37
[15] LAW
15.1. LOSS OF EARNINGS
It is accepted that earning capacity may constitute an asset in a person's
patrimonial estate. If loss of earnings is proven the loss may be
compensated if it is quantifiable as a diminution in the value of the estate.
It must be noted, a physical disability which impacts on the capacity to
an income does not, on its own, reduce the patrimony of an injured
person. It is incumbent on the Plaintiff to prove that the reduction of the
income earning capacity will result in actual loss of income.
15.2. In quantifying such a claim an Actuary is often used to make actuarial
calculations based on proven facts and realistic assumptions regarding
the future. The role of the Actuary is to guide the court in the calculations
to be made. Relying on its wide judicial discretion the court will have the
final say regarding the correctness of the assumptions on which these
calculations are based. The court should give detailed reasons if any
assumptions or parts of the calculations made by the actuary are
rejected. It must be borne in mind that the actuary depends on the report
of the Industrial Psychologists, who in turn are dependent on the
information provided by the claimant.
15.3. The learned author Dr R.J. Koch in The Quantum of Damages Year
Book states at page 118 that the usual contingencies which the Road
Accident Fund accepts is 5% (five percent) on the past income and 15%
(fifteen percent) on the future income. The aforesaid is only a guideline,
but it indicates the general approach adopted by the Defendant in similar
38
matters. The learned author continues on page 118 to suggest (based
upon the authorities of Goodall v President Insurance and Southern
Insurance Association v Bailey N. 0 . that as a general rule of thumb, a
sliding scale can be applied, i.e. "1/2% per year to retirement age, i.e.
25% for a child, 20% for a youth and 10% in middle age:"
15.4. The court, in the case of Road Accident Fund v Guedes at paragraph [9]
referred with approval to The Quantum Yearbook, by the learned author
Dr R.J. Koch, under the heading 'General Contingencies' , where it states
that:
" .. .[when} assessing damages for loss of earnings or support, it
is usual for a deduction to be made for general contingencies for
which no explicit allowance has been made in the actuarial
calculation. The deduction is the prerogative of the Court ... ".
15.5. The percentage of the contingency deduction depends upon a number
of factors and ranges between 5% (five percent) and 50% (fifty percent),
depending upon the facts of the case.
15.6. The importance of applying actuarial calculations and its advantages
was discussed in the case of Southern Insurance Association v Bailey
NO, the court referred with approval to the case of Hersman v Shapiro
and Company at 379 per Stratford J where the following was said:
'Monetary damage having been suffered, it is necessary for the Court to
assess the amount and make the best use it can of the evidence before
it. There are cases where the assessment by the Court is little more than
39
an estimate; but evan so, if it is certain that pecuniary damage has been
suffered, the Court is bour~d to award damages.
"Any enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augurs or oracles. All that the Court
can do is to make an estimate, which is often a very rough estimate, of
the present value of the loss.
It has open to it two possible approaches.
One is for the Judge to make a round estimate of an amount which
seems to him to be fair and reasonable. That is entirely a matter of
guesswork, a blind plunge into the unknown.
The other is to try to make an assessment, by way of mathematical
calculations, on the basis of assumptions resting on the evidence. The
validity of this approach depends of course upon the soundness of the
assumptions, and these may vary from the strongly probable to the
speculative.
It is manifest that either approach involves guesswork to a greater or
lesser extent. But the Court cannot for this reason adopt a non possum us
attitude and make no award."
15.7. Ultimately, the award for future loss of earnings or earning capacity must
be based on good medical evidence and corroborating facts. There must
be some reasonable basis for arriving at a particular figure. In the event
of a mathematical approach, one has to first work out what the third
40
party's earnings would have been but-for the accident (that is, if the
accident had not occurred), and secondly, one has to calculate what the
Plaintiffs earnings are now that the collision has occurred (having regard
to the accident) and the difference between these two amounts will then
represent the loss.
[16] APPLICATION OF LAW TO FACTS
16.1. The Plaintiff's future loss of earnings or capacity to earn has been
actuarially calculated and the basis of such calculations, which is
discussed below are consistent with the facts and probabilities in the
matter.
16.2. The Plaintiffs case remains undisputed and remains unchallenged. The
Defendant has not appointed a single expert to challenge and or contradict
the Plaintiff's expert witnesses. There is also no evidence before me that
prior to the collision the Plaintiff had any cognitive, neuro-cognitive and
orthopaedic problems.
16.3. In so far as the injuries are concerned, it has not been disputed that the
Plaintiff sustained head injury (mild) concussive and or injury which was
consequent to the motor collision. It remains undisputed that the Plaintiffs
chronic post traumatic headaches problems arising from the accident
have caused the patient impairment and disability.
41
16.4. The occupational therapist opines that the Plaintiff's employment has been
adversely affected and as result curtailed. His injuries make him an
unfair competitor in the open labour market. The claimant is capable of
performing light work. However, due to his chronic headaches, which
developed following the accident, he will require reasonable
accommodations in the workplace to manage her symptoms. These
headaches also affect his cognitive functions, such as concentration and
focus.
16.5. The occupational therapist opines that the Plaintiff's chronic condition
creates a significant vocational prejudice, limiting his ability to perform at
his full potential.
16.6. The industrial psychologist's uncontested postulations regarding the pre
and post morbid future loss of earnings prior to and but for the accident
is the only evidence that is before the Court which the Court must accept.
16.7. The Court accepts that the Plaintiff would require an understanding
employer who will be willing to accommodate his cognitive limitation
should he secure work in future.
The Plaintiff is therefore likely to suffer a future loss of earnings to be
calculated as the difference between her pre-accident earning potential
and her post-accident earning potential.
16.8. The Court is mindful that the Plaintiff will be an unequal competitor at the
open labour market compared with his healthier peers and that he will
not be able to perform functions efficiently and effectively as compared
42
to his counterparts . The ,njuries sustained from the accident will hinder
his career and future employability .
16.9. The Court finds that the Plaintiff's expert witnesses remain the only
evidence before me. The submissions made by industrial psychologist
are clear, reasonable and persuasive . I therefore find that the evidence
before me is credible and I accept it as reliable and plausible.
[17] Plaintiff's counsel submitted that contingencies are to be applied as the actuarial
calculations since the Road Accident Fund Amendment Act 19 of 2005 cap does
not have an impact on this case. In this regard counsel argues the contingency
deductions of 7.5% (seven point five percent) on uninjured earnings and 32.5%
(thirty two point five percent) on uninjured future earnings should be applied. I
agree with the contingencies applied in the past loss of earnings.
The Court holds the same view with respect to the contingencies as applied by
the actuary (addendum report) and submitted by the Plaintiff's counsel. In
respect of past loss of earnings, the Court holds a different view with respect to
proposed contingencies . In respect of future loss of earnings, the Court is of the
view of future uninjured loss of earnings 15% (fifteen percent) and 30% (thirty
percent) for future injured.
COSTS .:.
[18] In Bauer v Bauer & Another 5 it was re-affirmed that the principle in awarding
costs to a successful litigant is to strive to indemnify insofar as possible that
litigant for the expenses she has incurred to initiate or defend litigation. These
5 {361104) {2008] ZAECHC 2008 (17 April 2008)
43
principles were also confirmed in Zeelie v General Accident Insurance Co
Ltcf'i. This purpose of an award for costs has been acknowledged for a very
long time, authoritatively ever since Texas Co (SA) Ltd v Cape Town
Municipality7.
[19] In Society of Advocates of KwaZulu - Natal v Levin8 the Court also stated
as follows in respect of Counsel fees:
" [19] A useful guide, which would find application in most cases where the
reasonableness or otherwise of counsel's fee had to be determined on the
taxation, was formulated in City of Cape Town v Arun Property Development
(Pty) Ltd and Another:
'(a) Consideration should have been given to the importance of the matter, its
financial value to the parties and the complexity of the issues raised and/or
required to be canvassed"
[20] Pursuant to the recent amendment of Rule 69 and 70 (effective 12 April 2024)
in terms of which Rule 67A was also introduced, it is incumbent upon a Court
to make a ruling on the applicability of the new scales introduced for the
employment of counsel. The scales listed in the amended Rule are Scales A, B
and C. These scales govern the recoverability by the Plaintiff of counsels' costs
on taxation.
[21] In Buh/e Waste (Pty) Ltd v MEC for Health Gauteng & Others 9 Cajee AJ
6 1993 (2) SA 776 (EJ at 779 D-F
7 1926 AD 467 at 488. (See Cilliers, Costs, par 1.03 ot 1-4/5)
8 4564/13) [2015] ZAKZPHC 35; 2015 (6) SA 50 {KZP); {2015} 4 All SA 213 {KZP) (6July 2015)
• (Gauteng Division Johannesburg, Case Number 2023-102560/
44
held as follows regarding the abovementioned Rule amendment.
"28. While I am cognizant of the fact that the new taxable costs regime no
longer considers seniority of counsel, but rather complexity of the matter and
value of the claim or importance of the relief sought to be the deciding factors,
in my view a court should be wary not to grant or approve costs on a scale
which counsel of a certain seniority would not ordinarily charge his or her own
attorney and client. This would run counter to the intention of the new regime ... "
[22] With regard to this present matter , it is held by the Court that the employ of a
senior counsel was warranted and that counsels' fees on Scale C are appropriate
for inter alia, the following reasons:
22.1. Value of the claims:
The value of the claim should be evaluated in the eye of the Plaintiff who
was injured. It is apparent that the Plaintiff needs to rely on her
compensation to sustain herself especially in the later years of her life.
From her point of view the amount concerned is considerable.
22.2. Importance of the relief sought
- The relief sought is for damages aimed at the compensation of the
unfortunate Plaintiff who was involved in a motor vehicle accident. The
Plaintiff suffered severe bodily and psychological injuries. The Plaintiff
will suffer physical and psychological for the rest of her life; who has
a permanent loss of her earning capacity; who has therefore lost the
ability to properly earn a living. The matter has obvious importance to
45
the Plaintiff in that l1er entire remaining working lifespan has been
blighted.
- As trenchantly observed by His Lordship Baqwa Jin Adv AJ Du Toit
N. 0. obo Gee-Jay Lee Johnson v The Road Accident Fund 10 the
Plaintiff has only one shot at obtaining due compensation from the
Defendant and the Plaintiff's whole life depends on obtaining a
proper award.
22.3. Complexity of the matter
This case involves the input by various experts of different
disciplines. It involves an Orthopaedic surgeon to assess the
functional sequelae; Psychologist in respect of neurological
sequelae; an Occupational psychologist regarding the impact on his
occupation; an Industrial psychologist regarding employment
prospects; and the Actuary regarding the calculation of the loss of
earnings/earning capacity. There are ten (10) experts which the
Plaintiff has appointed in order to quantify this matter.
- The reporting of all the experts is not in plain layman's language, but
in more complex and specific language and terms used in the
respective expert disciplines. A proper understanding of the
reporting requires special and specific knowledge by the legal
practitioners.
- the matter involves preparation in regard to several different expert
disciplines and expert witness reports; the drafting of heads of
10 20147/2021) Gauteng Division, Pretoria (23 April 2024)
46
argument on the issue of the loss of earning capacity; and the
research of the case law regarding awards of special damages (loss
of earnings , past and future).
[23] It is therefore held by the Court that the value of the total claim is substantial,
that the relief sought is of great importance to the Plaintiff; and that the matter
involves issues of a high degree of complexity.
[24] The specific circumstances and the various factors attendant in this matter,
rendered it wise and reasonable for the Plaintiff to have briefed a senior -Junior
Counsel and or a more senior counsel.11 There can be no justification for any
contention that it was not necessary, or that it was wrong to employ a senior
counsel; or that it is unfair to Defendant that it should be required to bear the
costs incurred in the employment of a senior counsel. The Defendant could
have settled this claim a long time ago had it complied with its statutory duties
timeously.
"In an unreported judgme nt of this Court, Road Accident Fund v Roman
Klisiewicz, case No 192/2001, handed down on 29 May 2002, Howie JA set
out the extent of the respondent's responsibilities, saying in para [42): 'The
[Road Accident Fund] exists to administer, in the interests of road accident
victims, the funds it collects from the public. It has the duty to effect that
administration with integrity and efficiency. This entails the thorough
investigation of claims and, where litigation is responsibly contestable, the
11 it was certainly a wise and reasonable precout,on to empioy the services of two counsel (compare Newman v Prinsloo ond Another 1974
(4) SA 408 (W) at 411A; Zweni v M inister of Low ond Order (1) 1991 (4) SA 166 (W) at 170A). The disputes involved potentially wide -ranging
issue of both fact and low. It is not by any meons a minor matter. The cose was sufficiently difficult to justify the engagement of two
counsel. (compare OE NMM LOZE VENNOOTSCHAP AUNrEX v VON GERLACH 1958 (1) SA 13 {T) or 16-7).
47
adoption of reasonable and timeous steps in advancing its defence. These are
not exacting requirements. They must be observed'." 12
[25] It was the Defendant that obliged the Plaintiff to approach this Honourable
Court for relief.
[26] It should be borne in mind that by awarding counsels' costs on scales A or B
the Honourable Court will effectively be penalizing the Plaintiff. Counsel are
entitled to make and recover reasonable fees for their work done (Algemene
Balieraad van Suid-Afrika v Burger en 'n Ander 13LPC Code of Conduct 15.1
and 23.1 ). That is not affected by the particular scale under Rule 67 A. Rule 67
A merely restricts the ability of the. Plaintiff to recover more than the specified
amounts on scales A, B or C,. respectively, from the unsuccessful Defendant.
The balance of counsels' fees unfortunately have to be paid by the successful
Plaintiff out of the capital awarded. This impinges on the trite principle set out
in paragraph 3 above.
a. In the premises, it is held by the Court that Plaintiff is entitled to an order
that the fees consequent upon the employment of a senior counsel are
allowed; and for a direction that such fees are granted on scale C.
b. Since the advent of the Covid pandemic and the consequential change that
it had on the normal Court and trial procedures, the Court has placed more
and more emphasis on comprehensive heads of argument to be filed by the
representatives of litigants to assist the Court. Presiding judges rely more
12 (Madzunye and Another v Road Accident Fund 2007 (1) SA 165 (SCA) par [17) at 171).
' 3 1993 (4) SA 510 (T);
48
and more upon the written submissions of counsel to assist them rather
than entertaining hours of oral argument.
c. In this sense the normal practise for presenting argument in the High Court
has become more similar with the practice in the Constitutional Court. In
this the court with approval in Society of Advocates of KwaZulu - Natal
v Lev matter supra held as follows:
''ii) In President of the Republic of South Africa & Others v Gauteng Lions Rugby Union &
Another fill Krieg/er J drew a distinction between the practice in the Constitutional
Court and the SCA in respect of the heads of argument and the associated appearance
of counsel at the hearing. He pointed out that 'in the SCA the emphasis is on the oral
presentation of argument by counsel in open court with heads of argument serving
largely as a preliminary guide to the Court, while in the Constitutional Court, the
emphasis is on written submissions, which are not regarded as succinct heads of
argument forming the basis of the argument to be presented, but the argument itself
together with all the supporting material. '
And further that 'In an appropriate case, therefore, it may be reasonable to make some
special allowance for counsel's fees for preparing written argument for this court. This
is expressly contemplated by sub rule (2) of the CC Rule 21.'
iii) There is no reason why a similar consideration should not apply to the assessment of
counsel's fees in this matter.
iv) I have perused the relevant heads of argument and having considered the submissions
of Ms Annandale on the general and specific purpose and content of heads of
argument, I am of the view that the taxing mistress misdirected herself in assessing the
fee at R600 per page, as such an assessment even on a per page basis, is
disproportionate to the effort involved in drafting the heads and fails to take into account
the issues dealt with therein.
49
v) I have already commented on the need for a uniform practice in accordance with the
generally accepted computation of fees on a time spent basis, which will provide fair
and reasonable remuneration for the service rendered."
[27) It has further become an acceptable practice that Counsel be allowed to ask
for the drafting of his Heads of Argument premised upon the actual time
(although must be reasonable) spent.
[28) In the Society of Advocates of KwaZulu - Natal v Lev matter supra the
Court stated as follows:
{17] Counsel's fees in the bill of costs under review were charged on a time spent basis. I
share the view expressed by Sha/to-Douglas AJ in City of Cape Town v Arun
Property Development (Pty) Ltd and Another:
'The modern trend- if I may call it that- of charging a fee based on time actually
expended is both acceptable and in the interest of transparency'."
[29) In the premises it is held that any order as to costs should include Counsel's
time spent for drafting Heads of Argument as well.
[30) CONCLUSION:
In the premises I make the following order:
1. The application in terms of Rule 38(2) is granted.
2. The Defendant is liable hundred percent (100%) in respect of the Plaintiffs
agreed and or proven damages;
3. Future hospital and medical expenses: Section 17(4)(a) Undertaking;
4. General damages R850 000.00
50
5. Loss of earnings R 2 916 155.00
6. Costs of counsel on scale C
Total
Date of Hearing:
Judgment delivered:
APPEARANCES :
For the Plaintiff:
Attorney for the Plaintiff:
For the Defendant:
Attorney for the Defendant:
17th February 2026
27ih May 2026
R 3 766 159 (Three million
Seven hundred and sixty six
thousand one hundred and
fifty nine rand).
J.ZITHAAJ
Judge of the High Court
Gauteng Division, Pretoria
Adv Ludvick Visser
Salome le Roux attorneys
None
None