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, PRETORIA
CASE NO: 46494/19
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE 27/5/2026
SIGNATURE
In the matter between:
MHLONGO: MARIO JOHN Plaintiff
and
ROAD ACCIDENT FUND Defendant
JUDGMENT
PIENAAR AJ
INTRODUCTION
1. This is a claim for damages arising from a motor vehicle accident that occurred on
26 February 2015. The plaintiff was a driver at the time of the collision.
2. The defendant filed a notice to defend and a Plea. The matter was previously on the
roll of the unopposed motion court before Botes AJ wherein an order had been
granted, inter alia, that the respondent (Respondent in the present matter) complies
with a Rule 37(4) Notice in terms of the Uniform Rules of Court and to file a reply
within 5 (five) days of service of the order. This order was not complied with.
3. On 19 May 2023 on application before Phooko AJ on the unopposed motion roll
where an order in the following terms was granted:
“1. An order to strike the Respondent/Defendant’s defence;
2. An order authorising the Applicant/Plaintiff to proceed to trial by default; and
directing that the costs of this application should be borne by the Respondent/
Defendant”. Unfortunately, this Court Order was never served on the Defendant.
4. Plaintiff served the notice of set down on the defendant on 7 November 2024.
5. The court granted the application for the evidence to be adduced by way of affidavits
in terms of Rule 38(2) of the Uniform Rules of Court. Rule 38(2) provides as follows:
“The witnesses at the trial of any action shall be orally examined, but a court may at
any time, for sufficient reason, order that all or any of the evidence to be adduced at
any trial be given on affidavit or that the affidavit of any witness to be read at the
hearing, on such terms and conditions as to it may seem meet: Provided that where
it appears to the court that any other party reasonably requires the attendance of a
witness for cross-examination, and such witness can be produced, the evidence of
such witness shall not be given on affidavit”
6. This court was called upon to deal with merits and quantum, proceeding on a default
judgment basis. After hearing submissions of the Counsel, I reserved judgment.
7. When the matter was heard on 20 February 2026, the Court requested that the
7. When the matter was heard on 20 February 2026, the Court requested that the
Plaintiff obtain the outcome of the police investigation. Thereafter, when the matter
was called again on 2 March 2026, Counsel submitted that the SAPS docket and
sketch plan had been uploaded onto CaseLines under section 18 (Trial Bundle),
items 12 and 13.
LIABILITY
8. The plaintiff bears the onus to prove that the RAF is liable under the provisions of the
Act, to compensate her for damages suffered because of the injuries sustained in
the collision. This includes the onus to prove that the driver of the insured vehicle
negligently caused the collision.
9. The accident from which this claim arose occurred on the 26 February 2015.
According to the particulars of claim “The plaintiff was the driver of motor vehicle
bearing registration letters and number F[...] when he was involved in a motor
vehicle accident with motor vehicle bearing registration letters and number
F[...] (herein referred to as the “insured vehicle”) there and then driven by
Casper Willem Barnard (herein after referred to as “the insured driver”).
10. According to the plaintiff’s Section 19(f) affidavit the following occurred: “On
26 February 2015 at about 22:15 he was traveling from Bethal towards Trichardt
road towards Trichardt driving a sky-blue (light blue) Toyota Verso with registration
number F[...]. He decided to took the fast lane. On the slow lane he noticed
trucks that were moving slower. He noticed a motor vehicle overtaking from the side
of Trichardt towards Bethel (opposite side of the road). He couldn’t swerve to the
slow lane, because there was a truck in the slow lane. He cannot remember whether
he applied brakes or not. A head on collision occurred.
11. The next document of relevance is the statement of Samuel Muvuseni Mayisela. He
was driving a white Isuzu with registration number M[...]. He was driving from
Bethal towards Trichardt plaza. He saw a white motor vehicle traveling from the
direction of Richard toward Bethal and this white bakkie made a U-turn on the road
direction of Richard toward Bethal and this white bakkie made a U-turn on the road
(in the middle of the road) and there was a light blue vehicle that was traveling
towards Trichardt and the white bakkie collided head on with the light blue motor
vehicle.
12. I have considered the Plaintiff’s Heads of Argument; however, Counsel has failed to
assist the Court by citing relevant authority on the merits.
13. In the case of Sedumemanyatela v Road Accident Fund (65678/2012) (2014)
ZAGPPHC 445 (30 MAY 2014) the court held that even when an approaching
vehicle is on its incorrect side of the road, a driver on his correct side may assume
that the former will return timeously to its correct. But this assumption does not
entitle a driver on the correct side of the road to remain passive in the face of
threatening danger. As soon as the danger of the collision becomes evident he is
under a duty to take reasonable steps to avert one.
14. I therefore cannot find that the plaintiff contributed to the cause of the collision. In
my view, the insured driver was negligent in that he executed a U-turn in the middle
of the roadway in front of the plaintiff. Accordingly, he was the sole cause of the
accident.
15. The negligence of the insured driver was the sole cause of the accident and the
defendant is to be 100% liable for the damages which the plaintiff prove he suffered
as a result of the accident.
QUANTUM
16. In the particulars of the claim the plaintiff claimed damages in respect of the
following:
16.1 Shoulder injury
16.2 Left leg and knee injury
LOSS OF INCOME
17. Although I have thoroughly considered all the evidence presented by the experts,
read in conjunction with their respective reports, I do not intend to deal with all their
evidence in detail. I will be restricting myself to their main findings.
Dr Dr Barlin- Orthopaedic Surgeon
18. From the said report it is evident that he examined the plaintiff on 14 September
2021 and an addendum report was done on 16 July 2025. In respect of his
diagnosis Dr Barlin indicated the following in his report:
18.1 Type II dislocation on the right acromio clavicular joint and a contusion of the
right knee
18.2 Contusion of the right knee
18.3 An abdominal contusion
19. Dr Barlin reported that he was employed as an underground machine operator by
Sasol Coal in Secunda. He is still employed as an underground machine operator at
a coal mine. His shoulder mobility has decreased slightly and raising the right arm
above shoulder height is extremely painful. As he is now 61 years old, and his work
duties require significant physical strength, he is no longer able to continue working,
even if he undergoes the surgery recommended.
Dr J H Kruger - Neurosurgeon
20. Dr Kruger reported that he sustained a mild traumatic brain injury. Dr Kruger further
reported that he sustained a head injury in the accident, the current complaints of
cognitive mental problems and mental problems he is of the view that if a lump sum
of money is awarded to the plaintiff, the money must be protected in a trust.
Trevor Reynolds - Clinical and Neuropsychologist
21. According to Dr Reynolds he sustained a traumatic brain injury of sufficient severity
to result in persisting neuropsychological sequelae.
Jeanne Morland - Occupational Therapist
22. Jeanne Morland reported that his right knee tires and becomes painful from
standing a lot at work. He experiences headaches at times. He reported that his
memory is poor. He is forgetful. The plaintiff reported that his concentration is
decreased. His wife reported that he become “like a child” sine 2021 and that he is
slowly becoming worse.
Lorette Theron - Industrial Psychologist
23. Ms Theron reported pre accident, that he wanted to be a Miner but could not do this
without a Grade 12 school qualification. Ms Theron is of the view that he would have
remained in his position at the time of the accident, i.e. Shuttle Car Operator. This
position would have not have changed, as he could not have had to be
accommodated. He was already 50 years old at the time of the accident, and he
would therefore have retired in his position. Prior to the accident, the plaintiff was in
good health. It is therefore probable that he would have been able to work until the
retirement age of 65 years.
24. But fourth accident, the plaintiff would probably have remained in his position as
Shuttle Car Operator at Sasol until his retirement at 65 years.Now as a result of the
accident, he may have suffered a direct past loss of earnings. This relates to the
period after the accident, during which he did not receive his usual overtime pay.
However, the plaintiff was unable to provide any proof of this i the form of pay slips at
the time of the accident.
25. Although he is technically still employed as a Continuous Miner Machine Operator,
he is regarded as extremely vulnerable in this role. Ms Theron is of the view that he
should be considered totally unemployable in the open labour market.
Algorithm consultants & actuaries
26. The actuary proposed two bases of calculation, informed by the industrial
psychologist’s report. Counsel submitted that the average of the two scenarios
should be adopted, which submission the court upheld.
Basis 1 - total net loss = R702 778,00
Basis 2 - total net loss = R415 059,00
Sub total = R1 117 837,00 divided by two
Total = R558 918,50
Funds must be protected
27. Dr Kruger reported that the plaintiff has executive functioning problems,
accompanied by a change in personality. He also has cognitive impairments,
including loss of short-term memory and lack of concentration. Dr Kruger is of the
view that, if a lump sum of money is awarded to the plaintiff, the money should be
protected in a trust. In this case, such protection is both reasonable and necessary,
based on the expert’s recommendation.
Order
28. Having regard to all the documents and reports filed and having heard counsel
herein, I make the following order:
1. The defendant is liable to pay 100% of the plaintiff’s proven damages.
2. The defendant shall pay the plaintiff the sum of R558 918,50 (Five hundred and
fifty eight thousand nine hundred and eighteen rand and fifty cents) in respect of
loss of earnings.
3. The defendant shall pay the aforesaid amount into the Trust account of the
plaintiff’s attorneys, Erasmus De Klerk, the details which the plaintiff’s attorneys will
provide to the defendant.
4. The plaintiff shall established a trust within 60 days from the date of this court
order. The defendant shall be liable for the costs of the administration of the trust
and establishment thereof. The trustees are authorized to recover from the
Defendant, for the benefit of the trust all costs incurred by them which are payable
including the costs of the creation of the trust and the costs of furnishing security.
5. The defendant shall furnish the plaintiff with an undertaking in terms of Section
17(4)(a) of Act 56 of 1996 in respect of future accommodation of the Plaintiff in a
hospital or nursing home or treatment of or the rendering of a service or supplying
of goods of a medical and non-medical nature to the plaintiff (and after the costs
have been incurred and upon submission of proof thereof) arising out of the
injuries sustained in the collision which occurred on 26 February 2015.
6. The issue of General damages is postponed sine die
7. The defendant is to pay the plaintiff’s taxed or agreed party and party costs of the
action, which costs shall include, but not be limited to the following:
7.1 Dr Barlin (Orthopaedic Surgeon) and addendum report
7.2 Dr Visser (Psychiatrist)
7.3 Dr Kruger (Neurosurgeon)
7.4 Trevor Reynolds (Clinical Neuropsychologist)
7.5 Involved Practitioners (Occupational Therapist)
7.6 Lorette Theron (Industrial Psychologist)
7.7 Algorithm Actuaries
7.8 Costs of Counsel - Adv Danie Combrink - Scale B
9. The following provisions will apply with regards to the determination of the
aforementioned taxed or agreed costs:
9.1 The plaintiff shall serve the notice off taxation on the defendant
9.2 The taxed or agreed costs will:
9.3 be payable within 14 days from date of taxation; and
9.4 bear interest at then prevailing interest rate, calculated and including the 15th
calendar day after the date of taxation to and including the date of payment thereof.
10. There is a valid contingency fee agreement.
__________________________
M PIENAAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was handed down electronically by circulation to the parties
representatives by email, by being uploaded to the Caselines system and by release to
SAFLII. The date and time for hand down is deemed to be 27 May 2026
Heard on : 19 February 2026
Hearing : 6 March 2026
Date of Judgment : 27 May 2026
APPEARANCES:
For the Plaintiff : Adv Danie Combrink
Instructed by : Erasmus De Klerk Inc Attorneys
email: Zania@edk.co.za
For the Defendant : Road Accident Fund
No appearance
Link no: 4091417
Claim no: 560/12268256/325/6