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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Case Number : 5508/2024
Not Reportable
In the matter between
MASHELE BENSON TALENTA PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
Coram: Reddy J
Heard: 19 November 2025 and 5 March 2026
Reserved: 5 March 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email and uploaded to CaseLines. The date and time
for handing down are deemed to be 5 June 2026 at 16h00.
Summary: Road Accident Fund — Quantum — Loss of earnings — Plaintiff,
aged 36, employed as Earthmoving Equipment Mechanic at Tharisa Minerals —
Income proved by two payslips: pre -accident gross R71 983.19 per month; post -
accident gross R76 896.97 per month — Pre-accident future contingency of 15%
accepted; post -accident future contingency increased from 25% to 40% —
Plaintiff permanently restricted to sedentary work, dependent on sympathetic
employer, not a fair competitor in open labour market, with multiple pending
surgeries and progressive degenerative injuries — Bailey vicissitudes applied —
Wide judicial discretion on contingencies confirmed in Guedes — Award of
R 6 887 292 — Section 17(4)(a) undertaking granted — Right hand injury not
incorporated in serious injury assessment; further specialist assessment required
before general damages can be determined — Contingency fee agreement
recorded as non -compliant with Act 66 of 1997 — General damages and past
medical expenses postponed sine die — Costs on Scale C.
________________________________________________________________
JUDGMENT
________________________________________________________________
REDDY J
Introduction
[1] The plaintiff, Mr. Benson Talenta Mashele, (Mr Mashele) instituted
action against the Road Accident Fund (“the RAF”) for damages arising f rom
bodily injuries sustained in a motor vehicle collision on 2 December 2021. On 19
November 2025, j udgment on the merits was granted, the RAF being held liable
for 100% of proven damages.
[2] On 5 March 2026, the quantum hearing came before this Court. On the
latter date, an order in terms of Rule 38(2) of the Uniform Rules of Court was
granted admitting the expert reports on affidavit, and judgment was reserved. On
5 June 2026, the order extrapolated from this judgment was handed down.
Technical difficulties impeded the handing down of the full judgment. What
follows is a judgment encompassing the reasons for the findings on the merits
and quantum.
Factual Background
[3] At the time of the collision Mr. Mashele was 31 years of age and
employed at Tharisa Minerals (Pty) Ltd as an Earthmoving Equipment Mechanic
(Mining Engineering) . Mr. Mashele holds a Grade 12 certificate, an N3 in
Mechanical Engineering and a Code 10 driver’s licence. On 2 December 2021 at
approximately 06.00 am, returning home from a night shift along the R104 Road,
Boschfontein, Rustenburg, he was driving a Volkswagen Polo in his correct lane
at approximately 60 km/h on a wet road . The insured driver, one Tshose Mpho
Emily, crossed into his lane while executing an overtaking manoeuvre. Mr
Mashele flicked his lights and attempted to swerve but the vehicles collided head -
on. He was admitted at Life Peglerae Hospital and treated for serious bodily
injuries.
Findings on Merits
[4] The evidence established an overwhelming prima facie case of negligence.
The Accident Report Form recorded that the insured driver was on the wrong side
of the road executing an overtaking manoeuvre without adequate visibility . Mr.
Mashele’s affidavit correlated with the police record in all material respects .
The RAF, having filed a plea, did not appear to prosecute its defence.
[5] In Naude NO v Transvaal Boot and Shoe Manufacturing Co , it was held
that the defendant must tell the remainder of the story or take the risk of judgment
against it. 1 It did neither. The insured driver was negligent in, among other
respects, failing to keep a proper lookout, failing to ensure it was safe to overtake,
and failing to heed the warning signals given by the plaintiff. The onus of proving
causative negligence on a balance of probabilities was discharged. The order on
the merits was accordingly granted in favour of the plaintiff.
Injuries
[6] As a direct consequence of the collision Mr. Mashele sustained an open
pelvic fracture, an acetabular fracture, and a laceration and fracture to the right
hand requiring open reduction and internal fixation of the fifth finger. The pelvic
and acetabular injuries are serious, permanent and progressive. Mr. Mashele
retains residual right hand pain and poor grip strength.
Expert Evidence
[7] The following expert reports were admitted into evidence on affidavit in
terms of the Rule 38(2) order.
Orthopaedic Surgery: Dr G Tau (Report dated 1 June 2023)
[8] Dr Tau assessed a whole person impairment of 48%, qualifying under
narrative test 5.1 as a serious long -term impairment. Mr. Mashele’s gait is
permanently compromised, full recovery from the peroneal nerve palsy is
unlikely, and post -traumatic osteoarthritis will progress. Four surgical
interventions are required, each at 100% probability , a total hip replacement,
excision of heterotopic ossification, ankle arthrodesis and removal of internal
fixatives, each carrying a recovery period of two to three months.
Occupational Therapy: Ms AT Shibambo (Report dated 8 March 2023)
1 Naude NO v Transvaal Boot and Shoe Manufacturing Co 1938 AD 379 at 399.
[9] Ms Shibambo found Mr Mashele to be permanently restricted to sedentary
administrative work, unable to perform the inherent physical demands of his pre -
accident occupation. He is not a fair competitor in the open labour market and is
wholly reliant on a sympathetic employer. Pain with prolonged sitting will further
diminish his productivity, and progressive hip deterioration will further reduce his
sedentary capacity over time. Future care requirements, to be accommodated
within the section 17(4)(a) und ertaking, include occupational therapy, domestic
assistance (seven hours per week, rising to 21 hours post total hip replacement)
and assistive devices.
Industrial Psychology: Mr RY Ntuli — Ruwa Consulting (Report dated 2023)
[10] Prior to the accident Mr. Mashele earned R71 983.19 gross per month, as
confirmed by the November 2021 payslip, and his trajectory was towards Senior
Mechanic by age 45. Post -accident, he returned to a sedentary administrative role
earning R76 896.97 gross per month as of January 2024, confirmed by the
January 2024 payslip. His foreman confirmed that the plaintiff will not cope in
the field should he lose his current position, that his promotion prospects are
bleak, and that the organisation will likely need to replace him with a qualified
mechanic. He has no sed entary work experience and could not compete in the
administrative labour market without retraining.
Actuarial Report: Dr DT Mureriwa — One Pangaea (Calculation date: 1 May
2024)
[11] The actuarial report was prepared on the SALT 1984 –86 mortality tables
at 100%, a discount rate of 8.65%, and salary inflation at CPI plus 1%, yielding a
net real discount rate of 2.50%. The gross income figures are pre-accident past
R1 743 119; post -accident past R1 498 650; pre -accident future R17 380 889 ;
post-accident future R13 531 184 . The actuary noted expressly that the
determination of contingencies is the prerogative of the court.
The Plaintiff’s Income
[12] Mr. Mashele’s income evidence consists of two Tharisa Minerals
payslips authenticated by the industrial psychologist’s report. The pre -accident
payslip records gross earnings of R71 983.19 ; the post -accident payslip records
R76 896.97 , the higher figure reflecting annual increases over the intervening
period. The loss arises from the diminution of earning capacity and the
vulnerability of current employment, not from a reduction in current salary.
[13] A concern arises from the actuarial projection that income would rise to
R1 000 000 per annum by age 45, given that the only market advertisement in the
bundle for an Earthmoving Mechanic (Mining) advertises up to R60 000 CTC per
month, suggesting Mr. Mashele may already have been at or near the ceiling for
his current role. This concern is adequately addressed by the 15% pre -accident
future contingency accepted below.
Applicable Legal Principles
[14] In Southern Insurance Association v Bailey NO , the court postulated that
the assessment of loss of earning capacity is inherently speculative and that a
court is bound to award damages where it is certain that pecuniary damage has
been suffered, making the best use it can of the evidence before it. 2 A trial court’s
wide discretion on contingencies was confirmed in Road Accident Fund v Guedes
2 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 116F- H. RAF v Kerridge[2019] 1 All
SA 92 (SCA) par 25.
2006 in that a court may award what it considers just and is not bound by the
actuary’s proposed contingencies. 3 The Koch Quantum Yearbook guidelines
suggest a normal pre-accident future contingency of approximately 15 –20% for a
plaintiff in this age bracket. Recent authority confirms post -accident future
contingencies of 40–60% where a plaintiff is reliant on sympathetic employment
and is not a fair competitor in the open labour market.
Assessment of Contingencies
Pre-accident future contingency
[15] The actuary applied a pre -accident future contingency of 15%. The
trajectory to Senior Mechanic is supported by the industrial psychologist’s
vocational assessment, confirmed salary survey data and the foreman’s evidence
of the plaintiff’s suitability for promotion. The 15% figure, at the lower end of the
normal range, also adequately addresses the market-ceiling concern identified.
Post-accident future contingency
[16] The actuary applied a post -accident future contingency of 25%. I have
adopted a different view to that of the actuary. This is exploited to goo d effect in
the following way . First, Mr Mashele is wholly dependent on sympathetic
employment with no legal entitlement to his current accommodated position; the
industrial psychologist noted that the organisation will likely need to hire an
Earthmoving Mechanic to replace him, and the foreman confirmed he will not
cope in the field should he lose his job. Second, should he lose his current
position, his prospects of securing alternative employment are structurally poor:
his qualifications are for physical mechanical work which his injuries
permanently prevent him from performing, and his curriculum vitae reflects no
3 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) at 587A–B.
sedentary work experience. Third, his post -accident sedentary capacity is itself
precarious, as pain with prolonged sitting and the progressive deterioration of his
left hip will further diminish his productivity. Fourth, the four pending surgical
procedures each carry a recovery period of two to three months, representing a
very substantial cumulative period of non -earning over his remaining 30 -year
working horizon.
[17] Our courts have precisely recognised this confluence of factors as
warranting a substantially elevated post -accident contingency. 4 A post -accident
future contingency of 40% is fair, appropriate and supported by the evidence.
Although the facts might support a still higher deduction, the court exercises its
discretion conservatively given that Mr Mashele remains in employment.
Assessment of Damages: Loss of Earnings
[18] Applying the pre-accident future contingency of 15% and the post -accident
future contingency of 40%, the loss of earnings is calculated as follows:
Past loss of earnings:
Pre-accident past income (gross): R 1 743 119
Pre-accident past contingency (5%): (R 87 156)
Net pre-accident past income: R 1 655 963
Post-accident past income (gross): R 1 498 650
Post-accident past contingency (5%): (R 74 933)
Net post-accident past income: R 1 423 717
Past loss of earnings: R 232 246
Future loss of earnings:
Pre-accident future income (gross): R 17 380 889
4 Ubisi v Road Accident Fund (unreported), referred to in Shezi v Road Accident Fund [2023] ZAGPPHC 432 par
29.
Pre-accident future contingency (15%): (R 2 607 133)
Net pre-accident future income: R 14 773 756
Post-accident future income (gross): R 13 531 184
Post-accident future contingency (40%): (R 5 412 474)
Net post-accident future income: R 8 118 710
Future loss of earnings: R 6 655 046
Total Loss of Earnings: R 6 887 292
[19] Accordingly an award is made in the sum of R 6 887 292 (Six Million
Eight Hundred and Eighty-Seven Thousand Two Hundred and Ninety-Two Rand)
in respect of past and future loss of earnings. This award is just, equitable and
accurately reflects the realities of Mr. Mashele’s vocational circumstances.
Future Medical Expenses
[20] The expert evidence establishes that Mr. Mashele will require ongoing
future medical treatment, including the four surgical procedures identified by Dr
Tau, ongoing management of post -traumatic osteoarthritis, and the future care
items identified by Ms Shibambo. The relief sought in terms of section 17(4)(a)
of the Road Accident Fund Act 56 of 1996 is clearly established on the papers
and is granted.
General Damages and Past Medical Expenses
[21] The RAF has made no election as to whether it accepts or rejects Mr.
Mashele’s classification as having suffered a serious injury. The RAF is directed
to make that election within 15 days of service of this order, failing which Mr.
Mashele may refer the matter to the Health Professions Council. It is recorded
that the current serious injury assessment (whole person impairment of 48%,
assessed by Dr Tau) is confined to the pelvic, acetabular and lower limb injuries.
[22] The right hand laceration and fifth finger fracture have not been assessed
by any specialist and do not form part of the current whole person impairment
rating. Before general damages can be fully determined a further medico -legal
assessment in respect of the right hand injury will be required. The claims for
general damages and past medical expenses are each postponed sine die.
Contingency Fee Agreement
[23] A contingency fee bundle was placed before the court comprising the fee
agreement and supporting affidavits in terms of s 4(1) and 4(2) of the
Contingency Fees Act 66 of 1997. The agreement is not compliant. Section
2(2)(a) requires the agreement to specify the normal fee that the attorney would
otherwise charge; s 2(2)(b) requires that the success fee not exceed double the
normal fee and in no event exceed 25% of the capital amount.
[24] The agreement expresses the normal fee as “R1 500.00 per hour or an
amount not exceeding the High Court Tariff by 100%” but does not specify the
actual normal fee for this matter, nor demonstrate that the 25% success fee does
not exceed the permissible uplift. To my mind, it accordingly does not constitute
a valid contingency fee agreement. This is recorded without prejudice to any
rights the parties may have inter se.
Costs
[25] Mr. Mashele has succeeded in full. The matter involved complex medico-
legal and actuarial evidence from four expert witnesses, required the preparation
of detailed heads of argument and was before this Court on three occasions.
Having regard to the value of the claim, the complexity of the expert evidence
and the importance of this outcome to Mr Mashele , costs on Scale C are
appropriate.
Order
[26] In the premises I make the following order:
1) The Rule 38(2) application is granted with costs.
2) The Defendant shall pay the Plaintiff the sum of R 6 887 292 .00 (Six
Million Eight Hundred and Eighty -Seven Thousand Two Hundred
and Ninety-Two Rand) in respect of past and future loss of earnings.
3) The claim for past medical expenses is postponed sine die.
4) The claim for general damages is postponed sine die. The Defendant
is directed to make an election, within 15 days of service of this
order, as to whether it accepts or rejects the Plaintiff’s classification
as having sustained a serious injury; failing which the Plaintiff may
refer the matter to the Health Professions Council for a
determination. It is recorded that the current serious injury
assessment does not include the right hand injury; a further specialist
assessment will be required before general damages can be fully
quantified.
5) The Defendant will be liable for interest at the prevailing mora
interest rate from 15 days after the date of this order as envisaged in
section 17(3)(a) of Act 56 of 1996.
6) The Defendant shall provide the Plaintiff with an undertaking in
terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996
in respect of the future costs of accommodation, treatment and
services arising from the sequelae of the injuries sustained on 2
December 2021, including but not limited to the surgical procedures
identified by Dr Tau, the future care, domestic assistance and
assistive devices identified by Ms Shibambo, and any further
treatment arising from the right hand injury, upon proof of such
costs.
7) The above amount shall be paid to the Plaintiff’s attorneys, Nobela
Attorneys Inc., by direct transfer into their trust account: Bank:
Nedbank, Branch code: 190605, Account holder: Nobela Attorneys,
Account number: 1[...] Reference: NOB/MVA/432/2022.
8) The Defendant shall make payment of the Plaintiff’s taxed or agreed
party and party costs on the High Court scale, subject to the discretion of
the Taxing Master, which costs shall include:
8.1) The costs of Counsel on Scale C, including preparation and drafting
of heads of argument and attendance at trial on 19 November 2025, 4
March 2026 and 5 March 2026;
8.2) The reasonable taxable assessment and expert report fees of Dr G
Tau (orthopaedic surgeon), Ms AT Shibambo (occupational therapist), Mr
RY Ntuli (industrial psychologist) and Dr DT Mureriwa (actuary);
8.3) The reasonable taxable costs of all consultations, accommodation,
transportation and other incidental costs incurred in preparation for and
attendance at the medico -legal consultations and court proceedings. The
above costs are to be paid into the aforementioned trust account.
9) The Plaintiff shall serve the notice of taxation on the Defendant’s
attorney of record. The Defendant shall be allowed 14 court days to make
payment from date of settlement or taxation thereof. Should payment not
be effected timeously, the Plaintiff is entitled to recover interest at the
prevailing mora rate on the taxed or agreed costs from date of allocatur to
date of final payment.
10) It is recorded that the purported contingency fee agreement between
the Plaintiff and his attorneys does not comply with the requirements of the
Contingency Fees Act 66 of 1997 and accordingly does not constitute a
valid contingency fee agreement. This is recorded without prejudice to any
rights the parties may have inter se.
________________________________
A REDDY
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
For Plaintiff: Advocate R Ferguson
Instructed by: Nobela Attorneys
C/O Sehlabo Attorneys Inc
For the Defendant: No Appearance