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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 1446/2024
In the matter between
MOTHOBI MOKOENA PLAINTIFF
And
THE ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Mokoena v RAF (1446/2024) [2026] ZAFSHC 318 (04 June 2026)
Coram: VAN ASWEGEN AJ
Heard: 25 and 26 November 2025, 28 November 2025 and 24 March 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The date and time for hand-
down is deemed to be 10h00 on 04 June 2026.
Summary: Claim for damages arising from serious injuries sustained in a motor
vehicle collision – past medical expenses – future loss of income – diminished
earning capacity.
ORDER
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1 The defendant, having accepted its liability to pay 100% of the plaintiff’s proven
or agreed damages arising out of a motor vehicle accident which occurred on 21
November 2020, is ordered to pay the plaintiff:
1.1 the amount of R3 274 350 in respect of future loss of income into the following
bank account:
1.2 the amount of R312 932.68 in respect of the plaintiff’s past medical expenses.
2 Payment of the aforesaid amounts must be made into the bank account of the
plaintiff’s attorney with the following details:
HONEY ATTORNEYS - TRUST ACCOUNT
NEDBANK - MAITLAND STREET BRANCH, BLOEMFONTEIN
BRANCH CODE: 11023400
ACCOUNT NO: 1[…]
REFERENCE: Y JV RENSBURG/bv/J04257
3 Interest shall accrue on the capital amounts awarded to the plaintiff in respect of
his claims for future loss of income and past medical expenses calculated from 15
(fifteen) days from the date of this order until the date of payment.
4 Interest shall accrue on the plaintiff’s taxed costs calculated from 15 (fifteen)
days from date of taxation to the date of payment.
5 The defendant is ordered to furnish an undertaking to the plaintiff in terms of
s 17(4)(a) of the Road Accident Fund Act 56 of 1996, for 100% of the costs of the
future
accommodation of the plaintiff in a hospital or nursing home or the
treatment of or the rendering of a service or the supplying of goods to him arising out
of injuries sustained by him in the motor vehicle accident of 21 November 2020 in
terms of which undertaking the defendant will be obliged to compensate him in
respect of the said costs after the costs have been incurred and on proof.
6 The defendant shall pay the plaintiff’s taxed or agreed legal costs, which shall
include the trial dates of 25 November 2025, 26 November 2025, 28 November 2025
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and 24 March 2026, including the costs of counsel on Scale C where applicable, and
the reasonable qualifying and reservation fees of the following experts:
6.1 Dr A van Aswegen (neurosurgeon);
6.2 Mr L Roper (neuro and clinical psychologist);
6.3 Dr J Preddy (orthopaedic surgeon);
6.4 Dr KJP Lubunya (ophthalmologist);
6.5 Drs Spies and Partners (radiologists);
6.6 Mrs L van Zyl (occupational therapist);
6.7 Dr EJ Jacobs (industrial psychologist);
6.8 Munro Forensic Actuaries.
7 The plaintiff shall, in the event that costs are not agreed, serve the notice of
taxation on the defendant.
8 The scale of the plaintiff’s costs in the matter shall be on a party and party scale,
save that the costs of the trial date of 25 November 2025 shall be paid on an attorney
and client scale.
9 The plaintiff is declared a necessary witness.
JUDGMENT
Van Aswegen AJ
Introduction
[1] This matter concerns the plaintiff’s claim for compensation under the Road
Accident Fund Act 56 of 1996 (the RAF Act) arising from injuries sustained in a motor
vehicle collision on 21 November 2020. The matter does not come before me as a trial
on all issues. The defendant conceded the merits and accepted 100% liability for the
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plaintiff’s proven or agreed damages. It also accepted that the plaintiff had sustained
serious injuries. The plaintiff’s claim for general damages was settled prior to the
commencement of the trial on 24 March 2026. What remained for determination were
the plaintiff’s claims for past medical expenses, a claim for an undertaking in terms of
s 17(4) (a) of the R AF Act for his reasonable future hospital, medical and related
expenses and his claim for future loss of income.
The procedural background
[2] The matter was initially enrolled for trial on 25, 26 and 28 November 2025. On
the first day of trial, the defendant sought an amendment to introduce a special plea of
prescription. The amendment was not opposed. The plaintiff thereafter delivered a
replication to the special plea. The plaintiff also filed heads of argument dealing with the
special plea. The prescription plea was thereafter abandoned.
[3] On 26 November 2025, the defendant conceded the merits and accepted liability
for 100% of the plaintiff's proven or agreed damages. It did not oppose the plaintiff’s
application in terms of Uniform Rule 38(2) read with s 3(1)(c) of the Law of Evidence
Amendment Act 45 of 1998 to admit into evidence:
i. the medico-legal reports, together with the confirmatory affidavits, of Dr A
van Aswegen, neurosurgeon; Dr J Preddy, orthopaedic surgeon; Mr L Roper,
clinical psychologist and neuropsychologist; Dr K J P Lubuya, ophthalmologist;
Mrs L van Zyl, occupational therapist; and Dr E J Jacobs, industrial psychologist;
together with the actuarial report of Munro Forensic Actuaries;
ii. the affidavits of the plaintiff and the factual witnesses dealing with the
circumstances of the collision, as well as the plaintiff’s pre- and post -morbid
functioning, work history, income and the impact of the injuries; and
iii. the hospital records, medical schedules and quantum affidavits identified
in the expert and factual affidavits.
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[4] In light of the fact that the defendant did not oppose the application, and having
considered the nature and purpose of the evidence to be presented and in the interest
of saving time and costs, the application was granted. The plaintiff nevertheless testified
himself and called the following expert witnesses to give oral evidence: Mrs L van Zyl,
occupational therapist; Dr E J Jacobs, industrial psychologist; Mr L Roper, clinical
psychologist and neuropsychologist ; and Dr A van Aswegen, neurosurgeon. The
defendant, however, filed no expert reports and did not seek to cross -examine any of
the plaintiff’s witnesses.
The plaintiff’s background and work history
[5] The plaintiff was born on 28 April 2002.
Although he attended school up to Grade
12, he did not obtain matric. He thereafter enrolled at FET College, where he studied
Electrical Engineering from N1 to N4 and later Diesel Mechanics from N1 to N2.
[6] He testified that he found hands -on work easier than purely academic studies
and, for that reason, he pursued a practical and technical career path. After completing
his N4 in electrical engineering, he obtained employment as a driver at Ford and
thereafter moved progressively into mechanical work. At the time of trial, he was
employed by AFGRI as an artisan engaged in the repair of tractors and described
himself as a diesel mechanic by trade. He confirmed that his basic salary, excluding
overtime, was approximately R22 000.00 per month, and that with overtime it could
increase to about R30 000.00 per month.
The injuries and their sequelae
[7] The plaintiff testified to ongoing symptoms and functional limitations that impact
his work as a diesel mechanic. He described marked irritability, significant memory
difficulties and severe sleep disturbance since the accident. His sleep is chronically
disrupted by pain and discomfort, to the extent that he has been unable to sleep
properly despite changing his mattress several times.
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[8] He also testified to persistent left -shoulder and upper -limb difficulties. He
experiences pain in his shoulder, cannot lift heavy objects with his left arm nor work for
prolonged periods with the arm elevated, and has reduced grip strength in his left hand.
These difficulties limit his ability to perform tasks requiring sustained force, lifting or
repetitive upper -limb use. Of particular relevance to his daily work, he testified to
constant pelvic and lower -back pain during the workday and explained that the pain
intensifies around midday, after which he requires frequent breaks ; typically he works
for about an hour and then need rest s for approximately 30 minutes. His evidence was
that this pattern recurs throughout the day.
[9] Dr Preddy records that the plaintiff sustained severe polytrauma in the collision.
For orthopaedic purposes, the injuries of enduring significance were a Grade II
subluxation of the left acromio- clavicular joint with instability; lumbar spine injury,
including fractures of the left transverse processes of L1 and L2; and a major pelvic ring
injury comprising diastasis of the pubic symphysis, diastasis of both sacro- iliac joints,
and a vertical fracture through the central sacrum, for which surgical fixat ion was
required. He also recorded multiple left rib fractures and a comminuted left scapular
fracture.
[10] Dr Preddy’s evidence is that the plaintiff’s long- term orthopaedic prognosis is
poor. He identifies a high likelihood of increasing pain and mechanical dysfunction in
the sacro- iliac joints and spine, with a risk of post -traumatic osteoarthritis and
progressive degenerative change. Even with future surgery, there remains a substantial
risk of persistent pain, reduced mobility and further deterioration.
[11] On Dr Preddy’s assessment, the plaintiff is orthopaedically restricted to
sedentary to light -duty work, and then only with appropriate accommodation. He
sedentary to light -duty work, and then only with appropriate accommodation. He
regards diesel -mechanic work as heavy work and considers the plaintiff medically
unsuitable for that occupation in the long term. He records that the plaintiff may perhaps
persist in such work for a limited time, but that it is improbable that he will sustain it
medium- to long-term until ordinary retirement age. In that regard, the concern that he
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plaintiff may not be able to continue with his current work beyond about age 40 is, in Dr
Preddy’s view, well-founded.
[12] According to the evidence of Dr Preddy, the plaintiff will require ongoing
orthopaedic follow -up in relation to the lumbar spine, sacro- iliac joints and AC joint;
continued conservative management by way of analgesics, anti -inflammatory
medication, muscle relaxants, physiotherapy, and possibly pain- clinic interventions and
may in future require surgery, including AC joint stabilisation, sacro- iliac joint fusion,
lumbar decompression and fusion, with possible revision procedures. He also
envisages ongoi ng rehabilitation and ergonomic measures to optimise the plaintiff’s
functioning within the confines of sedentary to light work.
[13] Dr van Aswegen, the neurosurgeon, testified that the plaintiff sustained a
moderate traumatic brain injury as a result of the collision. That conclusion was based
on objective clinical features, including a period of loss of consciousness, prolonged
post-traumatic amnesia, documented confusion, and radiological evidence of cerebral
oedema. He explained that such an injury involves shearing forces within the brain and
is associated with lasting neurocognitive and neurobehavioural consequences.
[14] He confirmed that the plaintiff suffers from persistent neurocognitive deficits,
including impaired memory, reduced attention and concentration, and slowed
processing speed, together with neuropsychiatric sequelae such as irritability, mood
disturbance and post -traumatic stress symptoms. In his opinion, these deficits are
permanent in nature and are unlikely to improve; there is, in fact, a risk of gradual
deterioration over time.
[15] Dr van Aswegen further testified that these impairments materially affect the
plaintiff’s ability to function in a work environment. They reduce his capacity to learn and
retain new information, impair his ability to work accurately and efficiently, limit his
retain new information, impair his ability to work accurately and efficiently, limit his
tolerance for stress and complexity, and negatively affect his interpersonal functioning.
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[16] In sum, Dr van Aswegen’s evidence was that the plaintiff is effectively excluded
from his pre-morbid field of heavy manual work, while his ability to transition to lighter or
more cognitively demanding employment is materially compromised by his
neurocognitive and psychological deficits particularly as the plaintiff’s condition requires
long-term multidisciplinary management. This arises from the combined effect of his
moderate traumatic brain injury, with permanent neurocognitive and psychosocial
sequelae, and his significant orthopaedic and physical impairments.
[17] He identified reasonably foreseeable future medical interventions as including
ongoing neurosurgical or neurological follow-up to monitor the sequelae of the traumatic
brain injury; periodic neuropsychological reassessment together with rehabilitative and
compensatory cognitive interventions; psychiatric and psychological treatment for
depression and post -traumatic stress symptoms, including likely long- term medication
and psychotherapy; and continued rehabilitative therapies, including occupational
therapy, aimed at functional adaptation and vocational rehabilitation.
[18] Mr Roper, a clinical psychologist and registered neuropsychologist, conducted a
neuropsychological assessment of the plaintiff and testified as to its results. He
explained that neuropsychological testing must be interpreted in context, with reference
not only to the test scores themselves but also to the plaintiff’s pre- morbid functioning,
subjective complaints and collateral information.
[19] As to pre-morbid functioning, Mr Roper noted that the plaintiff’s formal schooling
was modest, that he failed Grades 4, 9 and 12, and that he was not naturally inclined
towards clerical or office- based work. At the same time, he functioned adequately in
practical, hands-on work and ultimately qualified and worked as a diesel mechanic. Mr
Roper’s evidence was that the plaintiff’s vocational strength lay in practical mechanical
Roper’s evidence was that the plaintiff’s vocational strength lay in practical mechanical
work rather than in academic or clerical fields.
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[20] The central feature of the plaintiff’s test profile, according to Mr Roper, was
marked fluctuation in performance across virtually all cognitive domains tested,
including attention and concentration, memory, executive functioning, psychomotor
speed and language fluency. He explained that the plaintiff was not uniformly poor
across all tests , rather, he sometimes performed adequately and at other times below
average, even within the same domain. In Mr Roper’s opinion, that pattern of intra-
individual variability is typical of a moderate traumatic brain injury and signifies that the
plaintiff is unable to sustain reliable cognitive performance over time or in varying
circumstances. Mr Roper further explained that pain and anxiety both worsen cognitive
inefficiency. In his view, the plaintiff’s functioning reflects the combined effect of the
brain injury, chronic pain and PTSD-related anxiety.
[21] On prognosis, Mr Roper’s evidence was that the plaintiff’s brain injury is
permanent. At best the condition can be managed, but there is no prospect of true
recovery of the injured brain tissue; and the deficits in attention, concentration and
executive functioning are likely to persist indefinitely.
[22] Mr Roper also drew an important distinction between memory and attention. He
testified that, although the plaintiff reported forgetfulness, some formal memory tests
were adequate. In his view, the core deficit lies more in sustained attention and
concentration than in pure memory storage. When attention lapses, information is not
properly encoded, and that is then experienced as forgetfulness.
[23] Finally, Mr Roper accepted that he had not personally observed the plaintiff at
work and acknowledged that the plaintiff has remained employed for several years after
the accident. He explained, however, that this did not negate the test findings. It
suggested rather that the plaintiff had managed, thus far, in a familiar role and
suggested rather that the plaintiff had managed, thus far, in a familiar role and
supportive environment, while remaining vulnerable to attentional lapses, fluctuations
and error, particularly if the work context became less supportive or the demands
changed.
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[24] Ms van Zyl, the occupational therapist, assessed the plaintiff’s functional
capacity with reference to his physical, cognitive and psychosocial functioning, and to
the demands of both his present occupation and possible alternative work. Her
evidence was based on her own clinical and functional -capacity assessment together
with the opinions of the other experts she considered. She accepted that the plaintiff
had sustained a moderate traumatic brain injury with persistent neurocognitive
symptoms, includ ing difficulties with attention and concentration, slowed mental
response speed, verbal-memory difficulties, fluctuating constructional ability, executive-
functioning vulnerabilities and fluctuating verbal fluency. She also took into account the
plaintiff’s depressive disorder associated with the traumatic brain injury, reduced self -
esteem, and significant post -traumatic stress symptoms. On the orthopaedic side, she
proceeded on the basis of a Grade II subluxation of the left acromio- clavicular joint,
lumbar-spine injury with a risk of accelerated degeneration, and pelvic injury with sacro-
iliac joint instability and surgically treated diastasis. She recorded that the
ophthalmologist found no structural or functional visual abnormality of relevance to work
capacity.
[25] Ms van Zyl classified the plaintiff’s work as a diesel mechanic on large
agricultural machinery as heavy work. She explained that it requires prolonged
standing, stooping, bending, crouching, kneeling, working in confined spaces and
above shoulder height, together with the handling of tools and components. She also
emphasised that the work has a significant cognitive component, since it involves
dismantling and reassembling machinery, keeping track of parts and sequence, and
working accurately and safely.
[26] On her objective functional findings, Ms van Zyl considered the plaintiff
unsuitable for handling loads beyond the light category. Even within that range, she
unsuitable for handling loads beyond the light category. Even within that range, she
considered frequent lifting contraindicated. She found that his tolerance for sitting and
walking was reduced; that his capacity for stooping, bending, crouching, kneeling and
working above shoulder height was notably diminished; and that he did not meet the
postural and mobility demands of diesel -mechanic work. She also found that his
endurance was reduced and that he required rest breaks when activity was sustained.
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[27] Cognitively and psychosocially, she recorded ongoing problems with the
plaintiff’s concentration and memory, together with irritability, anger and headaches
affecting concentration. Her evidence was that these deficits place the plaintiff at a
disadvantage in his present trade and would also impair his ability to cope with
sedentary or light work where that work is cognitively demanding, deadline -driven or
safety-critical. Physically, she considered the plaintiff unsuited to heavy work and
therefore unsuited to his present occupation as a diesel mechanic. In her opinion,
continued heavy work would likely accelerate degenerative change, increase pain and
reduce function over time. Cognitively and psychologically, she considered that his
deficits materially compromise his reliability and safety in work requiring sustained
concentration, sequencing and safety-critical decisions.
[28] In her overall assessment of the plaintiff’s employability, Ms van Zyl concluded
that the plaintiff is permanently restricted to sedentary or light work, and then only with
accommodation for reduced lifting tolerance, postural limitations and the need for
breaks. She considered him unlikely to sustain heavy work to normal retirement age
and vulnerable to early exit from his trade. She further considered that, if he were to
lose his current employment, he would likely be forced into more sheltered, less
demanding and lower -paid work, or periods of unemployment . Her evidence was
accordingly that the plaintiff is an unequal competitor in the open labour market.
Accordingly, ongoing occupational therapy and vocational rehabilitation will be required
to assist the plaintiff in transitioning from heavy manual work to more suitable, but
lower-paid, sedentary or light occupations.
[29] Dr Jacobs, the industrial psychologist, translated the medical and functional
evidence into its labour -market consequences. In doing so, he relied on the
evidence into its labour -market consequences. In doing so, he relied on the
orthopaedic, neurosurgical, neuropsychological and occupational therapy evidence, all
of which he accepted. He recorded that, pre- morbidly, the plaintiff followed a practical
and progressively improving vocational path, culminating in qualification for and
employment as a diesel mechanic. In his view, but for the accident, the plaintiff would
probably have continued along a typical artisan career trajectory, remaining fully
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employable in heavy mechanical work, with prospects of stable employment, overtime
earnings and advancement to retirement.
[30] As to the post -morbid position, Dr Jacobs’ evidence was that the plaintiff
continues to work, but under significant constraint. Physically, he experiences persistent
shoulder and lower-back pain, reduced strength, impaired grip, and reduced endurance,
requiring a slower pace and frequent rest breaks. Cognitively and psychologically, he
suffers from the sequelae of a moderate traumatic brain injury, including impaired
memory, attention and concentration, together with PTSD and depressive features, all
of which affect his reliability and performance at work.
[31] Dr Jacobs emphasised that the plaintiff’s continued employment is not an
indicator that his earning capacity has remained intact , but rather a reflection of his
personal motivation and the fact that he remains in a familiar and relatively supportive
environment. Relying on the opinions of medical experts and the occupational therapist,
he concluded that the plaintiff is physically unsuited to heavy diesel -mechanic work and
should not continue in such employment. At the same time, his neurocognitive and
psychological impairments materially limit his ability to compete for and sustain
alternative, more cognitively demanding employment.
[32] A central feature of Dr Jacobs’ opinion was that the plaintiff’s impairment, both
physically and mentally , leaves the plaintiff without a viable occupational niche: he
cannot safely continue in heavy manual work, and he is not a fair competitor for
sedentary or clerical work. The result is that he is not an equal competitor in the open
labour market. Accordingly, he concluded that the plaintiff faces a substantially curtailed
work-life expectancy, diminished prospects of advancement, and a materially r educed
earning capacity. He considered the plaintiff to be at high risk of future job loss and
earning capacity. He considered the plaintiff to be at high risk of future job loss and
unemployment, and testified that, once he loses the support of his current employer, he
will probably struggle to obtain and sustain alternative employment. On that basis, Dr
Jacobs expressed the opinion that the plaintiff is, for practical purposes, unemployable
in the open labour market.
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The plaintiff’s earning capacity
[33] When an injury impairs a plaintiff’s ability to exploit his labour and skills in the
market, the resulting diminution is compensable in money. In Rudman v Road Accident
Fund1 (Rudman) the Supreme Court of Appeal held that ‘. . . where a person’s earning
capacity has been compromised, “ that incapacity constitutes a loss, if such a loss
diminishes their estate” and “he is entitled to be compensated to the extent that his
patrimony has been diminished.”’2 Whether an incapacity constitutes a loss depends on
the facts of the particular case. What must be proved is that the reduction in earning
capacity has , in truth , resulted, or will result, in pecuniary loss. In Rudman the court
made it plain that a physical disability affecting earning capacity does not, without more,
translate into a diminution of estate or patrimony. What must be proved is that the
reduction in earning capacity has in truth resulted, or will result, in pecuniary loss.
3
[34] Before the collision, the plaintiff had already embarked upon a skilled and
practical career path. The probabilities favour the conclusion that, but for the accident,
he would have continued along the career path of a diesel -mechanic, earning at levels
commensurate with that trade and remaining capable of heavy manual work until
ordinary retirement age, subject to the ordinary contingencies of life and work. The
plaintiff’s post-morbid position is materially different. Although the plaintiff remains
employed as a diesel mechanic, the evidence shows that he does so in circumstances
of pain, limitation and accommodation, within a comparatively protected environment.
His present employment cannot be treated as a reliable indicator of his earning capacity
in the open labour market.
[35] The evidence shows that his work is more controlled than the heavier forms of
diesel-mechanic work in the broader market; that he experiences substantial difficulty
diesel-mechanic work in the broader market; that he experiences substantial difficulty
coping with its physical demands; that he requires assistance with heavier tasks; that
his working day is affected by pain, fatigue and reduced speed; and that his longer-term
1 Rudman v Road Accident Fund [2002] ZASCA 129; 2003 (2) SA 234 (SCA).
2 Ibid para 11.
3 Ibid.
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suitability for the trade is doubtful. On the uncontested evidence, the plaintiff is no longer
suited to heavy diesel -mechanic work as a stable long- term occupation, nor does he
have a secure alternative career path. The lighter work notionally open to him is lower -
paid, scarce and not guaranteed. Even that work would be undertaken with substantial
disadvantage because of his cognitive and psychological limitations.
[36] If his current employment were lost, the probabilities do not favour the conclusion
that he would secure and maintain equivalent work elsewhere. On the expert evidence,
he would face a labour market for which he is physically and psychologically ill- suited.
Accordingly, I am satisfied, on the evidence in this matter, that the plaintiff has
discharged the burden of proving that hi s earning capacity has been materially
diminished and that this diminution will probably result in pecuniary loss.
The actuarial calculations
[37] In Southern Insurance Association Ltd v Bailey NO ,4 the then Appellate Division
explained the difficulty inherent in the assessment of future loss:
‘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.
speculative.
It is manifest that either approach involves guesswork to a greater or lesser extent.’5
4 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 112E-114F.
5 Ibid at 113F-114A.
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[38] A ctuarial evidence, while of considerable assistance, is not decisive. It must be
evaluated in light of the totality of the evidence and the factual context of the case. In
the end, the assessment of loss remains a matter for the court.6
[39] The Munro actuarial report proceeds on the assumption that the plaintiff’s
projected gross future earnings are the same in both the uninjured and injured
scenarios. It therefore does not model a different post -morbid career path, nor is the
plaintiff’s retirement age or earnings trajectory reduced. Instead, the report reflects the
plaintiff’s post-accident disadvantage by the application of differing contingencies to the
same projected earnings base. On that approach, the plaintiff’s gross future earnings
are taken at R6 548 700.00 in both the uninjured and injured scenarios. In the uninjured
scenario, a 15% contingency deduction is applied, yielding R5 566 395. 00. A 65%
contingency deduction was applied in the injured scenario, yielding R2 292 045.00, and
thus a future loss of R3 274 350.00. The calculations were done mindful of the effect of
the statutory cap on future loss of earnings.
[40] In the light of the uncontested evidence, there is no reason not to accept the
actuarial capital figures as a proper foundation for the assessment. The real issue is the
contingencies, if any, to be applied in order to arrive at a fair measure of the plaintiff’s
loss.
[41] The plaintiff contended in argument that a 0% post -morbid contingency should
be applied. Properly understood, that submission must be taken to mean that there is,
in truth, no reliable post -morbid income stream available, or none sufficiently secure for
a meaningful post-morbid calculation. I do not, however, consider it proper to disregard
entirely the fact that the plaintiff remains employed and continues, for the present, to
earn an income. For that reason, I do not treat his earning capacity as wholly
earn an income. For that reason, I do not treat his earning capacity as wholly
extinguished. But the evidence plainly shows that only a limited portion of the projected
post-morbid earnings can realistically be treated as secure.
6 Road Accident Fund v Kerridge [2018] ZASCA 151; 2019 (2) SA 233 (SCA) para 35.
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[42] In all the circumstances, I consider a post -morbid contingency of 65% to be fair.
That deduction recognises the plaintiff’s continued present earnings, but properly
reflects the fragility of his continued employment, the substantial risk of a premature
end to his trade, and his marked disadvantage in the open labour market. Applying that
contingency on the Munro methodology yields the following result : The uninjured future
earnings of R6 548 700.00 less a 15% contingency deduction, amount to R5 566
395.00. The injured future earnings of R6 548 700.00, less a 65% contingency
deduction, amount to R2 292 045.00. The resulting future loss of income is accordingly
R3 274 350.00.
Past medical expenses
[43] The plaintiff claims an amount of R312 932.68 in respect of past medical
expenses. The defendant did not place the amount of the plaintiff’s claim for past
medical expenses in issue, nor was it suggested that the expenses were unrelated to
the injuries that the plaintiff sustained in the collision. The defendant’s argument was
rather that, because those expenses had already been paid by the plaintiff’s medical
scheme, the plaintiff had suffered no recoverable patrimonial loss and was therefore not
entitled to recover them from the defendant.
[44] I was not referred to any authority in support of the proposition that, for that
reason alone, the defendant is not liable. I shall nevertheless deal with the point,
because I am mindful of the judgments in Discovery Health (Pty) Ltd v Road Accident
Fund and Another
7 (Discovery 1) and Discovery Health (Pty) Ltd v Road Accident Fund
and Another8 (Discovery 2).
[45] Discovery 1 concerned the defendant’s directive of 12 August 2022, which
instructed its employees to reject claims for past medical expenses where those
expenses had already been paid by a claimant’s medical scheme. The premise of the
directive was that, in those circumstances, the claimant had suffered no loss and that
directive was that, in those circumstances, the claimant had suffered no loss and that
7 Discovery Health (Pty) Ltd v Road Accident Fund and Another 2023 (2) SA 212 (GP)
8 Discovery Health (Pty) Ltd v Road Accident Fund and Another [2024] ZAGPPHC 1303; 2025 (3) SA 225
(GP).
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the defendant therefore had no duty to reimburse the claimant. Mbongwe J rejected that
approach, reviewed and set aside the directive, and interdicted the RAF from
implementing it. The RAF’s applications for leave to appeal were refused by both the
Supreme Court of Appeal and the Constitutional Court.
[46] The defendant thereafter issued two further directives. The second directive
required the defendant’s employees to determine whether a claim fell within Prescribed
Minimum Benefits or Emergency Medical Conditions. The third directive was based on
s 19(d)(i) of the RAF Act, on the footing that claimants who had undertaken to
reimburse their medical schemes had entered into an agreement of the kind
contemplated by that section. These directives gave rise to Discovery 2.
[47] The majority in Discovery 2 held that the second and third directives did not
breach Mbongwe J’s order because they were, in form, directed at different subject -
matter. The minority took the opposite view. It held that the substance of Mbongwe J’s
order was that the RAF may not reject claims for past medical expenses merely
because a medical scheme had paid them, and that the later directives
were an
impermissible attempt to reach the same result by different means.
[48] The Full Bench in Road Accident Fund v Van Wyk (Appeal)9 (Van Wyk )
considered both Discovery judgments in detail and preferred the approach in the
minority judgment in Discovery 2. The Full Bench held that even if the second directive
were otherwise competent, the defendant could not invoke it in general terms . The
defendant had to plead and prove that the particular expenses claimed were Prescribed
Minimum Benefits or Emergency Medical Conditions.
[49] Turning to the third directive, the Full Bench further held that s 19(d) (i) of the
RAF Act is directed at champertous -type arrangements, not the ordinary arrangement
in terms whereof a medical scheme pays in discharge of its contractual obligations to its
in terms whereof a medical scheme pays in discharge of its contractual obligations to its
9 Road Accident Fund v Van Wyk (Appeal) [2026] ZAWCHC 39.
18
member. An obligation to reimburs e owed by the claimant to the medical scheme is
therefore not the kind of agreement contemplated by s 19(d) (i). The Full Bench also
reaffirmed the application of the doctrine of res inter alios acta. The defendant is not
entitled to appropriate to itself the benefit of the claimant’s medical -scheme cover. The
relationship between the claimant and the medical scheme is a collateral matter and
does not reduce or extinguish the RAF’s liability.10
[50] In the present matter, the basic difficulty for the defendant is that it did not
properly rely on any directive. But even if it had done so, and even if such directive
were assumed to be valid, that would not have been enough. I respectfully agree with
the reasoning of the full bench in Van Wyk that that the defendant would still have had
to plead and prove facts showing that the particular expenses claimed fell within the
scope of the directive. It did not do so. In my view, t he arrangement between the
plaintiff and his medical scheme is , in any event, res inter alios acta as far as the
defendant is concerned. It does not avail the defendant to say that, because the plaintiff
happened to enjoy medical -scheme cover, the defendant’s liability has been
extinguished.
Costs
[51] The plaintiff seeks a punitive costs order on the scale as between attorney and
client. The basis advanced for such an order , in overarching terms, is that the
defendant failed timeously and properly to investigate and consider the claim; raised, on
the first day of the trial, a special plea of prescription which was thereafter withdrawn;
failed properly to instruct its legal representatives for trial; did not participate
meaningfully in the hearing on the issues it had itself placed in dispute; and, by its
conduct, occasioned unnecessary expense, including the attendance of the plaintiff’s
expert witnesses.
10 The full court in Discovery 2 granted Discovery Health leave to appeal against the majority judgment.
See in this regard Discovery Health (Pty) Ltd v Road Accident Fund and Another (Leave to Appeal)
(2023-117206) [2025] ZAGPPHC 363 (9 April 2025). As noted in Van Wyk NO v Road Accident Fund
(20944/2022) [2026] ZAWCHC 210 (7 May 2026) para 27, the appeal is still pending.
19
[52] There is force in much of that criticism. The manner in which the defendant
conducted the litigation was decidedly less than what is expected of a responsible
litigant. I am not persuaded, however, that the defendant’s conduct warrants an
attorney-and-client costs order in respect of the trial as a whole.
[53] That said, in my view a more confined punitive costs order is justified as a mark
of this Court’s displeasure at the manner in which the special plea of prescription was
raised and then abandoned. The special plea was introduced at the eleventh hour.
Although the amendment was not opposed, the plaintiff was required to meet it by
delivering a replication and preparing argument to demonstrate why the plea was bad in
law and unsustainable on the facts. Only after those steps had been taken was the plea
abandoned, by which stage valuable court time had already been wasted.
Order
[78] In the result, the following order is made:
1 The defendant, having accepted its liability to pay 100% of the plaintiff’s proven
or agreed damages arising out of a motor vehicle accident which occurred on 21
November 2020, is ordered to pay the plaintiff:
1.3 the amount of R3 274 350 in respect of future loss of income into the following
bank account:
1.4 the amount of R312 932.68 in respect of the plaintiff’s past medical expenses.
2 Payment of the aforesaid amounts must be made into the bank account of the
plaintiff’s attorney with the following details:
HONEY ATTORNEYS - TRUST ACCOUNT
NEDBANK - MAITLAND STREET BRANCH, BLOEMFONTEIN
BRANCH CODE: 11023400
ACCOUNT NO: 1[…]
REFERENCE: Y JV RENSBURG/bv/J04257
20
3 Interest shall accrue on the capital amounts awarded to the plaintiff in respect of
his claims for future loss of income and past medical expenses calculated from 15
(fifteen) days from the date of this order until the date of payment.
4 Interest shall accrue on the plaintiff’s taxed costs calculated from 15 (fifteen)
days from date of taxation to the date of payment.
5 The defendant is ordered to furnish an undertaking to the plaintiff in terms of
s 17(4)(a) of the Road Accident Fund Act 56 of 1996, for 100% of the costs of the
future
accommodation of the plaintiff in a hospital or nursing home or the
treatment of or the rendering of a service or the supplying of goods to him arising out
of injuries sustained by him in the motor vehicle accident of 21 November 2020 in
terms of which undertaking the defendant will be obliged to compensate him in
respect of the said costs after the costs have been incurred and on proof.
6 The defendant shall pay the plaintiff’s taxed or agreed legal costs, which shall
include the trial dates of 25 November 2025, 26 November 2025, 28 November 2025
and 24 March 2026, including the costs of counsel on Scale C where applicable, and
the reasonable qualifying and reservation fees of the following experts:
6.3 Dr A van Aswegen (neurosurgeon);
6.4 Mr L Roper (neuro and clinical psychologist);
6.3 Dr J Preddy (orthopaedic surgeon);
6.4 Dr KJP Lubunya (ophthalmologist);
6.5 Drs Spies and Partners (radiologists);
6.6 Mrs L van Zyl (occupational therapist);
6.7 Dr EJ Jacobs (industrial psychologist);
6.8 Munro Forensic Actuaries.
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7 The plaintiff shall, in the event that costs are not agreed, serve the notice of
taxation on the defendant.
8 The scale of the plaintiff’s costs in the matter shall be on a party and party scale,
save that the costs of the trial date of 25 November 2025 shall be paid on an attorney
and client scale.
9 The plaintiff is declared a necessary witness.
W A VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Plaintiff: D Marx
Instructed by: Honey Attorneys
Bloemfontein
For the defendant: M Lepoto
Instructed by: State Attorney
Bloemfontein