SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG)
Reportable: NO
Of interest to other Judges: NO
Revised: NO
Date: 15 June 2026 S.S Tebeile AJ
Signature: _________________
Case No: 2016-28724
In the matter between:
N[…] M[ …] K[…] Plaintiff
and
ROAD ACCIDENT FUND Defendant
Heard on : 17 March 2026
Decided on : 15 June 2026
JUDGMENT
TEBEILE AJ:
2
Introduction
[1] This is a default judgment application in terms of Rule 31(5) of the Uniform
Rules of Court against the Road Accident Fund (“the defendant”) . The plaintiff,
N[…] M[…] K[…], a 19-year -old male (born 24 August 2006), was struck by a
motor vehicle on 26 October 2015 while crossing Adam Street in Orlando East,
Soweto, Gauteng Province. At the time of the accident, he was 9 years old and a
Grade 3 learner. The driver of the unknown vehicle fled the scene without
stopping.
[2] The plaintiff sustained bodily injuries, including a head injury with loss of
consciousness, an open fracture of the left tibia and fibula, and a left lower leg
laceration. He was admitted to Chris Hani Baragwanath Hospital, where he
underwent debridement and external fixation of the left tibia/fibula.
[3] The defendant was served with the combined summons on 26 August 2016 and
filed its notice of intention to defend on 6 September 2016. The defendant
thereafter failed to file a plea within the prescribed period. The plaintiff served a
notice of bar on 9 October 2016. The defendant remained in default. A further
notice of bar was served on 24 October 2024. To date, the defendant has filed no
plea. The plaintiff now seeks default judgment against the defendant.
Liability
[4] The merits of the claim are settled in the plaintiff’s favour. The driver of the
motor vehicle was wholly negligent, and the plaintiff, a minor at the time, bears
no contributory negligence.
[5] The defendant is 100% liable for the plaintiff’s agreed or proven damages.
Application in terms of Rule 38(2)
3
[6] The plaintiff brought an application in terms of Rule 38(2) for evidence to be led
by way of affidavits. The matter proceeds by way of affidavit evidence, for
which leave is granted in terms of Rule 38(2).
Plaintiff’s expert evidence
[7] The plaintiff has filed expert reports from a neurosurgeon, orthopaedic surgeon,
clinical psychologist, educational psychologist, occupational therapist, industrial
psychologist, and an actuary. The defendant has filed no opposing expert reports.
[8] According to the report by Dr A Mazwi, a neurosurgeon, the plaintiff sustained a
mild head injury with brief loss of consciousness and amnesia. He suffers from
post injury recurrent headaches, difficulty with concentration, poor memory,
aggressive behaviour, and has a left lower leg scar. The combined whole person
impairment is rated at 17%. He qualifies under the narrative test for serious
injury.
[9] The report by orthopaedic surgeon, Dr E Schnaid reveals that the plaintiff
sustained an open fracture of the left tibia/fibula. He experiences pain in the left
leg and lumbar spine, cannot walk long distances, cannot run or climb stairs, and
cannot lift heavy objects. He suffers cramps in the left leg.
[10] Ms R Mthembu, the clinical psychologist has reported that the plaintiff presents
with cognitive deficits, including difficulties with auditory memory, cognitive
flexibility, and information processing. The plaintiff self-isolates, experiences
random sadness, emotional detachment, and is short-tempered.
[11] Ms MP Ndlovu, an e ducational psychologist’s report reveals that prior to the
accident, the p laintiff was functioning well academically. Since the accident, he
has failed Grade 10 four times and is currently making his fifth attempt in the
current academic year 2026. His neuropsychological deficits are permanent. He
will likely exit the mainstream system in favour of vocational training, with
Grade 9 as his highest probable educational attainment.
4
[12] According to the occupational therapist, Ms NR Baartman, the plaintiff’s
physical capacity is limited. He cannot engage in prolonged standing, walking,
climbing, or lifting heavy objects. He demonstrates physical abilities only in the
low to mid-ranges of medium work.
[13] The report by Ms V Samkange, industrial psychologist, records that, but for the
accident, the plaintiff would likely have passed Grade 12 with a bachelor’s
degree endorsement, enrolled for a degree in 2026, completed it in 2027, secured
an internship in 2028/2029, reached his career ceiling at age 45, and worked
until age 65. Post-accident, he will struggle to compete in the open labour market
due to his cognitive and physical impairments. He will likely be confined to
unskilled work with prolonged periods of unemployment.
The actuarial report
[14] Mr R Oketch, actuary, has calculated the plaintiff’s loss of earnings as follows:
Pre-morbid (but for the accident) scenario:
Past loss: Nil (the plaintiff was a child with no pre-accident income)
Pre-morbid future loss calculation:
Future earnings but for the accident: Approximately R12 500 000.00
Contingency deduction (standard 15%): R1 875 000.00
Net pre-morbid value: R10 625 000.00
Post-morbid future loss calculation (present value):
Future earnings having regard to the accident: Approximately R2 000 000.00
Contingency deduction (standard 25%): R500 000.00
Net post-morbid value: R1 500 000.00
Net loss of earnings (pre-morbid minus post-morbid):
R10 625 000.00 – R1 500 000.00 = R9 125 000.00
5
[15] The actuarial report then applies further specific contingencies and arrives at a
recommended amount of R8 094 827.00 for loss of earnings/earning capacity.
The plaintiff claims this amount.
The applicable legal principles on contingencies
[16] The assessment of damages for loss of earnings or earning capacity is inherently
uncertain. In Southern Insurance Association Ltd v Bailey NO
1 it was held:
“One of the elements in exercising that discretion is the making of a discount for
‘contingencies’ or the ‘vicissitudes of life’ . These include such matters as the
possibility that the plaintiff may in the result have less than a ‘normal’ expectation of
life; and that he may experience periods of unemployment by reason of incapacity
due to illness or accident, or to labour unrest or general economic conditions . The
amount of any discount may vary, depending upon the circumstances of the case.”
(Emphasis added)
[17] Contingency deductions are a flexible, discretionary adjustment made by the
court. The standard contingencies are typically 5% to 15% for pre-morbid
income and 15% to 35% for post-morbid income, depending on the facts of each
case. However, where the plaintiff’s prospects are particularly speculative or the
post-morbid scenario is fraught with uncertainties, higher contingencies may be
applied.
[18] In Road Accident Fund v Guedes
2 the Supreme Court of Appeal reiterated that
the assessment of future loss is not a mathematical exercise but a matter of
judicial estimation, having regard to the evidence and the probabilities. 3 The
Court stated:
1 1984 (1) SA 98 (A).
2 Road Accident Fund v Guedes 2006 (5) SA 583 (SCA).
3 Id at para 8.
6
“The calculation of the quantum of a future amount, such as loss of earning capacity,
is not, as I have already indicated, a matter of exact mathematical calculation. By its
nature such an enquiry is speculative and a court can therefore only make an estimate
of the present value of the loss which is often a very rough estimate”.
4
[19] The Court in Road Accident Fund v Guedes went on and stated:
“The court necessarily exercises a wide discretion when it assesses the quantum of
damages due to loss of earning capacity and has a large discretion to award what it
considers right. Courts have adopted the approach that in order to assist in such a
calculation, an actuarial computation is a useful basis for establishing the quantum of
damages. Even then, the trial court has a wide discretion to award what it believes is
just”.5
Analysis and reassessment of contingencies
[20] The plaintiff’s actuary has applied a 15% pre-morbid contingency deduction and
a 25% post-morbid contingency deduction. In my view, given the specific
circumstances of this case such as, qualification, career path as unskilled worker
with lower quartile, intermittent employment characterized by lengthy periods of
unemployment, these contingencies are inadequate and do not sufficiently
account for the numerous uncertainties inherent in the plaintiff’s pre -morbid and
post-morbid scenarios.
Pre-morbid contingencies
[21] The plaintiff was a 9- year-old boy from a working-class family in Orlando East,
Soweto. His mother is a general worker. While the educational psychologist
opined that the plaintiff had the potential to obtain a bachelor’s degree and
4 Id, see also President Insurance Co Ltd v Mathews 1992 (1) SA 1 (A) at 5C-E.
5 Id, see also Van der Plaats v South African Mutual Fire and General Insurance Co Ltd 1980 (3) SA 105 (A)
114F-115D.
7
pursue a professional career, this scenario is highly ambitious. In my view, given
his socio-economic background, there is no guarantee that, but for the accident,
the plaintiff would have successfully completed a degree, let alone pursued
medical studies or a similarly high-income profession.
[22] Although the accident occurred at a very young age, the plaintiff’s pre-academic
record, while satisfactory, did not demonstrate exceptional aptitude. The
plaintiff’s socio-economic background must be considered because children
from such backgrounds face significant systemic challenges in accessing higher
education and professional careers.
[23] In my view, a higher contingency deduction rather than 15% as per
recalculations below on the pre-morbid scenario is appropriate to account for the
vicissitudes of life that would have confronted the plaintiff even absent the
accident.
Post-morbid contingencies
[24] The plaintiff’s post-morbid scenario is equally, if not more, uncertain. The
industrial psychologist acknowledges that the plaintiff will experience prolonged
periods of unemployment due to his residual impairments, low level of
education, and the high rate of unemployment in South Africa. In my view, for a
person with only a Grade 9 education and physical and cognitive impairments,
the prospects of stable employment are doubtful. The plaintiff’s own expert
acknowledges that he will likely remain at Grade 9 level and be confined to
unskilled work at the lower quartile.
[25] However, the possibility remains that the plaintiff may, through family support
or vocational training, achieve a slightly better outcome than predicted. A higher
contingency deduction as per recalculations below rather than 25% on the post-
morbid scenario is appropriate.
8
[26] This approach aligns with recent jurisprudence. In Viljoen v Road Accident
Fund6, the court per Mpama AJ approved a 15% pre-morbid and 30% post-
morbid contingency deduction.
[27] In Tlatsana v Road Accident Fund v Tlatsana 7 , Wessels AJ applied a 15% pre -
morbid and 20% post-morbid contingency deduction, noting that higher
contingencies must be justified by evidence of unique risk factors.
[28] In the present case, I am of the view that the unique risk factors are manifest: the
plaintiff’s low socio- economic background, the speculative nature of the
professional career assumed in the pre- morbid scenario, the severity of the
plaintiff’s cognitive and physical impairments, and the dire state of the South
African labour market for low-skilled workers.
[29] I now turn to applying the proposed contingencies. The actuarial report provided
a pre-morbid net value of R10 625 000.00 (after applying a 15% contingency)
and a post-morbid net value of R1 500 000.00 (after applying a 25%
contingency). However, the actuary’s underlying gross future earnings figures
must be reassessed with the higher contingencies.
[30] From the actuary’s papers
8, the gross pre-morbid future earnings were calculated
as approximately R12 500 000.00 when applying a 25% contingency (rather than
15%):
Gross pre-morbid future earnings: R12 500 000.00
Less 25% contingency (R12 500 000.00 x 0.25): R3 125 000.00
Net pre-morbid value: R9 375 000.00
[31] The gross post-morbid future earnings were calculated as approximately R2 000
000.00 when applying a 35% contingency as opposed to 25%:
6 (unreported) (3312/2018) [2025] ZAFSHC 144 (22 May 2025).
7 (unreported) (3884/24) [2026] ZANWHC 25 (11 February 2026).
8 See annexure “NK12”.
9
Gross post-morbid future earnings: R2 000 000.00
Less 35% contingency (R2 000 000.00 x 0.35): R700 000.00
Net post-morbid value: R1 300 000.00
[32] The net loss of earnings is therefore: R9 375 000.00 – R1 300 000.00 = R8 075
000.00. However, this figure remains based on the actuary’s optimistic
assumption that the plaintiff would, but for the accident, have pursued a
professional career of the highest order (medical specialist or equivalent). There
is insufficient evidence to support this assumption. The plaintiff was a
satisfactory but not exceptional student. His mother is a general worker. He had
no special advantages. A more realistic pre-morbid career path would be a
diploma or degree at a less ambitious level, with correspondingly lower earnings.
[33] In the absence of more granular actuarial evidence, I am of the view that I must
adopt a conservative approach. The plaintiff is a young man who has suffered a
devastating injury. He is entitled to fair compensation, but not to a windfall.
Taking into account all the uncertainties, I am of the view that a fair and
reasonable award for loss of earnings/earning capacity to be R4 172 300.00 and
which amount calculated as follows:
Basis I (C1/C2 ceiling
Item Gross Contingency Net
Uninjured future loss R8 029 017.00 35% (R2 810 156.00) R5 218
861.00
Injured future loss R1 902 838.00 45% (R856 277.00) R1 046
561.00
Net future loss = R5 218 861.00 − R1 046 561.00 R4 172
300.00
General damages
10
[34] At the hearing of this application, t he plaintiff submitted that the claim for
general damages has been settled between the parties and this has been set out in
the plaintiff’s heads of argument.9 Accordingly, the claim for general damages is
settled.
Future medical expenses
[35] In light of the findings I made on the defendant’s liability towards the plaintiff’s
agreed or proven damages relating to the accident that occurred on 26 October
2015, the plaintiff is entitled to an undertaking in terms of section 17(4)(a) of the
Road Accident Fund Act 56 of 1996 for future medical and hospital expenses.
The defendant has not disputed this entitlement, and it is appropriate to grant it.
Costs
[36] Costs should follow the result. The plaintiff has been substantially successful in
establishing liability and his entitlement to compensation. However, in the
exercise of my discretion, I award costs on Scale B on the party and party scale.
Order
[37] Accordingly, I make the following order:
(1) The defendant shall make payment to plaintiff in the amount of R4
172 300.00 (Four Million One Hundred Seventy Two Thousand
Three Hundred Rand) in respect of future loss of earnings which
amount represent 100% of the plaintiff’s claim for loss of earnings.
(2) The aforementioned capital amounts shall be paid within 180 days
from date of this order failing which the defendant shall be liable for
interests thereof calculated at 10.50% from date of this order to date
of final payment.
9 See para 4 of the plaintiff’s heads of argument, p 15-2 of Caselines.
11
(3) The amount in paragraph 1 above must be paid the plaintiff’s chosen
trust account being the trust account for Mngqibisa Attorneys.
(4) The defendant is ordered to furnish the plaintiff with an undertaking
in terms of section 17(4)(a) of the Road Accident Fund Act 56 of
1996, to compensate the plaintiff for the costs of future
accommodation in a hospital or nursing home, or the treatment of or
rendering of a service or supplying of goods to the plaintiff arising
from the injuries sustained in the motor vehicle accident on 26
October 2015, after such costs have been incurred and on proof
thereof.
(5) The defendant shall further pay the plaintiff’s agreed or taxed party
and party costs on the High Court Scale B, which costs shall include
reasonable preparation, reservation, and qualifying fees (if any) of
the plaintiff’s experts, being the following:
5.1. Orthopaedic Surgeon.
5.2. Neurosurgeon.
5.3. Clinical Psychologist.
5.4. Educational Psychologist.
5.5. Occupational Therapist.
5.6. Industrial psychologist.
5.7. Actuary.
5.8. The costs of application in terms of Rule 38(2).
_______________________________________
SHADRACK TEBEILE
Acting Judge of the High Court of South Africa
Gauteng Local Division, Johannesburg
For the Plaintiff: Mr Tsoarello Manake instructed by Mngqibisa
Attorneys
12
For the Defendant: Mr M. E Mdlovu (RAF )