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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: 508/2024
In the matter between
M.J. MANOTO PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
Neutral citation: Manoto v RAF (508/2024) [2026] ZAFSHC 334 (10 June 2026)
Coram: MATSHELO AJ
Heard: 13 MAY 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 11H30 on 10 June 2026.
Summary: Quantum of loss of earnings and general damages – contingencies
deductions prerogative of the court – each matter adjudicated on its own merits.
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ORDER
____________________________________________________________________________________
1 The rule 38(2) application was granted on 13 May 2026.
2 The defendant shall pay the total sum of R3 269 216.00 (Three Million Two
hundred and Sixty Nine Thousand Two Hundred and sixteen rands) to the plaintiff’s
attorneys, Mathikithela Inc, in delictual damages following a motor vehicle accident
which occurred on 1 August 2022, which amount is calculated as follows:
2.1 Past Loss of Income R280 473.50
2.2 Future Loss of income: R1 988 742.50
2.3 General damages: R1000 000.00
TOTAL: R3 269 216.00
3 The aforesaid total sum in paragraph 2 and any other amount payable to the
plaintiff’s attorney, shall be payable by direct transfer into the trust account of
Mathikithela Inc Attorneys, the details of which are as follows:
Account holder: MATHIKITHELA INCORPORATED TRUST ACCOUNT
Bank: FIRST NATIONAL BANK
Account number: 6[…]
Branch code: 230-732
Branch: WOODLANDS
Reference: MATHIKITHELA/MANOTO MJ
4 The defendant will be afforded a period of 180 calendar days from the date of the
court order to effect payment of the capital amount herein, during which period the
plaintiff will not be entitled to execute a writ against the defendant. The plaintiff shall be
entitled to recover interest at the prescribed rate per annum on the aforesaid amount
calculated from 14 days after the date of serving this order to the defendant to the date
of final payment in the event the defendant fails to pay within 180 days.
5 The defendant shall furnish the plaintiff with an undertaking in terms of s 17(4) of
the Road Accident Act 56 of 1996 for the payment of 100% of the future
accommodation of the plaintiff in hospital or nursing home, or treatment of or rendering
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of a service or supply of goods to him, arising from the injuries sustained by her in the
motor vehicle collision on 1 February 2022.
6 The defendant shall, over and above any previous cost orders granted in favour
of the plaintiff make payment of the plaintiff’s taxed or agreed party and party costs of
the action on the High Court scale, which costs shall include, but not limited to the
following quantum of which is subject to the discretion of the Taxing Master:
6.1 The fees of counsel of the High Court Scale C, inclusive of, but not limited to, his
preparation and consultation fees, as well as the costs of preparing the heads of
argument and Counsel’s full day fees for 12 May, 13 May and 15 May 2026 (matter
enrolled for three days), and reasonable travelling expenses included.
6.2 The plaintiff’s reasonable and taxable costs of all experts medico- legal reports,
and addendum RAF4 Serious Injury Assessment forms which were either furnished to
the defendant and/or included in the trial bundle, which includes the following experts:
6.2.1 Dr S.K Mafeelane (Orthopaedic Surgeon)
6.2.2 Dr Chula (Specialist Neurolosurgeon)
6.2.3 G Sibiya (Clinical Psychologist)
6.2.4 S Marule (Occupational Therapist)
6.2.5 B Oosthuizen (Industrial Psychologist)
6.2.6 W Loots (Acturary)
7 Each party to pay their own costs in respect of the costs for the hearing on 28 to
29 October 2025.
8 The reasonable taxable costs associated with preparing the application in terms
of Rule 38 and obtaining of the affidavits of the relevant experts and witnesses used in
support thereof attached thereto, as well as the experts’ charges pertaining to their time
and attendances spent in inter alia the commissioning thereof.
9 The costs of all consultations between the plaintiff’s attorneys, and/or counsel
and/or the witnesses, and/or the experts and/or the plaintiff in preparation of the
hearing.
10 The reasonable taxable accommodation and transportation costs (including toll
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and E-toll charges) incurred by or on behalf of the plaintiff in attending all medico- legal
consultations with the parties’ experts, all consultations with his legal representatives
and the court proceedings, as well as the costs (fees and disbursements) of shuttle
services that were utilized, the quantum of which is subject to the discretion of the
Taxing Master.
11 The above costs shall also be paid into the aforementioned trust account.
12 The following provisions shall apply with regards to the determination of the
abovementioned taxed or agreed costs:
12.1 The plaintiff shall serve the notice of taxation on the defendant either by hand
and/or electronically by email on the claim handler and/or state attorney.
12.2 The plaintiff shall allow the defendant 14 calendar days to make payment of the
taxed or agreed costs from date of settlement or taxation thereof, whichever date is
earlier, during which period the plaintiff will not be entitled to execute a writ against the
defendant.
12.3 The plaintiff shall be entitled to recover interest at the prescribed rate per annum
on the taxed or agreed costs from date of allocator or settlement, whichever date is the
earlier, to date of final payment.
JUDGMENT
____________________________________________________________________________________
Matshelo AJ
[1] The plaintiff instituted an action against the defendant for damages arising from
the bodily injuries sustained in a motor vehicle collision which occurred on 1 February
2024. As a result of the accident , he sustained some bodily injuries and instituted a
claim under the following heads:
2.1 Loss of earnings, and
2.2 General damages.
[2] According to medical reports, the plaintiff sustained head injury and left distal
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humerus fracture. The merits have been settled and the issues which remain
unresolved between the parties are that of general damages and loss of earnings. On
14 May 2025, the court ordered the defendant to furnish the plaintiff with an undertaking
in terms of
s 17(4) of the Road Accident Fund Act 56 of 1996 . To date the undertaking has not
been furnished.
Expert Reports
[3] Following an application in terms of rule 38(2) of the Uniform Rules of Court, the
medico legal reports of Dr S.K Mafeelane (Orthopaedic Surgeon), Dr Chula (Specialist
Neurosurgeon), G Sibiya (Clinical Psychologist), S Marule (Occupational Therapist), B
Oosthuizen (Industrial Psychologist), and W Loots (Acturary) were admitted as
evidence. Rule 38(2) allows evidence to be placed by way of affidavits where sufficient
reason exists. However, t he court is still under an obligation to evaluate the said
evidence to ensure its admissibility, reliability, relevance and weight.
[4] The expert reports were handed in on behalf of the plaintiff and they form part of
evidence before this court. I will now refer to salient features of the expert reports for
plaintiff’s diagnosis:
a) Dr S.K Mafeelane (orthopaedic surgeon)
The examination revealed that the plaintiff had sustained a left distal humer us fracture
and a head injury. He has left elbow fixed flexion deformity. He continues to suffer the
discomfort from the injured area. He has great difficulty carrying and lifting heavy
objects. This will affect employability.
b) Dr Chula (specialist neurosurgeon)
He examined the plaintiff and established that the plaintiff sustained a mild head injury.
The injury has resulted in anxiety, chronic headaches, memory impairment, scarring
and post-traumatic stress.
c) G Sibiya (clinical psychologist)
He examined plaintiff and established that overall performance on the assessment
revealed difficulty in neurocognitive functioning. It is evident that the plaintiff’s psycho-
revealed difficulty in neurocognitive functioning. It is evident that the plaintiff’s psycho-
emotional/social functioning has been compromised and the accident has rendered him
psychologically vulnerable.
d) S Marule (occupational therapist)
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She examined the plaintiff and established that he was in good health pre- accident and
would have been able to engage in light, medium and heavy duties with no difficulties.
She further opines that plaintiff would have been able to work until his designated
retirement age with no difficulties. However, post-accident, she opines that, plaintiff has
residual physical ability of occupation falling in the category of sedentary to light duty
work. He will struggle to engage in vigorous tasks that require intense physical force
due to pain.
e) B Oosthuizen (industrial psychologist)
He examined the plaintiff and established that the injuries will impact his employability.
The plaintiff has Grade 9 and failed Grade 10 twice. He opines that pre- morbid the
plaintiff would have been able to obtain employment in the open market in a position
relevant to his experience and level of education. Due to the accident , he is no longer
suited to work as a general worker or to compete for employment in the open labour
market. His choices are now limited.
f) W Loots (actuary)
The actuarial calculations for loss of earnings took into account , inter alia , mortality,
taxation, and inflation. But traditionally, further adjustments may be required for
unforeseen factors. He further stressed that allowance should consider the specifics of
the case – they are of a subjective nature and therefore not actuarially determined.
[5] The expert evidence should not be adopted by the court automatically. The
court must ensure that the opinions of experts are properly reasoned and are based on
sufficient established facts. The plaintiff’s expert reports are coherent and factually
grounded.
[6] The Supreme Court of Appeal (SCA) in Road Accident Fund v Kerridge
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(Kerridge) held that the court remains the ultimate decision- maker on both merits and
quantum. The court opines that the expert opinions are reliable since they are based on
quantum. The court opines that the expert opinions are reliable since they are based on
hospital and medical records, surgical history, orthopaedic examination, functional
capacity evaluation, observed pain behaviour, employment history, collateral
employment information, the plaintiff’s affidavits and actuarial assumptions derived from
the industrial-psychological evidence.
1 Road Accident Fund v Kerridge [2018] ZASCA 151.
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[7] The defendant did not file any expert reports. Therefore, the plaintiff’s expert
opinions remain unchallenged by any expert evidence. The defendant cannot defeat the
plaintiff’s expert report with mere speculation from the bar.
[8] Both parties reached an agreement to submit heads of argu ments instead of
viva voce evidence. They both agreed that plaintiff suffer ed past and future loss of
income, but disagree over contingency deductions to be applied.
Loss of Earning Capacity
[9] The plaintiff claims R280 473.50 for past loss of income. The figure is supported
by his pre- accident history, the analysis of experts and the actuarial calculations. The
court should accept this figure as proposed by plaintiff’s counsel. The plaintiff claims a
further R1 988 742.50 for future loss of earnings. His pre- morbid scenario is realistic,
and his post -morbid scenario is materially compromised. The court should award this
amount as proposed by the plaintiff’s counsel.
[10] In determining future loss of income, the court must compare what the plaintiff
would have earned before the accident with what he would earn after the accident. The
court in Southern Insurance Association Ltd v Bailey NO
2 held that, ‘[a]ny enquiry into
damages for loss of earning capacity is to its nature speculative, because it involves a
prediction as to the future without the benefit of crystal balls, soothsayers, augers 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 a loss. ’
3 The plaintiff must prove his loss and damages
on a balance of probabilities. He must adduce evidence that will enable the court to
determine his loss of past and future earnings. He must also adduce evidence on the
amount of income he will reasonabl y lose in the future as a result of the injury. In this
case, the plaintiff has managed to do exactly that.
General Damages
[11] Plaintiff claims general damages of R1000 000.00. These are damages suffered
[11] Plaintiff claims general damages of R1000 000.00. These are damages suffered
by a person arising from , amongst others , physical integrity, pain and suffering,
2 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 A.
3 Ibid at 113F.
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emotional shock, disfigurement, a reduced life expectancy, and loss of amenities .4 In
this case the court will follow the approach by Holmes J that, in general damages ‘. . .
the award should be fair to both sides, it must give just compensation to the plaintiff, but
not pour largesse from the horn of plenty at the defendants’ expense.’5
[12] The court exercises its discretion, but considers case law which can assist the
court to arrive at its decision. The SCA in De Jongh v Du Pisanie NO 6 emphasized that
general damages must be fair to both sides, they must not be too extravagant, but they
must also not be so low that they fail to provide the needed compensation. Therefore ,
this Court accepts the award proposed by plaintiff’s counsel as reasonable and
consonant with the evidence.
Contigencies
[13] Contingencies are legal mechanism s used for dealing with uncertainties of
future life and employment. They are described as part of ‘the art or science of
foretelling the future ’.7 The following general principles apply in respect of
contingencies. The plaintiff’s counsel referred the court to Southern Insurance. The
court held that: ‘It is a mistake to suppose that it is necessarily involves a “scaling
down”. What it involves depends on considering what the future might have held for the
particular concerned. ’8 He might have fallen sick from time to time, been away from
work and unpaid. He might have become unemployed and unable to get work. He might
have been injured in circumstances in which he would receive no compensation from
any source. He might have met an untimely death. Allowance must be made for these
contingencies or vicissitudes of life as they are glibly called. But his ought not to be
done by ignoring the individual case and making some arbitrary subtraction . Moreover,
‘the generalization that there must be a “scaling down” for contingencies seems
mistaken. All contingencies are not adverse; all vicissitudes are not harmful. A particular
mistaken. All contingencies are not adverse; all vicissitudes are not harmful. A particular
plaintiff might have had prospects or chances of advancement and increasingly
remunerative employment. Why count the possible buffets, and ignore the rewards of
fortune. Each case on its own facts.’
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4 Legodi v Road Accident Fund (50948/17) [2012] ZAGPPHC 566 (2 September 2021) para 50.
5 Pitt v Economic Insurance Co. Ltd 1957 (3) SA 284 at 287E.
6 De Jongh v Du Pisanie NO [2004] (2) All SA 565 (SCA).
7 Goodall v President Insurance Co Ltd 1978 (1) SA 389 (W) at 392H-393A.
8 Op cit fn 2 at 117B-D.
9 Ibid.
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[14] In Kerridge, the SCA held that, once a diminution in earning capacity causing
patrimonial loss is proved, the court must use the available evidence to determine
quantum, even though the calculation cannot be mathematically exact. The available
evidence to determine quantum is the one provided by actuarial calculations and other
witnesses. It must also be noted that the trial court has a wide discretion when it comes
to determining contingencies. The court has considered expert evidence, and exercised
its discretion.
[15] The plaintiff’s patrimony is clearly diminished. According to expert evidence he
is now vulnerable in the open labour market, and he can no longer perform his pre-
accident duties. Therefore, the court must award the actuarially calculated loss of
earnings, subject to the contingencies already built into the calculation by the plaintiff’s
counsel. The contingencies applied by the plaintiff’s actuary are fair. The courts have a
wide discretion to award what it considers to be fair and reasonable compensation. It is
not bound by actuarial calculations.
[17] The plaintiff proposes a 10% contingency deduction to be applied to past loss of
earnings, and 15% to be applied to future loss of earnings. On the other hand, the
defendant proposes the following calculation:
Pre-morbid: Past loss of earnings: 15%
Pre-morbid: Future loss of earnings: 30%
Post-morbid: Past loss of earnings: 30%
Post-morbid: Future loss of earnings 50%
[18] Alternatively, the defendant proposes the following calculation:
Pre-morbid: Past loss of earnings: 15%
Pre-morbid: Future loss of earnings: 15%
Pre-morbid: Future loss of earnings: 25%
Post-morbid: Past loss of earnings: 30%
Post-morbid: Future loss of earnings: 50%.
[19] The actuarial calculations assist the court but are not binding on it. The court
must still exercise its discretion in relation to contingencies. The court will adopt the
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calculations by the plaintiff’s counsel. It is the court’s that view these calculations are fair
and reasonable.
Costs
[20] It is trite that c osts should follow the result. The plaintiff’s counsel referred the
court to B ouwer v Bouwer and Another,10, which held that, ‘ [i]n awarding costs to a
successful litigant will strive to indemnify insofar as possible that litigant for the expense
he has been put in being compelled to initiate or defend litigation.’11
Order
[26] After having considered the evidence of record and having heard evidence and
considered written arguments of the parties I make the following order:
1 The rule 38(2) application was granted on 13 May 2026.
2 The defendant shall pay the total sum of R3 269 216.00 (Three Million Two
hundred and Sixty Nine Thousand Two Hundred and sixteen rands) to the plaintiff’s
attorneys, Mathikithela Inc, in delictual damages following a motor vehicle accident
which occurred on 1 August 2022, which amount is calculated as follows:
2.1 Past Loss of Income R280 473.50
2.2 Future Loss of income: R1 988 742.50
2.3 General damages: R1000 000.00
TOTAL: R3 269 216.00
3 The aforesaid total sum in paragraph 2 and any other amount payable to the
plaintiff’s attorney, shall be payable by direct transfer into the trust account of
Mathikithela Inc Attorneys, the details of which are as follows:
Account holder: MATHIKITHELA INCORPORATED TRUST ACCOUNT
Bank: FIRST NATIONAL BANK
Account number: 6[…]
Branch code: 230-732
Branch: WOODLANDS
Reference: MATHIKITHELA/MANOTO MJ
10 Bouwer v Bouwer and Another (361/04) [2008] ZAECHC 2008 (17 April 2008).
11 Ibid para 7.
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4 The defendant will be afforded a period of 180 calendar days from the date of the
court order to effect payment of the capital amount herein, during which period the
plaintiff will not be entitled to execute a writ against the defendant. The plaintiff shall be
entitled to recover interest at the prescribed rate per annum on the aforesaid amount
calculated from 14 days after the date of serving this order to the defendant to the date
of final payment in the event the defendant fails to pay within 180 days.
5 The defendant shall furnish the plaintiff with an undertaking in terms of s 17(4) of
the Road Accident Act 56 of 1996 for the payment of 100% of the future
accommodation of the plaintiff in hospital or nursing home, or treatment of or rendering
of a service or supply of goods to him, arising from the injuries sustained by her in the
motor vehicle collision on 1 February 2022.
6 The defendant shall, over and above any previous cost orders granted in favour
of the plaintiff make payment of the plaintiff’s taxed or agreed party and party costs of
the action on the High Court scale, which costs shall include, but not limited to the
following quantum of which is subject to the discretion of the Taxing Master:
6.1 The fees of counsel of the High Court Scale C, inclusive of, but not limited to, his
preparation and consultation fees, as well as the costs of preparing the heads of
argument and Counsel’s full day fees for 12 May, 13 May and 15 May 2026 (matter
enrolled for three days), and reasonable travelling expenses included.
6.2 The plaintiff’s reasonable and taxable costs of all experts medico- legal reports,
and addendum RAF4 Serious Injury Assessment forms which were either furnished to
the defendant and/or included in the trial bundle, which includes the following experts:
6.2.1 Dr S.K Mafeelane (Orthopaedic Surgeon)
6.2.2 Dr Chula (Specialist Neurolosurgeon)
6.2.3 G Sibiya (Clinical Psychologist)
6.2.4 S Marule (Occupational Therapist)
6.2.3 G Sibiya (Clinical Psychologist)
6.2.4 S Marule (Occupational Therapist)
6.2.5 B Oosthuizen (Industrial Psychologist)
6.2.6 W Loots (Acturary)
7 Each party to pay their own costs in respect of the costs for the hearing on 28 to
29 October 2025.
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8 The reasonable taxable costs associated with preparing the application in terms
of Rule 38 and obtaining of the affidavits of the relevant experts and witnesses used in
support thereof attached thereto, as well as the experts’ charges pertaining to their time
and attendances spent in inter alia the commissioning thereof.
9 The costs of all consultations between the plaintiff’s attorneys, and/or counsel
and/or the witnesses, and/or the experts and/or the plaintiff in preparation of the
hearing.
10 The reasonable taxable accommodation and transportation costs (including toll
and E-toll charges) incurred by or on behalf of the plaintiff in attending all medico- legal
consultations with the parties’ experts, all consultations with his legal representatives
and the court proceedings, as well as the costs (fees and disbursements) of shuttle
services that were utilized, the quantum of which is subject to the discretion of the
Taxing Master.
11 The above costs shall also be paid into the aforementioned trust account.
12 The following provisions shall apply with regards to the determination of the
abovementioned taxed or agreed costs:
12.1 The plaintiff shall serve the notice of taxation on the defendant either by hand
and/or electronically by email on the claim handler and/or state attorney.
12.2 The plaintiff shall allow the defendant 14 calendar days to make payment of the
taxed or agreed costs from date of settlement or taxation thereof, whichever date is
earlier, during which period the plaintiff will not be entitled to execute a writ against the
defendant.
12.3 The plaintiff shall be entitled to recover interest at the prescribed rate per annum
on the taxed or agreed costs from date of allocator or settlement, whichever date is the
earlier, to date of final payment.
P MATSHELO
ACTING JUDGE OF THE HIGH COURT
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Appearances
For the Appellant: Adv CR Van Onsellen
Instructed by: Mathikithela Inc
For the Respondent: Ms J Gouws
Instructed by: State Attorney