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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
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-133911
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
15/06/2026
In the matter between:
PHINDILE CATHERINE VILAKAZI PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
THERON AJ
Introduction
[1] The Plaintiff instituted a claim against the Road Accident Fund for the
compensation of damages suffered as a result of a motor vehicle accident that
occurred on 17 June 2021 (“the accident”). The matter is before the Court on a default
judgment basis due to the Defendant’s failure to enter its notice of intention to defend
the matter.
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[2] The Plaintiff, an adult female, is 47 years old at the time of the hearing. She
was involved in a two vehicle accident when another vehicle collided into the back of
the vehicle she travelled in as a passenger. She sustained injuries and received
treatment at the provincial hospital.
Rule 38(2) application
[3] The Plaintiff’s representative indicated at the onset of the hearing that the
Plaintiff applies in terms of rule 38(2) of the Uniform Rules of Court for evidence to be
adduced by way of affidavit. The Plaintiff also applies for the hospital records and
Accident Report , as well as the collateral evidence provided to the Plaintiff’s expert
witnesses to be admitted into evidence in terms of section 3(1)(c) of the Law of
Evidence Amendment Act 45 of 1988. After consideration of the papers filed, the Court
granted the application.
The merits
[4] The Plaintiff deposed to an affidavit wherein she confirm s that “on 17 June 2021
at approximately 14H10 I was a passenger in a motor vehicle with registration number: S[...]
travelling from Maboloka to Bapong ”. In her supplementary affidavit she further confirms
that “a motor vehicle with registration number: K[...] at the time driven by MPHO COLLENS
MOROCANE collided with our motor vehicle from behind ”. There can be no doubt that the
accident was caused by the negligence of the driver identified as Mpho Collens
Morocane. Therefore , I find that the Defendant is liable for 100% of the proven
damages of the Plaintiff.
The quantum evidence
Hospital records
[5] The hospital records from Brits District Hospital confirmed that Ms Vilakazi was
admitted on 17 June 2021 having suffered a lower back injury due to a motor vehicle
accident. A further admission note dated 18 June 2021 seems to indicated a possible
L5 wedge fracture. There is no report of any x -rays or scans done at Brits District
Hospital.
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Dr Marin (Orthopaedic Surgeon)
[6] Dr Marin examined Ms Vilakazi on 3 November 2023. Ms Vilakazi indicated to
him that she was an Office Administrator at the time of the accident and returned to
work two months after the accident. She remains in her pre -accident employment to
date of his examination.
[7] According to Dr Marin , special investigations in the form of X -rays were
conducted at the hospital on Ms Vilakazi and reported an L5 wedge compression
fracture. He later states in his report that on 17 June 2021 she went to Dr George
Mukhari Academic Hospital for a computed tomography (CT) scan of the lumbar spine
that reported no obvious fractures. She was thus diagnosed with a soft tissue injury
and received conservative treatment.
[8] Ms Vilakazi reported to him that she still suffers from lower back pain. She rates
the pain in her lower back as 2/10 on the pain scale. She has no complaints regarding
her pelvis. On examination of her lower back he records that no abnormalities were
detected, no pain elicited on palpation and she has full range of movement of the
lower back. Her motor power rates five out of five on her left and right side.
[9] The radiological report for X-rays taken on the day of the examination confirms
that there are no significant wedge compression deformities demonstrated. No
significant loss of vertebral body height is seen. Dr Marin’s final diagnosis is that she
suffered a soft tissue injury to the lumbar spine which was treated conservatively and
has resulted in intermittent pain and spasms. The injury sustained will have a very mild
impact on her life and she will be able to work to the normal retirement age of sixty-five
years.
Hendriëtte Van Rooyen (Occupational Therapist)
[10] She examined Ms Vilakazi on 3 November 2023. This expert confirms that the
initial suggestion of a fracture was refuted and that Ms Vilakazi suffered a soft tissue
injury to her lower back. Although this examination occurred on the same day as the
injury to her lower back. Although this examination occurred on the same day as the
examination by Dr Marin, she added the following additional complaints, not reported
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to Dr Marin earlier:
(a) Recurring pain in her “waist” – pelvic pain, during prolonged sitting.
(b) Recurring headaches – approximately 4 to 5 days per week. Throbbing
in the frontal, bilateral area.
(c) Constant fatigue.
(d) Decreased short-term memory.
(e) More irritable than pre-accident.
(f) Travel anxiety.
(g) Depressed moods.
[11] The Court needs to consider these additional complaints against the known
facts regarding the extent of the injuries suffered in the accident and the mechanics of
the accident. The evidence suggests that the car the Plaintiff was travelling in was
rear-ended by another car. Having regard to the findings and prognosis of Dr Marin,
these complaints should logically be expected to result from the impact of the accident
and the observable injuries suffered. This accident was by no means a serious
accident. From an orthopaedic view point Ms Vilakazi merely suffered minor soft tissue
injuries. Dr Marin specifically noted that Ms Vilakazi reported that she has no
complaints with reference to her pelvic area and confirmed that all discomfort and pain
had subsided. Yet on the same day she states the exact opposite when consulting the
Occupational Therapist (“Ms Van Rooyen”).
[12] The complaint of r ecurring headaches – approximately 4 to 5 days per week ,
was not mentioned to the orthopaedic surgeon. None of the expert witnesses could
positively attribute these symptoms to known injuries suffered by Ms Vilakazi.
Constant fatigue and d ecreased short-term memory also fail to link to any physical or
mental injury suffered during this accident. Irritability, travel anxiety and a depressed
mood may reasonably have been caused by the accident. These symptoms , however,
in absence of a proper diagnosis by a Psychiatrist or Clinical Psychologist, should not
be regarded as serious or life impacting. The accident was not a specifically harrowing
accident, although all accidents are to a certain extent traumatic. We already know
accident, although all accidents are to a certain extent traumatic. We already know
from the findings by Dr Marin that her lower back symptoms are not severe and would
not influence her ability to work to retirement age.
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[13] Ms Vilakazi reportedly worked as a cleaner at a bank and later as a kitchen
helper and finally as an office administrator at a church at the time of the accident.
This position she held for two years when the accident occurred. Two months after the
accident she returned to this employment and is still employed there, now five years
later. According to Ms Van Rooyen her job as an office administrator at the church can
be classified into the light work category.
[14] During her examination and evaluation of Ms Vilakazi, Ms Van Rooyen
commented that she has full range of motion and functional muscle strength in all
planes of movement of her body, yet lower back movements against resistance and or
at end ranges are reportedly painful. She came to the conclusion that b ased on
available information, she should be able to “tolerate a light level of work for a 40 -hour
work week, with limited weight handling, and alternating between sitting and standing to
maximise work tolerance for an 8 -hour day and or 40 -hour work week”. During the dynamic
strength assessment the results indicate that her dynamic strength capacity matches
the overall lifting and carrying requirements of her job.
[15] In my view, the major difficulty lies in the proposition that maintaining any static
posture for an extended period of time contributed to increased lower back pain . This
affects her ability to sit for long periods of time. Ms Vilakazi therefore needs to apply
pain and postural management in order to function optimally . It is , however, not clear
from the expert evidence available whether the injuries suffered in the accident caused
these difficulties. It is also not clear from the evidence how much of the lower back
discomfort and pain is age related and how much is accident related.
[16] Collateral information was obtained from Pastor S. Moela , her employer. He
reports that her work performance has declined since the accident. He however
reports that her work performance has declined since the accident. He however
confirmed that despite these challenges, her job is not at risk while he is in charge of
her employment as he is sympathetic to her situation . Factually she remained in her
pre-accident employment for five years now and it is unlikely that she would lose her
employment should she choose to remain there.
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Mari-Lize Nel (Industrial Psychologist)
[17] Ms Vilakazi has a grade 11 qualification. She failed grade 8 once. She further
completed an ICT Office Administration Skills Programme in 2022. At the time of the
accident she was employed by End Time Revival Ministries International as Usher and
Office Administrator since 2019 (two years prior to the accident ) and earned R
1,000.00 per month.
[18] Mr Moela (Ms Vilakazi’s employer) reported that she struggles at work due to
the effect of her injuries but that he does not plan on an incapacity process, in order to
employ someone more physically abled, as she requires the income to live off. Thus,
Ms Vilakazi’s current employment is considered as sympathetic employment.
[19] Ms Nel listed the following complaints by Ms Vilakazi:
(a) She has difficulty walking for long distances.
(b) She cannot sit down for extended periods of time.
(c) She experiences pain in her back on a daily basis.
(e) She cannot pick up heavy items.
(f) She has become short-tempered and irritable.
(g) She feels depressed.
(h) She experiences headaches daily.
(i) She has sleeping problems due to pain.
[20] Her career aspiration at the time of the reported accident was to continue
working as an Office Administrator. Her current career aspiration is to continue
working as an Office Administrator to earn an income. It is assumed that, before the
reported accident, she had not reached her career plateau or full earning potential as
an Office Administrator and likely would have pursued higher -paying, semi -skilled
roles.
[21] Ms Nel suggested that her current earnings should be used as a starting point
in relation to her pre-accident earning potential, increasing her salary in a straight line
to Koch’s lower bracket earnings for semi-skilled labourers (2023 terms) of R 3,066.67
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per month at age 45. Thereafter her salary would have increased in line with inflation
to age 65. Ms Nel further states that her post -accident earning potential has declined.
After the reported accident, Ms Vilakazi stayed at home for a period of three months in
order to recuperate from her injuries. She did not receive any remuneration for this
period. After recuperating from her injuries, Ms Vilakazi returned to work, in the
position of Office Administrator. Post-accident her productivity has been reduced ,
however after successful treatment, she should regain her pre -accident physical
capacity. The accident has rendered her less competitive in the open labour market
until she receives the recommended treatment.
[22] The post -accident earning postulation provided by Ms Nel on page 12 of her
report (Caselines 08 -16) suggests that in future she will remain on her salary of R
1,000 per month to retirement at age 65. It is , however, clear that this postulation
cannot be used blindly to calculate the estimated future loss of earnings because that
would disregard the statement made earlier by the same expert that Ms Vilakazi
should regain her pre -accident physical capacity after successful treatment. There
may be a possible loss of future earnings due to time she would need to take off from
work for treatment.
Johan Sauer (Actuary)
[23] Mr Sauer provided the calculation of pre - and post-morbid earnings based on
the pre -accident earning postulation mentioned earlier , contrasted with the post-
accident assumption that Ms Vilakazi will remain in her current position , earning the
same salary with only inflationary increases to age 65. He then applied a pre -morbid
past and future contingency deduction of 5% and a post -morbid past earnings
contingency deduction of 5% contrasted with a post -morbid future earnings
contingency deduction of 25%.
Discussion
[24] The Court should not blindly accept the opinion of an expert witness. The
Discussion
[24] The Court should not blindly accept the opinion of an expert witness. The
opinion and findings should have a factual basis supported by the proven facts of the
case. Apart from the expert opinion the Court should also consider the complaints
raised by the Plaintiff in order to establish which of the complaints can reasonably be
expected to have resulted from the injuries suffered in the accident relevant to the
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case. Should an expert suggest the symptoms and complaints raised by the Plaintiff
can reasonably be attributed to the injuries suffered in the accident, the Court would
not readily reject such an opinion, except if it does not logically make sense having
regard to the proven facts.
[25] From the evidence it is clear that the only aspect that has an impact on Ms
Vilakazi’s earning capacity is her subjective complaint s of discomfort and pain with
some added psychological symptoms . The origin of these symptoms is unclear as the
Orthopaedic Surgeon could not physically diagnose any significant injury to the lower
back. The Court cannot accept that the reported high pain levels that results in her not
currently coping with the physical demands at her work place, is accident related. The
headaches that has been reported as a contributor to her inability to cope with her
work station post-accident are not proven to be accident related.
Past loss of earnings
[26] When considering the possible past loss of earnings of a plaintiff who has
returned to her pre-accident employment, the Court needs to firstly consider the actual
period the plaintiff was unable to work and the actual loss suffered as a result thereof.
In this case Ms Vilakazi reported to Dr Marin and Ms Van Rooyen that she was off
work for two months and to Ms Nel she reported a period of three months. This
discrepancy was not cleared up by any of the witnesses.
[27] Secondly, the Court needs to consider whether her career path up to date of
the trial would have been different was it not for the accident. I am not convinced that
Ms Vilakazi would have had a more favourable career path to date of judgment, was it
not for the accident. Even if one accepts that she would have been able to secure a
better paying administrative position was it not for the accident, I am not convinced
that Ms Vilakazi’s decision to remain with her current employer since the accident , can
that Ms Vilakazi’s decision to remain with her current employer since the accident , can
be attributed to the injuries sustained in the accident. In the result , I find that Ms
Vilakazi only suffered a past loss of earnings in the form of the loss of salary for two
and a half months, thus an amount of R 2,500.00.
Future loss of earnings
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[28] I considered the expert s’ evidence as a whole and assessed it against the
proven facts. In doing so, I had regard to:
(a) whether each opinion was supported by the objective evidence;
(b) whether the conclusions drawn by the experts were logically consistent
with the nature and extent of the proven injuries; and
(c) whether the assumptions made were reasonable in light of the facts of
this case.
[29] On that basis, I approached the issue of future loss of earnings by
distinguishing between proven accident -related limitations and the complaints that
were not sufficiently linked to the accident. Taking into account the evidence by Dr
Marin as to the extent of the physical injuries suffered, the Plaintiff only sustained a
mild soft tissue injury, which should not result in any substantial loss of earning
capacity. The later reported symptoms appear to have been overstated to some
extent, and the Court therefore treats Ms Vilakazi’s account of those symptoms with
caution, disregarding irrelevant and contradicting symptoms . The reported symptoms
increased dramatically from one expert to another and the pelvis pain was denied to
one expert but confirmed to the other.
[30] With specific reference to the reports by Ms Van Rooyen and Ms Nel it appears
that Ms Vilakazi’s back symptoms limits her ability to sit for extended periods of time
and causes discomfort and pain when carrying heavy objects. I will accept that these
accident related symptoms may cause a minor loss of productivity and
competitiveness, resulting in a minor loss of earning capacity. It is however suggested
by Ms Nel that this will be eliminated with successful treatment.
[31] The loss of earning capacity suffered by the Plaintiff does not reasonably
translate into a difference in pre - and post-morbid career paths. In order to justify a
calculated loss the Court needs to employ a fair and justifiable method. In this regard I
calculated loss the Court needs to employ a fair and justifiable method. In this regard I
am convinced that the best method of calculating the Plaintiff’s loss of earning capacity
is to regard her pre - and post -morbid earnings as the same, with a slightly higher
future post-morbid contingency deduction. The Plaintiff’s future loss of earnings will
then be the difference between the two calculations. I will accept to the credit of the
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Plaintiff that her future earnings would have been as postulated by the Industrial
Psychologist.
[32] I agree with Plaintiff’s counsel’s argument that a 10% contingency deduction
should be applied to the pre-morbid future earnings calculation. The net amount with a
10% contingency deduction is R 526,337 . The contingency to be applied to the post-
morbid future earnings calculation should be 10% higher and thus 20%. The nett post-
morbid future earnings will then amount to R 467,855.00. The loss is the difference
between the two amounts and calculates to an amount of R 58,482.00.
Costs
[33] It is clear from the report by Dr Marin that the Plaintiff only suffered a minor
back (soft tissue) injury. It should have been clear to the Plaintiff’s representatives that
the quantum of this claim would not exceed the jurisdiction of the Magistrate ’s Court.
At best it could have fallen within the jurisdiction of the Regional Court.
[34] Although the Plaintiff is within her rights to issue summons out of the High
Court, the costs of a High Court trial are not justified under these circumstances. The
facts of this case are not complex and the quantum is very small. It is also not
necessary to employ senior counsel under these circumstances. It will be unjust
towards the Defendant to allow costs of senior counsel.
ORDER
The court therefore orders as follows:
1. The Defendant is liable for 100% of the Plaintiff’s proven damages.
2. The Plaintiff’s Rule 38(2) application is granted , with costs on the Magistrate ’s
Court scale D.
3. The Defendant is ordered to provide the Plaintiff with an undertaking in terms of
Section 17(4) (a) of the Road Accident Fund Act, 56 of 1996 for the reasonable
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costs of the future accommodation of the Plaintiff in a hospital or nursing home or
treatment or rendering of a service or supplying of goods to her resulting from the
motor vehicle accident related injuries sustained by the Plaintiff, as a result of the
motor vehicle accident which occurred on 17 June 2021 after such costs have
been incurred and upon proof thereof.
4. The Defendant is ordered to pay the Plaintiff an amount of R 60,982.00 (sixty
thousand nine hundred and eighty-two rand) consisting of the following:
(a) Past loss of earnings R 2,500.00
(b) Future loss of earnings R 58,482.00
5. Payment of the judgment amount as well as taxed or agreed costs shall be made
into the trust account of Plaintiff’s Attorney, Wehmeyers Attorneys , by direct
transfer, within 14 days of judgment, details of which are the following:
Bank : First National Bank
Branch code : 2[...]
Account holder : Wehmeyers Attorneys
Account number : 6[...]
Reference : J WEH/WV.0196
6. In the event that the aforesaid amount is not paid timeously, the Defendant shall
be liable for interest on the amount at a rate of 10.50% per annum, calculated
from 14 days after date of this order to the date of payment.
7. The Defendant shall pay the Plaintiff’s costs on the Magistrate’s Court party and
party scale D, including counsel fees as allowed for in the Magistrates Court.
___________________________
H W THERON
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
Caselines. The date for the reasons is deemed to be 15 June 2026.
Appearances:
For the Plaintiff: F Grobler SC instructed by Wehmeyers Attorneys
For the Defendant: Unrepresented
Date heard: 7 May 2026
Date of judgment: 15 June 2026