1
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
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
CASE NO. 2026-071599
(1) REPORTABLE: NO/YES
(2) OF INTEREST TO OTHER JUDGES: NO/YES
(3) REVISED
DATE 06/07/2026
SIGNATURE.
In the matter between:
SAMUEL MNGOMEZULU PLAINTIFF
And
ROAD ACCIDENT FUND DEFENDANT
This judgment is made by the Judge whose name is reflected herein and submitted
electronically to the parties and/or their legal representatives by e-mail.
This judgment is further uploaded to the electronic file of this matter on Caselines by the
Judge and/or his/her secretary. The date of this judgment is deemed to be the 6th day of July
2026
__________________________________________________________________
2
JUDGMENT
BAM, AJ
[1] The plaintiff was a passenger in a motor vehicle in registration numbers D[...]
which collided with another motor vehicle F[...] on 28 September 2024. He sustained
injuries as a result of the said accident and has lodged a delictual claim against the
defendant (“the RAF”) in terms of section 17(1) of the R oad Accident Fund Act 56 of
1996, (“the Act”).
[2] The merits were settled 100% in favour of the plaintiff and on the date of trial
on the issue of quantum, I was informed that general damages had also been
settled. Only the past and future loss of income remained for adjudication. Counsel
for the plaintiff, Mr. RN Ngobeni, moved an application in terms of Rule 38 (2) for the
expert reports to be admitted into evidence by way of affidavit. Same was not
opposed by the defendant’s Counsel Mr Hlongwa, and it was granted after due
consideration.
LOSS OF EARNINGS
[3] Mr Ngobeni referred the court to the plaintiff’s injuries as noted by the experts
and placed emphasis on the occupational therapist’s findings about the impact of
these on the plaintiff’s ability and capacity to perform at work optimally . The injuries
sustained by the plaintiff are listed by the orthopaedic surgeon as:
3.1 Cervical Spine C6/ C7 fracture
3.2 Head injury
3.3 Blunt face trauma
[4] The fracture was treated by way of surgery in the form of open reduction and
anterior discectomy and fusion. He was given a neck collar to wear and underwent
physiotherapy. The plaintiff also alleged that his left eye had become teary and
sensitive to light because of the accident.
[5] At the time of the accident, the plaintiff was employed by Emalahleni Local
Municipality under its Extended Public Works Program, (EPWP) as a general worker
earning R 3000.00 per month . His job is keeping the streets clean and the filling of
3
potholes on the roads. The task s involve a lot of walking, standing , bending and
carrying weights of around 1 k ilogram. He returned to work after two months of
recuperation.
[6] Ms. Sekele, the occupational therapist, consulted with the plaintiff on 30
September 2025. Having taken note of the other experts’ reports and after
conducting her own assessments, she concluded that the plaintiff is “able to meet
the physical demands of characteristics of aspects of work at lower range of medium
level”.1 Even though he managed to execute most of the mobility aspects of the
assessment, those were accompanied by neck, lower back , and left shoulder pain.
She opined that his residual physical capacity has fallen below that which is required
for a general worker in his present job. He cannot handle weights above 14 kg or
cope with tasks that demand prolonged forward-bending and elevated work.
[7] The Industrial Psychologist, Dr Selepe , noted that at the time of accident, the
plaintiff was 44 years old with grade 10 as his highest qualification and armed with
18 years of working experience. She took note of the reported injuries he sustained
in the accident as well as the findings and conclusions of the other experts regarding
his prospects of employment in the future. She had also contacted t he plaintiff’s site
supervisor who provided collateral information confirming that the plaintiff was on
light duty (using a rake and lifting lighter bags of refuse) and no longer using the
stomp machine for compacting mixture into potholes.
[8] The expert painted a pre -accident scenario in which the plaintiff would have
continued working as a general worker without limitations. His level of education
would confine him to jobs requiring reliance on physical exertion. She concluded that
at age 45 and with the identified serious long -term orthopaedic impairments and
reduced capacity, the plaintiff will find it difficult to secure and maintain gainful
reduced capacity, the plaintiff will find it difficult to secure and maintain gainful
employment in an unskilled or semi -skilled environment. The fact t hat he only
studied up to grade 10 will add to his disadvantage in the open labour market. As it
is, he was being accommodated in his current employment. He may thus experience
long periods of unemployment should he leave his current job. He will therefore
suffer the loss of potential earnings for which he should be compensated.
1 Caselines 004-120
4
[9] The Actuaries calculated the projected loss of income effective from 28 March
2026. They relied on the Industrial Psychologist’s report in which she postulated that
the plaintiff ’s salary would increase from the amount of R 36 000.00 per annum
(2021) to R 228 000.00 per annum by the age of retirement of 57 ½ years in 2037.
They noted that after 2 months the plaintiff returned to his pre -accident job which the
Industrial Psychologist opined, he would have continued doing until retirement even
if he were to work for a different employer.
Argument
[10] Advocate K Hlongwa, counsel for the Defendant, submitted that the plaintiff is
not entitled to compensation for future loss of earnings. This is because he has not
proven such loss considering that he went back to his pre-accident job and his salary
was not reduced even though his tasks were adjusted to light work.
[11] Counsel argued that physical limitation alone does not lead to loss of income.
He referred to Rudman v Road Accident Fund (370/01) [2002] ZASCA 129 wherein
the court had dismissed the plaintiff’s c laim for future loss of earnings. The court a
quo had dismissed the claim on the basis that any loss that occurred was a loss to
the company that employed the plaintiff and not a diminution of his patrimony. The
SCA had clarified that in assessing loss of earning capacity, objectivity requires that
a plaintiff must prove their loss with actual evidence than mere speculation. It agreed
with the court a quo that the loss or reduction in his capacity to work due to the
injuries and disablement did not translate into Mr Rudman’s personal loss.
[12] It was Counsel’s further submission that the expert reports do not align with
the evidence though he did not elaborate on this point any further. He referred to the
case of Moloi v Road Accident Fund [2026] ZASCA 13 . The appellant, who was a
student when the accident occurred on 7 August 2016, had gone on to complete her
student when the accident occurred on 7 August 2016, had gone on to complete her
degree in accounting – and was proceeding with Honors . She was employed as an
articled clerk in an accounting firm at the time the matter was heard. The claim for
loss of earnings was premised on the appellant’s emotional state (psychological
vulnerability) which was said would affect her employment without any input having
been sought from her current employer in this regard or calling the appellant to give
oral testimony. The full court had upheld the trial court’s dismissal of the claim and
5
the SCA dismissed the special leave to appeal having found no existence of
prospects of success in the appeal.
[13] Mr Ngobeni countered the defendant’s argument by referring the court to the
occupational therapist’s report where the expert addresses future employability and
the physical exertion that is part and parcel of unskilled or semi -skilled occupations.
In his heads of argument, he noted that t he neurosurgeon had also diagnosed the
plaintiff with memory impairment, post-traumatic stress disorder, poor concentration,
as well as behavioral change. The orthopaedic surgeon rated his injuries at 6% WPI
and yet qualified them under the narrative test as having resulted in serious long -
term impairment and or loss of a body function.
[14] Regarding contingencies, counsel referred to the sliding scale endorsed in
Road Accident Fund v Guedes [2026] ZASCA, namely half a percent for each year
remaining until retirement. He argued that the courts recognise that sympathetic
employment is as good as unemployment because sympathy can disappear at any
time. I could not , however, find any such sentiment expressed in the two cases
proffered in support thereof.2
[15] It is not disputed that the plaintiff su stained orthopaedic injuries as well as
neuropsychological sequela e from the accident. He returned to work where he
soldiers on despite the neck pain and discomfort as he has no other means of
earning an income. The employment will soon be over because EPWP contracts are
of limited duration – 24 months at the most. It is also not disputed that on his return
to work, he was accommodated and no longer does the heavy work of filling
potholes. He is considered more vulnerable than before the accident, both physically
and psychologically. Should he stop working in the EPWP, which is a certainty, the
experts opine that he will be overlooked in favour of his unaffected counterpart s in
the open labour market. His disadvantage in this regard is exacerbated by lack of
the open labour market. His disadvantage in this regard is exacerbated by lack of
sufficient educational qualifications and of any vocational training.
[16] The injuries have resulted in significant sequelae if one ignores the 3% WPI
rating. His emotional vulnerability was corroborated by the clinical psychologist Dr. V
Mashiloane. Overall, the exp erts agree that the plaintiff's well -being has been
negatively affected by the injuries, and he is no longer able to compete on an equal
2 Makuapane v Road Accident Fund and Saunders NO v Road Accident Fund.
6
footing in the open labor market . It is worth noting that the left eye issues identified
by the ophthalmologist have not been attributed to the accident and according to the
expert could be stemming from suspected glaucoma. Dr Nhlapo therefore accorded
a WIP of 0% insofar as that “injury” is concerned.
[17] In light of aforegoing, it is my considered view that there is sufficient evidence
to conclude that the plaintiff has suffered reduced capacity which will translate into
patrimonial loss as he will struggle to find employment. He is therefore entitled to
compensation for future loss of earnings. The authorities relied on by Mr Hlongwa to
dispute his entitlement to compensation are distinguishable. In this matter, we are
concerned with an individual who relies solely on his physical strength to make a
living. Post-accident, even though with treatment the symptoms can be expected to
subside, complete healing is not foreseeable.
[18] I must, however, raise my concern about a statement in a crucial report. The
industrial psychologist has stated that the applicant was still in a career building
stage when he got injured and would have advanced his skills and thus improved his
earnings to the level of semi -skilled work between the ages of 55 and 60 years. It is
said further that he would receive inflationary increases to his salary after age 60 up
to 65 years or beyond.3 She also appears to suggest that the plaintiff had intentions
to study further, and this would have improved his chances of landing higher paying
jobs.4 Although this was obviously not the basis upon which actuarial calculations
were done, it highlights the necessity for legal practitioners to read through the
reports and have the m corrected before they are presented to court. Some errors
can jeopardise a client’s claim, even if they appear to have been the so -called cut-
and-paste mistakes. The plaintiff in this case did not even pass grade 10,5 and there
and-paste mistakes. The plaintiff in this case did not even pass grade 10,5 and there
is no mention anywhere of his desire to further his education.
CONTINGENCIES
[19] The actuarial computations presented to court have not been adjusted with
contingencies. As indicated by the expert, the plaintiff suffered p ast loss of earnings
as he was not paid his salary for one month out of the two he spent at home
3 Caselines 004-51 at (d)
4 Caselines oo4-51 at (c)
5 Clinical Psychologist’s report at paragraph 3: Caselines 004-20
7
recuperating. The Actuary has calculated his future loss of earnings based on the
findings of the industrial psychologist.
[20] In the case of Bheme v Road Accident Fund [2025] ZAMPMBHC 43 (29 May
2025), the full court, per Fourie AJ held:
“[24] the evaluation of the amount to be awarded for the loss does not involve
proof on a balance of probabilities. It is a matter of estimation. Where a court
is dealing with damages which are depending upon uncertain further events,
which is generally the case with claims for loss of earning capacity, the
plaintiff does not have to proof on a balance of probabilities and is entitled to
rely on the court’s assessment of how they should be compensated for their
loss.”
[21] The court further reiterated the trite principle that a court will not be tied down
by actuaries’ calculations when determining compensation which it believes to be fair
and justified. The discretion of the court in this regard is well ventilated in Southern
Insurance Association LTD v Bailey NO. 1984 (1) SA 98 and recently in Road
Accident Fund v Guides [2006] ZASCA 19. In paragraph 8 of Guedes, the SCA, per
Zulman JA held that:
“It is trite that a person is entitled to be compensated to the extent that the
person’s patrimony has been diminished in consequence of another’s
negligence. Such damages include loss of future earning capacity . 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…………… an actuarial computation is a useful basis
for establishing the quantum of damages.”
[22] The courts are enjoined to ensure that compensation reflects proven residual
impairment as opposed to hypothetical worst-case outcomes. In Bailey supra, the
impairment as opposed to hypothetical worst-case outcomes. In Bailey supra, the
Appellant Division held that the assessment of damages for loss of earning capacity
must be approached on a realistic and balanced basis by taking into account all the
relevant contingencies inherent in future career projection.
8
[23] The plaintiff was injured at the age of 44 and 3 months, he is now 46 years old
which means he has got 19 years of working life before the generally accepted
retirement age of 65. At the time of the accident, he was at an age normally indicated
as the peak of one’s career. With the injuries sustained, his capacity to perform
optimally has been compromised and he is therefore entitled to compensation as
already indicated.
[24] Regarding future loss of earnings, it is the Industrial Psychologist’s opinion
that he is likely to experience longer periods of unemployment should he leave his
current job. Furthermore, permanent employment is not guaranteed , especially in
view of his reduced capacity and the need for accommodation. His age, lack of
vocational training and chronic symptoms must be considered when determining the
contingencies applicable to his future loss earnings.
[25] It is noted that the actuary has adopted the age of retirement projected by the
neurosurgeon who opined that in the event of possible onset of post -traumatic
epilepsy, the plaintiff ’s longevity would be shortened by 3 to 5 years. The industrial
psychologist did not commit to a specific post-accident retirement age .6 The
neurosurgeon, Dr M P Seroto, w ho consulted with the plaintiff on 30 September
2025, had detected no ratable neurosurgical injury .7 He had also discounted an
increased risk of post-traumatic epilepsy and as such his pronouncement regarding
the curtailment of longevity lacks foundation. It is thus safe to assume that the
injuries have not affected the plaintiff’s working life.
[26] I take cognisance of the fact that the plaintiff is currently accommodated in
contractual work of a very limited duration and may rely on sympathetic intermittent
employment in future. In light of the above, it is my considered view that higher than
normal contingenc y deduction of 50% should apply to the post -morbid future
earnings proposed by the actuary. The calculations will then be as follows:
earnings proposed by the actuary. The calculations will then be as follows:
Description Pre- morbid Post- morbid Total
Past Earnings R 62 193.00 R 52 724
Contingencies 0% R 0.00 R 0.00
LOSS R 62 193.00 R 52 724 R 9 469.00
6 Caselines 004-58 at paragraph 9
7 Caselines 004-74
9
Description Pre- morbid Post- morbid Total
Future Earnings R 1 930 865.00 R 534 988
Contingencies
15% & 50%
(R 289 629.75) (R 267 494)
LOSS R 1 641 235.25 R 267 494 R 1 383 210.25
TOTAL LOSS: R9 469.00 + R 1 383 210.25 = R1 392 679.25
[27] The plaintiff is therefore entitled to compensation for loss of earning capacity
in the amount of R 1 392 679.25. The plaintiff ’s attorneys have submitted a draft
order which will be amended accordingly and endorsed as an order of court as if
specifically incorporated herein.
[28] Consequently, the following is made:
1. The Defendant is ordered to pay 100% of the plaintiff’s proven or agreed damages.
2. The defendant shall pay damages for loss of earnings/earning capacity to the plaintiff in
the amount of R 1 392 679.25 (One million, three hundred and ninety -two thousand, six
hundred and seventy-nine rand and 25 cents).
3. The draft order attached hereto and marked “Annexure X” is hereby made an order of
court.
___________________
L J N BAM
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
APPEARANCES
10
FOR THE PLAINTIFF: ADV. T NGOBENI
INSTRUCTED BY: M H MALEPE ATTORNEYS
EMALAHLENI
CONTACT DETAILS: 013 – 690 1588
mhmalapeattorneys@telkomsa.net
FOR THE DEFENDANT: ADV. K HLONGWA
INSRUCTED BY: STATE ATTORNEY, MBOMBELA
CONTACT DETAILS: 060 997 4619 / nkosingiphilem@raf.co.za
DATE OF HEARING: 3 June 2026
DATE OF JUDGMENT: 6 July 2026