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 DIVISION, PRETORIA
Case No. 56096 / 2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 17/6/2026
SIGNATURE
In the matter between:
M[...] M[...] obo UL P[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TOLMAY J:
[1] Plaintiff is M[...] M[...] , a major male born on 17January 1980 and who
instituted a claim in his representative capacity as the father and natural guardian of
U[...] L[...] P[...] (the minor), born on the 11 th of February 2013, and who was 8 years
old at the time of the accident. It is common cause that the minor was involved in a
motor vehicle accident on the 28 th of February 2021 while he was a pedestrian. The
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merits and the quantum have been settled, and this court is seized with the
determination of loss of earnings only.
[2] The minor sustained the following injuries: multiple fractures of the pelvis; a
head injury; blunt abdominal trauma; left hip abrasion and a left wrist laceration.
There was mention of teeth factures too, but it was conceded that the medical
records do not indicate any such injury. The plaintiff filed seven medico-legal reports.
The experts include an Orthopaedic Surgeon, Neurosurgeon, Clinical Psychologist,
Occupational Therapist, Industrial Psychologist, and Actuary. The defendant only
filed expert reports of an Educational Psychologist, Occupational Therapist and an
Industrial Psychologist. Joint minutes were filed by these experts of the defendant
and their counterparts appointed on behalf of the plaintiff.
[3] At the onset of the trial certain preliminary issues were raised on behalf of the
defendant. These were that the expert reports were stale and that the defendant
repudiated the joint minutes of the Educational Psychologists.
[4] An application in terms of Rule 38(2) was filed on behalf of the plaintiff to
admit evidence by their experts by way of affidavit. On 22 April 2026, a notice
opposing this application was filed, but no answering affidavit was submitted to state
the grounds for opposition, the inference that can be drawn is that the basis for the
opposition is the alleged stale expert reports.
[5] On 20 April 2026, the defendant filed a notice repudiating the joint minutes of
the Educational Psychologists. The defendant in this notice states that: no expert
acting fairly and as required by the rules of court and applying themselves to the
facts, would have arrived at the conclusion and simply agree to position which is
detrimental to the defendant’s case. The notice criticises the Educational
Psychologists' agreements and conclusions. No factual basis for the assertions were
Psychologists' agreements and conclusions. No factual basis for the assertions were
set out, nor was the report of another expert obtained that could have given
substance to the submissions.
3
[6] In Bee v Road Accident Fund1 the SCA considered the effect of an agreement
recorded by experts in a joint minute. Where certain facts are agreed between the
parties in civil litigation, the court is bound by such agreement, even if it is sceptical
about those facts. A joint minute’s purpose is to limit the issues on which evidence is
needed. If a litigant for any reason does not wish to be bound by the limitation, fair
warning must be given. In the absence of repudiation (ie fair warning), the other
litigant is entitled to run the case on the basis that the matters agreed between the
experts are not in issue.
[7] To repudiate a joint minute, a party must clearly identify the specific
agreements sought to be repudiated and the facts to which they relate. A substantive
explanation of the new facts or circumstances that justify the repudiation must be set
out and it must be demonstrated that the new facts are material to the trial issues
and outweigh any prejudice caused to the opposing party.2
[8] In this instance there was no fair warning as the joint minutes, which the
defendant belatedly wants to repudiate is more than a year old. The defendant
cannot be supine for more than a year and then at the very last minute seek to
repudiate the joint minute. One cannot but infer from this that the true motive for the
late notice of repudiation is to obtain a postponement of the matter.
[9] The notice itself is in broad terms and does not assist the court. It is not based
on factual information but seems to depart from the erroneous view that the
Educational Phycologist’s duty was to protect the defendant and not to assist the
court. In the matter of Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd 3 the
court held that “Repudiation is a serious matter… requiring anxious consideration…and
because parties must be assumed to be predisposed to respect rather than to disregard
their contractual commitments.” The defendant’s Educational Psychologist’s report was
their contractual commitments.” The defendant’s Educational Psychologist’s report was
not substituted with that of another that could have formed a basis for the repudiation
of the joint minutes. The notice seem s to merely reflect the view of the defendant
and that can never be a basis for a repudiation.
1 [2018] JOL 40197 (SCA).
2 M on behalf of L, a child v Member of the Executive Council for Health: Gauteng Provincial Government, [2021]
JOL 51389 (GJ)
3 [2000] ZASCA 82; 2001(2) SA 284
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[10] The next issue was that the expert reports were stale. The expert reports
were filed during 2022. The matter was on the roll on 11 October 2024 but was
postponed because the defendant wanted to obtain joint minutes. The joint minutes
of the Educational Psychologists were filed during October 2024. The joint minutes
of the Industrial Psychologists were filed during May 2025.
[11] It transpired during argument that the defendant’s main objection was against
the report of the Neurosurgeon, which was obtained in 2022. However, the
defendant did not appoint a Neurosurgeon of its own or raised the issue timeously.
Only on 21 April 2026, just before the trial, was this complaint raised for the first time.
During argument it also transpired that during February 2024 the general damages
were settled based on inter alia this report, in an amount of R950 000. Furthermore
the RAF 4 form completed by the Neurosurgeon advised that the minor had obtained
Maximum Medical Improvement. There is therefore no merit in the preliminary issues
raised on behalf of the defendant.
[12] This brings the court to the merits of the claim for loss of earnings. The
Orthopaedic Surgeon confirms that the minor sustained multiple pelvic fractures, a
head injury, blunt abdominal trauma and a left -sided laceration. He walks with an
antalgic gait and uses crutches. He has tenderness in the left hip, reduced range of
motion and pain. The Orthopaedic Surgeon also refers to scarring and X -rays
showing a deformity in the pelvic cavity. He states that the child has difficulty
performing heavier and more p hysically demanding activities. He cannot run, has
considerable difficulty sitting for prolonged periods, and struggles with prolonged
standing and walking. He also experiences difficulty bending and lying on his back
and is unlikely to cope with work requiring physical exertion or prolonged standing
and walking.
[13] According to Dr. Mazwi, the Neurosurgeon, the minor sustained a mild
and walking.
[13] According to Dr. Mazwi, the Neurosurgeon, the minor sustained a mild
traumatic brain injury resulting in recurrent headaches, memory and concentration
difficulties, and behavioural changes such as increased irritability. These symptoms
are ongoing and have negatively impacted his academic and daily functioning. Prior
to the accident, the minor was healthy with no neurological or psychological issues.
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Although he reported that the minor suffered loss of consciousness this was relayed
to him by the mother and there is no record of it in the hospital records.
[14] In their joint minute, the Educational Psychologists agree that, before the
accident, the minor child was likely to pass Grade 12, qualify for admission to a
bachelor's degree, and complete an NQF Level 7 qualification in a field of his choice.
After the accident, they agree that he is more likely to benefit from vocational training
at a Further Education and Training College (FETC) after completing Grade 10,
where he may obtain a two -year certificate over an extended period. They further
note that his repo rted physical difficulties, including headaches and an inability to
stand or walk for long periods, are likely to negatively affect any practical training,
and defer to the relevant expert on the extent of those limitations.
[15] The occupational therapists agree that he is left with residual challenges that
will impact his academic and vocational capacity, including physical, neurocognitive,
personality and behavioural deficits. They furthermore agree that physically, he is
expected to be able to perform sedentary, light and to some extent medium
physically demanding work in future. However, he will always require the
implementation of pain alleviating strategies, joint protection principles and spinal
hygiene principles. They stat e that he will consistently face disadvantages in the
workplace because of his pain. He is not expected to cope with heavy or strenuous
jobs. They state that secure sedentary or office -based types of employment will
depend on his academic achievements. They agree that physically, he is expected to
be able to perform sedentary, light and to some extent medium physically
demanding employment. They also observe that post -morbidly, his vocational
difficulties indicate that he is now suitable only for low semi -skilled jobs, and it is
difficulties indicate that he is now suitable only for low semi -skilled jobs, and it is
anticipated that he will struggle to advance beyond this level.
[16] The Industrial Psychologists agree that, pre -morbidly, and having regard to
unemployment conditions in South Africa, the minor would likely have secured a
one-year internship during 2034/2035. He would thereafter have entered formal
employment in the open labour market around February/March 2035/2036, earning
intermittently at the lower quartile of Paterson level A3 in the corporate sector until
approximately February/March 2036/203 7. He would then have progressed to
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permanent earnings at the lower quartile of Paterson levels B3/B4/B5 until about
March/April 2037/2038, reaching his occupational ceiling at the median quartile of
Paterson levels D1/D2, on a total package, by approximately 45 years of age.
Thereafter, he would have received inflation-related annual increases until retirement
at age 65.
[17] Postmorbid, they note that the Educational Psychologists in their joint minutes
indicated that they agree that he is likely to benefit better with vocational training at a
Further Education and Training College (FETC) after completing grade 10 where he
will obtain a 2 -year certificate over a long period of time. However, his reported
physical problems (headaches, and inability to stand and walk for a long time) will
have a negative impact on any practical undertaking, deference is made to the
relevant expert to comment on his limitations .They agree that with Grade 10 and a
2-year certificate he would probably start off as an unskilled labourer or semi -skilled
worker depending on the position that he would acquire first. With reference to the
non-corporate/informal sector, the following rates would be applicable starting from
the lower quartile of the semiskilled worker’s scale. They note as indicated by the
Occupational Therapists in the joint minutes that post -morbidly, he is expected to
battle to progress beyond that level. They agree that if he finds employment it is
more likely that he will earn intermittently until such time that he will become a
discouraged job seeker by the age of 45 years after which he will earn a negligible
income. They therefore agree that he will suffer future loss of earnings being the
difference between his pre and post-accident earning potential.
[18] It was forcefully argued on behalf of the defendant that the cognitive
limitations and alleged negative impact on the minor’s career path is exaggerated
and when one considers his school reports there is not a persuasive case made out
and when one considers his school reports there is not a persuasive case made out
that his cognitive function has been significantly impacted as a result of the head
injury. There is merit in this argument. However, the joint minutes by the experts
supports the inference that on a balance of probabilities his career path will be
negatively impacted on. In my view the injuries should be considered holistically and
the combined effect results in the scenarios argued for in the joint minutes.
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[19] The determination of loss of earning capacity in cases involving minors injured
in motor vehicle accidents is a nuanced process requiring courts to balance
speculative predictions about the minor’s future earning potential with the evidence
presented. Expert evidence, plays a critical role in determining loss of earning
capacity. The experts assessed the minor’s pre - and post-accident earning potential
and the court will be guided by the reports, especially the joint minutes. Contingency
deductions play a pivotal role in calculating an appropriate award. In cases involving
minors it is appropriate to apply higher deductions. In cases involving minors there is
a more pronounced uncertainty and the vicissitudes of life will play out over a longer
period of time.4
[20] The evidence in this matter indicates that the minor will be able to obtain and
stay in employment but his capacity to live up to his pre -morbid potential has been
impacted by the injuries he sustained.
[21] The Actuary calculated the loss based on the joint minutes of the Industrial
Psychologists as follows:
Value of Income uninjured R11 761 700.00 less 25%
= R8 821 275
Value of Income injured R681 600 less 35%
= R443 040
Loss of Earnings = R8 378 235.00
Total Loss of Earnings: R8 378 235.00.
[22] Considering the facts of this case I am of the view that a contingency of 35%
should be applied pre -morbid, which amounts to R7 645 105.00 and a 40%
contingency should be applied post - morbid, which amounts to R408 960.00. The
total loss of earnings awarded R7 236 145.00.
ORDER:
1. The rule 38(2) application is granted.
4 Bee v Road Accident Fund supra, par 116, Hefer N.O v Road Accident Fund [2019] JOL 45827 (FB) par.13.
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2. The Defendant shall pay the Plaintiff amount of R7 236 145.00 as
compensation for loss of earnings hereinafter referred to as the capital amount.
3. The sum referred to in (2) above shall be payable within 180 (One Hundred and
Eighty) days from the date hereof.
4. The defendant shall not be liable for interest on the aforesaid amount, if paid as
per item number ( 3) above. Should the Defendant fail to make payment as
aforesaid, then the Defendant shall be liable to pay interest at the prescribed
rate.
5. The Defendant shall pay the sum referred to in (3) above into the Plaintiff’s
attorneys of record’s trust account as follows: -
Name of Bank : First National Bank
Account Holder : Sotshintshi Attorneys
Account Number : 6[...]
Branch Number : 2[...]
Type of Account : Trust Account
Branch Name : Hatfield (PRETORIA)
6. Defendant is ordered to furnish the Plaintiff with undertaking certificate in terms
of Section 17 (4) (a) of Act 56 of 1996, for the cost of future accommodation of
(“the patient”) in a hospital or nursing home, or the treatment of or rendering of
a service or the supplying of goods to him arising out of injuries sustained by
patient in a motor vehicle collision which occurred on the 28th February 2021.
7. The Defendant is liable for payment the reasonable costs of the Trustee
appointed in respect of establishing a Trust and any other reasonable costs
that the Trustee may incur in the administration thereof including its fees in this
regard, which shall be recoverable in terms of Section 17(4)(a) Undertaking ,
and which shall also include and be subject to the following:
7.1 Subject to approval by the Master of the High Court of South Africa, the
Trustee’s fees for the administration of the assets of the trust are to be
calculated at the rate of 1% per annum of the trust assets under
administration. Such administration fees shall furthermore be subject to
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the provisions of the Trust Property Control Act, 57 of 1988 (the Trust
Act), as amended from time to time.
7.2 The costs associated with the yearly audit of the Trust by a chartered
accountant as determined in the Trust Deed.
7.3 The costs incurred in administering the Undertaking in terms of Section
17(4)(a).
8. The balance of the capital amount shall be payable to a Trust in respect of U[...]
L[...] P[...], to be established within 6 months from date of receipt of the balance
of the capital amount.
9. Upon the establishment of the Trust by the plaintiff’s attorneys and opening of a
bank account for the Trust, the Plaintiff’s attorneys shall pay the remainder of
the capital amount including the accrued interest, into the said Trust’s bank
account.
10. The trust as mentioned supra, will:
10.1 Be created on the basis of the provisions as more fully set out in the draft
Trust Deed attached hereto marked Annexure “A”.
10.2 Have as its main objective, controlling and administering the capital
amount on behalf of the minor child.
10.3 Be terminated when the minor child dies or when ordered otherwise by a
competent Court (whichever event may happen first) and to accrue to the
estate of the minor child.
11. Have, as its trustee, SANLAM Trust, with powers and abilities as set out in the
draft Trust Deed referred to in par 10.1.
12. The dissolution of the trust instrument is, subject to the leave of this
Honourable Court, effective upon the beneficiary attaining the age of 25 years.
13. The trustee will be obliged to furnish security to the satisfaction of the Master of
the High Court of South Africa for the assets of the Trust and for the due
compliance of all its obligations towards the trust.
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14. Any amendment to the trust instrument is subject to the leave of this
Honourable Court.
15. Until such time as the Trustee is able to take control of the capital sum and to
deal with same in terms of the Trust Deed, the Plaintiff’s attorneys:
15.1 Are authorized and ordered to invest the capital amount in an interest -
bearing account in terms of Section 86(4) of the Legal Practice Act, to the
benefit of the minor child, with a registered banking institution, pending
finalisation of the directives referred to supra.
15.2 Are authorised and ordered to make any reasonable payments to satisfy
any of the needs of the minor child that may arise and that are required in
order to satisfy any reasonable need for treatment, care, aid or equipment
that may arise in the interim.
16. Subject to the discretion of the taxing master, the Defendant shall pay Plaintiff’s
taxed or agreed costs on the High Court party and party scale up to 23 April
2026, which costs may include:
16.1 The costs of Counsel up to and including the costs for 11 October 2024
and 23 April 2026 subject to scale B of sub-rule (3) of rule 67A.
16.2 The costs of the expert reports, addendum reports (if any), RAF4 reports
and expert affidavits including reasonable travelling, accommodation and
subsistence costs.
16.3 The costs of making bundles for caselines.
16.4 The reasonable travelling costs including reasonable accommodation
costs for the purpose of attending trial.
17. There is a valid contingency fee agreement entered into between the plaintiff
and the attorney.
____________________________
R TOLMAY
JUDGE OF THE HIGH COURT
11
GAUTENG DIVISION, PRETORIA
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 hand-down is deemed to be ____ June 2026.
APPEARANCES:
For the Plaintiff : Adv Mthembu
Instructed by : Sotshintshi Attorneys
For the Defendant : Mr T Mukasi
Instructed by : State Attorney
Matter heard on : 23 April 2026
Judgment date : 17 June 2026