THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MBOMBELA MAIN SEAT
( l ) REPORT A BLE: NO
(2) O F INTEREST TO O THER JUDGES: NO
(3) REVISED.
31 July 2026
DATE
In the matter between:
-SIGNATURE
THATO PENELOPE MARULE
And
THE ROAD ACCIDENT FUND
JUDGMENT
CASE NO. 1846/2025
APPLICANT
RESPONDENT
Delivery: This matter was heard on 10 July 2026, and judgment was reserved.
This judgment was delivered by uploaded to CaseLines on 31 July 2026.
2
Mangena AJ:
[1] Ms Thato Marule brought an application for leave to appeal the order
dismissing her claim for loss of earnings. She says the court misdirected itself
in the following respects:
(a) It applied an incorrect test for loss of earning capacity;
(b) It failed to appy a correct approach to claims involving minor children;
(c) It placed too much weight on academic performance and thereby treated
academic progression as determinative of the earning capacity;
(d) It failed to properly evaluate the expert opinion and incorrectly rejected the
evidence placed before it.
(e) It failed to exercise proper judicial discretion.
[2] Expanding on the grounds mentioned above, counsel for Ms Marule submitted
that the court misdirected itself by holding that there must be proof of a
connection between the injury and the resultant loss before compensation may
be awarded. In doing so, the court misapplied the principles laid in Rudman. It
was contended that the proper enquiry "was whether the injuries sustained had
rendered the applicant less competitive, less resilient and more vulnerable in the
open labour market than she would probably have been but for the collision".
[3] It was argued that the report by the occupational therapist and the orthopaedic
surgeon demonstrated that the claimant would be restricted to sedentary and
light -duty occupations and would struggle in the open labour market. These
findings, so it was argued, establish a diminution in earning capacity
irrespective of whether the applicant ultimately qualified as a legal practitioner,
teacher, administrator or any other professional. The court's failure to appreciate
this distinction constitutes a material error of law and constitutes a compelling
basis upon which another court would likely interfere. This was the high
watermark case for the applicant.
[4] The respondent opposes the application and effectively supports the court's
[4] The respondent opposes the application and effectively supports the court's
factual and legal conclusion. It is submitted on her behalf that "there has been
no established proof that the claimant's ability to generate income and compete
effectively in the labour market has been adversely affected as she has not even
entered the labour market." It is further contended by the respondent that there
is no nexus between the applicant being less competitive in the labour market
3
and the actual loss of earning capacity emanating from the injuries sustained
during the collision.
[5] Against the above submissions, it should be understood that Ms Marule based
her claim for loss of earnings on the fact that the accident had reduced her
capacity to earn an income as a professional, in particular a legal practitioner.
To succeed in this head of damages, it was incumbent upon her, assisted by her
experts to prove the connection between her injury and the loss of earnings as
claimed in the summons. This she failed to do. What her experts did was to take
her wish and elevate it to a fact. I rejected the assumptions made by the
educational psychologist and the industrial psychologist that Ms Marule would
have obtained a bachelor's degree and qualified to study law if it was not for the
accident.
[6] The finding above was made in answer to the case she presented, namely that
the injuries had reduced her capacity to become a professional, namely a legal
practitioner. The evidence on record supported by school reports demonstrated
that even before the accident, she was not a strong candidate academically. To
accept this factual finding is not to place too much emphasis on academic
performance as argued by counsel. On the contrary, it is to accept a fact borne
out by the evidence.
[7] Having read the judgment and considering it against the submissions made as
well as the grounds upon which the applicant relies, I am not persuaded that
there was a misdirection committed. The findings made were consonant with
the facts presented. It was never Ms Marule's case that she suffered a general
diminution of earning capacity whether as a professional or not. Her case had
always been that the accident reduced her capacity to become a legal
practitioner. She aimed for the sky and now that she missed, she wants to fall
amongst the stars. This should not be permitted, more especially because there
was no alternative case pleaded. It should by now be trite that the purpose of
was no alternative case pleaded. It should by now be trite that the purpose of
pleadings is to define issues for the other party and the court. A party has a duty
to allege in its pleadings the material facts upon which it relies. See Minister of
Safety and Security v Slabbert, []2009] ZASCA 163 (30 November 2009) at
para 11.
[8] I found that there is no connection between the injury and her claimed loss of
earnings as a professional. The evidence on record do not support the case she
presented. As stated above, it is not acceptable to present one case at trial and
seek to argue another on appeal.
[9] Consequently, the following order is made:
4
1. Application for leave to appeal is dismissed.
2. There is no order as to costs.
FOR THE APPLICANT:
INSTRUCTED BY:
AND
FOR THE RESPONDENT:
INSTRUCTED BY:
DATE HEARD:
DATE OF JUDGMENT:
IMMANGENA
ACTING JUDGE OF THE HIGH COURT
ADV MAHLALELA
EM MABASO ATTORNEYS
MS NP SHABANGU
STATE ATTORNEY (MBOMBELA)
10 JULY 2026
31 JULY 2026