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[2026] ZAMPMBHC 83
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Molefe v Road Accident Fund (2026-049390) [2026] ZAMPMBHC 83 (30 July 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
In
the action between:
CASE
NUMBER: 2026-049390
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER JUDGES:
NO
(3)
REVISED:
YES/NO
DATE
30 JULY 2026
H.F.
FOURIE
SIGNATURE
THULI
PATIENCE MOLEFE
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
FOURIE AJ
INTRODUCTION:
[1]
The Plaintiff has instituted action against the Road
Accident Fund,
the Defendant, for damages sustained by the Plaintiff resulting from
a motor vehicle collision that occurred on
the 10
th
of
September 2022, when the Plaintiff was conveyed as a passenger in a
motor vehicle at the time.
[2]
The Defendant has conceded the merits of the matter in
favour of the
Plaintiff, and all that remains to be adjudicated is the
quantification of the Plaintiff’s claim.
[3]
Unfortunately, when the matter was heard, an election
in respect of
the seriousness of the Plaintiff’s injuries had not yet been
made, and as such general damages will stand over
for later
adjudication.
EVIDENCE
ON QUANTUM:
[4]
In advancing the Plaintiff’s case on quantum, the
Plaintiff
testified and the evidence of the experts, as adduced in terms of
Rule 38(2) of the Uniform Rules of Court, was relied
upon by the
Plaintiff. The Defendant led no evidence of their own and
merely argued on the basis of the irregularities that
the Defendant
pointed out in the Plaintiff’s expert reports and case.
[5]
Having regard to the nature of the matter and the fact
that the
Defendant agreed that the Plaintiff’s expert evidence may be
led via affidavit, the Court found this matter to be
one where it
would be appropriate if the evidence of the Plaintiff’s experts
were accepted under the auspices of Rule 38(2)
of the Uniform Rules
of Court.
[6]
Accordingly, the following evidence was admitted by way
of affidavit:
[6.1]
Neurologist – Dr Mudau
[6.2]
Neurosurgeon – Dr A Mazwi
[6.3]
Occupational Therapist – SG Mashaba
[6.4]
Industrial psychologist – Mrs Moipone Kheswa
[6.5]
Tsebo Actuaries – ITAI Brian Karidza
[7]
The Plaintiff’s testimony in respect of her injuries
correlates
with the expert reports in that the Plaintiff, a 51-year-old female,
who was 47 at the time of the accident, sustained
a head and foot
injury during the collision.
[8]
Resultant from such injuries, the Plaintiff alleges that
she
currently experiences epileptic seizures, and she is becoming
increasingly forgetful. In essence, the dispute between
the
Plaintiff and the Defendant is whether the Plaintiff's earning
capacity has been diminished or only reduced.
[9]
The Plaintiff alleges that her earning capacity has been
diminished
totally and the Defendant alleges that the Plaintiff’s capacity
has only been reduced.
[10]
The expert reports by the Plaintiff, specifically that of the
Industrial
Psychologist, suggest that at the time of the accident the
Plaintiff was employed earning a salary of R 3 655.57 per month.
When confronted with her payslips and bank statements under
cross-examination, it became evident, however, that although the
Plaintiff
was previously employed with the employer so mentioned by
the Industrial Psychologist at the time of the accident, she was not
employed and that the income received during the period of her
accident was payments received in respect of UIF.
[11]
It became evident that the nature of the Plaintiff’s employment
was periodic and rather to be seen as from time to time than for a
fixed period or permanent.
APPLICABLE
LEGAL PRINCIPLES:
[12]
The object of the Road Accident Fund, shall at all times be repayment
or compensation in accordance with the Act for loss or damage
wrongfully caused by the driving of a motor vehicle.
[1]
[13]
The Plaintiff needs to be compensated sufficiently fully, as she will
not have an opportunity at a later stage to amend her claim once the
claim has been finalised.
[2]
[14]
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 depend
upon uncertain future events, which is generally the case in claims
for loss of earning capacity, the Plaintiff does not have to
prove
their case on a balance of probabilities and is entitled to rely on
the Court’s assessment of how she should be compensated
for her
loss.
[3]
[15]
The trial Judge shall not be tied down by inexorable actuarial
calculations.
He has a large discretion to award what he
considers right. One of the elements in exercising this
discretion, is the making
of a discount for contingencies, or
differently put, the uncertainties of life.
[4]
[16]
Monetary damage having been suffered, it is necessary for the Court
to
assess the amount and make the best use it can of the evidence
before it. There are cases where the assessment by the Court
is
little more than an estimate, but even so, if it is certain that
pecuniary damages have been suffered, the Court is bound to
award
damages.
[5]
[17]
In an instance where loss of earning capacity is involved, firstly,
there
must be proof of a loss of earning capacity before there can be
any future loss of earnings. The actual loss of earnings is then
a
manifestation of a person's inability to earn the same income as
before because of the damage-causing event. Secondly, once it
has
been established that there is, in fact, a definite loss of earning
capacity, an amount must be attached to the incapacity.
Effectively,
earning capacity is a diminution of a claimant’s ability to
generate income.
[6]
[18]
It is by now trite that there are two methods that a Court may employ
to calculate the amount to be attached to an incapacity. However,
before the Court reaches there, there must be evidence that there
was
indeed loss of earning capacity. In the absence of any evidence to
the contrary, this Court accepts that the accident injuries
did in
fact affect the earning capacity of the plaintiff. The key question
is what value is to be attached to such a loss. The
value of a
particular plaintiff’s capacity to earn is equivalent to the
value of earnings she or he would have received over
time had the
delict not been committed. In
Arthur Robinson (Grafton) Pty Ltd
v Carter (Carter)
[7]
Barwick CJ expressed himself in
the following terms:
“
The respondent is
not to be compensated for loss of earnings but for loss of earning
capacity. However much the valuation of the
loss of earning capacity
involves the consideration of what moneys could have been produced by
the exercise of the respondent’s
former earning capacity,
it
is the loss of capacity, and not the failure to receive wages for the
future
, which is to be the subject of fair compensation…”
[19]
In
Medlin v SGIC (Medlin)
[8],
McHugh J stated
the following:
“
Earning capacity
is an intangible asset. Its value depends on what it is capable of
producing. Earnings are evidence of the value
of earning capacity,
but they are not synonymous with its value.”
[20]
Courts are frequently confronted with claims in respect of loss of
earnings,
and it is necessary to evaluate the fact that it is the
earning capacity that is an asset in a person’s estate which,
if
diminished or reduced, is the damage that is ultimately suffered
by a person for which they ought to be compensated.
[21]
It might be that a person is at a certain stage unemployed, and it is
under those circumstances that the Court will be guided by the
previous experience and income generated by such a person to evaluate
the quantum a person could reasonably have earned if they were to
gain employment. Whether they would have ultimately obtained
employment is not relevant to the existence of the Plaintiff’s
claim. Those ancillary aspects form part of the contingencies
the Court ultimately applies, and form part of the possibilities and
uncertainties that such income would ordinarily have been
generated
even if the accident had not occurred.
[22]
The Plaintiff’s experts all express the same opinion by stating
that, given the nature of the Plaintiff’s injuries and the
effects thereof, no reasonable prospects exist for the Plaintiff
to
secure any sort of employment in future. The Defendants led no
contradictory evidence on this point by their own experts
that would
lead the Court not to accept this notion.
[23]
The Court accordingly finds that the earning capacity of the
Plaintiff
has been diminished in totality.
[24]
The Court, however, evaluated all the surrounding facts pertaining to
the Plaintiff’s previous employment, the nature thereof and the
probabilities associated therewith. The unfortunate
reality is
that, had the accident not occurred, the Plaintiff would in any event
have struggled to obtain and persist with any
meaningful employment
and the Court is satisfied that contingencies that reflect these
facts ought to be applied.
[25]
In evaluating the postulations as advanced by the Plaintiff by way of
her actuary, the injured income indeed received in respect of past
loss needs to be disregarded as no such income was proven.
[26]
The Court is satisfied that a past loss contingency of 20% needs to
be
applied to the Plaintiff’s postulations and the Court is
satisfied that a past loss of
R 130 256.00 has been
suffered.
[27]
In respect of the diminishment of the Plaintiff’s earning
capacity
in the future, the Court believes that a contingency
percentage of 30% is warranted, and as such the future loss sustained
by the
Plaintiff is calculated at R 524 011.00.
COSTS:
[28]
The Plaintiff has been materially successful with her claim, and the
Court finds no reason why costs should not follow suit.
ORDER:
[29]
For all the reasons as stated before, the following Order is made:
[29.1] The Plaintiff’s
application in terms of Rule 38(2) is granted, and the Plaintiff’s
expert evidence is accepted
by way of affidavit.
[29.2] The Defendant is,
by way of an agreement between the parties, 100% liable to compensate
the Plaintiff for the Plaintiff’s
proven or agreed damages.
[29.3] General damages
stand over for later adjudication.
[29.4] The Defendant
shall compensate the Plaintiff in respect of the Plaintiff’s
loss of past earnings in the amount of R
130 256.00.
[29.5] The Defendant
shall pay the Plaintiff in respect of the Plaintiff’s future
loss of earnings in the amount of R 524 011.00.
[29.6] The Defendant
shall pay the Plaintiff’s costs on a party and party Scale B.
H
F FOURIE AJ
ACTING
JUDGE OF HIGH COURT, MBOMBELA
Counsel for the
Plaintiff:
MR MNISI
Instructed by:
Johan Mnisi &
Associates Inc
Counsel for the
Defendant:
MR MGWENYA
Instructed by:
State Attorney
Matter heard on:
28 JULY 2026
Judgment delivered
on:
30 JULY 2026
[1]
Section 3,
Road Accident Fund Act, 56 of 1996
As Amended
[2]
Jacobs v Cape Town Municipality
(1935) CPD 478
[3]
MS v RAF (10133/2018) [2019] ZA GPJHC at 84
[4]
Southern Assurance Association Ltd v Baily N.O. 1984(1) SA 89 (A)
[5]
Hersman v Shapiro
(1926) TPD 367
at 379.
[6]
Botha v Road Accident Fund (40232/2017) [2025] ZAGPPHC 458 (29 April
2025)
[7]
Arthur Robinson (Grafton) Pty Ltd v Carter (Carter)
[1968] HCA 9
;
(1968) 122 C.L.R
649
at 658,
[1968] H.C.A 9
[8]
Medlin v SGIC (Medlin)
[1995] HCA 5
;
(1995) 69 ALJR 118
at 126