SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG
CASE NO: 2055/2025
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised: No
DATE 24 August 2026
SIGNATURE
In the matter between:
SANELE NOMALI SIMELANE PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
LINK NUMBERS: 4186245 & 4214795
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time for hand -down is deemed
to be ## August 2026 at ##h00.
JUDGMENT
2
Leso AJ
Introduction
[1] The plaintiff instituted an action for damages against the Road Accident Fund
in the amount of R7 694 029.20. The plaintiff was involved in two motor vehicle
accidents, and she claims that the insured driver was solely responsible for the
damages and/or injuries she sustained on both occasions.
[2] The actions were consolidated , and t he Fund defended both actions and
denied liability for the first accident accidents.
Background
[3] The first accident occurred on 17 August 2015; the plaintiff was a driver in a
motor vehicle with the registration numbers and letters F[...] 0[...] M[...] , travelling
from Delmas to Olgies in Mpumalanga. As a result of the accident, the plaintiff
sustained the following injuries as indicated in the hospital records and medico -legal
reports:
3.1 Left acetabulum fracture.
3.2 Multiple pelvic fractures.
3.3 Left head of femur fracture.
3.4 Left and right ankle fractures (bimalleolar fractures).
[4] The second accident occurred on 6 August 20 16; the plaintiff was a
passenger in a motor vehicle driven by Phindile Simelane bearing the registration
numbers and letters H[...] 8[...] M[...] . The accident occurred in KwaZulu-Natal near
Warden and Vrede . In the second accident the plaintiff suffered soft tissue injuries
and the right ankle fracture was exacerbated.
[5] The plaintiff was admitted for six months at the Steve Biko Hospital and was
then transferred to Tshwane Rehabilitation Centre, where she stayed for five months
for injuries sustained in the first accident.
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[6] Following the second accident, the plaintiff was admitted at Phumelela District
Hospital; she was then transferred to Steve Biko Hospital for three weeks and later
transferred to Tshwane Rehabilitation Centre, where she stayed for a month.
[7] At the time of the accident, the plaintiff had completed Grade 12, obtained a
Diploma in Catering Management , completed theoretical and practical training in an
Articulated Dump Truck and obtained a competency certificate. She also obtained a
certificate in operating a TLB. Currently, the plaintiff is still unemployed and is
financially dependent on the government disability grant.
[8] The plaintiff appointed the following experts:
8.1 Dr M Bongobi: Orthopaedic Surgeon.
8.2 Ms KE Mokgale: Clinical Psychologist.
8.3 Ms PD Ndlhalane: Occupational Therapist.
8.4 Ms C Badalani: Industrial Psychologist.
8.5 Actuary.
[9] The plaintiff’s counsel made an application in terms of R ule 38(2) of the
Uniform Rules of Court that the expert evidence be led on affidavit and the report be
admitted as evidence. The defence did not raise any objection to the application.
Counsel for the defence relied on the plaintiff’s reports.
[10] The defendant did not oppose the application to lead the expert evidence on
affidavit and to admit the report as evidence. The defendant further relied on the
plaintiff’s expert reports, and no witnesses were called by the defendant to support
its case of negligence on the part of the plaintiff. The main challenge raised by the
defendant related to the accident of 17 August 2015.
Issues for determination
[11] Both the merits and quantum are in dispute , and the court is called upon to
determine the liability of the insured driver in respect of the second accident , which
occurred on 6 August 2016 , and the first accident , which occurred on 17 August
2015, when the plaintiff was the driver.
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[12] The court was also called to determine whether the plaintiff is entitled to the
amount of R7 694 029.20 for loss of earnings and general damages as claimed by
the plaintiff.
Summary of evidence
[13] During oral evidence given by the plaintiff on 26 February 2026 , the plaintiff
testified in respect of the merits of the motor vehicle accidents that occurred on
17 August 2015 and 6 August 2016, respectively.
[14] Regarding the accident of 17 August 2015, s he testified that she was the
driver of a motor vehicle travelling from Olgies to Delmas, and that the road she was
travelling on was a single carriageway. She further testified that although she
couldn’t remember the speed she was travelling, she was driving at an acceptable
speed. In describing how the accident occurred, the plaintiff testified that she saw a
truck approaching her path of travel and flashed her lights to try and alert the truck
driver; however, the other driver continued driving in her lane.
[15] She stated that, i n trying to avoid the collision , she swerved her car to the
right, and when trying to return to her lane, she lost control of the vehicle , and it
overturned. Upon cross -examination, she was asked if the only action that she did
was to flash the lights of her car ; she then indicated that she also applied the brakes
to slow down the motor vehicle.
[16] Upon clarification by the court on what she meant by applying the brakes,
since in her evidence -in-chief she had already testified that she was driving slowly,
she further testified that by her applying the brakes, she further slowed down, hoping
that the driver of the truck was going to return to his/her lane. It was when she
realised that the insured driver was continuing to approach and was not slowing
down that she initiated a swerve to the right -hand lane. Upon returning to her lane,
she lost control of the vehicle, and it overturned.
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[17] During cross-examination, the defendant didn’t disprove the negligent driving
of the driver of the truck (the insured driver) and the fact that the insured driver was
driving in the incorrect lane. Furthermore, the plaintiff’s version that she swerved the
car she was driving to the right lane trying to avoid collision with an oncoming vehicle
was not challenged.
Evidence on Section 19(f) Affidavit
[18] The plaintiff deposed an affidavit and a supplementary affidavit in terms of
section 19(f) of the Road Accident Fund Act 56 of 1996 on 18 January 2018 and a
supplementary affidavit on 14 May 2022. The first affidavit didn’t give a detailed
description of how the accident occurred.
[19] During cross-examination, the issue of the supplementary affidavit was raised,
though the defendant was trying to suggest that the plaintiff deposed a second
affidavit to correct the first one she had deposed. The plaintiff at the time couldn’t
remember, safe to say , that she had described to her lawyers how the accident
occurred. To clarify the confusion during re -examination, the plaintiff was reminded
of the time when she had to come to Pretoria in preparation for a trial that was set
down for 3 June 2022 and for a medical examination which was around May 2022. It
was then that she confirmed having consulted with her lawyers and thereafter signed
the documents.
[20] Counsel representing the plaintiff argued that it was necessary for the plaintiff
to supplement her affidavit because , according to the Road Accident Fund Act, the
section 19(f) Affidavit must clearly describe the accident and how it occurred. The
first affidavit was silent on how the accident occurred except to state that the plaintiff
was involved in a motor vehicle accident.
[21] With reference to Rodrigues v SA Mutual and General Insurance Co Ltd ,1 It
was further submitted on behalf of the plaintiff that the plaintiff’s action of swerving to
was further submitted on behalf of the plaintiff that the plaintiff’s action of swerving to
the right-hand side the way she did should not be taken to be negligent at the time,
1 Rodrigues v SA Mutual and General Insurance Co Ltd 1981 (2) SA 274 (A).
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but rather an error of judgement , as at the time she found herself confronted by a
sudden emergency whereby she had to act fast to avoid collision.
[22] It was argued on behalf of the plaintiff that the insured driver is the sole cause
of the accident in that he/she drove on the incorrect lane and despite being warned
by the plaintiff through flashing of the lights, he/she failed to return to his/her correct
lane and his/her actions led to the plaintiff swerving to the right lane in a manner that
led to her losing control of the vehicle and it overturned. The defence argued that the
sketch plan and the measurements demonstrate unequivocally that the driver’s
actions were the sole cause of the collision and the subsequent injuries sustained by
the plaintiff.
[23] The defence counsel argued that the skid marks 3 metres in length indicate
short braking and that the plaintiff was driving at high speed. According to the
defence, the sketch plan demonstrate s the delayed action by the plaintiff in applying
the brakes. The defence counsel argued that the accident could have been
prevented had the plaintiff applied the brakes on time.
[24] The plaintiff confirmed that she was not wearing a seatbelt at the time of the
first accident and she was ejected from the vehicle.
Accident that occurred on 6 August 2016
[25] The plaintiff testified that on 6 August 2016, she was a passenger in a motor
vehicle that was driven by Mr S imelane. The plaintiff further testified that it was late
at night, that the insured driver didn’t see the sign indicating they were approaching a
T-Junction, and further that there were no vehicles approaching from either side.
According to the plaintiff, the insured driver drove through the stop sign and the car
fell into a ditch.
Loss of Earnings
[26] Ms Mokgale in her report indicated that based on the findings of the
neuropsychological assessment, there is an indication of a below average
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performance in the domain of verbal comprehension, which suggests that the
Plaintiff may experience difficulties with tasks that require verbal comprehension,
logical reasoning, crystallized intelligence and long -term memory. Also, the tests
further indicated an average performance in working memory concentration. Short-
term auditory memory, attention and processing were, according to Mokgale ,
assessed to be on average and there were difficulties with the memory and learning
domain.
27] Mokgale further indicated that the Plaintiff is also susceptible to proactive
interference, which suggests that previously learned material may interfere with
acquisition of new material, subsequently making learning difficult. Furthermore,
the Plaintiff’s perceptual organisation was average and she displayed adequate
executive functioning as evidenced by adequate planning and organisational skills.
Mokgale also indicated that the Plaintiff displayed average abstract reasoning
abilities, visual-spatial skills, differentiation skills and spatial reasoning. The Plaintiff
also displayed good visual-spatial abilities, visual discrimination, organisation
of complex data as well as adequate analysing and synthesising of abstract visual
stimuli.
28] During trial, the court sought clarity on the year of the plaintiff’s re-entry to the
labour market as it was postulated by the Industrial Psychologist that she was going
to secure employment in 2016, whereas the second accident occurred on 6 August
2016. The Industrial Psychologist indicated that the plaintiff was unemployed at the
time of the first accident and was awaiting certification as a Dump Truck Operator
from Stratford Mine, with potential placement or employment at the same mine.
[29] According to the above expert , the plaintiff would have eventually secured
employment as a Dump Truck Operator with the same mine, or alternatively secured
similar types of employment. However, considering the high unemployment rate , it is
similar types of employment. However, considering the high unemployment rate , it is
opined that it would have taken an unemployment period of between 6 -12 months
before the plaintiff would have re -entered the labour market. The expert thus
postulated that the plaintiff would have secured employment at the approximate age
of 26 years old , which would have been in the year 2016 considering that the first
accident occurred on 17 August of 2015.
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[30] The Clinical Psychologist opined that there is no indication that the plaintiff is
suffering from prolonged neuro-cognitive impairments. The plaintiff demonstrates fair
cognitive functions with slightly impaired cognitive abilities. She further opined that
the performance on the conducted assessments could be attributed to the mild mood
disturbances and posttraumatic stress symptoms, which are a result of the accident.
[31] According to Ms Ndlhalane, the Occupational Therapist , the plaintiff’s pre -
accident duties entailed medium work involving load handling, grip strength, sitting,
dynamic postures , and frequent bilateral hand use (66% of the workday) , and
occasional walking, standing and overhead work (33% of the workday). She opined
that the physical demand s of the job fell within the parameter s of medium duty, and
the plaintiff coped adequately with her task demands.
[32] The Occupational Therapist also indicated that the plaintiff has a safe loading
capacity for light loads in sitting and is limited to tolerate full -range medium to heavy
loads, as limited by lower limb pain. Furthermore, she opined that the plaintiff meets
the demands of sedentary work with occasional mobility requirements. That t he
plaintiff is wheelchair bound, and that this leaves her disabled for all employment in
the open labour market , and she is expected to remain unemployable for the
foreseeable future for any manual type labour. The expert opined that should the
Plaintiff receive a prosthetic leg, she would remain limited in performing manual full-
range light to medium work.
Future Medical expenses
[33] Regarding the first accident, Dr Bongobi , the Orthopaedic Surgeon , in his
report indicated that the plaintiff sustained multiple fractures in the left hip, pelvis, left
femur and both ankles. He also indicated that the open fractures were debrided,
irrigated and fixed with external fixation hardware; and that the wounds around the
irrigated and fixed with external fixation hardware; and that the wounds around the
ankle were covered with a skin graft . S he continued to suffer from chronic
osteomyelitis in the left ankle. Furthermore, Dr Bongobi indicated that the hip joint is
destroyed with consequent severe post -traumatic arthritis (PTOA) that will require a
total hip replacement and the right ankle will require arthrodesis.
9
[34] Following the accident, the plaintiff reported that she is experiencing amongst
others, pain in the left hip exacerbated by sitting in one position for a long period ,
pain from sleeping on the left side of the body , pain from sitting in low set of chairs
for a long period , pain in the left leg especially in inclement weather , chronic pain in
the left hip and right ankle, and poor concentration and fatigue.
General Damages
[35] The plaintiff’s counsel cited comparable cases to assist the court in arriving at
an award. Counsel representing the plaintiff submitted that an amount of R1 500 000
is fair and reasonable in respect of the first accident and for the second accident. I
submit that an amount of R1 000 000 is fair and reasonable when one takes into
account the severity of the injuries sustained by the plaintiff, the sequelae and the
prognosis thereof.
36] Regarding the 1st Accident, Dr Bongobi in his report indicated that the
Plaintiff sustained multiple fractures in the left hip, pelvic, left femur and both ankles.
He also indicated that the open fractures were debrided, irrigated and fixed external
fixation hardware; and the wounds around the ankle were covered with skin graft that
failed to take and she continued to suffer from chronic osteomyelitis in the left ankle.
37] Bongobi opined that there is severe post-traumatic osteoarthritis(PTOA) left
hip (destruction of the acetabulum); mal -united right bimalleolar fractures; mal-united
left bimalleolar fractures with chronic osteomyelitis and post -injury and surgical
scars.
38] Regarding the 2nd Accident, Bongobi indicated that because the plaintiff was
wheelchair bound and already with chronic osteomyelitis in the left ankle . she was
diagnosed as having sustained soft tissue injuries. According to Bongobi, X -rays of
both ankles revealed that the plaintiff had re -fractured both her ankles (closed
bilateral bimalleolar fractures) and an open reduction and internal fixation of the right
bilateral bimalleolar fractures) and an open reduction and internal fixation of the right
medial and lateral malleoli. Bongobi further indicated that it was found that because
10
of the extent of the fractures and underlying chronic osteomyelitis, amputation of the
below knee amputation was the best treatment.
Analysis
On the Merits
[39] Although the defence took issue with the supplementary section 19(f) affidavit,
I cannot find any material discrepancy in the two affidavits filed by the plaintiff. The
purpose of the supplementary affidavit was to fully describe how the accident
occurred. There is nothing irregular about the said affidavit , and there is nothing in
the Road Accident Fund Act or the Regulations or any law of general application that
restricts the plaintiff from filing a supplementary affidavit.
[40] In the first accident, t he plaintiff did not present a good case on how she lost
control of the vehicle and overturned when she was trying to return to her lane of
travel, if she was driving at a speed of less than 60km/hr. The injuries sustained by
the plaintiff in that accident do not accord with the evidence given by the plaintiff in
court.
[41] The plaintiff was evasive in her answer regarding the speed she was driving
when she tried to avoid the accident. According to the plaintiff, she tried to reduce
the speed after she had already swerved from the road. From the totality of the
evidence presented, the only plausible explanation of the plaintiff’s behaviour in court
is that she lost control of the vehicle because she was driving at a high speed.
[45] I do not accept the narrative that the skid marks indicate that the plaintiff was
speeding as presented by the defence, mainly because the defence has no expertise
to analyse the accident scene. I , however, find on the evidence presented by the
plaintiff that the plaintiff’s actions contributed to the accident on 17 August 2015.
[46] The fact that the plaintiff was not wearing a seatbelt on the day of the accident
also contributed to the extent of the injuries. The plaintiff failed to act like a
also contributed to the extent of the injuries. The plaintiff failed to act like a
reasonable person on the day of the collision. The law imposes a duty on drivers to
11
wear a seatbelt to mitigate injury in the event of a collision. Consequently, the award
must be reduced to reflect the respective degrees of fault as established by the
evidence.
[47] As to the second accident, I cannot find any unreasonable conduct on the part
of the plaintiff on the day of the collision. The plaintiff was a passenger, and she is
only required to prove 1% negligence on the part of the insured driver.
[48] For prolixity, I will not repeat the evidence of the plaintiff save to state that the
evidence tendered was that the insured driver failed to keep a proper lookout and
failed to observe the road signs, thus causing the vehicle he was driving to fall into a
ditch. The evidence is sufficient to hold the insured driver solely responsible for the
damages suffered by the plaintiff in the second accident. There was no evidence
tendered by the defence to the contrary.
Future medical expenses
[49] Regarding future medical care, the injuries sustained by the plaintiff are
recorded, and all experts have indicated that the plaintiff will need future medical
care. It is only just and fair that the defendant undertakes to pay for the portion of the
medical expenses for the injuries sustained in the first accident and the full expenses
in the injuries sustained in the second accident.
General Damages
[50] In dealing with these heads of damages, regard should be had to the general
pattern of previous awards in cases where the injuries and their sequelae may have
been either more serious or less than those in the case under consideration .
Comparable cases, when available, should rather be used to afford some guidance,
in a general way, towards assisting the court in arriving at an award which is not
12
substantially out of general accord with previous awards in broadly similar cases.
This was the principle applied in Protea Assurance Co Ltd v Lamb.2
43] In the first accident, the Plaintiff sustained multiple fractures in the left hip,
pelvic, left femur and both ankles. Bongobi indicated that the hip joint is destroyed
with consequent severe post-traumatic arthritis (PTOA) that will require a total
hip replacement and the right ankle will require arthrodesis.
44] In the second accident , Plaintiff was wheelchair bound and already had
underlying chronic osteomyelitis in the left ankle , left ankle re-fracture. She was
diagnosed as having sustained soft tissue injuries.
[43] In Msiza v Road Accident Fund ,3 the plaintiff sustained a fracture of the right
humerus; a left femur fracture and later on the plaintiff’s leg had to be amputated
above the knee; laceration on the scalp; and there was an impression of secondary
degenerative changes in the hip and knee joint which was probably not age related.
The Plaintiff was unable to walk because of the amputated limb, and was awarded
R700 000. The value today is equal to an amount of R1 480 911.80.
[44] General damages are non -patrimonial damages that flow from the accident.
There is no formula to determine these damages ; the second accident exacerbated
the existing injuries
45] In the first accident, the reasonable award for general damages is the amount
of R1 550 000 and in the second accident the reasonable award is the amount of
R 400 000.
Conclusion
[45] On the first accident, Ms Simelane’s contributory negligence is apparent from
the evaluation of the evidence. Although there is no formula to calculate the
2 Protea Assurance Co Ltd v Lamb 1971 (1) SA 530 (A) at 536.
3 Msiza v Road Accident Fund [2014] ZAGPPHC 27.
13
contributory negligence, I am of the view that 40% negligence should be attributed to
the plaintiff.
[46] In the second accident , the plaintiff has discharged the onus to prove
negligence on the part of the insured driver. The insured driver is the sole cause of
the accident , and the defendant is held 100% liable for the plaintiff’s proven
damages.
Loss of earnings/capacity
4.1 The calculation of the loss is as follows: R6 194 029.20, less 40%
Total Loss= 3 716 417.52
General damages
4.2 The calculation of general damages is based on an award for damages in the
amount of R1 550 000, less 40%, in respect of the first accident;
4.2.1 Second accident: R 300 000.
Total Loss= R930 000.00
Order
[47] Wherefore the order is made as follows:
1. The defendant is ordered to pay the plaintiff an amount of R4 946 417.52 in
full and final settlement of the plaintiff’s claim, payable within 180 days from the date
of this order and to be paid into the trust account of Mokoene Attorneys.
2. The aforesaid capital amount will not bear interest unless the defendant fails
to effect payment thereof within the date payable, in which event the capital amount
14
will bear interest at the rate of 10.50% per annum calculated from the date payable
and including the date of payment thereof.
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 costs (70%) of
the plaintiff’s future accommodation in a hospital or nursing home or treatment of or
rendering services or supplying of goods to the plaintiff arising out of the injuries
sustained by the plaintiff in motor vehicle collisions that occurred on 17 August 2015
and 6 August 2016 after the costs have been incurred and upon proof thereof.
4. The defendant is ordered to pay the plaintiff’s taxed or agreed party and party
costs on a High Court Scale subject to the discretion of the Taxing Master, which
costs shall include, but not be limited to, the following expert reports and addendum:
4.1. Dr M Bongobi (Orthopaedic Surgeon);
4.2. Ms KE Mokgale (Clinical Psychologist);
4.3. Ms PD Ndlhalane (Occupational Therapist);
4.4. Ms C Badalani (Industrial Psychologist);
4.5. One Pangaea Expertise & Solutions (Actuaries); and
4.6. Drs. Mkhabele & Indunah (Diagnostic Radiologists).
_______________________________
JT LESO
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
15
APPEARANCE
For the plaintiff: Adv DM Matlhabegoane
mtlhbgn@yahoo.com
Instructed by: Mokoene Attorneys
Reception101@mokoeneattorneys.co.za
For the defendant/RAF: Nkosingiphile Mhlanga
Heard: 4 March 2026
Delivered: 20 August 2026