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
(NORTHERN CAPE DIVISION , KIMBERLEY)
CASE NO: 656/2022
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
Edited: YES / NO
In the matter between :
MOPALAMO FRANK MOKAE Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
Neutral citation: Mokae v The Road Accident Fund (Case No:
656/22) 25 August 2026
Coram: Nxumalo J
Heard On: 01 November 2024
Order Granted: 28 April 2026
Reasons Delivered : 25 August 2026
Summary: Personal injury – loss of earning capacity –
actuarial calculation – contingencies – discretion of Court – actuarial
calculation accepted into evidence and no contingencies applied –
whether deduction should nevertheless be made – Court not bound by
actuarial calculation and retains a wide discretion to award what is just –
contingency deduction not automatic – no fixed or inflexible rule
governing contingency allowances – contingencies may be positive or
negative – assessment must have regard to the partic ular facts and
circumstances of the case – plaintiff remained employed but expert
evidence established diminished earning capacity and precarious
continued employment – Court satisfied that no further deduction for
contingencies was warranted – actuarially calculated amount of
R3 884 100 awarded.
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 2
ORDER
1. The Defendant is liable to compensate the Plaintiff in an amount of
R3 884 100 (THREE MILLION EIGHT HUNDRED AND EIGHTY -FOUR
THOUSAND ONE HUNDRED RAND) for loss of earning capacity.
2. The amount set out in paragraph 1 above shall be paid within 180 (One
Hundred and Eighty) calendar days from the date of this order.
3. The Defendant is liable to pay interest on the above amount at the
prescribed rate from the date of this order to the date of full and final
payment.
4. The Defendant is liable for the costs of suit.
5. The Defendant is liable to pay interest on all taxed costs at the
prescribed rate, from the date of allocatur of the Taxing Master to the
date of full and final payment.
REASONS
INTRODUCTION :
[1] The plaintiff is MOPALAMO FRANK MOKAE , an adult male born on
26 June 197 8, residing at 1[...] N[...] Street, Douglas . His highest level
of education is Grade 7. At the time of the accident, h e was employed
as a dump -truck driver by Four Arrows Mining , where he had been
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 3
employed since 2013, earning a monthly income of between R16 000
and R17 000.
[2] The defendant is THE ROAD ACCIDENT FUND , a juristic person
established in terms of the Road Accident Fund Act 56 of 1996 (“the
Act”).
[3] Section 17(1) of the Act provides as f ollows:
“The Fund or an agent shall -
(a) subject to this Act, in the case of a claim for compensation under this
section arising from the driving of a motor vehicle where the identity
of the owner or the driver thereof has been established;
(b) subject to any regulation made under section 26, in the case of a
claim for compensation under this section arising from the driving of
a motor vehicle where the identity of neither the owner nor the driver
thereof has been established, be obliged to compensate any person
(the third party) for any loss or damage which the third party has
suffered as a result of any bodily injury to himself or herself or the
death of or any bodily injury to any other person, caused by or
arising from the driving of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the
negligence or other wrongful act of the driver or of the owner of the
motor vehicle or of his or her employee in the performance of the
employee's duties as employee: Provided that the obligation of the
Fund to compensate a third party for non -pecuniary loss shall be
limited to compensation for a serious injury as contemplated in
subsection (1A) and shall be paid by way of a lump sum. ”
THE ACCIDENT AND CLAIM :
[4] It is common cause that on 17 April 2019, at approximately 16h00 on
the R31, within the jurisdiction of this Court, the insured driver lost
control of the insured motor vehicle, which left the roadway, rolled into
the veld and overturned . At all material times , the plaintiff was a
passenger in the insured motor vehicle . As a result of the said
passenger in the insured motor vehicle . As a result of the said
accident, the plaintiff sustained certain bodily injuries; to wit: multiple
spinal fractures - L1, L2, L4 and T12; bilateral rib fractures and lung
contusions .
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 4
[5] It is also common cause that the accident was caused solely by the
negligence of the insured driver. The plaintiff accordingly instituted
action against the defendant for damages in the amount of
R4 884 100. The claim comprised past medical expenses, future
hospital and medical expenses, past and future loss of earnings,
alternatively loss of earning capacity, and general damages . The
plaintiff claimed future hospital and medical expenses in a nominal
amount of R200 000, it being anticipated that the defendant would
furnish an undertaking in terms of Section 17(4)(a) of the Act in
respect of such expenses . The plaintiff further claimed R3 884 100 in
respect of past and future loss of earnings, alternatively loss of
earning capacity . The claim for general damages, in the amount of R1
000 000, was conditional upon the plaintiff establishing that he had
sustained a serious injury as contemplated in the Act and the
regulations promulgated thereunder.
[6] On the day of the trial , the defendant conceded the merits in favour of
the plaintiff . The parties thereafter concluded a settlement agreement
in terms of which the plaintiff’s claims for future hospital and medical
expenses and general damages were settled . Accordingly, t he only
issue for determination was the plaintiff’s claim for future loss of
earnings/earning capacity .
BRIEF OVERVIEW OF THE RELEVANT EVIDENCE :
The Plaintiff’s Evidence -in-Chief:
[7] The plaintiff , in sum , testified that he could not return to work
immediately after the accident . He remained at home recuperating for
approximately two months , during which period he received his full
salary. He nevertheless resumed work before he had fully recovered
for fear of losing his employment . He failed the required medical tests
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 5
on two occasions and was consequently placed on light duties . He
testified that he was not returned to his pre -accident duties as a dump -
truck operator .
[8] The plaintiff further testified that he is still performing light duties . He
detailed his duties as cleaning offices and delivery of documents . He
is also permitted to rest or sleep when ever he experiences pain or
becomes exhausted . He testified that this arrangement continued for
almost five years since the accident in 2019 . He further testified that
his salary had been reduced and that he currently earn s between
R12 000 and R 14 000 per month . He also expressed the fear that he
would be the first to be retrenched should his employer decide to
retrench employees . He recalled that his employer had previously
retrenched employees during 2013/2014.
Evidence by affidavit in terms of Rule 38(2) of the Uniform Rules of Court :
[9] It is common cause that the plaintiff delivered reports by an
orthopaedic surgeon , an occupational therapist , an industrial
psychologist and an actuary. It is also common cause that the
defendant delivered no expert report s. The plaintiff thereafter applied ,
in terms of Rule 38(2) of the Uniform Rules of Court, for leave to
adduce the evidence of those experts by way of affidavit . The
application, being unopposed, was granted. 1
Orthopaedic Surgeon :
[10] According to Dr JF Greyling, an orthopaedic surgeon, the plaintiff’s
complain ts, in the main , pertain, inter alia, to the following : pain in the
1 Rule 38(2) of the Uniform Rules of Court provides:
“The witnesses at the trial of any action shall be orally examined, but a court may at any time, for
sufficient reason, order that all or any of the evidence to be adduced at any trial be given on affidavit
or that the affidavit of any witness be read at the hearing, on such terms and conditions as to it may
seem meet: Provided that where it appears to the court that any other party reasonably requires the
attendance of a witness for cross -examination, and such witness can be produced, the evidence of
such witness shall not be given on affidavit. ”
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 6
lower back, especially when sitting for prolonged periods or lifting
heavy objects; the need for occasional medication to manage the pain,
which interferes with various daily tasks and activities, including work,
household chores, travel ling and sleep ing; difficulty performing various
physical tasks, including bathing, dressing, prolonged sitting and
standing, walking long distances, running and bending; numbness and
weakness in the lower limbs; considerable difficulty at work,
particularly during prolonged sitting , although he endure s the pain and
discomfort as he is the sole breadwinner in his family ; an inability to
participate in recreational activities or hobbies; difficulty performing
household chores , including gardening, and household maintenance ,
for which he now requires assistance; and symptoms of depression
and anxiety since the accident.
[11] Upon radiological examination and X -rays of the lumb ar spine, it was
found, inter alia; that there was height loss of the anterior vertebral
bodies of L1 and L2, which could be attributable to previous
compression injuries; secondary degenerative changes with anterior
osteophyte formation at L1 and L2; slight height loss of the vertebral
body of T1; a whole person impairment total 31%; and that, although it
would be possible to correct the severe kyphotic deformity by means
of a spinal osteotomy and a four -level fusion, the procedure would
probably not be worth the risk . Accordingly, no future surgery is
anticipated.
[12] According to Dr Greyling, the plaintiff would be unsuited to most
physical work tasks and manual occupation s and, should he seek
alternative employment, may struggle to compete in the open labour
market. He may also struggle with sedentary work involving prolonged
sitting and standing , with which he has little experience . The plaintiff
is not suit ed to the work that he is currently performing . He is not fit
is not suit ed to the work that he is currently performing . He is not fit
for manual labour and should be regarded as permanently disabled for
work in the open labour sector . Dr Greyling also indicated on the
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 7
RAF4 report/form that to the extent that the plaintiff achieved more
than 30% incapaci ty, no narrative was required .
[13] In summary, Dr Greyling concluded , inter alia, that, as a result of his
injuries, the plaintiff has bilateral radiculopathy at multiple levels in his
lower limbs, including decreased power, increased reflexes and
clonus. He also experiences pain , which interferes with various
aspects of his daily life . This has had a significant impact on his ability
to perform various occupational, recreational, household and selfcare
tasks.
[14] It was contended for the defendant that Dr Greyling’s opinion , namely
that the plaintiff had been accommodated on light duties for only one
year before returning to his pre -accident duties as a truck operator,
was contradicted by the plaintiff’s oral testimony . The plaintiff testified
that, after returning to work in 2019, he had continuously been
accommodated on light duties . He further testified that, almost five
years after the accident, he remained on light duties and was
permitted to rest whenever he felt tired.
Occupational Therapist :
[15] According to Ms Susan Maree, the occupational therapist, the plaintiff
sustained the following injuries: a chance fracture L1; an unstable
fracture at L2; stable fractures at T12 to L4; multiple rib fractures on
both the right and left side s; bilateral haemothorax and lung
contusions; and a crush injury . During his recovery , the plaintiff was
confined to bed for six weeks and required assistance with personal
care and household tasks . During this period, he had to use adult
diapers as he was unable to walk to the toilet.
[16] After that period, he decided to return to work even though he had not
fully recuperated because he was the sole breadwinner and feared
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 8
losing his employment . He nevertheless failed his medical
assessments and was consequently placed on light dut ies. The
plaintiff is unable to carry or lift any heavy objects and particularly
struggles with carrying more than 15 litres of water . He continues to
work out of necessity and tolerates long hours operating heavy mining
equipment, which causes him considerable discomfort .
[17] She reported further that, during her examination , it was found, inter
alia, that the plaintiff was unable to complete the repetitive squatting
test, which elicited lower back and leg pain ; his movement pattern s
were awkward; he became breathless after the test and required a rest
break; during ladder climbing ; his balance was significantly affected by
quivering in both legs, and he pulled heavily on the ladder to reach the
next step; he appeared breathless after the test, with poo r
cardiopulmonary endurance and sweating; he was unable to tolerate a
sitting position for 30 minutes; and he displayed poor hygienic spinal
principles and at times struggled with balance and coordination.
[18] In discussing the plaintiff’s work ability, Ms Maree reported that his
diminished praxis and coordination were caused by lack of motor
control of the lower limbs . His tolerance for postural activities,
including standing, sitting, elevated work, and lowered work , was
diminished , and numbness and pain were elicited . Before the
accident , the Plaintiff was competitive in the open labour market and
enjoyed the same opportunities for employment as other job seekers .
He returned to work before he had fully recuperated for fear of losing
his employment . He failed his medical test and was placed on
adapted duties cleaning offices for 18 months.
[19] The test results / assessment revealed that he is unsuited to sedentary
work demands . Owing to the severity of his back injury, he struggles
work demands . Owing to the severity of his back injury, he struggles
with some personal care activities such as washing and dressing and
requires the assistance of his wife . Upon assessment by the
employer’s occupational health doctor to determine whether he was fit
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 9
enough to resume his duties, he failed the assessment , and he was
then asked to only stay in the office area and clean . He was then sent
for a second assessment in January 2020 , where he again failed his
medical and was then placed on light duty for the year 2020 , where he
remained in the office and did light cleaning work only.
[20] Ms Maree further opined that, although the plaintiff had returned to
work, he was no longer able to cope with the physical demands of
operating heavy mining equipment . In her view, the pounding
movement over uneven terrain aggravated his back pain . She noted
that, although he had been allocated to a larger dump-truck for greater
comfort, he continued to experience significant discomfort and
struggled to cope with the work demands . She further expressed the
opinion that the plaintiff continued to work out of financial necessity,
was reluctant to request further work adaptations or rest breaks for
fear of losing his employment, and that his pain and discomfort
interfered with his work performance.
[21] Similarly, it was contended on behalf of the defendant that Ms Maree’s
report suggests that, following the injury, the plaintiff returned to his
pre-accident duties as a truck operator . This, it was argued, was
inconsistent with the plaintiff’s oral testimony that, upon returning to
work, he failed two medical assessments, was assigned to light duties,
and has remained on such duties for more than five years since the
accident.
Industrial Psychologist :
[22] According to Dr Jacobs, the industrial psychologist , the following was
noted: the Plaintiff completed Grade 7 ; at the time of the accident, he
was employed as a dump-truck operator (ADT operator) by Four Arrow
Mining; following the accident , he was unable to work for two months,
during which period he continued to receive his salary; he returned to
during which period he continued to receive his salary; he returned to
work before he had fully recuperated for fear of losing his employment ;
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 10
he failed his medical assessment and was placed on light duties
cleaning offices for 18 months; thereafter, he returned to his pre -
accident occupation but found the ADT truck too physically
demanding ; he was assigned to a TRAP7 truck , which entails the
same work; he is basically performing the same duties as prior to the
accident; he finds it extremely difficult to perform those duties ; he is
required to climb onto the dump-truck several times a day and, when
tired or in pain, he climbs down to stretch; he fears losing his
employment ; his employer is aware of his injuries; he continues to
work despite th e pain because it is his family’ s only source of income;
he is concerned about his future; he has no other work experience or
transferable skills; and he intends to continue working for as long as
possible.
[23] Doctor Jacobs further reported that the plaintiff was concerned that his
employer might target him in case of any retrenchment . The plaintiff
was also uncertain how his injury was going to degenerate and
whether he would be able to continue working up to retirement age .
Dr Jacobs further stated that, upon contacting the plaintiff’s supervisor,
he was informed that the employer had been aware of the plaintiff’s
injuries since the accident and remained concerned about his health .
The supervisor advised that the plaintiff had been allocated a slower
truck with slightly less impact on his spine; that he was frequently
referred to the clinic before commencing work; that the employer was
concerned that he might sustain further injury while at work due to his
incapacity; that he was not suited to his current occupation; that his
condition was being monitored and a further medical assessment
would be requested should his condition deteriorate; and that, based
on the available information and the test results, the plaintiff was not
suited to the occupation of a dump-truck driver.
suited to the occupation of a dump-truck driver.
[24] In conclusion , Dr Jacobs expressed the opinion that the plaintiff should
cease working and would be unable to return to similar employment or
obtain suitable sedentary employment . Dr Jacobs agreed with the
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 11
other experts that the plaintiff would not find other work once he
discontinued his current employment ; he was unlikely to secure
alternative employment . In Dr Jacobs’s opinion, the plaintiff appeared
to be working contrary to reasonable medical advice and his continued
employment was sympathetic in nature, in that his employer had
accommodated his limitations . Dr Jacobs further opined that, having
regard to the plaintiff’s limited education, he was not capable of
reskilling .
Actuary:
[25] The actuary, Ms Anica Van Der Westhuizen of Munro Actuaries,
reported, in sum, that the figures were calculated as at 1 April 2023 .
The actuarial report reflects that the plaintiff is expected to remain
unemployable in the future . According to the report, the capital value
of the loss of earnings is R3 884 100 . The calculations are said to be
based on the information provided to the actuaries by the attorneys,
including the Industrial Psychologist’s report of Dr EJ Jacobs and the
plaintiff’s payslip for January 2023 . The report reflects that, as of
January 2023, the plaintiff’s earnings before tax were as follows: his
basic salary was R16 843 per month . The report states that it was
indicated to the actuaries that the plaintiff suffered no past loss of
earnings . As a result, they calculated the loss of earnings from
March 2023 to allow for the correct tax calculations . Based on the
apparent fact that the plaintiff’s current employment is deemed
sympathetic by the experts and the recommendation that he should
stop working, the actuaries have assumed no further earnings from the
date of calculation, but indicate that they would defer to the facts in
that regard . The actuaries’ calculations did not apply contingencies .
The sum total of the calculated “ loss of earnings” is R3 884 100.
[26] The defendant took issue with the actuarial report, contending that it
[26] The defendant took issue with the actuarial report, contending that it
was based on an incorrect factual premise . According to the
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 12
defendant, the summary of the actuarial calculations shows that, from
March 2023, the plaintiff has not received any income and will not
receive any income until the age of 63 . This, the defendant contends,
does not reflect the facts or the plaintiff’s evidence before the Court.
Plaintiff :
[27] The plaintiff testified that he sustained injuries to his back and , as a
consequence, experienced numerous sequelae . At the time of the
accident, h e was employed as an operator at the mine but is no longe r
able to perform those duties . He testified t hat he no longer works in
the mine because he failed the required medical assessments on two
occasions . He nevertheless still has an access card, which permits
him access only to the employer’s offices . Regarding whether there
had been previous retrenchments, he testified that there had been .
Plaintiff’s Cross Examination :
[28] Under cross -examination, the plaintiff testified , in sum, that prior to the
accident he had been employed as a dump-truck operator by Four
Arrows Mining since 2013, earning a monthly income of between
R16 000 and R17 000 . Following the accident, he did not immediately
return to work but remained at home for approximately two months to
recuperate, during which period he received his full salary . He
nevertheless returned to work before he had fully recuperated for fear
of losing his employment . He thereafter underwent two medical
assessments, both of which he failed, whereupon he was placed on
light duties.
[29] He further testified that he continues to perform light duties . His duties
include cleaning offices and delivering documents . He is permitted to
rest or sleep whenever he experiences pain or becomes tired . He
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 13
testified that this has been his situation since the accident in 2019 . He
currently earns between R12 000 and R14 000 per month and
disputed any suggestion that he earns more than those amounts .
[30] He further testified that he fears that he will be the first employee to be
retrenched should the company decide to reduce its workforce or
restructure its operations . From his recollection, the company only
retrenched on one previous occasion in 2013 /2014, which is more than
10 years ago . The plaintiff, however, did not seem to understand the
difference between retrenchment and dismissal .
[31] After the cross -examination of the plaintiff, the defendant closed its
case without leading any evidence.
THE PARTIES’ ARGUMENTS, IN SUM :
Plaintiff’s :
[32] The following, in sum , was submitted on behalf of the plaintiff: It is
important to note that the plaintiff’s actuarial report is the only actua rial
evidence before this Court and that the actuarial calculations
contained therein were accepted by the defendant . No past loss of
earnings was calculated . Accordingly, t he only issue remaining for
determination is the contingency deduction to be applied to the
plaintiff’s future loss of earnings.
[33] It was further submitted t hat, whilst it is common cause that the
plaintiff , at the age of 46, remains employed, he is unsuited to
sedentary work as he is unable to sit for prolonged periods. He is
currently working contrary to the advice of all the relevant experts . It
was submitted that, whilst the experts agree that the plaintiff’s residual
earning capacity has diminished, the fact that he remains employed
warrants the application of a higher contingency deduction . It was
further submitted t hat the plaintiff’s employer is merely accommodating
him, particularly in light of the fact that he has already failed two
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 14
medical assessments and was consequently assigned to cleaning
duties. Regard being had to the foregoing, it was argued that, should
the employer retrench employees, the plaintiff would be the first to be
retrenched.
[34] It was further submitted that, having regard to the plaintiff’s age, he
would ordinarily have remained in employment until the age of 65 . On
that basis, the remaining 19 years of his working life would ordinarily
attract a contingency deduction of 9% . It was submitted, however, that
the circumstances of this case justify a contingency deduction of 20%,
being approximately double the deduction proposed by Koch .
Accordingly, a deduction of 20% from the amount of R3 884 100 was
contended to be fair and reasonable . This would result in an award of
R3 107 280.
Defendant’s :
[35] The following was submitted for the defendant: That according to
Dr Greyling’s opinion , in sum , the plaintiff is a 44 -year-old male
residing in Douglas . That his highest level of education is Grade 7 and
that at the time of the accident he was employed as a dump-truck
driver for Four Arrows since 2013 . His job entailed 12 -hour shifts on a
truck. He was able to return to his job after the accident, but was
placed on light duties for one year , which he is still performing.
[36] That the plaintiff was only accommodated to perform light duties for a
period of one year and thereafter returned to his pre -accident duties as
a dump-truck operator . That the foregoing contradicted the plaintiff’s
testimony before this Court . That it is so since the plaintiff testified
that he was accommodated to perform light duties ever since he
returned to work in 2019, after his injuries . That five years later, he
was still accommodated and that the employer allows him to rest and
sleep whenever he feels tired.
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 15
[37] That the occupational therapist, for her own part , stated, inter alia,
that: After the accident, the plaintiff was unable to work for two months
and returned to work before he was fully recuperated for fear of losing
his employment . That he failed his medical tests on two occasions
and was thereafter placed on lighter duties of cleaning offices for 18
months. Thereafter , he returned to his previous dump-truck operating
duties. That he is currently unable to cope with the said work
demands because his back pain is aggravated by the pounding
movement of the truck over uneven terrain. He therefore changed to a
larger dump-truck for more comfort . This notwithstanding, he is still
not coping . He is presently not in an ideal position to request more
work adaptations or rest breaks, for fear of losing his employment .
[38] That the occupational therapist also stated that the plaintiff remains
employed out of necessity due to his family financial responsibilities .
That he takes breaks by climbing out of his truck frequently and doing
inspections around the vehicle to alleviate his pain and discomfort,
which diminishes his work rate and performance .
[39] That it can be deduced from said report that the occupational therapist
believed that after the injury, the plaintiff was returned to his pre -
accident duties as a dump-truck operator. That this belief contradicts
the plaintiff’s testimony before this Court . That it is so since the
plaintiff testified that upon his return to work, he failed two medical
tests and was consequently allocated to perform light duties . That he
is still being so accommodated, more than five years after the said
injury.
[40] According to the industrial psychologist, concerning the pre -morbid
payslip for March 2019, the plaintiff was able to earn a basic salary of
R10 924 per month or an approximate amount of R17 404, which
R10 924 per month or an approximate amount of R17 404, which
includes certain allowances and the employer’s contributions of R776
per month . That the plaintiff’s payslip indicated that he is an ADT
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 16
Operator on a Patterson Level B2 . Consequently, in 2019, his annual
income per annum amounted to R218 160.
[41] That according to the plaintiff’s post -accident payslip for January 2023,
he was earning a basic salary of R16 843 per month, plus certain
allowances and an employer’s contribution of R1 623 per month . His
payslip for January 2023 shows he was able to earn an amount of
R24 691 with allowances . His payslip indicated that he is an operator
on a Pat terson B4 Level, with an estimated annual package of
R315 768, in 2023 .
[42] Accordingly, the defendant submitted t hat Dr Jacob’s evidence does
not align with the plaintiff’s testimony that he was earning somewhere
between R16 000 and R17 000, prior to the accident . That after the
accident, his salary was reduced to between R12 000 and R14 000.
That Dr Jacob’s evidence is not based on facts the plaintiff testified
about in this Court . That, in fact , the plaintiff disputed Dr Jacob ’s
evidence regarding his pre -accident and post -accident earnings ,
including the payslips attached . That he further disputed that he was
currently performing pre -accident duties as a dump-truck operator .
That the evidence of the plaintiff’s alleged supervisor, one Mr Abbey
Maine, does not comply with Section 3 of the Law of Evidence
Amendment Act 45 of 1988, because it is hearsay evidence . That
this Court must therefore reject same on the basis that the defendant
was not afforded an opportunity to test same in Court . That allowing
the said evidence would therefore infringe on the de fendant’s right to a
fair trial.
[43] That the plaintiff testified that the employer accommodated him to
perform light duties and is allowed to rest and sleep . That he is no
longer performing pre -injury du ties as a dump-truck operator. That the
plaintiff’s evidence on loss of earnings does not align or corroborate
plaintiff’s evidence on loss of earnings does not align or corroborate
the impugned expert evidence . That this Court was faced with two
issues; to wit: firstly, if the Court were to accept the plaintiff’s
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 17
evidence, the issue would be that his evidence does not corroborate
evidence by the experts . Secondly, if this Court were to accept the
expert’s evidence, the issue would be that their evidence is not based
on facts or evidence given by the plaintiff .
[44] That the plaintiff is currently accommodated and receiving a monthly
salary. There is no evidence from the experts, particularly the
occupational therapist , evincing that he is not coping in the
performance of his current duties as currently accommodated . That it
is so because the experts believed that the plaintiff returned to his pre -
injury duties as a dump-truck driver after one year . He was not
assessed in terms of his current duties . That the impugned expert
evidence has been led witho ut proper factual foundation.
[45] That the issue to be addressed by the plaintiff therefore is whether is
suitable to perform his current duties as accommodated by the
employer and secondly, how long is the employer willing to
accommodate and pay him under the current capacity.
[46] In conclusion, it was contended for the defendant that the plaintiff has
failed to discharge the onus by proving on a balance of probabilities
that he suffered future loss of earnings . That it is so since the
evidence of the plaintiff and the experts do not corroborate each other,
but in fact contradict each other . Accordingly, the claim for loss of
earnings should be dismissed with costs on a party and party scale .
Alternatively, it was submitted for the defendant that t he experts be
ordered to reconsider the evidence given by the plaintiff in Court and
align their reports with same .
[47] The defendant also submitted that, to the extent that the expert
opinions or evidence are based on hearsay evidence, such evidence
fell to be rejected by this Court . This is so because the defendant’s
fell to be rejected by this Court . This is so because the defendant’s
right to a fair trial would be infringed if this Court were to accept expert
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 18
opinions based on hearsay without affording the defendant an
opportunity to test such evidence .
[48] The defendant contends that the discovery of documents in terms of
the rules of Court does not make them admissible as evidence against
the other party , unless the documents could be admitted under one or
other of the common law exceptions to the hearsay rule . That
contention was made with reference to Rautini v Passenger Rail
Agency of South Africa .2 Furthermore, with reference to Mbizo v Old
Mutual Life Assurance Company (SA) Ltd 3, it was submitted for the
defendant that the function of an expert is to give an opinion on the
facts and documents given to him by the client . He must then draw
inferences from those facts and documentation . The reasonableness
or otherwise of drawing inferences from such facts in support of the
opinion can only be determined once the plaintiff’s evidence has been
tested. 4 The overarching argument or attack on the evidence of
experts is grounded on the principle that an opinion of an expert must
be based on facts which have been proven before the Court. That an
opinion based on facts not in evidence has no value for the Court. A
Court has to ascertain whether the opinions expressed by the experts
are based upon facts proved to it by way of admissible evidence .
[49] The defendant ultimately argues that the onus is on the plaintiff to
tender sufficient evidence of his pre - and post-accident income to
enable the Court to assess and quantify past and future loss of
earnings . That, as pointed out in Rudman v Road Accident Fund 5,
an award cannot be based upon speculation . It must have an
evidential foundation.
2 (853/2020) [2021] ZASCA 158 (8 November 2021) para 11
3 (3365/2017) [2024] ZAECMHC 29 (14 May 2024) para 13
4 See also Road Accident Fund v Madikane (1270/2018) [2019] ZASCA 103 (22 August 2019) , para
4 See also Road Accident Fund v Madikane (1270/2018) [2019] ZASCA 103 (22 August 2019) , para
4; Pricewaterhousecoopers Incorporated and others v National Potato Co -operative Ltd and
Another [2015] 2 All SA 403 (SCA), para 80
5 2003 (2) SA 234 (SCA), para 16
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 19
DETERMINATION :
[50] The plaintiff filed the reports of his experts, but the defendant did not
admit the opinions expressed therein . Consequently, the plaintiff
elected to lead the evidence of his experts by way of affidavit in terms
of Rule 38(2) of the Uniform Rules . The defendant did not oppose the
application . It nevertheless maintained that, to the extent that any of
the opinions expressed by the experts were based on hearsay
evidence, such evidence remained subject to the provisions of Section
3(1) of the Law of Evidence Amendment Act 45 of 1988 . The
defendant contended that it had not agreed to the admission of
hearsay evidence against it and that, insofar as an expert opinion
depended upon hearsay evidence, its admission without affording the
defendant an opportunity to test the evidential basis upon which the
opinion was founded would cause prejudice and infringe upon its right
to a fair trial . The defendant accordingly submitted that any portion of
the expert evidence founded on hearsay should be rejected.
[51] Section 3 of Act 45 of 1988 expressly stipulates as follows :
“(1) Subject to the provisions of any other law, hearsay evidence shall not
be admitted as evidence at criminal or civil proceedings, unless -
(a) each party against whom the evidence is to be adduced
agrees to the admission thereof as evidence at such
proceedings;
(b) the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to -
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the
person upon whose credibility the probative value of
such evidence depends;
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 20
(vi) any prejudice to a party which the admission of such
evidence might entail; and
(vii) any other factor which should in the opinion of the
court be taken into account, is of the opinion that
such evidence should be admitted in the interests of
justice.
(2) The provisions of subsection (1) shall not render admissible any
evidence which is inadmissible on any ground other than that such
evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of
subsection (1) (b) if the court is informed that the person upon whose
credibility the probative value of such evidence depends, will himself
testify in such proceedings: Provided that if such person does not
later testify in such proceedings, the hearsay evidence shall be left
out of account unless the hearsay evidence is admitted in terms of
paragraph (a) of subsection (1) or is admitted by the court in terms
of paragraph (c) of that subsection. ”
[52] The defendant identified the evidence of the plaintiff’s alleged
supervisor, Mr Abbey Maine, as evidence that does not comply with
Section 3 of the Law of Evidence Amendment Act 45 of 1988, on the
basis that it constitutes hearsay evidence . The defendant further
submitted that, to the extent that any of the expert opinions or
evidence were based on hearsay evidence, such evidence fell to be
rejected by this Court . This contention was made in general terms,
without identifying the particular evidence that could constitute
hearsay. The basis of the contention was that the defendant’s right to
a fair trial would be infringed if this Court were to accept expert
opinions based on hearsay without affording the defendant an
opportunity to test such evidence . The defendant maintained that it
had not agreed to the admission of hearsay evidence against it and
that, insofar as an expert opinion depended upon hearsay evidence,
that, insofar as an expert opinion depended upon hearsay evidence,
its admission without affording the defendant an opportunity to test the
evidential basis upon which the opinion was founded would cause
prejudice and infringe upon its right to a fair trial . The defendant
accordingly submitted that any portion of the expert evidence founded
on hearsay should be rejected.
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 21
[53] The evidence attributed to Mr Abbey Maine does not materially bear
upon the determination or quantification of the plaintiff’s loss of
earning capacity . The information allegedly furnished by Mr Maine
concerns principally the plaintiff’s workplace circumstances, including
the duties performed by him, the accommodation allegedly afforded to
him by his employer, his attendance at the clinic and the employer’s
concerns regarding his ability to continue performing his duties . The
plaintiff’s actual earnings before and after the accident are reflected in
his payslips, while his physical limitations, vocational capacity and
ability to compete in the open labour market are addressed by the
evidence of the orthopaedic surgeon, occupational therapist and
industrial psychologist.
[54] In the circumstances, it is unnecessary for the Court to rely upon the
hearsay statements attributed to Mr Maine in determining the plaintiff’s
loss of earning capacity . The Court accordingly does not consider it
necessary to determine whether that evidence is admissible in terms
of Section 3(1) of the Law of Evidence Amendment Act 45 of 1988.
[55] By way of recap, the essential evidence relevant to the plaintiff’s loss
of earning s/earning capacity is that, following the accident, he was
accommodated by his employer on lighter duties for approximately one
year, after which he returned to his pre -accident occupation as a
dump-truck operator and remained employed . The medical and
occupational therapy evidence nevertheless indicated that he
experienced significant difficulty performing the physical demands of
his occupation and was considered unsuitable for his current work and
for most physical and manual occupations . Dr Jacobs considered his
continued employment to be precarious and, to some extent,
sympathetic in nature, and expressed the view that, should the plaintiff
sympathetic in nature, and expressed the view that, should the plaintiff
leave his current employment, he would probably remain unemployed .
He concluded that the accident had diminished the plaintiff’s capacity
to earn.
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 22
[56] Of particular relevance is that the plaintiff’s actual earnings, as
reflected in the payslips relied upon by Dr Jacobs, increased after the
accident . His March 2019 payslip reflected earnings of R17 404 per
month, including allowances, with a basic salary of R10 924 per
month, whereas his January 2023 payslip reflected earnings of
R24 691 per month, including allowances, with a basic salary of
R16 843 per month . Notwithstanding that the plaintiff remained
employed and was earning an income, the actuarial calculation, based
in part on Dr Jacobs’ opinion that the plaintiff was expected to remain
unemployable in the future, assumed no further earnings from the date
of calculation and calculated a future loss of earnings of R3 884 100,
without applying contingencies.
[57] In this case, the actuary’s report is the only actuarial calculation
admitted into evidence and accepted by the defendant as such . The
actuarial report is dated 10 March 2023 . At that time, the plaintiff was
44 years of age . When the accident occurred, he was 40 years of
age. When the heads of argument were filed in 2024, the plaintiff was
46 years of age . Accordingly, it was submitted on behalf of the plaintiff
that, at 46 years of age, he would, in the ordinary course, still have
been able to work until the age of 65 . Thus, when the heads of
argument were filed in 2024, the plaintiff had 19 years of employment
remaining, which, on the usual scale, would result in a contingency
deduction of 9%.
[58] It was submitted that, given that there was only one actuarial report
before the Court, which was accepted as such by the defendant, and
that no past loss had been calculated in this instance, the only issue
before the Court was the contingency deduction to be applied to the
future loss of earnings . It was further submitted that, although the
plaintiff remained employed, the evidence showed that he was doing
plaintiff remained employed, the evidence showed that he was doing
so against the medical advice of the experts and that his earning
capacity had been significantly diminished . It was contended that,
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 23
should the employer resort to retrenchments, the plaintiff would be first
in line, and that the evidence established that his employer was
currently accommodating him . He was not suited to sedentary work
and did not possess the skills necessary for such work . Accordingly, it
was submitted that a higher contingency should be applied . Against
this backdrop, it was submitted on behalf of the plaintiff that a
reasonable contingency to be applied in casu to the future loss should
be 20%, approximately double the contingency deduction proposed by
Koch. The amount contended for was therefore R3 884 100, less
20%, resulting in R3 107 280 . No past loss of earnings had been
factored into these amounts . The amount of R3 884 100 represents
the actuarially calculated future loss of earnings before any deduction
for contingencies .
[59] It is clear from the expert evidence that the plaintiff would remain
unemployable in the future . It is also clear from that evidence that his
current employment is regarded as sympathetic in nature and that,
ordinarily , he should stop working . In the uninjured scenario, the
actuarial report records that the plaintiff’s earnings would, from March
2023, have progressed at R16 843 per month , calculated in financial
year 2023 terms and before tax, unless otherwise stated . The report
reflects that the actuaries included the same fringe benefits from
March 2023 onwards and allowed for earnings inflation until the
retirement age of 63 . The report further reflects that no contingencies
were applied.
[60] In Southern Insurance Association Ltd v Bailey NO6, the then
Appellate Division insightfully made the following observations:
“Any enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augurs or oracles . All that the Court
benefit of crystal balls, soothsayers, augurs or oracles . All that the Court
can do is to make an estimate, which is often a very rough estimate, of the
6 1984 (1) SA 98 (A) At 113F to 114E
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 24
present value of the loss . It has open to it two possible approaches . One is
for the Judge to make a round estimate of an amount which seems to him to
be fair and reasonable . That is entirely a matter of guesswork, a blind
plunge into the unknown . The other is to try to make an assessment, by way
of mathematical calculations, on the basis of assumptions resting on the
evidence . The validity of this approach depends of course upon the
soundness of the assumptions, and these may vary from the strongly probable
to the speculative . It is manifest that either approach involves guesswork to a
greater or lesser extent . But the Court cannot for this reason adopt a non
possumus attitude and make no award.
…
In a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the first approach offers
any advantage over the second . On the contrary, while the result of a n
actuarial computation may be no more than an “informed guess” , it has the
advantage of an attempt to ascertain the value of what was lost on a logical
basis; whereas the trial Judge’s “gut feeling” (to use the words of
appellant’ s counsel) as to what is fair and reasonable is nothi ng more than a
blind guess . (Cf Goldie v City Council of Johannesburg 1948 (2) SA 913 (W)
at 920.)”
[61] The above notwithstanding, the Appellate Division proceeded in
Bailey to make the following apt observations:
”Where the method of actuarial computation is adopted, it does not mean
that the trial Judge is “tied down by inexorable actuarial calculations” . He
has “a large discretion to award what he considers right” (per Holmes JA in
Legal Assurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614F) . One of the
elements in exercising that discretion is the making of a discount for
“contingencies” or the “vicissitudes of life” . These include such matters as
“contingencies” or the “vicissitudes of life” . These include such matters as
the possibility that the plaintiff may in the result have less than a “normal”
expectation of life; and that he may experience periods of unemployment by
reason of incapacity due to illness or accident, or to labour unrest or general
economic conditions . The amount of any discount may vary, depending upon
the circumstances of the case . See Van der Plaats v South African Mutual
Fire and General Insurance Co Ltd 1980 (3) SA 105 (A) at 114 - 5. The rate
of the discount cannot of course be assessed on any logical basis: the
assessment must be largely arbitrary and must depend upon the trial Judge’s
impression of the case.
The appellant’ s counsel strongly attacked the discount of 10% which Vos J
made for contingencies . He submitted that a factor of 50% would have been
appropriate in the circumstances, especially in view of the fact that
Danderine was a young child with virtually her whole life before her, so that
she would have been exposed for a very long time to the vicissitudes of life.
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 25
It is, however, erroneous to regard the fortunes of life as being always
adverse: they may be favourable . In dealing with the question of
contingencies, Windeyer J said in the Australian case of Bresatz v Przibilla
(1962) 36 ALJR 212 (HCA) at 213:
‘It is a mistake to suppose that it necessarily involves a ‘scaling down’ . What
it involves depends, not on arithmetic, but on considering what the future
may have held for the particular individual concerned.. . (The) generalisation
that there must be a ‘scaling down’ for contingencies seems mistaken . All
‘contingencies’ are not adverse: All ‘vicissitudes’ are not harmful . A
particular plaintiff might have had prospects or chances of advancement and
increasingly remunerative employment . Why count the possible buffets and
ignore the rewards of fortune? Each case depends upon its own facts . In
some it may seem t hat the chance of good fortune might have balanced or
even outweighed the risk of bad ’.”7
[62] It is now well settled that contingencies, whether negative or positive,
constitute an important mechanism for adjusting the loss suffered to
the circumstances of each individual case, with a view to achieving
equity and fairness between the parties . There is no hard and fast rule
regarding contingency allowances . The Quantum Yearbook 8 states:
“When assessing damages for loss of earnings or support it is usual for a
deduction to be made for general contingencies for which no explicit
allowance has been made in the actuarial calculation . The deduction is the
prerogative of the courts . However, most matters do not go to court so the
relevant deduction becomes a matter for negotiation . Even when matters do
go to court some judges seek advice from expert witnesses as regards the
appropriate deductions to make . General contingencies cover a wide range
of considerations which may vary from case to case and may include:
of considerations which may vary from case to case and may include:
taxation, early death, saved travel costs, loss of employment, promotion
prospects, divorce, etc . There are no fixed rules as regards general
contingencies . The following guidelines can be helpful:
Sliding scale : ½% per year to retirement age, ie 25% for a child, 20% for a
youth and 10% in middle age .
…
Normal contingencies : the RAF usually agrees to deductions of 5% for past
loss and 15% for future loss, the so -called ‘normal contingencies ’.”
(Emphasis supplied)
7 At 116G to 117D
8 RJ Koch The Quantum Yearbook (2024) at 125
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 26
[63] The established basic principle in the assessment of future damages
is that it is not an exact science and that the requisite enquiry remains
highly speculative . The Court must determine the appropriate amount
of compensation in the best possible way, having regard to all the
facts at its disposal . In this regard, the Court enjoys a very wide
discretion. 9 The Supreme Court of Appeal in Road Accident Fund v
Guedes 10 observes instructively :
“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 (see for
example Preside nt Insurance Co Ltd v Mathews) . 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 s peculative and a court can therefore only make an
estimate of the present value of the l oss that is often a very rough estimate
(see, for example, Southern Ins urance Association Ltd v Bailey NO). The
court necessarily exercises a wide discretion when it assesses the quantum of
damages due to loss of earning capacity and has a large discretion to award
what it considers right . Courts have adopted the approach that, in order to
assist in such a calculation, an actuarial computation is a useful basis for
establishing the q uantum of damages . Even then, the trial Court has a wide
discretion to award what it believes is just (see , for example, the Bailey case
and Van der Plaats v South African Mutual Fire and General Insurance Co
Ltd).” (Footnotes omitted)
[64] Where bodily injury incapacitates a plaintiff to the extent that his future
ability to earn a living has been partially or fully compromised, our law
refers not to loss of future earnings, but to “loss of earning capacity” .
refers not to loss of future earnings, but to “loss of earning capacity” .
It is so termed because, in these circumstances, it is the plaintiff’s
capacity to earn, rather than his actual earnings, that is affected,
although the loss is ordinarily measured by reference to the loss of
expected income. 11 In Dippenaar v Shield Insurance Co Ltd 12, the
Court observed:
9 HB Klopper Damages (2017) at 96; see also President Insurance Co Ltd v Mathews 1992 (1) SA 1
(A) at 5C to E.
10 2006 (5) SA 583 (SCA) para 8
11 HB Klopper Damages (2017) at 117; see also Road Accident Fund v Guedes 2006 (5) SA 583
(SCA).
12 1979 (2) SA 904 (A) at 917B-E.
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 27
“In our law, under the lex Aquilia , the defendant must make good the
difference bet ween the value of the plaintiff’s estate after the commission of
the delict and the value it would have had if the delict had not been
committed . The capacity to earn money is co nsidered to be part of a person’ s
estate and the loss or impairment of that capacity constitutes a loss, if such
loss diminishes the estate . This was the approach in Union Government
(Minister of Railways and Harbours) v Warneke 1911 AD 657 at 665 where
the following appears:
‘In later Roma n law property came to mean the universitas of the plaintiff’ s
rights and duties, and the object of the action was to reco ver the difference
between the universitas as it was after the act of damage, and as it would
have been if the act had not been committed ( Greuber at 269) . Any element
of attachment or affection for the thing damaged was rigourously excluded .
And this principle was fully recognised by the law of H olland.’
See also Union and National Insurance Co Ltd v Coetzee 1970 (1) SA 295 (A)
where damages were claimed and allowed by reason of impairment of
earning capacity.
It is correctly argued that, in a case of personal injury as a result of a delict,
the Court must calculate, on the on e hand, the present monetary value of all
that the plaintiff would have brought into his estate had he not been injured,
and, on the other hand, the total present monetary value of all that the
plaintiff would be able to bring into his estate whilst incapacitated by his
injury. The monetary value of loss of earning capacity may be proved in a
variety of ways, depending o n the facts of each case. ”
[65] Whilst it is so that, when assessing damages for loss of earning s or
support, it is usual for a deduction to be made for general
contingencies, for which no explicit allowance has been made in
contingencies, for which no explicit allowance has been made in
actuarial calculations , it is also so that the deduction is within the
prerogative of the Court . General contingencies cover a wide range of
considerations which may vary from case to case and may include
taxation, early death, saved travel costs, loss of employment,
promotion prospects, divorce etc . There are simply no fixed rules as
regards general contingencies . A sliding scale of ½% per year to
retirement age , i.e. 25% for a child; 20% for a youth and 10% for the
middle-aged has been suggested .
[66] According to the actuarial report in casu , the figures were calculated
as at 1 April 2023 . Furthermore, the report states that “if figures are
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 28
required more than twelve months after this date of calculation, a new
calculation is recommended . For shorter time periods, allowance for
inflation may be considered.” Accordingly, it had to be factored in that
the figures in question were required more than 12 months after the
date of calculation and that a new calculation was recommended . An
allowance for inflation also had to be considered . In this regard, actual
or assumed earnings are usually projected using earnings -inflation
assumptions, as well as any other information deemed reasonable
having regard to the facts and relevant expert opinion .
[67] The evidence before this Court indicates that , in January 2023, the
plaintiff’s basic salary was R16 843 per month . The actuarial report
further records an employer provident -fund contribution equal to 5.3%
of basic salary, an employee provident -fund contribution equal to 4.3%
of basic salary, additional taxable earnings calculated at 48.64% of
basic salary, and an employer medical -aid contribution of R320 per
month.
[68] It is trite that the opinion of an expert witness does not usurp the
function of the Court . It bears emphasis that, where the method of
actuarial computation is adopted, it does not mean that the trial Judge
is “tied down by inexorable actuarial calculations” . He has “a large
discretion to award what he considers right” . One of the elements in
exercising that discretion is the making of a discount for
“contingencies” or the “vicissitudes of life” . The amount of any
discount may vary, depending upon the circumstances of the case .
The rate of the discount cannot, of course, be assessed on any logical
basis: the assessment must be largely arbitrary and must depend
upon the trial Judge’s impression of the case . It has been said that
such “inexorable actuarial calculations leave no room within their
such “inexorable actuarial calculations leave no room within their
framework for the subtle variety of equitable considerations”. 13 The
Supreme Court of Appeal has likewise emphasised that an actuarial
13 RJ Koch Damages for lost income (1984) at 57
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 29
computation is a useful basis for assisting the Court in establishing the
quantum of loss of earning capacity, but that the trial Court retains a
wide discretion to award what it considers just.
[69] It bears emphasis that provision for contingencies is a matter falling
within the discretion of the trial Court and that the amount allowed for
contingencies is variable and closely related to the facts and
circumstances of each case . Thus, allowing for contingencies is one
of the elements in exercising the discretion to award damages. 14 It is
so that although contingencies are generally taken into account when
awards of damages are quantified, this is not always done. 15
Furthermore, contingencies may be positive or negative; not all
contingencies are negative or necessarily involve a reduction of the
award. In Minister of Defence and Another v Jackson 16, the Court
observed:
”The contingencies to which regard is to be had in the making of a discount
include such matters as the possibility of an error in the estimation of the
plaintiff's life expectancy and retirement age; the likelihood of illness,
accident or unemployment which would have occurred in any event, or which
may in fact occur, and so affect the plaintiff's earning capacity; and the
inflation or depreciation of money in the future . Naturally the amount of any
discount depends on the facts of each particular case . There is no standard
rule. The assessment is largely arbitrary.
It is, however, wrong to view the fortunes of life as being always adverse;
they may be favourable . This point was well made by Windeyer J in Bresatz v
Przibilla (1962) 108 CLR 541 (a decision of the High Court of Australia) .
He said at 543 -544:
‘It is a mistake to suppose that it necessarily involves a ‘scaling down’ . What
it involves depends, not on arithmetic, but on considering what the future
it involves depends, not on arithmetic, but on considering what the future
might have held for the part icular individual concerned . He might have
fallen sick from time to time, been away from work and unpaid . He might
have become unemployed and unable to get work . He might have been
injured in circumstances in which he would receive no compensation from
any source . He might have met an untimely death . Allowance must be made
14 Road Accident Fund v Reynolds (A5023/04) [2005] ZAGPHC 19 (18 February 2005) , para 5 (and
the authorities therein cited)
15 Ibid para 7
16 1991 (4) SA 23 (ZS) at 34F to 35C
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 30
for these ‘contingencies’ or the ‘viscissitudes of life’ as they are glibly called .
But this ought not to be done by ignoring the individual case and making
some arbitrary subtraction . We were told that in South Australia it is a
common practice to subtract 25% ‘for contingencies’ . Indeed counsel for the
appellant, in the calculations he made in support of his claim for higher
damages, conceded that this should be done . But he did not explain why . I
know of no reason for assuming that everyone who is injured and rendered
for a period unable to work would probably in any event have been for a
quarter of that period out of work, or away from work and unpaid . No
statistics were presented to justify this assumption . Moreover, the
generalisation, that there must be a ‘scaling down’ for con tingencies seems
mistaken . All ‘contingencies’ are not adverse; all ‘ vicissitudes ’ are not
harmful. A particular plaintiff might have had prospects or chances of
advancement and increasingly remunerative employment . Why count the
possible buffets and ignore the rewards of fortune? Each case depends upon
its own facts . In some it may seem that the chance of good fortune might
have balanced or e ven outweighed the risk of bad ’.”
[71] In Braun obo Tiripano v Passenger Rail Agency of South Africa 17,
the Court observed:
“The application of the appropriate contingencies to the actuarial
calculation of earnings in this matter emphasises certain principles . The first
is that each case should be det ermined by its peculiar facts . There are
normal deductions that apply to past and future earnings in the uninjured
state for adults . These deductions are 5% for past earnings and 15% for
future earnings . For a younger adult, such as a 25 -year-old with
approximately 40 years until retirement, a 20% deduction would be
appropriate and consistent with a 0.5% annual deduction . Contingency
appropriate and consistent with a 0.5% annual deduction . Contingency
deductions are applied to earnings, not to the loss of earnings . In any given
case, there are usually four deductions that need to be applied, and each
should be considered on its merits . There are instances, such as in casu ,
where a higher -than-normal deduction is warranted for future uninjured
earnings if the facts require it . The contingency deduction thus applied for
future uninjured earnings may be higher than for future injured earnings,
emphasising the need to consider the reasoning behind each calculation .
Regarding injured earnings, no deductions are necessary for past injuries if
they, as is usually the case, reflect actual earnings . There is a tendency to
apply a higher -than-normal deduction to future injured earnings . The facts
of a particular case should determine whether that is appropriate or not . If
the career projection proposed is customised to the Plaintiff’s injured
condition, it will make no sense to apply a higher -than-normal deduction .
Overall, the Court still maintains a discretion in applying or not applying
contingencies .’ (Emphasis supplied)
17 (9777/2018) [2025] ZAWCHC 141; 2025 (9A4) QOD 1 (WC) (26 March 2025) para 45
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 31
[72] Having regard to the principles set out above, the Court must
determine, on the particular facts and circumstances of this case,
whether a contingency deduction is warranted . Although the actuarial
report made no deduction for contingencies, such a deduction is not
an automatic or mandatory consequence of an actuarial calculation . It
remains a matter within the discretion of the Court, which must test the
actuarial result against the general equities of the particular case. 18
Having considered the evidence as a whole, including the plaintiff’s
actual earnings as reflected in the payslips, the assumptions
underlying the actuarial calculation, the plaintiff’s particular
circumstances, and the nature and extent of his diminished earning
capacity, the Court is satisfied that no further deduction for
contingencies is warranted . The actuarially calculated amount of R3
884 100.00 accordingly constitutes a fair and reasonable award in the
circumstances.
ORDER:
[73] It is against this backdrop that the following order issued:
1. The Defendant is liable to compensate the Plaintiff in an
amount of R3 884 100.00 (THREE MILLION EIGHT
HUNDRED AND EIGHTY -FOUR THOUSAND ONE HUNDRED
RAND) for loss of earning capacity.
2. The amount set out in paragraph 1 above shall be paid within
180 (One Hundred and Eighty) calendar days from the date of
this order.
3. The Defendant is liable to pay interest on the above amount at
the prescribed rate from the date of this order to the date of full
and final payment.
18 Hulley v Cox 1923 AD 234 at 244
Mokae v The Road Accident Fund (Case No: 656/22) 2 5 August 2026 Page 32
4. The Defendant is liable for the costs of suit.
5. The Defendant is liable to pay interest on all taxed costs at the
prescribed rate, from the date of allocatur of the Taxing Master
to the date of full and final payment.
____________________ _____
APS NXUMALO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
Appearances :
For the Plaintiff: ADV DC JANKOWITZ
Instructed by: P Joubert Inc.
Kimberley
For the Defendant: MR M MOGANO
Instructed by: Office of the State Attorneys
Kimberley