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[2026] ZAMPMBHC 98
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Chuma v Road Accident Fund (A23/25) [2026] ZAMPMBHC 98 (31 August 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT)
CASE
NUMBER: A23/25
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE
31/08/2026
SIGNATURE
In
the matter between:
CHUMA
PRETTY NONTANDO
APPELLANT
and
ROAD
ACCIDENT FUND
RESPONDENT
Coram:
RATSHIBVUMO AJP, MANGENA
et
GUMEDE AJJ
Heard:
05 June 2026
Delivered
:
This judgment was delivered by uploading to CaseLines on 31
August 2026.
Summary:
Delict — motor vehicle accident —
appeal against dismissal of claim for future loss of earnings —
trial court
finding that appellant retained her pre-accident earning
capacity not supported by the record, and premised on an erroneous
finding
that appellant had obtained a diploma in mechanical
engineering — matter having proceeded on affidavit evidence
admitted
under Rule 38(2), appeal court in as good a position as the
trial court to determine quantum — appeal upheld — normal
contingency deductions of 15% (pre-morbid) and 20% (post-morbid)
applied to the undisputed actuarial calculations.
ORDER
1.
Condonation is granted for the late delivery of the notice of appeal,
and the appeal is reinstated.
2
.
The
appeal is upheld.
3
.
The order
of the court
a quo
is set aside and replaced with the
following:
(a) The defendant is
liable to pay the plaintiff the sum of R3 667 781.70 (three million,
six hundred and sixty-seven thousand,
seven hundred and eighty-one
rand and seventy cents) in respect of her claim for future loss of
earnings.
(b) The defendant shall
pay interest on the aforesaid amount at the applicable prescribed
legal rate, calculated from 180 (one hundred
and eighty) days from
the date of this order to the date of payment.
(c) The defendant shall
pay the plaintiff’s taxed or agreed party and party costs of
suit.
4
.
The respondent shall pay the appellant’s costs of appeal.
On
appeal from:
Mpumalanga Division
of the High Court, Mbombela (Moleleki AJ, sitting as the court of
first instance):
JUDGMENT
GUMEDE
AJ
1.
This is an appeal against the whole of the judgment and order of
Moleleki AJ of this Division (the trial
court) delivered on 02 August
2024, in terms of which the appellant’s claim for future loss
of earnings was dismissed. The
appeal is with the leave of the trial
court.
2.
The appellant also seeks condonation for the late delivery of her
notice of appeal.
CONDONATION
3.
Uniform Rule 49(1)(b) required the appellant to deliver her notice of
appeal within 20 court days of
the order granting leave to appeal.
The notice of appeal was delivered on 1 April 2025, three months out
of time. The appellant
has applied for condonation thereof.
4.
The condonation application is not opposed. The respondent delivered
a notice to abide the decision of
this Court.
5.
It is trite that condonation cannot be had for the mere asking; an
applicant must make out a case entitling
it to the court’s
indulgence by giving a full and reasonable explanation for the
non-compliance.
6.
The relevant factors include the degree of non-compliance,
the
explanation for it, the importance of the case, the respondent’s
interest in the finality of the judgment, the convenience
of the
court, and the avoidance of unnecessary delay in the administration
of justice.
7.
The delay of some three months is not insignificant but is also not
grossly excessive. The appellant
alleges that the delay was caused by
the late obtainability of the trial transcript. The respondent chose
not to oppose the condonation.
8.
The appellant has great prospects of success as will be shown
hereunder. It is indeed in the interests
of justice that
condonation for the late delivery of the notice of appeal be granted.
BACKGROUND
9.
On 30 June 2017 the appellant who was a grade 11 learner, was a
passenger in an insured vehicle when
it was involved in a collision
on the Kamhlushwa Main Road, in the Nkomazi district, Mpumalanga. She
sustained an incomplete left
brachial plexus injury to her left
shoulder and upper limb.
10.
The respondent had conceded 100% liability, general damages, and
tendered an undertaking in terms of section 17(4)(a) of the
Road
Accident Fund Act. The only issue that remained for determination by
the trial court was the appellant’s claim for future
loss of
earnings.
11.
The trial proceeded on the basis of Rule 38(2) for the admission into
evidence, by way of affidavits, incorporating the expert
reports of
the appellant. The respondent delivered no expert reports of its own
but made submissions based on the appellant’s.
12.
The undisputed expert evidence established that the appellant’s
left shoulder and upper limb function had been compromised.
The limb
is described as useless, and it is said that occupations requiring
the lifting of heavy weights would aggravate her symptoms
and
preclude her from competing fairly for work in the open labour
market.
13.
The occupational therapist found that the appellant’s left-hand
grip strength and gross motor coordination fell below
average, and
that, although she is right-hand dominant, she was suited only to
work of a sedentary nature. The educational psychologist
recorded
that the appellant’s cognitive functioning, verbal
comprehension and working memory indices fell within the
below-average
range, and that the accident had left her cognitively,
physically, academically and psychologically compromised, such that
she
was unlikely to reach her pre-accident academic and career
potential. The industrial psychologist concluded that the appellant
would in future require a sympathetic employer able to accommodate
her deficiencies, that such employers are difficult to find,
and that
she had suffered a justifiable and quantifiable loss of future
earning capacity which would most probably translate into
a loss of
earnings.
14.
Prior to the accident, the appellant progressed through school
without repeating a grade until she failed grade 12 in 2018,
which
she repeated and passed, with endorsement, in 2019. She thereafter
enrolled at a TVET college for an N4 certificate in mechanical
engineering.
15.
The actuaries calculated no past loss of earnings, the appellant
having still been a scholar at the time of the accident, and
that,
but for the accident her future income would have been R8 331 378.00,
and that on the post-accident scenario her future income
would be R4
267 362.00 before the application of contingencies.
16.
During the trial, the appellant contended for a contingency deduction
of 15% on the pre-morbid (uninjured) scenario, and 20%
on the
post-morbid (injured) scenario. Counsel for the respondent submitted
that higher contingencies should apply, on the basis
that the
appellant was young, had continued to progress through her N4
certificate without difficulty since the accident and could
pursue
forms of employment other than physical mechanical work.
17.
Of importance is that the respondent did not contend that the
appellant’s claim should be dismissed in its entirety.
The respondent accepted that the appellant’s injuries would
affect her and confined their argument to the appropriate amount
and
contingencies.
GROUNDS
OF APPEAL
18.
The many grounds of appeal set out in the notice of appeal may be
grouped under four heads - first, that the trial court erred
in
finding and/or in reasoning that the appellant had obtained a diploma
in Mechanical Engineering, when she had only obtained
N4 certificate;
second, that the trial court erred in finding that the appellant
“retains her pre-accident work capacity”
because she
intends to study further, instead of assessing her proven, current
functional restriction; third, that the trial court
erred in
rejecting the reports of the industrial and educational psychologists
as unreliable and as not “borne by the facts”,
including
the finding that the industrial psychologist’s report was
premised solely on the educational psychologist’s
findings and
failed to take into account, among other things, the orthopaedic
surgeon’s description of the appellant’s
left hand as
“useless”; and fourth, that the trial court erred in
concluding that no logical evidence had been led
to establish any
future loss, and in dismissing the appellant’s claim for loss
of earnings, loss of earning capacity or employability
in its
entirety.
THE
APPROACH ON APPEAL
19.
Where a trial court’s findings of fact depend on its impression
of witnesses observed giving oral evidence, an appeal
court will be
slow to interfere absent demonstrable and material error.
20.
This matter was, however, argued in its entirety on documentary
expert reports admitted under Rule 38(2), without any oral evidence
and without any credibility findings. As such, this appeal court is
in as good a position as the trial court to draw its own inferences
and to correct conclusions which it is satisfied are wrong.
21.
The trial court correctly identified that the value of an expert’s
opinion depends upon the soundness of the facts and
reasoning
underlying it, and that a court may decline to accept an expert
opinion which is not logically supported, or which proceeds
from
incorrect or incomplete facts. The difficulty is not with the
principle the trial court sought to apply, but in its
application of
the principle to the facts of this case.
DISCUSSION
22.
As stated above, the undisputed evidence is that the appellant
sustained a material injury to her left upper limb, and that
her
left-hand grip strength and coordination are below average. She
is suited only to sedentary work and will require an
accommodating or
“sympathetic” employer. In my view, the trial court’s
rejection of this evidence is a misdirection.
23.
There is no
basis for the trial court’s finding that the appellant went
ahead to achieve a diploma in mechanical engineering,
[1]
which is in conflict with the earlier finding that the appellant only
completed N3 and
not
a diploma
[2]
.
This was used to criticise the educational psychologist’s
opinion that the appellant will not reach her pre-accident
potential.
24.
The trial
court concluded that the appellant retains her pre-accident work
capacity, more so that she intends to study further.
[3]
This is another misdirection. An intention to study further is
not evidence that pre-accident earning capacity has
been restored.
25.
This
misdirection was used to justify the trial court’s
conclusion
[4]
,
that no logical evidence was led to establish any future loss.
26.
Further studies, even if pursued and completed, would not change the
fact that the appellant sustained a material injury to
her left upper
limb and that her left-hand grip strength and coordination are below
average. It is undisputed that she is
suited only to sedentary
work.
27.
The appellant’s case was not one of total loss of earning
capacity, but of a loss confined to the reduced range of employment
realistically open to a person restricted to sedentary work. The
respondent did not dispute this and in fact the respondent itself
proposed a monetary award, albeit lower than that proposed by the
appellant.
28.
It follows that the appeal must succeed, and that the order of the
court a quo dismissing the appellant’s claim for future
loss of
earnings falls to be set aside.
QUANTUM
29.
The question then arises whether this court should assess damages on
the existing record or to remit the matter for redetermination.
30.
In my view, remittal of the matter would cause further delay not to
mention the unnecessary legal costs. With the matter
having
proceeded in terms of Rule 38 and the trial transcript at hand, this
court is in as good a position as the trial court to
determine an
appropriate award.
31.
The appellant contended for the normal contingency of 15% on the
pre-morbid scenario and 20% on the post-morbid scenario, reflecting
the appellant’s continuing but reduced earning capacity.
32.
The respondent made some dangerous submissions, such as
“
At the time of
the accident the plaintiff was 18 years old and she was still young.
And I mean it is proper to assume that a young
person is likely to
recover where injured at a young age, the bone marrows are still soft
they can recover and be able to work,
even though they cannot be a
mechanical engineer, they can do something else. - ………I
have done some research
of salary of a junior of entry level
mechanical engineer from colleges. It ranges at R10 000,00 to R15
000,00 per month. There
are lots of other jobs who offer that kind of
salary which the plaintiff can do. - …. the plaintiff wants to
go there when
she knows that she is injured and she somehow
incapacitated and compensated for, why would she now choose the roles
that she cannot
do
”
[sic]
33.
Not only is Counsel for the respondent not qualified to make such
submissions regarding the recovery of the appellant, her further
submissions, infringe on the appellant’s freedom of trade,
occupation and profession, guaranteed in section 22 of the Bill
of
Rights.
34.
Counsel then went on to say:
“
the pre-morbid
earnings are at nil, and the future loss of earnings are at 8 -
R8 331 378,00 less 20 percent of contingency,
that gives us R6
665 102,40. And the future loss of earnings R8 331 378,00 less the
contingency of 35 percent, and that gives us
a total of loss of
earnings of 1 - R1 249 706,70
”
[sic]
35.
Even if I was persuaded by the suggested contingency deductions rate,
the resultant calculation is erroneous.
36.
The respondent did not point out any sound reason which justifies a
deviation from the normal contingencies. As such,
the normal
contingencies shall apply.
37.
The undisputed actuarial calculations record a pre-morbid (uninjured)
future income of R8 331 378.00, and a post-morbid (injured)
future
income of R4 267 362.00 before contingencies.
38.
The award is calculated as follows - pre-morbid future income
is R8 331 378.00, less a contingency deduction of 15% (R1
249 706.70)
totals an amount of R7 081 671.30. The post-morbid future
income is R4 267 362.00, less a contingency deduction
of 20% (R853
472.40) with a total of R3 413 889.60.
39.
The appellant’s net future loss of earnings is therefore R7 081
671.30 (premorbid after contingency deductions) less R3
413 889.60
(post morbid after contingency deductions) which equals R3 667 781.70
COSTS
40.
The appellant has succeeded in establishing that the trial court’s
dismissal of her claim cannot stand. She is entitled
to her costs in
the trial court and on appeal.
ORDER
41.
For reasons above, I would make the following order:
1.
Condonation is granted for the late delivery of the notice of appeal,
and the appeal is reinstated.
2
.
The
appeal is upheld.
3
.
The order
of the court
a quo
is set aside and replaced with the
following:
(a) The defendant is
liable to pay the plaintiff the sum of R3 667 781.70 (three million,
six hundred and sixty-seven thousand,
seven hundred and eighty-one
rand and seventy cents) in respect of her claim for future loss of
earnings.
(b) The defendant shall
pay interest on the aforesaid amount at the applicable prescribed
legal rate, calculated from 180 (one hundred
and eighty) days from
the date of this order to the date of payment.
(c) The defendant shall
pay the plaintiff’s taxed or agreed party and party costs of
suit.
4
.
The
respondent shall pay the appellant’s costs of appeal.
Zodwa
Gumede
Acting Judge of the High
Court
I
agree
MI MANGENA
Acting Judge of the High
Court
I agree, and it is so
ordered
TV RATSHIBVUMO
Acting Judge President
APPEARANCES
For the
Appellant
Adv M Sibuyi
Instructed by
Ramarumo LP Attorneys,
Mbombela
For the
Respondent
No appearance
[1]
Judgment, para 23
[2]
Ibid, para 21
[3]
Ibid, para 22 and 24
[4]
Judgment, para 30