REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
CASE NO: 3633/2021
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE SIGNATUR E
In the matter between : -
DALMIRA ALBINO MACANZE PLAINTIFF
and
THE ROAD ACCIDENT FUND DEFENDANT
This judgment was handed down electronically by circulation to the parties' representatives
by email. The date and time for the hand-down of the judgment is deemed to be 9 September
2026 at 11 h30
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JUDGMENT
MONENE AJ
Introduction
[1] The plaintiff, a pedestrian at the time of a motor vehicle accident
which occurred on 17 May 2019 instituted these action proceedings,
the Road Accident Fund in terms of the Road Accident Fund Act 56
of 1996.
[2] At issue before this court are general damages, loss of earnings and
future medical expenses. This in the backdrop of liability having
already been settled at 80/20 percent in the plaintiff’s favour.
[3] With defendant, as it is now custom, having filed no expert reports,
the parties agreed that the plaintiff’s expert reports be admitted into
evidence under cover of Uniform Rule 38(2). The applicant’s
application in that regard was thus granted by the court.
[4] From submissions mad e before this court and heads of argument
subsequently filed, the margin of difference as to what the parties
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contend ought to be awarded as damages in total is a narrow amount
of R494 321,48. The plaintiff prays for the actuary computed total
loss of R1 627 901.85 less 20 percent apportionment amounting to
R1 302 321.48, whilst the defendant prays for a post apportionment
amount of R808 000.00 comprising R300 000.00 general damages
and R 508 000.00 loss of earnings.
The evidence relied upon for determination of the issues and in
particular loss of earnings
[5] The following expert witnesses’ reports formed the basis of the
parties’ divergent takes on the damages to be quantified in the
plaintiff’s favour:
5.1. Dr. L Oelofse, an Orthopaedic Surgeon.
5.2. Dr. G Irsigler, a plastic and reconstruction Surgeon
5.3. Ms. L Taylor, an Occupational Therapist.
5.4. Ms. M Rautenbach, an Industrial Psychologist.
5.5. Mr. J Potgieter, an Actuarial Scientist.
[6] In sum the evidence germane to the dispute as gleaned from the
experts’ reports is the following:
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6.1. The Orthopaedic Surgeon diagnosed a left femur fracture with
unsightly scaring which post internal screw fixation led to mild
loss of range of motion on the left knee of the, at the time of
the accident, 22-year-old plaintiff. It was further determined by
this expert that the plaintiff suffers from discomfort and residual
pain and would need future medical treatment inclusive of the
removal of the internal fixation. This expert who qualified the
plaintiff’s injury as serious computed the plaintiff’s Whole
Person Impairment at 11%.
6.2. The nub of the Plastic and Reconstruction Surgeon’s evidence
was that the unsightly scaring of the plaintiff would need
surgical reconstruction which, however, could improve them to
no more than 30 percent.
6.3. The Occupational Therapist’s evidence was to the effect that
because of the accident the plaintiff was only capable of doing
light work and could no longer perform the heavy and medium
category work she did pre accident as she battled to crouch
and walk and stand properly.
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6.4. The Industrial Psychologist opined that the accident had left
the plaintiff with manifestly reduced work capacity, impaired
enjoyment of amenities of life and made him a disadvantaged
worker in the open labour market.
6.5. Noting that the plaintiff had, as an unskilled, semi -educated
person, earned about R2000.00 per month as a packer at a
store, the Industrial Psychologist opined that but for the
accident the very young plaintiff would have continued to grow
in her line of work with intermittent periods of unemployment
up to reaching a ceiling income of about R71 900.00 in around
2019 maintainable until retirement at age 65. Given the
accident and its sequelae, this expert’s postulation was that the
plaintiff would now only reach an annual earnings ceiling of
R40 300.00 at age 50. Referencing the obvious possible
pitfalls in someone severely incapacitated and growing older
while unskilled, the expert recommended a higher post morbid
contingency in the computation of loss of earnings.
6.6. In the backdrop of all the above reports the actuary computed
a pre-contingencies total loss of income of R1 022 461.00.
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[7] Proposing 5% contingencies to be applied to the past pre -accident
income, 20% to the premorbid future income and 30% deduction to
the post morbid future income, plaintiff’s counsel prayed for a past
loss of income of R257 095,85 and a future loss of income of
R670 806,00 all totaling R927 901,85.
[8] The defendant’s counsel made a counter -submission that loss of
earnings be computed at R508 203.20 arriving thereat by a net past
loss of R 216 454 and a net future loss of R418 800,10 having
already factored in the 20 percent apportionment.
[9] This court remains persuaded that the proper approach to
assessment of loss of earnings can be put no better than it was
stated in Southern Insurance Association v Bailie v NO 1984(1)
SA 98(A) at 112E-114F where the following was said:
“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, augururs or oracles. All that
the court can do is to make an estimate, which is often a very rough
estimate, of the 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
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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 upon the soundness o f 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, the first approach does not offer any advantage
over the second. On the contrary, while the result of an 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” as to what is fair
and reasonable is nothing more than a blind guess.”
[10] Without the benefit of counsel from prophets and oracles, this court
will, being lay in matters on which industrial psychologists and
actuaries are experts, always prefer an informed guess of experts
over a blind guess, that is, unless the informed guess is misinformed.
That reliance is, this courts again emphasizes, even more apt where
the informed expert determinations stand, as in casu, uncontested
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by evidence of a similar standing, it being so that the defendant did
not lead any expert evidence to counter that of the plaintiff.
[11] I find the defendant’s loss of earnings submissions to be
unsupported by any expert evidence before me and thus
unmeritorious. In my view, it is unavailable for the defendant, a social
security agent, to miserly thumb suck loss of earning amounts when
it had failed to place any evidence before the court not just on
quantum but on merits too. Absent any defects in the expert evidence
placed before me by the plaintiff, I have no reason not to defer
thereto.
General damages
[12] In nudging this court towards awarding general damages in the
amount of R700 000.00, the plaintiff referenced, inter alia , the
following decisions as comparative pointers:
12.1. Solomon and Another v De Waal 1972 (1) SA 575 (A) where
a 29-year-old with a leg disfigurement and consequential loss
of amenities of life and depression was awarded the
equivalent of R711 000.00 in this year’s terms.
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12.2. Mashigo v Road Accident Fund (2120/2014) [2018]
ZAGPPHC (13 June 2018”) where soft tissue knee injuries
and arm and breast burn wounds attracted an amount
computable as R571 00. 00 in this year’s monetary values.
12.3. Mills v RAF 2010 6 QOD F2-1(KZD) where a hip fracture and
an arm scarring resulted in amount equivalent to R765 000.00
in current day terms.
12.4. Marunga v RAF 2003(5) QOD E3 -1(SCA) where
R647 000.00 in current terms was awarded as general
damages for a left femur fracture.
[13] The defendant referred this court, inter alia, to Mullinex v Bendix
1954 C &B 529(“Mullinex”) where rib and humerus fractured
resulted in an award of R3000.00 translating to R380 000 in 2026
terms.
[14] The defendant , in arguing for general damages in the amount of
R300 000.00, further referred this court to Damba v AA Mutual
Insurance Association Ltd 1967(1EB) QOD 780(E) (“Damba”)
where general damages of R8000.00 translating to about R800
000.00 in current terms were awarded a dual femur fracture.
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[15] I understand the references to the above-mentioned authority to be
understood by both counsel to be mere guiding instruments to this
court in its determination of a proper award for general damages.
They, in no way, restrict or bind me as no case can be a carbon copy
of another.
[16] It is to me self -evident that the injuries suffered in casu are by no
means as serious as the ones referenced by the plaintiff above. Yet
the injuries in the authorities relied upon by the plaintiff struggled to
reach the R700 000.00 mark proposed by the plaintiff.
[17] Similarly, the injuries in the Mullinex matter relied upon by the
defendant were, in my view , more serious than the injuries in casu.
Yet the award given therein was eighty thousand above what is
proposed by the defendant and about half of the plaintiff’s
proposition. The Damba matter, however, puts the amount far more
than the defendant’s conservative proposition and even above that
of the plaintiff.
[18] Accordingly, while I am indeed somewhat guided by the previous
awards referenced by both parties, I am not per se guided directly in
either’s favour. I would, therefore, propose a mean between the two
propositions by the parties as a more just award in the
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circumstances. That mean, in my view, fits in with what I consider to
be a fair award regard being had to the injuries testified to by the
Orthopaedic surgeon as alluded to above and the stated sequelae
thereof. That mean, a median between R700 000.00 and
R300 000.00 is R500 000.00.
[19] In all the above premises the plaintiff’s total loss of earnings as
determined supra by this court amounts to R 927 901,85 whilst the
general damages amount to R 500 000.00. All these computes to R
1 427 901,85 from which twenty percent apportionment is subtracted
to leave a difference of R 1 142 321,48.
Future medical needs
[20] Dr Oelofse’s evidence that the plaintiff will need future medical
treatment inclusive of the removal of internal fixation has not been
gainsaid. The need for an order protecting the plaintiff ’s future
medical needs is thus clear on the facts and the point needs no
belaboring.
Costs
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[21] On the facts in casu and the law, there clearly is no reason why the
successfully party, the plaintiff, should not be awarded costs. Equally
the plaintiff’s prayer for scale B is, in my view, not misplaced.
Order
[22] Resultantly, I order as follows:
22.1. The defendant is to pay 80 percent of the plaintiff’s proven
damages which is the amount mentioned in 22.2 infra.
22.2. The defendant is ordered to pay to the plaintiff an amount of
R1 142 321.48 (One Million One Hundred and Fourty -Two
Thousand, Three Hundred and Twenty-One Rands,
Fourty-Eight Cents) comprising both general damages and
loss of earnings within 180 days of the date of this order.
22.3. Payment of interest on the above capital amount shall begin to
run at the prescribed rate from the date of expiry of the period
in order 22.2 above until payment is made.
22.4. The defendant is ordered to, within 14 days of becoming aware
of this order, furnish the plaintiff with an undertaking certificate
in terms of section 17(4 )(a) of the Road Accident Fund Act 56
of 1996 pursuant to ameliorating all future medical expenses
to be encountered by the plaintiff in respect of this matter.
22.5. The defendant shall pay the plaintiff's costs inclusive the costs
of counsel on scale B.
Malose Monene
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
(MAIN SEAT)
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APPEARANCES
Heard on : 11 May 2026
Judgment delivered on : 09 September 2026
For the Plaintiff : Adv M S Janse van Rensburg
: Instructed by: SDJ Inc
Tel: 013 004 0564
Email: evanheerden@sdjinc.co.za
For the Defendant : Adv. S Mohlaka
: Instructed by: State Attorney, Mbombela
: Tel: 013 101 3722
Email: TebogoM1@raf.co.za