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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG

 

CASE NO: 737/2025

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES:

(3)      REVISED:

SIGNATURE:

DATE: 21/05/2025

In the matter between:

 

NXUMALO TEMBA BRYN                                                                    PLAINTIFF

 

and

 

ROAD ACCIDENT FUND                                                                   DEFENDANT

 

This judgement was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand down is considered to 21 MAY 2025 at 12H00

 

 

JUDGMENT

 

Malangeni AJ

Introduction

 

[1]      In these proceedings, no oral evidence was adduced by any of the parties. It was agreed that evidence should be tendered in terms of rule 38(2) of the Uniform Rules of Court. It was further agreed that merits and quantum should not be separated.

 

Background

 

[2]      The Plaintiff has instituted a claim for damages against the Defendant arising from a motor vehicle accident involving a vehicle that was driven by the plaintiff. Paragraph 5 of the Plaintiff’s particulars of claims read as follows; on or about the 10^th day of September 2022, at or near Magagula street, Middleburg trust, Mpumalanga Province, a motor vehicle accident occurred between a motor vehicle with registration letters and numbers J[...] (hereinafter referred to as the insured motor vehicle) which was driven by the Plaintiff (hereinafter referred to as the insured driver) and another motor vehicle which registration letters and numbers are unknown (hereinafter referred to as the unknown insured motor vehicle) which was driven at the time by an unknown driver (hereinafter referred to as the unknown insured driver)

 

[3]      Paragraph 7 of the particulars of claim state as follows; the unknown insured driver of the unknown insured motor vehicle was the sole cause of the accident and was negligent in his or her driving of the unknown insured motor vehicle; and he or she was negligent in one or more of the following respects:

3.1     He/she failed to keep a proper lookout and caused an accident; and/or

3.2     He/she failed to maintain proper control of the insured motor vehicle and caused an accident; and/or

3.3     He/she failed to pay due regard to the rights of other road users particularly those of the Plaintiff and caused an accident; and/or

3.4     He/she failed to exercise great care and caution when it was reasonably required of him to do so and caused an accident.

 

[4]      In paragraph 9, the Plaintiff avers that the impact of the aforesaid collision was severe and because of which, the Plaintiff sustained the following injuries

4.1     Right closed acetabulum fracture.

4.2     Right acromion fracture.

4.3     Right humerus fracture.

4.4     Left ankle Pilon fracture; and

4.5     Head injury resulting in permanent brain damage.

 

[5]      In paragraph 10, the Plaintiff further avers that because of the injuries sustained, he now experiences the following difficulties:

5.1     Reduced mobility.

5.2     General bodily pains and discomfort.

5.3     Cognitive fallout.

 

[6]      In paragraph 12, the Plaintiff alleges that because of the aforementioned injuries and the sequelae, he suffered the following.

6.1     Past medical expenses in the amount of R3 000 000.00.

6.2     Future medical expenses – the Plaintiff claims the undertaking certificate in terms of section 17(4) of the Road Accident Fund Act 56 of 1996 (“the Act”).

6.3     Estimated past loss of earnings of R6 000 000.00.

6.4     General damages for pain and suffering, loss of enjoyment of amenities of life disablement and disfigurement R7 000 000.00.

 

[7]      In paragraph 6 of its plea, the Defendant (answering to paragraph 7 of the Plaintiff’s particulars of claim), stated that the allegations contained in this paragraph are denied as if specifically traversed and the Plaintiff is put to the proof thereof. The Defendant pleads that the sole cause of the collision was the negligence of the said Nxumalo Themba Bryn who was negligent in that:

7.1     He failed to keep a proper look out.

7.2     He failed to keep the vehicle he was driving under proper control or effective control.

7.3     He drove at an excessive speed in the circumstances.

7.4     He failed to apply the brakes of his vehicle timeously, either adequately, or at all.

7.5     He failed to take any or adequate steps to avoid the accident by the exercise of reasonable care and diligence.

 

Evidence

 

[8]      From the affidavit in terms of section 19(f) of the Act, the Plaintiff states as follows in terms of how the accident happened: the unknown insured motor vehicle was the sole cause of the following grounds:

4.1     He/she tried to overtake another motor vehicle in an area where and when it was not safe for him or her to do so.

4.2     He/she drove the unknown insured motor vehicle at an excessive speed in the circumstances.

4.3     He/she drove the unknown insured motor vehicle into an incorrect lane and caused an accident; and/or.

4.4     He/she drove the insured motor vehicle with his/her vehicle on bright.

 

Traffic-legal reports by Mr Darrel Strydom – crash analyst and reconstruction expert

 

[9]      The following is the traffic-legal report by Mr Darrel Strydom. Mr Strydom is the crash analyst and reconstruction expert. From his report, he was instructed by P.N. Hlatshwayo Incorporated to provide a traffic-legal report in respect of a motor vehicle collusion incident involving two vehicles, namely, the VW golf-vehicle A and the unknown insured vehicle. The purpose of the analysis was to provide an expert opinion on the circumstances surrounding the collision, including the sequence of events, point and area of impact, cause, and the potential for avoidance.

 

[10]    Mr Nxumalo avers that another vehicle, i.e the insured vehicle, approached his vehicle, the VW golf- vehicle A, from the opposite direction and was driven towards and into his lane. This assertion by Mr Nxumalo provides a plausible and reasonable explanation for why he allegedly accelerated and swerved away from the approaching insured vehicle; namely to avoid a collision with the insured vehicle. There appears to be no other witnesses who observed the collision incident occurring; and the reason therefore, apart from Mr Nxumalo himself.

 

[11]     Mr Strydom’s considered opinion is that there is no evidence to suggest that Mr Nxumalo applied brakes at any time from the moment that he swerved his vehicle away from the insured vehicle, in order to avoid a collision with it, to the moment of impact with the first tree on the median (island). It is also his considered opinion that the circumstances of this case do not provide any basis on which one can calculate a speed travelled by the VW Golf-vehicle A immediately prior to it colliding with the 90-degree curb stone at the start of the median (Island). He therefore refutes the suggestion that the VW Golf-vehicle A was travelling at a speed of 109 km/h immediately prior to first colliding with the median (island).

 

[12]    If Mr Nxumalo were to be given the benefit of the doubt and his version accepted. Mr Strydom expresses the following opinion, namely: if the insured vehicle was driven in its lane in a south bound direction, then it would not have been necessary for Mr Nxumalo to accelerate and swerve to the left in a bid to try to avoid a collision incident, and the collision would probably not have occurred.

 

[13]    Finally, Mr Strydom reiterates that the situation with which Mr Nxumalo appears to have been confronted was undesirable, dangerous and a potentially life-threatening situation. It is his respectful opinion that his action(s) or lack thereof in confronting a situation akin to a sudden emergency and the events which ensued ought not to be subjected to any form of “armchair-styled criticism”.

 

Dr S P Maelane – Orthopaedic surgeon

 

[14]    Dr S P Maelane – Orthopaedic surgeon, states that the claimant is 45 years old. He is employed as a Deputy Director-Property Acquisition and Disposal at the Department of Public Works and Transport in Mpumalanga. According to the claimant and hospital records, he sustained the following injuries:

14.1    Left tibial plafond fracture.

14.2    Right humerus fracture.

14.3    Right acromion fracture.

14.4    Pelvic fractures.

14.5    Injured right eye with eyelid laceration.

14.6    Forehead laceration.

 

[15]    Dr Maelane opined that the claimant’s pain can be managed with pain medication and physiotherapy. He will require further orthopaedic surgery intervention. He recommended that the claimant be referred to an Industrial Psychologist and Occupational Therapist.

 

Dr W G Nkabinde – Neurosurgeon

 

[16]    Dr W G Nkabinde – Neurosurgeon, recorded the following as current challenges facing the claimant:

16.1    Headaches.

16.2    Blurring of vision.

16.3    Forgetfulness.

16.4    Poor concentration.

16.5    Irritability with anger outburst.

16.6    Feeling depressed.

16.7    Social isolation.

16.8    Flashback and panic attacks.

16.9    Low self-esteem due to altered body image.

16.10  Inability to access certain work sites due to poor balance and reduced range of movement of the left ankle.

16.11    Inability to play soccer/go to the gym or jog.

 

[17]    Dr Nkabinde recommends that he be assessed by an Occupational Therapist and an Industrial Psychologist to assess the impact of the accident on his occupational functioning. And that a comment should be sought from an Orthopaedic Surgeon regarding the multiple fractures and mobility challenges.

 

Mr M Mhlanga – Clinical Psychologist

 

[18]    Mr M Mhlanga – Clinical Psychologist, recorded the following symptoms of Mr Nxumalo: he experiences headaches; dizziness; bladder problems; physical pain; and visual difficulties. This has been negatively affecting his functional social and occupational function, causing him to feel inadequate; such conditions trigger frustrations and feelings of inadequacy.

 

[19]    Mr Mhlanga opined that Mr Nxumalo is currently showing emotional as well as neurocognitive impairments of being affected by the accident in question. He recommends long-term psychotherapy and supportive counselling. However, psychological intervention may serve to ameliorate psychological adjustment difficulties, but should not be considered curative in terms of the accident. Mr Nxumalo’s family will also need counselling to adjust to his condition. It is estimated that the total number of sessions required is 50. At R1 200.00 per session, the estimated total costs will be R60 000.00.

 

[20]    He recommends referral to a clinical psychologist to determine the best form of psychotherapy aimed at assisting Mr Nxumalo to cope with his chronic pain and manage the trauma resulting from the accident. He further recommends that Mr Nxumalo be entitled to a consultation with a psychiatrist to establish appropriate pharmacy-therapeutic treatment for his post-traumatic stress disorder (PTSD) and depression. On his functional capacity, he needs to be assessed by an occupational therapist.

 

Mr S G Mashaba – Occupational Therapist

 

[21]    Mr S G Mashaba, the Occupational Therapist, categorised his assessment into two stages, namely, pre-injury status and post-injury vocational status. Pre-injury status: Mr Nxumalo stated that when his accident happened, he worked for Mpumalanga Provincial Office as a Deputy Director for property acquisition and disposal. He started this job in 2014, his duties involved performing Office Administrative Duties, as well as building inspection. He describes this job to involve driving to various building sites to perform inspections, which involves prolonged standing, walking and climbing steps. This occupation appears to be sedentary to light with frequent medium demands (driving) in terms of its physical demands. Excellent physical endurance and general fitness are essential requirements to allow him to stand and walk around whilst doing his tasks. This job is performed both indoors and outdoors where he is sometimes exposed to heat and cold, this job also requires him to drive a vehicle. Mr Nxumalo reports that before this accident he had no difficulties performing this job.

 

[22]    Post-injury vocational status: after this accident, Mr Nxumalo reports that he resumed his work after 3 months. However, he is no longer able to perform certain functions such as building inspections due to his mobility limitations. He also reports that he now works virtually at home. In view of his physical ability, Mr Mashaba opines that Mr Nxumalo will not be able to efficiently perform his work duties as a deputy director. He further opines that although after this accident, he was accommodated to only perform sedentary work and that he now mostly works virtually at home, he will still experience significant difficulties in performing his duties. His current duties (sedentary/light duties) involve prolonged sitting, which will exacerbate his residual physical symptoms.

 

[23]    His current duties also involve writing and working on the computer, which will increase his experience of pain on the right shoulder and arm. His work abilities have been significantly reduced because of the accident. He will not be able to compete equally with his uninjured counterparts. Mr Nxumalo presents with poor memory, poor concentration, depressive symptoms and behavioural problems (irritability and social withdrawal). Considering the head injury report, he will experience difficulties efficiently performing any occupation that involves application of high cognitive functioning i.e. due to depressive symptoms he is likely to have difficulties concentrating on his tasks.

 

[24]    Mr Mashaba further opines that even with further medical management and rehabilitation, his functional limitations are not expected to improve to a point where he will regain his post-accident functional abilities. His functional abilities have been reduced on permanent basis because of the injuries he sustained. He is now a vulnerable and unequal competitor in the open labour market. He will incur costs for his future medical care and rehabilitation.

 

Industrial Psychologist: Mrs Bathabile Nkambule

 

[25]    Mrs Bathabile Nkambule, the Industrial Psychologist, was requested to evaluate and express opinion regarding the sequelae of the injuries and the impact of such injuries on the claimant’s earning capacity, both loss of past earnings as well as loss of future earnings. She stated that the claimant’s pre-accident monthly basic salary was R50 111.63 and post-accident monthly earnings are R51 615.00.

 

[26]    In respect of loss of past earnings, it has been recorded that Mr Nxumalo was employed as a Deputy Director. His payslip dated 15 September 2022 shows that he was receiving a monthly basic salary of R50 111.63, the car allowance of R2 285.00 housing allowance of R1 986.86 and an NP Cash allowance of R1 640.00. In terms of post-accident, he was away from his job for 2 months while recuperating from the accident in question. He was paid his salary during the period. Thereafter, he returned to his pre-accident job. His post-accident payslip dated 15 December 2022, stated that he receives a monthly basic salary of R51 615.00, car allowance of R2 285.00, Housing allowance of R1 986.53, NP cash allowance of R1 922.27 and NP cash allowance of R1 640.00. This is an indication that he continues to receive annual increases on his earnings. Therefore, there is no indication for loss of past earnings.

 

[27]    Regarding future loss of earnings, it has been recorded that Mr Nxumalo is currently employed as a Deputy Director. He is reasonably accommodated because he possesses the skills, knowledge, and experience that are required within his region in the public works. If it was not for the accident, he would have most probably been promoted to director, 5 years later. He is not an equal competitor in his occupation compared to his uninjured peers. It is recommended that the relevant contingencies be agreed by the parties involved or determined by the court.

 

Actuary: Mr Namir Weisberg

 

[28]    Mr Namir Weisberg, the Actuary, stated that if the period of past loss of income is 0.96 years specifically the period between the accident date. The period of future loss of income is 1518.91 years, specifically the period between the calculation date of the accident and the date of retirement, an allowance should be made for unforeseen contingencies. The allowance for unforeseen contingencies is based on such factors as errors in the estimation of future salaries, life expectancy and general hazards of life. Further contingency deductions to future illness, savings in relation to travel and risk of future unemployment.

 

[29]    The following contingency have been applied:

 

	But for	Having regard to
A Past loss	5%	5%
Future loss 1	15%	20%
Future loss 2	15%	25%

 

[30]    Mr Weisberg presented the summary of the contingency in the following diagram, with the results outlined as follows:

Scenario 1.1: 5% Contingency spread

Part loss of income		But for the accident		Having regard to the accident
gross accrued value of income		R648, 504		R628 ,675
less contingency (5%/5%)		R32 ,425		R31, 434
total past value of loss of income		R616 ,078		R597, 241		R18, 837
future loss of income		But for the Accident		Having regard to the accident
Gross accrued value of income		R10 959 994		R9 125 664
less contingency (5%/5%)		R1, 643, 999		R1 825 133
total past value of loss of income		R9 315 995		R7 300 531		R2 034 301
total value of loss of income		R9 932 073		R7 897 772		R2 034 301
Scenario 1.2: 10% Contingency spread
Part loss of income		But for the accident		Having regard to the accident
gross accrued value of income		R648 504		R628 675
less contingency (5%/5%)		R32 425		R31 434
total past value of loss of income		R616 078		R597 241		R18 837
future loss of income		But for the Accident		Having regard to the accident
gross accrued value of income		R10 959 994		R9 125 664
less contingency (5%/5%)		R1 643 999		R1 825 133
total past value of loss of income		R9 315 995		R7 300 531		R2 471 747
total value of loss of income		R9 932 073		R7 441 489		R2 490 584

 

[31]    The Plaintiffs’ case was closed, and no evidence of any nature was adduced by the Defendant, therefore, the Defendant’s case was also closed.

 

[32]    Both parties filed written heads of arguments. They also referred this court to various authorities. The parties’ submissions helped this court to make an informed decision. The evidence presented by the experts in paragraph 33 of the Plaintiff’s heads of arguments stated that: “The purpose of an award for general damages is to compensate a Plaintiff for the pain, suffering, discomfort and loss of amenities of life to which he has unfortunately been subjected. The same heads of arguments in paragraph 41 state that  it is therefore postulated that the Plaintiff will not reach his pre-accident potential. He is expected to remain in his current position until retirement age. Therefore, he will have future loss of earnings. He will work until normal retirement age when reasonable accommodated”.

 

[33]    Paragraph 3.2 of the Defendant’s heads of arguments stated that: “the report by the crash analyst and reconstructionist confirmed that the impact occurred outside the tarmac where the Plaintiff collided with the trees thus on the Plaintiff’s wrong side of the lane. This is a clear indication that the Plaintiff was the sole cause of the collision alternatively that he contributed to the occurrence of the collision by his failure to keep his motor vehicle under proper control. The existence of the insured motor vehicle being the one that disturbed the Plaintiff has not been proven thus this version should not be accepted by the above honourable court”.

 

Issues

 

[34]    This court is called upon to determine both the merits and the quantum. The main issue is whether or not the cause of the accident was due to the negligent driving of the unknown insured driver.

 

Onus

 

[35]    It is trite law that the test in a civil case is proof on a balance of probabilities. This means that the Plaintiff must come up with a more probable version than that of the Defendant. In National Employers’ General Insurance Co Ltd v Jagers,[1] Eksteen AJP said the following:

 

“… in any civil case, as in any criminal case, the onus can ordinary only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advance by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff’s case any more than they do the defendant’s, the plaintiff can only succeed if the court nevertheless believes him and is satisfied that his evidence is true and that the defendant’s version is false.”

 

[36]    The only evidence before court is the one provided by the Plaintiff but that does not mean, it is conclusive evidence. In Mc Donald v Young[2] it was held that,

 

“[6] It is settled that uncontradicted evidence is not necessarily acceptable or sufficient to discharge an onus. In Kentz (Pty) Ltd v Power, Cloete J undertook a careful review of relevant cases where this principle was endorsed and applied. The learned judge pointed out that the most succinct statement of the law in this regard is to be found in Siffman v Kriel, where Innes CJ said:

‘It does not follow, because evidence is uncontradicted, that therefore it is true… The story told by the person on whom the onus rests may be so improbable as not to discharge it’.”

 

Discussion

 

[37]    The other issue under consideration is negligence. In dealing with negligence in a collision involving one motor vehicle, the court must draw inferences. In Rondalia Assurance Corporation of SA Ltd v Mtkombeni,[3] Galgut AJA stated that

 

“Negligence can only be attributed by examining the facts of each case. Moreover, one does not draw inferences of negligence on a piecemeal approach. One must consider the totality of the facts and then decide whether the driver has exercised the standard of conduct which the law requires. The standard of care so required is that which a reasonable man would exercise in circumstances and that degree of care will vary according to the circumstances. In all cases the question is whether the driver should reasonably in all the circumstances have foreseen the possibility of a collision.”

 

[38]    The Defendant has a legal obligation to compensate the Plaintiff for bodily injuries arising from the negligent driving by the insured driver. In Grove v Road Accident Fund,[4] it was stated that:

 

“There can be no question of liability if it is not proven that the wrongdoer caused the damage of the person suffering the harm. Whether an act can be identified as a cause, depends on a conclusion drawn from available facts and relevant probabilities. The important question is how one should determine a casual nexus, namely whether one fact follows from another.”

 

[39]    Referring to the circumstances of the case under consideration, the Defendant’s heads of arguments at para 3.3 reads as follows: The legal principles applicable in this scenario are found in HB Klopper, The law of Collisions in South Africa, 7^th edition, page 78 where the author states that:

 

“If there is irrefutable proof of a collision on the incorrect side of the road, such collision constitutes prima facie negligence on the part of the driver who was found to be on his incorrect side of the road at the time of the collision.”

 

[40]    I need to emphasise that each case must be determined on its own merits. It the duty of each motorist on the road to keep a proper lookout with the view of avoiding any accident. In Road Accident Fund v Grobler[5] it was stated that in a sudden emergency, the proper approach is not confining the inquiry into the negligence to the conduct of the driver from the moment they became embroiled in an emergency. The inquiry must extend to cover what steps a driver took to avoid the impending emergency. If a driver had an opportunity to take measure ahead of the emergency to avoid accident, and he failed to do what a reasonable person in similar circumstances would have done, he or she would have been negligent.

 

[41]    A version of how the Plaintiff lost control of the vehicle and ended up hitting a tree and sustaining injuries is contained in the section 19(f) affidavit, and there is no counter evidence by the Defendant. This then means that the Plaintiff is a single witness. It is trite that evidence of a single witness should be treated with caution.

 

[42]    What strengthens the Plaintiff’s case is the evidence by the expert, namely, the crash analyst and reconstructionist. The evidence of this expert is consistent with the evidence of the Plaintiff.

 

[43]    The Plaintiff’s version, in terms of the section 19(f) affidavit and pleadings, is clear, simple and straight forward. From his version, the reason for him to lose control of his motor vehicle was that he was distracted by the other vehicle (unknown vehicle). Therefore, there was a clear link between the actions of another vehicle and the resultant accident. Deducing from his evidence, the distraction caused by the other vehicle was a proximate and direct cause of the accident and the resulting injuries.

 

[44]    The Plaintiff as a driver managed to maintain a proper lookout by avoiding the collision between his vehicle and the other unknown vehicle. With such actions, it cannot be said that he was negligent. The only vehicle that was negligent is the unknown vehicle or to put it differently, the collision was caused by the sole negligence of that unknown driver. The Plaintiff’s version coupled with that of the Crash Analyst negate any defence by the Defendant.

 

[45]    On those reasons, the Defendant is held liable for the actions of the insured vehicle (the unknown Vehicle).

 

[46]    In terms of general damages and loss of earning capacity, the Plaintiff has filed the report by experts. The role of expert evidence was described by Nicholas JA in Southern Insurance Association Ltd v Bailey NO,[6] in the following:

 

“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 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 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. See Hersman v Shapiro & Co 1926 TPD 367 at 379 per Stratford J:

‘Monetary damage having been suffered, it is necessary for the court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the court is little more than an estimate; but even so, if it is certain that pecuniary damage has been suffered, the court is bound to award damages.”

 

[47]    In respect of general damages, the Defendant’s heads of argument (paragraph 4.0) stated that: “the question is whether the Plaintiff is entitled to an award for general damages despite the fact that the road accident fund has not made a selection on seriousness of the Plaintiff’s injuries”.

 

[48]    I agree with the Defendant on this point. Section 17(1A)(a) of the Act, provides that the assessment of the seriousness of an injury shall be premised on a prescribed procedure. Regulation 3 of the Act provides that the third party wishing to claim general damages must be assessed by a medical practitioner who shall complete a serious injury assessment report, commonly known as a RAF 4 form. In terms of regulation 3(3)(c) the RAF is only liable to compensate the third party for general damages in the event that the fund is satisfied that the injury has been correctly assessed as prescribed by the regulations. According to the regulations when the fund is not satisfied that the third party’s injuries were correctly assessed, the fund can reject the RAF 4 form and give reason for its rejection or direct the injured person for a further assessment to establish if the injury qualifies as a serious injury.

 

[49]    Therefore, the issue of general damages cannot be entertained at this stage.

 

Loss of earning capacity

 

[50]    There is no prescribed formula as to how the award for compensation of loss of earning capacity should be made. The court relies on expert witnesses more especially the actuary. In MS v Road Accident Fund,[7] it was stated that

 

“The evaluation of the amount to be awarded for the loss does not involve proof on a balance of probabilities. It is a matter of estimation. Where a court is dealing with damages which are dependent upon uncertain future event – which is generally the case in claims for loss of earning capacity – the plaintiff does not have to provide proof on a balance of probabilities (by contrast with questions of causation) and is entitled to rely on the court’s assessment of how he should be compensated for his loss”

 

[51]    The Industrial Psychologist stated that the Plaintiff’s pre-accident monthly basic salary was R50 111.63, and post-accident earnings are R51 615.00. In terms of future loss of earnings, she reported that Mr Nxumalo is currently employed as a deputy Director. He is reasonably accommodated because he possesses skills, knowledge and experience that are required within his region in the public works. If it was not for the accident, he would have most probably been promoted to Directorship. He is not an equal competitor in his occupation compared to his uninjured peers. It is recommended that the relevant contingencies be agreed by the parties involved or determined by court. The view by the Industrial Psychologist is clear that Plaintiff is not on equal footing with his uninjured colleagues as he is not promotable. It is expected of an employee to progress in a workplace through getting promotion.

 

[52]    The actuary has opined in terms of the diagrams reflected above.

 

[53]    The Defendant, in paragraph 5.7 of its heads of arguments, stated that the expert failed to state the postulated level of earning, in line with the current situation.

 

[54]    In these proceedings, there are no experts from the Defendant, therefore I find no reasons to fault the Plaintiff’s experts. It is on such basis that I follow that actuarial report.

 

Order

 

[55]    In the result, I issue the following order:

1        The Defendant must make a payment to the Plaintiff in the amount of R9 932 073 for loss of earning capacity.

2        The amount mentioned above shall be payable within 180 (One hundred and eighty) days from the date of this order. In the event the said amount is not paid within the 180 days, the Defendant shall be liable for the payment of interests on such amount, calculated from the date of the default to the date of payment.

3        The Defendant is ordered to furnish the Plaintiff with an undertaking in terms of section 17(4) of the Road Accident Fund Act 56 of 1996.

4        The issue of general damages is postponed sine die.

5        The Defendant is ordered to pay the Plaintiff’s taxed or agreed party and party costs on High Court Scale

 

 

 

M MALANGENI

ACTING JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION, MIDDELBURG

 

 

Appearances

For Plaintiff:	Adv Mahlalela
Instructed by:	C/O Makwakwa inc Attorneys
For Defendant:	Mr Mhlanga
Instructed by:	State Attorneys
Date of hearing:	29 October 2024
Date of Judgement:	21 May 2025

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