RAF

Facts: The first and second respondent instituted separate claims against the RAF arising out of motor vehicle accidents in separate incidents. A few days before the dates of the hearing of both claims, the respondents and the RAF settled the claims. The High Court refused to make the settlement agreements orders of the court. The late settlement of the claims prompted the Judge President to constitute a full court to inquire into the reasons for the delay and late settlement of the claims. In pursuance of its decision to conduct the inquiry, the full court issued various directives, which were primarily aimed at the officials of the RAF. The full court ordered costs de bonis propriis against the CEO of the Road Accident Fund and the Road Accident Fund Board.

Appeal: These issues are dispositive of this appeal: (a) whether it was appropriate for the Judge President to refer the first and second respondents claims to the full court for an inquiry; if so, whether a case has been made for the orders granted; (b) the non-joinder of the Board to the proceedings; (c) whether costs should have been granted against the CEO and the Board, in the light of section 15(3) of the Road Accident Fund Act 56 of 1996 (the RAF Act).

Discussion: It was within the prerogative of the Judge President, acting in terms of section 14(1)(a) of the Superior Courts Act 10 of 2013 to constitute a full court. The High Court was entitled, in terms of its practice directives, the empowering Rule 37A(13), as well as the wide discretion it has in the award of costs, to hold this inquiry when the two cases were brought before it for the purpose of making the settlement agreements orders of court. It was thus competent and proper for it to refer the two cases to the full court to inquire into the question of wasted costs. The full court found that there was a causal connection between the demand to remove the files from the RAF panel attorneys and the delay in the late settlement of the claims. It is settled law that those who occupy public office and who act in a representative capacity may be mulcted with costs out of their own pockets in certain circumstances. The full court found that the system which was implemented by the RAF after the disposal of the panel attorneys and the challenges thereof appears to be the real problem for the “failure by the Fund to participate effectively in the pre-trial procedures and failure to attend court on the dates of the trial”.

Section 15(3) of the RAF Act: The CEO, the Board and any of its members enjoy indemnity in terms of section 15(3) of the RAF Act when acting in good faith. Section 15(3) envisages that the functionaries who act in bad faith in the exercise of their powers or the performance of their functions or duties towards the RAF should be mulct with costs. There was no evidence before the full court to arrive at the finding of bad faith by the appellants, either based on malicious intent or even “gross recklessness that reveals a breakdown of the ordinary exercise of authority”. This finding is dispositive of the issue relating to the CEO and the Board’s liability. However, as to the costs of the inquiry, it is in the interests of justice that the RAF be held liable for the costs as the first and second respondents were not responsible in any way. The RAF failed to validate the claims as required by section 24(5) of the RAF Act. It also failed to attend the Rule 37 and judicial case management hearings which ultimately caused the High Court to hold the inquiry into costs. It was to blame for the holding of the inquiry. The case management procedures including hearings relating to costs, necessarily form part and parcel of litigation.

Order: The appeal regarding the RAF is dismissed. The appeal is upheld in respect of the CEO and the RAF Board. The RAF shall pay the first and second respondents’ costs of the appeal, including the costs of two counsel, where so employed. The order of the High Court is set aside and replaced by the following order: “The defendant is ordered to pay the plaintiffs’ costs of suit, including the costs of the inquiry and of two counsel in the inquiry, where so employed.”

MOLITSOANE AJA (MOCUMIE JA, HUGHES JA, SMITH JA and DOLAMO AJA concurring)

Facts: The plaintiff, Mashabela, a member of the South African Police Service, was involved in a motor vehicle collision on 25 January 2019 in Protea Glen, Soweto. She lodged a claim with the Road Accident Fund (RAF), but the RAF failed to investigate or engage in settlement discussions within the 120-day moratorium period provided by the RAF Act. The plaintiff issued a summons on 8 October 2020, and the RAF failed to file a Notice of Intention to Defend within the required 10 days. The matter proceeded to default judgment hearings, during which the RAF attempted to file a Notice of Intention to Defend at the last minute, seeking a postponement. The plaintiff argued that the RAF’s conduct was an abuse of the court process.

Application: The plaintiff applied for default judgment against the RAF, seeking a declaration that the RAF was 100% liable for her damages arising from the collision. She also sought a punitive cost order against the RAF for its late filing of the Notice of Intention to Defend and its general conduct in delaying the litigation. The main issue was whether the RAF's late filing of the Notice of Intention to Defend and its conduct in delaying the litigation warranted a punitive cost order. Additionally, the court had to determine whether the RAF was liable for the plaintiff's damages and whether the matter should be postponed due to the late filing of the Notice of Intention to Defend.

Discussion: The RAF has a habitual practice of delaying litigation by filing Notices of Intention to Defend at the last minute, often years after the required period, and then seeking postponements. The affidavits filed by persons employed at the defendants’ offices were unhelpful. The documents do not talk to the delay but merely serves to obfuscate and avoid personal blame of the respective authors. No cogent explanation is put up for why the defendant did not defend the matter for four years or what steps were taken to properly investigate the matter, secure witnesses or make an offer of settlement at an early stage, if so advised. This practice was an abuse of the court process and placed an unnecessary burden on judicial resources. The provisions of Uniform Rule 19(5) allow for the late filing of a Notice of Intention to Defend but do not automatically entitle the defendant to a postponement. The Rules of Court should not be used to unduly delay litigation or force settlements.

Findings: The RAF was 100% liable for the plaintiff's damages, as the plaintiff's version of events was uncontested. The defendant did not plead a defence but contented for either contributory negligence or complete negligence of the plaintiff. This was not borne out of the evidence. The RAF's conduct in delaying the litigation and filing the Notice of Intention to Defend at the last minute was an abuse of the court process. However, the granting of a punitive cost order was refused, as the RAF's conduct, while problematic, did not rise to the level of mala fides required for such an order. The cost order envisaged in Rule 19(5) is not the fee for a postponement to the "trial roll". It is merely a backstop to protecting a right of access to court. Allowing it to become the penalty then withdraws a judicial discretion in respect of a matter seized before the court.

Order: The RAF was declared 100% liable for the plaintiff's proved or agreed damages arising from the collision. The determination of the quantum of damages was postponed. The RAF was ordered to pay the plaintiff's costs of the hearing, as well as the costs of preparing the plaintiff's heads of argument, on Scale B.

KHAN AJ

Facts: The plaintiff, Maduse, claimed damages from the Road Accident Fund (RAF) for injuries sustained in a motor vehicle collision on 4 May 2015. While riding his bicycle along Malibongwe Road in Randburg, he was struck from behind by a truck that did not stop, leaving him with a fractured left arm. The plaintiff lodged a claim directly with the RAF in 2017, but the claim was later rejected due to alleged non-compliance with documentation requirements. The plaintiff subsequently sued the RAF for R1,919,306. The defendant raised a special plea of prescription, arguing that the claim had lapsed due to the plaintiff’s failure to submit required documents, including hospital records and doctor’s particulars. The plaintiff countered that the RAF 1 form and accompanying medical records provided sufficient information, and that the defendant’s rejection of the claim was unjustified.

Issue: The key issue was whether the plaintiff had complied with the requirements of the Road Accident Fund Act 56 of 1996 (RAF Act), particularly in proving that the collision resulted from the negligence of an unidentified driver, and whether the claim had prescribed due to non-compliance with documentation requirements. Additionally, the court had to determine whether the plaintiff was contributorily negligent for riding his bicycle on a road allegedly classified as a freeway and for not wearing a helmet.

Discussion: The plaintiff’s testimony detailed the accident and his injuries. The plaintiff argued that the RAF 1 form and medical records substantially complied with the statutory requirements, and that the defendant’s rejection of the claim was improper. The defendant contended that the plaintiff’s failure to provide specific documents, such as hospital records and doctor’s particulars, rendered the claim non-compliant and subject to prescription. The defendant also argued that the plaintiff was contributorily negligent for riding on a freeway and not wearing a helmet. The plaintiff’s testimony was credible and consistent, despite minor discrepancies such as forgetting the name of the person who assisted him after the accident. There was no evidence to support the defendant’s claim that Malibongwe Road was a freeway or that the plaintiff’s lack of a helmet contributed to his injuries.

Findings: The plaintiff had substantially complied with the RAF Act’s requirements by submitting the RAF 1 form and medical records, which provided sufficient information about the accident and injuries. The special plea of prescription was dismissed, as the defendant’s rejection of the claim was not justified. The defendant’s argument of contributory negligence was also rejected, finding no evidence that the plaintiff’s actions contributed to the accident or his injuries. The plaintiff had proven his case on a balance of probabilities and the defendant was liable for 100% of the proven damages.

Order: The defendant is liable to compensate the plaintiff for 100% of the proven damages. The defendant was also ordered to bear the costs of the trial.

Pre-accident scenario: The plaintiff is the father and natural guardian of a minor child who was 10 years old at the time of the accident. The child was a Grade 4 student and lived with his parents. Prior to the accident, the minor child was performing well academically, with marks ranging between 70% and 90% in earlier grades, although there was a slight decline in performance in Grade 3 and Grade 4.

Accident and injuries: On 29 September 2017, the minor child was a passenger in a motor vehicle that overturned after the insured driver lost control. The accident occurred between Kestrel and Flamingo Streets, Mackenzie Park, Benoni. The child sustained multiple severe injuries, including a mild traumatic brain injury, loss of lower teeth, facial disfigurement, fractures to the nose and mandible, and soft tissue injuries to various parts of the body. He was hospitalized and required extensive medical treatment.

Post-Accident scenario: Following the accident, the minor child experienced significant cognitive and physical impairments. He struggled with memory, comprehension, and concentration, leading to a decline in academic performance. Experts concluded that he would not be able to complete Grade 12 and recommended placement in a special needs school. The child also suffers from chronic pain, post-concussion headaches, and emotional distress due to facial disfigurement. His future employment prospects are severely limited, with experts suggesting he may only be suited for supported or sheltered employment.

Discussion: The expert reports detailed the minor child’s pre- and post-accident potential. Notably, the industrial psychologist did not make a provision for a possibility of the minor child being self-employed. All the postulations were based on potential for employment in the formal sector. There was no postulation on the possibility that once he is equipped with knowledge and practical skills by the TVET college, it is likely that he may establish his own business once he qualifies for a specific trade. That information is important for the court to take account of in determining a just fair compensation. The effect thereof will be that this possibility would influence the contingency that the court will have to apply. The defendant did not appoint experts or dispute the plaintiff’s evidence, leading the court to accept the plaintiff’s uncontested expert reports.

Findings: Even though the minor child’s performance declined after the accident, he has never failed any grade before and after the accident. The accident significantly impacted the minor child’s earning capacity. Applying a 25% contingency deduction to pre-morbid earnings and a 30% deduction to post-morbid earnings, R5,167,506.30 was awarded for loss of earning capacity. Additionally, R1,192,248.17 was awarded for past medical expenses, bringing the total compensation to R7,659,754.47, including the previously agreed R1,300,000 for general damages.

Order: The defendant was ordered to pay the total amount of R7,659,754.47, which includes general damages, loss of earning capacity, and past medical expenses. The funds are to be held in trust for the minor child, and a trust must be established within six months to manage the funds. The defendant is also required to provide an undertaking for future medical expenses. Costs were awarded to the plaintiff, including fees for experts and legal representation.

Facts: The plaintiff, Madlala, instituted a claim against the Road Accident Fund (RAF) for damages arising from bodily injuries sustained in a motor vehicle accident in 2016. The plaintiff alleged that the accident occurred due to the negligent driving of an unidentified motor vehicle, which encroached into his lane, causing him to swerve and collide with a tree. The RAF disputed the claim, and despite filing a plea, did not appear in court to tender evidence. The plaintiff relied solely on his oral testimony, stating that he lost control of his vehicle after avoiding the unidentified vehicle, leading to the collision with the tree.

Issue: The central issue was whether the plaintiff had discharged the onus of proving, on a balance of probabilities, that the unidentified motor vehicle was negligently driven and that such negligence caused his injuries, as required under section 17(1)(b) of the Road Accident Fund Act 56 of 1996.

Discussion: Claims involving unidentified vehicles require careful scrutiny due to the heightened risk of fraud. The plaintiff’s testimony lacked corroboration, and the accident report indicated only one vehicle was involved, with no evidence of another vehicle. On the plaintiff’s own version, the danger to have been averted was a head on collision with the alleged oncoming unidentified motor vehicle. In that imminent danger, the plaintiff acquitted himself with distinction to avoid the danger. Having successfully done so, that marks the end of the imminent danger situation. What then presented itself thereafter is another danger of a collision between the plaintiff’s motor vehicle and the tree lying stationery few meters away from the shoulder of the unnamed road. Before such a collision happened, on the plaintiffs own version, he lost control of his own vehicle. Unfortunately, in this second imminent danger, the plaintiff failed to acquit himself with distinction.

Findings: The plaintiff’s version was uncorroborated and raised questions about the causal link between the alleged negligence of the unidentified driver and the collision with the tree. The plaintiff’s loss of control of his vehicle could indicate his own negligence, particularly as he provided no evidence of the steps he took to avoid the tree after successfully avoiding the unidentified vehicle. The plaintiff failed to prove that his injuries were caused by the negligence of the unidentified driver. The evidence did not establish a causal link between the alleged encroachment of the unidentified vehicle and the collision with the tree. The plaintiff’s injuries were likely caused by his own negligence in losing control of his vehicle, and therefore, the RAF was not liable.

Order: The court ordered that the RAF be absolved from the instance, meaning the plaintiff’s claim was dismissed. There was no order as to costs.

Facts: The plaintiff, Senwamadi, filed a claim against the Road Accident Fund (RAF) for damages exceeding R5,3 million, alleging he was involved in a motor vehicle accident on 6 March 2021 on Houtkop Road, Vereeniging. He claimed that an unidentified vehicle driven by an unknown driver caused him to lose control of his vehicle, which overturned after hitting a pothole. The plaintiff sustained injuries, including a left scapula fracture and general body pains. He alleged he was self-employed, earning R12,000 per month at the time of the accident. The plaintiff was the sole witness, and the accident report he submitted as evidence appeared to be inconsistent and possibly fabricated.

Issue: The central issue was whether the plaintiff’s claim was valid, given the contradictions in his evidence, the questionable authenticity of the accident report, and the lack of corroborating evidence to prove the occurrence of the accident.

Discussion: The plaintiff’s testimony and the accident report were examined, which was crucial to proving the claim. The report lacked essential details, such as a case number, police officer identification, and official registration, raising suspicions of fabrication. The plaintiff’s testimony was inconsistent with his earlier statements and the accident report, particularly regarding the number of vehicles involved and the sequence of events. The plaintiff’s evidence was unreliable, and the accident report was likely fabricated. The defendant, RAF, denied the occurrence of the accident but provided no evidence to counter the plaintiff’s claims.

Findings: The plaintiff’s testimony was found to have been unconvincing, and it was determined that the accident report was probably fabricated. The inconsistencies in the plaintiff’s statements and the lack of credible evidence led to the conclusion that the plaintiff failed to prove the occurrence of the accident. Concern was expressed over the potential fabrication of the accident report, and it was deemed necessary to bring the matter to the attention of relevant authorities.

Order: The court dismissed the plaintiff’s claim with costs. Additionally, the registrar was directed to send copies of the judgment to the Minister of Transport, the Minister of Police, and the CEO of the Road Accident Fund for further investigation into the probable fabrication of the accident report.

Facts: The plaintiff, acting on behalf of Motlhale, claimed damages from the Road Accident Fund (RAF) for injuries allegedly sustained in a motor vehicle accident in Kagiso, Krugersdorp. The plaintiff alleged that the accident occurred when a white bakkie driven by Makwala collided with Motlhale, who was a pedestrian. The plaintiff’s case relied on the testimony of a single witness, Ms Moswetsi, who claimed to have witnessed the accident. She testified that the bakkie failed to stop at a stop sign, hit Motlhale, and drove off. The defendant, RAF, disputed this version, calling two witnesses who testified that Motlhale was injured in a fight at a shebeen and struck by bricks, not a vehicle. The defendant’s witnesses included Mr. Mothopeng, who was with Motlhale at the time, and Mr. Makwala, the driver of the bakkie, who denied any collision.

Issue: The core issue was whether the plaintiff’s injuries were caused by a motor vehicle accident due to the negligence of the insured driver, or whether they resulted from an unrelated assault. The credibility of the single witness, Ms Moswetsi, was pivotal to the plaintiff’s case. The court had to determine which version of events was more credible and whether the plaintiff had discharged the onus of proving negligence on the part of the insured driver.

Discussion: Ms Moswetsi’s testimony contained inconsistencies, such as her description of the vehicle and the location of the collision. She also admitted to not having a driver’s license, which cast doubt on her ability to estimate the speed of the vehicle. In contrast, the defendant’s witnesses, particularly Mr. Makwala, provided consistent and credible testimony, supported by a police statement, that no collision occurred. Mr. Mothopeng’s evidence, though inconsistent with some of his prior statements, corroborated the defendant’s version that Motlhale was injured in a fight. The plaintiff failed to call additional witnesses or present corroborative evidence, such as hospital records or police testimony, to support the claim of a motor vehicle accident.

Findings: Ms Moswetsi’s testimony was unreliable due to inconsistencies and improbabilities. Her inability to accurately describe key details of the accident, coupled with the lack of corroborative evidence, weakened the plaintiff’s case. Conversely, the defendant’s witnesses provided credible and consistent accounts, supported by documentary evidence. The plaintiff had failed to prove, on a balance of probabilities, that the injuries were caused by a motor vehicle accident or that the insured driver was negligent.

Order: The court dismissed the plaintiff’s claim with costs, ruling that the plaintiff had not met the burden of proof required to establish liability on the part of the RAF.

Facts: The minor child, FGWF, was 5 years and 10 months when he was injured in a tractor accident in 2017. He is currently 13 years old. The minor suffered from a serious third-degree burn on his back, bruising on the face, deep abrasions on his back and soft tissue right hip injuries. In preparation for the claim against the Road Accident Fund, the minor was examined by several medical experts. Although the head injury appeared to have been mild, the neurologist confirmed that the minor suffers from poor concentration and behavioral problems and post-traumatic psychological sequelae.

Appeal: The court a quo only awarded R350,000 in respect of general damages. The appellant’s main contention is that the award was unreasonable in light of the injuries sustained by the minor together with the consequential sequelae. The appellant represents the minor child in her capacity as the duly appointed curator.

Discussion: The appellant’s main contention is that the court a quo failed to have regard to the neuropsychological and behavioral difficulties of the minor. It was evident that the court a quo only considered the physical injuries sustained. However, all of the experts confirmed the minor’s psychological and behavioral difficulties. The plastic surgeon noted that he has a WPI of 20% and qualifies on the Narrative Test for serious permanent disfigurement. The educational psychologist conducted a disability and impairment assessment and the final combined WPI rating for all the impairments came to a WPI of 36%. The neuropsychologist concluded that the minor child is more cognitively, psychologically and physically vulnerable five years after the accident.

Further by the experts: The educational psychologist noted the persistent headaches and symptoms of a major depressive mood disorder as well as post-traumatic stress disorder and agreed that these psychological difficulties would most definitely affect his attention and concentration abilities. He concluded that the minor’s cognitive, physical, behavioral, social, scholastic and emotional difficulties are linked to the injuries he sustained. The experts have confirmed that the minor’s neuropsychological and behavioral deficits would affect his future scholastic capabilities, this deteriorating disorder, together with extensive scaring, has a traumatic effect on him. It is evident that the trial court failed to evaluate the minor’s psychological, cognitive and emotional sequelae which had been identified by the experts. This is material and requires interference with the award of the court a quo.

Order: The appeal is upheld. The order of the court a quo is set aside and replaced with the following order: “The defendant shall pay the plaintiff an amount of R1 million in respect of general damages.” The respondent is ordered to pay the costs of the appeal on Scale C.

KOOVERJIE J (NEUKIRCHER J and MILLAR J concurring)

Facts: The plaintiff, Nichol, was struck by a vehicle while standing on the edge of a road near Jerusalema, Cosmo City, on 30 November 2020. He sustained injuries to his left leg, including a fractured ankle, which required medical treatment and resulted in ongoing pain and reduced mobility. The plaintiff, a cleaner earning approximately R5,000 per month, claimed damages from the Road Accident Fund (RAF) for past and future loss of earnings, as well as general damages. The RAF denied liability, arguing that the plaintiff was contributorily negligent for failing to keep a proper lookout and standing on the road. The plaintiff’s claim included R1,900 for past loss of earnings (due to unpaid leave after the accident) and R899,325 for future loss of earnings, based on actuarial calculations. The RAF also disputed the claim for general damages, arguing that the injury had not been assessed as "serious" under the RAF Act.

Issue: The court was required to determine whether the RAF was liable for the accident and whether the plaintiff’s contributory negligence reduced this liability; the quantum of damages for past and future loss of earnings; and whether the claim for general damages should be referred to the Health Professions Council of South Africa (HPCSA) for assessment.

Discussion: The plaintiff testified that he was struck by a vehicle driving on the wrong side of the road while he was standing on the edge of the road. He argued that the insured driver was solely negligent. The RAF contended that the plaintiff was contributorily negligent for failing to keep a proper lookout and standing on the road. The expert reports were considered, which supported the plaintiff’s claims regarding his reduced earning capacity due to his injuries. The RAF did not present any expert evidence to counter these findings. The principles of negligence and causation were considered, as well as the apportionment of damages under the Apportionment of Damages Act.

Findings: The insured driver was solely negligent, as the plaintiff’s conduct did not amount to contributory negligence. The plaintiff’s presence on the road edge was not unreasonable, and he could not have foreseen the collision. The plaintiff’s claim for past loss of earnings (R1,900) was accepted. The future loss of earnings was adjusted to R740,065, with application of a 25% contingency instead of the 35% proposed by the actuary. The claim for general damages should be referred to the HPCSA for assessment, as required by the RAF Act.

Order: The RAF is liable for 100% of the plaintiff’s proven damages. The RAF must pay the plaintiff R741,965 for past and future loss of earnings. The claim for general damages is separated and postponed for referral to the HPCSA. The RAF must provide an undertaking for future medical expenses under section 17(4)(a) of the RAF Act. The RAF must pay the plaintiff’s taxed or agreed party and party costs, including expert witness fees and counsel’s fees on scale B.

Facts: The late Mr Esack was injured in a motor vehicle collision and subsequently claimed damages from the Road Accident Fund (RAF). He passed away on May 4, 2020, before the case was finalized, and his executrix and spouse, Ms Esack, was substituted as the plaintiff. The RAF's liability was determined separately, leaving only the quantum of damages in dispute. Prior to the hearing, most heads of damages were settled, except for past hospital, medical and related expenses, the date from which interest would accrue, and costs. The RAF disputed liability for the medical expenses, arguing they were covered by the deceased's medical aid (Discovery Health), a fact not previously pleaded. The parties agreed on the amount of these expenses (R115,436.14) and stipulated that Discovery Health had paid them. They further stipulated, for the purposes of this case only, that these expenses constituted prescribed minimum benefits (PMBs) or treatment for emergency medical conditions (EMCs) for which Discovery was statutorily obliged to pay.

Issue: The central issue was whether the RAF was liable to compensate the plaintiff for past medical expenses paid by the deceased's medical aid, given the RAF's contention that the deceased suffered no loss as a result of the medical aid's payment, especially in light of the Discovery Health judgment. Related issues were the date from which interest on the awarded amounts should run and the appropriate scale of costs.

Discussion: The RAF argued that it should not be liable for the medical expenses because they were paid by Discovery Health, relying on Discovery Health (Pty) Ltd v Road Accident Fund [2024] ZAGPPHC 1303. The plaintiff argued that the payment was a private matter between the deceased and his medical aid and cited the principle of res inter alios acta. The Discovery Health judgment was analysed, noting that it did not definitively decide the deductibility of medical aid benefits, particularly PMBs and EMCs, and that it raised considerations without answering the question. The stare decisis doctrine and the Bane decision, which supported the plaintiff's position, were discussed. It was emphasized that the RAF did not present any evidence or arguments based on public policy, fairness, equity, or reasonableness to justify departing from the principle of res inter alios acta. The provisions of section 17(3) of the Road Accident Fund Act 56 of 1996 regarding interest were discussed, and arguments for the scale of costs were considered.

Findings: It was found that the Discovery Health judgment did not change the legal landscape regarding the res inter alios acta principle. It was held that the RAF was liable to compensate the plaintiff for the past medical expenses, as the payment was a matter between the deceased and his medical aid. It was determined that interest on the awarded amounts would run from 14 days after the date of the order, in accordance with section 17(3) of the Act. Costs were awarded to the plaintiff, on a party-party scale until January 27, 2025 (when most issues were settled), and on an attorney-client scale for costs incurred after that date due to the RAF's pursuit of a poorly pleaded and ultimately unmeritorious defence.

Order: The RAF was ordered to pay the plaintiff R935,477.28 for past loss of earnings and R115,436.14 for past medical expenses. These amounts were to be paid within 180 days of the order. Interest on the capital amounts was to run from 14 days after the order, and interest on costs from 14 days after settlement or taxation. Execution on the capital and costs was stayed for 180 days. The existence of a contingency fee agreement between the plaintiff and her attorneys was noted.

* See also Machi v Road Accident Fund [2025] ZAGPJHC 78 at paras [89]-[100].

Facts: The plaintiff was a passenger in a motor vehicle accident on 16 July 2009 in Johannesburg. She sustained multiple injuries, including a fractured right radius and ulna, soft tissue injuries to the cervical and lumbar spine, and a mild concussive head injury. The defendant, the Road Accident Fund (RAF), conceded liability, and the only issue for determination was the quantum of general damages. The plaintiff initially claimed R700,000 for general damages but sought to amend this to R1,600,000 on the day of the trial. The defendant opposed the amendment and raised in limine issues, arguing that a previous court’s declaratory order regarding the seriousness of the plaintiff’s injuries was ultra vires and that the matter should be referred back to the Health Professions Council of South Africa (HPCSA). The plaintiff argued that the defendant’s objections were mala fide and that the court had jurisdiction to determine the matter.

Issue: The primary issue was the quantum of general damages to be awarded to the plaintiff. Additionally, whether to grant the plaintiff’s application to amend the quantum of general damages from R700,000 to R1,600,000 and whether the defendant’s in limine objections were valid.

Discussion: The defendant’s in limine objections were dismissed as they were found to be a waste of time, particularly given the age of the previous court’s declaratory order and the defendant’s failure to act on its objections earlier. The plaintiff’s application to amend the quantum of general damages was granted, it being found that the defendant would not suffer prejudice, especially since no offer had been made by the defendant. The expert reports detailing the plaintiff’s injuries and their sequelae were considered, including chronic pain, psychological trauma, and loss of amenities. The plaintiff’s experts testified to the severe impact of the injuries on her life, including multiple suicide attempts, emotional disturbances, and permanent unemployability. The plaintiff’s case was compared to previous awards in similar cases to determine a fair and reasonable amount for general damages.

Findings: The plaintiff’s injuries and their sequelae were found to be severe and warranted compensation. However, the plaintiff’s requested amount of R1,600,000 was excessive. Instead, the court awarded R850,000 for general damages, considering the plaintiff’s injuries, the impact on her life, and comparable case law. Costs were awarded on a party-and-party scale, as the defendant’s conduct, including its failure to make an offer and its frivolous objections, justified a costs order in favour of the plaintiff.

Order: The plaintiff’s application to amend the quantum of general damages from R700,000 to R1,600,000 was granted. The defendant was ordered to pay the plaintiff R850,000 for general damages. The defendant was ordered to pay the plaintiff’s costs, including the costs of the curator ad litem, on a party-and-party scale. The defendant was also ordered to pay the costs of the plaintiff’s application for a postponement on an attorney-and-client scale.

Facts: The plaintiff, Sekwati, instituted a claim against the Road Accident Fund (RAF) for loss of support following the death of Maja (the deceased) in a motor vehicle collision. The deceased was driving a Mazda when she collided head-on with a Scania Marcopolo Bus driven by the insured driver, Mr. Tshisikule. The collision occurred on a straight stretch of road between Makureng and Mamaolo, with good visibility. The deceased died at the scene. The plaintiff claimed that the insured driver was at least 1% negligent, contributing to the collision. The trial proceeded on the merits, with quantum separated for later determination.

Issue: The central issue was whether the insured driver was negligent, even to a minimal extent (1%), and whether such negligence contributed to the collision. The plaintiff argued that the insured driver failed to take evasive action, while the defendant contended that the collision was solely due to the deceased’s negligence in veering into the wrong lane.

Discussion: The plaintiff relied on the testimony of an expert witness, Mr. Manamela, who opined that the insured driver was negligent for failing to observe oncoming traffic and take evasive action. However, the expert’s testimony was unreliable, as it was based on hearsay and lacked a factual basis. The plaintiff closed its case after the expert’s testimony, and the defendant applied for absolution from the instance, arguing that the plaintiff had not proven any negligence by the insured driver. The court dismissed the application, allowing the defendant to present evidence. The insured driver testified that he had no opportunity to avoid the collision, as the deceased’s vehicle suddenly swerved into his lane. He claimed he could not swerve left due to a sharp drop-off or right due to oncoming traffic, and his only option was to brake suddenly. The explanation of observing the deceased’s vehicle at a 2-meter distance was unconvincing but it was accepted that he could not have taken evasive action given the circumstances.

Findings: The plaintiff failed to discharge the onus of proving negligence on the part of the insured driver. While the insured driver’s explanation of observing the deceased’s vehicle at a 2-meter distance was improbable, there was no evidence to suggest that he could have taken evasive action to avoid the collision. The plaintiff presented no evidence regarding road conditions, vehicle positions, or other factors that could support a finding of negligence. Consequently, the plaintiff had not proven even 1% contributory negligence by the insured driver.

Order: The court dismissed the plaintiff’s claim with costs, finding that the plaintiff had not established any negligence on the part of the insured driver that contributed to the collision.