Mphirime v Road Accident Fund (Leave to Appeal) (120811/2020) [2025] ZAGPPHC 1388 (12 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1388 | Noteup | LawCite sino index ## Mphirime v Road Accident Fund (Leave to Appeal) (120811/2020) [2025] ZAGPPHC 1388 (12 December 2025) Mphirime v Road Accident Fund (Leave to Appeal) (120811/2020) [2025] ZAGPPHC 1388 (12 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1388.html sino date 12 December 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO : 120811 / 2020 DATE : 2025 - 11 - 11 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES : NO (3) REVISED In the matter between MPHIRIME MOSIUWA EMMA and ROAD ACCIDENT FUND # JUDGMENTLEAVETOAPPEAL JUDGMENT LEAVE TO APPEAL MOSH OANA , J : Before this Court i s an application for leave to appeal against the judgment and order of this Court handed down on the 30 th of April 2025 . The order specifically provides that the Road Accident Fund i s absolved f rom the instance with regard to the claim for the loss of earning capacity and income. I t is against that very order that the leave to appeal is being launched. Mr Sherman appearing on behalf of the applicant ma de submissions that the order is appealable . This after the Court had enquired as to whether the order is f inal and appealable. He then placed reliance on the Zweni as well as the City of Tshwane judgments where, in particular, the aspect of the interest of justice was discussed. There can be no doubt that the order made by th is Court, being one of absolution f rom the instance , is capable of being reversed by the same Court . There is ample authority that where an absolution f rom the instance was granted, on submission of sufficient evidence, a Court might give a differ ent decision. Nevertheless, the Zweni test is very simple . It is, if a judgment or an order i s susceptible to being reversed by the same Court then i t is not f inal in nature. The principle of f inality takes into account the effect of the judgment as opposed to the form in which i t would have been presented. I t is for that reason that there will be some interlocutory applications that are appealable and others are not appealable simply because the effect as opposed to fo rm renders the order not f inal in nature. In as much as Mr Sherman is of the opinion and he so submitted, that the impugned order is f inal in nature, this Court takes a different view. The order is not final in nature . However, even if the order is f inal in nature and effect , then the question that must arise is whether another court would come to a different conclusion. In this matter the Court r eached conclusions on the basis that the evidence that was before i t was not sufficient and satisfactory in relation to the question of past loss of earning capacity. This Court specifically stated the following, “ With regard to her work history the reports by experts suggest that her last employment was in 2016 as a general worker, allegedly her contract of employment ended in 2017 . She also worked as a general worker for a catering business in 2017 . In respect of all those alleged employment no records were provided, nor was any collateral evidence presented to support the alleged previous employment. According to the report of Ms Snyman the plaintiff obtained employment in September 2022 . According to Mr Do orsamy, she obtained employment in 2020 . According to the plaintiff she obtained employment four years after the accident, she could not obtain employment because of the tough employment conditions in South Africa. For a period of two years after the accident s he could not stand for long. In her current employment as a cashier, she experiences a f ive- minute pain which occurs intermittently.” If the matter is presented to a Court of appeal, i t would still , on the facts be faced with evidence that is not supported by any records. Now the question is would the appeal Court come to a different conclusion. In my opinion, on the facts and the incomplete information the appeal Court would not come to a different conclusion. Actually, Mr Sherman during argument he submitted that with regard to the loss of her past loss of earning capacity same ought to have or ought to have been abandoned. It was not abandoned, and was presented to the Court with incomplete information. Clearly, this is an indication that in relation to the past loss of earning capacity no other Court would come to a different conclusion. Now in relation to the question of the future loss of earning capacity, Mr Sherman referred th is Court to various authorities that seem to suggest that where the court is faced with one opinion or one side of expert testimony, the Court has no option but to accept that evidence. Particular reference was made to the decision of Mark Bee v the Road Accident Fund case number 093 of 2017 ( 2018 ) ZASCA 52 which was handed down on the 29 th of March 2018 at paragraph 73 where i t was stated: “ The Court accepted the factual basis of the expert opinion has to be proved and the Court must have regard to the cogency of the experts process of reasoning.” However, the above stated principles are not applicable to an instance where the evidence is uncontested and in such instances a Court is bound and entitled to accept expert evidence on agreed to matters. So, in th e present instance, this Court was not faced with any agreed to matter . It was just an expert opinion , which the Constitutional Court recently stated that a Court is not bound by the evidence of an expert, if the Court i tself is in a position to assess the question. The question whether there is loss of capacity, is a factual question that may require the testimony of the person who allegedly lost capacity. Experts can only postulate, and can only make speculations. This Court was faced with the si tuation where the plaintiff testified that she could work, she had f ive - minute breaks, which happened not every t ime , i t may take a week without that happening. Th is Court in its impugned judgment, stated the following, at paragraph 8 , “ The plaintiff suffered orthopaedic injuries, she was assessed by an orthopaedic surgeon on 19 July 2022 . At the time she had not gained employment. On physical examination by the OS the plaintiff had no and was healthy, the midshaft f racture was heale d, she had no permanent disability other than reported pains. I t must then follow that when she obtained employment the midshaft f racture which is the only injury mentioned by the OS the plaintiff suffered from the accident had healed and only intermittent pain remained. She had no pain at surgical sight and scars. The plaintiff did not tender any evidence to prove that she was on any prolonged sick leave or received any t reatment other than taking breaks or some painkillers when experiencing pain. The fact that a person was once injured does not automatically t ransm ute into being without capacity to work or earn income. The fact that the plaintiff managed to obtain employment i s evidence that she never lost her earning capacity. The evidence of Mr Doorsamy that she i s an unequally competitor in an open market is baseless.” At this stage, section 17 ( 1 ) of the Superior Courts Act states that as the Judge I must form an opinion that a Court will arrive at a different opinion . With these facts as they stood and still stand, this Court is unable to form that opinion . This is not a case where a case has been made by the applicant for leave to appeal that there are circumstances that will lead to the hearing of this appeal by an appeal Court, even in an instance where there are no possible prospects of success on appeal. So, on those bas i s this Court will not , in this judgment, deal with that part of section 17 ( 1 ) ( b) relating to the other leg of granting leave to appeal. For all the above reasons, the Court concludes that the application for leave to appeal should fail.  The order I make is, 1 The application for leave to appeal is refused. 2 There is no order as to costs. # MOSHOANA,J MOSH OANA , J JUDGE OF THE HIGH COURT DATE : 1 2 / 1 2 / 2 0 2 5 # TRANSCRIBER’SCERTIFICATE TRANSCRIBER’S CERTIFICATE MPHIRIME MOSIUWA EMMA // ROAD ACCIDENT FUND I, the undersigned, hereby certify that so far as it is audible to me , the aforegoing is a true and correct transcript of the proceedings recorded by means of a digital recorder in the matter between the parties stated above: CASE NUMBER                                120811/2020 RECORDED AT                                PRETORIA DATE HELD                                      2025-11-11 NUMBER OF PAGES                      7 TRANSCRIBER’S NOTES / PROBLEMS EXPERIENCED Names spelt as heard on audio. TRANSCRIBER: N Guarneri DATE COMPLETED: 2025-12-09 sino noindex make_database footer start