Mxoli obo Minor v Road Accident Fund (2022/029293) [2025] ZAGPJHC 1063 (21 October 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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1063 | Noteup | LawCite sino index ## Mxoli obo Minor v Road Accident Fund (2022/029293) [2025] ZAGPJHC 1063 (21 October 2025) Mxoli obo Minor v Road Accident Fund (2022/029293) [2025] ZAGPJHC 1063 (21 October 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1063.html sino date 21 October 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 2022/029293 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: NO 21 October 2025 In the matter between: ANELE MXOLI obo MINOR Plaintiff And ROAD ACCIDENT FUND Respondent JUDGMENT MOGOTSI AJ Introduction 1. This is an action against the Road Accident Fund (hereinafter referred to as the fund) instituted by Anele Mxoli in her natural and representative capacity of the plaintiff due to injuries she sustained as a result of an accident which occurred on or about the 29 th August 2020. 2. The matter was allocated to me in the default trial court on in a virtual hearing for the determination of loss of earning capacity. 3. The plaintiff avers that the defendant is liable to compensate the plaintiff an amount of R6 335 789.00. Factual background 4. The accident occurred at the corner of Pritchard & Nugget Street, Johannesburg , wh en the plaintiff was knocked down by an unknown vehicle insured by the respondent. 5. The issue of the m erits was previously settled at 90% because the plaintiff was found to have alcohol in his body at the time of the accident . 6. The plaintiff sustained a head injury with convulsion, f racture d mandible, and right ear injury. The law 7. In Baliso v Firstrand Bank Limited t/a Wesbank [1] [2016] ZACC 23 , the Constitutional Court articulated the procedure of dealing with a default judgment as follows, “ In terms of our civil procedure, default judgment for a debt or liquidated demand is granted on an acceptance of the allegations as set out in the summons, without any evidence. Where the claim is not for a debt or liquidated demand, the court may, after hearing evidence, grant judgment. This is usually only evidence on the amount of unliquidated damages. The reason for not hearing evidence on the other factual allegations made in the summons or particulars of claim is that, because the claim is not opposed, it may be accepted that those allegations are admitted or not disputed.” The factual matrix 8.The applicant launched an application for the evidence to be led by way of affidavits deposed to by experts and their reports to be admitted as evidence by virtue of Rule 38 (2) of the Uniform Rules of the Court. The application was granted. See New Zealand Insurance Co Ltd v Du Toit [2] ,1965(4)136 (T). 9. Dr T P M oja, a spec ialist neurosurgeon, and D r P T K umbiral, an orthopaedic surgeon, stated that the plaintiff sustained a moderate to severe focal traumatic brain injury . He has poor concentration and memory loss related to injury of the left frontal and temporal lobes. Currently, h e is repeating grade 10, and a deference was made to the occupational therapist and industrial psychologist for an opinion on his future earning capacity. 10. DR P T Kumbirai, further stated that the patient complains of l ow back pain-this exacerbated by prolonged standing, walking, and lifting heavy weights . According to him, r ecurrent headaches , p oor short-term memory , poor concentration span , and p oor academic performance are the sequelae of the head injury and deferred the opi nion to an educational psychologist. 11. Dr L eslie Berkerwitz, a plast ic and reconstruction surgeon, opined that the applicant, d espite reach ing maximum medical improvement, has been left with disfiguring scarring which will benefit from surgical revision. 12. D r Bryan Malakou, an ear, nose and throat surgeon, confirmed that the patient has a mild to moderate hearing loss, worse in the right ear and that he might benefit from bilateral hearing aids at R 60 000.00, which has a life span of about three to five years, at a cost of about R120.00 per month. Due to the nature of the loss, the middle ear surgery would not likely be of much benefit due to nature of the loss however, t here may be a slight case for exploring the ear surgically, but likely for minimal benefit. The cost for the surgery would be R 50 ,000.00 to R60 ,000.00 . 13. To address emotional issues, D r Zama Radebe, a clinical psychologist, recommended that the applicant be r eferred for psychotherapy to address his emotional issues relating to his psychological losses as a result of the accident in question and that he will benefit from 30 sessions at the cost of R1400 .00 per session. He further recommended 12 sessions valued at R1700.00 per session with a family therapist. 14. An educational psychologist, D r A Nailer, recommended that psycho-education and family therapy be provided to aid the plaintiff and his family in coping with the changes he experiences, and p sychotherapy is impera tive to help h im deal with the trauma of the accident . 15. Dr Corneli Myurg, a n occupational therapist, opines that the plaintiff is limited to an unskilled level work due to lower levels of education, to which the head might have contributed , this does not exclude other contributory factors, however, should complete a qualification at a TVET college, which requires motivation, he should be able to work at a semi-skilled level . He might, however, qualify for compensation under the narrative test should the court find that the head injury was the most important contributing reason for discontinuing his schooling. 16. The doctor recommended 8 hours of occupational therapy, which includes pain and stress management, balanced lifestyle, improving insight and conation, and teaching safe postures to perform activities . The therapy is currently charged at about R980.00 per hour . 17. Lastly, he opined that the plaintiff was a grade 9 scholar at the time of the accident. He returned to school and passed the end of the year with good marks, and therefore, he suf fered no direct loss of income. He , however, discontinued his schooling in grade 11, about 18 to 24 months after the accident. This may, inter alia, be attributed to c ognitive difficulties after sustaining a head injury; his use and misuse of alcohol at a young age , l ower socio-economic challenges with a lack of supervision and assistance , c hanging schools every two years or lower intellect or learning difficulties from other origins. 18. Dr Christe du Toit, industrial psychologist, opined that his reduced cognitive potential, as well as emotional , loss of hear ing, inclusive of scaring, may likely contribute to a vulnerable work profile. However, f rom a functional perspective, no limitations are indicated, and he should be able to handle the full range of physical job demands. 19. Clemens, Muffin & Rolland, the actuaries, summarised his loss of income is set out as follows: s cenario 1: R 6 368 007 , s cenario 2: R 10 056 808 .00. 20. In the Road Accident Fund v Kerridge [3] , 2019 (2) SA 233 (SCA) Para 40 , the Supreme Court of Appe al , in deal ing with loss of income, articulated as follows: “ Any claim for future loss of earning capacity requires a comparison of what a claimant would have earned had the accident not occurred, with what a claimant is likely to earn thereafter. The loss is the difference between the monetary value of the earning capacity immediately before the injury and immediately thereafter.” ### Evaluation Evaluation 21. The pith of my decision is based on the matter of Balito mentioned supra because I am duty-bound to follow precedent.  In my view, the plaintiff succeeded in proving his case on a balance of probabilities through the uncontested evidence placed before the court. The plaintiff suffered a head injury, loss of hearing in the right ear, and a fractured mandible. 22. He was in grade 9 at the time of the accident and discontinued his schooling in grade 11, about 18 to 24 months after the accident. It is found that probabilities are that he discontinued schooling as a result of the accident and the sequelae of the injuries. According to him, r ecurrent headaches , p oor short-term memory , p oor concentration span , and p oor academic performance are the sequelae of the head injury. Therefore, he qualifies for compensation under the narrative test. 23. In the circumstances, the following order is made: 1. The draft order marked ‘X’ is made the order of the court. P J MOGOTSI ACTING JUDGE OF THE HIGH COURT GAUTENG,DIVISION JOHANNESBURG Appearances Attorney for Plaintiff: Mr Mudau instructed by TP Mudau Inc Attorney for respondents: State Attorney (RAF) Date heard: 12 August 2025 Date of Judgment: 21 October 2025 [1] In Baliso v Firstrand Bank Limited t/a Wesbank[1] [2016] ZACC 23 [2] New Zealand Insurance Co Ltd v Du Toit [2] ,1965(4)136 (T). [3] the Road Accident Fund v Kerridge[3], 2019 (2) SA 233 (SCA) Para 40 sino noindex make_database footer start