Malinga v Road Accident Fund (04677/14) [2025] ZAGPJHC 1325 (19 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: 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 1325 | Noteup | LawCite sino index ## Malinga v Road Accident Fund (04677/14) [2025] ZAGPJHC 1325 (19 December 2025) Malinga v Road Accident Fund (04677/14) [2025] ZAGPJHC 1325 (19 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1325.html sino date 19 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO .  04677/14 (1) REPORTABLE: YES/NO (2) OF INTEREST TO OTHERS JUDGES: YES/NO (3) REVISED DATE 19/12/2025 SIGNATURE In the matter between: MALINGA QUEEN Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT BHOOLA AJ, Introduction [1]        The plaintiff, Ms Malinga Queen, institutes action against the Road Accident Fund (“RAF”) seeking damages arising from a motor vehicle collision which occurred on 02 June 2012 near Blackreef Road in Dinwiddie, Germiston, Khuzani Road, Gauteng Province, where she was a passenger. . [2]        The issue of liability on the merits, have been settled 100% in favour of the plaintiff, together with general damages and future medical expenses. The only issue for determination is past and future loss of earnings. [3]        The summons was issued on the 12 February 2014 and served on the defendant on 13 February 2014. The defendant served its plea on 8 May 2014, however, the defendant failed to file its Discovery Affidavit in terms of Uniform Rule 35 and a compelling order dated 17 September 2004. Consequently, the defendant’s defence was struck out. [4]        The matter proceeds by way of default judgment in terms of Rule 31(2)(b), read with Rule 38(2) of the Uniform Rules, to procced by way of affidavits, was served on the defendant on the 17 January 2025, and is accordingly granted. [1] The plaintiff is only required to prove her claim on quantum. [2] Factual background Merits [5]        The plaintiff’s factual account of how the motor collision occurred was not contested. The medico-legal reports prepared by the plaintiff’s expert witnesses were admitted into evidence by affidavits in terms of Rule 38(2) of the Uniform Rules. All the reports remained unchallenged and uncontroverted. This justified the court in hearing the matter by way of affidavits without oral testimony. [6]        The plaintiff, born on 2 April 1975, was 37 years old at the time of the accident and is now 50 years old. She passed standard nine level of education in 1997 at St Paul’s College in Pretoria, and thereafter, registered for a Security guard Certificate in 2001. She also obtained a Firearm Certificate.  In 2002 she worked as a security guard for a period of approximately eight months. Thereafter, she was a Supervisor at Inter Park (Pty) Ltd. [7]        On the day in question, at 07h30, the plaintiff was a passenger in motor vehicle K[...], driven by one Mr. Marcus Khosa when a collision occurred with a motor vehicle B[...], driven by one Mr. Tebogo Seshoene.  After the collision she lost consciousness and was taken to Natalspruit Hospital by ambulance and admitted for seven days. [8]        As a result of collision the plaintiff sustained a closed fracture of the left ankle. She was treated in emergency care and x-rays were taken.  Analgesia was given, manipulation was done under anaesthesia and she received a circular cast which was removed after six weeks. She was absent from work for seven days and was not remunerated for this period.  She returned to her pre- accident occupation as a Supervisor. Quantum [9]        The expert reports, summarised below, were admitted into evidence, and are relevant to assessing the plaintiff’s damages. They provide findings on the nature, extent, and long-term implications of the injuries, assisting the court in arriving at a just, equitable and fair quantum. Orthopaedic Surgeon: [10]      Dr E.R.S Rangongo examined the plaintiff on 30 November 2023. He opined the plaintiff’ sustained a bimalleolar left ankle fracture which was treated conservatively with a circular cast. She has residual chronic pain and swelling with degenerative changes of the said ankle. Occupational Therapist [11]      Ms Kgatale Malatse Makananisi examined the plaintiff on 13 November 2023. She found that since the accident the plaintiff cannot stand or walk for long periods and she cannot lift/carry heavy items. She has been affected in areas of work, leisure and home- management tasks. She remains suited for occupation of sedentary, light to medium physical demand with reasonable accommodation for her physical difficulties. She cannot continue to work as a security officer due to her left leg injuries. She has limited choices and is now self- employed. Industrial Psychologis1 [12]      Mr. RT Ntsieni, assessed the plaintiff on 30 November 2023 and did an addendum report on the 4 June 2025.  He found pre- accident, the plaintiff’s career trajectory progressed from a passing grade 9, obtaining Grade E,D and C Security Certificate, employed as a security guard, and employed by Inter Park (Pty) Ltd as a Customer Care Attendant and she was earning R2 274,60 – R2 721.17 per month as per bank statements, earning  R3 800 as a basic salary and with overtime approximately R4 000 per month. [13]      Post-accident she was hospitalised for seven days and was not remunerated for that period. From Mid-June 2012 until 2014 she returned to work performing supervising employees, banking and doing paperwork. She was struggling with going to the bank to deposit the money and supervising the workers. She had to leave work due to accident related challenges. From 2015 to date she was self-employed as a hawker making a profit of approximately R2 500 profit per month and generated a total income of R4 500 per month. Actuaries [14]      Mr Namir Waisberg, the actuary, relied on the other expert reports as well as the plaintiff’s salary payslips and proof of earnings from employees’ tax to compile his reports dated the 25 July 2025 and 26 September 2025. Normal retirement age was considered at 65 pre and post -accident. Evidence was submitted from the employer which indicated that the plaintiff was no longer employed due to the company no longer existing. The different between the first and second reports was the difference in contingencies. The first report provided contingencies of 5% past and two options for future loss of earnings: (15%/25%) and (15%,30%). The second report providing the future loss of earnings as (15%/30%) and (15%,35%). Counsel for the plaintiff relied on the amount for loss of earnings in the amount of R2 082 336.00 (two million eight two thousand, three hundred and thirty-six rand). Legal Framework [15]      Section 17(1) of the Act obliges the Fund to compensate for loss or damages caused by the negligent driving, whereby two motor vehicles were involved in a collision thereby, constituting prima facie negligence. [3] Liability has already been settled at 100% in favour of the plaintiff. [16]      The court finds that the accident directly caused the injuries sustained by the plaintiff. This is evident from the plaintiff’s admission into hospital for a period of seven days and her prolonged recovery period due to the circular cast. The expert medical testimony confirms the causal connection between the accident trauma and the sequelae.  The hospital records substantiate this. Authorities such as Southern Insurance Association Ltd v Bailey NO [4] guide the court in assessing future loss of earnings, emphasising the use of actuarial calculations tempered by judicial discretion. Evaluation [17]      The plaintiff’s injuries were not disputed, and the opinions expressed by the various expert witnesses are admitted uncontested.  I have considered the actuarial reports, which provides two sets of projections.  The Court accepts that actuarial evidence provides a reliable and principled method for quantifying the plaintiff’s loss, consistent with the approach endorsed in Mlotshwa v Road Accident Fund. [5] [18]      Contingency deductions are applied, to account for the uncertainties and vicissitudes of life that may affect a claimant's future financial position. [6] Robert Koch's guidelines suggest 5% for past loss and 15% for future loss, but Courts may adjust these figures depending on the facts. [19]      With regard to the past earnings, the plaintiff returned to her pre-accident employment with no reduction in salary. She was not remunerated for the seven days she was recuperating. The Court therefore finds that there was actual financial loss suffered in respect of past earnings. [20]      I am satisfied that whilst the plaintiff’s ability to engage in her existing work has been adversely affected, she retains residual earning potential. Her capacity to generate income is not extinguished, as she remains employed in her current job, albeit it is in a limited capacity. [21]      The future uninjured earnings, reflect the plaintiff’s projected income had the accident not occurred, adjusted for career progression. A contingency of 15% is applied. This accounts for uncertainties such as potential interruptions to employment, fluctuations in promotions, and general vicissitudes. [7] [22]      The future injured earnings reflect the plaintiff’s projected earning capacity considering the permanent injuries sustained in the accident. A 30% contingency is applied to recognise long-term vulnerability, reduced competitiveness in the labour market, and potential early retirement and the fact that she had to leave her employment due to the company closing down. [23]      After applying the respective contingencies, the actuarial value of the plaintiff’s loss is R 2.064,327 This represents a fair and realistic measure of her loss. Past Loss of earnings But for the accident Having regard to the Accident Total Past Accused value of earnings R1, 185,959 R321,769 Less Contingency (5%,5%) R      59,298 R16,088 Total Past value of Loss of Earnings R1,126,661 R305,680 R820,981 Future Loss of earnings But for the accident Having regard to the Accident Total Gross Accrued value of earnings R1, 759, 370 R   360,169 Less Contingency (15%,30%) R   263,906 R   108,051 Total Past value of Loss of Earnings R1,495,465 R   252,118 R1,243,347 Total Value of Loss of Earnings R2,622,125 R557,798 R2, 064,327 Conclusion [24]      The Court has considered both actuarial reports. The first projected a higher quantum of R2,082,336 while the latter projected R2, 064,327.  Counsel submitted a draft order for the former amount without justification as to why the court should accept the former as opposed to the later. I am not persuaded that I should accept the former projection. Actuarial evidence is not binding but serves as an aid to judicial discretion ( Southern Insurance Association Ltd v Bailey NO ). In the exercise of that discretion, the Court prefers the latter report, which incorporates more conservative and realistic contingency deductions consistent with the plaintiff’s residual earning capacity and ongoing employment. This figure represents a fair, just, and reasonable award in the circumstances. [25]      Finally, the requests for costs on scale B is unjustified. This was a default judgment application, not a matter of exceptional complexity. Order [26]      In the result, I make the following order: 1.         Application in terms of Rule 38(2) is granted. 2.         The defendant, “RAF”, is liable to compensate the plaintiff for 100% of her proven damages arising from the motor collision of 30 July 2021. 3.         The claim for general damages and future medical expenses have become settled between the parties. 4.         The defendant is liable ordered to make the following payment to the plaintiff a capital amount of R2 064,327 (two one million, sixty-four thousand, three hundred and twenty-seven rand) 5.         The capital amount referred to in paragraph four shall be payable within one hundred and eighty (180) days of service of this Court Order into the trust account of the plaintiff’s attorneys of record with the following details: Account Holder Name:      Mashila Koko Attorneys Bank:                                    First National Bank Account Type:                      Attorneys Trust Account Account Number:                 6[...] Reference:                           R0037/MK 6.         The defendant shall pay the plaintiff’s taxed or agreed party- and- party costs on the High Court scale, such costs to include reasonable costs of all expert reports, medico -legal reports, actuarial reports, counsel’s fees, preparation and attendance at court, if any, as allowed by the Taxing Master. 7.         No interest shall be payable on the capital amount referred to in paragraph four except in the event of default, in which case interest will accrue at a rate of 10.50% per annum calculated from the date of service of this Court Order. 8.         If costs are not agreed, the plaintiff shall serve a notice of taxation on the defendant. Following taxation or settlement of the costs, the defendant shall make payment within thirty days (30) days. 9.         No interest shall be payable on the costs referred to in paragraph six, except in the event of default, in which case interest will accrue at the prescribed legal rate of 10.5% per annum, calculated from the date of taxation or agreement. 10.       No reservation fees shall be paid to experts for the trial as the trial proceeded in terms of Rule 38(2); 11.       There is no contingency fee agreement. CB. BHOOLA Acting Judge of the High Court Gauteng Division of the High Court, Johannesburg Delivered:      This judgment was prepared and authored by the Judge whose name is reflected on 19 December 2025 and is handed down electronically by circulation to the parties/their legal representatives by e mail and by uploading it to the electronic file of this matter on CaseLines.  The date for hand-down is deemed to be 19 December   2025. APPEARANCES Date of hearing:       21 October 2025 Date of judgment:    19 December 2025 For the plaintiff:        Adv. Marlene Ngobeni-Moyana (Tel: 083 592 2344,) Instructed by:            Mashila Koko Attorneys (Tel: 011 367 0657, email: mashila@mkokoattorneys.co.za ) For the defendant:   State Attorney: Ms P Makatini [1] Havenga v Parker 1993 (3) SA 724 (T), confirmed by the Supreme Court of Appeal in Madibeng Local Municipality v Public Investment Corporation 2018 (6) SA 55 (SCA) [2] Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49 [3] Ngubane v South African Transport Services 1991(1) SA 756 (1) SA 756 (A) [4] 1984 (1) SA 98 (A) [5] (53505/2016 [2025] ZAGPPHC 1019 [6] Road Accident Fund v Guedes (611/04) [2006] ZASCA 19 ; 2006 (5) SA 583 (SCA) (20 March 2006), Southern Insurance Association Ltd v Bailey NO (1984) (1) (SA) 98 (A) sino noindex make_database footer start