Molewa v Road Accident Fund (2025/049880) [2025] ZAGPJHC 1324 (20 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 1324 | Noteup | LawCite sino index ## Molewa v Road Accident Fund (2025/049880) [2025] ZAGPJHC 1324 (20 December 2025) Molewa v Road Accident Fund (2025/049880) [2025] ZAGPJHC 1324 (20 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1324.html sino date 20 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 IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, JOHANNESBURG CASE NO:  2025-049880 (1)  REPORTABLE: NO (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED: NO 20 December 2025       P Uys (AJ) In the matter between: MOLEWA: JIMMY SEBARABOI Plaintiff and ROAD ACCIDENT FUND Defendant Summary: Causation and quantification of delictual patrimonial loss. JUDGMENT UYS AJ: Order 1.     The ex-tempore order of 3 December 2025 is rescinded and set aside. 2.     The defendant is liable for 100% of the plaintiff’s proven damages. 3.     The defendant shall pay to the plaintiff the capital amount of R 727 477,20 (seven hundred and twenty-seven thousand, four hundred and seventy-seven rand and twenty cents) being loss of earnings arising out of a motor vehicle collision which occurred on 4 November 2023, payable on or before the 14 th day from the date of this court order. 4.     Payment shall be made directly into the plaintiff’s attorneys’ trust account, details of which are as follows: ACCOUNT HOLDER                  R[…] A[…] ACCOUNT NUMBER                  0[…] BANK                                          S[…] B[…] BRANCH                                    J[…] BRANCH CODE                         0[…] 5.     Should the defendant default to pay the amount in paragraph 2 within the period of 14 days from date of this court order, the defendant shall be liable for mora interest on the outstanding amount to be calculated at the applicable legal interest rate per annum commencing from the 15 th day, from the date of this order to the date of final payment. 6.     The defendant shall furnish to the plaintiff an undertaking in terms of Section 17(4) (a) of the Road Accident Fund Act 56 of 1996 , for 100% of the costs of future accommodation of the plaintiff in a hospital or nursing home, or treatment or rendering of a service, or supplying of goods to the plaintiff, arising out of the injuries sustained in a motor vehicle collision which occurred on 4 November 2023, and the sequelae thereof, after such costs have been incurred and upon proof thereof. 7.     The defendant shall make payment of the plaintiff’s agreed or taxed party and party High Court costs of the action to date of this order and attendant upon the obtaining of payment of the amount referred to in paragraph 2 above, including but not limited to: 7.1. The costs of counsel for 02 December 2025 on scale B. 7.2. The qualifying, reservation and/or preparation fees, if any, of the plaintiff’s experts: 7.2.1. Dr E A Mjuza (Orthopaedic Surgeon) 7.2.2. Lawrence Malonza (Occupational Therapist) 7.2.3. Clement Bell (Industrial Psychologist) 7.2.4. Namir Waisberg (Actuary) 7.3. The reasonable taxable costs of necessary consultations with the said experts. 7.4.  The reasonable taxable travelling and accommodation costs of the plaintiff for attending the medico-legal examinations and the experts’ costs for preparing the RAF 4 forms and addendum expert reports. 8.     The plaintiff shall serve a notice of taxation to the defendant’s attorney of record, and the defendant shall pay the plaintiff’s taxed or agreed costs within 14 days from date upon which the accounts have been taxed by the Taxing Master or agreed between the parties. 9.     Should the defendant default to remit the taxed or agreed costs within the period of 14 days calculated from date of taxation or agreement, the defendant shall be liable for mora interest on the outstanding amount calculated at the applicable legal interest rate per annum starting from the 15th day after the date of taxation to the date of final payment. 10. The mandate of the plaintiff to the plaintiff’s attorney is not the subject of a contingency fee agreement in term of the Contingency Fees Act. 11. Determination of the plaintiff’s claim for general damages is separated from the balance of the issues and postponed sine die . Judgment [1]  This default judgment trial was heard consequent to relief being granted under: 1.1.         Rule 38(2) of the Uniform Rules of Court for evidence to be adduced upon affidavits. 1.2.         Section 3(1)(c) of the Law of Evidence Amendment Act , 45 of 1988 provisionally admitting the hospital records of the Heidelberg District Hospital and the Thelle Mogoerane Regional Hospital as hearsay evidence in the interests of justice. 1.3.         Rule 33(4) separating determination of general damages from the balance of the issues and postponing determination of general damages sine die . [2]  The evidence confirms that: 2.1.         The plaintiff was a passenger in one of the insured vehicles at the time of the collision. 2.2.         The causal negligence of at least one or more of the three insured drivers contributed to the collision. [3]  The issue of liability is uncontentious, has been proven on a balance of probability and the defendant is held liable for 100% of the plaintiff’s damages. [4]  The plaintiff: 4.1.         Was born during 2001 and was 23 years old when the collision occurred (4 November 2023). 4.2.         Matriculated during 2019. 4.3.         Previously completed four of six months of an N2 certificate in fitting and turning at Pentagon College but terminated the course due to financial constraints. 4.4.         Was scheduled to be interviewed for appointment as Bench Supervisor at KFC Heidelberg Mall which interview was cancelled due to the collision. 4.5.         Eventually secured the position of Bench Supervisor on 16 May 2024 in which he remains employed to date. [5]  The plaintiff’s primary employment duties include: 5.1.         Stock counting. 5.2.         Financial reporting. 5.3.         Assigning tasks to staff members. [6]  The plaintiff’s monthly historical income varies and is reported as: 6.1. May 2024 R7318.12 6.2. June 2024 R5726.90 6.3. July 2025 R5347.18 6.4. August 2025 R5417.03 6.5. September 2025 R6537.70 [7]  The records of the Heidelberg and Thelle Mogoerane hospitals confirm that the plaintiff: 7.1.         Was: 7.1.1.            Admitted to the Heidelberg Hospital on 4 November 2023. 7.1.2.            Diagnosed with a left subtrochanteric femur fracture. 7.1.3.            Transferred to the Thelle Mogoerane Regional Hospital on 7 November 2023. 7.2.         Received an open reduction and internal fixation of the fracture on 21 November 2023 and was discharged on 23 November 2023. 7.3.         Mobilised on crutches until December 2023 and received physiotherapy as an outpatient at the Heidelberg Hospital until 1 February 2024. [8]  During assessment by the orthopaedic surgeon (26 November 2024), the plaintiff raised primary subjective complaints of pain of: 8.1.         The left hip, exacerbated by prolonged sitting and walking, associated with cramping of the thigh. 8.2.         The healed fracture site during cold and inclement weather. [9]  Clinically the orthopaedic surgeon identified: 9.1.         No antalgic gait. 9.2.         A well united left femoral fracture duly aligned and preserved. 9.3.         Well-developed symmetrically and equal in length lower limbs with normal vascular circulation. 9.4.         Normal and pain-free movement of the left leg and hip. [10]  The radiological studies of 26 November 2024 were assessed by the specialist radiologist and the orthopaedic surgeon who both diagnosed: 10.1.      Satisfactory union of the left femoral shaft being fixed by a locked and intact intramedullary femoral nail and locking screws. 10.2.      A normal left hip and knee joints. [11]  The orthopaedic surgeon: 11.1.      Identified stress-shielding of the fracture union by the nail as the source of the pain. 11.2.      Reported that: 11.2.1.        Future treatment will include rehabilitation through removal of the nail (proposed in six to eight months after the assessment). 11.2.2.        The pain and cramps in the left leg are chronic. 11.2.3.        Present impairments are partial but permanent. 11.2.4.        The injuries, pain and cramps will impede work performance and domestic mobility. 11.3.      Deferred the question of loss of work/income to an industrial psychologist. 11.4.      Limits future prognosis to continuous conservative pain-care well into the future. [12]  The fixatives remain in situ to date. [13]  The plaintiff was assessed by an occupational therapist on 6 November 2025, who reported that: 13.1.      The plaintiff continued with subjective complaints of pain (scored at 7/10) of the left hip, thigh and knee associated with: 13.1.1.        Prolonged sitting and standing. 13.1.2.        The healed fracture site during cold weather. 13.1.3.        Using steps, ladders and chairs. 13.1.4.        Walking. 13.1.5.        Pulling, pushing, lifting or carrying heavy weights. 13.1.6.        Exercise/physical training. 13.1.7.        Household activity. 13.1.8.        Sport. 13.2.      Assistive devices for heavy load handling are indicated. 13.3.      The plaintiff’s duties fall within the light work category. 13.4.      The plaintiff suffers from: 13.4.1.        A mild degree of pain-related impairment. 13.4.2.        A Moderate degree of depression. 13.4.3.        A severe degree of anxiety. 13.4.4.        Impairment in his current position. [14]  It is the opinion of the industrial psychologist that: 14.1.      The plaintiff is: 14.1.1.        Earning above the median level for semi-skilled employees (Compared to Robert J Koch quantum yearbook 2023-statistics for early career semi-skilled earnings). 14.1.2.        In the exploration phase of his career. 14.2.      But for the collision, the plaintiff: 14.2.1.        Would have probably increased his earnings progressively to around R251 000 at age 45 (between lower and medium quartiles of late career semi-skilled earnings) and received further inflationary increases until retirement. 14.3.      Having regard to the collision, the plaintiff: 14.3.1.        Is accommodated and allowed to take comfort breaks when fatigued and delegate work in the freezers during the winter. 14.3.2.        Is rendered an un-equal and disadvantaged competitor in the open labour market who does not fully meet his pre-accident capacity. 14.3.3.        Is at risk of securing future gainful employment should he be dismissed or resign. 14.3.4.        Would only be able to secure inflationary increases until retirement. [15] A Plaintiff claiming loss of earnings/earning capacity must prove the physical disabilities, that same would impair earnings/capacity and the actual patrimonial loss. [1] [16] Loss of earnings or earning capacity, is assessed under the Lex Aquila on the basis that the Defendant must make good the difference between the value of the Plaintiff’s estate before and after the delict. [2] [17]  In Burger v Union National South British Insurance Company 1975(4) SA 72 (W) PAGE 74 the court held that: 17.1.    Where the available evidence establishes a likelihood of some fact, situation or event which is incapable of quantification within narrow limits, the court is not obliged to act on the possibility least favourable to Plaintiff because he bears the onus and has not proven that a more favourable possibility ought to be preferred. 17.2. Once the value of the income which the Plaintiff will lose in future has been ascertained, contingencies must be considered. [18] Determination whether the disability give rise to a patrimonial loss, depends on the plaintiff’s occupation or nature of the work during, before and after the delict. [3] [19] Chetty,J held in Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE) : 'A person's all-round capacity to earn money consists, inter alia, of an individual's talents, skill, including his/her present position and plans for the future, and, of course, external factors over which a person has no control, for instance, in casu, considerations of equity. A court has to construct and compare two hypothetical models of the plaintiff's earnings after the date on which he/she sustained the injury. In casu, the court must calculate, on the one hand, the total present monetary value of all  that the plaintiff would have been capable of bringing into her patrimony had she not been injured, and, on the other, the total present monetary value of all that the plaintiff would be able to bring into her patrimony whilst handicapped by her injury. When the two hypothetical totals have been compared, the shortfall in value (if any) is the extent of the patrimonial loss. ... At the same time the evidence may establish that an injury may in fact have no appreciable effect on earning capacity, in which event the damage under this head would be nil . [20] Causation of patrimonial loss is proven on a balance of probabilities while quantification depends on the Court’s estimation of likelihood of a future situation. The worst-case basis for quantification should not accepted, subject to the best evidence being adduced. [4] [21]  In Chakela v Road Accident Fund (33599/2015) [2017] ZAGPJHC 141 (5 June 2017) : 21.1.  The defendant: 21.1.1.        Advanced that: 21.1.1.1.         The plaintiff suffered no impairment in her capacity to earn an income in the future. 21.1.1.2.         It is only once impairment has in fact been established that the question of quantification arises. 21.1.1.3.         The question of appropriate contingency provisions fits into the quantification exercise not the causation enquiry. 21.1.2.        Referred to Deysel v Road Accident Fund (2483/09) [2011] ZAGPJHC 242 (24 June 2011); Rudman v Road Accident Fund (370/01) [2002] ZASCA 129 ; [2002] 4 All SA 422 (SCA) (26 September 2002); Van Heerden v Road Accident Fund (6644/2011) [2014] ZAGPPHC 958 (8 December 2014) and Prinsloo v Road Accident Fund (3579/06) [2008] ZAECHC 193 ; 2009 (5) SA 406 (SE) (18 November 2008). 21.2.      Van der Linde, J held that these judgments were pertinent in the context, and that, having regard to them the correct approach is the following: 21.2.1.        There is a conceptual difference between the question whether a plaintiff has suffered an impairment of earning capacity and the question whether a plaintiff will in fact suffer a loss of income in the future. [Paragraph 25] 21.2.2.        The answer to the former question is determined on a balance of probability which plaintiff has the onus to discharge. 21.2.3.        The latter is a question of assessment in respect of which there is no onus in the traditional sense. This assessment involves the exercise of quantifying as best one can the chance of the loss occurring. [Paragraph 26] 21.2.4.        The answer to the former question is at least theoretically answered affirmatively if the plaintiff has established a 51% chance of impairment being present, the answer to the latter question is provided by the best match between the likelihood of a loss been suffered and the fraction expressed as a percentage. [Paragraph 27] [22]  The nature and extent of the injuries, the plaintiff’s age, pain and discomfort, vocational history, current accommodation in the workplace and prospects supports a probable future patrimonial loss. [23]  The actuarially quantified gross prospective income but for the collision, (R4 849 848) accords factually and logically with the plaintiff’s employment history, income, training, age, aptitude and probable prospects. [24]  The premise of the industrial psychologist, that the plaintiff’s future income after the collision will be limited to inflationary increases only, is not factually or logically cogent and therefor rejected. [25]  The plaintiff’s post-collision earnings will probably mirror his pre-collision earnings subject only to a contingency differential on the actuarially quantified gross prospective income but for the collision. [26] In Southern Insurance Association Ltd v Bailey NO [5] Nicholas JA held: “ Where the method of actuarial computation is adopted in assessing damages for loss of earning capacity, it does not mean that the trial Judge is ‘tied down by inexorable actuarial calculations. He has ‘a large discretion to award what he considers right’. One of the elements in exercising that discretion is the making of a discount for ‘contingencies’ or differently put the ‘vicissitudes of life’. These include such matters as the possibility that the plaintiff may in the result have less than a ‘normal’ expectation of life; and that he may experience periods of unemployment by reason of incapacity due to illness or accident, or to labour unrest or general economic conditions. The amount of any discount may vary, depending upon the circumstances of the case” [6] . [27] Zulman JA, held in Road Accident Fund v Guedes [7] : "The calculation of the quantum of a future amount, such as loss of earning capacity , is not, as I have already indicated , a matter of exact mathematical calculation. By its nature, such an enquiry is speculative, and a court can therefore only make an estimate of the present value of the loss that is often a very rough estimate (see, for example, Southern Insurance Association Ltd v Bailey NO). Courts have adopted the approach that, in order to assist in such a calculation, an actuarial computation is a useful basis for establishing the quantum of damages”. [28]  An award of 15 % of the actuarially quantified gross prospective income but for the collision is a fair assessment of the probable future patrimonial loss of earnings resulting from the collision related injuries, sequalae, prognosis, future treatment and current accommodation in the workplace. (R4 849 848 x 15% = R 727 477,20) [29]  An order is made as set out above and I hand down the judgment. P UYS ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION JOHANNESBURG Signed Electronically Delivered: This judgment was prepared and authored by the Acting Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 20 December 2025 . FOR THE PLAINTIFF:                             Adv Mohlabi Ramakgwakgwa Attorneys Inc DATE OF THE HEARING:                       3 December 2025 DATE OF JUDGMENT:                            20 December 2025 [1] Rudman v Road Accident Fund 2003(SA 234) (SCA). [2] Santam Versekeringsmaatskappy Beperk V Beyleveld 1973(2) SA146 (A) 150 B-D and Dippenaar V Shield Insurance Co Limited 1979(2) SA904 (A) 917 B-D [3] Union and National Insurance Co Limited v Coetzee 1970(1) SA295 (A) AT 300A. [4] De Klerk v ABSA Bank Ltd and others 2003(4) SA 315 (SCA) [5] 1984 (1) SA 98 (A). [6] Ibid at 116G-117A . See also Shield Insurance Co Ltd v Booysen 1979 (3) SA 953 (A). [7] 2006 (5) SA 583 ( SCA) at 586 H - 587 B. sino noindex make_database footer start