Amely v Road Accident Fund (2024/003683) [2025] ZAGPJHC 1315 (23 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 1315 | Noteup | LawCite sino index ## Amely v Road Accident Fund (2024/003683) [2025] ZAGPJHC 1315 (23 December 2025) Amely v Road Accident Fund (2024/003683) [2025] ZAGPJHC 1315 (23 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1315.html sino date 23 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG Case Number: 2024/003683 (1) REPORTABLE: YES / NO (2) OF INTEREST TO OTHER JUDGES: YES / NO (3) REVISED: YES / NO 23 DECEMBER 2025 In the matter between: MAHLAPE MORAKANA AMELY Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT MAKGATE AJ: Introduction [1] At commencement of the hearing, an application in terms of Rule 38(2) of the Uniform Court Rules to lead evidence by way of affidavits and expert summaries instead of oral testimony was made and granted. [2] Accordingly, the Plaintiff’s case was proven through a bundle of affidavits and medico-legal reports from experts. This approach was adopted to substantiate the claim in the absence of the Defendant’s participation. [3] It is trite that default judgment is not there for the taking. The granting thereof remains a matter of judicial discretion, and a Court must be satisfied that a proper cause of action and a basis for the relief sought have been established. [4] In this case, the Plaintiff, Ms. Morakana Amely Mahlape, seeks delictual damages under the Road Accident Fund Act 56 of 1996 as amended, for injuries suffered because of a motor vehicle accident that occurred on the 27 November 2019. [5] At the time of the accident, the Plaintiff was a pedestrian crossing mimosa street in Roodepoort when she was struck by a Black Jeep Grand Cherokee driven by the insured driver, Mr. Beckett Clive Graham. An accident report confirms that indeed a collision occurred as alleged. [6] In terms of the accident report, the insured driver and the Plaintiff gave conflicting accounts of how the accident occurred. According to the insured driver, he claimed that he had stopped at a stop sign before turning, whereas the Plaintiff alleged that the insured driver has failed to stop and drove through the stop sign, hitting her as she was lawfully crossing. [7] In his heads of heads of argument, counsel for the Plaintiff, Mr Ralikhuvana, assert that the insured driver was negligent and caused the collision, by failing to keep a proper lookout and driving at an excessive speed, among other things. [8] Following the collision, the Plaintiff lodged her claim directly with the Road Accident Fund. Consequently, a direct offer of 90% liability in favour of the Plaintiff was made. In the heads of argument, the Plaintiff acknowledges that some contributory negligence is applicable and is willing to accept the 90% merits apportionment in her favour. That being the case, I accepted the 90% – 10% merits proposal. In the circumstances, the merits aspect was put to rest on that basis. [9] What then remained for determination was the quantum aspect, mainly the loss of earnings, with the general damages being postponed sine die. Legal principle [10] Section 17 of the RAF Act imposes liability for loss of earning capacity arising from bodily injury. In the matter of Southern Insurance Association v Bailey NO [1] the Appellate Division confirmed that such awards are inherently speculative but must be based on the best available evidence. Also, in RAF v Guedes [2] the Court affirmed the application of judicial discretion in quantifying future loss. [11] In the circumstances, loss of earnings or earning capacity is assessed on the basis that the Defendant must make good the difference between the value of the Plaintiff’s estate after the commission of the delict and the value it would have had if the delict had not been committed. See Santam Versekeningsbemaatskappy beperk v Beyleveld [3] and Dippenaar v Shield Insurance Co Ltd [4] [12] In the result, there must be a proof that the disability gives rise to a patrimonial loss, this in turn will depend on the occupation or nature of the work which the Plaintiff did before the accident or would probably have done if she had not been disabled. See also Union and National Insurance Co Ltd v Coetzee [5] The expert Evidence and Quantification of Loss [13] The Plaintiff filed medico-legal reports from four experts to substantiate her injuries and losses, the orthopaedic surgeon’s report, occupational therapist’s report, industrial psychologist’s report and the actuary’s report. [14] The orthopaedic surgeon, Dr. M.J. Tladi confirmed the nature of the orthopaedic injuries and their long-term consequences as permanent impairment of the left leg and knee. His opinion established that the injuries would cause chronic pain and functional limits, supporting the serious-injury claim. [15] The orthopaedic surgeon in his report has opined that the Plaintiff is at high risk of developing post-traumatic osteoarthritis in the damaged left knee joint. He further opined that in the Plaintiff’s case; the degeneration will likely progress to warrant a knee replacement surgery in the future. He however outlines specific future medical interventions that should be anticipated: a surgery to remove the metal implants from her leg with 6 weeks recovery and reconstructive surgery to repair the knee ligaments, with the possibility of a total knee replacement if her knee develops severe arthritis. [16] According to the orthopaedic surgeon, the functional impact of the injuries is a significant, permanent effect on the Plaintiff’s activities of daily living and work capacity. He explicitly states that her injuries are affecting her daily activities – for example, tasks that involve walking long distances, using stairs, kneeling, or carrying loads are now difficult or impossible for her. [17] The occupational therapist, Ms. Eva Tshukudu evaluated the Plaintiff’s post-accident functional capacity, concluding that the Plaintiff can no longer perform work that involves prolonged standing or heavy physical demands. This supports the contention that she cannot continue in her pre-accident job without accommodations. [18] In her conclusion, she opined that the Plaintiff residual physical capacity is significantly diminished compared to her pre-accident status. In her professional opinion, “ the claimant’s residual physical capacity post-accident does not match the one she had pre-accident ” . [19] She further noted that because of the Plaintiff’s age (52), limited formal education (Grade 12), and work experience confined to physically oriented jobs, it will be challenging for her to secure alternative sedentary employment in the open labour market. [20] Furthermore, the OT report supports the idea of “early retirement” on medical grounds. Specifically, the OT agreed that it is foreseeable that the Plaintiff will have to retire earlier than she would have without the accident because of the cumulative effect of her injuries and pain on her ability to continue working. [21] The industrial psychologist, Ms. Rene Pretorius opined on the Plaintiff’s likely career path and earnings but for the accident versus after the accident. Critically, the industrial psychologist concluded that due to the accident, the Plaintiff’s career advancement and work-life have been cut short. As a result, she recommended an earlier retirement age and noting a loss of promotion prospects. [22] The IP confirms that the Plaintiff was 46 years old at the time of the accident and had a Grade 12 education. Her employment history shows consistent work in the retail/service sector. Shortly before the accident, she was employed at Ruimsig Spar as a Bakery Assistant, a job involving customer service and manual tasks like preparing or packaging baked goods. [23] The report notes that between 1996 and 2006 she had intermittent employment and from 2007 onwards she worked in retail, eventually holding the bakery position at Spar by 2019. [24] The industrial psychologist in the assessment of the Plaintiff, has also gathered evidence about the Plaintiff’s advancement prospects prior to the accident. It was found via collateral information from her supervisor that the Plaintiff was being considered for a promotion to a supervisor role in the Spar bakery department. She had a solid work record and, but for the injury, it is likely she would have moved up to a supervisory position, which comes with higher responsibility and pay. The IP opined that she would have been promoted to supervisor, however, due to the accident and its sequelae , she was not promoted. As a result, the accident hampered her chances of being promoted. [25] The actuary, Mr. David Mereriwa starting point was the two earnings trajectories described by the IP: 25.1.     Uninjured scenario : Plaintiff works to age 65, with regular inflationary pay increases and a promotion. The actuary assumed her salary would have grown from its 2019 level in line with general earnings inflation, and a step-up for the supervisor promotion. For instance, by 2024 her but-for annual income is estimated around R76,000 and continuing upward thereafter. 25.2.     Injured scenario : Plaintiff had 5 months off work with partial pay only for the first 1.5 months or so, then returned to a lower income. Her earnings post-accident is taken from actual payslips and projected to only increase with inflation until she retires at 55 in about 3 years’ time. After 55, the scenario assumes zero earnings. [26] In the circumstances, the total figure arrived at by the actuary is a total gross loss of approximately R1,567,082.00 This figure is without contingencies. Analysis [27] The findings of the occupational therapist are that the accident-related injuries have reduced the Plaintiff’s physical capacities, especially for weight-bearing and strenuous activities. The OT observed that the Plaintiff walks with an abnormal gait, indicating ongoing impairment in her left leg. [28] In evaluating the work-related abilities, the OT considered that the Plaintiff’s pre-accident job as a Bakery Assistant at Ruimsig Spar was a physically medium to light duty job, involving long hours standing, walking, and occasional lifting. Post-accident, the Plaintiff cannot meet the full demands of this role without accommodations. [29] In practical terms, this means that the Plaintiff can manage tasks that are mostly seated or require only short periods of light physical effort, but she cannot sustain tasks that involve continuous standing, walking, or any heavy lifting. The report explicitly states: “ due to chances of developing post osteoarthritis of the left knee, she will be a candidate for sedentary jobs. She should avoid extended periods of standing due to left leg pain .” [30] Post accident, the Plaintiff has returned to her work albeit not immediately. The IP reports that she was absent from work for about 5 months recovering from her injuries. During this time, it appears her employer paid her for roughly 6 weeks of sick leave, and thereafter she had no income until she resumed work. She resumed work in early 2020 in the same position and has continued in that job to date, however, her post-accident earnings have not progressed as they might have. In other words, her income growth has been modest. The lack of promotion and perhaps reduced ability. [31] The IP’s post-morbid scenario is built on the premise that the Plaintiff will continue to work only until the age of 55 and then permanently exit the labour market. Having said so, this assumption is the basis of the claim for future loss of earnings, significantly impacting on the actuary’s future loss. [32] That said, the difficulty that this Court is faced with is that the Plaintiff has been able to return and remain employed for, almost 5 years now. This is despite the experts having opined that she will retire 10 years early. The Plaintiff is currently aged 52 with no sign that she is imminent for retirement. In the circumstances, the Court should legitimately ask: 32.1.   what objective evidence supports a conclusion that she will stop working entirely at age 55; and 32.2.   why has the predicted collapse of employability not happened yet? [33] These above questions do not however mean that there is no future loss but simply that, it is not automatic. As a result, the specific early-retirement assumption is merely speculative unless properly grounded, which is not the case herein. [34] Further, the IP opined that the Plaintiff would have been promoted to a position of a supervisor but was not promoted due to the accident. A further difficulty that this Court have with this conclusion is that there is no proof, for example: a written offer, open vacancy, performance appraisals, HR policy and/or supervisor confirmation. This is just an assumption. If the Plaintiff is still working in the same environment 5 years post-accident, why has no promotion occurred even with accommodation? The causal link remains contestable. [35] Strangely, the IP opined that the Plaintiff is “not suited” to her pre-accident/current job even while accommodated yet simultaneously assumes she will continue in the same position with inflationary increases until 55. [36] Having considered the totality of the experts’ opinions, one can only conclude that calculations for loss of earnings is not based on what has happened, but what might happen: the future early retirement and diminished prospects. As a result, If the “retirement age of 55 is not grounded or the assumption is weakened, it goes without saying that the largest part of the claim collapses. [37] As I have already indicated above, this Court does not dispute that there is no future loss, but its view is simply that, it is not automatic. [38] This Court accept that the Plaintiff did suffer real injuries with permanent sequelae . She also did suffer a proven past loss of income during recovery of her injuries. Also, she is more vulnerable on the labour market than a comparable uninjured person. [39] What I however find exaggerated is that the Plaintiff will exit the labour market entirely at age 55, as assumed by the IP. It therefore follows that the actuarial model premised on a 10-year total loss of future earnings cannot reflects the probabilities, given that the Plaintiff has remained employed for almost 5 years post-accident. [40] In the result, a fair approach is to accept that instead of retiring 10 years early, the Plaintiff may retire ±5 years early, for example at age 60 or experience intermittent employment difficulty. In as much as there is a real risk of earlier than normal retirement or employment disruption, this is however also not certain, hence a fair approach that her compensation for loss of earnings be based on scenario 2 actuarial calculations. [41] This approach is further justified by the fact that it aligns with reality in that the Plaintiff has remained economically active for years. As a result, this Court’s view is that the Plaintiff is not treated as uninjured, but neither is she treated as unemployable. Also, it respects the actuarial methodology without blind acceptance. [42] Further to the above, the Court is entitled to adjust assumptions that are no longer supported by facts to avoid speculative over-compensation. [43] In the result, the following order is made: Order 1. The Defendant is liable for 90% of such loss as agreed or as proven by the Plaintiff. 2. The Defendant is ordered to pay to the Plaintiff the amount of R562 629.00 less 10% R506 366.10 [ Five hundred six thousand three hundred sixty-six Rand and ten cents] , as damages for loss of income and earning capacity, because of the injuries sustained by the Plaintiff. 3. The Defendant is ordered to furnish the Plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act 56 of 1996 . 4. The Plaintiff’s claim for general damages is postponed sine die . 5. The Defendant is ordered to pay the Plaintiff’s costs on High Court Scale B, including the reasonable qualifying and travelling expenses, if any, for all medico-legal experts of the following experts: (a) Dr M J Tladi – Orthopaedic surgeon (b) X Rays- National radiology services Inc (c) E Tshukudu– Occupational therapist (d) Burger Consulting – Industrial psychologist (e) Quantum Actuary - Actuary T J MAKGATE ACTING JUDGE OF THE HIGH COURT JOHANNESBURG For the Plaintiff: Adv N Ralikhuvhana instructed by MS Kwata Incorporated Date of Hearing: 18 November 2025 Date of Judgment: 23 December 2025 [1] 1984 (1) SA 98 (A) [2] 2006 (5) SA 583 (SCA) [3] 1973 (2) SA 146 (A) 150 B - D [4] 1979 (2) SA 904 (A) 917 B - D [5] 1970 (1) Sa 295 A at 300A sino noindex make_database footer start