Shareen v Road Accident Fund (2025/122207) [2025] ZAGPJHC 1321 (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 1321 | Noteup | LawCite sino index ## Shareen v Road Accident Fund (2025/122207) [2025] ZAGPJHC 1321 (23 December 2025) Shareen v Road Accident Fund (2025/122207) [2025] ZAGPJHC 1321 (23 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1321.html sino date 23 December 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG Case Number:2025/122207 (1) REPORTABLE: YES / NO (2) OF INTEREST TO OTHER JUDGES: YES / NO (3) REVISED: YES / NO 23 DECEMBER 2025 In the matter between: MSOMI SNEGUGU SHAREEN Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT MAKGATE AJ: INTRODUCTION [1] The action came before this Court as an application for default judgment against the Road Accident Fund. The Plaintiff, proceeded on both aspects of merits and quantum. An order in terms of Rule 38(2) of the Uniform Rules was sought and granted. [2] On or about 23 June 2022, the Plaintiff was a passenger in a motor vehicle bearing registration number and letters F[…], there and then driven by one Refilwe Elinah Khumalo when she was involved in a multi-vehicle accident. The said accident occurred at a robot intersection in Nelspruit. [3] The cause of the accident was the negligent driving of the motor vehicle(s) by the first insured driver and/or the second insured driver and/ or the third insured driver in that, they drove the vehicle(s) at high speed and/ or failed to apply brakes timeously and/ or failed to avoid the accident when by the exercise of reasonable care and skill, they could and should have done so. [4] As a result of the accident, the Plaintiff suffered chest injury, head injury and right elbow injuries. Pursuant thereto, the Plaintiff was admitted at Medi-clinic Nelspruit for the treatment of the injuries sustained. [5] Following the accident, the Plaintiff lodged a claim against the RAF during 2022. Summons were served on the RAF on the 29 July 2025. A notice of bar was served on the State Attorney during the 23 September 2025 which was not reacted to. The requisite time within which to file a plea lapsed without any action being taken by the RAF. Therefore, the matter is properly enrolled to be heard as a default judgment application. [6] In this application, amongst others, the Plaintiff seek an order in the following: [6.1]      That the RAF compensate her 100% of her proven damages. [6.2].     Compensation in an amount of R2 029 687.00 (Two million twenty-nine thousand, six hundred and eighty-seven rand) in respect of loss of earnings and/ or earning capacity. [6.3]      Payment of interests in the event the RAF fails to make payment within the 60 days from the date of the order. [6.4]      Postponement of the general damages, sine die . [6.5]      Costs on High Court Scale B. MERITS [7] The Plaintiff’s testimony was as per her section 19(f) affidavit [1] and is as follows: “ On the 25th June 2022, I was a passenger at or near Karino estates Robots, Lagogote Road, Kanyamazane, Nelspruit when a motor vehicle collided another and lost control then collided the motor vehicle I was travelling in and I sustained injuries.” [8] The Officers Accident Report [2] that is uploaded on Caselines confirms that the accident did occur as aforementioned and that the Plaintiff was a passenger in one of the motor vehicles. [9] It is trite that in a passenger’s claim, a claimant needs to prove only 1% negligence of the part of the driver. See also Groenewald v Road Accident Fund [3] “ It is trite that the plaintiff, as a passenger claimant, need to prove only 1% negligence on the part of the insured driver in order to succeed with her claim against the defendant.” [10] That said, I struggle to understand why negligence on the part of an insured driver is, in passenger claims, sometimes treated as some brainteaser because, there is simply no way a passenger can be liable for a motor vehicle accident. [11] Accordingly, I have no hesitation in finding that the Defendant is 100% liable for the Plaintiff’s proven damages. MEDICO LEGAL EXPERTS [12] As a result of the collision, the Plaintiff sustained the following bodily injuries: mild head injury, right elbow injury and chest injury. [13] The Orthopaedic Surgeon, Dr Tladi, assessed the Plaintiff approximately two and a half years post-accident. On examination, Dr Tladi records residual complaints consistent with soft-tissue trauma rather than physical impairment. He confirms that the Plaintiff had no pre-existing orthopaedic conditions. In his opinion, he does not identify permanent orthopaedic disability but supports ongoing symptoms in the right upper limb which may impact endurance and functional tolerance. [14] Dr Seroto, the Neurosurgeon, evaluated the Plaintiff for head and neurological sequelae arising from the accident. The clinical neurological examination did not reveal focal neurological deficits, gross motor weakness, or features of severe traumatic brain injury. [15] The neurosurgeon however concluded that the Plaintiff suffered a mild head injury / concussive-type injury, with residual symptoms largely subjective in nature. Further, no neurosurgical intervention was required, and the prognosis from a structural neurological perspective is favourable. Any ongoing complaints are considered more consistent with post-concussive or neuropsychological sequelae rather than surgically remediable pathology. [16] Mr Modipa, the Clinical Psychologist, conducted a neuropsychological assessment to evaluate cognitive, emotional, and psychological sequelae of the accident. In his opinion, the Plaintiff did not demonstrate significant objective cognitive impairment. He however opined that the Plaintiff reported persistent emotional and psychological symptoms, including accident-related anxiety, intrusive memories, sleep disturbance (insomnia), and reduced sociability. [17] In his report, he concludes that the Plaintiff suffers from psychological sequelae consistent with trauma-related anxiety, rather than a primary neurocognitive disorder. These symptoms negatively affect the Plaintiff’s emotional well-being, concentration under stress, and overall quality of life. Therapeutic psychological intervention is recommended to mitigate long-term impact and improve adaptive functioning. [18] The Occupational Therapists also conducted an assessment focused on the Plaintiff’s functional capacity, activities of daily living, cognitive screening, and work-related abilities. According to the OT, the Plaintiff presented with residual pain, reduced tolerance for sustained or repetitive upper-limb tasks, and difficulty with higher-level functional demands. Formal assessments including PWPE and cognitive screening tools indicated that while the Plaintiff remains largely independent, she functions with reduced endurance and efficiency. [19] The Occupational Therapist concluded that the Plaintiff is functionally employable, but with limitations that may restrict her ability to compete optimally in the open labour market over time. The OT recommended consideration of work accommodations, pacing strategies, and acknowledge a loss of life amenities, particularly in relation to physical resilience, productivity, and long-term vocational sustainability. [20] The Industrial Psychologist – Ms Talia Talmud, assessed the Plaintiff’s pre- and post-morbid vocational potential and earning capacity. Pre-accident, the Plaintiff was a student with realistic prospects of entering the labour market and progressing through semi-skilled to skilled employment levels over time. Post-accident, she has managed to secure employment, indicating preserved employability. [21] However, Ms Talmud opines that the Plaintiff’s future career progression is vulnerable due to her physical and psychological limitations. While total unemployability is not suggested, a higher risk of interrupted employment, slower advancement, and reduced competitiveness exists. In her report, she opines that this justifies the application of higher post-morbid contingencies when quantifying future loss of earnings. [22] The actuarial report quantifies the Plaintiff’s loss of earnings based on the Industrial Psychologist’s career scenarios. Using accepted actuarial methodologies, the report assumes no material past loss but applies a substantially higher contingency to future earnings to reflect increased vocational risk. [23] The total recommended loss of earnings is R2,029,687.00 subject to final contingencies and court determination. ANALYSIS [24] 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 [4] and Dippenaar v Shield Insurance Co Ltd. [5] [25] As a 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 he or she had not been disabled. [26] Having regard to the aforesaid, the enquiry is not whether the Plaintiff was injured, but whether the accident caused a patrimonial diminution of earning capacity. What therefore needs to be determined is whether the Plaintiff has suffered loss of earnings, either actual or probable. As a result, the evidence presented must demonstrate that the Plaintiff is worse off in the labour market than she would probably have been but for the accident. [27] On the evidence presented, the Plaintiff has successfully completed her qualifications post the accident. She has also secured several employments, each with higher renumeration than the last. Objectively, this demonstrates upward mobility. Also, it demonstrates resilience and competitiveness. Further, during assessment by various experts, the Plaintiff has not shown to suffer employment instability, absenteeism, demotion, dismissal or stagnation due to the accident-related injuries. [28] That said, the above are objective facts that tend to contradict the proposition of a reduced earning capacity. [29] Furthermore, much as the orthopaedic and neurosurgeon’s reports confirms the injuries, the said injuries do not place the Plaintiff outside the light or sedentary type of work. In fact, her qualifications and employment do not require medium or heavy physical exertion. [30]  Also, it is imperative to point out that the Clinical Psychologist confirms no significant cognitive impairment and did not diagnose a condition rendering the Plaintiff unemployable or vocationally compromised. Critically, as already stated, the Plaintiff studied, graduated, and worked despite these symptoms. There is no evidence of psychological sequelae that caused missed work, impaired performance and prevented advancement. [31] On the other hand, the Industrial Psychologists does accept that there is no past loss of earnings and that the Plaintiff would have followed a similar career path even but for the accident. This conclusion contradicts the basis for the future loss of earnings unless compelling evidence for future derailment exists. At this stage, there is none. All that we have is simply speculations. [32] Having regard to the above, my considered view is that the Plaintiff has not discharged the onus of proving loss of earnings at this stage. [33] Considering the above, this Court is not willing to exercise its discretion and grant default judgment against the Defendant in respect of the Plaintiff’s claim for loss of earnings. In the circumstances, this Court, in the interest of justice, is also not prepared to dismiss the claim for loss of earnings. [34] It may well be so that the Plaintiff has a potential claim for loss of earnings, however, on the available evidence, this Court has its own doubts. As a result, the aspect of loss of earnings requires a trial. In that way, the interest of justice would be better served. [35] In the result, the following order is made: Order 1 The Defendant is liable for 100% of such loss as agreed or as proven by the Plaintiff. 2 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 . 3 The application for default judgment in respect of the Plaintiff’s claim for loss of earnings is refused. 4 The Defendant is ordered to pay the Plaintiff’s costs on High Court Scale B. T J MAKGATE ACTING JUDGE OF THE HIGH COURT JOHANNESBURG For the Plaintiff: Adv N Pather instructed by Mello Attorneys. Date of Hearing: 19 November 2025. Date of Judgment: 23 December 2025. [1] Caselines 01-84 [2] Caselines 01-97 [3] Groenewald C v Road Accident Fund (74920/2014) [2017] 879 at para [3]. [4] 1973 (2) SA 146 (A) 150 B - D [5] 1979 (2) SA 904 (A) 917 B - D sino noindex make_database footer start