NORTH WEST HIGH COURT, MAFIKENG
CASE NO.: 471/2009
In the matter between:-
KODISE BENJAMIN MOTLHABANE Plaintiff
ROAD ACCIDENT FUND Defendant
 The plaintiff claims damages from the defendant due to a motor vehicle
accident where he (plaintiff) sustained serious injuries. The damages
are as follows:
1.1 Past hospital expenses R30 000-00
1.2 Future medical expenses R200 000-00
1.3 Future loss of earnings/
Loss of earning capacity R500 000-00
1.4 General Damages R200 000-00
 The accident occurred on 15 December 2005 when the bakkie which
plaintiff was driving was stationery on the road way, with a direction
indicator on, in order to communicate a turn. A motor vehicle which was
driven by a traffic officer knocked the bakkie from its rear and also on its
 Plaintiff was seriously injured as a result of this accident. The gear lever
pierced his lever; he sustained a tumor like swelling or lump on his
forehead (which was still visible on 3 November 2011 during the hearing
of the case). His back and knee were also injured. He has since
developed a hearing problem; his head cannot turn side-ways; he is
unable to lift heavy objects, he finds it difficult to remain standing for
more than an hour. Another subsequent problem is enuresis (bed
wetting). He experiences lower back pain after driving for about one
hour; he develops pain on his left knee whenever he changes gears and
he hears foreign sounds in his ears which (ears) have become very
sensitive to loud noise.
 On 30 May 2011 an order was issued in this court in terms of which the
defendant was directed to compensate the plaintiff his proven or agreed
damages. This trial is therefore in relation to quantum.
 The plaintiff was 51 years old when this tragedy struck. He was a food
hawker around Rustenburg. He used his bakkie in this business but it
was unfortunately damaged beyond repair and written off due to the
 The issues are what is the appropriate amount (if any) for loss of
earnings or earning capacity as well as general damages.
Loss of earning/earning capacity
 The only witness who testified was the plaintiff. He estimated his nett
monthly profit from his business prior to the accident at R6 000-00 to
R8 000-00. Although he testified that he kept “books of account” none
was handed in during the hearing. His explanation about this failure is
that his attorney never asked for such documents. Unfortunately for the
plaintiff, he told Dr Pretorius, an industrial psychologist, on 7 October
2011 that his monthly nett profit was in the region of R4 000-00 to
R6 000-00. At page 11 of the report which is dated 25 October 2011 Dr
Pretorius has this to say:
“He reports that he conducted his business entirely in cash, without a
paper trail and that no documentary proof is available to verify his
 His evidence in court that he had some kind of financial records seems
to be an afterthought.
 It is worthy to note that although he stated that his annual nett profit
could have been R48 000-00 to R72 000-00, this is far above the scale
reported by Koch for self-employed individuals in the informal sector
(being R5 700-00 – R14 200-00 – R38 400-00 per annum). In accepting
that the plaintiff’s nett monthly profit could probably have been R4 000-
00, Dr Pretorius remarked as follows at page 11 of his report:
“On direct questioning, it was noted that the claimant has a fair
understanding of business principles like profit and loss, direct costs and
turnover. He specifically reported that as part of his business, he sold
plates of pap and meat for R25-00 a plate, and that his impute costs
was approximately R12-50 per plate. Using the claimant’s own simple
formula, it is noted that in order to achieve a profit of R4 000-00 per
month, he would have had to sell 320 plates per month, or on average
11 plates per day assuming a 6 day work week.”
My problem is that there is no evidence that the plaintiff worked for five
or six days in a week.
 When the plaintiff was interviewed by Sandra Moses, an industrial
psychologist, on 22 February 2011 – fairly recently, he never stated to
his interviewer that he was a hawker, with some form of monthly income
at the time of the accident. This non-disclosure lead Moses to the
conclusion that he had suffered no loss in relation to earnings.
 Despite the remarks, findings and recommendations by Moses, I am
satisfied that the plaintiff was a hawker as at the date of the accident.
The evidence in this regard is sufficiently weighty to justify this finding.
As was stated earlier, his alleged monthly nett profit of about R4 000-00
was a bare estimation if not a wild guess. The fact that when he gave
evidence in court he came with a higher figure above R4 000-00 per
month is yet another indication of his uncertainty about his alleged
income. From his evidence it is clear that he tried to inflate his income
in court as compared to what he told experts in the past. In my view, it
is therefore not safe to rely on his mere say-so about his actual income.
Consequently, I will assume that his nett profit, around 2005 would have
been in the region of R21 000-00 pa. This is a very conservative figure
but it falls within the scale (5 700 – 14 200 – 38 400) of unemployed
people (Koch 2011 Quantum Year Book)
 The plaintiff is unable to work in order to earn a living after the accident.
I assume that he would have started working from January 2006 with a
salary of R22 050-00 pa in terms of rand values in 2011. He would have
continued employed till he retired when he became 60 years old.
 Based on the above reasoning and taking into account Dr Koch’s
recommendation, it is my view that the plaintiff’s loss is as follows:
Past income R98 728
Future income R66 763
Total R165 491
 The above amount is subject to a reasonable deduction for
contingencies. We have gone through the recession in the recent past
and the economy is still recovering. The rate of unemployment is very
high. The plaintiff’s income would never have been immune from such
and other adverse economic factors. I am therefore of the view that a
contingency of 15% should be allowed. The net result would be an
award of R140 667-35 for past and future loss of income.
 Prior to the accident, the plaintiff was in perfect good health and he was
not involved in any motor accident before. He has obtained a Std 6 level
of schooling and was a vendor who managed his own business.
 The nature of the injuries which he sustained as a result of the accident
have been set out in paragraph 3 of this judgment. What follows are the
views of the various experts who interviewed/examined him.
Dr Matime (Orthopaedic surgeon)
 The plaintiff either sustained or was complaining about the following
Head injury as a result of a bump against vehicle windscreen
Bruises over nasal bridge
Decreased vision in the eyes
Left knee injury
 On the same day of the accident (15 November 2005) at Rustenburg
hospital he was treated on analgesia and anti-inflammatories. He was
treated and discharged. On 16 November 2005 he consulted Dr
Sentane due to persistent pain who also treated him on analgesia, anti-
inflammatories and an eye ointment.
 When he was examined by Dr Matime on 3 March 2011 (almost five
years after the accident) he still complained about the following
problems: recurrent headaches; recurrent neck pain; bouts of epistaxis
and recurrent left knee pain. He has no obvious permanent scars as a
result of the accident. However, he has a soft cystic tumour-like mass
over the left flank.
 Radiological examination revealed mild/early cervical spine spondylotic
changes at the C4 and C5 level; a normal thoracic spine and an early
lumbar spine spondylotic changes L3 and L4 vertebral bodies. He
suffered acute pain for 3 to 4 weeks. This acute pain gradually subsided
over a further period of up to 6 weeks. He has never been completely
free from pain since the accident and he still has to take medication
whenever pain is severe.
 He will need to consult various medical practitioners intermittently,
especially his family practitioner for pain management. He will need to
purchase prescription analgesics and non-steroidal anti-inflammatory
drugs periodically for the management of pain. No orthopaedic surgery
procedure will be necessary as a result of this accident. He sustained
Dr Erlank (Plastic and Reconstructive surgeon)
 On 13 March 2009 he examined the plaintiff. He confirms the findings of
Dr Matime on the tumour-like mass on the forehead and the soft tissue
injuries on the left knee. He bled profusely through the nose after the
accident. He has now developed a poor memory and is forgetful. He
lost consciousness and only came to his senses in hospital. He had no
serious intra cranial injury nor displaced facial bone fractures.
 The plaintiff is very self-conscious about the large lump on his forehead.
He still experiences pain in his left abdomen where he received a blow
during the accident. The tumour on his forehead will have to be
completely removed in a surgery procedure and that will leave a scar of
about 3 cm.
Ms Adelaide Phasha (Occupational therapist)
 She interviewed him on 14 March 2011. After the accident, he used two
crutches for two months. He enjoyed running prior to accident but he is
no longer able to run due to lower back and left leg pain. He has since
put on more weight.
 He experiences pain to his lower back when cutting toe nails. He is now
able to wash and iron few clothes at a time due to lower back pain. He
has reduced autonomy with regards to home maintenance task. He
experiences lower back pain after driving for an hour and the left knee
pain when changing gears.
Rialette Gous (Speech/Language Pathologist and Audiologist)
 The plaintiff has abnormal hearing abilities in both ears. Both ears
reflect a mild to moderate sensory-neural hearing loss that affects the
whole frequency spectrum. This hearing loss is caused by concussion
of the cochlea as a result of the head injury he sustained during the
accident. He has some damage to the outer hair cells of the cochlea
resulting in abnormal cochlea functioning. This probably may also be
secondary to the brain injury he sustained in the accident.
 Speech discrimination problems are present confirming the hearing loss
as well as the communication problems he experiences. The type of
hearing loss he has is of sensory-neural in nature, indicating no benefit
from medication or surgery. Only amplification will help. He needs
amplification in both ears to keep him in contact with his environment.
Suitable hearing amplification implies good functional hearing aids.
Although he may use hearing aids, his hearing abilities may deteriorate
overtime. He will need follow-up consultation of at least 6 to 8 sessions
per year after fitting the hearing aids.
Dr Lekgwara (Specialist Neurosurgeon)
 Dr Lekgwara examined the plaintiff on 16 July 2008. His view is that he
sustained a mild head injury. He suffers from post concussion
syndrome characterised by recurrent headaches. 80% of similar
patients improve within 3 years but only 20% remain on chronic
medicine. He suffered acute pains for one week after the accident and
thereafter he suffered chronic pains up to date.
Evaluation of the evidence
 In Road Accident Fund v Marunga 2003 (5) SA 164 (SCA) at 169E-G
(par.23) the Court stated that:
“This Court has repeatedly stated that in cases in which the question of
general damages comprising pain and suffering, disfigurement,
permanent disability and loss of amenities of life arises a trial Court in
considering all the facts and circumstances of a case has a wide
discretion to award what it considers to be fair and adequate
compensation to the injured party. This Court will interfere where there
is a striking disparity between what the trial Court awarded and what this
Court considers ought to have been awarded: See Protea Assurance
Co Ltd v Lamb 1971 (1) SA 530 (A) at 535 A-B and the other cases
 In Marunga’s case, supra, the victim (respondent) in a motor accident
sustained the following injuries:
a fracture of the left femur;
a soft tissue injury in the chest area; and
bruises on the forehead, left arm and left knee.
 On 9 April 1993, (in Marunga case) the day after the collision, the
respondent was subjected to a surgical procedure in terms of which a
plate and screws were inserted in his left leg in order to deal with the
fracture of the left femur. He spent five months in hospital two of which
were spent with his leg in traction and in plaster. He used crutches after
his discharge from hospital for approximately five months. In 1997 he
was readmitted in hospital for the surgical removal of the plate and
screws. As it turned out, the plate had moved and caused a mal-union
and angulation of the femur that resulted in a shortening of the
respondent’s left leg. He spent two weeks in hospital after the plate and
all the screws but one were removed. He attended different hospitals at
intervals for a period of approximately four years for treatment. The trial
court awarded an amount of R375 000-00 as general damages. On
appeal the award was set aside and replaced with R175 000-00.
 The facts of yet another case, Princess Mbola v Road Accident Fund,
Case No. 625/2005 dated 30/10/2008 (ECG) are relevant here. A minor
child, who was involved in a motor accident, sustained the following
injuries: abrasions to her forehead and a concussive head injury. The
head injury presented the victim with permanent neurocognitive deficits
which were attributed to a mild traumatic brain injury. Damages to the
amount of R300 000-00 were awarded but contributory negligence
reduced this award to a final figure of R270 000-00.
 The case of Mbola supra and Makapula v Road Accident Fund
(1635/07)  ZAECMHC 17 (8 April 2010) are more comparable to
the present matter. In the latter, a five year old was knocked down by a
vehicle; experts described the injuries as follows: He sustained
significant bruising and abrasions on the right side of the head and face.
The upper incisor teeth were broken and knocked out of the mouth. The
experts diagnosed the presence of primary brain injury (the diffuse
axonal injury) with transient loss of consciousness that was followed by
a rapid return to normal state of alertness.
 Due to post concussional syndrome that developed from the brain injury
the child suffered headaches every 1 to 2 days a week but these
headaches resolved within 18 months after the accident. He also
suffered pains for 2 – 3 weeks (after the accident) due to injuries he
sustained. He had suffered a mild moderate concussive type of
 The effect of all these injuries on the victim (in Makapula) was that he
became rough when he played with his younger brother and other boys
– he would throw stones at them. When his guardian rebuked him for
such misbehaviour, he refused to listen and he reacted violently towards
her (guardian). At school he was uncooperative and often refused to
adhere to instructions, by leaving the classroom frequently to play
outside. He had a tendency to sleep early at night and was unable to
wake up on his own the subsequent morning. The court awarded
R300 000-00 damages.
 Considering the present case (Kodise case), the plaintiff still has a lump
on his forehead six years after the accident. In future he will still have to
endure pain during the surgical procedure to remove it. Thereafter, he
will remain with a permanent scar on the forehead. The bed-wetting
problem is still pestering him even now. This problem humiliates him in
his family (his wife and children). Every morning wet items of bedding
have to be hung on the washing line to dry. Very soon, there is a
potential that even neighbours may get to know that he has this
problem. This whole problem causes him depression and anxiety. It is
difficult to say whether he will be healed at some stage or that he will
have to live his whole life with the problem.
 The pain on the back seems to be permanent in nature especially
because there are signs of bone/joints deterioration. Orthopaedic
surgeons have been unable to arrest this pain. The hearing loss due to
concussion of the cochlea has the effect that he will live with this
problem for the rest of his life. No medication can reverse this situation.
He will have to depend on hearing aids forever. There is a potential that
his hearing will deteriorate further despite the hearing aids.
 Counsel for the plaintiff, Ms Hawman, urged this Court to award
damages of R500 000-00. The problem with this submission is that the
nature of the injuries and their effect on the plaintiff, are lesser than
those in Mbola and Makapula cases. My view is that it would be
irrational to award damages in excess of those which were awarded in
the latter two cases. The Marunga case is somewhat different in that
the nature of the injuries do not match the present matter.
 My view is that a fair and reasonable amount under the circumstances
would be R190 000-00.
 When counsel addressed Court I was informed that the heads of
damages “Past and Future medical/hospital expenses” had been settled.
 Consequently the following order is made:
1. The defendant is ordered to pay the plaintiff the sum of R140 667-
35 for loss of earnings/earning capacity;
2. The defendant to pay the plaintiff the sum of R190 000-00 for
3. The defendant to pay the plaintiff’s costs of suit and the
reasonable qualifying, reservation, travelling and accommodation
fees and expenses (if any) of the following experts:
3.1 Dr A. M. Matime
3.2 Dr J. D. Erlank
3.3 Ms Adelaide Phasha
3.4 Ms/Mr Rialette Gous
3.5 Prof. Patrick Lekgwara
3.6 Ms/Mr Narropi Sewpershad
3.7 Dr J. Koch and
3.8 Ms Sandra Moses
JUDGE OF THE HIGH COURT
DATE OF HEARING: 03 NOVEMBER 2011
DATE OF JUDGMENT: 09 DECEMBER 2011
COUNSEL FOR APPLICANT: ADV. R. HAWMAN
COUNSEL FOR RESPONDENTS: ADV. S. K. MOJAMABU
ATTORNEYS FOR APPLICANT: GURA TLALETSI INC.
ATTORNEYS FOR RESPONDENTS: D C KRUGER ATTORNEYS