Masemola v Road Accident Fund

The appellant, Ms Debbie Mahlaku Masemola, was injured on 1 November 2011 while a passenger in a motor vehicle collision in Limpopo. She sustained head, neck, elbow and facial injuries. The Road Accident Fund (RAF) conceded 100% liability and undertook to cover medical expenses under s 17(4)(a) of the Road Accident Fund Act 56 of 1996. The only dispute concerned the appropriate contingency percentage to be deducted for pre-morbid future loss of earnings. The parties agreed on the actuarial basis and reports, but not on whether a 10% or 15% contingency deduction should apply. The High Court imposed a 15% deduction and erroneously calculated a monetary award, despite being asked only to determine the applicable contingency percentage. Ms Masemola appealed to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of two counsel. The order of the High Court was set aside and replaced with an order that the pre-morbid contingency deduction for future loss of earnings is 10%, and that the RAF must pay the plaintiff’s costs, including expert costs.

The case reaffirms the principles governing appellate interference in contingency deductions for loss of earnings, emphasising that while such determinations are discretionary, they must be exercised judicially and with proper regard to the claimant’s individual circumstances. It also highlights the obligation of courts to respect the issues placed before them by agreement between parties and underscores concerns about inefficiencies in RAF litigation.