Moloi v Road Accident Fund

Ms Mananyana Jane Moloi sustained a head injury and facial wounds in a motor vehicle accident on 7 August 2016. She claimed damages from the Road Accident Fund (RAF). The merits were settled 100% in her favour and general damages were later agreed at R800 000. Only past and future loss of earnings remained in issue (future loss claimed at R3 121 850). The applicant did not testify personally. She relied on expert witnesses: clinical psychologist Ms Stanton, industrial psychologist Dr Fourie, actuary Mr Immerman, and educational psychologist Ms Gibson (the latter by affidavit, her report not having been formally admitted under Uniform Rule 38(2)). At the time of the accident the applicant was a student; by the date of trial she had completed an Accounting degree, registered for an honours programme, and had been employed as an articled clerk for three months. The high court accepted the expert evidence for past loss of earnings but dismissed the claim for future loss of earnings with costs. The applicant appealed to the full court of the Free State Division, which upheld the high court's order and refused leave to appeal. She then petitioned the Supreme Court of Appeal for special leave to appeal.

• Whether the applicant established reasonable prospects of success on appeal against the dismissal of her future loss of earnings claim.
• Whether special circumstances existed to justify special leave to appeal under section 17(2)(d) of the Superior Courts Act 10 of 2013.
• Whether the high court misdirected itself in rejecting the applicant's uncontroverted expert evidence regarding future loss of earnings.
• Whether the applicant discharged the onus of proving future loss of earnings where she failed to testify personally and her expert evidence was based on outdated psychological assessments and inadmissible hearsay.
• Whether the magnitude of the quantum claimed constitutes special circumstances warranting special leave to appeal.

The application for special leave to appeal against the judgment and order of the full court of the Free State Division of the High Court, Bloemfontein, was dismissed with no order as to costs.

1. An application for special leave to appeal requires both reasonable prospects of success and special circumstances; the latter may include a substantial point of law, a manifest denial of justice, or great public importance, but the quantum of the claim alone is insufficient. 2. A trial court does not misdirect itself by rejecting uncontroverted expert evidence if such evidence is founded on outdated factual premises, inadmissible hearsay, or lacks an objective factual basis; the court retains its independent duty to assess probative value. 3. A plaintiff bears the onus of proving future loss of earnings and cannot discharge it solely through expert opinion where she fails to testify personally and the expert evidence is not corroborated by objective facts such as employer evidence. 4. An application for special leave to appeal must, in its founding papers, clearly address the distinct requirements for such leave and not merely rehash the merits of the underlying appeal.

The court observed that the trial judge's own visual assessment from the bench that the applicant displayed no significant facial scarring contradicted the expert reports, which cited scarring as a factor affecting her confidence. It also remarked that the failure to obtain evidence from the applicant's employer left the theory of future loss of earnings 'entirely unmoored from objective reality,' and noted that special leave to appeal is not intended to afford litigants a further attempt to procure relief already refused.

The judgment reinforces the stringent two-tier threshold for special leave to appeal to the Supreme Court of Appeal: reasonable prospects of success are necessary but insufficient without special circumstances. It confirms that a trial court may reject uncontroverted expert evidence where it is based on outdated facts, inadmissible hearsay, or lacks an objective factual foundation. It underscores that a plaintiff claiming future loss of earnings based on subjective psychological sequelae cannot discharge the onus solely through expert opinion if she fails to testify personally and does not lead objective employment evidence. It also clarifies that the monetary magnitude of a claim does not, in itself, constitute special circumstances justifying special leave.