Summary of Judgment

1. Introduction

The proceedings concerned an application for rescission of a default judgment granted against the Road Accident Fund (RAF). The RAF acted as applicant/defendant, and Adv Calyn D’Alton obo S[....] F[....] acted as respondent/plaintiff on behalf of a minor child.

The rescission application sought to set aside a judgment granted by Mali J on 10 February 2021 (with the hearing having proceeded in February 2021) in the Gauteng Division, Pretoria, in which the RAF was ordered to pay damages for the lifelong ongoing support of the minor, Miss S[....] F[....], who suffers from Down Syndrome and has a profound mental disability requiring special care throughout her life.

The procedural history was materially shaped by the fact that there were two actions instituted against the RAF arising from the same underlying loss-of-support claim: one in the Gauteng Division, Pretoria (instituted in 2014), and another in the Eastern Cape Local Division, Mthatha (instituted in 2016). The rescission application followed after judgment was granted in the Gauteng matter when the RAF did not appear.

The general subject matter of the dispute was therefore whether the RAF had met the requirements for rescission—under the common law (and alternatively Uniform Rule 42)—in circumstances where judgment had been granted in its absence, and where there was also an earlier order (or purported order) from proceedings in another division relating to the same cause of action.

2. Material Facts

Miss F[....]’s mother died in a motor vehicle accident on 4 May 2013. The father’s whereabouts were unknown. The minor child was cared for by her maternal grandmother, Mrs E[....] F[....], who the court described as an unsophisticated person with limited understanding of court processes. The court identified section 28(2) of the Constitution (the child’s best interests) as the starting point in approaching the matter.

On 26 November 2014, the grandmother, acting on behalf of the minor and on legal advice from attorneys in Pretoria, instituted an action in the Gauteng Division, Pretoria against the RAF for loss of support (“the Gauteng matter”). In that matter, the parties reached agreement on the merits, and on 20 September 2016 Ledwaba J issued an order that the RAF was 100% liable for proven or agreed damages, with quantum postponed sine die.

Separately, on 7 March 2016, the grandmother (again acting on behalf of the minor, but on advice of different attorneys based in Mthatha) instituted an action in the Eastern Cape Local Division, Mthatha against the RAF for loss of support (“the Eastern Cape matter”). The judgment records that judgment was apparently granted on 24 May 2019 in that matter in the sum of R 1 478 840.00 pursuant to a settlement. The court treated the status of the Eastern Cape order as uncertain because what was placed before it was only a draft order uploaded on Caselines that was not signed by a judge or stamped by the Registrar. The RAF contended that the amount had already been paid to the grandmother in terms of that court order.

In the Gauteng matter, after several unsuccessful attempts to set the matter down, it was allocated to Mali J on 8 February 2021. The RAF did not brief counsel or instruct an attorney with right of appearance to attend. Instead, the RAF instructed an employee, Ms Rangata, to attend and seek a postponement. It was undisputed that Ms Rangata did not have right of appearance. There was a dispute between the parties about whether she in fact requested a postponement, but the court considered it material that Mali J correctly informed her she was not entitled to appear and permitted her only to observe.

Mali J stood the matter down to the following week, and proceedings resumed on 16 February 2021. On that day, no one appeared for the RAF. The respondent’s counsel telephoned Ms Rangata, who said she was too busy to attend court and conveyed that the senior claims handler requested that respondent’s counsel send the RAF a copy of the court order. After hearing the respondent’s case, Mali J granted judgment for R 2 555 199.00 plus ancillary relief. The order included provisions addressing the earlier Eastern Cape award by requiring proof that those funds were invested and applied for the minor’s benefit, and authorising set-off against the Gauteng award upon receipt of satisfactory proof; failing such proof, the full Gauteng sum would be payable.

The rescission application before Lazarus AJ was brought on the basis of the common law, alternatively Rule 42, and was opposed.

3. Legal Issues

The central legal questions were whether the RAF was entitled to rescission of the judgment granted by Mali J, and specifically:

The first question was whether Uniform Rule 42 applied on these facts, namely whether the judgment was “obviously wrong” due to an error or mistake in the proceedings of the kind Rule 42 is intended to correct.

The second and principal question was whether the RAF had established “good or sufficient cause” under the common law requirements for rescission, which required the RAF to provide a reasonable explanation for its default, show the application was brought bona fide, and demonstrate a bona fide defence with prima facie prospects of success.

The dispute primarily concerned the application of legal principles to facts, in particular the assessment of whether the RAF’s absence amounted to wilful default, and whether the threshold for rescission was satisfied.

Although the case implicated the welfare of a minor child and referred to the best interests principle in section 28(2) of the Constitution, the court’s determination of the rescission application turned on whether the legal requirements for rescission were met, and the court’s evaluation of the RAF’s conduct in relation to default.

4. Court’s Reasoning

The court addressed the rescission grounds in the sequence raised. It first dealt with the RAF’s reliance on Uniform Rule 42, holding that Rule 42 was not applicable. The court characterised Rule 42 as a mechanism aimed at the expeditious correction of an “obviously wrong” judgment or order that arose from a mistake in the proceedings, such as where there existed a material fact unknown to the judge that would have affected the decision to grant the order. On the court’s assessment, Mali J did not grant judgment erroneously due to any such mistake in the proceedings.

Turning to the common-law rescission test, the court restated the three requirements: a reasonable explanation for default, bona fides in bringing the application, and a bona fide defence with prima facie prospects. The court emphasised that an applicant must satisfy all three, and that for the explanation of default, the applicant must show that the default was not wilful, meaning not intentional or deliberate.

On the facts, the court found that the RAF did not provide a reasonable explanation and was in wilful default. The court reasoned that by January 2021 the RAF knew the respondent wanted the trial to proceed in February and was not interested in further discussions. Despite this, the RAF elected not to brief counsel or an attorney with right of appearance and instead sent Ms Rangata to court to seek a postponement even though the RAF knew she lacked right of appearance and she herself knew she was not entitled to appear. The court considered that this could not be excused in the manner that it might be for a layperson.

The court further reasoned that the RAF knew the respondent did not agree to a postponement and therefore should have foreseen that a substantive postponement application would have to be properly brought and argued in court. The RAF’s default was compounded by what occurred after Mali J explained on 8 February 2021 that Ms Rangata could not appear and then stood the matter down for a week. The court treated that period as an opportunity for the RAF to regularise its representation by briefing an appropriate legal representative. The RAF did not do so, and then failed entirely to appear on 16 February 2021.

The court attached particular weight to Ms Rangata’s communication to the respondent’s counsel on 16 February 2021 that she was “too busy” to attend, and especially to the senior claims handler’s instruction that counsel should send the RAF a copy of the court order. The court interpreted this as indicating the RAF was aware that judgment might be granted against it and had reconciled itself to that outcome. On this basis the court concluded the RAF’s default was wilful and that the first rescission requirement was not met.

Because the RAF failed the first requirement, the court held there was no need to consider the remaining requirements (bona fides and the existence of a defence). The rescission application therefore had to be dismissed.

The court nevertheless returned to considerations linked to the minor’s position and the effect of the two matters. It recorded the respondent’s submission that the expert reports in the Gauteng matter more accurately reflected the real costs of lifelong care than the amount agreed upon in the Eastern Cape matter, and that Mali J’s order—particularly the establishment of a trust and appointment of a case manager—provided more comprehensively for the minor’s future care than the Eastern Cape arrangement. The court noted that the RAF presented no evidence to show that the Eastern Cape amount was better or more accurate than the Gauteng award. The court also accepted the respondent’s contention that difficulties commonly arising from two orders for the same cause of action did not arise in this case because Mali J’s order provided a mechanism for set-off. The court stated that even if sufficient cause had been shown (which it had not), rescission would serve no purpose because the matter would merely be referred back for another trial without addressing any identified advantage to the minor.

On costs, the court applied the general principle that costs follow the result and found no basis to deviate from that. Although the respondent sought attorney-and-client costs, the court declined to grant punitive costs, reasoning that the existence of a prior judgment by another court involving the same parties and cause of action “clouds” the culpability of the RAF in the matter as a whole and weighed against a punitive order.

5. Outcome and Relief

The court dismissed the RAF’s application for rescission.

The court ordered the RAF to pay the respondent’s costs on the ordinary scale. The request for costs on the attorney-and-client scale was refused.

Cases Cited

Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 28(2).

Rules of Court Cited

Uniform Rule 42.

Held

The court held that Uniform Rule 42 did not apply because the judgment sought to be rescinded was not granted as a result of an error or mistake in the proceedings contemplated by that rule.

The court held further that rescission under the common law requires good or sufficient cause, including a reasonable explanation for default that excludes wilful default. On the facts, the RAF was found to have been in wilful default, having failed to arrange proper legal representation despite knowing the trial would proceed and despite being alerted that its employee lacked right of appearance. Because the RAF failed to meet the first requirement for rescission, the rescission application was dismissed without the need to consider the remaining requirements.

The court also accepted that the structure of Mali J’s order, including provisions for a trust, case management, and set-off in relation to the Eastern Cape award, undermined any suggestion that rescission would serve a practical purpose in the circumstances.

LEGAL PRINCIPLES

The judgment applied the principle that Uniform Rule 42 is directed at correcting judgments or orders that are “obviously wrong” due to a relevant error or mistake in the proceedings, including the absence of a material fact that would have altered the decision, and that it is not a general mechanism for reopening judgments granted after proper process where a party simply failed to appear.

The judgment applied the common-law principle that rescission requires good or sufficient cause, comprising three cumulative requirements: a reasonable explanation for default, a bona fide application, and a bona fide defence with prima facie prospects of success. The failure to satisfy any one requirement is fatal to rescission.

In evaluating the explanation for default, the judgment applied the principle that the default must not be wilful, and treated deliberate or reckless failure to take steps to secure appropriate representation and attend proceedings—particularly after being alerted to inability to appear—as indicative of wilfulness.

The judgment also reflected the constitutional principle that a child’s best interests are of paramount importance in matters concerning the child, and considered the practical protective features in the trial court’s order (including trust administration and set-off) in assessing whether rescission would serve any meaningful purpose in the overall context of the minor’s welfare.