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[2021] ZAGPPHC 450
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Road Accident Fund v van Pittus and Others (99426/2015) [2021] ZAGPPHC 450 (30 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 99426/2015
In
the matter between
:
ROAD
ACCIDENT
FUND
Applicant
and
NICOLAAS
CLAUDIUS GEY VAN
PITTUS
First
Respondent
KRITZINGER
ATTORNEYS
Second
Respondent
SHERIFF
FOR PRETORIA
EAST
Third
Respondent
JUDGMENT
BAQWA
J
Introduction
[1]
The applicant has brought an urgent
application in which it seeks an order for a stay of a Warrant of
Execution dated 22 February
2021 pending finalisation of a Rescission
Application of an order granted in default in favour of the first
respondent by
this
court on 17 September 2021
.
[2]
The respondents oppose the application
on several grounds which shall be
dealt
with hereunder
.
[3]
The applicant has attached to the papers
herein a copy of an application for rescission which does not bear
the Registrar
'
s
stamp and which the respondents allege has not yet been served on
them
.
The
applicant
'
s
response is that the application for rescission was loaded on case
lines in order to receive the Registrar
'
s
stamp and date of hearing after which
they would effect service on the respondents
.
It would indeed appear that the
respondents have been invited on case lines to the rescission
application at 007-2
.
Points
in
limine
[4]
The respondents
have raised points
in
limine
in opposition
to this application
.
The
first one is that the Commissioner of oaths to the applicant's
affidavit commissioned a male person
'
s
affidavit even though the deponent is female
.
The second is that there is no
resolution by the applicant authorising the deponent to act on behalf
of the applicant. Due to the
points in
limine
the respondents submit there is
no proper founding affidavit before the
court and that applicant did not comply with Rule 6(1)
.
[5]
The respondents cite
Absa
Bank Ltd v Botha NO and Others 2013 (5) 563 GNP
,
where
it
was
held
that
a
court
should
not
be placed
in
a situation
where
it
is
required to speculate as to the gender of the deponent to an
affidavit. The applicant's
response
is that non-compliance by a commissioner of oaths does not per se
invalidate
an
affidavit and
that
a
court
could
condone non-compliance. See
WM
Mentz
&
Seuns
(Edms) Bpk v Katzake
1969 (3) SA 306.
[6]
In
Gokaldas
v Allah Wala Wholesalers
(45779/2017) [2018]
ZAGPPHC 631
(23
August
2018)
at para 12, the court
regarded the
commission
issue
as a
"
mere
"
technical
issue
which
can
be
condoned
and having considered the matter
,
I am of the
view that where there are more serious
issues to consider
,
such
as in this
case,
litigants
must
desist
from
putting
form
above
substance
where
the
relevant defects are not fatal to an application
.
Urgency
[7]
Regarding urgency, the respondents
submit that there is none because the applicant was invited on case
lines when the judgment was
granted and that the applicant ought to
have been aware of at that time
.
They
however concede that a copy of the judgment was only sent to the
applicant in April 2021.
[8]
What this court has to consider however
is urgency in relation to the warrant of
execution and the application for
rescission
.
[9]
It
is
common
cause
that
the
first
respondent obtained a warrant of
execution on
22 February 2021 which the applicant
seeks to stay pending the outcome of the application for rescission
.
[10]
It is also common cause that when default judgment
was
granted
on 17 September
2020
,
the
applicant was operating without a panel of attorneys
.
[11]
The
warrant
of execution was served on the applicant on 17 May 2021 after which
they appointed the current attorneys of record for purposes
of
launching the application for rescission.
[12]
In the
application
for rescission the applicant alleges
that the first respondent did not make out a case for loss of
earnings in
his
particulars
of claim and expert reports supporting the claim and that in terms of
seque/ae
there
was insufficient connection between the injuries suffered and the
loss of earnings
.
The
applicant submits that the court was not placed in possession of the
financial reports of the respondent's business pre-accident.
As
can
be
expected
these
allegations
are
denied
by
the
respondents
.
Interdict
[13]
What this court has to consider are the
factors relevant to granting
of
an
interdict.
It
what the applicant alleges regarding prospects of success
,
this
court
takes cognisance of that but
the
determination of
that
fact is for the court which will deal
with the
applicat
ion
for
resc
ission
.
[14]
In so far as the application for a stay
is concerned the applicant submits that it
has a
prima
facie
right as a custodian of the
public funds against which the first respondent seeks to execute
.
[15]
Regarding irreparable harm
,
the third respondent in its inventory
has listed the
movable
assets which
the
applicant is
using
to
carry
out its
day-to-day
statutory duties.
[16]
It is also common
cause
that the applicant services a
crit
i
cal
aspect of those members of the
community
who are unfortunate to be
involved
in motor vehicle accidents in the whole
country
and
that the public interest aspect of the case
should
not be lost sight of.
[17]
The respondents have raised points in
limine
which
are in essence techn
i
cal
points which in my considered view should not trump public interest.
[18)
Whilst the
first respondent is entitled to follow
his
rights
and
execute
against the
applicant
'
s
property to vindicate those rights
,
the
question must be asked whether the
matter has been fully ventilated in
court
.
The
applicant has raised what appea
rs
to
be
a
bona
fide
defence though it may be
doubtful. That is an issue for the rescission application court
.
[19]
The applicant has also explained how it came about that they were not
in court
when
judgment was granted by default. Whether that explanation will be
acceptable
to
the court hearing the application for rescission is a matter still to
be decided by
that
court
.
[20)
The effect of interdict staying the warrant of execution can
only be that of a delay which is not likely to cause the respondents
irreparable harm
.
On
the other hand
,
execution
at this stage is likely to have devastating consequences not only for
the applicant but millions of people in the entire
country
.
[21]
In the circumstances I am of the view
that the balance of convenience
f
avours
the granting of the relief sought.
[22]
In the result I make the following
order
:
The
application is granted and the draft order uploaded onto
case
lines
,
as
amended
,
is marked
'
X
"
and
made an order of court
.
SAM
BAQWA
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION HIGH COURT,
PRETORIA
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives
by
email
and
by uploading it to
the
electronic file of
this
matter
on
Case
Lines
.
The
date for hand-down is deemed to be 29 June 2021
.
Appearances:
Counsel
for the Applicants
Adv.
P Baloyi
Instructed
by
SEKATI-SEKATI
INC.
Counsel
for the first Respondent
Adv.
J Bisschoff
Instructed
by
PODBIELSKI
MHLABA INC.