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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 13350/14
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 6 August 2024
E van der Schyff
In the matter between:
The Road Accident Fund Applicant
and
Schalk Willem Petrus Izaakse N.O. Respondent
JUDGMENT
Van der Schyff J
Introduction
[1] This is an application for the rescission of a default judgment handed down on 4
June 2021. It is brought in terms of Rule 42(1) of the Uniform Rules of Court,
alternatively, the common law. The application is opposed.
[2] The applicant, the Road Accident Fund (RAF), contends that it discontinued the
services of its panel of attorneys, and this led to many of its legal matters being in
a state of disarray. Many of the law firms refused to return the files they were
briefed in, to the RAF. In this matter, RAF contends, the existing attorneys, whose
services were subsequently terminated, were not served with the notice of set
down of the matter for trial. Judgment was granted by default on 4 June 2021.
[3] While the applicant was in the process of ‘investigating’ the judgment, it noted a
discrepancy between the amount claimed and the amount the court ordered it to
pay in relation to past medical expenses incurred by the plaintiff in the matter, M s.
Izaakse. At the same time, it came to the applicant’s attention that Ms. Izaakse had
pre-existing injuries.
[4] The grounds for the rescission application in terms of Rule 42 are that a notice to
amend the amount claimed was only served on the RAF’s offices on 3 June 2021,
a day before the judgment was handed down. The RAF takes issue with what it
typifies as non-compliance with the provisions of Rule 28 as no Rule 28(1) and (5)
notices were filed and submits that the amendment was irregular. The RAF also
contends that the notice of set down was not served on its former attorneys.
[5] For rescission in terms of the common law the RAF contends that it became aware
of the judgment on 9 June 2021. On 24 June 2021 the Acting Regional Manager
advised the applicant’s office that the judgment be rescinded since the amounts
were inflated. The financial challenges faced by the RAF, which was widely
published, caused the RAF to terminate the mandate of its panel of attorneys and
as a result the process of litigation has been slower than usual. The RAF was
hampered by the inability to fund the resc ission application regarding the default
judgment which was erroneously granted ‘and forced to sit with the orders and
approvals until such time as funds became available to brief attorneys and
counsel.’
[6] The respondent’s attorney of record deposed to the answering and supplementary
answering affidavit. He states that a notice of set down was served on 10
September 2020. A notice of amendment was served on 3 June 2021. The notice
was not a notice in terms of Rule 28(1) but if regard is had to the content of the
notice, it was a notice in terms of Rule 28 (10). The notice informs that the plaintiff
intends to apply at the hearing of the matter for an amendment of the amount claim
for past medical expenses of R110 016,13 to R2 688 134.14. The amendment was
granted on the day the matter was finalised.
[7] The respondent contends that no explanation is provided for the inordinate delay in
instituting this rescission application.
Discussion
[8] It was already held by Thulare J in Road Accident Fund v Mcdonnell In Re:
Mcdonnell v Road Accident Fund 1 that the termination of its panel of attorneys
cannot be regarded as an acceptable excuse when an application for rescission is
considered. In casu , however, the RAF contends in its founding affidavit that a
notice of set down was not served on its erstwhile attorneys of record. The notice
of set down was served electronically on the erstwhile attorneys of record by
emailing it to k[...] on 10 September 2020. Tau Phalane Incorporated only withdrew
as the RAF’s attorneys of record in April 2021. In addition, a Rule 37 (2) notice
wherein the trial date is clearly reflected, was emailed to the claims handler dealing
with this matter on 4 May 2021.
[9] As for the amendment of the quantum, Rule 28 (10) provides a court with a wide
discretion to grant a party leave to amend any pleading at any stage before
judgment. In casu, the defendant, the RAF, has already pleaded. The amendment
did not introduce a new cause of action. T he defendant failed to appear at trial,
despite email correspondence dispatched on the trial date, reminding it of the trial
and also providing it with the schedule of medical expenses that the plaintiff
intended to present at trial. The schedule of medical vouchers was also uploaded
to the ‘Caselines’ file which the RAF had access to already on 26 May 2021 . The
amendment was effected to bring the quantum in line with the evidence presented
to the court on affidavit.
[10] The judgment was not erroneously obtained, and Rule 42(1)(a) does not apply.
1 (13183/2015) [2022] ZAWCHC 116 (9 June 2022).
[11] In Chetty v Law Society, Transvaal 2 the court was faced with an application for
rescission in terms of the common law. The court held:
‘But it is clear that in principle and in the long-standing practice of
our Courts two essential elements of “sufficient cause” for
rescission of a judgment by default are:
(i) That the party seeking relief must present a reasonable
and acceptable explanation for his default; and
(ii) That on the merits such party has a bona fide defence
which, prima facie, carries some prospect of success. ( De
Wet’s case supra at 1042; PE Bosman Transport Works
Committee and Others v Piet Bosman Transport (Pty) Ltd 1980
(4) SA 794 (A); Smith NO v Brummer NO and Another; Smith NO
v Brummer 1954 (3) SA 352 (O) at 357-8)
It is not sufficient if only one of these two requirements is met; for
obvious reasons a party showing no prospect of success on the
merits will fail in an application for rescission of a default
judgment against him, no matter how reasonable and convincing
the explanation of his default.’
[12] The RAF did not only not provide a reasonable and acceptable explanation for its
default, but it also failed to show that on the merits, it has a bona fide defence. The
existence of pre -existing injuries on its own, is neither here, nor there. The only
expert evidence on record is the evidence presented by the plaintiff’s expert
witnesses. The now-deceased plaintiff was a vulnerable individual before the
accident occurred. The talem qualem principle thus finds application.
[13] The general principle is that costs follow success. A case is not made out for
punitive costs. The respondent employed two counsel. The nature of the
application does not justify the employment of two counsel.
ORDER
2 1985 (2) SA 756 (A) 764I-765F.
In the result, the following order is granted:
1. The application is dismissed with costs, counsel’s cost on Scale B.
E van der Schyff
Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the
electronic file of this matter on CaseLines.
For the applicant: Mr. L. Lebakeng
Instructed by: State Attorney
For the respondent: Adv. D. Keet
Instructed by: Van Dyk Steenkamp Attorneys Inc.
Date of the hearing: 29 July 2024
Date of judgment: 6 August 2024