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2024
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[2024] ZAFSHC 236
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Road Accident Fund v Mahopi (4743/2022) [2024] ZAFSHC 236 (6 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 4743/2022
In
the matter between:
THE
ROAD ACCIDENT FUND
Applicant
and
SEROKHOANE
ADELICE MOHAPI
Respondent
In
Re:
SEROKHOANE
ADELICE MOHAPI
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
CORAM:
VAN ZYL, J
HEARD
ON:
15
FEBRUARY 2024
DELIVERED
ON:
6
AUGUSTUS 2024
[1]
This matter initially served before court on 23 January 2024 and in
terms of the notice of motion, the applicant
was seeking the
following relief:
“
1.
Condoning the applicant’s non-compliance with the rules …
2.
That the Judgment issued against the Applicant by Acting Judge
Mthimunye be stayed or suspended
pending the application for the
rescission of judgment granted by this Honourable Court on 1
st
December 2023 under case number 4743/2022.
3.
That in the event any of the Respondent opposes this application, be
ordered to pay costs
of this application; alternatively the matter be
postponed to Motion roll to enable the Respondent to file its
Answering Affidavit.”
(
sic
)
[2]
On 23 January 2024 the application was postponed, by agreement
between the parties, to 1 February 2024, with
the respondent to file
her answering affidavit on or before 29 January 2024, the applicant
to file its replying affidavit on or
before 30 January 2024 and the
costs occasioned by the postponement to be reserved for later
adjudication.
[3]
On 1 February 2024 it was ordered by agreement between the parties
that the matter be postponed to 15 February
2024, with the wasted
costs occasioned by the postponement to stand over for later
adjudication.
[4]
The founding affidavit filed in support of the application, does not
correspond with the relief sought in
the notice of motion. In
terms of the founding affidavit the aim of the application is to
actually rescind the order based
on the provisions of Rule 42(1)(c).
[5]
On 13 February 2024, two days before the hearing of the application,
the applicant filed a notice of intention
to amend and a further
document titled “Amended Notice of Motion – Rescission of
Judgment”. In terms of
the said amended notice of motion
the applicant is seeking condonation for the matter to be heard as
one of urgency and secondly
rescission of the order.
[6]
Attached to the amended notice of motion was a “new”
founding affidavit filed in support of the
application.
[7]
Although the filing of the aforesaid documents was completely
irregular, I am willing to accept for purposes
of the adjudication of
this application that the relief the applicant is seeking is in terms
of the so-called amended notice of
motion; hence, the rescission of
the order of 1 December 2023. I can, however, not accept the
new affidavit attached to the
amended notice of motion.
Background:
[8]
On or about 17 September 2017 the respondent was involved in a motor
vehicle collision in which she sustained
bodily injuries.
[9]
As a result of the collision and the injuries sustained, the
respondent submitted a claim to the applicant,
which claim was duly
submitted on or about 22 October 2018.
[10]
The respondent issued summons against the applicant on or about 28
September 2022, which summons was served on the applicant
on or about
3 October 2022.
[11]
The applicant entered appearance to defend the action and on 8
December 2022 the applicant filed its plea to the respondent’s
claim. From the pleadings it is evident that the defendant
filed a plea, but also a special plea against the respondent’s
claim for damages with regard to the issue of a “serious
injury” as contemplated in section 17(1)(A) of the Road
Accident
Fund Act, 56 of 1996 (“the Act”).
[12]
Subsequent to the close of pleadings in the main action on 19 June
2023, the legal representatives for the parties held
a pre-trial
conference as contemplated in Rule 37. During the said
pre-trial the legal representative for the applicant conceded
the
merits in favour of the respondent. At no stage did the
applicant raise the issue of prescription.
[13]
In compliance with Rule 37 a minute of the conference of 19 June 2023
was prepared to record the discussion and agreement
between the
parties. In this minute, the applicant formally conceded the
merits and did not raise the issue of prescription.
The minute
was signed by the applicant’s legal representative on or about
20 July 2023.
[14]
The matter subsequently served before a judge for a pre-trial
conference. The applicant’s legal representative
was
present during these proceedings and agreed that the action was ready
for trial. At the said proceedings the applicant
still did not
raise the issue of prescription.
[15]
Eventually the action was enrolled for hearing on 28 and 29 November
and 1 December 2023.
[16]
A week before the trial had to commence, the claims handler of the
applicant, who is also the deponent to the applicant’s
founding
affidavit, directly made contact with the respondent’s attorney
of record in order to discuss a settlement of the
action.
During these discussions reference was made to the quantum of the
respondent’s claim. The issue of prescription
was not raised at
any time during the said discussions.
[17]
On 28 November 2023 when the trial had to commence, the parties
agreed and requested the court to stand the matter down
for
settlement purposes. The matter stood down until 29 November
2023.
[18]
When the matter was called on 29 November 2023 the court was again
requested to stand the matter down for the applicant
to make
settlement proposals. The matter accordingly stood down until 1
December 2023.
[19]
On 1 December 2023 at approximately 08:47 the applicant’s legal
representative forwarded an e-mail to the respondent’s
attorney
of record which contained her instructions to settle the matter.
The basis of the settlement proposal was that the
applicant offered
an amount of R800 000.00 in respect of the respondent’s
claim for general damages and that the issue
of the respondent’s
loss of earnings/earning capacity be postponed, with a tender to pay
the costs on a party and party scale.
A copy of the said e-mail
is attached to the answering affidavit as annexure “AA3”.
[20]
The respondent accepted the offer presented by the applicant.
[21]
The parties consequently prepared a draft order which encapsulated
the agreement between the parties and it was made
an order of court
by Mthimunye, AJ. The said order,
inter alia
, contained
the following provisions:
1.
The applicant is 100% liable for the agreed or proven damages of the
respondent
resulting from the motor vehicle collision that occurred
on 17 September 2017.
2.
The applicant is ordered to make payment to the respondent in the
amount of R800 000.00
in respect of the respondent`s claim for
general damages.
3.
The respondent’s claim for loss of earning/earning capacity is
postponed
to 23 and 24 January 2024 for trial.
4.
Various costs orders.
[22]
It is this order that forms the subject of the present application.
[23]
The aforesaid order also made provision for the applicant’s
liability to pay interest on the said amount if such
payment is not
made within 180 days from date of the order.
[24]
The applicant subsequently launched the present application on 22
January 2024.
[25]
In the application the applicant, now for the first time, contends
that the respondent’s claim had prescribed and
is therefore
seeking an order rescinding the order in terms of the provisions of
Rule 42(1)(c).
Urgency:
[26]
In terms of Rule 6(12)(b) in every affidavit filed in support of an
urgent application, the applicant must set forth
explicitly the
circumstances which are averred render the matter urgent and the
reasons why the applicant claims that it could
not be afforded
substantial redress at the hearing in due course.
[27]
In the unreported judgment of
East Rock Trading 7 (Pty) Ltd v
Eagle Valley Granite (Pty) Ltd
(11/33767) [2011] ZAGPJHC 196
(23 September 2011) the following principles were eloquently set out
in respect of Rule 6(12) at
paras [6] - [7]:
“
[6]
The import thereof is that the procedure set out in rule 6(12)
is not there for taking. An applicant has to set forth
explicitly the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why
he claims that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently
urgent to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial redress in an application
in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal
course
laid down by the rules it will not obtain substantial redress.
[7]
It is important to note that the rules require absence of substantial
redress. This is not equivalent to the
irreparable harm that is
required before the granting of an interim relief. It is something
less. He may still obtain redress in
an application in due course but
it may not be substantial. Whether an applicant will not be able to
obtain substantial redress
in an application in due course will be
determined by the facts of each case. An applicant must make out his
cases in that regard.
[28]
In the founding affidavit there is not an iota of evidence as to why
the application is urgent or why the applicant would
not be afforded
substantial redress at the hearing in due course.
[29]
There was an attempt by the applicant in the replying affidavit to
advance a reason why the application is urgent and
why the applicant
claims that it could not be afforded substantial redress at the
hearing in due course.
[30]
However, the aforesaid attempt to make out a case for urgency in the
replying affidavit remains fatal. It is trite
that an applicant
should make out its case in its founding affidavit. See
My
Vote Counts NPC v Speaker of the National Assembly
2016 (1)
SA 132
(CC) at para [177].
[31]
All the necessary allegations upon which the applicant relies must
appear in his founding affidavit, as it will generally
not be allowed
to supplement the affidavit by adducing supporting facts in a
replying affidavit. See
Mostert v FirstRand Bank Ltd t/a
RMB Private Bank
2018 (4) SA 443
(SCA) at 448 D – E.
[32]
In
Brayton Carlswald (Pty) LTD v Brews
2017 (5)
SA 498
(SCA) the principle is stated as follows at para [29]:
“
[29]
In my view, there are two insurmountable hurdles in the 'new' version
being accepted. First, the general rule in motion proceedings
is that
an applicant must stand or fall by the averments made out in its
founding affidavit. It is not permissible to make
out a new case
in the replying affidavit.”
[33]
In my view, the applicant consequently made out no case for urgency.
[34]
The appropriate order would therefore be that the application be
struck from the roll.
[35]
Mr Steenkamp, on behalf of the respondent, indicated during his oral
argument that the respondent is no longer opposing
the urgency of the
application, in order for the application to be adjudicated on its
merits.
[36]
Despite my finding that the applicant made out no case for urgency, I
still have a discretion to in any event adjudicate
the merits of the
application. In this particular instance I consider it in the
interest of justice that I in fact deal with
the merits of the
application in order for the application to be finalized, instead
thereof that the parties need to come back
to court at a later stage
with the same application.
Commissioning
of the founding affidavit:
[37]
Ex facie
the applicant’s founding affidavit it appears
that:
1.
The deponent signed the affidavit on 18 January 2024 in
Bloemfontein.
2.
The affidavit was commissioned by the commissioner of oaths on 19
January 2024 in Cape Town.
3.
It consequently appears that the deponent to the applicant’s
founding affidavit did
not appear or sign the affidavit in the
presence of the commissioner of oaths.
[38]
In the Regulations issued in terms of section 10 of the Justices of
the Peace and Commissioners of Oaths Act, 16 of 1963,
Regulation 3(1)
determines that “
the deponent shall sign the declaration in
the presence of the commissioner of oaths
”.
[39]
In the replying affidavit the applicant sets out the following
explanation at paragraph 4 thereof:
“
The
Fund’s Founding affidavit was
drafted
on the 18
th
of January 2024 in Bloemfontein and
commissioned
on the 19
th
January 2024 in Cape Town. …” (My emphasis)
[40]
In
FirstRand Bank Ltd v Briedenhann
2022 (5) SA 215
(ECGq) at para [48] the court determined as follows:
“
The
authorities referred to earlier make it plain that the Regulations,
save where couched in negative terms, are directory.
Accordingly, where those regulations have not been followed and
adhered to, a court has a discretion in whether or not to admit
the
affidavit. In such circumstances a court will determine whether
there has been substantial compliance with the regulations.
That
determination is one of fact, having regard to the circumstances of
the case.”
[41]
In the circumstances of this particular matter I will accept the
explanation in the replying affidavit, made in response
to the
relevant averments contained in the answering affidavit, to the
effect that the phrase “
dated at Bloemfontein on this 18
th
January 2024
” and the attestation clause itself form part
of the document which was typed in Bloemfontein. It was
thereafter sent
to Cape Town and signed and commissioned the
following day. It is evident from the founding affidavit, read
with the totality
of the application papers, that the deponent to the
founding affidavit is based in Cape Town. I am therefore
willing to accept
that, on probabilities, he would have signed the
affidavit in Cape Town and therefore in the presence of the
commissioner of oaths.
[42]
In the exercise of my discretion I am consequently willing to admit
the affidavit. Once again I consider in the
interest of justice
that the merits of this application be adjudicated at this stage.
Applicant’s
defence:
[43]
The applicant avers in its founding affidavit that it has a
bona
fide
defence which is good in law.
[44]
The aforesaid defence entails prescription on the following basis:
1.
The respondent’s claim is based on a motor vehicle accident
that occurred
on 17 September 2017.
2.
The defendant lodged her claim with the applicant within the
prescribed time
limit.
3.
Section 23(3) of the Act determines that notwithstanding sub-section
(1) no claim
which has been lodged in terms of Section 24 shall
prescribe before the expiry of a period of five years from the date
on which
the cause of action arose.
4.
The summons was served on the applicant on 4 October 2022.
5.
The summons was served on the applicant after the claim had
prescribed as the
five-year time period lapsed on 18 September 2022.
[45]
The applicant points out that it extended an offer of R800 000.00
for General Damages to the respondent in error
and is barred from
making further offers on the claim as it has become prescribed.
[46]
The applicant’s cause of action is based on the following
averments:
“
9.10
In terms of Rule 42(1)(c) of the Uniform Rules of the High Court, the
Court may, in addition to any other powers it may
have,
mero motu
or upon the application of any party affected rescind or vary an
order or judgment granted as a result of a mistake common to the
parties. (My emphasis)
9.11
In a situation where both parties assumed the correctness of some
common fact and the Court basis its judgment
thereon, Rule 42(1)(c)
provides a remedy where a party subsequently finds those facts to be
incorrect. The appellate division
held that in order for the
appellant to succeed with the application for rescission in terms of
this sub-rule, the following two
requirements must be satisfied:
(i)
There must have been a mistake common to the parties and
(ii)
There must be a causative link between the mistake and the grant of
the order and the judgment.”
[47]
With regard to prejudice, the applicant states that it would be
prejudiced should the judgment not be rescinded in view
of the fact
that the applicant is disbursing public funds. In paying
compensation the applicant needs to protect the interest
of both the
fiscus and the Road Accident Fund itself.
[48]
On the other hand, it is the applicant’s submission that the
respondent will not suffer real prejudice should the
order be
rescinded as the claim had prescribed when summons was issued and
therefore the plaintiff was not entitled to the amount
granted.
According to the applicant any prejudice caused, if any, to the
respondent, can be compensated by an appropriate
order as to costs.
Consideration
of the legal principles and the merits:
[49]
Rule 42(1)(c) determines as follows:
“
(1)
The court may, in addition to any other powers it may have,
mero
motu
, or upon the application of any party affected, rescind or
vary:
(a)
…
(b)
…
(c)
An order or judgment granted as a result of a mistake common to the
parties.”
[50]
This rule is the basis of the applicant’s application.
[51]
Ms Mkhwanazi, on behalf of the applicant, relied on and referred to
the judgment of
Tshivhase Royal Council v Tshivhase; Tshivhase
v Tshivhase
[1992] ZASCA 185
;
1992 (4) SA 852
(A) at 863 where it was held that
in order for the applicant to succeed with an application for
rescission in terms of this sub-rule
the following two requirements
must be satisfied:
1.
There must have been a mistake common to the parties; and
2.
There must be a causative link between the mistake and the grant of
the order
and the judgment.
[52]
Mr Steenkamp referred to the judgment in
Slabbert v MEC for
Health and Social Development, Gauteng
(432/2016)
[2016]
ZASCA 157
(3 October 2016) where the Supreme Court of Appeal had to
consider the basis upon which a settlement can be rescinded. It
held as follows at paras [7] and [8]:
“
[7]
An agreement of compromise creates new rights and obligations as a
substantive contract that exists independently from the original
cause. The purpose of a compromise is twofold: (a) to bring an end to
existing litigation and (b) to prevent or avoid litigation. When
a compromise is embodied in an order of court the order brings
finality to the
lis
between
the parties and it becomes
res
judicata
. The court order
changes the terms of a settlement agreement to an enforceable court
order – through execution or contempt
proceedings. Thus,
litigation after the consent order will relate to non-compliance with
the consent order and not the underlying
dispute.
[8]
This
being said, a
transactio
(compromise)
is made by consent between parties and like any contract or order of
court made by consent, it may be set aside
on the ground that it was
fraudulently obtained. It may also be set aside on the ground
of
justus
error,
‘provided that such error vitiated true consent and did not
merely relate to motive or to the merits of a dispute
which it was
the very purpose of the parties to compromise.’
A
compromise agreement may also be set aside if the parties to the
agreement laboured under a common mistake.
However,
a
unilateral mistake on the part of one party that does not flow from a
misrepresentation by the other does not allow for the former
party to
resile from a consent agreement
.
The
question thus is whether one of these grounds exists for the MEC to
resile from the compromise agreement.” (My emphasis)
[53]
In
Erasmus: Superior Court Practice
, D E van
Loggerenberg, at RS 23, 2024, D1 Rule 42-30 the learned author deals
with Rule 42(1)(c), specifically the part of “
a mistake
common to the parties
”. He states as follows with
reference to applicable authority:
“
This
means that both parties are mistaken as to the correctness of certain
facts; such a mistake occurs where both parties are of
one mind and
share the mistake.
…
A
common mistake would cover the case of a judgment entered by consent
where the parties consented in j
ustus error
. It is not
sufficient, however, if the error is that of –
(a)
one of the parties only: in other words, if a litigant by
mistake of himself or his legal
advisors abandoned relief to which he
is or may be entitled the court has no power to recall or amend the
order it has in consequence
deliberately made, in the absence of
fraud of the other party in the course of the proceedings.”
[54
In the judgment of
KR Sibanyoni Transport Services CC v
Sheriff, Transvaal High Court
[2005] ZAGPHC 118
;
2006 (4) SA 429
(T) the court
stated as follows at para [7]:
[7]
In
Mudzingwa v Mudzingwa
Gubbay JA (as he then was) said:
'Furthermore,
it is firmly established that a judgment can only be rescinded under
the common law on one of the grounds upon which
restitutio
in integrum
would
be granted, such as fraud or some other just cause,
including
justus
error
.
. . .
Certainly
a litigant who is himself negligent and the author of his own
misfortune will fail in his request for rescission
.
See
Voet
2.4.14;
Groenewald
v Gracia (Edms) Bpk
1985
(3) SA 968 (T)
at 972C - D and G - H.'” (My emphasis)
[55]
In
Erasmus: Superior Court Practice
,
supra
, at
RS 22, 2023, D1 Rule 22-31 the learned author deals with prescription
and states as follows:
“
The
court cannot of his own motion take notice of prescription.
Section 17(2)
of the
Prescription Act 68 of 1969
provides that a
party to litigation who invokes prescription ‘shall do so in a
relevant document filed of record in the proceedings’.
If
prescription is raised in a plea it should be done means of a special
plea (i e a peremptory special plea).”
[56]
Based on the authority an order granted by consent between the
parties can only be rescinded and set aside in limited
circumstances,
being fraud,
justus error
or in exceptional circumstances due
to a common mistake.
[57]
The present application is based on a single and unsubstantiated
allegation that the order was granted as a result of
a mistake common
to the parties.
[58]
To succeed on this basis, it must be established that the order was
granted as a result of a mistake common to the parties.
Therefore, both parties must be mistaken as to the correctness of
certain facts, sharing the same mistake.
Erasmus:
Superior Court Practice
,
supra
, at D1-576A the
following is stated:
“
a
litigant who is herself mistaken about the relief to which she may be
entitled, so that this is abandoned, or who is mistaken
due to advice
of her legal representative, cannot succeed on the basis of common
mistake in terms of this rule.”
[59]
The applicant, now for the first time during the whole proceedings,
contends that the respondent’s claim had prescribed.
The
applicant had ample opportunity to raise prescription, which it
failed to do. Furthermore, the applicant does not take
the
court into his confidence to explain when and how it came to his
knowledge that the claim had allegedly prescribed. Again,
the
applicant attempted to make allegations in this regard in the
replying affidavit, which allegations should have been contained
in
the founding affidavit.
[60]
The applicant’s contention that the prescription of the
respondent’s claim is a mistake common to the parties
is
therefore misplaced. As quoted from the authorities above, a
unilateral mistake is not sufficient for the applicant to
obtain a
rescission of the order.
[61]
The applicant has consequently failed to meet the requirements of
Rule 42(1)(c)
and the application cannot succeed.
Costs:
[62]
There is no reason why costs should not follow the outcome of the
application.
[63]
With regard to the reserved costs of 23 January 2024 and 1 February
2024, those postponements were part of the process
of getting the
application ripe for hearing after the applicant approached court on
extremely short notice to the respondent. In
my view those wasted
costs should consequently be costs in the application.
[64]
The respondent is seeking a punitive order as to costs.
[65]
The applicant approached court on an urgent basis whilst it failed to
make out any case for urgency in its founding affidavit.
This
constitutes an abuse of the court process.
[66]
The commissioning of the founding affidavit is defective.
Although the applicant provided an explanation in this
regard, it
should have been done correctly in the first place.
[67]
The applicant`s filing of a notice of intention to amend and an
amended notice of motion two days before the hearing
of the
application, even with a new founding affidavit attached thereto, is
irregular and improper. The only reason why I
accept the
amended notice of motion (without the new founding affidavit) is in
order not to prejudice the respondent with a further
postponement of
this matter.
[68]
Considering the aforesaid facts and circumstances, I deem it apposite
to show my displeasure with the unacceptable manner
in which the
applicant dealt with his application by granting a punitive costs
order.
Order:
[69]
The following order is made:
1.
The applicant’s application to rescind the order, dated 1
December 2023,
is dismissed.
2.
The applicant is ordered to pay the costs of the application on a
scale as between
attorney and client, which costs are to include the
reserved costs of 23 January 2024 and 1 February 2024.
C.
VAN ZYL, J
On
behalf of Applicant:
Ms K
Mkhwanazi
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
e-mail:
kefiloem@raf.co.za
On
behalf of Respondent:
Adv
GC Steenkamp
Instructed
by:
Venters
Inc.
C/o
Venters Bloemfontein Inc.
BLOEMFONTEIN
e-mail:
garth@vinc.co.za