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[2024] ZAFSHC 345
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Road Accident Fund v Moiloa (5370/2022) [2024] ZAFSHC 345 (31 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no
.
5370/2022
In
the matter between:
ROAD ACCIDENT FUND
and
KAMOGELO STEPHAN
MOILOA
Applicant/Defendant
Respondent/Plaintiff
Neutral citation
:
Road Accident Fund V Kamogelo Stephan Moiloa (5370/2022)
Coram
:
T.L.
MANYE, AJ
Heard
:
20 JUNE 2024
Delivered
:
31 OCTOBER 2024
ORDER
1.
The application for rescission of judgment is dismissed, with costs.
JUDGMENT
MANYE, AJ
Introduction
[1]
The Applicant, Road Accident Fund, approached this Court with an
application for rescission
of two (2) orders handed down by Opperman
J on the 28
th
of November 2023 and Chesiwe J handed down
on the 21
st
of February 2024.
[2]
Opperman J’s order of the 28
th
of November 2023 was
handed down and reads as follows:
“
It is ordered
by agreement between the parties that:
1.
The defendant is liable for 100% of the plaintiff’s
proven or agreed damages.
2.
The determination of quantum is postponed to the 20
th
and 21
st
February 2024 for trial at 09h30.
3.
The defendant shall pay the plaintiff’s costs on a party
and party scale occasioned by the postponement.
”
[3]
On the 4
th
of March 2024 the Respondent issued a writ of
execution in an amount of R83 024.34 plus interest against the
Respondent in
respect of the cost order of Opperman J, Court order.
[4]
The Sheriff of Bloemfontein-East was instructed to execute the writ
of execution,
and/or to proceed to attach certain movable property of
the Applicant for the same to be sold at an auction.
[5]
I hasten to reiterate that the Respondent’s writ of execution
for wasted cost
orders occasioned by the postponement on the 28
th
November 2023 and the following attachment of certain movable
properties of the Applicant triggered or caused this rescission
application before this Court.
[6]
The Applicant’s application is grounded on two (2) grounds
namely that the Respondent’s
claim against the Applicant
(subject of settlement agreement between the parties) made an order
of Court on the 28
th
of November 2023, was as a result of
a mistake common to the parties in that:
6.1
The Respondent had lodged a claim against the Applicant on the 28
th
of June 2022 to which the Applicant objected to the validity of the
claim on the 15
th
of August 2022.
6.2
The Respondent continued to issue summons against the Applicant on
the 27
th
October 2022 and as such, the non-compliance of
the objection was not cured before the summons was issued or
thereafter during
the litigation process itself.
6.3
The Applicant further argues that in terms of Section 24(5) of the
Road Accident Fund Act
56 of 1996 (“
the Act
”) if
the Fund does not, within sixty (60) days of delivery of a claim to
it, object to the validity thereof, the claim shall
be deemed to be
valid in law and in all respects.
[7]
The Applicant further alleges and invokes the provisions of Section
23(1) of the Road
Accident Fund that stipulates that a claim shall
prescribe upon the expiry of the period of three (3) years from the
date upon
which the cause of action arose and as such the
Respondent’s claim has indeed prescribed.
[8]
It is noteworthy to mention that the Respondent’s combined
summons for his claim
against the Applicant was lodged on the 27
th
of October 2022.
[9]
The Applicant/Defendant filed its Plea on the 9
th
of
February 2023. It is important to note that the Plea filed did
not raise a special plea of prescription nor non-compliance
with
Section 24(5)
of the
Road Accident Fund Act 56 of 1996
.
[10]
As already stated above the matter came before the Court on trial on
the 28
th
November 2023 to which by agreement between the
parties the order was granted in which the Defendant/Applicant was
deemed liable
for 100% of the Plaintiff’s proven or agreed
damages. The matter was then postponed to the 20
th
and 21
st
of February 2024 for trial on quantum. The
Defendant/Applicant was further ordered to pay the Plaintiff’s
costs on
a party and party scale, occasioned by the postponement.
[11]
As already indicated above on the 24
th
of March 2024 the
Respondent issued a writ of execution for an amount of R83 024.34
plus interest against the Applicant/Respondent
in respect of merits
trial order that the Defendant/Applicant shall pay the Plaintiff’s
costs on a party and party scale
occasioned by the postponement.
[12]
It is for the above that the Applicant/Defendant approach this Court
to rescind the Opperman
J order dated the 28
th
of November
2023.
VARIATION AND
RESCISSION OF ORDERS:
[13]
Rule 42(1)
provides that the Court may, in addition to any other
powers it may have,
mero motu
or upon application of any party
affected, rescind or vary:
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any
other affected party thereby;
(b)
An order or judgment in which there is an ambiguity, or patent error
or omission,
but only to the extent that such ambiguity, error or
omission;
(c)
An order or judgment granted as a result of a mistake common to the
parties.
(2) Any
party desiring any relief under this rule shall make application
thereupon notice to all parties whose
interests may be affected by
any variation sought.
(3) The
Court shall not make any order rescinding or varying order or
judgment unless satisfied that all parties
whose interest may be
affected have notice of order proposed.
[14]
For the Applicant to succeed with the relief sought the Applicant is
obligated to show that the
settlement agreement had been concluded as
a result of a mistaken common to both parties as to the correctness
of the merits so
conceded by agreement. In
Tshivhase
Royal Council and another v Tshivhase and another
[1]
the Court described a mistake common to the parties as envisaged by
the rule as a “
common
mistake
”
as understood in the field of contract, which occurs where both
parties are of one mind and share their mistake. The Court
further
held that where both parties had assumed a state of affairs that
turned out to be wrong, the Court was entitled to set
aside an order
made on the basis of their common mistake.
[15]
In
casu
,
it cannot be said that there exists a common mistake of fact which
vitiate against the settlement agreement. In the present
matter
the error may be described as being (a) “
unilateral
mistake
”
in that it was made by the Applicant and its attorneys and through
this they induced the Respondent to contract on the terms
they did
and this is an issue that is fatal to the Applicant’s
application. Clearly there is a material mistake by
one party
to a contract and therefore no actual consensus, and the contract
remain valid as the Respondent reasonably relied on
the impression
that there was consensus.
[2]
[16]
In
Lodhi
2 Properties v Wondev
[3]
the Court held “
a
judgment to which a party is procedurally entitled cannot be
considered to be granted erroneously by reason of facts of which
the
Judge who granted the judgment, as he was entitled to do so, was
unaware.
”
[17]
As already indicated above the grounds raised in this application
were never raised at the pleading
stage when the Applicant filed its
Plea against the Respondent’s claim.
[18]
In my view the Applicant has failed to establish or make out a case
for the exercise of a discretion
to rescind the orders of Opperman J
and Chesiwe J.
Order
[19]
I accordingly make the following order:
1.
The application for rescission of judgment is dismissed, with costs.
T.L. MANYE, AJ
APPEARANCES:
On
behalf of the Applicant
:
Ms. M Booysen
Instructed
by:
Office
of the State Attorney/Bloemfontein
11
th
Floor, Fedsure Building,
49
Charlotte Maxeke Street,
Bloemfontein.
c/o
Road Accident Fund,
Ground
Floor, Fedsure Building,
62
St Andrews Street,
Bloemfontein.
[LINK:
MEGHAN] E-mail:
meganb@raf.co.za
On
behalf of the Respondent
: Adv
K Mohono
Instructed
by:
Mavuya
Attorneys,
Attorneys
for Respondent
Office
67, 1
st
Floor,
Arcade
Walk Through Building,
cnr
West Burger & Elizabeth Street,
Bloemfontein.
Tel:
051 – 430 2802 – REF:
Moiloa/RAF/01/22
– E-mail:
vuyisilemavuya@mavuyaincorporated.co.za
[1]
1991 ZASCA
185; 1992 (4) SA 852 (A)
[2]
SW
van der Merwe et al
:
Contract: General Principles 4
th
Edition (2012) at p. 33
[3]
[2007] JOL 20028
(SCA) at par 25