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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 63528/2017
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED: NO
21 January 2025 Judge Dippenaar
In the matter between:
ROAD ACCIDENT FUND APPLICANT
AND
E M[...] OBO MG M[...] RESPONDENT
JUDG MENT
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail and by uploading it on the
electronic platform . The date and time for hand -down is deemed to be
10h00 on the 21st of JANUARY 2025.
DIPPENAAR J:
[1] The applicant, the RAF, sought the re scission of a default judgement granted by
Bokako AJ on 31 May 2023. The judgment pertained to the claim of a minor child,
represented by his guardian , arising from injuries sustained in a collision on 7 August
2016 . The l iability claim had previously been settled at 100% in favour of the respondent
during June 2017 and the hearing proceeded on the issues relating to the quantification
of the claim . The minor, Mr MG M[...] turned 18 on 1 October 2023 and no longer
requires the assistance of his guardian in the litigation .
[2] One of the significant order s granted on 31 May 2023 was an award of
R5 812 555 in respect of loss of income. Numerous other ancillary orders were granted
as well as costs . The claim for general damages was postponed sine die and was to be
referred to the HPCSA tribunal for consideration.
[3] The applicant sought condonation for the late delivery of its rescission application
and sought rescission under r 42(1)(a) alternatively the common law. Costs were sought
in the event of opposition.
[4] The application was opposed on the basis that the applicant had not sufficiently
explained the period of the delay, given that the application was only launched some
four months after the applicant became aware of the judgment . It was submitted that t he
founding papers in broad terms only referred to “internal procedures” which resulted in
the delays . Despite the challenge to the proper explanation for the delay, the applicant
did not deliver any replying affidavit clarifying the issue.
[5] The applicant submitted that a proper case for condonation and rescission was
made out. The respondent on the other hand, contended that no proper case for
rescission was made out on either basis as the judgment was not erroneously sought or
granted and the applicant did not establish any good cause for rescission. It submitted
that the applicant was effectively attempting to appeal the judgment of Bokako AJ. It
was submitted that the Court took into account all the facts and properly exercised its
discreti on to grant the respondent judgment in the amount determined, based on a 50%
post morbid contingency. On that basis it was submitted that the application should be
dismissed with costs, including the costs of two counsel on Scale C.
[6] The background facts were not contentious. A notice of set down for the trial was
served on the applicant on 19 October 2022. The trial date allocated was 30 May 2023.
Ms Sibran of the State Attorney (‘the state attorney) was appointed to represent the
applicant on 10 April 2023.
[7] It was undisputed that the applicant, represented by the state attorney , intended
to be present at the hearing and make submissions to the Court based on the plaintiff’s
expert reports. It was common cause that the state attorney and the re spondent’s legal
representat ives had a telephonic di scussion on 30 May 2023, during which she was
advised that the matter was not on the trial roll due to reasons unknown to the
respondent. She was advised by the respondent’s representatives that she did not need
to atten d the hearing on 30 May 2023 as the matter was not on the roll. Shortly
thereafter and at about 12h00, she received news that her father had unexpectedly
passed away and she left for Kwa Zulu Natal .
[8] At 14h21 that afternoon the state attorney and the applicant’s claims hand ler
dealing with the matter , Ms Selesho, received an email with a notice of set down
attached reflecting the trial date as 31 May 2023. The claims handler assumed that the
state attorney had received the email and would be attend ing to the matter. It was not
disputed that the state attorney did not receive the email in time and was unaware of the
fact that the matter was proceeding on 31 May 2023. According to the respondent, his
legal representatives attempted to make contact with Ms Sibran, but she could not be
contacted. That is not disputed. The matter was enrolled for hearing by the registrar on
31 May 2023 as a result of the error in that office. The matter was allocated to Bokako
AJ by the Deputy Judge President , who heard the matter and granted a judgment by
default.
[9] A copy of the order of 31 May 2023 was sent to the claims handler on 5 June
2023, on which date the applicant became aware of the judgment. Pursuant to a
request from the state attorney and the claims handler to launch a rescission
application, the applicant’s rescission committee approved the application on 8 June
2023 . On 21 June 2023 , the state attorney was instructed that she should attend to the
rescission application. On 5 July 2023, the state attorney sought consent to instruct
counsel in the matter due to the complexities involved. Pursuant to compliance with
various policies and procedures, an application to instruct counsel was generated on 30
August 2023, was approved on 8 September 2023. According to the applicant ‘ the
approval to appoint counsel is not a simple one, and unfortunately does not happen
overnight. Due to the administration of public funds, there are various policies and
procedures that need to be adhered to, as well as various approvals up the chain of
command, before an appointment can be made’ . The application was eventually
launched on 3 October 2023.
[10] The respondent conceded that the applicant was not in willful default of not
attending the hearing of the ma tter on 31 May 2023, given the state attorney’s
unexpected bereavement on 30 May 2023. That concession was well made.
[11] It is trite that condonation is not there for the taking but that a proper case must
be made out.1 I agree with the respondent that the grounds advanced in explanation of
the applicant’s delay w ere in somewhat flimsy term s and that the full period of the delay
was not meticulously explained. Considering the timelines involved, it appears that
various of the delays occurred in the offices of the state attorney , which is regrettable.
The delays were not however so extensive that it justifies dismissal of the condonation
application on this basis alone. It is clear from the uncontested facts that the applicant at
all times since becoming aware of the existence of the judgment, intended applying for
its rescission.
1 SA Express Limited v Bagport (Pty) Ltd 2020 (5) SA 404 (SCA)
[12] In considering whether condonation should be granted, it is also necessary to
consider whether the applicant has established grounds for rescission. If such grounds
are strong, they may compensate for a weak explanation for the delay.
[13] It is well established that a court has a discretion whether to rescind a judgment
under r 42, whic h must be exercised judicially.2 Under r 42(1)(a) an applicant must
establish that the order was granted in its absence and that it was erroneously sought or
granted. The mistake may either be one which appears on the record of the
proceedings or one which subsequently becomes apparent from the information made
available in the rescission application. A subsequently disclosed defence that was not
known or raised at the time of the default judgment cannot lead to a conclusion that the
judgment was granted erroneously.3 Under r 42(1)(a) an applicant is not required to
illustrate good cause for the rescission.
[14] In the answering papers, deposed to by the respondent’s attorney of record, t he
respondent did not elaborate on wh at exactly transpired before court on 31 May 2023 . It
remains unclear whether the court’s attention was drawn to the different notices of set
down and whether the court was notified that the state attorney intended to appear and
oppose the matter at the hearing by presenting argument .
[15] The respondent submitted that it could not be said that the respondent’s
representatives sought finalisation of the matter in error as the matter was properly
enrolled and finalised. According to the respondent, the matter was not on the roll for 30
May 2023 due to an error on the part of the registrar. The re -enrolment of the matter on
the roll for 31 May 2023 was with the concurrence of the registrar. The res pondent’s
correspondent attorney and counsel attempted to communicate with Ms Sibran by
calling her several times. The deponent states:
2 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector Including organs of State and Others [2021] ZACC 28 para 53.
3 Kgomo and Another v Standard Bank of South Africa and Others 2016 (2) SA 184 (GP)
‘It was assumed she was attending to another matter ’…The matter thus proce eded
on an unopposed basis. This is not an unusual scenario. It often happens because
of the under staffing of the State Attorney (and the RAF ’s policy of not having outside
legal representation), th e at the State Attorney designated to the matter abandoned
ship in favour of another matter. This is apparently a daily occurrence”.
[16] These statements are remarkable and not supported by any primary facts.
Neither was the source of this ‘information’ disclose d the affidavit . To deflect from the
respondents’ duties in the circumstances, it was emphasised that the applicant did not
advise the respondent’s representatives of Ms Sibran’s unavailability. The contention
lacks merit. Considering that the reason for her unavailability was not known to any of
the parties, and she was herself unaware of the set down for 31 May 2023, it is unclear
how the applicant such notification could have occurred.
[17] The respondent’s submissions miss the point. In an opposed matter, where the
plaintiff is fully aware of the defendant’s intention to appear and oppose the granting of
a judgment in the terms sought, the re spondent’s representatives clearly had a duty to
ensure that Ms Sibran was actually aware that the matter would proceed to trial the
following day. Simply sending an email with a notice of set down was not sufficient,
more so as the attempts to make telephonic contact with Ms Sibran were unsuccessful.
[18] The respondent was also clearly obliged to inform the Court of all the relevant
facts. T he respondent’s version was not that the Court was so informed, specifically,
that the state attorney was opposing the matter and intended to appear and make
submissions on the applicant’s behalf. The fact that the applicant had not filed its own
expert reports, is irrelevant. The applicant was entitled to make submissions and to be
present at the hearing. The respondent’s representatives were well aware that the state
attorney intended to do so. They should have provided the Court with all those fa cts.
They did not under oath confirm that they had done so.
[19] It does not appear from the papers that the Deputy President who allocated the
matter o r the Judge allocated to hear the matter was advised that the state attorney
intended to appear at the hearing . Had the relevant judges been so advised, the
proceedings may well have had a different outcome, specifically the trial proceedings
which proceeded before the court on a default judgment b asis.
[20] Although the respondent contended that it was not a proper basis to oppose the
proceedings to “take potshots” at the expert reports of the respondent, the fact remains
that the respondent was deprived of its right to audi alteram partem . It was open to the
applicant to make submissions based on the responden t’s papers. It would amount to
speculation to guess as to what the outcome would have been if those submissions
were made. T here is nothing to gainsay the applicant’s version that it would have made
subm issions as to the deficiencies in the respondent’s reports regarding the issue of
loss of earnings. A settlement offer had been made which was rejected and the state
attorney was armed with an argument as to why the re spondent’s claim should not be
granted as sought. The failure to advise the trial court of the relevant facts pertaining to
opposition is material and of itself justifies the granting of a rescission order.
[21] There are further procedural irregularities apparent from the record. T he
respondent had sought to amend its particu lars of claim shortly before the hearing by
way of a notice of amendment delivered on 24 May 2023. That notice was accompanied
by amended pages, despite the 10 day period envisaged by r 28 not having expired.
The amendment sought to increase the claim for loss of earnings from R5 500 000 to
R5 650 000. An earlier notice of amendment was delivered on 23 February 2023,
increasing the claim for loss of earnings from R150 000 to R5 500 000 and increasing
general damages to R1 million. The amendment was not oppose d and the amendment
was effected on 9 March 2023 by the delivery of amended pages. It was not contended
by the respondent that the later amendment was granted at the commencement of the
hearing. The judgment and order of Bokako AJ, similarly does not reflect that any
amendment was granted. According to the notice of amendment , the applicant was
afforded 10 days to oppose the amendment. The amendment was thus never effected.
The plaintiff’s actuarial report presented at the hearing utilised a 40 % post morbid
contingency and quantified the loss of earnings at R 5 648 462. T hat actuarial report was
only served on the applicant on 25 May 2023 , entirely outside the time periods
envisaged by R36(9).
[22] It was argued by the respondent that the late amendment brought shortly before
the trial was ‘neither here nor there’ as the applicant had opted not to deploy any expert
calculations at all’. It was contended that there was no indication of any impropriety on
the part of the applicant and the judgment was not sought or granted in error, but was
granted by the judge after due consideration of the matter and in unique circumstances.
[23] At the hearing, the trial court awarded an amount of R 1 812 555.00 as loss of
earnings , utilising a 50% post morbid contingency . That amount exceeded the amount
claimed by the respondent in his pleadings by more than R300 000 and exceeded the
amount calculated by the actuary in his expert report by some R200 000 . The
respondent argued that this was “technical” and there was no prejudice to the applicant
as it was within the ball park claimed and was only ‘a few hundred thousand rands ’. The
respondent’s arguments are in my view untenable.
[24] It is trite that a party is limited to what is has claimed in its pleadings. It is unclear
whether the Court ’s attention was drawn to the recent purported amendment or the fact
that it w ould be granting judgment for an amount exceeding that claimed by the plaintiff.
It was incumbent on the respondent’s counsel to have done so. The judgment also
exceeded the amount contended for in the re spondent’s expert reports, including that of
its ac tuary. What evidence was placed before the trial court to justify the a pplication of a
higher contingency of 50 % was not explained by the respondent. The judgment was
thus tainted by a further substantial procedural irregularity. That fortifies my view that
the judgment was erroneously sought and erroneously granted.
[25] Considering all the undisputed facts, I am persuaded that the applicant has
illustrated that , if the Court had been made aware of all the relevant facts which existed
at the time , it would have resulted in the Court not been inclined to grant the order and
that there were irregularities in the proceedings .4
[26] The issues pertaining to the notice s of set down and the fact that the state
attorney was not aware of the set down of the matter for 31 May 2023, is sufficient to
grant rescission. The fact that the notice of set down for 31 May 2023 was served on
the applicant’s claims handler, does not assist the respondent. At the time, the applicant
was, to the knowledge of the respondent , legally represented . The respondent should
have ensured that as a fact, the enrolment came to the knowledge of Ms Sibran. When
the attempts to contact her were unsuccessful, that should have been conveyed to the
Court at the hearing. Had all the fa cts been fully disclosed to the Court, it is most
unlikely that the court would have proceeded in the absence of the applicant’s attorney
of record.
[27] As indicated, there were also other irregularities which occurred. The re spondent
did not disclose exactly what transpired before Bokako J on 31 May 2023, d espite the
respondent’s attorney of record having been the person best placed in a position to do
so.
[28] During the course of argument, the respondent submitted that the applicant was
actually attempting to appeal the matter, given the notation in the respondent’s
resolution for rescission that ’ the LOE loss of earnings is overstated…not proven’ . I am
not persuaded that the submission is correct. The issues raised, were aimed at
illustrating that the applicant had a bona fide defence to the respondent’s claim. The
respondent’s view that the applicant should have appealed, is mis conceived . Recently
Neukircher J In RAF v P[...] M[...] M[...] obo RM M[...] ,5 considered the issue and
concluded that a rescission was the correct remedy, albeit in the context of an
application under r 30. I am bound by the judgment unless I am of the view that it is
4 Promedia Drukkers & UItgewers (Edms) Bpk v Kaimowitz and Others 1996 (4) SA 411 (C) at 417G
5 (18768/2020) [2024] ZAGPPHC 1079 (31 October 2024)
clearly wrong. I am not and respectfully agree with the learned Judge’s reasoning and
conclusion .
[29] In my view, the applicant has established that the judgment was erroneously
sought and erroneously granted in the absence of the applicant as envisaged by r
42(1)(a). It follows that the rescission application must succeed.
[30] I am further persuaded that this conclusion tips the scales in the applicant’s
favour and that condonation for the late delivery of the rescission application should be
granted. Given that conclusion, it is not necessary to consider whether the applicant has
established good cause under the common law for rescission to be granted.
[31] The applicant sought costs only in the event of opposition. T he respondent in the
alternative contended that his opposit ion was not unreasonable, as it would take four or
five years before the matter could proceed to trial again and that he thus should not be
mulcted in costs. Although the applicant was tardy in the institution of the application,
there are no substantial reasons to deprive it, as successful party, of its costs. The
opposition to the application was ill conceived. Costs follow the result .
[32] In the result I grant the following order:
[1] Condonation is granted to the applicant for the late filing of the rescission application;
[2] The order granted on 31 May 2023 under case numb er 63528/20017 is rescinded
and set aside;
[3] The respondent is directed to pay the costs of the rescission application.
EF DIPPENAAR
JUDGE OF THE HIGH COURT
GAUTENG PRETORIA
DATE OF HEARING : 11 NOVEMBER 2024
DATE OF JUDGMENT : 21 JANUARY 2025
APPLICANTS ’ COUNSEL : Mrs K Sibran
Heads of Argument -Adv MP Fourie
APPL ICANTS’ ATTORNEYS : State Attorney, Pretoria
Mrs K Sibran
RESPONDENT’S COUNSEL : Adv JO Williams SC ( with Adv L Eloff)
RESPONDENT’S ATTORNEYS : PAS Attorneys, Pretoria
Mr TC Stoffberg .