THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no : 875/2023
In the matter between:
PHOZISA TOSHOLO APPELLANT
and
ROAD ACCIDENT FUND RESPONDENT
Neutral citation: Tosholo v Road Accident Fund (875/2023 ) [2025] ZASCA 21
(19 March 2025)
Coram: MOCUMIE, MABINDLA -BOQWANA, MOLEFE and
KEIGHTLEY JJA and GO RVEN AJA
Heard : 20 November 2024
Delivered : 19 March 2025
Summary: Civil Procedure – special plea of prior settl ement – compromised
claim – settlement agreement n either challenged nor rectified – Road Accident
Fund Act 56 of 1996 – appeal dismissed.
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ORDER
On appeal from : Western Cape Division of the High Court, Cape Town
(Wathen -Falken AJ, sitting as court of first instance):
The appeal is dismissed with no order as to costs.
JUDGMENT
Molefe JA ( Mocumie, Mabindla -Boqwana and Keightley JJA and Go rven
AJA concurring) :
[1] This is an appeal against the ju dgment and order of the Western Cape
Division of the High Court , Cape Town (the high court). The crisp issue in this
appeal is whether the high court was correct in upholding either or both of the
two special pleas of prior settlement and prescription. The matter is before this
Court with leave of the high court.
[2] On 9 July 20 12, the appellant, Ms Phozisa Tosholo, was a passenger in a
motor vehicle which was involved in an accident . She sustained injuries from the
accident. Whi lst a patient at Tygerberg Hospital , she was approached by an agent
of the respondent, the Road Accident F und (the RAF) , who advised her to go to
the RAF offices in the hospital regarding a claim for her injuries.
[3] The appellant subsequently lodged a claim for damages at th ose RAF
offices . The RAF directly negotiated a settlement with her (the direct claim). On
18 November 2013, the appellant signed an offer of settlement of her claim in
terms of which she was paid about R17 000. In her particulars of claim, s he
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alleged that she was under the impression that the settlement agreed to related
only to her past loss of earnings. She expected to be contacted by the RAF
regarding further payment for her pain and suffering and future loss of earnings.
[4] Subsequent to receiving the settlement amount, the appellant consulted a
firm of attorneys, Kruger and Company . On 4 June 2014 , the appellant’s attorneys
lodge d a claim for compensation on her behalf with the RAF . In a letter dated
30 June 2014, the RAF informed the appellant’s attorneys that a claim had
already been lodged, and that the RAF cou ld not register another claim for the
appellant . The appellant ’s attorneys were advised to contact the RAF Direct
Claims Department to ‘clarify and confirm the mandate of this claim ’ and to
‘furnish . . . written confirmation in this regard by the claimant ’. This was not
done.
[5] On 2 9 August 2014, t he appellant’s attorney s issued summons against the
RAF for general damages, past and future loss of earnings and past and future
medical expenses. The RAF pleaded to the summons without any mention of the
direct claim. The appellant , at the behest of both her attorneys and the RAF, was
examined by several medical practitioners who furnished medico -legal report s.
By early 2017, all these reports and associated joint minutes were in place.
[6] On 30 June 2017, the RAF’s attorneys informed the appellant’s attorneys
that they would provide them with a ‘settlement offer in respect of all heads of
damages’ once instructions were received. On 25 August 2017, Ms Waseema
Kuma ndan, a claims handler at the RAF, informed the appellant’s attorneys in an
email that the appellant had claimed with the Direct Claims Department, and that
according to the RAF’s records, the appellant’s claim had been settled. She said
they ‘recommended that the file be [reopen ed] and a new offer be made based on
the medico -legal reports ’.
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[7] When no offer was forthcoming , the appellant’s attorneys launched an
interim payment application in terms of rule 34A of the Uniform Rules of Court.
The application was opposed by the RAF on the basis that the claim was a
duplicate of the direct claim which had already been settled fully and finally. The
appellant the n withdrew the application and the summons dated 29 August 2014 .
She instituted the present action by issuing summons on 17 January 2018 , based
on what was described as an under -settlement of her original claim . The appellant
claimed that the RAF had agreed to represent, advise or assist her in that claim
and that it had assumed a duty of care to do so. It had failed to exercise its legal
duty of care, resulting in her receiving inadequate compensation for her injuries.
[8] In consequence, the RAF filed a plea and five special pleas, two of which
were adjudicated by the high court . These are the subject s of this appeal. The first
special plea states that there was a full and final settlement of the appellant’s claim
on 18 November 2013. The second special plea is that of prescription.
[9] The high court upheld the special plea in respect of the appellant’s claim
being compromised and settled. It found that t he summons was issued and served
well out of time and consequently the special plea o f prescription was also upheld.
The appellant seeks an order setting aside the high court order.
The Law
[10] The issue in this Court is whether the appellant’s claim was compromised
and settled. A compromise is founded on the prescribed principles of offer and
acceptance, and involves each party making a concession, either by reducing their
purported claim or by acknowledging their liability.1 It is important to ensure that
there is a clear offer to compromise, and a transparent acceptance of the
1 R H Christie , The Law of Contract in South Africa (2022) 8th edition at 557.
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settlement offer when a claim is settled, and a compromise is attained.2 There fore,
the language of an offer to compromise in order to resolve a conflict must be
precise and definite.
[11] If the compensation made by the debtor is considered an offer of
compromise ( animo contrahendi ), which the creditor agrees to, the creditor
usually loses the right to pursue the debtor further.3 Accepting an offer of
compromise without reservation or restrictions to the debtor ’s offer of
compromise is typically understood to be done with the implicit, if not explicit,
stipulation that the creditor abandons any right to pursue the remainder of their
claim .
[12] The lega l position on how a court should deal with a settlement agreement
was confirmed by the Constitutional Court in Mafisa v Road Accident Fund and
Another (Mafisa ),4 where it was stated that ‘[c]ontractual agreements concluded
freely and voluntarily by the parties ought to be respected and enforced. This is
in accordance with the established principle pacta sunt servanda (agreements
must be honoured )’.5 The Court further held that , as a general rule , a judge should
not interfere with the terms of a settlement agreement.6 This Court found that a
compromise puts an end to the lis between the parties and has the effect of
res judicata . Courts must therefore exercise restraint to ensure that there is no
undue imposition on the parties’ contractual freedom.7
[13] In Burt N O v National Bank of South Africa ,8 this Court held that:
2 Ibid.
3 Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd [2006] ZAWCHC 72; 2006 (6) SA
379 (C) at 392H -J.
4 Mafisa v Road Accident Fund and Another [2024] ZACC 4; 2024 (4) SA 426 (CC) , 2024 (6) BCLR (CC) 805.
5 Ibid para 36.
6 Ibid para 50 .
7 Road Accident Fund v Taylor and Other Matters [2023] ZASCA 64; 2023 (5) SA 147 (SCA) paras 37 -42 and
51.
8 Burt N O v National Bank of South Africa 1921 AD 59 at 67.
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‘The tender is made for the purpose of settling the action, and neither the person who makes
the offer nor the person who accepts it can possibly have any misconception as to its meaning.
If, therefore, a plaintiff unreservedly accept s an offer made in those terms, he must be taken
to accept it, with the condition attached that he shall abandon the balance of his claim , and in
these circumstances it is, to my mind, inconceivable that he can retain the money and at the
same time be allowed to sue for the balance of the claim .’
[14] An agreement of compromise therefore has the effect of discharging the
existing obligations of the debtor and the creditor’s claim will be regarded as
finally adjudicated upon ( res judicata ).9 Compromise is a settlement of disputed
obligations by agreement. Any l itigation following the settlement will relate to
non-compliance with the settlement agreement and not the original dispute.
[15] When the legal principles set forth are applied to the facts in this matter, a
clear picture emerges . The ‘offer and acceptance of settlement’ prepared by the
RAF , dated 25 September 2013, and signed by the appellant on 18 November
2013, clearly indicated that the settlement was in full and final settlement of the
appellant’s claim. It also confirmed that the RAF was discharged from all liability
pertaining to the loss suffered in the accident.
[16] In addition, the appellant warranted as follows :
‘I understand the meaning and extent of this Offer and Acceptance Notice and confirm that it
records the full and final agreement between the RAF and me. The RAF is discharged from all
liability pertaining to the loss suffered in the above mentioned accide nt.’
[17] This was a written contract. There was no basis on the pleadings or
evidence to impugn it. Nor could evidence be led to contradict it s terms. Nor was
it pleaded that the agreement was subject to rectification. It is clear that the
9 The principle is that , generally, parties may not again litigate on the same matter once it has been determined on
the merits.
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agreement of compromise was binding on the appellant. That means that no lis
between the parties remained.
[18] On a conspectus of all the evidence, the high court cannot be faulted for its
finding that the appellant’s claim had been compromised and no lis against the
RAF existed or could be pursued. Consequently, the appeal stands to be
dismissed. Since this is dispositive of the appeal, it is unnecessary to consider the
second special plea of prescription.
[19] The path this litigation has taken is unfortunate. It should have been
avoided by both the legal practitioner of the appellant and the RAF, as the latter
encouraged the appellant to submit her claims directly with the RAF . Both the
RAF and the appellant’s attorney should have appreciat ed that a lay litigant such
as the appellant may not be acquainted with the legal intricacies of personal
damages claim s.
[20] The conduct of the RAF in delaying with this matter is not free from
criticism. It unnecessarily prolonged the matte r after summons w as issued. Later ,
on 29 August 2017, the RAF seemed to admit that the appellant’s direct claim
had been grossly under -settled, based on the medico -legal reports subsequently
obtained . It was o nly when the appellant’s attorneys launched an application for
an interim payment , and in opposition to that application, that the RAF asserted
that the appellant’s claim had been finally settled as a direct claim. The high court
correctly found that the RAF’s erstwhile attorney’s conduct in dealing with the
matter did not impress.
[21] On the other hand, the appellant’s attorneys were informed on 30 June 2014
that a claim had already been lodged and that the RAF could not register another
claim for the appellant. They were advised to contact the RAF Direct Claims
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Department to ‘clarify and confirm the mandate of this claim’ and to ‘furnish . . .
written confirmation in this regard by the claimant’. They declined to do so and
issued summons despite not clarifying the position. All of the legal costs in this
matter c ould have been avoided had they done so.
[22] In all the circumstances of this case, the best course to follow is to make
no order as to costs. Due to the manner in which the appellant’s attorneys handled
her claim , it may well be inappropriate for the m to seek any fees from her .
[23] In the result, t he following order is made:
The appeal is dismissed with no order as to costs.
______ ____ ____________
D S MOLEFE
JUDGE OF APPEAL
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Appearance s
For the appellant: K En gers SC
Instructed by: Kruger & Co Attorneys, Cape Town
Honey Attorneys, Bloemfontein
For the respondent: A Montzinger
Instructed by : The State Attorney, Cape Town
The State Attorney, Bloemfontein .