REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3) REPORTABLE:~JNO
OF INTEREST OTHE JUDGES:%INO
REVISED.
DATE.(.'f/3(~ s!ONATURE: ..
In the matter between:
ROAD ACCIDENT FUND
And
MMAINO TOKELO SEKGALA
JUDGEMENT
KGANYAGO J CASE NO: 752/2015
APPLICANT
RESPONDENT 1
2
[1] The respondent had instituted action against the applicant claiming damages
arising out of a motor vehicle collision that occurred on 28th July 2012. The
applicant through its erstwhile attorneys defended the respondent 's action. On
7th November 2016 merits were settled 100% in favour of the respondent , and
the draft order was made an order of court. The respondent proceeded to
secure her expert reports which were duly served on the applicant's attorneys.
The applicant had not at any stage filed its expert reports. It is common cause
that at some stage the applicant had terminated the mandate of its panel of
attorneys. In this matter after termination of their erstwhile attorneys, it does not
appear that the applicant had appointed any legal representative to represent
it.
[2] The respondent proceeded to apply for a trial date for determination of quantum
which set down on several dates wherein on each occasion the matter was
postponed at the instant of the applicant. Ultimately the matter was set down
for the sth May 2023. The set down was physically served at the applicant's
Menlyn offices on 20th October 2022. On ath May 2023 when the matter came
before me the applicant was in default, and it was allotted to be heard on 9th
May 2023. On 9th May 2023 the respondent's counsel relied on its expert's
reports which were also duly served on the applicant. I granted a default order
against the applicant in the sum of R? 538 609.00.
[3] The applicant through the Office of the State Attorney Polokwane , has brought
a rescission application seeking to rescind the default order granted on 9th May
2023. The applicant's rescission application was filed on 5th September 2023.
In the rescission application the applicant is also seeking condonation for late
filing of the rescission application. The applicant's rescission application is
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brought in terms of rule 42(1)(a) of the Uniform Rules of Court (Rules), and also
in terms of common law.
[4] The applicant's grounds for condonation for late filing of the application for
rescission are that (i) it became aware of the default order on 31s1 May 2023;
(ii) the court order was referred to the rescission committee in order to assess
the whole claim in order to make a decision whether to rescind or not. The
rescission committee came to the conclusion that the award to the plaintiff was
an over-payment and recommended that the order should be rescinded; (iii) the
claim handler on receiving the report of the rescission committee had to issue
instructions for the appointment of the State Attorney Polokwane ; (iv) however,
the State Attorney due to the workload and time constraint , requested
instructions to appoint counsel; (v) quotations were invited from counsel to
ensure that a suitable candidate is appointed in accordance with experience
and the complexity of the matter; (vi) they waited for 3 quotations, and after
counsel was appointed , she had to peruse the documents and apply her mind
to the matter, consult with the applicant in order to get a proper version of the
matter and instructions; (vii) after consultation, counsel had to assess,
consolidate all the information and evidence gathered during consultation and
then started drafting the application. The internal procedures were time
consuming , and that resulted in the late issuing of the application.
[5] On the merits of the rescission application , the applicant had stated that it had
since terminated the services of its panel of attorneys and as a way of
preserving public funds employed State Attorney who are dealing with matters
involving the applicant. However, on the date when the matter was heard and
the order was granted, no State Attorney was allocated the matter which
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resulted in the applicant's non-appearance. The applicant was aware of the trial
date and as a result tried to negotiate a settlement with the respondent through
her attorneys. The claim handler had tendered an offer in respect of the
respondent's loss of earning, but the offer was rejected by the respondent.
[6] The claim handler was hoping that the matter will be settled before the trial date,
but that did not happen. When the respondent rejected the offer it was too late
brief the State Attorney, and that resulted in respondent 's legal representatives
proceeding to obtain the court order in the absence of the applicant. It is for
these reasons that the applicant was default and failed to appear in court when
the matter was heard and the order was granted.
[7] The applicant is having a bona fide substantial legal defence in that the rescission
committee and management are of the view that the amount awarded to the
respondent is exaggerated and resulted in over-settlement. To cure the over
settlement , the applicant requests that it be afforded an opportunity to appoint
its own experts who will assess the respondent's claim, then together with the
respondent 's appointed experts prepare joint minutes so that a fair and
reasonable amount of compensation will be paid to the respondent. At the
hearing of the matter, the court only relied on the respondent's unchallenged
experts reports since the applicant did not have any experts reports available.
The applicant had rejected the respondent's claim in respect of general
damages, in that the injuries she had sustained are classified as non-serious
injuries.
[8] The applicant will suffer severe prejudice if the court order of 9th May 2023 is not
rescinded , in that it was erroneously sought or granted in the absence of the
applicant. The order as it stands is a precedent and as such every pupil who
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get involved in motor vehicle accident and sustain bodily injuries will rely on the
said court order/judgment that he/she is entitled to millions of rand in
compensation for loss of income irrespective of whether she would have been
employed or not had the accident not occurred. The court is requested to
protect public funds held by the applicant against over-settlement in respect of
claims by victims of motor vehicle accidents. Granting the rescission application
will not be the end of the road for the respondent , but rather justice will be done
and the respondent will be compensated in a fair and reasonable amount that
is due to her.
[9] The respondent is opposing the applicant's rescission application . In her
answering affidavit, in relation to the applicant's condonation application the
respondent has stated that the applicant became aware of the default order on
31st May 2023, but has failed to explain and provide evidence as to the events
unfolding from 31 st May 2023 until they decide to issue the application in
September 2023. The applicant's application is silent as to what caused the
delay giving rise to the non-compliance and disrespect of the court rules. The
applicant's internal processes should not take precedent over the court rules
and procedures . The respondent's case against the applicant commenced
during 2013, and the applicant had ample time to finalise the matter, but has
failed to do so despite various requests and courtesy shown on them. The
applicant became aware of the order on 31 st May 2023 which was clearly within
the 20 days period within which to bring the application for rescission.
[1 O] On the merits of the application , the respondent had submitted that the notice
of set down for the 81h May 2023 was served upon the applicant on 20th October
2022. The applicant in its founding affidavit had conceded that it was aware of
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the trial date of the 8th May 2023. Despite that the applicant had failed to explain
why it failed to attend court on its own or through its attorneys to defend the
matter. The applicant's attempt to make a ridiculous offer on the day of trial
does not mean that they are excused from attending court. General damages
were rejected by the applicant on 5th May 2023 whilst an offer for loss of income
was made on 8th May 2023 despite being served with the notice of set down on
20th October 2022. The applicant had terminated its panel of attorneys and
undertook to handle the matters internally on its own. Therefore , the applicant
cannot raise that as a defence for purposes of this application . The applicant
had intentionally failed to attend court to defend itself against the applicant.
[11] The respondent was involved in a motor vehicle accident on 28th July 2012, and
lodged her claim against the applicant on 22nd October 2013. Summons was
issued on 30th March 2015, and it is more than 1 O years that the respondent
had waited for justice and finality with her claim against the applicant. The
applicant had failed to explain why it did not appoint its experts to assess the
respondent for the past 10 years. The respondent denied that the damages
awarded to her amounted to over-settlement, but that it was fair and reasonable
based on the evidence presented in court. The prejudice suffered by the
respondent if the rescission application is granted is greater than the one that
the applicant will suffer if rescission application is refused. The applicant was in
wilful default, and its rescission application is brought ma/a tide and with the
intent to delay the responden t's compensation and finality in the matter.
[12] The applicant has brought its rescission application under both common law
and rule 42. The 20 days period which both parties are referring in their papers,
would have been applicable if the application was brought in terms of rule 31 (2).
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In an application for rescission of judgment in terms of rule 42, the applicant
must show good cause, which includes giving a reasonable explanation for
his/her/its default; show that the application for rescission was brought bona
fide; that there is a bona fide defence or a substantial defence against the claim
grounding the impugned judgment. In terms of common law, a court has a
discretion to grant rescission of judgment where sufficient or good cause has
been shown and that the party seeking relief must present a reasonable and
acceptable explanation for his/her/its default, and that on merits such party has
a bona fide defence which prim a facie carries some prospects of success. (See
Colyn v Tiger Food Industries Ltd tla Meadow Feed Mills (Cape)1.
[13] An application for rescission of judgment under both rule 42 and common law
must be brought within a reasonable time. What reasonable time means
depends on the facts of each particular case. The applicant became aware of
the default order on 31st May 2023 and its application for rescission was
launched and filed on 5th September 2023. The applicant has sufficiently
explained the steps it had to take before launching and filing the rescission
application, and with that explanation this court is satisfied that its rescission
application was brought within a reasonable time.
[14] In Chetty v Law Society, Transvaaf2 Miller JA said:
"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
1 2003 (6) SA 1 (SCA)
2 1985 (2) SA 756 (A) at 765B-D
8
(ii) that on the merits such a party has a bona fide defence which, prima facie carries some
prospects of success.
It is not sufficient if only one of these two requirements is met, for obvious reasons a party
showing no prospects of success on the merits will fail in application for rescission of a default
judgment against him, no matter how reasonable and convincing the explanation of his default".
[15] Rule 42(1) provides that the High Court may in addition to any powers it may
have, mero motu or upon application of any party affected, rescind or vary an
order erroneously sought or granted in the absence of a party thereby. The
applicant was served with the set down on 20th October 2022. The applicant
has conceded that it was aware of the trial date. The applicant's explanation for
its default is that it was negotiating a settlement with respondent's attorneys ,
and it was hoping that the matter was going to be settled before the trial date.
It made an offer to the respondent , and by the time the respondent rejected the
offer it was too late for to can brief the Office of The State Attorney. That is the
only explanation given by the applicant for its default on 8th May 2023
[16] The question is whether the explanation by the applicant for its default of 8th
May 2023 is reasonable and acceptable . The applicant did not dispute the
respondent 's version that the applicant had rejected the respondent's general
damages on 5th May 2023 and made an offer for the loss of income on 8th May
2023 which was rejected. The offer was made on the date of trial. The applicant
was aware that the matter was going on trial well in advance, and did not
timeously made any offer to the respondent, and also did not take any initiatives
to brief the Office of The State Attorney to attend the matter. It is the applicant
who made its offer on the last minute on the date of the trial and did not take
any initiatives to send anyone to court to represent it. The applicant did not state
what made it to believe that the matter will be settled before the trial date. It
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does not appear that the applicant knows or understand what "before trial date"
means, as the offer was made on the date of trial. It is therefore not a plausible
explanation that by the time the offer was rejected it was too late for it to brief
the Office of The State Attorney, whilst it was the applicant who made the offer
at the last minute and on the date of trial, whilst it has been aware of the trial
date well in advance and was also aware that it has no legal representation
since the termination of its panel of attorneys.
[17] Counsel for the applicant was unable explain why the applicant did not sent one
of its staff members to come and appear in court, and if need be apply for a
postponement. There is no explanation given by the applicant why the offer was
only made on 8th May 2023 whilst they were aware of the trial date since 22nd
October 2022 and merits were settled as far back as 7th November 2016. In
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 Others3 Khampepe J said:
" ... Our jurisprudence is clear: where a litigant, given notice of the case against them and given
sufficient opportunities to participate , elects to be absent, this absence does not fall within the
scope of the requirement of rule 42(1)(a). And, it certainly cannot have the effect of turning the
order granted in absentia, into one erroneously granted"
[18] The applicant in its founding affidavit has merely stated that the order was
erroneously granted without substantiating that. The basis upon which the
applicant relies on that the order was erroneously granted must be given in
detail to enable the court to understand the reasons and be in a position to
3 [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) (17 September 2021) at para 61
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assess the facts placed before it. In Occupiers, Berea v De Wet4 Mojapelo AJ
said:
" ... the High Court did not discharge its duty to enquire into all the relevant circumstances . This
resulted in the Court being unaware of the essential issues of fact when granting the order. The
Court was for instance not aware that there were 180 occupants who were absent when it
granted the order. The Court was further not aware that those who purported to confirm the
agreement on the side of the applicants had no mandate to bind the absent 180 applicants.
The basis for granting the eviction order was that all the parties had consented thereto. The
180 absent applicants had however not consented thereto and were not bound by anybody
present in court. The eviction order was thus erroneously granted in the absence of the 180
applicants".
[19] The basis for proceeding with the matter in the absence of the applicant was
that the applicant had been duly served with the set down, and the applicant
itself had conceded that it was duly served and was aware of the date of
hearing. The applicant has failed in its founding affidavit to mention a single
issue of fact that the court was not aware of when granting the default order.
Taking into consideration the Zuma case above, and the fact that the applicant
has failed to state what essential issues of fact was the court unaware when
granting the default order, it can therefore not be said that the order of 9th May
2023 was erroneously granted.
[20] On bona fide defence the applicant had submitted that it had through its
rescission committee and management of the view that the amount awarded to
the respondent was exaggerated and resulted in over-settlement. The applicant
has further submitted that to cure this over-settlement, it be afforded an
opportunity to appoint its own experts who will assess the respondent's claim,
4 2017 (S) SA 346 (CC) at 366F to 367A
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then together with the respondent's appointed experts prepare joint minutes so
that a fair and reasonable amount of compensation will be paid to the applicant.
[21] The respondent on the other hand had submitted that after the merits were
settled, the matter was set down for quantum on 11th November 2019, 191h July
2021, 30th July 2021, 20th August 2021, ath August 2021 and 13th June 2022.
The applicant was duly served with the notice of set down for these dates, and
on each occasion the matter was postponed at the instant of the applicant as it
was unable to settle the matter. The applicant did not dispute this version. The
respondent 's experts notices and reports were served on the applicant's
erstwhile attorneys during 2019. The applicant since 2019 was aware of the
respondent 's experts reports and what they contained. The applicant was
aware of the respondent 's actuarial calculations all the time. Yet the applicant
has failed to make appointments that the respondent attends to its own experts
for them to assess the respondent to determine whether the applicant's experts
were exaggerating the respondent's claim. Even counsel for the applicant was
unable to explain what prevented the applicant to engage its own experts on
receipts of the respondent's experts reports if they were of the view that the
respondent claim was being exaggerated .
[22] The respondent on the date of the default judgment , has based its case on the
evidence of its own exerts which were contained in the experts reports which
were unchallenged . Applicant 's counsel was unable to state the expertise which
the rescission committee and the management had for them to arrive at the
conclusion that the respondent's experts' reports have been exaggerated which
resulted in over-settlement of the claim. The applicant's counsel was also
unable to explain on what informed the applicant to arrive at the conclusion that
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the respondent 's claim has been exaggerated which resulted in over
settlement.
[23) It seems the applicant does not appreciate that this is an old matter which should
have long been finalised. The applicant has failed to take this court into its
confidence and state the number of times this matter has been set down for
trial, and that on each occasion the matter was postponed at its own instant as
it was unable to settle the matter. The applicant had ample opportunity to
appoint its own experts since 2016 when merits were settled, or 2019 after
receipt of the respondent 's expert reports, but has failed to do so without any
explanation. The applicant is seeking to appoint its own experts now that a
default order has been granted, and they are of the view that the award is
exaggerated without laying any basis for that. The suggestion that the claim is
exaggerated seems to be just a thump suck as counsel for the applicant was
unable to explain the level of expertise which the rescission committee and
management had to enable them to counter the applicant's experts reports. In
my view, the applicant's bona fide defence looks poor, if not non-existence.
[24) Under common law a judgment can be set aside on the ground of (i) fraud; (ii)
Justus error, (iii) in certain exceptional circumstances when new documents
have been discovered ; (iv) where judgment has been granted by default; (v) in
the absence between the parties of a valid agreement to support the judgment ,
on the ground of Justa causa. Except that the judgment against the applicant
has been granted by default, the remainder of the requirements is not
applicable to the applicant's rescission application. For the applicant to satisfy
the requirement of sufficient cause, it must (i) give a reasonable and acceptable
explanation for its default; (ii) show that the application is made bona fide; and
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(iii) show that on the merits it has a bona fide defence which prima facie carries
some prospects of success. The applicant had failed to satisfy these three
requirements.
[25] Under the circumstances, either on common law or in terms of rule 42, the
applicant has failed to meet the requirements for the setting aside of the default
judgment/order granted on 9th May 2023.
[26] In the result the following order is made:
26.1 The applicant's rescission application is dismissed with costs on party and
party scale B.
APPEARANCES:
Counsel for the applicant
Instructed by KGANYAms
JUDGE OF THE IDGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
: Adv T Masindi
Counsel for the respondent
Instructed by : State Attorney Polokwane
: Adv SS Masina
: Komane Attorneys
: 5111 March 2025 Date heard
Electronically circulated on : 14th March 2025