REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
(1) REPORTABL E: ~NO /
(2) OF INTEREST TO THE JUDGES: ~/NO
(3) REVISED .
DATE: 30 April 2025 SIGNATUR~ •.
In the matter between: CASE NO: 5066/2022
ROAD ACCIDENT FUND
LINK N0:5196264 APPLICANTIDEFENDANT
RAF REF:546/12637996/10/10
AND
MATHAKE MOLOGADI MARIA RESPONDENT/PLAINTIFF
JUDGMENT
2
MANGENAAJ
[1] Plaintiff in the main action, Ms Maria Mathake sustained injuries arising out of a motor
vehicle accident which occurred on 28 March 2021.
[2] Assisted by her legal representatives, she lodged a claim with the Road Accident Fund
and when that claim was not settled within the 120 days as prescribed by the Act, she
instituted legal proceedings claiming a total amount of R3 700 000.00 comprised by
various head of damages excluding future medical expenses to which she prayed for an
undertaking.
[3] The Defendant failed to defend the proceedings and the matter was set down for trial on
07 August 2023. A notice of set-down issued by the Registrar on 22 May 2022 was
served upon the Defendant on 08 December 2022.
[4] When the matter was called on 07 August 2023, the defendant did not appear and the
matter was rolled over for hearing on 10 August 2023. The court granted judgment in
favour of the plaintiff in the amount of R3 469 376.25. I must mention that plaintiff had
during February 2023 served a notice of amendment which was neither objected to or
subsequently effected.
[5] Subsequent to the granting of the judgment , the defendant filed an application for
rescission of judgment on the ground that it was erroneously granted.
[6] In support of the submission that there was an error in the granting of the judgment ,
defendant relies on the failure to effect an amendment to the particulars of claim relating
to the quantum claimed as well as non-compliance with Rule 29(2) of the Uniform Rules
regarding the time within which a notice of set-down should be served once it is received
from the Registrar.
[7] The principles governing rescission of judgment are trite and no purpose will be served
by regurgitating them here, save to state that a judgment granted in the absence of the
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other party can only be rescinded if it was either erroneously sought or erroneously
granted. A judgment to which a party is procedurally entitled cannot be considered to
have been granted erroneously by reason of facts of which the judge who granted the
judgment as he was entitled to so, was unaware. See Lodhi 2 Properties Investments
CC v Bondev Developments (Pty) Ltd, 2007(6) SA 87, (SCA) at par 25.
[8] The defendant avers in the founding affidavit that had the Judge who granted the
judgment known that there was non-compliance with Rule 29(2), he would not have
granted the order. This contention is without merit. The defendant was notified of the
court date through a notice of set-down served almost 7 months before the actual date
of hearing. That the plaintiff's attorneys delayed to have it served cannot be the basis
upon which to rescind a judgment plaintiff was procedurally entitled to. The defendant by
failing to attend court, authored his own misfortune and the court in fulfilment of its
obligations towards the litigants (including plaintiff) gave an order bringing finality to the
litigation.
[9] The other error relied upon relates to the quantum awarded in respect of the proven
damages. The argument as I understand it is that the court cannot award an amount
more than what is claimed in the summons. There is no merit to this contention. The
court makes its findings based on the evidence presented to prove the facts. The court
is therefore not bound by what is stated in the summons when it considers an amount to
be awarded as damages. Counsel for the applicant was not able to point out what error
did the Judge commit when he awarded an amount of R 3 469 376,25.
[1 O] In Freedom Stationary v Hassam, 2019 (4) SA 459 (SCA) at paragraph 25, the court
expressed the position on Rule 42(1 )(a) as follows:-
" ........... when an affected party invokes Rule
42(1 )(a) the question is whether the party that
obtained the order was procedurally entitled
thereto. If so, the order cannot be said to have
been erroneously granted in the absence of the
affected party. An applicant or plaintiff would be
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procedurally entitled to an order when all affected
parties were adequately notified of the relief that
may be granted in their absence ........... The
failure of an affected litigant to take steps to
protect his interests by joining the fray ought to
count against him. A party who did not oppose or
participate in the proceedings (despite being
notified) would not be entitled to relief under rule
42(1)(a). This is not only logical and fair but
accords with the fundamental principle of finality
of litigation."
[11) Consequently there was no error committed in the granting of the default judgment.
[12) The Application for rescission of judgment is dismissed with costs on a party and party
scale B of the High Court.
M. MANGENA AJ
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR APPLICANT/DEFENDANT
FOR RESPONDENTS/PLAINTIFF MR. MOSHABANE MAFIRI (Attorney)
ST ATE ATTORNEYS
POLOKWANE
ADV S. MOHLAKA
HEARD ON
DELIVERED ON 5
MABUZA MAGADINE INC
POLOKWANE
30 APRIL 2025
30 APRIL 2025