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2025
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[2025] ZAGPPHC 418
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Machekera v Road Accident Fund (2024/023488) [2025] ZAGPPHC 418 (1 January 2025)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 2024/023488
In
the
matter
between:
BEATH
MACHEKERA
APPLICANT
and
ROAD
ACCIDENT
FUND
RESPONDENT
In re:
ROAD
ACCIDENT
FUND
APPLICANT
And
BEATHA
MACHEKERA
RESPONDENT
JUDGMENT
MATSEMELA
AJ
1.
The applicant in the main application
is a quadriplegic, incontinent, and has
been cared for at the Ann Harding Cheshire home since 2016. The RAF
paid the Ann Harding
Cheshire Home until February
2024.
2.
On 19 March 2024 Cowen J ordered that the
respondent ('' the RAF") make payment of fees which the
applicant owes to the Harding
Cheshire Home from March 2024 onwards.
3.
The RAF failed to comply
with the order
of
19 March
2024.
After facing an application for contempt of Court, the RAF belatedly
seeks a rescission of the Cowen J Judgment.
4.
The respondent has opposed the application
by filling an answering affidavit.
5.
The
RAF
has
not
filed
a
replying
affidavit.
6.
The basis of the Cowen J order is
the undertaking that the RAF furnished on
25 November
2015
already.The RAF gave a statutory undertaking to pay the expenses of
the treatment of injuries and care of the applicant, which
arose from
a motor vehicle accident that occurred as far back as 19 October
2015. The undertaking is that RAF '' shall
compensate" the claimant
for
costs that have been incurred.
7.
As stated, the RAF paid for
some years, but then reneged.
Seemingly the RAF was
moved to discontinue payment, on the basis of the recent directive,
that a foreigner's claim should not be
covered under the RAF
legislation.
8.
The full Bench judgment in the matter of
Road Accident Fund v Mudawu and Others
(0117 95/2022) [2024] ZAGPPHC 655 (9
JULY)
is clear that a foreigner
's claims are covered, Also, the memo/ directive by the RAF applies
to future claims, not finalised claims.
The RAF has clearly given an
irrevocable undertaking.
9.
Applicant anticipates that because of the
Modawu
judgment, the RAF will not proceed with
the application
for
rescission
also,
the RAF is clearly bound to continue honouring the undertaking it
gave years ago and has implemented.
It
has waived any rights it may have had not to pay.
10.
Counsel for Respondent argues that the
rescission application dismissed with attorney and client costs.
There is no reason for the
indigent applicant to be out of pocket. I
agree. I therefore make the following order.
Order
1.
The application
for rescission dismissed.
2.
The Applicant is to pay the costs on an
attorney and own client scale.
JMOLEFE
MATSEMELA
Acting Judge of the
Gauteng High Court, Pretoria
This
judgment was handed down electronically by circulation to the
parties' legal representatives by email. The date and time for
hand-down is deemed to be 10 H 00 on 3 April 2025
HEARD ON 21 January 2025
FOR THE
APPLICANT
ADV AA De WET
INSTRUCTED
BY
STEVE MERCHAK ATTORNEYS
FOR THE RESPONDENT
ADV L PETER
INSTRUCTED
BY
SCHAAFSMAATTORNEYS