2
an application to rescind the said court orders within 20 days of the order and the
respondents furnishing the applicant with proof of lodgement is sought in this
application.
[2] The application for stay of execution was initially brought on an urgent basis,
however, the applicant never enrolled the matter on the urgent roll. This matter
has been enrolled by the first respondent. To date, the applicant has not filed any
replying affidavit and heads of argument. The applicant also failed to make an
appearance in court on the day of the hearing of this matter .
[3] The first respondent brought an application in terms of Uniform Court Rule 30,
objecting to the applicant’s failure to comply with Uniform Court Rules 6(5)(b)(iii)
and 6 (5)(d)(ii), requesting that the applicant remove the irregularity or that the
applicant’s non -compliance be set aside as an irregular step.
Background
[4] The first respondent, Ms Matshelto Mary Jane Mabela was injured in a motor
vehicle accident as far back as 16 April 2012. She lodged a direct claim with the
Applicant under the Road Accident Fund Act, 56 of 199 6, which became
prescribed in the hands of the applicant. The first respondent, then proceeded to
institute action under the common law and summons was served on the applicant
as long ago as 15 September 2017. The applicant , however, did not file any
notice of intention to defend and remained silent until the first respondent’s writ
of execution was s erved on the applicant by the second respondent on 28
November 2023. Only thereafter, did the applicant launch this application.
[5] In the interim , by default, all the following five orders were granted against the
Applicant:
a. 22 August 2018: 100% merits per van der Westhuizen J .
b. 9 April 2021: loss of income R350 000 per Neukircher J.
c. 12 August 2022: compel decision per Kooverjie J.
d. 1 June 2023: general damages R550 000 per Oosthuizen -Senekal AJ.
3
e. 20 October 2023: compel future medical per Mokoena J.
[6] Despite all the services and default judgments the applicant remained inactive
and failed to engage up until the writ of execution was served on the applicant
on the 28 November 2023.
Issues to be determined
[7] The issues to be determined in this matter are as follows:
a. Whether the applicant’s non -compliance with Uniform Court Rules
6(5)(b)(iii) and 6(5)(d)(ii) amounts to an irregular step ;
b. Whether the operation and execution of the court orders dated 09 April
2021 and 01 June 2023, and the warrant of execution dated 19 November
2023, pending the institution of an application by the applicant, to rescind
the said orders within 20 days of this order and the respondents furnishing
the applicant with proof of lodgement should be granted;
c. Whether the second respondent should be interdicted from proceeding with
the execution of the warrant of execution against the applicant’s movable
assets;
d. Costs.
Relief
[8] I am in agreement with counsel for the first respondent that the relief sought by
the applicant is difficult to discern . In this regard there is a difference between
the relief set out in the notice of motion and the relief s ought under oath in the
founding affidavit.
[9] In the notice of motion , the following relief is s et out:
a. suspending the operation and execution of the court orders dated
09/04/2021 and 01/06/2023 and the warrant of execution dated 29/11/2023
pending the institution of an application by the applicant , to rescind the court
4
orders within 20 days of this order and the respondents furnishing the
applicant with proof of lodgement.
b. interdicting the second respondent from proceeding with the exe cution
against the applicant’s movable assets.
[10] By contrast, the founding affidavit declares that the following relief is sought:
a. pending finalisation of the application for rescission of the default judgment
or judgments obtained by the respondents against the applicant, the
warrant of execution issued and authorised by the Court in favour of the
respondent be and are hereby stayed and/or held in abeyance.
b. in the alternative to the above, pending finalisation of the applicant’s
rescission of the default judgments or judgments obtained by the
respondent, the execution of such judgements and/or Court orders be and
is hereby stayed, held in abeyance and/or suspended .
c. that leave be and is hereby granted to the applicant to issue the applications
for rescission of the judgement and/or Court orders obtained by the
Respondent .
Stay of execution
[11] The judgments underlying the writ of execution w hich the applicant is now
desirous of having this court suspend or rescind, are in respect of quantum only
and no attempt has been made by the applicant to lay any basis for impugning
same. The applicant makes no case for why the quantum amounts are incorrect.
[12] Counsel for the first respondent stated that in effect this is an application under
Rule 45A of the Uniform Court Rules , which states that a “court may, on
application, suspend the operation and execution of any order for such period as
it may deem fit .”
5
[13] Execution is a means of enforcing a judgment or order of court and it is incidental
to the judicial process.1 It is true that the court has the inherent power to regulate
its procedure in the interest of proper administration of justice and s173 of the
Constitution reaffirms this power.2 The court no doubt has the power to control
its own processes which encompasses execution steps owing to its inherent
jurisdiction or Rule 45A.3
[14] As stated in the Supreme Court of Appeal decision in Van Rensburg No and
Another v Naidoo NO and Others, Naidoo NO and Others v Van Rensburg NO
and Others4
“Apart from the provisions of Uniform Rule 45A, a court has inherent jurisdiction, in
appropriate circumstances, to order a stay in execution or to suspend an order. It might,
for example, stay a sale in execution or suspend an ejectment order. Such disc retion
must be exercised judicially. As a general rule a court will only do so where injustice will
other wise ensue.
A court will gran t stay of execution in terms of Uniform Rule 45A where the underlying
cause of a judgment de bt is disputed, or no longer exist, or where an attempt is made
to use the levying of exec ution for ulterior purposes. As a general rule, courts acting in
terms of this rule will suspend the execution of an order where real and su bstantial
justice compels such action .”5
[15] I am in agreement with counsel for the first respondent ’s submission that t he
inherent jurisdiction of the High Court does not include the right to tamper with
the principle of finality of judgments and the power to suspend the e xecution will
not be exercised as a matter of course and should be used sparingly to come to
the assistanc e of an applicant outside the provisions of the Rules of Court, when
1 Chief Lesapo v The North West Agricultur al Bank and Another 2000 (1) SA 409 (CC) par 13;
Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (TKH) 453; Road Accident
Fund v Legal Practice Council and Others 2021 (6) SA 230 GP para 28.
2 Universal City Studios Inc and Another v Network Video (Pty) Ltd. [1986] 2 AII SA 192 (A).
3 See City of Cape Town v Rudolph and Others 2004 (5) SA 39 (C) 72 ; AJP Properties CC v
Sello 2018 (1) SA 535 (GJ) para 22.
4 2011 (4) SA 149 (SCA ) para 51 and 52 .
5 See also Gois t/a Shakespeare’s Pub v Van Zyl and Others 2011 (1) SA 148 (LC) para 37.
6
the court is satisfied that the interest of justice require it to do so and that justice
cannot properly be done unless the relief is granted to the applicant .6
[16] The general principles for the granting of a stay of execution summarised
succinctly by co unsel for the first respondent is as follows:
(a) A court will grant a stay of execution where real and substa ntial justice
requires it or where injustice would otherwise result.
(b) The court will be guided by considering the factors usually applicable to
interim inter dicts, except where the applicant is not asserting a right, but
attemp ting to avert injustice.
(c) The court must be satisfied that:
(i) the applicant has a well -grounded apprehension that the execution is
taking place at the instance of the respondent(s); and
(ii) irreparable harm will result if execution is not stayed and the applicant
ultimately succeeds in e stablishing a clear right.
(d) Irreparable harm will invari ably result if there is a possibility that the underlying
cause may ultimately be remo ved, that is, where the underlying cause is the
subject -matter of an on going dispute between the parties.
(e) The court is not concerned with the underlying merits of the dispute. The sole
enquiry is simply whe ther the cause is in dispute.
[17] In this matter , none of the existing five underl ying default judgments were
questioned or legitimately argued against by the applicant . Under the present
circumstances , it will not be in the interest of justice to suspend an execution
order where on the facts of this case and the law no real and substantial justice
requires a stay of execution . Furthermore, it will be an injustice to the first
respondent to interdict the second respondent from proceeding with the
6 Moulded Component s and Rotomoulding S outh Africa (Pty) Ltd v Coucourakis and Another
1979 (2) SA 457 (W) 462; Whitefield v Van Aarde 1993 (1) SA 332 (E CD) 337.
7
execution against the applicant’s moveable assets. The en forcement of a
judgment is tantamount to access to justice.7
[18] The Constitutional Court, in Chief Lesapo v North West Agricu ltural Bank and
Another8, held that “the entitlement of a litigant to enforce a judgment or order
granted in his or her favour by a court of law is an incident of the judicial process,
access to which is guaranteed by s34 of the Constitution…”
Merits revisited by the Road Accident Fund
[19] The only court orders for which the Applicant attempts to make out a case for
impugning is that in respect of merits, but its rescission is not included in the relief
sought in the present matter.
[20] The Supreme Court of Appeal in Lodhi 2 Property Investments CC v Bondev
Developme nts (Pty)9 stated:
“A court which grants a judgment by default like the judgment we are presently
concerned with, does not grant the judgment on the basis that the defendant does not
have a defence; it grants the judgment on the basis that the defendant has been notified
of the plaintiff’s claim as required by the rules, that the defendant , not having given notice
of intention to defend, is not defending the matter and that the plaintiff is in terms of the
rules entitled to the order sought.”
[21] 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 Others10 the court poignantly stated:
“If our law, through the doctrine of preemption, expressly prohibits litigants from
acquiescing in a court’s decision and then later challenging that same decision, it would
fly in the face of the interests of justice for a party to be allowed to wilfully refuse to
participate in litigation and then expect the opportunity to re -open the case when it suits
7 Mjeni v Minister of Health and Welfare EC 2000 (4) SA (TK) 452, where the court held that the
constitutio nal right of access to courts would remain an illusion unless court orders made by
courts are capable of being enforced by those in whose favour such orders w ere made. The
process of adjudication and resolution disputes in courts of law is not an end in itself but only a
means thereto; the end being the enforcement of rights and o bligations defined in the court order.
8 2000 (1) SA 409 (CC) para 13.
9 2007 (6) SA 87 (SCA) para 27.
10 2021 (11) BCLR 1263 (CC) para 103.
8
them. It is simply not in the interest of justice to tolerate this manner of litigious vacillation.
After all, that is why preemption has crystallised as a principle of our law…”
[22] The applicant contends that the first respondent failed to comply with section
24(1) of the Road Accident Act prior to issuing summons. However, the applicant
loses sight of the fact that the cause of action embodied in such summons is not
in terms of the Act at all, but for damages at common law based on the applicant’s
negligence in allowing the first respondent’s claim under the Road Accident Act
to become prescribed. Section 24(1) of the Act does not apply to such common
law claims.
[23] Furthermore, the applicant proffers no explanation for its default and therefore
the inference that can be drawn is that the applicant chose instead to rely on
judicial oversight .
[24] In Road Accident Fund v Mcdonnell In re: Mcdonnell v Road Accident Fund11 the
court held:
“…the real purpose of this application was an attempt to revisit the merits…second and
attempt to appeal the order granted, which was not only impermissible, but an
abuse of the process.”
[25] In the present matter the court has handed down five default judgments against
the applicant, this application rings similar to the Mcdonnell case above where
the applicant is abusing the court’s processes, as a result thereof it would not be
in the interest of justice for this court to revisit the merits .
[26] In the premises, the applicant, as in the case of Road Accident Fund v Plaatjies
and Another ; In Re: Plaatjies v Road Accident Fund12 brings this application:
“[O]pportunistically with the sole purpose of preventing Ms Plaatjies having the warrant
executed as she is entitled to do…”
“[P]repared from a template and had been brought as a matter of course for no purpose
other than to delay the execution of the warrant.”
11 (13183/2015) [2022] ZAWCHC 116 (9 June 2022) para 2.
12 (72939/2017) [2022] ZAGPPHC 540 (25 July 2022) paras 24, 25 and 29.
9
“[F]or no purpose other than to lay a basis to attempt to avoid compliance with the very
180-day provision which the RAF had itself argued should be included in the order..”
[27] In BP Southern Africa (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd and
Another; BP Souther n Africa (Pty) Ltd v ZA Petroleum and Another13 the court
stated:
“A litigant with an enforceable judgment is entitled to payment, and only in rare cases
would be delayed in that process. In my view there may be exceptional cases where a
court would still exercise a discretion to prevent an injustice in staying an execut ion.”
[28] The applicant in this matter has by no means made a case which qualifies as
one of those rare an d exceptional cases . The applicant also does not allege that
it cannot pay the first respondent.
[29] It has been 13 years since the first respondent’s motor vehicle accident with five
default judgements against the applicant and the first respondent is yet to receive
her payment. The injustice in this matter rests solely on the shoulders of the first
respondent who has had to bear the brunt of the applicant contemptuously
ignoring all the court orders issued by this Honourable Court.
[30] The applicant has failed to make an appearance at all the court hearings,
including this matter, I can therefore only conclude that the applicant is abusing
the courts processes. In the premises and having read the papers filed of record
and having heard the oral arguments made by Counsel on behalf of the first
respondent. I make the following order.
Order:
1. The application is dismissed.
2. The Applicant is ordered to pay the High Court costs
of this application and the Rule 30 application on an
opposed scale between attorney and client, including
the costs of two counsel.
13 2022 (1) SA 162 (GJ) para 25.
11