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Plaintiff in the main action Rowjee Vikesh an adult male medical doctor by
profession.
[2] The re scission application was brought in terms of rule 42(1)(a) but a different
argument was presented on the date of hearing of the matter .
BACKGROUND FACTS
[3] The Respondent was involved in a motor vehicle accident on the 22nd of January
2018 wherein he sustained head and whiplash injuries.T hereafter , he instituted
action which was defended b y the Applicants. On the 15th of October 2019 the
Applicant accepted 50% liability of the Respondent’s proven damages .
Subsequent to that , the Applicant then defaulted in a number of procedures as
provided for in the uniform rules of this court alternatively the practise directives
which led to th eir defence being struck in terms of the court order by Mazibuko
AJ on the 27th January 2022. The reafter the Respondent applied for default of
judgment before the Honourable Botha A.J wherein submiss ions were made
thereafter a default judg ment was awarded amounting to a of R 16 867 642 which
was subject to the apportionment of 50% .
[4] At all material times during the default judg ment hearing the Applicant was
represented.
[5] The order was thereafter ser ved on the Road accident Fund on the 6th of October
2023. Subsequent to that a rescission application was filed on the 15 of May
2024 by the Applicant sought in terms of rule 42(1)(a) . At the outset , the
Applicants sought condonation for the late filling of the rescission application
simply because a period of at least 6 months lapsed before same was filed.
CONDONATION
[6] Mr Ngoman a, counsel for the Applicant , argued that the order was serv ed on the
9th of October 2023 , within the office of the Applicant . He lamented that there are
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protocols and procedures which have to be observed before one can secure an
instruction to apply for rescission . These caused delays in one way or the other.
He fur ther argued that it was in the interest of justice that condonation be granted
regard being had that the Applicant operates on public coffers and it is a state
institution which deals with immense litigation . It was not easy for one to obtain
an urgent instruction.
[7] He also highlighted that they also needed to secure medic o legal experts opinion
regarding the application so that they can assess whether the award obtained
was fair and reasonable . He concluded that there was no malice in instituting this
rescission as the funds core function was to ensure that claimants o r victims of
the motor vehicle accidents were compensated fairly and reasonably .
[8] Condonation was opposed by the Respondents as the explanatio n provided for
the late filling was unmeritorious .
[9] In Foster v Stewart Scott Inc ,1 his Lordship Mr Justice Froneman (as he then
was) stated:
“It is well settled that in considering applications for condonation the court
has a discretion, to be exercised judicially upon a consideration of all the
facts. Relevant considerations may include the degree of non -compliance
with the rules, the explanation therefore, the prospects of success on appeal,
the importance of a case, the respondent's interest in the fin ality of the
judgment, the convenience of the court, and the avoidance of unnecessary
delay in the administration of justice, but the list is not exhaustive. These
factors are not individually decisive but are interrelated and must be weighed
one against t he other. A slight delay and good explanation for the delay may
help to compensate for prospects of success which are not strong.
Conversely, very good prospects of success on appeal may compensate for
an otherwise perhaps inadequate explanation and long d elay2.
[10] The delay in instituting a rescission application as explained by Mr Ngoman a for
the Applicant was not satisfactory as it was not substantiated on the papers filed.
1 (1997) 18 ILJ 367 (LAC) at para 369
2 Erasmus Superior Court Practice at 360 -366A
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There were no specific dates or time frames provided to substabtiate the
avernments made . However,it was my view that condonation be granted in the
interest of justice to protect both parties right to a fair and effective court process .
Considering the size of the Applicant and the number of litigation s and claims it
deals with , delays co uld result .It is also my view that, both parties have a vested
interest in th e court bringing finality to the matter3.
THE COURT ORDER
[11] Mr Ngoman a for the Applicant sought rescission in terms of rule 42(1)(a) on his
papers but before his arg ument, he conceded that the Respondent w as correct
in alleging that the Applicant was represented during the date when the default
judgment was handed down . The drafter of the application was not aware of the
Applicant being represented , he discovered this after see ing the answer from the
Respondents thereafter he investigated . He also conceded that rule 42 (1)(a)
under the circumstances was not applicable as the rule provides for an instance
where judgment was erroneously sought or erroneously granted in the absence
of any party affected thereby .
[12] That ideally should have been the end of the argument by the Applicant as a
litigant stands and falls by its papers4. However , regard being had to the
Applicants head s of argument filed re scission was sought on a different basis
which is not permitted in law simply because this amounts to prejudice of the side
of the Respondent who has answered a different case to the one represented.
However , Mr Ngomana persuaded the court to argue the matter based on rule
42(1)(b).
3 SA Post Office Ltd v CCMA [2012] 1 BLLR 30 (LAC) at para 23, where Waglay DJP (as he was then)
stated that:
‘In my view, each condonation application must be decided on its own facts bearing in mind the
general criteria. While the rules are there to be applied, they are not inflexible but the flex ibility is
directly linked to and apportioned in accordance with the interests of justice; prejudice; prospects
of success; and finally, degree of delay and the explanation thereof. The issue of delay must be
viewed in relation to the expedition with which the law expects the principal matter to be resolved’.
4 Director of Hospital Services v Mistry 1979(1) SA 626 (A) at 635H -636B
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[13] The court order that to the Applicant intends to rescind by the honourable Botha
AJ provided as follows: -
“The Defendant shall pay to the Plaintiff the total amount of R
8 433 821.00 (eight million, four hundred and thirty three thousand, eight
hundred and twenty one rand only) in respect of loss of earnings with
interest calculated from 14 days after date of this order calculates in
accordance with the Prescribed Rate of Interest Act of 1975.
[14] Payments w ill be made directly to the trust account of the Plaintiff’s attorneys within
180 (hundred and eighty) days from the granting of this order, the details of such trust
account being:
………… .”
[15] The above court order is the order that the Applicant seeks to rescind in terms of
Rule 42(1) (b) which provides that: “an order or judgement which there is an
ambiguity, or pate nt error or omission but only to an extent of such ambiguity,
error or omission, an ambiguity, or pate nt error omission ”. This rule has been
described as an ambiguity or omission when the judgement granted does not
reflect the real intention of the judicial officer pronouncing it , in other words the
ambiguous language or the pate nt error or the omission must be attributed to the
court itself .
[16] During argument Mr Ngomana for the Applicant could not point to the ambiguity
or the patent error or omission in the court order . In fact he admitted that there
was no patent error or ambiguity or omission in the court order . He admitted that
the court order was clear and it indeed reflected the real intention of the Judicial
Officer who pronounced upon it in October 2023 .
[17] This was contrary to the heads of argument written by Mr Ngomana that there
was an omission by the Judicial Officer simply because the expe rts report s of
the Neurosurgeon and that of the Industrial Psychologist for the defendant were
not considered. However, Mr Ngoman a omitted to inform this court that their
defence was struck out as far back as the 27th of January 2022 by the Mazibuko
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AJ order. This was way before the court order that the Applicants seek s to
rescind was ordered.
[18] As rightfully argued by Ms Viljoen for the Respondent since the Applicants
defense was struck no attempts were made by the App licants to reinstate the
same. Therefore in my opinion , there was no omission or error when the court
order was granted by the Honourable Botha AJ. The Judic ial Officer had no
obligation to consider the reports filed by the Applicant as the matter was befor e
him as a default judg ment application.
[19] Tritely , the Botha AJ order remains effective and enforceable, and was
formulated in language that left no doubt on the parties minds especially the
Applicant in this instance as to what the order requires to be done. The order
was couched in clear terms and its purpose remains readily ascertainable from
the language used.
[20] The position has been held to be as follows that:
(iii) If, on such a reading, the meaning of the judgment or order is clear
and unambiguous, no extrinsic fact or evidence is admissible to
contradict, vary, qualify or supplement it. In such a case not even the court
that gave the judgment or order can be asked to state what its subjective
intention was in giving it.
…..
(v) If the meaning of the order is, however, clear and unambiguous, it is
decisive, and cannot be restricted or extended by anything else stated5.
[21] The concessions made by the Applicant clearly indicate that the re scission
sought has no merit and stands to be dismissed with costs.
5 Superior Courts Practise comprehension under rule 42(1)(b). See also Trollip JA in Firestone South Africa (Pty)
Ltd v Genti curo AG 1977 (4) SA 298 (A) at 306 –7, and recognized in Zondi v MEC, Traditional and Local
Government Affairs 2006 (3) SA 1 (CC) at 12G –H; Minister of Social Development, Ex parte 2006 (4) SA 309
(CC) at 318G –319A; Speaker, National Assembly v Land Access
Movement of South Africa 2019 (6) SA 568 (CC) at 578C. A list of the principal authorities can be found
Vilvanathan v Louw NO 2010 (5) SA 17 (WCC) at 20F –31G.
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COSTS
[22] Ms Viljoen Counsel for the Respondent argued that the Applicants should pay
costs on punitive scale in light of their behavior in handling th is matter . She
highlighted that they instituted the rescission application which they stopped
halfway. The Respondents were the first ones to file their heads of argument as
far back as July 2024 without the Applicants filing the ir heads of argument . The
Applicants heads of argument were fil ed very late in January 2025.
[23] Mr Ngoman a did not dispute that the Applicant w as inexpedient in handling this
matter but he attributed this to the fact that the y were inundated with work and
that internal processes involved in getting an instruction to move forward with
the matter were near imp ossible. He pleaded that there was no malice in the
application sought . The application was brought with a genuine beliefe that it
could be successful.
[24] In re Alluvial Creek Ltd Gardiner J6 said in the context of punitive costs order:
‘Now sometimes such an order is given because of something in the conduct of
a party which the Court considers should be punished, malice, misleading the
Court and things like that, but I think the order may a lso be granted without any
reflection upon the party where the proceedings are vexatious, and by vexatious
I mean where they have the effect of being vexatious, although the intent may
not have been that they should be vexatious. There are people who enter into
litigation with the most upright purpose and a most firm belief in the justice of their
cause, and yet whose proceedings may be regarded as vexatious when they put
the other side to unnecessary trouble and expense which the other side ought
not to be ar’.7
[25] Firstly , costs are within the courts discre tion and c osts on a punitive scale are
rarely awarded , these are considered where a litigant has been guilty of
dishonesty , fraud ,vexatious or malicious litigant in the application . I do not
believe that the Applicant w as malicious in the application sought . The
Application was brought with a firm believe that there was merit in same. The
6 1929 CPD 532 at 535
7 Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd 2015( 5) SA 38 (SCA) .