SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case number 2020/19852
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: N o
(3) REVISED: Yes
27 May 2025
In the matter between:
VREY RYNO Applicant
And
ROAD ACCIDENT FUND Responden
__________________________________________________________________
JUDGMENT
GOODENOUGH, AJ
Order
1. Paragraph 1 of the Notice of Motion is dismissed.
2. Each party is to pay their own costs .
2
3. By no later than 30 July 2025, the parties are to participate in mediation.
3.1. In this regard the parties are to comply with the provisions of the Directive
Introducing Mandatory Mediation i n the Gauteng Division and the Mediation
Protocol Applicable in the Gauteng Division of the High Court (April 2025)
Summary
4. The Applicant in his notice of motion sought an order compel the
Respondent to attend a pretrial conference alternatively to complete and sign the
Applicant’s draft pretrial minute (“the application to compel”) 1
5. On the morning of 8 May 2025, the date of the hearing of this application,
the Respondent did complete and sign the Applicant’s draft pre-trial minute in
compliance with prayer 1 of the Notice of Motion.
6. Both parties were in my view , somewhat at fault for the fact that a pre- trial
conference has not taken place and that the Respondent only completed and
signed the Applicant’s pre- trial minute on the date of the hearing.
7. I decline to order the holding of a pre- trial conference and instead I order
the parties to participate in mediation.
Common Cause Facts/ Facts Which Appear f rom CaseLines Documents
8. In the action, liability is conceded, and all heads of damages have been
resolved save for general damages.
Service Of Rule 37 Notice and Related Documents
9. On 26 Feb ruary 2025 the Applicant ’s attorney (emanat ing from the email
address of Mr Jannie Louw of the Applicant’s attorneys namely j [….]a) sent an
1 Case Lines 4 -6 para 1
3
email2 to Mr M.Khan , who was the person at the State Attorney’s office who had
all along been dealing with the Applicant’s action. Mr Khan’s email address wa s
M[…].
10. That email address - namely M […] - which the Applicant used for delivery of
the Rule 37 notice and draft pre- trial minutes and for all correspondence to the
RAF / State Attorneys by the Applicants attorneys, was the same email address
that Respondent had at the outset of the action proceedings provided to the
Applicant in its notice of i ntention to d efend3 . The Applicant additionally sent that
email to j […]4 which is the Respondent’s designated e- mail address for service of
processes as per the practice directive.
11. Attached to that email of 26 February 2025 were:
11.1. the Applicant’s Rule 37(2) notice calling for a pretrial conference to
be held on 3 March 20255, and
11.2. the Applicant’s draft pre -trial agenda6 for a pretrial conference which
the Applicant proposed should be held on 3 March 20257 and
11.3. a letter8 requesting that if the date of 3 March 2025 was inconvenient
to the Respondent then Respondent should provide an alternat ive date.
12. The following additional recipients were included in the Applicant’s email of
26 February 2025, namely two other officers of the Respondent whose email
addresses were l[…] and e[…]
13. There was no response at all from the Respondent or the State Attorney to
that email or any of its email attachments until 10 March 2025.
Communications On 10 March 2025
2 Case Lines 4 -35
3 Case Lines M2_ Notice of Intention to defend
4 See for example Case Lines 4 -38
5 Case Lines 4 -33
6 Case Lines 4- 33
7 Case Line 4 -15 and 4 -32 and 4- 33
8 Case Lines 4 -15
4
14. On 10 March 2025, the Applicant ’s attorney again emailed a letter9 to Mr M.
Khan’s email address M […] recording that no RAF person attended the pre- trial
conference on 3 March 2025. In this letter, Applicant gave the Respondent further
time until 12 March 2025 to complete the draft pretrial minute and stated that ,
failing this, the Applicant would apply for an order compelling Respondent to
conv ene a pretrial conference10.
15. On that same day the Applicant’s attorney (again emanating from the email
address of Mr Jannie Louw j[…]))11 sent an email 12 to the same email recipients as
per the 26 February 2025 email , chasing up a response to the 26 February 2025
documents.
16. I find that one of the officers of the Respondent itself must somehow have
become aware of th ose email s from the Applicant’s offices that had been sent to
Mr. M Khan’s email address , notwithstanding that Mr M.Khan had long since
resigned. I base that finding on the fact that, later that same day, at 2:25 pm, the Respondent itself sent an email
13 from j[…] to Ms Ameersingh and to the
Applicant attorney’s Mr Jannie Louw, asking Mr Louw to furnish the draft pretrial
minute to Ms Ameersingh, who was to attend to the matter.
17. Later on that same day, t he State Attorney per Ms Am eersingh, sent an
email14 to the Applicant's attorney (to Mr Jannie Louw’s email address j[…]))
requesting a copy of the Applicant’s draft pretrial minute, but failing to nominate a
time and date for a pretrial conference as had been requested.
18. I accept that the aforementioned email s of 10 March 2025 represent the first
intimation t hat Ms Ameersingh personally had received that the Respondent or the
State Attorney had now put her in charge of the matter.
9 Case Lines 4 -36
10 Case Lines 4 -36
11 Case Lines 4 -37
12 Case Lines 1 -23 : proof of emailing of Mr. Louw’s letter
13 Case Lines 1 -20
14 Case lines 1- 7
5
19. It is formally agreed that the Applicant ’s attorney did not respond to Ms
Ameersingh’s email request.
20. The 10- March -2025 email from the email address j[…] from the
Respondent was similarly the first intimation that the Applicant’s attorney was
given of the fact that it was now Ms Ameersingh and no longer Mr M Khan who
was dealing with the matter at the State Attorney’s office. It was formally agreed at
the hearing that 10 March 2025 was the first time that Respondent informed
Applicant’s attorney that Muzafar Khan was no longer dealing with the matter.
Service of the Application t o Compel
21. On 11 April 2025, the Applicant physically served on the Respondent ( but
not on the State Attorney ) the Applicant’s application to compel15.
22. Paragraph 1 of the Notice of Motion reads as follows:
“1.That the Respondent be ordered to complete and sign the Applicant’s
pretrial minute within 5(five) days of the date of this order, alternatively to
nominate a date and time within 5(five) days of the date of this order on
which the Respondent will be available for a formal pre- trial teleconference”
23. It is evident from the contents of Ms Ameersingh ’s subsequent email s
16
sent in the early morning of the date of hearing on 8 May 2025 that Ms .
Ameersingh did not become personally aware before the early morning of 8 May
2025 that the application to compel had been served on the Respondent on 11
April 2 025.
Further Request by Ms Ameersingh f or a Copy of The Draft Pre- trial Minute
15 Case Lines 4 -3
16 Case Lines 1-22 and 1- 23
6
24. On 30 April 2025 , Ms Ameersingh , still unaware that the application to
compel had been served, again sent to the Applicant ’s attorney (at email address
j[…]) an email requesting the draft pre- trial minute. 17
25. There was also no response from the Applicant’s attorney to that request.
Events on 8 May 2025 – The Date o f The Hearing
26. On 8 May 2025 – being the set -down date of the hearing - at 7h18 am - Ms
Ameersingh again emailed Mr Jannie Louw of the Applicant’s attorney , yet again
requesting a copy of the draft pre -trial minute18
27. In response thereto, Mr Louw for the first time responded to M s.
Ameersingh’s request s by email ing the draft pretrial minute to Ms Ameersingh at
8h15am19 and Ms Am eersingh then that same morning completed and signed the
minute and emailed it to Mr Louw and uploaded it to Case Lines before the matter
was argued later that day.20
My Reasons Underlying t he Dismissal o f Prayer 1 o f the Application
28. As at the time that the application to compel was argued, the Respondent
had already, on the morning of 8 May 2025, just completed and sign ed the
Applicant’s draft pre- trial minute in compliance with prayer 1 of the Notice of
Motion.
29. The Applicant in his notice of motion sought an order compel the
Respondent to attend a pretrial conference alternatively to complete and sign the
Applicant’s draft pre -trial minute 21
30. Having delivered the completed and signed pre- trial minute, there was no
17 Case Lines 1 -23
18 Case Lines 1 --23
19 Case Lines 1 -22
20 Case Lines 1 -22
21 Case Lines 4 -6 para 1
7
basis in which I could grant an order directing the Respondent to attend a pre -trial
conference, because that relief had only been sought in the alternative to an order
to complete and sign the pretrial minute.
31. For that reason, I do not grant an order in terms of prayer 1.
Considerations Relevant t o My Ordering the Parties t o go to Mediation
32. Applicant in his heads states: ” From the pre- trial minute, as sent by the
Respondent, it appears that the minute (or questionnaire) was responded to as a matter of formalistic compliance in order to attempt a forced removal of the matter from the roll ….This formalistic response appears from the blanket denial of most of
the pre-
trial questions and, perhaps most glaringly, when one considers the
answer at para 6.7 of the document ( Case lines 0-7) where the Respondent
answers: “Defendant enquires whether the matter was referred to the HPCSA and
whether a finding was made in this regard. ”
33. “The above response appears, despite what has been stated in the
introduction of the draft minute ( Case lines 0-2) where it is stated: “The HPCSA
indicated that the Plaintiffs injuries are serious and thus has a claim in regards of
General Damages. The Plaintiff is ready to proceed on the determination of the
remaining quantum. ”
34. The Applicant’s counsel submit ted that “this type of response smacks of an
abuse of process. ”. I do not agree with that submission. The Applicant must
accept some of the responsibility for the fact that the pretrial minute was hurriedly completed and signed on the very morning of the hearing.
35. The Applicant’s counsel submitted that: “ Even in light of the Respondents
signed pre- trial minute, it appears that there is still a need for a pre- trial to be held
as the Respondents response – as contained in the draft pre- trial minute – does
not assist in limiting the issues or of reaching settlement (as is required by the
parties in terms of Rule 37 and the various practice directives of the above court) ”
8
and that “ the need for an order for a formal pre -trial to be held (as was requested
in the letter of 25 February 2025 ( Case lines 4-13) therefore persists. ”
36. I agree with the Applicant’s counsel that the pre- trial minute so hastily
completed and signed by Ms Ameersingh leaves something to be desired and that
there is scope for the issues to be narrowed further.
37. However, i n my view, less is likely to be achieved by the holding of a pre-
trial conference than by the holding of a mediation.
38. For that reason (coupled with the reason that I am not at liberty to order the
Respondent to attend a pr e-trial conference), I am instead ordering the parties to
hold a mediation.
Factors Taken i nto Account Relevant t o Costs
39. The fact that the Respondent’s notice of intention to defend gave the email
address of Mr. M Khan as the Respondent’s email of choice in my view justifies the
Applicant’s use of that email address when serving the Rule 37 notice and all its
related emails and court documents, This is especially so in view of the fact that the Applicant additionally emailed those documents to the Respondent’s designated email address as stipulated in the practice directive.
40. The following contention in Respondent’s heads of argument is not in
accordance with what was formally agreed at the hearing, namely :” 3.2.It is also common cause that Mr. Khan resigned from his employment as a state attorney at
least early in 2O24.The state attorneys’ offices in fact have confirmed that he resigned at the end of 2023.”). [my underlining]
41. It is not the Applicant’s fault that the Respondent did not, before 10 March
2025, inform the Applicant’s attorney that Mr M Khan had resigned and that the Respondent did not provide the Applicant’s attorney with a new email address at the
State Attorney to which court documents should thenceforth be emailed for purposes of electronic service,
9
42. The Respondent and the offices of the State Attorney were in my view further
at fault in not ensuring that the Rule 37 notice and the pretrial agenda that w ere
served on Respondent physically were timeously handed to the correct person at the
State Attorney’s offices, namely Ms Ameersingh. That was not the Applicant’s fault.
43. Moreover, t he Respondent was also at fault in not informing the Applicant until
10 March 2025 that the email address of Mr M.Khan must no longer be used and
that the email address of Ms Ameersingh must be used. As a result , the Applicant
had innocently and reasonably used Mr M.Khan’s email address to serve its Rule 37 notice.
44. The Applicant ’s attorney, on the other hand, was at fault in failing to respond
to the Respondent’s request sent twice to furnish a copy of the pretrial agenda. In my
view a reasonable legal practitioner, having been asked by a colleague for a copy of a document which that colleague - as a matter of fact and irrespective of formal
service having been effected- does not have in her possession, would promptly
furnish a copy of that document to the colleague as a matter of collegial courtesy.
45. In my view, a further shortcoming i n the Applicant’s conduct is that the
Applicant’s attorney saw fit to serve the application to compel only on the
Respondent’s offices and not also on the State Attorney’s offices.
46. The Applicant ought also to have served the application to compel on the
State Attorney and ought to additionally have emailed the application to Ms Ameersingh, who as a result of such omission only became personally aware of the application on 8 May 2025, the day of the hearing.
47. The Applicant’s counsel in his heads of argument complains that none of the
requests uploaded by the Respondents Representative ( Case lines 1-4 – 1-11) were
directed to the attorney dealing with the matter (Ms Kelly Williamson).
48. However, in my view the Respondent and Ms Ameersingh acted reasonably
in using Mr Jannie Louw’s email address in view of the fact that , starting from 26
10
February 2025 when the Applicant’s attorney sent an email 22 to the Respondent
and the State Attorney, the Applicant ‘s attorney sent all its emails using the email
address of Mr Jannie Louw of the Applicant’s attorneys namely j […])
49. The Applicant’s counsel in his heads of argument submitted that I should
make an order as per the draft order at Case lines 7-3 – 7-4, but that I should award
punitive costs against the Respondent on the submitted basis that the Respondent has abused the process of the Court by its conduct. 50. I am not persuaded that this submission is sound, and I decline to award
punitive costs.)
51. Applicant’s counsel submit ted that the Applicant ’s attorney’s non- response to
Ms Ameersingh’s email (which was not directed to the attorney at the Applicant ’s
offices that dealt with the matter, namely Ms Kelly Williamson), does not equate to the Respondent not having had access to the draft pre- trial minute as the draft pre-
trial minute was sent to the Respondent on at least four occasions, two of which
included being part of the physical service of the application papers . I agree with that
submission. However, taking into account the fact that Ms Ameersingh on two occasions requested a copy of the draft pretrial minute and the fact that her emails
went unanswered waters down the weight of that point considerably.
52. The Applicant’s counsel in his heads complained that Ms Ameersingh’s email
with the signed pre- trial minute did not contain a tender of costs . In my view it was
not unreasonable of the Respondent to hold out for an order that each party pays their own costs .
53. Respondent’s legal representative Ms. Ameersingh referred to the fact that
other courts have in the past, in the exercise of their discretion, declined to grant
similar application s in circumstances where no Rule 30A notice was served, she
submitted that I must exercise my discretion in the same manner.
22 Case Lines 4 -35
11
53.1. I decline to do so.
53.2. In my view , the fact that the Applicant did not serve a Rule 30A notice
in the present matter does not in itself justify a dismissal of the application to
compel .
53.3. Rule 30A does not require a party to serve a Rule 30A notice.
53.4. Furthermore, it is in my view relevant that the Applicant did state in its
email dated 10 March 2025 that the Applicant would bring an application to compel in the event that the Respondent would fail to comply within the extended deadline.
53.5. My reasons for declining to grant prayer 1 of the notice of motion has
been set out in paragraphs 28 to 31 of this judgment.
D GOODENOUGH
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: Adv PJ Kok instructed by Wim Krynauw
Attorneys
For the Respondent: Ms S Ameersingh (State Attorney)
Hearing Date: 08 May 2025
Judgment Date: 27 May 2025