IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN

Case No: 22125/18

In the matter between:

THE ROAD ACCIDENT FUND Applicant

and

CHARLES JEKA CHIPO FYA Respondent

Neutral citation: The Road Accident Fund v Charles Ch ipofya (Case no
22125/20 18) [2023] ZAWCHC (02 June 2025)
Coram: LEKHULENI J
Heard : 29 January 2025
Delivered : 02 June 2025
Summary: The respondent claimed damages against th e Road Accident Fund
arising from injuries he suffered in a motor vehicle accident. The matter was settled,
and a draft order was by consent made an order of court. The applicant now seeks
rescission of that order as it alleges that when the order was made , it was unaware
that the respondent was an illegal immigrant. The court found these allegations to be
misleading and demonstrably false . The application for rescission of judgment is
dismissed. The applicant is ordered to pay costs of the application including the
costs of counsel on scale B .

ORDER

1 The application for the rescission of judgment is dismissed.
2 The applicant is ordered to pay the costs of the application including the
costs of counsel on scale B.


JUDGMENT
___________________________________________________________________

LEKHULENI J

Introduction

[1] This is an application for the rescission of judgment. The applicant seeks an
order that the court order granted by consent on 12 January 2023 by Goliath AJP , as
she then was, be rescinded and set aside. The relief is being brought under the
common law ground of justus error in that the court order was erroneously granted.
The applicant asserts that it was not aware that the respondent was an illegal
foreigner whose presence in the Republic violates the Immigration Act 18 of 2002
('the Immigration Act') , at the time it settle d his road accident fund claim. The
applicant now seeks an order to set aside the court order of 23 January 2023, which
directed it to pay the respondent damages in the sum of R1 461750 00.

[2] The respondent opposed the application and raised a preliminary point that
there has been a gross delay in bringing the rescission application. The respondent
contended that the applicant has not provided a satisfactory explanation for the
considerable del ay, which serves as a basis for dismissing the application. On the
merits of the application, the respondent asserted that the averments in the founding
affidavit are false and misleading and that the applicant has failed to show any form
of justus error which vitiated consent or that the order was erroneously sought or
granted.

The applicant’s case

[3] On 30 November 2018, the respondent, instituted an action against the
applicant flowing from a motor vehicle accident which is alleged to have oc curred on
19 September 2016, between Plettenberg Bay and the Crags wherein the plaintiff
sustained serious bodily injuries. The applicant initially defended the case, but a
settlement was reached when the respondent accepted the applicant's offer. On 12
January 2023, Goliath AJP issued an order by mutual consent that directed the
applicant to pay R1 461750 in damages to the respondent.

[4] The applicant asserted that when the respondent instituted the legal action,
he identified himself as Charles Jeka Chipofya, without providing any other details
about his identity. Following the issuance of the court order, the respondent
requested payment from the applicant. However, when payment was requested, the
applicant required specific documents from the respon dent. The applicant pointed
out that this requirement is in accordance with treasury regulations, mandating the
submission of stamped passports indicating entry and exit before the payment can
be processed. This is done to ensure compliance with various la ws and regulations
applicable to claims against the fund. The applicant posits that it is only when
payment is sought to be made that the applicant requires a stamped passport which
shows or proves that the respondent was legally in the Republic at the time of the
accident.

[5] According to the applicant, the respondent submitted a copy of a passport,
which referred to him as Charles Chipeta and not as Charles Jeka Chipofya, and this
made the applicant suspect foul play. In response to this sus picion, the applicant
investigated through its forensic investigation department to ascertain the
circumstances surrounding the dual identity of the respondent. During the
investigation, it came to light that the respondent , a Malawian citizen, owns two
passports, one naming him as Charles Jeka Chipofya and the other as Charles
Chipeta. The applicant stated that when the respondent was confronted about
having two passports, he tried to attribute the discrepancy to a data capture error.
However, in th e applicant's view, the respondent's explanation appears far -fetched,
as it is improbable that such an error could occur.

[6] Subsequent thereto, the applicant inquired with the Department of Home
Affairs on the status of the two passports. The informatio n received showed that the
latest passport did not exist at the time of the alleged motor vehicle accident on 9
September 2016; the passport date of the first issue was 29 July 2023. Additionally,
the movement system record for the other passport revealed that the visa had
expired on 10 December 2012. The applicant contended that the Department of
Home Affairs' records do not reflect the respondent's exit from the Republic on the
old passport or new entry post -December 2012. In the applicant's view, this
discrepancy could imply that the respondent was either not present in the country on
the date of the accident or was potentially in the country illegally.

[7] To this end, the applicant is disputing the respondent's entitlement to the
payment of damages granted in terms of the order of court sought to be rescinded.
The applicant explained that as the order was erroneously granted, had the court
been made aware t hat the respondent was an illegal immigrant and that his status in
the country was in contravention of the Immigration Act, the court would not have
granted the order. Furthermore, as things stands, the applicant contended that the
respondent's identity re mains questionable. As such, the order directing the applicant
to pay damages to the respondent cannot be enforced as the respondent's identity
remains a mystery. According to the applicant, the person who requested payment
was not the one who had institut ed an action against the applicant. The applicant
further posited that until the identity of the claimant is resolved, the applicant is in no
position to comply with the court order as it stands. To this end, the applicant sought
the rescission of the cons ent order.

The respondent’s case

[8] The respondent opposed the application and asserted that the application is
misconceived and without any merit whatsoever and stands to be dismissed with
cost on an attorney and client scale. The respondent contends that this application is
an abuse of the court process and has been launched solely to obstruct the payment
of damages owed to him by the applicant. This claim encompasses both past and
future loss of earnings, as well as general da mages . The respondent opined that the
applicant was motivated to launch this application solely to avoid a warrant of
execution being issued against it. The respondent stated that the application has
nothing to do with the respondent's illegal status in th e country, which the applicant
was fully cognisant of when it elected to settle the applicant's claim.

[9] The respondent explained that the factual basis and rationale for the recission
application is a complete fabrication and distortion of the facts. The respondent
asserted that the applicant's allegations - claiming that the applicant was under the
misconception that the respondent was legally in the country when the settlement
offer was made and that the applicant would not have made this offe r had it known
about the respondent's illegal status, are false and misrepresent the truth.

[10] The respondent asserted that he (respondent) was born and raised in Malawi.
After completing his military service in Malawi, he came to South Africa in 1994. He
had thus been living in South Africa for many years when he was involved in the
motor vehicle collision on 9 September 2016. During his time in South Africa, and
before being involved in the accident, he met and married Elmarie Bezuidenhout, a
South Afr ican citizen, in 2008, from which two minor children were born.

[11] Following the motor vehicle accident, the respondent's legal representatives
received instructions to lodge a claim for compensation against the applicant.
Subsequent thereto , the respondent's attorney wrote a covering lodgement letter to
the applicant on 12 June 2018, advising the applicant that they had received
instructions to lodge a claim on behalf of Charles Jeka Chipofya, also known as
Charles Chipeta. According to the respondent, it was explicitly mentioned to the
applicant that the respondent was also known as Charles Chipeta because this was
the name erroneously inserted in his Malawian passport and work permit. The
respondent averred that following the institution of the claim, multiple medical reports
were submitted on behalf of the applicant. The respondent propounded that from
these reports , it is clear that the respondent holds Malawian citizenship.

[12] After the respondent's RAF claim was lodged, the applicant's attorneys of
record considered the merits of the claim and thereafter provided the respondent
with a notice in terms of Rule 34 dated 4 March 2020 in terms whereof the merits
were settled 100% in favour of the respondent. The matter was then declared trial -
ready on quantum, and the parties were allocated the date of 24 November 2022 for
the hearing of the quantum. Following extensive negotiations, the applicant delivered
a Rule 34 notice to the res pondent on 23 September 2022. In this notice, the
applicant proposed to pay the respondent the sum of R600,000 as compensation for
general damages.

[13] The respondent elected to accept the offer in respect of general damages and
the acceptance was conveyed to the applicant in writing on 13 October 2022. Later ,
the claims handler of the applicant sent an email to the applicant's legal
representative on 01 November 2022, attachi ng documents and an affidavit from the
Department of Home Affairs confirming that the respondent's last valid status in the
country was a visitor's visa which had expired on 10 December 2012. The parties
engaged in settlement negotiations to settle the respondent’s special damages.

[14] The respondent posits that on 24 November 2022, the date of trial, Ms
Lemmer from the State Attorney's office, who was assigned to deal with the matter
on behalf of the applicant, advised the respondent's legal representatives that the
applicant was awaiti ng an offer in respect of the respondent's loss of earnings which
offer needed to be signed off by head office in Pretoria. In addition, the respondent
asserted that Ms Lemmer informed the respondent's legal representative that the
amount the applicant wou ld tender would be much less than the amount the
respondent claimed in his actuarial report since the respondent was in South Africa
illegally.

[15] Later that afternoon (on 24 November 2022), Ms Lemmer sent an email to the
applicant's legal representatives, attaching a copy of the applicant's tender in terms
of Rule 34 in respect of the respondent's past and future loss of earnings in the sum
of R861 750.00 which was as anticipated, much less than the amount which the
respondent was claiming. In the said email, Ms Lemmer attached a copy of the
medico -legal report of Moipone Kheswa, the applicant's industrial psychologist,
together with several documents from the Department of Home Affairs, which
showed that the respondent did not have a valid visa, which permitted him to be in
South Africa. In addition, in the report, Ms Kheswa concluded that at the time of the
accident, the respondent was not supposed to be in South Africa, and he had,
therefore, incurred no past loss of earnings.

[16] The re spondent asserted that on 28 November 2022, the applicant's legal
representative confirmed that the respondent's general damages were settled at
R600,000 and that the total amount payable to the respondent, including all heads of
damages, was R1 461750.00, which the respondent accepted. Following on from the
compromise agreement that had been reached between the parties on the entire
quantum of the respondent's damages, a draft order dated 12 January 2023 was
prepared and presented to the court. The draft o rder was by agreement made an
order of court . The respondent contended that the applicant was neither candid nor
forthcoming with the court in the founding affidavit. At the time the settlement
agreement was prepared , and the court issued its order, the applicant was aware
that the respondent was an illegal foreigner. Consequently, the respondent urged the
court to d ismiss the application with costs .

Principal submissions by the parties

[17] Mr Mokgope, the applicant’s counsel , submitted that the applicant has an
obligation in terms of s 17 (1) of the Road Accident Fund Act 56 of 1996 (‘the RAF
Act’) to compensate any person, the third party , for any loss or damage which the
third party has suffered as a result of any bodily injury to himself or herself or the
death of or any bodily injury to any other person caused by or arising from the driving
of a motor vehicle by any person at any place within the Republic . Counsel referred
the court to the case of AM and Others v Minister of Transport and Another ,1 in
which the full court of the North Gauteng Division of the High Court found that ‘any
person ’ in s 17(1) of the Act also includes illegal immigrants. Coun sel submitted that
the applicant does not agree with th e full court ’s finding and is appealing that
judgment to the Supreme Court o f Appeal .

1 (011795/2022) [2024] ZAGPPHC 309 (26 March 2024).

[18] According to counsel, the term 'any person' referred to in the Act cannot
include illegal immigrants as this will be in contravention of the Immigration Act,
which prohibits illegal immigrants from being in the Republic. It was submitted that
the Act is a social legislation which equates to claims for damages being social
benefits which, if extended to illegal immigrants, will create an enormous burden on
the State . In counsel's view, allowing illegal foreigners to claim from the applicant in
terms of the A ct offends the provisions prohibiting the aiding and abetting illegal
foreigners in contravention of the Immigration Act.

[19] Mr Mokgope further submitted on behalf of the applicant that the applicant
presented the offer of settlement in good faith based on the information provided and
under the misconception that the respondent was legally in the country. According to
counsel, the applicant only became aware of the respondent's questionable
immigration status after the settlement was concluded, and an or der of court was
made. Mr Mokgope submitted that the new information (illegal status of the
respondent) constitutes a material fact that was not before the court when the
consent order was granted. In counsel's opinion, the applicant's reliance on this
information to seek rescission is legally justified. Counsel urged the court to grant the
relief sought in the notice o f motion.

[20] On the other hand, Mr Coughlan, the respondent's legal representative, took
issue with the applicant's delay in bringing this application. Counsel submitted that
the applicant did not launch the rescission application upon learning that th e
respondent was illegal in the country. Mr Coughlan contended that the applicant was
fully aware of the respondent's legal status before the settlement agreement was
reached and the consent order was granted.

[21] In expanding his argument, counsel submitted that the rescission application
relates to a court order which was handed down on 23 January 2023, while the
rescission application was only brought on 4 June 2024, which is 501 days after the
said order was gra nted. In the opinion of counsel, this constitutes a considerable
delay. Furthermore, Mr Coughlan submitted that the applicant did not explain the
gross delay in bringing the rescission application. Mr Coughlan strongly asserted that
the court should exerci se its discretion to deny the application for rescission, given
the substantial delay in launching the application and the applicant's failure to
provide a reasonable explanation for this delay.

[22] On the merits of the application, Mr Coughlan argued that the applicant was
aware of the respondent's nationality and legal status in South Africa when i t made
its settlement offer on 24 November 2022. This offer was made without any
conditions, and the consent order was obtained on 12 January 2023 . In augmenting
this argument, the respondent's counsel passionately asserted that the applicant's
rescission application is fundamentally insincere. Counsel emphasised that the sole
driving force behind the applicant's attempt to impugn the consent order was to
prevent the respondent from issuing a warrant of execution against it.

[23] Mr Coughlan argued that t he respondent never misrepresented his status in
the country to the applicant, nor was the applicant ever under misapprehension in
regard thereto. The settlement agreement was not based on the assumed existence
of the respondent's legal status in the count ry. On the contrary, the applicant was
fully cognisant of the respondent's status in the country when it made the offer of
settlement on 24 November 2022. To this end, Mr Coughlan applied for the dismissal
of the applicant's application with costs on an at torney and client scale.

Issues to be decided

[24] From the above discussion , this court is enjoined to consider the following
three disputed issues:

(a) Was the rescission application brought timeously or within a reasonable time?
(b) Whether the applicant has shown good cause for rescinding the consent order
granted on 12 January 2023 ?
(c) Whether an undocumented foreign national is eligible for compensation under
the Road Accident Fund Act ?

Discussion

[25] For completeness, I take the liberty to discuss the disputed issues discussed
above, ad seriatim.

Did the applicant bring the rescission application timeously?

[26] The applicant’s application is based on the common law. An application for
rescission un der the common law must be brought within a reasonable time.2 An
ordinate delay in instituting an application to rescind a default judgment may count
against the rescission applicant and result in the rescission application being
refused. What is reasonable will depend on the circumstances of the particular case.
The 20 -day time period referred to in Rule 31(2)(b) of the Uniform Rules of Court is a
starting point in determining what is reasonable. Where there has been a delay , the
applicant must show that there is a reasonable explanation for the delay.3

[27] In the present matter, the applicant did not launch the rescission application
upon learning that the respondent was an illegal foreigner in the country. From the
respondent's answering affidavit, the applicant was already fully appraised of this
fact before the settlement agreement was reached, and the consent order was
granted. In the answering affidavit to which the applicant did not reply thereto, the
respondent mad e it clear that the applicant was aware that the respondent was an
illegal immigrant when the consent order was granted. These allegations were not
disputed.

[28] It is important to note that the applicant's application for rescission is tied to a
court order that was issued on 23 January 2023. Strikingly, this application was not
launched until 4 June 2024, a staggering 501 days after the consent order was
granted. Moreover , the applicant has not provided a ny satisfactory explanation for
this delay. In my view, this constitutes a substantial and un reasonable delay.

[29] What I find very concerning is that on 26 March 2024, the respondent's legal
representative sent an email to the applicant wherein the applicant's attorneys were

2 Money Box Investments 268 (Pty) Ltd v Easy Greens Farming and Farm Produce CC (A221/2019)
[2021] ZAGPPHC 599 (16 September 2021) para 7.
3 Roopnarain v Kamalapathy 1971 (3) SA 387 (D) at 390F -391D.
advised that the payment of the capital amount of R1 461 750.00 in terms of the
court order of 2 January 2023, was still outstanding and that if payment was not
effected within the next 10 days, then the warrant of execution would be issued and
served. On 15 April 2024, in response to that email, the applicant's attorneys sent an
email to the respondent's legal representatives and advised them that the applicant
had considered the respondent's email and had instructed them to launch a
rescission application, which had already been finalised, and which would be served
on the respondent's attorneys shortly.

[30] Notwithstanding, the rescission application was not se rved nor filed. On 2 May
2024, the respondent's attorney sent another email to the applicant's attorneys and
pointed out to them that although they had advised the respondent's legal
representatives that an application for recession had been prepared and w ould be
served upon them shortly, they had not received such an application. The applicant's
legal representatives were given a period of five days within which to serve and file
their rescission application. No application for rescission was forthcoming, and
thereafter, the respondent's legal representative s went ahead and issued the warrant
of execution on 21 May 2024. However, before the warrant of execution could be
served on the applicant, th e applicant launched its rescission application, which was
served on the respondent's legal representatives on 4 June 2024.

[31] Distinctly, the delay is inordinate and inexcusable. An undue delay can be
fatal to a rescission of judgment application, calling for its dismissal. It is important to
note that the applicant was fully aware of the respondent's illegal status and the
existence of two different surnames at the time the settle ment was reached, and
when the court issued the consent order. Accordingly, the applicant acquiesced to
the judgment. Acquiescence in the execution of a judgment must surely, in logic,
normally bar success in an application to rescind on the same basis as
acquiescence in the very granting of the judgment itself would.4

[32] As foreshadowed above, the applicant did not take the court into its
confidence and explain the cause of the delay, and neither filed an application for

4 Mvaami (Pvt) Ltd v Standard Finance Ltd 1977 (1) SA 861 (R) at 862F -G.
condonation for the la te filing of the rescission application. It seems to me the
applicant is using the application for rescission as a stratagem to prevent the
respondent from going ahead with its warrant of execution. In my opinion, the
applicant's application falls to be di smissed on this ground alone. However, for the
sake of thoroughness, I will consider the remaining questions discussed above.

Did the applicant show good cause for the rescission of the consent order?

[33] As a general rule, a court has no power to set aside or alter its own final
order, as opposed to an interim or interlocutory order. The reasons for this age -old
rule are twofold. First, once a court has pronounced a final judgment, it becomes
functus officio, and its authority over the subject matt er has ceased. The second
reason is the principle of finality of litigation that is, it is in the public interest that
litigation be brought to finality.5

[34] As discussed above, the applicant's application is premised on the common
law. In terms of the common law, the grounds for setting aside a judgment are very
narrow. A judgment can be rescinded at the instance of an innocent party if it were
induced by fraud on the part of the successful litigant or fraud to which the
successful litigant was party. Apart from fraud, the only other basis recognised in our
law as empowering a court to set aside its own order is justus error, the occurrence
of which is said to be relatively rare and exceptional.6

[35] In the present matter , the applicant relies on the existence of a justus error,
and as a result , the applicant contended that the order was therefore erroneously
granted. To satisfy the requirement that the order was erroneously sought or
granted, the applicant must show on a balance of probabilities that at the time the
order was granted, there were material facts that the court was unaware of and that
had these facts been known to the court, the court would not have granted the order.
In other words, the applicant must demonstrate that there was a deliberate and
intentional non -disclosure and withholding of crucial and material facts and

5 Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306F -G and 309A; Minister
of Justice v Ntuli 1997 (3) SA 772 (CC) paras 22 and 29.
6 Moratis Inv (Pty) Ltd Montic Dairy (Pty) Ltd 2017 (5) SA 508 (SCA) paras 12 and 13.
information to the court, which ind uced the court to grant the order. This simply
means that the court must have been misled into granting the order.

[36] A judgment given by consent may be set aside on good cause and sufficient
cause shown.7 In setting aside the judgment granted by consent, the courts have
regard to the following factors:

(a) the reasonableness of the explanation proffered by the applicant of the
circumstances in which the consent judgment was entered;
(b) the b ona fide s of the application for re scission ;
(c) the bona fides of the defence on the merits of the case which prima faci e
carries some prospects of success; a balance of pro bability need not be
established.

[37] All these factors must be viewed in conjunction with each other and with the
application as a whole.8 In this case, the explanation proffered by the applicant is
that it acted under the misconception that the respondent was legally in the country
when the offer of settlement was made to the respondent. Furthermore, the applicant
asserted that had the applicant been aware of the illegal status of the respondent at
the conclusion of the matter, it would not have extended an offer to the respondent.
From the documents filed on record, these allegations are misleading and
demonstrably false.

[38] The respondent never misrepresented his status in the country to the
applicant, nor was the applicant ever misapprehensive about it. The settlement
agreement was not based on the assumed existence of the respondent's legal status
in the country. This concl usion is fortified by the fact that the applicant's legal
representatives advised the respondent's attorneys that the respondent's claim
would be reduced because he was an illegal immigrant. This averment was not
disputed by the applicant or the applicant' s counsel. Clearly, the applicant was fully
cognisant of the respondent status in the country when it made the offer of
settlement on 24 November 2022. Furthermore, the respondent provided a plausible

7 De Wet and Others v Western Bank Ltd 1979 (2) SA 1031 (A).
8 Georgias v Standard Chartered Finance Zimbabwe Ltd 2000 (1) SA 126 (ZS) at 132G -I.
explanation in the form of an affidavit to the applican t for having two different names.
When the offer was made, the applicant was aware of this alleged discrepancy.

[39] Notably, the reduced amount that the applicant chose to offer the respondent
concerning his loss of income was partly based on the fact t hat the respondent was
not legally in the country when the offer was made. Furthermore, after the claim was
lodged, numerous medical -legal reports were served and filed on the applicant, from
which it would have been patently obvious to the applicant that the respondent is a
Malawian citizen an illegal immigrant . For example, the medico -legal report of the
respondent's Industrial psychologist, Amorei Engelbrecht, dated 30 September 2022,
served on the applicant states that the respondent is a Malawian citizen and includes
the respondent's Malawian passport number.

[40] In that report, the respondent informed Ms Engelbrecht that he had attempted
to apply for citizenship in South Africa by virtue of his marriage to a South African
citizen. However, he was not awarded citizenship at the time since some African
nationals had been misusing the system by marrying South Africans to gain
citizenship. The fac t that the respondent was a Malawian citizen was never withheld
from the applicant.

[41] Most importantly, after the merits were settled, on 1 November 2022, the
claims handler of the applicant sent an email with an affidavit from the Department of
Home Affairs confirming that the respondent's last valid status in the country was a
visitor's visa, which had expired on 10 December 2012. In addition, on 10 November
2022, the claims handler sent an email to the respondent's attorneys, atta ching a
further affidavit from the Department of Home Affairs. In the affidavit, Klass
Mahlangu, an assistant director in the Department of Home Affairs employed in the
Immigration Services: Directorate Temporary Residence Functional Services in
Pretoria, stated that in terms of section 29(1)(f) of the Immigration Act, the
respondent is a prohibited person and does not qualify for a port of entry visa,
admission into the Republic, a visa or a permanent resident permit as he has been
found with a fraudulent visa.

[42] Despite all this information, the applicant settled the respondent's claim and
consented to have the draft order made an order of court. More so, when the
applicant made a tender in terms of Rule 34, the applicant's legal representative, Ms
Lemmer, attached a copy of the medico -legal report of Moipone Kheswa, the
applicant's Industrial psychologist, together with a number of documents from the
Department of Home Affairs. These documents clearly showed that the respondent
did not have a valid vis a which allowed him to be in South Africa.

[43] In addition, in the said report, Ms Kheswa concluded that at the time of the
accident, the respondent was not supposed to be in South Africa, and he had,
therefore, incurred no past loss of earnings. Paragraph 4 of the affidavit of Lungi
Adonis employed by the National Department of Home Affairs attached to Ms
Lemmer’ s email specifically recorded that on 24 October 2022, the status of Charles
Chipeta, who is the Malawian National, was verified on the movement control system
and was found to be illegal in th e country as his last valid status which is a visitor's
visa expired on 10 December 2012. In the circumstances, there can be no
suggestion of any justus error having occurred when the applicant made its offer to
settle the respondent's claim and when it co nsented to the order, nor can it be said
that the order was erroneously sought or erroneously granted by the court.

[44] The applicant did not refute the allegations made by the respondent in the
answering affidavit. As discussed above, the respondent's answering affidavit is
supported by several correspondences exchanged by the applicant's legal
representatives and that of the respondent. From these correspondences and expert
reports, especially the applicant and the respondent's Industrial Psychologist s, it is
patently clear from these documents that the applicant never laboured under a
mistaken belief or was ignorant of any material facts when it settled the respondent's
RAF claim. Accordingly, the applicant's purported explanation of the circumstances
in which the settlement was concluded and judgment entered against it are false and
cannot be accepted.

[45] It must be stressed that t he parties concluded a settlement (a compromise)
and settled the litigation between them. It is proper to observ e that a compromise
(transactio ) is the settlement of disputed obligations by agreement. It is a contract
which has as its object the prevention, avoidance, or termination of litigation. It has
the effect of res judicat a irrespective of whether it is embodied in an order of court.9
The compromise between the applicant and respondent extinguished their disputed
rights or obligations. The purpose of this compromise was to prevent or put an end to
the litigation between the applicant and respondent. Thus, the compromise of the
applicant and respondent had the effect of res judicata .10 This principle envisages
that parties may not again litigate on the same matter once it has been decided on
the merits . It changes the terms of the settlement agreement to an enforceable court
order.

[46] Granting the rescission application under these circumstances will offend the
principle of res judicata and also amount to an abuse of process. Accordingly , the
applicant's application for rescission stands to be dismissed on the grounds of res
judicata . This leads me to the last disputed issue for consideration.

Is the applicant precluded from compensation under the Road Accident Fund
Act?

[47] At the he aring of this matter, it was argued that the applicant presented the
offer of settlement in good faith based on the information provided and under the
misconception that the respondent was legally in the country. The applicant further
submitted that the ph rase 'any person' referred to in section 17(1) of the Road
Accident Fund Act could not include illegal immigrants as this would be in
contravention of the Immigration Act, which prohibits illegal immigrants from being in
the Republic. According to the appl icant, this prohibition is established by section 49
of the Immigration Act, which emphasises the seriousness of the offences and the
consequences thereof.

[48] It is appropriate to begin by observing that a similar argument raised by the
applicant's counsel in this matter was considered and dismissed by the full court of
the North Gauteng Division of the High Court in AM and Others v Minister of

9 Karson v Minister of Public Works 1996 (1) SA 887 (E) 893.
10 Freedom Stationery (Pty) Ltd and Others v Hassam and Others 2019 (4) SA 459 (SCA) para 16.
Transport and Another .11 The full court found that ‘any person ’ in section 17(1) of the
Act also includes illegal immigrants. Mr Mokgope, the applicant’s counsel, submitted
that the applicant does not agree with this finding and is appealing the judgment.
While I appreciate that the applicant is appealing the matter , I must add that I am
persuaded by the views expressed by the full court in that matter.

[49] In addition , the Road Accident Fund has an obligation in terms of section
17(1) of the Road Accident Fund Act to compensate any person (the third party) for
any loss or death caused by or arising from the driving of a motor vehicle by any
person at any place within the Republic. Section 17 (1) of the Act specifically refers to
‘any person ’. It is apposite to remind ourselves that a fundamental tenet of statutory
interpretation is that the words in a statute must be given their ordinary grammatical
meaning, unless to do so would result in an absurdity.12 There are three important
interrelated riders to this general principle, namely:

(a) that statutory provisions should always be interpreted purposively;13
(b) the relevant statutory provision must be properly contextualised;14 and
(c) all statutes must be construed consistently with the Constitution, that is,
where reasonably possible, legislative provisions ought to be interpreted to
preserve their constitutional validity.15

[50] The meaning of the words 'any person' in section 17(1) is clear and
unambiguous. Giving these words their grammatical meaning does not produce an
absurd result. Simply put, the words 'any person' in section 17(1) of the RAF Act
refers to everybody. The phr ase 'any person' has been interpreted by the RAF over
the years to include illegal foreigners injured or killed in road accidents which took
place in South Africa. However, in a significant shift, the fund recently enacted new
directives to exclude illegal immigrants from the provisions of the Act. Seemingly,
this measure was taken with the aim of curbing and preventing fraudulent claims .

11 AM and others v Minister of Transport and Another (011795/2022) [2024] ZAGPPHC 309 (26 March
2024) .
12 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) para 28.
13 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and
Others 2014 (3) BCLR 265 (CC) paras 84 -86.
14 North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd 2013 (5) SA 1 (SCA) para 24.
15 SATAWU and Another v Garvas and Others 2013 (1) SA 83 (CC) p ara 37.

[51] In my opinion, the current legislative framework of the R AF Act does not
support the fund's position to exclude il legal immigrants from the application of the
Act. I must also add that many developed nations across the globe, recognise claims
for bodily injuries in motor vehicle accidents for all individuals, regardless of their
immigration status . In the UK, for instance, illegal foreigners are entitled to
compensation if they are victims of a motor vehicle accident injured in the UK. The
UK's legal system does not discriminate based on immigration status on
compensation for personal injuries. Similarly, in Canada 's various provinces, the
compensation for bodily injuries arising from motor vehicle accidents is not based on
immigration status.

[52] However, I am mindful that in the province of Ontario, the Court of Appeal for
Ontario in Silva v John Doe ,16 rejected a motor vehicle accident claim of an illegal
foreigner (appellant) who was involved in a hit and run accident. At the time of the
accident, the appellant did not have a motor vehicle or other insurance to respond to
a claim for damages in respect of his injuries sustained in the accident. He,
therefore, sued the unidentified driver ("John Doe") and the Superintendent of
Financial Services ('the Superintendent') under the Motor Vehicle Accident Claims
Act, R.S.O. 1990, c. M.41 ('the Act') for compen sation from the Motor Vehicle
Accident Claims Fund. The Superintendent defended the action on the basis that the
appellant's claim was statute barred by reason of s 25(1) of the Act. That section
prohibits payments from the fund to non -Ontario residents sa ve in specified
circumstances. Section 25(1) reads:

‘The Minister shall not pay out of the Fund any amount in favour of a
person who ordinarily resides in a jurisdiction outside Ontario unless that
jurisdiction provides persons who ordinarily reside in Ontario with recourse of
a substantially similar character to that provided by this Act. ’

[53] The matter was by agreement decided through a summary judgment motion
procedure. The court had to decide whether someone (an illegal foreigner) who lived

16 2016 ONCA 700.
in On tario continuously for almost a decade but did so without having legitimate
immigration status could be considered a true resident. The motion court judge
rejected the appellant's claim, finding that the appellant was not ordinarily a resident
of Ontario a t the time of the accident and that his physical presence in the province
resulted from deception and illegality. The appellant appealed the decision,
contending that the motion judge did not apply the proper test under section 25(1) of
the Act.

[54] The Ontario Court of Appeal rejected the argument and found that the key to
the engagement of s 25(1) is simply whether the appellant resided in the province at
the time . The appeal court confirmed the finding of the motion court judge that de
facto physical presence in Ontario, even if continuous, does not automatically
establish ordinary residence in Ontario for the purpose of access to the fund .
Notably , the court dismis sed the application and found that the legislative history of s
25(1), considered by the motion court judge , reflected a legislative intention to avoid
unnecessary payments out of the fund, which relies on public money sourced
through Ontario’s consolidated revenue fund.

[55] By parity of reasoning, our Road Accident Fund Act is different. It is designed
and couched to include illegal foreigners to benefit from the fund in case of motor
vehicle accidents. The fund is intended to compensate any p erson injured through
the negligent driving of a motor vehicle. Even if I am wrong in my finding, I firmly
believe that the applicant's application must fail as the Directive issued by RAF,
which requires foreign nationals to submit proof that they were la wfully in the country
at the time of the injury, does not apply retrospectively.

[56] It is common cause that t he plaintiff was involved in a motor vehicle accident
on 9 September 2016. Thereafter , the plaintiff issued summons against RAF on 13
November 2018. On 21 June 2022 , the RAF issued the directive requiring all foreign
nationals who lodged claims against the RAF to submit proof that they were lawfully
in the country at the time of the injury. On 4 July 2022 , by way of a notice in the
Government Gazette, the Minister of Transport promulgated the RAF 1 claim form
incorporating the requirements in terms of the Directive of 21 June 2022 .

[57] The RAF1 form in effect, when the respondent lodged his claim, did not
stipulate a requirement to prove the legality of the respondent’ s residence in the
Republic. The Directive issued by the RAF was issued long after the respondent's
claim was lodged with the fund. I must stress the fact that there is a strong
presumption in our law that new legislati on is not intended to be retrospective.17
There is another well -established rule of construction, namely that even if a new
statute is intended to be retroactive insofar as it affects affected rights and
obligations, it is nonetheless presumed not to affec t matters that are the subject of
pending legal proceedings. Therefore, the general rule is that a statute is as far as
possible to be construed as operating only on facts that come into existence after its
passing.18

[58] Moreover, the RAF Act is primarily concerned with giving the greatest possible
protection to people who have suffered loss through negligence or through unlawful
acts on the part of the driver or owner of a motor vehicle . As correctly pointed out by
Mr Coughl an, the provisions of the RAF Act must be interpreted as extensively as
possible in favour of third parties to afford them the widest possible protection .

[59] Accordingly, eligibility for the RAF fund is not contingent upon a person's legal
status within this country. An i ndividual's legal standing does not influence their
eligibility for RAF benefits. Simply put, i t is not the person’s immigration status in the
country that makes a person legible to the RAF benefits. The benefits that are
provided under RAF are incident s of a motor vehicle accident , rather than benefits
linked to an individual immigration status in this cou ntry. More over, t he RAF fund is
financed primarily through the payment of fuel levies . The payment of fuel levies is
charged indiscriminately to a person buying fuel. Therefore, any road user involved
in a motor vehicle accident and sustains a serious injury is ent itled, in my view, to be
compensated by the Fund . The fact that a person is illegal in the country is not an
obvious relevance to the question of eligibility.

[60] Considering the context and the purpose of the RAF Act, t he eligibility for RAF
benefits depends on satisfying the RAF Act requirements . Such an approach

17 Kaknis v Absa Bank Ltd and Another 2017 (4) SA 17 (SCA) para 10.
18 S v Mhlungu and Others 1995 (3) S A 867 (CC) para 65-67.
accords with section 39 (2) of the Constitution which enshrines the rule of statutory
interpretation that statute must be construed consistently with the Constitution and
must promote the spirit, purport and objects of the Bill of Rights . Section 9 of the Bill
of Rights states that everyone is equal before the law and has the right to equal
protection and benefit of the law.

[61] Pursuant to the above consideration, it is my firm view that even if the RAF's
appeal to the Supreme Court of Appeal should be successful, that outcome can have
no bearing on the outcome of this application for various reasons, one of which is
that the new RAF1 claim form and the RAF's management directive cannot apply
retrospectively. As a result, the applicant's a pplication must fail.

Order

[62] In the result , the following order is granted.

62.1 The applicant’s application is hereby dismissed.
62.2 The applicant is ordered to pay the costs of this application , including
the costs of counsel on scale B.


___________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT


APPEARANCES

For the Applicant: Adv Mokgope
Instructed by: Mpoyana Ledwaba Inc

For the Respondent: Adv Coughlan
Instructed by: Sohn and Wood Attorneys