IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 6101/2019
In the matter between:
ROAD ACCIDENT FUND Applicant
and
JUAN PIETER NEETHLING First Respondent
THE SHERIFF OF THE HIGH COURT FOR
THE DISTRICT OF CAPE TOWN WEST Second Respondent
Court: Justice J Cloete
Heard: 5 June 2025
Delivered : 5 June 2025
EX TEMPORE JUDGMENT
CLOETE J :
[1] This is an opposed urgent application brought by the Road Accident Fund
(“RAF”) to stay a writ of execution lawfully issued and served on 14 February
2025, and a lawful attachment made by the sheriff of the RAF’s movable
property, in respect of a judgment and/or order granted by Adams AJ in this
Division on 28 November 2024 for payment by the RAF of R190 928.20 in
respect of past medical expenses. Given that the application came before me
in the “Fast Lane” of motion court this judgment is, of necessity, b rief.
[2] The RAF failed to file the requisite Practice Note as requ ired by WCHC
Practice Directive 20. This, on its own , is sufficient for me to strike the matter
from the roll. However, I have decided, in the interest of justice, to determine
the matter on its merits.
[3] The ground advanced by the RAF for a stay of the writ of execution is that
there are pending appeals in both the Supreme Court of Appeal [from a split
decision in the Gauteng High Court, namely, Discovery Health (Pty) Ltd v Road
Accident Fund & Another [2024] ZAGPHC 1303 (17 December 2024)
(“Discovery Health”)] and in this Division (which I understand to be the Van
Wyk matter, although no particulars were furnished by the RAF) ie, in respect
of different individual s litigating against the RAF, but also in relation to past
medical expenses and the RAF’s liability therefor due to certain of its own
internal di rectives.
[4] The RAF contends that if either or both of those appeals succeed “the result
thereof will result in the [RAF] losing property of substantial value [being the
amount of the judgment in the matter before me]. The deponent to the RAF’s
founding a ffidavit also contends that “if execution proceeds, the Fund will be
forced to direct scarce resources away from settling other judgments and
processing current claims in order to restore basic office functionality”.
However in the very next paragraph, t he RAF alleges that the first
respondent’s claim “is fully secured” should the appeals in the other matters
fail, and that – without providing an iota of supporting evidence - “the Fund
remains solvent and is able to satisfy the judgment”. Self -evidently, these are
two materially contradictory allegations.
[5] The RAF did not apply for leave to appeal the order of Adams AJ. It
fundamentally misunderstands th e legal position, namely that irrespective of
the outcome of any appeal in different litigation (even though it might involve
the same legal issues) that outcome will have no effect whatsoever on other
orders made. The Constitutional Court has made this clear in Merafong City
v Anglogold Ashanti 2017 (2) SA 211 (CC) at paragraphs [41] to [43]. Put
differently, the order of Adams AJ will remain of full force and effect until set
aside by a court , and not by the RAF deciding that it does not have to comply
therewith.
[6] There is an additional relevant factor. In Esack N.O. v RAF [2023] ZAWCHC
27, a judgment in this Division, Nuku J held inter alia that the majority decision
in Discovery Health fell foul of the doctrine of stare decisis , a fundamental
principle that requires High Courts to follow decisions of the Supreme Court of
Appeal a nd the Constitutional Court (at paragraphs [15] to [17] of the
judgment). In making such finding he referred to binding Supreme Court of
Appeal authority which is contrary to the approach adopted by the majority in
Discovery Health. Why this is also rele vant is that the RAF itself was the
losing party before Nuku J and was therefore fully aware of the Nuku J
judgment, but elected not to draw this court’s attention to it, despite bringing
this application on two court days’ notice to the respondents; havin g a duty of
the utmost good faith to disclose all relevant factors; and being aware that its
own application for leave to appeal the Nuku J order was refused. I was only
informed by the RAF’s legal representative, in reply, that it now intends lodging
a petition against the Nuku J order in the Supreme Court of Appeal.
[7] Having regard to all of the aforementioned, I am compelled to the conclusion
that this application is an abuse of the court process.
[8] The following order is made:
The application is dismi ssed with costs on the scale as between attorney
and client, including the costs of senior junior counsel .
___________
J I CLOETE
Judge of the High Court
For Applicant: Mr C Hindley
Office of the State Attorney
For First Respondent: Adv P Eia
Instructed by: Batchelor & Associates (Mr A Batchelor)