IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 17185/2017
In the matter between:
ANTHONY WILTON THINANE INCORPORATED Applicant
and
MALASELA HEZEKIEL RALEBIPI Respondent
In Re :
MALASELA HEZEKIEL RALEBIPI Plaintiff
and
ANTHONY WILTON THINANE INCORPORATED Defend ant
DATE OF JUDGMENT : This judgment is issued by the Judge s whose name s are reflected
herein and is submitted electronically to the parties/their legal representatives by email. The
judgment is further uploaded to the electronic file of this matter on Caselines by the Judge’s
secretary . The date of the judgment is deemed to be 09 June 2025.
JUDGMENT
Khashane Manamela , AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
09 June 2025 _____________________
Date K. La M Manamela 91
2
Introduction
[1] This is an application for the rescission of judgment or order of this Court o f 04 October
2023 (‘the October Order’) made or granted against the applicant, Anthony Wilton Thinane
Incorporated (‘AWT ’), a law firm, in favour of its erstwhile client, Mr Malasela Hezekiel
Ralebipi (‘MHR ’), the respondent. The October Order was granted by Fisher J in an
interlocutory application brought by MHR to compel delivery of medical report(s) relating to
the damages claim or action instituted by MHR against AWT , as his former attorneys . AWT ,
also, seeks order s for the reinstatement of its defence in the action and condonation for its
material late compliance with Uniform R ule 36 (9)(b), as well as for the late bringing of th is
rescission application . This application is opposed by MHR .
[2] MHR was injured in a motor vehicle accident on 24 October 2008 and , subsequently,
sought legal assistance from AWT to pursue a damages claim against the Road Accident Fund
(‘the RAF’) . He accused AWT of failure to timeously lodge a claim against the RAF in terms
of the provisions of the Road Accident Fund Act 56 of 1996 (‘the RAF Act’). The action is
defended by AWT .
[3] The rescission application came before me on 11 February 2025 , when Mr E Coleman
appeared for AWT , whilst Mr J L Khan appeared for MHR . This judgment was reserved after
listening to oral submissions by counsel.
Brief background
[4] This being a rescission application , ordinarily the issues to be determined should be
crisp or straightforward. But, as it would be clear below, they are not. I, therefore, consider it
necessary to provide a brief narration of the facts in the background hoping to place the issues
in their proper context. I will endeavour to do so using the issues I consider to be common
cause between the parties or indicate the contrasting view , where necessary .
3
[5] On 18 May 2017 , MHR (as the plaintiff in the action) caused summons to be issued
against AWT (as the defendant in the action). MHR , as already indicated, was injured in a
motor vehicle accident on 24 October 2008 and , subsequently, retained AWT as his attorneys
to pursue a claim against the RAF . It appears that MHR ’s claim against the RAF was
successfully met with a special plea of prescription by the RAF and, thus, nullified . MHR , in
turn, seeks compensation from AWT in the amount of almost R8 million , as damages for his
personal injuries . AWT , as indicated, is defending the action , but the part ies have already
amicably settled issues relating to liability on a 70/30% split in favour of MHR .
[6] A lot of ground has been covered in the litigation between the p arties. For current
purposes i t may be proper to commence with the circumstances which led to the granting of
the order just prior to the October Order . In notices served in terms of Rule 36(1) -(2) dated 24
October 2022, AWT required MHR to attend medical examination by Dr Masilela , an
occupational therapist, and Dr Ragkokong (probably Rakgokong) , an industrial psychologist,
on 26 October 2022. MHR duly complied and, accordingly, was examined. Subsequently, in a
notice in terms of Rule 36(8) , dated 11 Novem ber 2022 , MHR called for the delivery of the
medical reports by the se medical practitioners.
[7] When the reports, despite reminder s, were still not delivered, MHR launched an
application to compel their delivery in January 2023. The application was set down for hearing
on 27 February 2023 , but it became opposed by AWT and was removed from the unopposed
roll, with cost s reserved. It was subsequently set down for hearing on 12 July 2023 . On the day
of the hearing, Mr Thinane , a director of AWT , agreed to the order being granted by Raulinga
J, despite AWT ’s opposition (‘the July Order’) .
[8] The terms of the July Order included direction for AWT to deliver the reports of the
material expert witnesses within one month . The order specified that should AWT fail to
4
comply , its plea would be struck out and MHR w ould have leave to obtain default judgment
against AWT. The c onsequences for compliance with the order by AWT would have facilitated
the finalisation of the joint minutes of expert witnesses retained by the parties. AWT was also
ordered to pay costs of the application on attorney and client scale .
[9] The July Order, as stated above , required delivery of the expert reports within a period
of a month , which would have been by 12 August 2023.
[10] On 8 August 2023 , AWT served notice (s) in terms of Rule 36 (1)-(2) on the attorneys
on board for MHR requiring that MHR attend and submit himself to further medical
examination by an orthotist (i.e. Ruan du Preez) and prosthetist (i.e. Troy Kircher) on 17
August 2023 . AWT or its counsel referred to the latter notice as being in respect of a ‘new ’
orthotist and prosthetist , whereas MHR considers the notice to form part of the July Order . I
will deal with th e implications of these views, below.
[11] On 14 August 2023 , MHR reacted to the notices (s) above and expressed an intention to
agree to or wa ive his rights with regard to the short notice on condition that AWT will provide
the report (s) of the orthotist and prosthetist by 31 August 2023. Ms Montan na des Neeves (‘Ms
Montanna’), previously an attorney at AWT, responded on 15 August 2023 and stated the
following :
We acknowledge receipt of your e -mail below dated the 14th instant, the contents of
which have been noted and for which we thank you.
We will advise our expert accordingly.
We trust you will find the above to be in order.1
[12] MHR attended the medical assessment by the orthotist and prosthetist . But, t he relevant
medical report (s) was/were not filed by 31 August 2023, despite a reminder made on behalf of
MHR on the same date. The application to compel , eventually ensued and was served on AWT
1 Answering Affidavit (‘ AA’) pars 15.8 at CaseLines (‘CL) 020 -64; annexure ‘FGR5’, C L 020-123.
5
on 13 September 2023 . It, primarily, sought to compel delivery of the reports of Du Preez and
Kircher, which AWT undert ook to file by 31 August 2023 in terms of the agreement reached
between the parties. AWT did not oppose the latter application and it was granted by Fisher J
on 4 October 2023 (i.e. ‘the October Order’) compelling AWT to file a notice in terms of Rule
36(9)(b) of the Uniform Rules of the Court in the following terms :
1. That the Respondent is Ordered to comply with Rule 36 (9) (b), to deliver
its Expert Witness Summary of RUAN DU PREEZ AND TROY KIRCHER
- (ORTHOTIST AN D PROSTHETIST ), as agreed between the Parties,
within 5 – (Five) days from the date of this Order being granted;
2. That in the event that the Respondent fails, neglects and/or refuses to comply
with Prayer 1 supra , the Court, in this appropriate circumstance, infers the
Respondent’s wilful refusal to engage with the Applicant in this regard, and in
respect of such wilful refusal, the Respondent’s Plea is hereby Struck - Out
and the Applicant is hereby granted Leave to apply for a Trial Date, on the
same papers, duly supplemented and for Judgment to be granted pursuant to
the Applicant’s Combined Summons and Particulars of Claim;
3. In the event that the Respondent duly complies with Prayer 1 supra , the
Respondent is Ordered to instruct his Expert Witness to attend to drafting,
finalizing, signature and delivery of a Joint Minute with the Expert Witness of
Ruwan Kleinsmit – (Orthotist and Prosthetist) appointed by the Applicant,
within 5 – (Five) days fro m the date of this Order being granted;
4. …
5. That the Respondent pay the Costs of this Application.’2
[13] On 5 April 2024 , the current application for rescission of the October Order was served
by AWT on MHR . The application , as admitted by AWT , was brought late , hence the prayer
for cond onation. Also , it is vigorously oppose d by MHR . I start with the issue of cond onation
for the late institution of the rescission application .
Condonation for the late institution of the application
[14] AWT , also, seeks condonation for the late bringing of the application for the rescission
of the October Order under Uniform Rule 4 2(1)(a).3 The r ule does not prescribe a timeframe
within which applications are to be initiated. But it is trite that where a litigant seek s rescission
2 Court order granted on 4 October 2023, per Fisher J, CaseLines (‘CL’) 020 -23 to 020 -26.
3 Par [ 30] below for a reading of Rule 4 2(1)(a).
6
it ought to do so within a reasonable time of becoming aware of the impugned order or
judgment .4 As to what constitutes a reasonable time depends on the facts of a particular
matter .5
[15] The October Order was granted on 4 October 2023. This application for its rescission
was launched around 5 April 2024. AWT says it became aware of the existence of the October
Order in January 2024 , after a frustrati ng use of a wrong e -mail address by a medical doctor
and the intransigence of counsel’s email outbox . According to AWT , the application ought to
have been brought by 5 March 2024. This, as with m ost of the explanation given , is disputed
by MHR , also armed with an affidavit by Ms Montanna , previously with AWT , and, even, on
the very words used or narration given by Mr Anthony Wilton , the deponent of AWT’s
affidavits . MHR says AWT knew about need to bring the rescission application as far back as
the second week of October 2023 , when it was made aware of the impugned order.
[16] Condonation, including in terms of Uniform Rule 27 of this Court, requires that a seeker
thereof must show ‘good cause ’ for the non-compliance with the rules to be condoned .6 There
is no universal or exhaustive definition by the courts as to what constitutes ‘good cause’ .7
Although the doctrine is located in the discretion ary realm of the Court, it comprises t wo
principal requirements : (a) a satisfactorily explanation under oath for the delay by the applicant ,
and (b) existence of a bona fide defence or satisfactory proposition that the applicant’s defence
or quest for the material relief is clearly not ill -founded or patently unfounded .8 An additional
4 First National Bank of Southern Africa Ltd v Van Rensburg NO: In re First National Bank of Southern
Africa Ltd v Jurgens and Others 1994 (1) SA 677 (T) at 681B –G; Firestone South Africa (Pty) Ltd v
Genticuro AG 1977 (4) SA 298 (A) at 306H; Ledwaba N.O v Mthembu and Others (25312/2016) [2021]
ZAGPJHC 641 (30 August 2021) [22].
5 Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz and Others 1996 (4) SA 411 (C) at 421G.
6 DE van Loggerenberg, Erasmus: Superior Court Practice (Service 23, Jutastat e -publications December
2024) (‘ Erasmus: Superior Court Practice ’) RS 25, 2024, D1 Rule 42 -11 and, further, RS 25, 2024, D1
Rule 27 -1-RS 25, 2024, D1 Rule 27 -9.
7 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 27 -3.
8 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 27 -4 to D1 Rule 27 -5 and the authorities relied
upon there.
7
requirement is laid down in some of the authorities to the effect that the indulgence sought and
granted should not lead to prejudic e on the part of the opposing party incapable of amelioration
by a costs order and/or postponement.9 Further, clarity has been provided by, among others,
the decis ion of the Supreme Court of Appeal (‘the SCA’) in Mulaudzi v Old Mutual Life
Insurance Company (South Africa) Limited and Others, National Director of Public
Prosecutions and Another v Mulaudzi (‘Mulaudzi ’)10 wherein it was held that factors usually
weigh ing with th e Court when considering condonation of applications, include ‘the degree of
non-compliance , the explanation therefor , the importance of the case , a respondent’s interest
in the finality of the judgment of the court below , the convenience of th is court and the
avoidance of unnecessary delay in the administration of justice ’.11 The SCA in Mulaudzi
pointed out that in condonation applications the issue of prospects of success , general ly, is an
important, but not decisive consideration amongst the factors relevant for the exercise of the
discretion of the Court.12
[17] The explanation for the delay proffered by AWT is criticised in very minute and
specific details by MHR. It appears rattled to the core by the exposition of what is considered
by MHR inconsistencies and/or improbabilities. And the affidavit acquired from Ms Montanna
almost sinks the foundation upon which the explanation for the delay is premised , that Ms
Montanna : (a) exclusively handled the matter without reasonably sharing on developments
with her colleagues, including Mr Wilton ; (b) left abruptly on mate rnity leave without the
necessary handing over on the matter, and, (c) thus, she is solely or substantially responsible
for the material turn of events. I will return to this issue in a moment.
9 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 27 -5 and the cited authorities.
10 Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director of
Public Prosecutions and Another v Mulaudzi (98/2016, 210/2015) [2017] ZASCA 88; [2017] 3 All SA
520 (SCA); 2017 (6) SA 90 (SCA) (6 June 2017).
11 Mulaudzi [26].
12 Mulaudzi [34].
8
[18] On the issue of existence of bona fide defence – mindful of the fact that one need only
take a peek of same for current purposes – I am reasonably satisfied that the application has
prospects of success. Prominent in my mind – with respect – is the approach adopted by the
Court in the October O rder of directing on what is to happen if there is non -compliance
simultaneously and prospectively when making the order to be complied with. It is this part of
the determination which urged me towards a finding of so me level of satisfaction in AWT’s
explanation for the delay.13 Also, the granting or refusal of condonation sought in this matter
ought to be balanced against the p rejudic ial effect thereof on both parties. Therefore, I consider
it justified that condonation be granted for the late bringing of this application. The interests of
justice – borne by the facts of this matter – so dictate.
Appl icant’s (i.e. AWT ’s) case (including submissions)
[19] It is AWT ’s case (and, consequently, the submissions on AWT’s behalf by Mr Coleman
are) that the October Order w as erroneously sought by MHR and so granted by the Court for
various reasons , including those appearing next :
[19.1] Primarily, it is contended that t he Court ought not to have allowed the provision s
of Rule 30 A to be appli ed to Rule 36 (9)14 in the granting of the October Order. MHR
compel led the filing of a notice in terms of Rule 36 (9)(b), when it was not due, as it
was not preceded by notice in terms of Rule 36 (9)(a) by AWT signalling its intention
to call the material expert , as a witness . AWT did not file a notice in terms of Rule
36(9)(a) for the orthotist and prosthetist and, thus, th e only logical conclusion is that a
notice in terms of Rule 36(9)(b) was not due to be filed. Besides, MHR cannot dictate
to AWT what expert reports to file, as a party who fails to do this, ipso facto , is
precluded from calling the witnesses.
13 United Plant Hire at 720E -G.
14 Pars [ 28] and [ 29.2] below, for a reading of the provisions of Rule 30A and Rule 36(9), respectively.
9
[19.2] Also, the provisions of Rule 30A are not available for applications to compel
compliance under Rule 36(9) and/or to strike out a litigant’s defence, as Rule 36(9) has
its own internal remedy for non -compliance with its provisions. The internal remedy or
mechanism wasn’t deployed by MHR in this matter .
[19.3] Further, AWT says that t he Court ought not to have included as a term of the
October Order the striking out of AWT ’s plea or defence for not filing a notice in terms
of Rule 36(9) (b). The application to compel did not set out facts justify ing ‘the double
barrel ’ approach adopted in granting an order to compel and strike out AWT ’s defence
the argument continues . For, an order made this way , does not allow a party in the
position of AWT to place its version before the Court by way of an explanation or
reasons for non-compliance and, thus, is in conflict with the audi altera m partem (‘hear
the other side ’) rule. Given the latter opportunity , AWT would have informed the Court
that the material report was only received from the expert witness in January 2024 ,
hence the non -compliance with the October Order . Besides, nothing in the application
to compel justified the granting of the drastic remedy of striking -out a defence . It also
ought to be borne in mind that the July O rder is distinct from the October Order , as the
medical report implicated in the latter order was not the subject of the July O rder.
[20] Therefore, for these reasons, the October Order was erroneously sought by MHR and
erroneously granted by the Court. No opposition should have been mounted against this
rescission application or MHR should have abandoned the October O rder, to avoid being
mulcted with costs thereof , AWT’s case and submissions conclude .
Respondent’ s case (i.e. MHR ’s) (including submissions)
[21] The rescission application is opposed on several fronts. These and the submissions
made by Mr Khan , on behalf of MHR , are dealt with under this part . Overall, the rescission
10
application and its factors are labelled by MHR as one of AWT ’s delaying tactic advanced
without any consideration to the costs of the litigation and the unbearable plight visited upon
MHR by the delay s in the finalisation of the damages claim against AWT .
[22] It is argued that AWT attempt s to muddy the waters in respect of October Order . The
premise of the application leading to this order is borne by what clearly appears in th e notice
of motion , namely, the ‘agreement between the parties ’. The agreement was reached by the
parties through their representatives ’ correspondences on 14 and 15 August 2023 , as set out
above .15
[23] Further, it is disingenuous for AWT to claim compli ance with the October O rder when
it failed to file the reports of Drs Harper, Masilela and Ragkokong, b ut instead elected to
instruct a new orthotist and prosthetist in the form of Drs Du Preez and Kircher. Also, AWT
served the reports of the industrial psychologist and occupational therapist on 11 August 2023,
as well as the report of the actua ry on 6 September 2023. It is stated that the July Order was
also aimed at the production of th ese report s. AWT has not furnished an explanation for non-
delivery of the former batch of reports . This approach confirms wilful default or refusal on the
part of AWT to engage with MHR in this respect in contradiction of the Judge President ’s
Revised Directive. AWT had all reasonable opportunity to comply with its own undertaking.
[24] Also , that Rule 42(1)(a) is applicable where an applica nt for rescission of an impugned
order or judgment was absent from court. AWT was not absent from the C ourt, but only chose
not to oppose the application. It now seeks to pass the blame for not opposing the application
on 4 October 2023 and not timeously filing the report of its orthotist and prosthetist .
15 Par [11] above.
11
[25] As for a notice under Rule 36(9)(a) having to precede one under Rule 36(9)(b), it is
pointed out that AWT , eventually, did file the report in terms of Rule 36(9)(b) on 23 January
2024 without, first, serving Rule 36(9)(a ). AWT , as confirmed by this type of conduct, has no
regard to the rules of this Court, unless it is convenient or advantageous to AWT .
[26] MHR rejects – as incorrect - the approach by AWT of treating the October Order as
separate from the July O rder. The former ought to be viewed in light of the latter calling on
AWT to file all its experts report s, which it agreed to do. The rescission ought to be dismissed
for want of merit with costs de bonis propriis (‘from personal funds ’).
Applicable legal principles
[27] The legal principles mostly implicated in this matter relate to : (i) the re scission of orders
or judgments in terms of Rule 42 (1)(a) ; (ii) medical examinations and material reports under
Rule 36 (8) and Rule 36 (9), and (iii) the enforcement of compliance with these rules, possibly,
in terms of Rule 30A. Some of the se rules (or the legal principles arising therefrom) have
already been referred to above . But , the primary principles are reflected in greater detail below,
to facilitate the discussion and determination of the issues in th is application .
[28] Rule 30 A concerns non-compliance with the Rules and orders of the Court and read as
follows in the material part:
(1) Where a party fails to comply with these rules or with a request made or notice
given pursuant thereto, or with an order or direction made by a court or in a judicial
case management process referred to in rule 37A, any other party may notify the
defaulting party that he or she intends, after the lapse of 10 day s from the date of
delivery of such notification, to apply for an order —
(a) that such rule, notice, request, order or direction be complied with; or
(b) that the claim or defence be struck out.
(2) Where a party fails to comply within the period of 10 days contemplated in subrule
(1), application may on notice be made to the court and the court may make such
order thereon as it deems fit.
12
[29] Inspections, examinations and expert testimony are provi ded under Rule 3 6, which
reads as follows in the material part:
[29.1] Rule 36 (8):
Any party causing an examination to be made in terms of subrules (1) and (6) shall —
(a) cause the person making the examination to give a full report in writing, within
two months of the date of the examination or within such other period as may be
directed by a judge in terms of rule 37(8) or in terms of rule 37A, of the results of the
examination and the opinions that such person formed as a result thereof on any
relevant matter;
(b) within five days after receipt of such report, inform all other parties in writing
of the existence of the report, and upon request immediately furnish any other party
with a complete copy thereof; and
(c) bear the expense of the carrying out of any such examination: Provided that
such expense shall form part of such party’s costs.
[29.2] Rule 36 (9):
(9)(a) No person shall, save with the leave of the court or the consent of all parties to
the suit, be entitled to call as a witness any person to give evidence as an expert upon
any matter upon which the evidence of expert witnesses may be received unless —
(i) where the plaintiff intends to call an expert, the plaintiff shall not more than
30 days after the close of pleadings, or where the defendant intends to call the expert,
the defendant shall not more than 60 days after the close of pleadings, have delivered
notice of intention to call such expert; and
(ii) in the case of the plaintiff not more than 90 days after the close of pleadings
and in the case of the defendant not more than 120 days after the close of pleadings,
such plaintiff or defendant shall have delivered a summary of the expert’s opinion
and the reasons therefor:
Provided that the notice and summary shall in any event be delivered before a first
case management conference held in terms of rules 37A(6) and (7) or as directed by
a case management judge.
(b) The summary of the expert’s opinion and reasons therefor referred to in
subparagraph (a)(ii) shall be compiled by the expert himself or herself and shall
contain a statement by the expert confirming that the report is —
(i) in such expert’s own words;
(ii) for the assistance of the court; and
(iii) a statement of truth.
[30] Rule 42(1)(a) , the prominent enabling r ule in this application and part of Rule 42
providing for variation and rescission of orders , reads:
13
(1) The court may, in addition to any other powers it may have, mero motu or upon
the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the absence
of any party affected thereby …
Issues for determination
[31] This is an application for the rescission of the October Order and, thus, the requirements
for rescission are the primary issues to be determined. The rescission is typecast as one under
Rule 4 2(1)(a) on the ground that the October Order was erroneously sought and granted .
[32] Tied to th e primary issue (s) and forming part of the grounds for rescission are a number
of secondary or ancillary issues. The following appear to be the latter type of issues: (a)
reinstatement of AWT’s struck -out plea or defence ; (b) condonation for the late delivery of a
notice under Rule 36 (9)(b) ; (c) nature and extent of the July Order; (d) Agreement of August
2023 between the parties; (e) nature and extent of the application to compel of September 2023 ;
(f) nature and extent of the October Order; (g) relationship between the October Order and the
July Order ; (h) applicab ility of R ule 30 A to Rule 36 (9); (i) compelling compliance with R ule
36(9)(b) without notice under R ule 36 (9)(a); (j) ‘double barrel ’ approach adopted in granting
order s to compel compliance by AWT and strike AWT Inc’ s defence ; (k) existence under Rule
36(9)(a) of own remedial mechanism not subject to Rule 30 A, and (l) whether AWT complied
with the October Order.
[33] I have identified the primary and ancillary issues above to facilitate the discussion to
follow . The issues are interlinked and, in some instances, will be discussed jointly. And the
discussion will not necessarily take the sequence of the issues , apparent, above.
Nature and extent of the July Order
[34] The material term of the July Order for purposes of this part is the following:
14
The respondent be ordered to comply with the applicant's Notice in terms of rule
36(8), namely, to deliver its Expert Witness Reports, within one month from date of
Order being granted16
[35] It is clear from the above that MHR had approached the Court for the July Order to
compel AWT to comply with his notice under R ule 36(8) . The material reports where those of
Dr Masilela, an occupational therapist, and Dr Ragkokong (probably Rakgokong), an industrial
psychologist, referred to above.17 These are the only experts who se report s gave rise to the
application which led to the July Order. The latter order directed that the aforesaid reports and
not any other reports were to be delivered within a month from the date of the order. Therefore,
it is incorrect for MHR t o say that the July Order extended to other medical reports , including
those not dealt with in the application predicating the July Order .
Agreement of August 2023 between the parties
[36] The application to compel which led to the October Order is said to have be en premised
on an agreement reached by the legal representatives of the parties. This is the case of MHR .
AWT seeks to extricate itself from the alleged agreement by contending that undertakings by
legal representatives are not binding on the parties . But what is the alleged agreement?
[37] The events under this part began when AWT delivered notice(s) requiring MHR to
attend medical examination by orthotist and prosthetist on a short notice. Attorneys for MHR
agreed to waive the notice period on condition that AWT provide s the report (s) by 31 August
2023. AWT , through its attorney , Ms Montanna , undertook to convey the condition or
agreement to the material experts tasked with the assessment of MHR .18 Therefore, an
agreement was reached and I do not accept that the undertaking by Ms Montanna was not
16 Answering affidavit, CL 020 -113.
17 Par [6] above.
18 Par [11] above.
15
binding o n AWT . It is not insignificant that in this instance – on the part of AWT - the attorneys
are exactly the same as the client.
Nature and extent of the October Order
[38] MHR, as stated above, launch ed the second application to compel the delivery of
medical report (s) in September 2023 . This led to the October Order. The order directed AWT
to comply with Rule 36(9)(b) by deliver ing the expert summary of Du Preez and Kircher , an
orthotist and prosthetist within five days from the date of th e order. The consequences of non -
compliance with this part of the October Order, included the striking o ut of AWT’s plea and
granting of leave to MHR to seek default judgment.19
Relationship between the October Order and the July Order
[39] It is contended on behalf of MHR t hat there is a link between the July Order and the
October Order. In the second application to compel, relevant to the October Order, MHR
asserted the existence of a link between the October Order and the July Order b y, among others ,
(a) tabulating the terms of the July Order; (b) stating that the Rule 36 notice for the orthotist
and prosthetist w as delivered outside of the terms of the July Order, and (c) stating that an
agreement was reached between the parties indulg ing AWT to file the reports or expert
summaries by 31 August 2023 .20 On the other hand, AWT referred to the Rule 36 notice for
the orthotist and prosthetist as a ‘new notice’ , thus, denoting a disjoint with the earlier process
including the July Order.
[40] I do not see the issue as MHR does . In my view, t here is no link between the two orders.
I have mentioned what I believe to be the nature and extent of the orders above.21 The July
Order, as I stated above, is circumscribed and d oes not extend beyond the medical experts
19 Court order granted on 4 October 2023, per Fisher J, CaseLines (‘CL’) 020 -23 to 020 -26.
20 Founding Affidavit (September 2023 application to compel), CL 017 -12 to 017 -13.
21 Pars [34] -[35] for the July Order and par [38] of the October Order , above .
16
mentioned in the papers founding th at order. There was no basis for such expansive width when
the material in the founding papers did not establish such a case.
[41] The October O rder, essentially, is a product of the agreement between the parties,
referred to above.22 It does not matter that MHR sought to rely on the terms of the July Order
when reaching the agreement. Of course, the parties enjoy contractual freedom to incorporate
whatever terms in their agreement reached with in the confines of our laws and moral
convictions. But this did not create a bridge between the two orders, at least of the nature and
extent asserted by MHR.
Rule 36(9)(a) -(b)
[42] It is AWT’s case that it was incompetent for the Court to direct compliance with the
provisions of Rule 36 (9)(b) , when a party has not delivered a pr ior no tice under R ule 36 (9)(a) .
I agree with the generality of the principle implied in this submission .
[43] But in this instance , the Court when granting the October Order or part thereof was
enforc ing the terms of an agreement reached freely between the parties (i.e. AWT and MHR)
on what was to be done regarding the delivery of the material medical report(s). In my view , it
is immaterial that the application also made reference to Rule 3 6(9)(b). The agreement reached
between the parties , referred to above , clearly stated that AWT will provide the report (s) of the
orthotist and prosthetist by a particular date . This was not done and , thus, MHR as a party to
the agreement approached the Court to enforce its terms . The argument about R ule 36 (9)(b)
requiring the trigger of Rule 36(9)(a) is of no practical value under the circumstances of this
matter . There is no need for such debate.
22 Pars [36] -[37] above.
17
Is Rule 30A applicable to Rule 36(9) ?
[44] For the same reasons appearing under the topic immediately above, I find it unnecessary
to determine whether Rule 36 (9)(a) has its own or internal enforcement mechanism not subject
to Rule 30 A. An answer this o r the other way to the question whether or not R ule 30 A is
applicable to Rule 36 (9) does not take th is matter a step further, when MHR could have
exclusively relied on the agreement between the parties with the same outcome . It is also
common cause that AWT did deliver the report or summary in terms of Rule 36(9)(b) on 23
January 2024 without prior delivery of a notice under Rule 36(9)(a). Therefore, AWT has
acquiesced in this part o f the October Order.
Has AWT complied with the October Order
[45] AWT says that it complied with the terms of the October Order. It is common cause
between the parties that the report of the orthotist and prosthetist was indeed delivered on 2 3
January 2024 . It is also common cause that this was outside of the period prescribed by the
October Order. Therefore, there was compliance with the order al beit late, hence AWT ’s quest
for cond onation in this regard . I deal with the latter issue under the requirements for rescission,
below .
[46] MHR also bemoans the fact that the reports of other medical experts who examined
him w ere not availed by AWT and, thus, label as disingenuous for AWT to claim compliance .
I have mentioned above that this is beyond the terms of the October Order.
Requirements for a rescission application
[47] It is by now clear that AWT seeks the rescission of the impugned order on the basis that
it was both erroneously sought and erroneously granted in its absence , as envisaged in Rule
42(1)(a) . This is possible in terms of the authorities.23 MHR disputes that the October Order
23 Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 42 -22.
18
was granted in the absence of AWT and, therefore, the applicability of Rule 42(1)(a).
According to MHR, AWT sat back and did not oppose the application leading to the October
Order. I agree that the Court frowns upon a party whose presence was not precluded , but rather
opted to absent itself.24 This part of the application has some parallels with the issue of
condonation , dealt with above .25 I see no reason to give it particular attention.
[48] The other element (than the one of the absen ce of a party ) is an error alleged to have
been committed by the Court. The principles relating to the ‘error’ in this regard include the
following: (a) a mistake in the proceedings;26 (b) a mistake either appear ing on the record of
proceedings or which subsequently bec ame apparent from a rescission application for the
judgment; (c) an error may have arise n in the process of seeking default judgment by an
applicant or the process of granting default judgment by the court , and (d) this type of rescission
require s that an applicant only show the error, as good cause for the rescission does not have
to be established.27
[49] Good cause was discussed in the context of condonation above.28 But, as appearing
from the latter principle relating to the ‘error’ above, AWT, as an applicant for rescission on
the basis of R ule 42(1)(a) does not need to establish good cause in addition to the proven error
in the seeking or granting of the October Order.
[50] As also appearing above , the October Order , effectively, compelled the delivery of
orthotist and prosthetist report(s) within five days of its date (‘the Compliance Term’) . AWT
24 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 Others (CCT 52/21) [2021] ZACC 28; 2021 (11)
BCLR 1263 (CC) (17 September 2021) [56]-[57].
25 Pars [14] -[18] above.
26 Kgomo and Another v Standard Bank of South Africa and Ot hers 2016 (2) SA 184 (GP) (‘Kgomo ’) [11];
Freedom Stationery (Pty) Ltd v Hassam 2019 (4) SA 459 (SCA) (‘Freedom Stationery ’) at 465G –H. See
also Erasmus: Superior Court Practice RS 25, 2024, D1 Rule 42 -18.
27 Kgomo [11]; Freedom Stationery at 465G –H. See also Erasmus: Superior Court Practice RS 25, 2024,
D1 Rule 42 -18.
28 Par [16] above.
19
complied with the Compliance Term , although late. Compliance with an order is giving effect
to its terms or acquiescing thereto. AWT cannot now, in an about -turn, seek rescission of the
very same part of the order (i.e. the Compliance Term) . Its compliance is proof that there was
no error in its seeking or granting. Also , seeking condonation for the late delivery of the expert
report or summary , as envisaged in Rule 36(9)(b) , is further confirmation of AWT’s quest to
comply with the Compliance Term . When a term of the order has been complied with ,
condonation for non - compliance is moot and will not serve any practical purpose.
[51] This brings me to other part or term of the October Order: infer ence of ‘ wilful refusal
to engage ’ on the part of AWT with MHR and, the s triking -out of AWT’s defence to facilitate
default judgment (‘the Strike -out Term’) .29 It is AWT’s case that the Strike -out Term deprived
it of the right to be heard in the form of determination by the Court of the reasons for non -
compliance with the Compliance Term. AWT, further , says that has it been given the
opportunity it would have advised the Court that the material report was not timeously received,
as it was only received in January 2024 . MHR , as indicated above, disputes this and contend
that available information suggest receipt of the report much earlier. But , this is immaterial
given the fact that the latter information was not placed before the Court when the October
Order was made . This was impossible given that the Strike -out Term of the October Order
purported to regulate future unknown m atters. I searched in vain for the justice and equity in
this type of orders. I would have held a different view if the Strike -out Term was to gain effect
only upon a future determination by the Court of the facts surrounding non -compliance with
Compliance Term. Rule 30A, clearly, does not provide for such an app roach , but clearly
envisages separate applications for either ‘that such rule, notice, request, order or direction be
complied with ’ or ‘that the claim or defence be struck out ’.30 In the absence of this, I hold that
29 Par [12] above for a reading of the October Order.
30 Par [ 28] above for a reading of Rule 30A.
20
the Strike -out Term was erroneously sought and granted. I am mindful of the fact that the
approach may have been derived from the practice directive of th is Court or influence thereby.
[52] But the interests of justice , in my view and on the facts of this matter , dictate that the
Strike -out Term be rescinded or set aside. Therefore , whilst not quibbl ing with the choice of
words, I agree that the ‘double barrel’ approach embedded in the October Order – on the facts
of this matter – has proven erroneous. AWT’s plea or defence of the action , thus, will be
restored through a rescission order of its strike -out, which is located in paragraph 2 (i.e. the
Strike -out Term ) of the October Order .
Conclusion and co sts
[53] AWT is successful in the matter when considering the ultimate effect of the findings of
the Court above , as will be borne by the order to be made, below. I doubt that I can call the
success , substantial , for purposes of guiding the landing of liability for costs. But this is not
necessary.
[54] AWT’s conduct which precipitated this application – although I will avoid the label
‘unclean hands’ – was full of blemishes. And , MHR’s primary objective in opposing this
application and bringing the incessant applications to compel, appears to be the speedy disposal
of the damages claim or action against AWT . This, in fact, should be the focus of both parties
instead of some form of gamesmanship when liability has already been conceded . It ought ,
also, to be mentioned that e xpert witnesses participate in matters before the Court to assist the
Court in arriving at a just and equitable outcome. This is trite .31 An expert witness is not a hired
gun or someone to be at s ome party’s corner . The reasons for all these are obvious , they include
31 Price Waterhouse Coopers Inc v National Potato Co -op SCA 2015 par 98. See also John Saner, Medical
Malpractice in South Africa (LexisNexis, November 2024 ) pp 14 -10-14-11.
21
the fact that, the Court is tasked wi th a delicate exercise of balancing the interests of the warring
parties. L ives and livelihood s are often at stake.
[55] Therefore, I consider a costs order against MHR or in favour of AWT not justified by
the facts of this matter. I will direct that the costs of the application be costs in the action.
Order
[56] In the result, I make the following order:
1. the late filing of this application for rescission is condoned ;
2. paragraph 2 of the order of this Court granted on 4 October 2023 in this matter
is rescinded and set aside , and, consequently, the a pplicant ’s plea and/or defence
are/is hereby reinstated , and
3. the costs of this application will be costs in the action related to this application .
___________________________
Khashane La M. Manamela
Acting Judge of the High Court
Date of Hearing : 11 February 2025
Date of Judgment : 09 June 2025
Appearances :
For the Applicant : Mr E Coleman
Instructed by : Anthony Wilton Thinane Inc, Germiston , Johannesburg
For the Respondent : Mr J L Khan
Instructed by : CN Sweetnam Attorney s, Norwood, Johannesburg