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REPUBLIC OF SOUTH AF RICA
IN THE HIGH COUR T OF SOUTH AF RICA
GAUTENG DIVISION, PR ETORIA
Case Number : 34316/2020
(1) Reportable: No
(2) Of inte rest to other judges: No
(3) Revised .
Date: 17 June 2025
S[...] S[...] N[...] OBO
N[...] M[...] 1ST APPLICANT
S[...] I[...]M[...] 2
ND APPLICANT
And
ROAD ACCIDENT FUND RESPONDENT
Summa ry: Default Judgment - Notice of intention to defend delive red in ter ms of
Rule 19(5)mor e than thr ee yea rs afte r expiry of dies - No defence - The Notice
constitute an abuse of cour t in the context of R oad Accident Fund Litigation - Notice
set aside in ter ms of the cour t’s inher ent jur isdiction.
This judgment was handed down elect ronically by ci rculation to the par ties and/or
their legal representatives by email and by being uploaded onto CaseLines. The
hand- down date is deemed to be 17 June 2025 .
JUDGMENT
2
MATIME AJ
INTRODUCTION
[1]. The matter was enr olled fo r default judgment on 29 Apr il 2025, wher ein both
merits and quantum wer e in dispute. The a pplicant has pr ocured all exper t reports
inclusive of an actuar ial report.
[2]. The matter was lodged with the R oad Accident Fund on the 09th September
2016. The Summons wer e issued on the 13th August 2020 and the r espondent was
afforded 10 days to file the notice of intention to defend. The last day to file the notice
of intention to defend was on the 27th August 2020. The respondent was also given
20 days to file a plea. I must fu rther mention that the year 2020 was a year which a
new vi rus was r eported, a myster ious pneumonia outbr eak.
ISSUE BEFO RE COUR T
[3]. The fi rst issue to be deter mined is whether the cour t must accept the notice of
intention to defend which was filed and deliver ed in ter ms of R ule 19(5) mor e than
three year s afte r expiry of dies .
[4]. The second issue r elates to the afor esaid Notice of intention to defend whether it
constitute an abuse of cour t and may result such notice set aside.
[5]. The thi rd issue which the cour t must dete rmine is whether the applicant has
made out a pr oper case for loss of suppor t under default judgment.
BACKG ROUND
[6]. This is a loss of suppor t claim b rought by the pater nal uncle who is the 1
st plaintiff
in his r epresented capacity for the two minor children namely S[...] I[...] M[...] and
3
N[...] M[...] who we re residing with thei r paternal uncle. The biological mother passed
away many year s ago. The minor children wer e residing with thei r father prior to the
accident occurring.
[7]. On the 11th September 2013, along N12 Highway, Sundr a and Eloff Tur n-off near
Witbank a collision occurred wher ein motor vehicle bear ing regist ration number FVF
212 MP1 struck M r. T[...] K[...] Ndlovu2 who was a pedest rian at the time of the
accident.
[8]. The insur ed dr iver was late r charged with culpable homicide under Cas Sundr a
Mas 26/9/13 near Witbank.
[9]. The applicant attorneys
3 of the record lodged the matter with the office of the
respondent on the 09th September 2016. The summons was later issued on 13th
August 2020. I must fur ther mention that when the summons w ere issued, the
children we re still mino rs.
[10]. There were thr ee letter s which we re ser ved by the a pplicant s atto rneys which
range f rom the 15th February 2022, followed by a lette r dated the 18th July 2023 and
lastly a letter dated the 02nd October 2023. All these letter s had gener ally one
essential goal mainly to requesting the r espondent to file thei r notice of intention to
defend and also to illust rate good cause on the p rejudice which the applicant s are
suffe ring since the untimely death of thei r father which was caused by the insur ed
driver. The letter dated the 15th February 2022, it is indispensable natur e explains the
matte r at hand and it is also accompanied by annexur es which must be taken in
cognizant thereof as the summar y of the enti re application.
1 Driven by the insu red driver certain Simon.
2 The Biological father of mino r children who was killed in a moto r vehicle accident.
3 In the main action is the Plaintiff.
4
[11]. The four years have passed since the summons wer e issued and no r esponse
was given to the applicant ’s atto rneys. In pur suing justice, the a pplicant s atto rneys
decided to place the matter on the r oll fo r default judgment.
[12]. The respondent decided on the eve of default judgment date to file the notice of
intention to defend in ter ms of R ule 19(5). The afor esaid notice was deliver ed mor e
than thr ee year s afte r the expi ry of dies.
THE DAY OF THE DEFAULT JUDGMENT
[13]. When the matte r was called on the 29 Apr il 2025 for default judgment, counsel
for the applicant ’s info rmed the above Honour able Cour t of a belated notice of
intention to defend which was filed and r equested the cour t to stand the matter down
for the 30th of Ap ril 2025.
[14]. Nonetheless the r espondent pr oceeded filed the notice of the intention to
defend dated the 25th April 2025 which was on Fr iday ver y late and on Monday the
28th April 2025 was a holiday.
[15]. On the 30
th April 2025 when the matter was called, counsel for the applicant
submitted to the cour t that the State Attor ney office was engaging with the plaintiff’s
legal representatives with a view of settling the matter .
[16]. The cour t was r equested an indulgence and fur ther informed that the claim’s
handler was said to be on leave. The file was allocated to an inter n in the
respondents office with the mandate to pr epare a memor andum for someone who is
Senior in respondent office, to give an offer or author ise an offer as per the
memo randum.
[17]. Due to the delay in appointing an intern (claim’s handler), the matter had to be
stood down further for the 02
nd May 2025. The applicant s had in the meantime
5
served the r espondent with the application in te rms of R ule 30(1) for the belated
notice of intention to defend to be set aside.
[18]. The applicant's contention was that should the r espondent make an offer then
Rule 30(1) application falls away.
[19]. On the 02
nd May 2025, the applicant ’s counsel infor med the cour t that while the
aforesaid memor andum was pr epared and completed, an offer of settlement could
not be finalised because the or iginal file was misplaced .
[20]. This came as a shock to the a pplicant ’s counsel who at the behest of the
respondent had infor med the cou rt that the file was given to an inter n for a
memo randum to be p repared for a possible settlement.
[21]. This phenomenon was a glar ing indication that just like in many other cases
against the R oad Accident Fund, the belated notice of intention to defend was a
delaying tactic to postpone the matter and which r esult to an abuse for the p rocess
of cour t.
THE ABUSE OF THE COUR T PROCESS
[22]. The abuse of cour t process gener ally occu rs when legal pr ocedur es ar e for the
purpose other than the intended objective of pur suing t ruth and justice.
[23]. The High Cour t has disc retion to r egulate its own pr ocesses.
4 The
Constitutional Cou rt referred to Standar d Credit Co rporation Ltd v Bester5 where at
820 A -B the cour t held that an abuse of pr ocess can occu r when a cour t processes’’
is used by litigation for a pur pose of which it was not designed or intended to
prejudice or potential pr ejudice to the other party to the pr oceeding…‘‘.
4 Section 173 of Act 108 of 1996.
5 1987 (1) SA 812 (W).
6
[24]. An incidence of the High Cour t’s inhe rent power s, is the power and duty to
prevent the abuse of its pr ocesses.6 The abuse occur s whe re the pr ocedur es
permitted by Rules of the Cour t to facilitate the pur suit of the t ruth ar e used for a
purpose of ext raneous to that object or when an attempt is made to use fo r ulterior
purpose machiner y designed for administ ration of justice.7
[25]. In this p resent matter nothing was said about the deliver y of a plea and ther e
was no substantive application for postponement of the matter placed befor e these
court.
THE EVALUATION
[26]. It should be noted that one needs to consider the facts that the matte r of
Seronica Nathr am v R oad Accident Fund, whe rein my br other Davis J conside r the
following ’’ As the starting point, one should bear in mind that Section 34 of the
Constitution guar antees two things. F irstly the substantive right to ever yone to have
any dispute that can be r esolved by the application of law decided befor e cour t and
secondly is a r ight to a fai r public hear ing which entails fai r procedur e to be
consider ed.
8
[27]. When the belated notice of intention to defend was filed by R AF
9 on the eve of
a hear ing, with r eliance on R ule 19(5), that the sub- rule gives pr ocedur al substance,
not only to the audi alter em par tem p rinciple , which also encompasses the
defendant’s right in te rms of Section 34 of access to cour t.10
6 Beinash v Wixley 1997 (3) SA 721 (SCA) at 743 D, South Af rican Coate r (Pty) Ltd v St Paul
Insurance Co (SA) Ltd 2007 (6) SA 628 (D) at 633E -634 (A), Chunguate v Minister of Home Affai rs
1990 (2) SA 836 (W) at 840 B -C and Ser onica Nath ram v Road Accident Fund Caseno; 46876/2020
[12].
7 De kle rk v Scheepe rs 2005 (5) SA 244 (T) at 246 C -D.
8 See: Stopfo rth, Swanepoel &B revis v R oyal Anthem (Pty) 2015 (2) SA 539 (CC), Super ior Court
Practice A -28 and Cu rrie & De Waal, The Bill of Rights Handbook, Juta, 6th Ed at 31.3
9 Respondent attor ney [State Atto rney].
10 Act 106 of 1996.
7
[28]. The contention of the r espondent is co rrect to defend the matter insofar as the
sub-rule but to p revent default judgment being taken against amounts to abusing the
court process.11
[29]. In the pr esent matter , the r espondent claims handler was on leave and an inter n
(claim office r) was allocated the matter to draft a memor andum for a Senior claims
handler to consider the memor andum and author ise the offer . In allocating the matter
to an intern (claim’s handler ), the respondent had an inher ent duty to make an offer
and pr esent it as per the memor andum to the Applicant ’s atto rneys.
[30]. While waiting fo r the offe r, the a pplicant attorneys were served the Rule 30
Application to the respondent.
[31]. It should be pointed out that f or the inter n claims handler to allude to the
applicant s atto rney on the 02
nd May 2025 that the file is missing, it is a clear
indication that the memor andum was neithe r drafted, whatever was mentioned to the
applicant ’s atto rney was to delay the cour t process and also to cause fur ther
prejudice to the applicant s.
[32]. From a recent Judgment
12, it appear s that the R AF har bours the expectation
that the deliver y of late notice to defend would automatically lead to a postponement
of the matte r giving the R AF the time it seeks.
[33]. In the pr esent matter the cour t accepted the submission of the a pplicant s
counsel when he illustrated to the cour t, that an inter n was appointed to dr aft a
memo randum and submit it to the Senior claims handler to author ise the offer .
11 See the Judgment of Davis J ( supra).
12 Khumalo v RAF (13659/20222) [2023] ZAGPJHC 1418 (22 November 2023) pe r Kgomongwe AJ at
par [19].
8
[34]. The Cour t acted within its own disc retion when the a pplicant requested such
time and the oppor tunity fo r the inter n to dr aft the memo randum. The gener al
impression that was given to the cour t was that, the matte r will be finalised and to put
an end to the pr ejudice which the applicant s had duly endur ed for so long.
[35]. It begun that the notice of intention to defend which was filed on the eve was
attempted to enginee r for a postponement or to benefit time by way of halting
proceeding.13
[36]. I the refore find that r espondent actions a re very condescending in following
respect : firstly by filing the belated notice of intention to defend on the eve, secondly
giving an impr ession that the dr afted memo randum will be submitted by an inter n to
the Senior claims handler and thi rdly to info rm the applicant s atto rneys that the file is
missing on the day when the cour t was expecting the outcome in particula r the offer,
all these actions tantamount to the abuse of cour t process.
[37]. The Rule 19(5) envisage that any pr ejudice caused by the late deliver y of notice
to defend, can be met with cost or der. The respondent has displayed no inte rest in
having the matter settled.
[38]. Firstly, the respondent has ignor ed all the letter s which the applicant attorneys
has written, secondly the summons which wer e issued since 2020 have not been
attended to, thirdly the notice of intention to defend was filed in malafide on the eve
of default judgment date and four thly the inter n misplacing the file. The only
reasonable infer ence which can be dr awn is that respondent was not inter ested in
finalising this matte r since f rom the onset.
CONCLUSION
13 Delaying tactics to buy time without conside ring the p rejudice applicant s suffe red.
9
[39]. In the light of the above, I find that the r espondent14 belated deliver y of notice of
intention to defend deliver ed on the 25th April 2025, constitutes an abuse of the
process of this cour t and it is for this reason to be set aside. This opens the door to
the conside ration of the plaintiff’s15 application for default judgment.
DEFAULT JUDGMENT
[40]. The fi rst applicant is N[...] L[…] M[...] , an adult female South Af rican citizen with
identity number 0[…] who sues her ein in her personal capacity for the recove ry of
delictual damages for loss of suppor t which was occasioned by the death of her
father , namely, T[...] K[...] N[...] with identity number 6[…] who died on 11 September
2013 f rom bodily injur ies sustained in a moto r vehicle accident.
[41]. The second applicant is S[...] I[...]M[...], an adult male South Af rican citizen with
identity number 000317 6258 089 who sues her ein in his per sonal capacity for the
recover y of delictual damages for loss of suppor t occasioned by the death of his
father referred herein the par agraph above.
[42]. Initially the summons we re issued and served on the 13
th August 2020, by thei r
pater nal uncle S[...] S[...] M[...]16. Both fi rst and the second applicant were still
mino rs, when thei r uncle instituted a claim for loss of suppor t. The minor children
have since attained age major ity and also substituted thei r uncle.
‘THE LIABILITY AND RULE 38(2) APPLICATION
[43]. The applicants have ser ved and filed an application in ter ms of R ule 38(2) in
which they seek an o rder permitting thei r evidence as to the collision, the cause of
death, pr oof of ear nings and calculations be tender ed thr ough affidavits and thei r
respective attachments.
14 Road Accident Fund.
15 Applicant s in this matte r.
16 In his representative capacity for Nomphumelo M[...] .
10
[44]. The counsel submitted that the collision was solely caused by the negligence
driving of the insur ed motor vehicle in one o r more of the following respect :
44.1. He failed to keep a pr oper lookout;
44.2. He dr ove the vehicle without due r egard to the r ights and safety of other
road user s and mor e par ticula rly of the pedest rian;
44.3. He t ravelled at a speed which was excessive in the ci rcumstances;
44.4. He failed to apply br akes of the insur ed motor vehicle at, alternatively,
timeously or sufficiently;
44.5. He failed to avoid the collision when, by taking r easonable and pr oper
care;
44.6. He failed to maintain any, alter natively sufficient, cont rol over the insur ed
vehicle.
[45]. A further submission was made that the deceased was bor n on the 04th
December 1963 and was employed at the time of the accident . Mr T[...] K[...] N[...]
sustained bodily injur ies from the accident and he died out r ightly. The deceased had
a legal duty to maintain the minor children which he cont ributed until the untimely
death.
[46]. The cour t was also requested to accept the Rule 38 application into the r ecord
as evidence inclusive of all affidavits confi rming the applicant ’s pater nity, the accident
report and as well as the death cer tificate. The cour t has accepted all the documents
as exhibits .
AD EA RNINGS AND ACTUAR IAL CALCULATION
[47]. Mr. T[...] K[...] N[...] was employed at Envi roServe Waste Management PTY Ltd.
His last r eported or documented net pay was R 7 823.00. The actuar y has used his
annual ear nings of R 8 8512 as the basis fo r the calculation of the amount fo r loss of
suppor t.
11
[48]. The total calculated loss of suppor t for the two applicant s we re calculated as
follows : with the contingencies 5% for the past and 10% for the futur e loss.
48.1. S[...] – R149 471,00
48.2. N[...] - R243 609.00
THE COU RTS ANALYSIS
[49]. Taken cognizant of the facts that the matte r which was p resented, the cour t
needs to deter mine whether one (1%) of negligence exists.
[50]. The Applicant s father who was a pedest rian at the time of the accident, was
strucked and killed as a r esult of motor vehicle on the Sundr a off r amp near Witbank.
It is expected that t he insur ed dr iver must keep a proper look out at all mate rial times
and reduce speed as he appr oaches the off ramp. A reasonable per son would have
foreseen that by keeping a pr oper lookout and r educing the speed by applying
brakes timeously would have avoided such an accident occurring . The insured dr iver
would have taken steps to guar d against such occurrence.
17 Unfortunately in the
present case the insur ed dr iver failed to take such precautionar y measur es or
reasonable steps to avoid such collision.
[51]. The insur ed dr iver was late r charged with culpable homicide.
[52]. The Cour t draws the reasonable infer ence on the fact that the Applicant has
proven 1% of negligence, which emanates f rom the insur ed dr iver not adher ing to
the rules of the r oad.
[53]. I ther efore make an or der in respect of liability of the matter , the Respondent is
100% liable fo r the mer its in this matte r.
17 Kruger v Coetzee [1966]2 ALL SA 490 (A), 1966 (2) SA 428 (A), Ministe r of Safety and Secur ity v
Van Duivenboden [2002] 3 ALL SA 741 (SCA), 2002 (6) SA 431 (SCA).
12
In premises, the following or ders are made:
1. The defendant’s notice of intention to defend deliver ed in ter ms of R ule
19(5) on 25th April 2025, is set aside.
2. The Respondent is held liable 100% in respect of the merits for the
accident that took place on the 13th September 2013, wher ein T[...] K[...] N[…]
died as a r esult of a motor vehicle accident.
3. The Respondent18 is ordered to pay the Applicant s the sum of R 393
080.00 (Three Hundr ed and Ninety -Three Thousand and Eighty R ands) in
respect of the Applicant ’s loss of suppor t. The amount compr ises as follows: -
3.1. S[...] M[...] : R 149 471,00.
3.2. N[...] M[...]: R243 609,00
4. In Order for the time per iod referred to in par agraph 6 he reunder to
commence, this O rder is to be ser ved on the Defendant together with the
particula rs of the Applicant s attorney's T rust details.19
5. The Respondent20 is Ordered to pay the Applicant ’s taxed or agreed par ty
and par ty cost on the High Cour t Scale, which payment shall be effected no
later than 14 days following when agr eement relating to the afo rementioned
cost is r eached between the par ties o r the stamped allocator (following
taxation) is ser ved on the R espondent, whichever comes ear lier.
6. Interest shall acc rue on the capital after the expi ration of 180 days f rom the
order is provided to the Defendant as contemplated in par agraph 4 above.
M.J MATIME
Acting Judge of the High Cour t
Gauteng Division, P retoria
Date of Default Judgment 29th April 2025 and the matte r was stood down for the 30th
April 2025.
Date of Hear ing: 02nd May 2025
18 In the main action the Defendant ( Road Accident Fund ).
19 Lepule Mokoka Inc .
20 Supra.
13
Judgment deliver ed: 17th June 2025.
APPEA RANCES:
For the Applicant : Advocate V Magwane
Attorney fo r the Applicant : Lepule Mokoka Incor porated, P retoria
For the Respondent: Non appea rance
Attorney fo r Respondent: State Atto rney, P retoria