THE REPBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG HIGH COURT DIVISION, PRETORIA
Case No: 48804/2017
DELETE WHICHEVER IS NOT
APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED.
!!Am,;. 17 JUNE 2025
In the matter between:
ROAD ACCIDENT FUND
and
FRANCOIS JOHANNES LABUSCHAGNE
In re:
FRANCOIS JOHANNES LABUSCHAGNE
and
ROAD ACCIDENT FUND
Judgment APPLICANT
RESPONDENT
Plaintiff
Defendant
2
RUST, AJ
1. While the media is abuzz with the wasting of millions of public funds by the applicant
(herein referred to as the “RAF”) on its chaotic approach to litigation, and on
numerous meritless applications to rescind default judgments previously granted
against it, before me is an opposed application in terms of Rule 42(1)(a) of the
Uniform Rules of Court, wherein the RAF seeks to rescind the default judgment that
this Court granted against it on 22 February 2023 in the amount of R 5 061 941.00 ,
on the basis thereof that such default judgment was allegedly erroneously sought or
granted, or alternatively in terms of the common law.
2. Before dealing with the merits of this application, it is prudent to set out the relevant
background thereto.
Background
3. On 19 July 2017 , summons under the above case number was served on the RAF
as the d efendant in the action . The RAF filed a plea on 3 August 2017. In due
course, this Court on 22 August 2019 granted an order in respect of the merits of
the action, and the issue of quantum was postponed sine die .
4. On 22 February 2021, the plaintiff served on the RAF expert notices in terms of Rule
36(9)(a) and (b) for the expert evidence intended to be present ed to the court to
substantiate the plaintiff’s claim for loss of support, namely that of an industrial
psychologist and an actuary . The RAF had the opportunity to consider these expert
notices , and to prepare its own expert notices. However, t he RAF failed to make
use of this opportunity and never filed any expert notices of its own.
5. Despite having been served , both on 12 August 2021 and 10 February 2022 , with
an application to strike out the plea and defence of the RAF, and further despite
having been served on 22 February 2022 with a notice of set down for the
application to strike out the plea and defence of the RAF, the RAF again failed to
make use of these opportunities to participate in the litigation against it. As a result
of the RAF’s persistent failure to comply with the Uniform Rules of Court, this Court
3
on 4 March 2022 granted an order for the striking out of the RAF’s plea and defence ,
inclusive of the following order:
“2. Judicial Authorisation is granted for the matter to proceed by default on the
trial date to be allocated by the registrar.”
6. On 21 July 2022, the plaintiff nevertheless served on the RAF a notice of set down
of its application for default judgment in respect of the quantum of its claim. The
RAF also failed to make use of this opportunity to participate further in the litigation
against it.
7. On 13 October 2022, the plaintiff furthermore served on the RAF a notice in terms
of Rule 28 of the Uniform Rules of Court for the amendment of its particulars of
claim, particularly to amend the quantum of its claim for loss of support from R 550
000.00 to R 5 061 941.00. The RAF also failed to make use of this opportunity to
object to the amendment of the quantum of the claim.
8. On 30 January 2023, the plaintiff served on the RAF its application for default
judgment wherein the expert evidence of the industrial psychologist and actuary are
dealt with, and the plaintiff’s claim for past and future loss of support is set out. The
RAF also failed to make use of this opportunity to oppose the application for default
judgment.
9. With the benefit of the expert evidence of the industrial psychologist and actuary
before it, this Court on 22 February 2023 granted d efault judgment against the RAF
in respect of the quantum of the claim. The default judgment order was served on
the RAF on 18 May 2023.
10. On 29 September 2023, the RAF (now as the a pplicant herein ) served this
rescission application on the plaintiff (as the respondent herein), but filed its
rescission application only on 9 July 2024 on Caselines . The respondent
nevertheless opposed the rescission application by filing its answering affidavit on
23 November 2023, and in due course also filed its heads of argument and practice
4
note in respect thereof. The RAF never filed any replying affidavit in its rescission
application, and belatedly filed written submissions and a practice note for purposes
of the hearing of its rescission application .
Rescission of court orders
11. As authoritatively stated in Erasmus’s Superior Court Practice1, it is trite that, as a
general rule, a court has no power to set aside or alter its own final order. The
reasons for this age -old rule are twofold. Firstly, once a court has pronounced a
final judgment, it becomes functus officio and its authority over the subject matter
has ceased. The second reason is the principle of finality of litigation expressed in
the maxim interest rei publicae ut sit finis litium : it is in the public interest that litigation
be brought to finality.2 The instances in which a court is permitted to set aside or
alter its own final order are narrowly circumscribed under the Uniform Rules of Court
or in terms of the common law .
12. When a rescission application is brought, a litigant must establish the jurisdictional
facts for rescission as set out in Rule 42(1)(a) or the common law before a court can
exercise its discretion to rescind an order.3 Even if the specific prerequisites are
met, it must still be in the interests of justice for a court to exercise its discretion to
entertain the matter , or to grant such rescission.4
13. Rule 42(1)(a) of the Uniform Rules of Court provides as follows:
“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 -
1 Erasmus, Superior Court Practice , Second Edition, Van Loggerenberg, Volume 2, [Service 25, 2024]
D1 Rule 42 -1 to D1 Rule 42 -2
2 Freedom Stationery & others v Hassam & others (921/2017) [2018] ZASCA 170 at par [16].
3 Minister for Correctional Services and Another v Van Vuren and Another; In re Van Vuren v Minister for
Correctional Services and Others 2011 (10) BCLR 1051 (CC) at par [7].
4 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 (Council for the Advancement of
the South African Constitution and another as amici cur iae) 2021 (11) BCLR 1263 (CC) at par [50] and
[86]-[90].
5
(a) an order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby ;”
14. In respect of the first jurisdictional condition, Streicher JA explained in Lodhi 25 that
the phrase ‘erroneously granted’ in Rule 42( 1)(a) relates to the procedure followed
to obtain the judgment in the absence of another party , and not to the existence of
a defence to the claim. Thus, a judgment to which a party was procedurally entitled,
cannot be said to have been erroneously granted in the absence of the affected
party. An applicant or plaintiff would be procedurally entitled to an order when all
affected parties were adequately notified of the relief that may be granted in their
absence. The relief need not necessarily be expressly stated. It suffices that the
relief granted can be anticipated in the light of the nature of the proceedings, the
relevant disputed issues and the facts of the matter.
15. The second leg of the first jurisdictional condition requires an applicant to show that
the judgment against which the rescission is sought, was erroneously granted
because there existed at the time of its issue a fact of which the court was unaware,
which would have precluded the granting of the judgment and which would have
induced the court, if aware of it, not to grant the judgment.6 However, the absence
of submissions from a defendant, which may have been relevant at the time the
Court was seized with the relevant proceedings, could not render erroneous the
order granted, simply because it was granted in the absence of those submissio ns.7
Thus, in a case where a plaintiff is procedurally entitled to judgment in the absence
of the defendant, the judgment if granted, cannot be said to have been granted
erroneously in the light of a subsequent disclosed defence. The existence or non -
existence of a defence on the merits is an irrelevant consideration and, if
subsequently disclosed, could not transform a validly obtained judgment into an
erroneous one.8
5 Lodhi 2 Properties Investments CC & another v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA)
at par [25]-[27].
6 Rossiter v Nedbank Ltd (96/2014) ZASCA 196 (1 December 2015) at par [16].
7 Zuma supra at par [63] -[64].
8 Lodhi 2 supra at par [27 ].
6
16. With regard to the second jurisdictional condition, t he Constitutional Court explained
that the words ‘granted in the absence of any party affected thereby’, as they exist
in Rule 42(1)(a), exist to protect litigants whose presence was precluded, not those
whose absence was elected .9 Those words do not create a ground of rescission for
litigants who were afforded procedurally regular judicial process, but opted to be
absent. It is thus at its own peril where a litigant elected not to participate in the
proceedings, and such elected absence could not have the effect of turning a
procedurally competently granted order into one erroneously granted, as
contemplated by Rule 42 (1)(a) . The issue of presence or absence has little to do
with actual, or physical, presence and everything to do with ensuring that proper
procedure is followed so that a party can be present, and so that a party, in the event
that they are precluded from participating, physically or otherwise, may be entitled
to rescission in the event that such a procedural error is committed . In this regard,
the Constitutional Court pertinently stated as follows:
“… I do not, however, accept that litigants can be allowed to butcher, of their
own will, judicial process which in all other respects has been carried out with
the utmost degree of regularity, only to then, ipso facto (by that same act),
plead the “absent vi ctim”. If everything turned on actual presence, it would be
entirely too easy for litigants to render void every judgment and order ever to
be granted, by merely electing absentia (absence).” 10
17. Having received adequate notice of the relief that may be granted in its absence,
the failure of an affected litigant to take steps to protect his interests by joining the
fray, ought to count against him. A defendant is expected to protect its interests by
keeping in touch with the progress of the litigation against it and, once its opposition
to it is serious, by joining the fray and by its ap pearance or represent ation in Court .11
A party who did not oppose or participate in the proceedings, would not be entitled
to relief under Rule 42(1)(a). This is not only logical and fair, but accords with the
fundamental principle of finality of litigation.
9 Zuma supra at par [56].
10 Zuma supra at par [60].
11 See in this regard Freedom Stationery supra at par [25]; Ex parte Mason 1981 (4) SA 648 (D) at 651C -
D.
7
18. At common law, a judgment can be set aside on the grounds of fraud, justus error
(on rare occasions), in certain exceptional circumstances when new documents
have been discovered, where judgment had been granted by default , and in the
absence between the parties of a valid agreement to support the judgment, on the
grounds of justa causa .12 In order to succeed with an application for rescission of
judgment taken against it by default, an applicant must show good or sufficient
cause.13 Such an applicant must (i) give a reasonable and obviously acceptable
explanation for his own default, (ii) show that his application is made bona fide , and
(iii) show that on the merits he has a bona fide defence which prima facie carries
some prospect of success.
Was default judgment against the RAF erroneously sought or granted?
19. The RAF contends that, at the time when default judgment was granted, there
existed facts of which the court was unaware, which would have precluded the
granting of such default judgment, and which the Court, if aware of it, would not have
granted the judgment. In this regard, the RAF alleges as follows:
19.1 The industrial psychologist attributed the deceased’s potential loss of earnings
to be the respondent’s loss of support, while the industrial psychologist ought
to have indicated what amount was the deceased contributing as monthly or
regular maintenance to the respondent . The actuary relied on this basis to
compute the deceased’s support to his surviving parents. Because the basis
was wrong and factually incorrect, the conclusion is automatically erroneous.
19.2 The respondent is not indigent. Because of information that has been obtained
from new documents discovered after the judgment, t he RAF alleges that the
respondent is a director of Tlou Mills, alternatively Botshelo Mills (Pty) Ltd,
further alternatively Batho Bothle, and a farmer.
12 Erasmus supra at D1 Rule 42 -9.
13 Zuma supra at par [71].
8
20. Relying on the decision in Childerly Estates Stores14, Mr Malatji for the RAF submits
that a judgment could be set aside on the ground of the discovery of new documents
after the judgment has been given in certain exceptional circumstances. The new
evidence discovered after default judgment was granted, allegedly discloses that
the plaintiff is not indigent, but that he is self -sustainable without assistance and that
he runs a successful business(s). However, the decision in Childerley Estate Stores
is no authority for the proposition that the RAF may, as it proposes to do, introduce
and rely upon “new documents” created only after default judgment was already
granted.
21. Mr Malatji further submits that the meaning of ‘erroneously granted ’ was explained
in Bakoven Ltd15, as follows:
“An order or judgment is 'erroneously granted' when the Court commits an
'error' in the sense of 'a mistake in a matter of law appearing on the
proceedings of a Court of record' . It follows that a Court in deciding whether a
judgment was 'erroneously granted' is, like a Court of Appeal, confined to the
record of proceedings. …. Once the applicant can point to an error in the
proceedings, he is without further ado entitled to rescission.”
22. However, this aspect of the judgment in Bakoven Ltd was overturned by the
Supreme Court of Appeal in Lodhi 2 .16 In any event, a judgment to which a party is
procedurally entitled cannot be considered to have been granted erroneously within
the meaning of this subrule by reason of facts of which the court was unaware at
the time of granting the judgment.17
23. Mr Keet for the respondent submits that, what is effectively being rescinded is the
procedure in terms of which the judgment was granted, and therefore, by necessary
implication, also the judgment, but the procedure followed both by the
claimant/respondent and by this Court at the time when the default judgment was
14 Childerly Estates Stores v Standard Bank of SA Ltd 1924 OPD 163 .
15 Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 (E)
16 Lodhi 2 supra at par [22]-[24].
17 Lodhi 2 supra at par [25].
9
granted, is not questioned at all by the RAF . A rescission of judgment in terms of
Rule 42(1)(a) can only succeed if the procedure followed when the judgment was
obtained was erroneous , or there was a procedural irregularity , as the focus of Rule
42(1)(a) is procedural and not substantive:
“…The purpose of Rule 42 is ‘to correct expeditiously an obviously wrong
judgment or order’. An Applicant must prove that there is a procedural issue
present which causes the judgment to have been erroneously sought or
granted. In order words Rule 42(1)(a) c aters for a mistake in the proceedings .
A judgment cannot be said to have been granted erroneously in the light of a
subsequent disclosed defence which was not known or raised at the time of
the default judgment . …”18
Fatally, the RAF has not even attempted to prove any procedural defect in the
present case, and the procedure followed is not even put in issue by the RAF. This
is dispositive of the attempt by the RAF to achieve rescission under Rule 42(1)(a).
24. In respect of the RAF’s contention that the basis for the calculation of the quantum
was allegedly wrong and factually incorrect, and that the conclusion is automatically
erroneous, Mr Keet pointed out that, as a matter of fact, there was before the Court
when default judgment was granted , a computation made by the actuary against the
RAF of “The Capitalised Value of the Loss of Financial Support by the dependents
of Mr E Labuschagne as a result of the accident ”. On the other hand, t he preferred
interpretation of this actuarial computation chosen by the RAF is merely speculative.
The RAF clearly misunderstands the nature of the judicial exercise: “ In assessing
the compensation [for loss of support] the trial Judge has a large discretion to award
what under the circumstances he considers right. He may be guided but is certainly
not tied dow n by inexorable actuarial calculations .”19 All the above -mentioned
evidence as well as the actuarial and industrial psychological reports were properly
before this Court before default judgment was granted. The application for default
judgment was therefore procedurally in order.
18 Hlatshwayo NO and another v Nedbank Limited and another [2024] JOL 63169 (GP) at par [11] .
19 Legal Ins Co Ltd v Botes 1963 (1) SA 608 (A) at 614 .
10
25. Furthermore, the purported defences relied on by the RAF was at its disposal at the
time the default judgment was granted and as such same cannot now, subsequently
be disclosed and relied upon . What was missing was the RAF, it being in default .
26. With regard to the allegation that the respondent is not indigent, the RAF relies upon
a “new document” - what appears to be every second page of an undated Draft
Report from Kay Gee Investigations and Security , which allegedly defeat the claim
of the claimant by revealing that he is not indigent . This document is incoherent as
well as incomplete. It is furthermore not referred to in the founding affidavit and it is
not an annexure thereto . This document is therefore inadmissible and stands to be
ignored as pro non scripto .
27. In order to succeed with rescission of judgment by default at the common law, the
RAF must establish " good cause" comprising of two essential elements, namely,
both20 –
27.1 a reasonable and acceptable explanation for its default; and also
27.2 a bona fide defence on the merits which, prima facie , carries some prospect of
success.
28. There is no explanation in the RAF’s founding affidavit, or elsewhere in the papers,
for its default, and its papers are indicative of a total failure to offer any defence
whatsoever to the default judgment application .
29. There is therefore no merit in the RAF’s claim that the default judgment against it
was erroneously sought or granted.
20 Van Heerden v Bronkhorst 2020 JDR 2363 (SCA) par [19] .
11
The RAF’s absence
30. The default judgment in respect of the quantum of the claim was granted on 22
February 2023 in the undisputed absence of any representation for the RAF.
31. Mr Malatji relied upon the dictum in Natal Joint Municipal Pension Fund v Endumeni
Municipality21 as referred to in Oliver NO v MEC for Health22, for the argument that
the procedure prior to the granting of default judgement was defective because the
plaintiff’s amendment of its particulars of claim effectively reopened the pleadings
and that the previously established litis contestatio fell away until such time as the
pleadings are closed once again. On the basis hereof, Mr Malatji submits that the
RAF was entitled to plead to the amended particulars of claim, failing which the
plaintiff had to serve a notice of bar, and only if the RAF did not respond to such
notice of bar, could the plaintiff apply f or default judgment.
32. However, i n interpreting this principle, Kruger J in KS v MS23 said:
"Nor do I understand the judgment of Wallis JA to mean that any amendment,
however immaterial or minor it may be, would result in a fresh litis contestatio.
It is when the parties 'add to or alter the issues they are submitting to
adjudication', by amendment or agreement, that 'a new obligation' comes into
existence and a fresh situation of litis contestatio arises."
33. Rule 28(5) of the Uniform Rules of Court provides that, if no objection is delivered
as contemplated in subrule (4) thereof , every party who received notice of the
proposed amendment shall be deemed to have consented to the amendment and
the party who gave notice of the proposed amendment may, within 10 days after the
expiration of the period mentioned in subrule (2) thereof , effect the amendment as
contemplated in subrule (7). In the matter at hand, it is not in dispute that the RAF
never objected to the amendment of the plaintiff’s particulars of claim. The RAF is
therefore deemed in terms of this subrule to have consented to the amendment.
21 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA) at par [15].
22 Oliver NO v MEC for Health: Western Cape Provincial Department of Health and another [2022] JOL
56033 (WCC) at par [21] -[22].
23 2016 (1) SA 64 (KZD) at par [16].
12
The amended pages were furthermore before the Court when the default judgment
was granted against the RAF.
34. While Rule 28(8) provides any party affected by an amendment with the opportunity ,
within 15 days after the amendment has been effected or within such other period
as the court may determine, to make any consequential adjustment to the
documents filed by him, or to take the steps contemplated in rules 23 and 30 , the
adjustments such an affected party may make are limited to consequential
adjustment s to any pleading already filed by him .24 Contrary to the argument
advanced on behalf of the RAF, such an affected party does not acquire the general
right to plead to the amended particulars of claim.
35. The RAF furthermore seems to have lost track of the fact that this Court on 4 March
2022 granted an order for the striking out of the RAF’s plea and defence . At the
time when default judgment was granted against the RAF, this order remains valid
and effective with the result that there was no plea already filed by the RAF before
the Court to which the RAF could have made any consequential adjustment s. The
RAF also did not bring a substantive application for condonation to file a new plea
against the amended particulars of claim.
36. Bearing in mind that an application for default judgment was served on the RAF
already on 21 July 2022 - despite the previous striking out of its plea and defence,
and that the claimant’s Rule 28 application for the amendment of the quantum of its
claim wa s also served on the RAF, the RAF was given adequate notice of the case
against it, and had sufficient opportunities to participate in the matter . In the
absence of any excuse or justification for its failure to participate in this action, the
inference is inescapable that the RAF elected to be absent. A litigant’s strategic
election not to participate does not constitute ‘absence’ for the purposes of Rule
42(1)(a). The RAF therefore also fails to meet th is jurisdictional condition of Rule
42(1)(a).
24 Erasmus supra at D1 Rule 28 -24.
13
Costs
37. The actions and/or omissions of the RAF are evidence there of that the RAF does
not regard the Uniform Rules of Court, or the orders granted by this Court, as binding
on it. This rescission application seems to be yet another endeavour to delay the
finalisation of the matter. This Court must show its displeasure wi th the actions, or
the lack thereof, of the RAF in the hope that the RAF will be prevented from
persisting with its dismissive and lackadaisical approach to the Uniform Rules of
Court and its disregard of the orders granted by this Court. It is furthermore neither
in the interest of the respondent, nor in the general public’s interest, nor in the
interest of justice, that the RAF be allowed to es cape the finalisation of matters and
orders against it.
38. Due to the RAF’s complete disregard for the Uniform Rules of Court, and of orders
granted by this Court, as the sole cause for the delay in the finalisation of this matter,
the respondent unnecessarily had to incur additional legal costs to exercise its ri ghts
against the RAF. Such conduct warrants a punitive cost order against the RAF.
Order
39. The RAF’s application to rescind the default judgment that this Court granted on 22
February 2023 , is dismissed with costs on the scale as between attorney and client,
including the costs of two counsel , where so employed .
Appearances:
For the Applicant: TM M alatji
Applicant’s Counsel
Instructed by:
Thabang Shivambo
RAF Link no: 5201581
14
For the Respondent: F de W K eet
Respondent’s Counsel
Instructed by:
Alicia Steenkamp
Van Dyk Steenkamp Attorneys
Pretoria