REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 98595/2015
Case number : 6475/2017
[1) Reportable:
[2] Circulate to Judges:
In the matter between:
ROAD ACCIDENT FUND
and
SICCARDJ MAURO ROMEO
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YES/NO
YES/NO
Date: 13/08/2025
JUDGMENT
APPLICANT
RESPONDENT
MAAKANEAJ
INIROQUCTION
[1] The Applicant, who was the Defendant in the main actions, seeks an
order rescinding two judgments of this court, obtained by the
Respondent against it on 4 August 2017 and 09 May 2018
respectively.
[2] Relief sought has been set out in the notice of motion as follows:
"That the judgment and orders granted in favour of the R espondent under
case numbers: 98595/2015 and 6475/17 (consolidated) be rescinded and
set aside in terms of the common law."
(3] The application is brought in terms of the common law. It is opposed
by the Respondent on various grounds that I will deal with later in this
judgment.
BACKGROUND
[4] The Respondent, Plaintiff in the main actions, instituted two delictual
claims against the Applicant claiming damages for bodily injuries he
allegedly sustained in two separate motor vehicle accidents. These
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according to him, occurred on 08 October 2014 ("the first accident")
and 27 April 2016 ("the second accident") respectively.
[5] In respect of the first accident, Respondent instituted a claim under
Case No: 98595/2015. The Applicant defended the action and for this
purpose appointed Matabane Inc, a firm of attorneys based in
Pretoria. The matter was set down for trial on 2 August 2017 and
served before Pretorius J. The issue of quantum was separated from
that of merits and postponed sine die. At the end of the trial the court
in its judgment ruled that the Applicant was liable for 100% of the
Respondent's proven damages. It is common cause that the Applicant
was throughout the proceedings on that day, still represented by the
said attorneys as well as counsel, Adv. Mogale.
[6] On 30 January 2017, Respondent instituted another action against
the Applicant under Case No: 6475/2017. This was in respect of the
second accident. Applicant again defended the action and for this
purpose appointed a firm of attorneys, Pule INC. The matter was set
down for trial on 9 May 2018 and served before Thobane J. Once again,
the issue of quantum was separated from that of merits and
postponed sine die. Following a trial, the court in its judgment ordered
that the Applicant was liable for 100% of the Respondent's proven
damages. Again, in respect of this claim, the Applicant was during the
trial represented by the said attorneys, as well as Counsel, Adv. Ndou.
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[7] O n 27 July 2021 following an application, Vuma J ordered that the two
actions be consolidated for determination of the issue of quantum.
Prior to the matter going on trial, the Applicant made a monetary offer
in full and final settlement of the Respondent's claims. This offer was
rejected by the Respondent. The matter was therefore set down for
trial on 22 July 2022 and served before Van der Schyff J. The court
granted judgment in favour of the Respondent for payment of the
capital amount of R3 390 492-00. This amount was in respect of loss
of earnings, general damages as well as various other related relief
claimed.
[8] On 18 January 2024, Applicant launched this application. In a
nutshell, Applicant alleges fraud. More specifically, it alleges that
Respondent lodged these claims under fraudulent circumstances
using fraudulent supporting documents.
THE ISSUES
[9] The main issues for determination are whether or not:
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I. The Applicant has met and satisfied all legal
requirements at common law for the rescission of the
two judgments, and in particular the element of fraud.
II. The application should or stand to be dismissed on any
one or more grounds of opposition raised by the
Respondent.
PARTIES' SUBMISSIONS
The Applicant
[10] As regards the first claim, Ms Rangata for the Applicant
conceded thatthe motorvehicle accident did take place. She however
contended that Applicant did not sustain the injuries alleged in his
particulars of claim, namely:
"Severe lumbar spine injury."
[11] She went on and contended that these injuries were long pre-
existing, meaning they were not caused by or did not result from the
accident. In support of this contention, she referred to and relied on
certain medical reports, namely:
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(i) A Labour or Workman's Compensation Form IV.C1 .4
completed by Dr Nay in respect of the Respondent being a
First Medical Report in Respect of an Accident dated 9
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October 2014. According to his medical examination, the
Respondent:
''... while loading a patient onto an ambulance, injured [his]
lumbar spine."
and
"Previous lumbar Spine injury 2007/2008"
(ii) A Medico Legal Report compiled by Dr Joseph Sibanyoni, an
Orthopaedic Surgeon obtained on instructions of Applicant's
attorneys Mata bane INC. The report is dated 22 May 2017. In
his concluding paragraph he states the following:
"Patient presented to hospital with back pain but he already had the
disc problem from injury sustained in 2008 ... I am of the opinion that Mr
Siccardi was no victim of MVA or PVA but injured his back at work. I am
also of the opinion that his future medical expenses are related to injury
sustained in 2008 and have nothing to do with the 2014 injury ... "
(iii) Report compiled by SKW Matima Assessors dated
22/06/2017. They also, in their concluding paragraph make
the following remarks:
"On perusal of the Netcare Patient Treatment Form for 09t1• October
2014 under a section entitled "events leading to injury or illness" it is
clearly stipulated as follows;
Bent down to pick up his boots + experienced severe back pain"
As a result of what our investigation uncovered, we believe that the
Plaintiff's claim was lodged under fraudulent grounds and should be
handed over to your Forensic Department for Further investigation."
(iv) A report compiled by the Forensic Department of the
Respondent dated 3 November 2023.
[12] In respect of the second accident, she submitted that such an
accident did not occur. The basis for this contention is that the South
African Police Services ("SAPS"} at Lenasia South Police Station do
not have records of such an accident being reported.
[13] She submitted that although the Applicant was legally
represented during the trial of each of the claims on merits, the
forensic report was not available. For this reason, they could not have
presented the evidence.
[14] On the issue of delay, she conceded that the period of delay of
six and or seven years is indeed quite lengthy. She however, contended
once again, that the delay was due to the fact that the forensic report
was still outstanding.
[15] Finally, she submitted that the Applicant has a bona fide
defence to the Respondent's claim, namely that these claims were
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launched under fraudulent circumstances, using fraudulent
supporting documents, by the Respondent.
Respondentts Submissions
[16) Counsel for the Respondent submitted that there is no merit in
the application and that same stands to be dismissed with costs. More
specifically, he argued and relied on grounds of opposition which are
to the following effect:
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(i) Applicant has failed to satisfy any of the requirements
necessary to grant rescission under the common law, and
in particular fraud.
(ii) There has been undue delay on the part of Applicant in
launching this application. The delay extends over a
period of years, more specifically approximately (6) six
and seven (7) years respectively since the granting of the
judgments now sought to be rescinded.
(iii) Applicant is precluded from challenging these judgments
because among others, it was in respect of each of the
judgments on the merits, legally represented by both an
attorney and counsel. Applicant was therefore
throughout, aware of the judgments against it. After
consolidation of the matters, Applicant even made an
offer of settlement, which Respondent rejected.
(iv) Over and above that, the suspicion of fraud was already
there and Applicant was aware thereof long before the
matters went on trial, and or any of the judgments could
be granted. The reports on which it is relying, were long
there and available. Applicant failed to present this
evidence when they had all the opportunity to do so,
during the trials.
(v) Applicant has failed to show good cause, that is giving a
reasonable or acceptable explanation for its default. Over
and above that, it has failed to show that it has a bona tide
defence to the Respondent's claims.
LEGAL POSITION
O nus of proof; Fraud
[17] It is trite law that an Applicant who seeks the setting aside of a
judgment based on fraud, must allege and prove that:
(i) The successful litigant was a party to the fraud.
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(ii) The evidence tendered was as a matter of fact, incorrect.
(iii) The evidence and or misrepresentation was made
fraudulently, with the intention to mislead the·court.
(iv) It diverged to such an extent from the true facts that the
trial court would, if the true facts had been placed before
it, have given a judgment completely different from that
which it was induced and misled by the incorrect
evidence to give.
(v) The Applicant was unaware of the fraud and only became
aware thereof after the judgement was delivered.
See: Fraai Uitzicht 1798 Farm (Ptyl Ud v McCulloug and
Others (2020) ZSCA 60 at paras 16-17.
[18] Authorities are clear that where a litigant is aware of fraud,
meaning the tendering of fraudulent evidence and or use of fraudulent
documents against it, but fails to lead such evidence and or bring this
to the attention of the court before the granting of judgment against it,
such a litigant will be regarded as the author of its own misfortunes.
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[19] In Port Edward Town Board v Kay and Another 1994 (1) SA 690
(D& C) the position was summarised as follows:
"If regard is had to the reluctance of Courts to have cases reopened which
have been contested in Court and in which a finaljudgmenthas been given,
even a case where new documents have subsequently come to light, ~
seems little iustification tor allowing rescission in the case where a party,
knowing that his opponent has fraudulently concealed evidence which he
knows to be of decisive imoortance to a decision of bis case. chooses not
to adduce such evidence to the Court before iudgm ent
"In such a case the party's misfortune is as much due to his own
improvidence as to the fraud of his opponent. His position is not very
different from that of a litigant who . knowing that there is a witness w ho can
lend him m aterial support to his case. neglects to call him."
See also: Brown and Others vThe Financial Services Bo ard and Oth ers
(unreported) WCHC, Case No: 979/2007.
GOOD CAUSE
[20] In addition to all of the above, the Applicant bears the onus to
show good cause, which entails to:
(i) Give a reasonable explanation for its default.
(ii) Show that the application is done in good faith.
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(iii) Show and demonstrate that it has a bona fide defence
which has some prospects of success.
[21] In Colyn v D1:er Food Industries Ltd t/a Meadow Feed Mills
(Cape) 2003 {6) SA (1) (SCA) Jones AJA stated:
"Courts generally expect an applicant to show good cause (a) by giving a
reasonable explanation of his default (b) by showing his application is
made bona tide, and (c) showing that he has a bona tide defence to the
plaintiff's claim which prima facie has some prospects of success."
(At paragraph 11)
See also: Chetty v Law Society. Transvaal 1985 (2} SA 756 (A)
[22] Similarly, In Zuma v Secretary of Judicial C ommi ssion of
Injury into A llegations of State Ca pture, Corruption and Fraud in
the Publjc Sector Including Or~ans of State and O thers 2021 (11)
BCLR 1263 (CC), the Constitutional Court confirmed the onus that
rests on the Applicant as follows:
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"Requirements for rescission of a default judgment are twofold. First,
applicant must furnish a reasonable and satisfactory explanation tor its
default. Second, it must show that on the merits it has a bona fide
defence which prima facie carries some prospects of success. Proof of
these requirements is taken as showing that there is sufficient cause for an
order to be rescinded. A failure to meet one of them may result in the refusal
of the request for rescission."
[23] It is also trite law that where a litigant is aware of legal action
against him , but decides not to defend and or oppose and or put his
version before court under circumstances where he is in a position to
do so, but chooses not to, whatever reason or motive for his failure to
do so may be, such a party is in wilful default.
[24] In Maujean t/a Audio Video Agencies v Standard Bank of SA
.Llit_ 1994 (3) SA (3) 801 (CPD) the court referred with approval to an
earlier decision of Hendriks v Allen 1928 CPD where the following
was said:
"If he knows that a case is coming on, and whatever his motive.
deliberately refrains from entedn~appearance then it seems to me there
is wilful default His reason need not be, to my mind, that he knows he has
no defence; he may have some other motive, but, knowing that he is
summoned to appear. if he deliberately fails to enter an appearance. for
whatever motive it seems to me there is wilful default"
[25] Similarly, the Constitutional Court in Zuma (Supra) drew a
distinction between a litigant who is in default because he was not
aware of the legal action against him on the one hand, and the one
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who is aware but chooses for whatever reason not to take any steps to
defend the action on the other. It concluded that the latter is indeed
in wilful default. The court put the position as follows:
"Our jurisprudence is clear: where a litigant, given notice of the case
against them and given sufficient opportunities to participate, elects to be
absent, this absence does not fall within the scope of the requirement of
rule 42(1 )(a). And, it certainly cannot have the effect of turning the order
granted in absentia. into one erroneoustygranted."
(At paragraph 61)
(26] Additionally, the Constitutional Court also emphasized that a
litigant who is aware of legal proceedings against him and believes
that he has a bona tide defence to the action must present his case
and defence during the trial and or hearing of the matter. In other
words, he is not entitled to allow judgment to be taken against him and
only later try and raise his defence in an application for rescission of
judgment. The court held:
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"Mr Zuma's bringing what essentially constitutes his "defence" to the
contempt proceedings through a rescission application. when the horse
has effectively bolted, is wholly misdirected. Mr Zuma had multiple
opportunities to bring these arguments to this Court's attention That be
opted not to. the effect being that the order was made in the absence ot
anvdetence. does ootmean that this Court committed an eaorin granting
the order In addition, and even if Mr Zuma's defences could be relied
upon in a rescission application (which, for the reasons given above, they
cannot), to meet the "error" requirement, he would need to show that this
Court would have reached a different decision, had it been furnished with
one or more of these defences at the time."
(At paragraph 64)
See also: Port Edward Town Board (Supra) Brown & Others (Supra)
UND U E DELAY
[27] At common law as well as Rule 42 (1) of the uniform rules of this
court, there is no specific or exact time limit within which an
application for rescission of judgment is to be launched. However, the
legal position is that this has to be done within a reasonable time after
an Applicant comes to know about the judgment against him.
[28] The Authors of Herbstein and \Ian Winsen: The Civil Practice of
the High Court of South Africa: Fifth Edition (Volume 1 )summarise the
common law position as follows:
"Although Rule 42 lays down no time limit within which rescission of a
judgment should be sought. delay or acquiescence in the execution of the
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judgment would normally bar success in an application to rescind as it will be
regarded as acquiescence in the granting of the judgement.
The court will normally exercise its discretion in favour of an applicant who
through no personal fault was not afforded an oooortunitv to oppose the
orders e,:anted against him and who having ascertained that such an order has
been granted takes expeditious steps to have the oosition rectified This is in
line with the common law position.
tt the applicant is to blam e the court is not liketv to orderresciss;on."
(At page 930)
[29] Having said that, it is clear that undue delay in itself is fatal to an
application for rescission of judgment, justifying dismissal of same.
The reason for this is that the court is entitled in such a situation to
draw an inference that the Applicant has acquiesced himself with the
judgment and orders against him.
[30] In Schmidlin v Multjsound (Pty} Ud 1991(2) SA 151 (C} the
court held with regard to undue delay held:
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"Delay is however, relevant in this case, not per se, but because that
judgment was being executed ... Acquiescence in the execution of a
judgment must surely in logic, normally bar success in an application to
rescind on the same basis as acquiescence in the very granting of the
judgment itself would."
[31] In first National Bank of SA v Van Rensburg N.O, and Others
1994 (1} SA 677 (TPD) the court once again had to deal with the issue
of undue delay, where the rescission of judgment can be dismissed
simply on the basis of undue delay where the Applicant relies on
either Rule 42 (1) (a) and or the common law both of which require that
such an application be launched within a reasonable time. In this
regard Eloff JP held:
"fy§n if it can be said that the order granted by Coetzee J was erroneously
sought or contains a PJ:)teat_e_wr, the ,Epplicati.oa shoJJkl in my lde..w have_
been dismisse.si by reason of the long-time lapse."
(Jlan Ransbur g (sup ra) at pag e 681 B )
[32J Referring specifically to reliance on the common law as in casu,
Eloff JP expressed himself as follows:
"I turn to the appellant's reliance on the common law. An interesting
argument was submitted to us on the common law, but again the answer
is that which I gave in relation to the attempt to invoke Rule 42 (1 ). As was
said in the Genticuro case, lfthe common Law is sou~ht to be invoked the
application should he ma de within a reasonable time. A reasonable time
has lapsed and there is no explanation for the delay."
(At page 681 G-H)
APPLY ING THE LAW TO THE FACTS
The Applicant's onus to prove fraud.
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[33] In my view, taking into account the totality of the evidence
presented on affidavits, the Applicant has failed to prove any of the
requirements of fraud on the part of the Respondent and or that
fraudulent documents were used and or evidence adduced all of
which induced the court to grant the judgment now sought to be
rescinded.
[34] In this regard, it is important to bear in mind that the Respondent
in his answering affidavit denies all the allegations of fraud. He went
further and, in some detail, set out the general circumstances under
which each of the accidents occurred and the nature and extent of the
of the injuries he sustained. In respect of the second accident, the
occurrence of which Applicant disputes, Respondent went on to
provide the registration details of the vehicle involved, ownership
thereof, the identity of the driver, names of witnesses, police report
and reference number at the Lenasia Police Station. Despite all of
these and most importantly, the Applicant failed to file a replying
affidavit.
Undue delay
[35] As already pointed, the two judgments sought to be rescinded
were granted on 4 August 2017 and 9 March 2018 respectively. On
each of these occasions, the Applicant was legally represented by
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both an attorney as well as counsel. It was therefore throughout this
lengthy period aware of the judgments against it. This application was
launched about six and seven years respectively after the dates on
which judgments were granted. There is no doubt therefore that this is
an unreasonably long period of delay.
[36) The Applicant's contention that the delay was due to the fact
that the forensic investigations were still ongoing is rejected. The
Forensic Department is still part and parcel of the same organisation,
namely the Applicant. The Applicant has financial resources and was
in a position to speed up their investigation or even outsource the
service if there were capacity challenges.
[37] The suspicion of fraud was long there, even before the first
judgment was granted. Applicant was already in possession of reports
by Dr Nay, SKW Matima Assessors, as well as Orthopaedic Surgeon Dr
Sibanyoni, all of which make mention of the suspicion. In any event,
the Forensic Report does not take the matter any further but merely
refer to all other reports that Applicant already had, long before any of
the judgments could be granted.
Respondent's conduct
[38] I find it necessary to once again look into the Applicant's
conduct and, having done so consider and determine, what legal
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conclusions or inferences can be drawn therefrom. In particular the
following common cause facts are relevant:
(i) Prior to any of the two judgme nts being granted the
Applicant was already in possession of the three expert
reports to which I have referred. In all these reports, a
suspicion of fraud had already long been raised.
(ii) When both judgments where granted, on 4 August 2017
and 9 May 2018 respectively, the Applicant was on both
occasions represented by both an attorney as well as
Counsel. It failed to lead any evidence of fraud, despite
having had an opportunity to do so. In my view this clearly
demonstrates that the Applicant had from the beginning,
acquiesced itself in the very granting of the judgment
against it.
(iii) Before the matter went on trial before Van der Schyff J on
22 July 2022, on issue, of quantum the Applicant made an
offer in settlement of the Respondents claims. In other
words, the offer was intended to fully and finally satisfy
the judgments against it. These are the very same
judgments that Applicant now seeks to have rescinded.
[39] Having carefully considered the totality of the Applicant's
-
conduct set out above, I am satisfied that the only reasonable
inference to be drawn from such conduct, is that it throughout
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intended to be bound by the orders of the court, and has therefore
acquiesced itself in the judgements against it.
[40] In applying this principle Innes CJ in Dabner v South African
Railways and Harbours 1920 AD 589 expressed himself as follows:
"ff the conduct of an unsuccessful litigant is such as to point indubitably
and necessarily to the conclusion that he does not intend to attack the
judgment, then he is held to have acquiesced in it."
(At page 594)
[41] In Standard Bank v Estate van Rh yn 1925 AD 266, the same
Learned Chief Justice (as he then was) again confirmed the principle
as follows:
"If a man has clearly and unconditionally acquiesced in and decided to
abide by the judgment, he cannot thereafter challenge
it."
See also: Natal Ru gby Union v Gould 1999 (1) SA 432 (SCA)
[42] Similarly, in Tswelopele Non-Profit Organisation and Others v
Cib' of Tshwane Metropolitan Municipality and others 2001 (6} SA
S11 (SCA) the Supreme Court of Appeal held:
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"Peremption of the right to challenge a judicial decision occurs when the
losing litigant acquiesces in an adverse judgment. But before this can
happen, the court must be satisfied that the loser has acquiesced
unequivocally in the judgment. The losing party's conduct must 'point
indubitably and necessarily to the conclusion that he does not intend to
attack the judgment ... "
See also: Gentlryco AG v Firestone SA (PJY) Ltd 1972 (1) 589 at 600
A-B
(43] This being the case, the Applicant's attempt, after an
unexplained lengthy period of seven years delay, to try and suddenly
challenge the judgments in which it has clearly and unequivocally
acquiesced itself is completely misdirected. The application is not
bona fide and cannot legally be justified.
Good Cause
[44] Having said that, I have no difficulty in finding that the Applicant
has failed to show and demonstrate good cause. Over and above that,
it failed to demonstrate that it has a bona fide defence to the
Respondent's claims, which carries some prospects of success.
CONCLUSION
[45] Taking into account all of the factors set out above, I am satisfied
that the Applicant has failed to discharge the onus that rests on it, and
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or make a proper case justifying the granting of the relief sought. It
follows therefore that the application has to fail.
COSTS
[46] It is generally accepted that costs follow the outcome. I do not
see any reasons to deviate.
ORDER
Consequently, I make the following order
(47] The rescission application is dismissed with costs, such costs
to include costs consequent upon employment of two C ounsel.
SSMAAKANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
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DATE HEARD
DATE OF JUDGMENT
APe.EARANCES
For the Aplicant
Instructed
by
For the Respondent
Instructed
By
-
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13 MAY2025
13 August 2025
Ms P.B Rangata (Attorney)
State Attorney
Pretoria
Adv I. Zidel SC
Ad v N M Ph akam a
D E BROG LIO ATTO RN EYS Inc
Pretoria