JUDGMENT
Woodrow, AJ:
Introduction
[1] The Road Accident Fund (“ RAF”) initially brought this application urgently
seeking (a) to set aside a warrant of execution dated 3 September 2024, (b)
to interdict the second respondent, the sheriff, from proceeding with execution
of the warrant, and (c) to rescind a judgment of this court granted on 21
February 2024.
[2] The matter was initially enrolled in the urgent court in December 2024.
Neukircher, J struck the matter from the urgent roll for lack of urgency .
Neukircher, J further ordered that the RAF “… may not re-enrol the matter in
the urgent court and may enrol it in the ordinary opposed motion court .” and
that the RAF’s “… legal representative is barred from charging fees for today.”1
1 Order of Her Ladyship Justice Neukircher, CL000-1
[3] The notice of motion reads as follows in relation to the substantive relief sought
(excluding the prayer for urgency and costs):2
…
2. Setting aside the operation and execution of the warrant of execution dated
03rd September 2024;
3. Interdicting the Second Respondent from proceeding with execution of the
warrant of execution against the Applicant's movable assets;
4. Rescission of the judgment granted by Justice Joyini, J on the 21st February
2024;
…
[4] Since the launch of the application, the record reveals that the RAF has done
nothing. The RAF has filed no replying affidavit , has filed no heads of
argument, and has failed to appear at the present hearing. The facts of this
matter demonstrate that the application is a vexatious stratagem aimed at
delaying payment and frustrating compliance with a court order. It constitutes
a furtherance of the RAF’s “chaotic approach to litigation”.3
[5] Counsel for the first respondent appeared in court together with the court
appointed curator ad litem.
Background facts and litigation history
2 Notice of motion, CL055-1
3 Road Accident Fund v Harmse (23540/2017) [2025] ZAGPPHC 545 (20 May 2025) par [10]
[6] The relevant accident that caused Ms Magadla injury and damage occurred
in January 2020. Summons was issued and served in September 2021. The
background and history are accordingly extensive, and it is not possible or
necessary to set out a comprehensive recordal of the background or the
litigation history. I merely set out certain of the more relevant dates.
[7] The version advanced by the RAF in the founding papers is shown to be
misleading when one has regard to the answering affidavit filed in this matter.
The RAF has elected not to file a replying affidavit. The facts set out below are
extracted from the answering affidavit read together with the record in this
matter.
[8] Ms Magadla was a passenger in a vehicle that was involved in an accident
near the N1 Road, Allandale, in January 2020. She sustained various serious
injuries, including a moderate traumatic brain injury.
[9] A claim was lodged with the RAF on 23 September 2020, and summons was
issued and served on 9 and 13 September 2021 respectively.
[10] On 24 January 2022 , the RAF c onceded merits - 100% in favour of Ms
Magadla, offered general damages of R500,000.00, and offered an
undertaking in terms of section 17(4) of the Act . The offer was accepted .
Accordingly, the only outstanding issue was loss of income.
[11] The attorneys on behalf of Ms Magadla appointed a number of experts in order
to quantify loss of income , the majority of which reports were served on the
RAF in September 2022 already. The RAF did not appoint any experts.
[12] Due inter alia to the head injuries sustained by Ms Magadla, a curator ad litem
was appointed for her by order of this court on 14 September 2022 (pursuant
to an application for such appointment).
[13] In October 2022, amended particulars of claim were filed on behalf of Ms
Magadla (pursuant to an unanswered notice of intention to amend), in essence
substantially increasing the quantum claimed, such quantum being in line with
the expert reports filed on behalf of Ms Magadla.
[14] The RAF filed notice to defend the action in January 2023. In the notice of
intention to defend the RAF stated that “ … it has appointed the STATE
ATTORNEY, PRETORIA at the address set out below and at which it will
accept service of all process in this action. ” The RAF has been represented
by the State Attorney ever since then.
[15] Pursuant to a notice of bar, the RAF finally filed its plea (including also special
pleas) dated 16 May 2023.
[16] A pre-trial was held on 27 June 2023, and the minute on behalf of the parties
signed on the same date. The pre-trial minute was served by hand on the
State attorney on 29 June 2023.
[17] The notice of set-down of the trial reflecting the trial date of 21 February 2024
in this matter was served by hand on the State attorney on 3 October 2023.
[18] The RAF’s attorney of record from the State Attorney, Ms Nompumelo Kunene,
was at roll call court on 21 February 2024 and elected to not to participate at
the hearing. The matter was enrolled as matter 30 on the trial roll. The trial
matter was allocated to Joyini, AJ in court 2D. Evidence was led to prove the
case of loss of income. Joyini, AJ granted judgment in favour of the plaintiff in
the precise sum arrived at in the expert report of Tsebo Actuaries dated 22
July 2022 (and which had been served on the RAF in September 2022) in
respect of loss of income.
[19] The order was served on the RAF on 21 February 2024 and uploaded on
Caselines on the same day.
[20] The RAF failed to comply with the order of this court and failed to make
payment. A warrant of execution was issued on 3 September 2024 , and an
attachment of movable goods of the RAF was made on 26 September 2024.
[21] The RAF , still represented by the State Attorney , brought the present
application in November 2024, approximately nine months after the order had
been granted by Joyini, AJ.
The merits
[22] The RAF states inter alia that: “This application is brought in terms of Section
173 of the Constitution of the Republic of South Africa …, the provisions of
Uniform Rule 45A and 31(2)(b) read with Rule 42(1)(a);”4
[23] The RAF makes out no case for the relief that it seeks.
[24] The reliance of the RAF on rule 31(2)(b) of the uniform rules of court is entirely
misplaced. Rule 31(2) of the uniform rules of court provides as follows:
(a) Whenever in an action the claim or, if there is more than one claim, any of
the claims is not for a debt or liquidated demand and a defendant is in
default of delivery of notice of intention to defend or of a plea, the plaintiff
may set the action down as provided in subrule (4) for default judgment and
the court may, after hearing evidence, grant judgment against the defendant
or make such order as it deems fit.
(b) A defendant may within 20 days after acquiring knowledge of such judgment
apply to court upon notice to the plaintiff to set aside such judgment and
the court may, upon good cause shown, set aside the default judgment on
such terms as it deems fit.
[25] The first fundamental obstacle for the RA F in this regard is the fact that the
order that the RAF seeks to rescind is not a default judgment as contemplated
4 Founding affidavit, par 8, CL056-4
in rule 31(2) of the uniform rules of court for the following reasons: (a) the RAF
had filed a notice of intention to defend and a plea and was accordingly not “in
default of delivery” of either of such documents (as envisaged in rule 31(2)(a)
of the uniform rules of court) ; (b) the plaintiff had not set the action down as
provided for in subrule (4) for default judgment – in casu, the action had been
set down on the trial roll, the notice of set down having been served on the
RAF, the attorney of the RAF was present in court, and the matter was
allocated for hearing by a trial judge . The order granted in casu does not
constitute a default judgment as contemplated in rule 31(2). The order is
accordingly not susceptible to re scission in terms of Rule 31(2)(b) of the
uniform rules of court.
[26] Even if such order were to have been susceptible to rescission in terms of
Rule 31(2)(b) of the uniform rules of court , the RAF would still not be entitled
to an order in terms thereof as ( a) the application was launched months late,
and no condonation has been sought , (b) the RAF has failed to show “good
cause”.
[27] The explanation proffered by the RAF for being ‘in default’ is false. The State
attorney has at all times since the filing of the notice of intention to defend
been the attorney of record of the RAF. The RAF further fails to disclose a
bona fide defence. The highwater mark of the case of the RAF regarding its
so-called bona fide defence is the allegation that: “I therefore submit that the
accident in question had no impact or, at best, it only had minor impact towards
the Claimants' future work ability and thus the applicant is herein is of the view
that the amount as per the actuarial calculation is excessive and /or the
Respondent's claim for Loss of earnings is inflated.” The RAF however fails to
furnish a shred of evidence in support of its contention and fails to provide any
expert reports of its own. The unsupported submission is destroyed by the
expert reports filed on behalf of the plaintiff. The RAF raises no bona fide
defence which carries any prospect of success.
[28] The reliance of the RAF on rule 42(1)(a) is similarly misplaced and without
merit.
[29] Rule 42(1) of the uniform rules of court provides:
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;
(b) an order or judgment in which there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity, error or omission;
(c) an order or judgment granted as the result of a mistake common to the
parties.
[30] The order in casu was not “granted in the absence of” the RAF. Further, such
order was not “erroneously sought or erroneously granted ” as contemplated
in rule 42(1)(a) of the uniform rules of court. The order is accordingly not
susceptible to rescission in terms of Rule 42(1)(a) of the uniform rules of court.
[31] The RAF is not entitled to a rescission in terms of Rule 42(1)(a) of the uniform
rules of court, for further reasons: (a) the attorney of record of the RAF was
present in court when the order was granted; ( b) the RAF was “ afforded
procedurally regular judicial process ”, and even if it could be construed that
the RAF was not present in court (which the facts do not bear out) , rule
42(1)(a) does not assist the RAF;5 (c) the RAF has failed to show an ‘error’ as
is contemplated in rule 42(1)(a).
[32] Whilst the RAF does not explicitly refer to a common law rescission, for the
reasons addressed already, read together with the submissions in paragraph
4 of the respondent’s heads of argument,6 the RAF has made out no case in
this regard.
[33] The rescission application is accordingly to be dismissed.
[34] The RAF makes out no case in terms of Rule 45A nor for an interdict. Justice
does not require a stay. In fact, on the facts of this matter, justice requires the
enforcement of orders of this court. The rescission claimed by the RAF must
clearly be dismissed for the reasons stated already. For suc h further reason
there is no case made out for any of the further relief sought by the RAF.
[35] The application ought to be dismissed.
5 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 [2021] ZACC
28 par [56]
6 Caselines, 061-10 to 061-13
Costs
[36] The court agrees with the first respondent that a punitive cost order is
warranted for the following reasons inter alia: (a) the rescission application
has no prospect of success and is brought extremely late; (b) the application
is an abuse of court process , and the first r espondent has been seriously
prejudiced thereby; (c) the application is a deliberate attempt to frustrate the
litigation process and the first respondent whose rights are at stake ; (d) the
RAF has sought to mislead in its application in order to obtain an order that it
is not entitled to; and (e) the application is vexatious.
[37] Costs on an attorney and client scale are warranted.
[38] The curator ad litem in complying with his duties attended at the hearing of the
matter. The costs order ought to include his costs.
ORDER
[39] Accordingly, I make the following order:
1. The application is dismissed.
2. The applicant is directed to pay the costs of the first respondent and
the costs of the curator ad litem on an attorney and client scale.