IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
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Case Number: 047636/2023
In the matter between:
RAND MUTUAL ASSURANCE COMPANY LIMITED Applicant
and
CLEOPATRA NOKUTHULA SINDANE Respondent
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
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INTRODUCTION:
[1] This is an application for leave to appeal against the judgment of this Court
delivered on 10 June 2025. In that judgment: (i) the Applicant's preliminary objections
(relating to Rule 41A of the Uniform Rules of Court, jurisdiction, and alleged non-joinder
of the Road Accident Fund ("RAF ")) were dismissed; (ii) the suspension of the
Respondent's monthly benefits under a Commuter Journey Policy ("CJP") was set aside;
and (iii) the Applicant was ordered to restore and continue paying the benefits, with each
party directed to pay its own costs.
[2] The Applicant now seeks leave to appeal to the Full Court of this Division. The
grounds of appeal largely repeat the objections and arguments raised in the initial
application, namely: (i) non-compliance with Rule 41A; (ii) lack of jurisdiction, including
reliance on Jex loci contractus and the so-called "15-km rule"; (iii) failure to join the RAF;
and (iv) the Court's findings on clause 4.5 of the CJP and the effect of the Respondent's
settlement with the RAF.
TEST FOR LEAVE TO APPEAL:
[3] The test for leave to appeal is set out in section 17(1) of the Superior Courts Act
1 0 of 2013. Leave may be granted only if there is a reasonable prospect that another
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court would come to a different conclusion, or if there is some other compelling reason
for the appeal to be heard.
[4] The test is strict. As explained in Mont Chevaux Trust v Goosen 2014 JDR 2325
(LCC) and reaffirmed in Notshokovu v S [2016] ZASCA 112, it is not enough to show that
another court m ight come to a different view . There must be a rational basis to conclude
that another court would do so. Finality in litigation remains an important consideration.
GROUNDS OF APPEAL:
[5] The Applicant's grounds can be summarised as follows:
[5.1] Rule 41A: The Court should have struck the matter from the roll for failure to file a
Rule 41 A(2)(a) notice, without requiring proof of prejudice or reliance on Rule 30.
[5.2] Jurisdiction: The Court erred in assum ing jurisdiction where the contract and
performance were located in Mpumalanga , and where the "15-km rule" was said to apply.
[5.3] Non-joinder of the RAF : The Court erred in finding that the RAF had no direct
interest after declaratory relief against it was abandoned in court without formal
amendment.
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[5.4] Merits/Clause 4.5: The Court erred in holding that breach of clause 4.5 was not
decisive and in relying on public policy and statutory considerations to reinstate benefits.
DISCUSSION:
A. Rule 41A
[6] Although Rule 41A(2) is couched in mandatory terms, it does not provide for
automatic invalidity. In G rowthpoint Properties Ltd v Makhonya Technologies (Pty) Ltd
2021 (1) SA 395 (GJ) the Court held that the key issue is prejudice, not formality. Similarly,
Small Enterprise Finance Agency SO C Ltd v Mbatha Transport (GJ, 2022, unreported)
noted that case management , not striking off, is the proper remedy.
[7] In this matter the Applicant filed its own Rule 41A(2)(b) notice, did not invoke Rule
30, and showed no real prejudice. The proceedings continued normally. There is no
reasonable prospect that an appeal would succeed on this ground.
B . Jurisdiction
[8] The argument based on Jex loci contractus and the "15-km rule" is misplaced.
Section 21 (1) of the Superior Courts Act gives this Court jurisdiction over persons residing
or carrying on business in the Division and over causes arising here. The Respondent's
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principal place of business is in Gauteng, and the refusal to pay benefits occurred here.
The Pretoria and Johannesburg seats of this Division have concurrent jurisdiction over
the whole province, as confirmed in Standard Bank v Thobejane 2021 (6) SA 403 (SCA).
[9] Jurisdiction was properly established
C. Non-jolnder of the RAF
[1 0] Joinder is required where a party has a direct and substantial legal interest in the
relief, as held in Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637
(A). While relief was initially sought against the RAF , that relief was expressly abandoned
during the proceedings. The remaining relief related solely to the bilateral contract
between the present parties.
[11] In Gordon v Department of Health, KZN 2008 (6) SA 522 (SCA ), the Court held
thatjoinder is required where a third party will be prejudiced. The RAF was not prejudiced
by the order, and a formal amendment , wh ile preferable, was unnecessary in the
circumstances.
D. Merits: Clause 4.5, COIDA and the RAF Act
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[12] It is undisputed that clause 4.5 was not complied with. The issue was whether this
justified termination of benefits.
[13] The CJP operates within the framework of COIDA. Section 36 of COIDA provides
for recourse by a mutual association, while section 18(2) of the RAF Act prevents double
recovery. In Rand Mutual Assurance Co Ltd v Road Accident Fund 2008 (6) SA 511
(SCA), the SCA confirmed the insurer's standing to sue the RAF directly to recover
compensation paid.
[14] In this matter, the RAF deducted the COIDA component, ensuring no double
recovery. The Applicant's rights of recourse were unaffected. The decision to stop
benefits was therefore disproportionate and contrary to the protective purpose of COIDA.
[15] Contractual sanctity remains important, as confirmed in Mohamed's Leisure
Holdings (Pty) Ltd v Southern Sun Hotel Interests (Ply) Ltd 2018 (2) SA 314 (SCA). But
in Barkhuizen v Napier 2007 (5) SA 323 (CC), the Constitutional Court held that
contractual terms must be consistent with fairness and public policy. Enforcing clause
4.5 strictly in this case would have denied a widow her benefits without prejudice to the
Applicant, which is inconsistent with public policy.
[16] On the facts, the findings on the merits cannot reasonably be faulted.
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E. Compelling Reason / Novelty
[17] No conflicting judgments or novel questions of law were identified. The grounds
advanced simply repeat issues already decided. No misdirection appears from the record.
CONCLUSION :
[18] Having considered the submissions, I am not persuaded that the appeal wou ld
have a reasonable prospect of success. Nor is there any other compelling reason to grant
leave.
ORDER :
[19] In the result the following order is made :
1. The application for leave to appeal is dismissed.
2. The Applicant shall pay the costs of this application, including costs of counsel
on scale B.
LCOETZEE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be the 8 September 2025.
Appearances:
On behalf of the Applicant:
Instructed by:
On behalf of the Respondent:
Instructed by:
Date heard:
Date of judgment:
Adv. M. Musetha
Mamathuntsha Inc. Attorneys
Adv. B. Lukhele
Lepule, Mokoka Inc.
23 July 2025
8 September 2025