REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO~
(2) OF INTEREST TO OTHER JUDGES: NO/"i:lit
(3) REV ISED:lila/YES
19 SEP TE MBER 2025
DATE
In the matter between:
PRISCILLA NEL
MVULENI RICHARD MASEKO
and
ROAD ACCIDENT FUND
Case Number: 53167/2020
and
Case Number: 54969/2020
Applicant
Applicant
Respondent
Delivered: This judgment was prepared and authored by the Judge wh ose name is
reflected and Is handed down electronic~l/y by circulation to the parties/their legal
representatives by e-mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deem~d to be 19 September 2025.
JUDGMENT
MAKHOBA, J
[1] The two matters were enrolled in the unopposed roll before me on 12 and 14
August 2025 respectively.
[2] Due to the question of law that I raised with counsel, it was agreed that both
matters be heard together simultaneously on 14 August 2025. The question I
raised with counsel was the same on both matters.
[3] The Road Accident Fund did not appear on both matters. Thus, the two matters
were not defended.
[4] In both matters the court in the main action issued an order that the "Defendant is
ordered to provide the Plaintiff with an undertaking to pay 100% of the Plaintiff's
costs".
[5] Subsequently, according to the Applicants, the RAF issued a Section 17(4)(a)
undertaking which "it is plagued by a myriad of self-imposed and unilateral caveats
qualifications, limitations and condition which exponentially limit the treatment that
the Applicant will qualify for under the undertaking".
[6] The counsel for the applicants referred the court to the Judgment of Justice Van
Der Westhuizen at (Caselines 0-123). I must point out that it is not a judgment per
se, but a draft order signed by my brother Justice Van Der Westhuizen.
[7] In both matters numerous requests were sent to the RAF to comply with the court
orders, and not to add anything or subtract in the Section 17(4)(a) undertaking, the
RAF did not comply and issue new undertakings, hence these two applications are
before the unopposed motion court.
[8] Counsel for the applicants further argued that from the onset, the parties may
agree to the contents of the undertaking. In casu, there are no such agreements.
The court ordered the RAF to provide an undertaking w ithout more and without the
qualifications, limitations and caveats, and the RAF , contemptuously, fails and
refuse to do so, and instead delivered a rather water down and qualified or limited
undertaking. Counsel asked for an order as per notice of motion in both matters.
[9] In marine and Trade Insurance Co Ltd v Katz No 1974 (4) (AD), the court said the
following on page 971 - 972:
"All that strongly suggests that the trial court w as not intended to have any
discretion in regard to the form or contents of the undertaking either. Indeed, that
is confirmed by the words "a competent court has directed him to furnish such
undertaking", i.e. the "undertaking to that effect" (my italics), which is mentioned
earlier in the provision. Hence the trial coJi can only direct the insurer to furnish
an undertaking "to that effect". It has no discretion to direct the insurer to furnish
an undertaking that differs in its contents from what is comprehended by those
words, unless the insurer consents thereto. Those words in the context of the
provision mean , I think, an undertaking that will give due effect to, or will duly reflect
the insurer's assumption of liability for the costs mentioned in the provision. That
liability is to compensate the claimant for any costs that are incurred by or for him
in the future under these broad categories: (i) his accommodation in any hospital
or nursing home , (ii) treatment of him, (iii) the rendering of any service to him, or
or nursing home , (ii) treatment of him, (iii) the rendering of any service to him, or
(iv) the supplying of any goods to him, on proof that such costs have been incurred.
The undertaking need only simply state or record in those terms the insurer's
assumption of that liability. Without the consent of the insurer, nothing more than
that can be included in the undertaking, either at the instance of the claimant or by
the direction of the trial court. Hence , without such consent, the trial court cannot
direct that the undertaking should specify or detail any particular kind of hospital
accommodation, treatment, services, or goods covered by those categories. Any
elaboration of that kind could well give rise to lengthy and expensive disputes
between the parties at the trial, and, in any event, may still necessitate speculation
or guesswork by the trial court about what hospitalisation, treatment, etc will
become necessary in the future. Another purpose of the amendments is, I think, to
try to avoid all that, as far as possible, by means of the simple and straightforward
undertaking mentioned above".
[1 0] It is clear from what the Appellate Division (as it then was) said, the AD held that
that a court cannot direct that the undertaking be in a particular form or content by
the insurer. Therefore, in my view this court can only direct the Respondent (RAF)
to furnish an undertaking. This court has no discretion or powers to instruct the
RAF as to the form or contents of the undertaking, unless the RAF consent thereto.
[11] I make the following order:
11.1. the application on Case Number : 53167/2020 and Case Number :
54969/2020 is dismissed.
11.2. no order as to costs
Date of Hea ring: 14 August 2025
Judgment delivered: 19 September 2025
Appearances
For App licant: Adv W. BOTHA
For Respondent: No appearence
D . MAKHOBAJ
JUDGE O F THE HIGH C OURT
PRETORIA