IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Reportable
CA NO: 72/2024
HC CASE NO: 4112/2023
In the matter between:
ZILWA ATTORNEYS INCORPORATED 1st Appellant
HYMIE ZILWA 2 nd
Appellant
THE SHERIFF: EAST LONDON 3 rd
Appellant
And
ROAD ACCIDENT FUND Respondent
_____________________________________________________________
Neutral citation: Zilwa Attorneys Incorporated V Road Accident Fund
(CA 72/2024).
Coram: NHLANGULELA AJP, MAJIKI J, NOBATANA AJ
Heard: 12 MAY 2025
Delivered: 29 AUGUST 2025
Summary: appeal against orders suspending operation and execution of
court orders, and granting stay of execution pending finalization of an
application for leave to appeal - mootness - decision of merits in the
interests of justice – appeal upheld with cost in favour of the appellant.
NEW ORDER
On appeal from: the judgment of Rugunanan J sitting as a court of first
instance.
1. The appeal is upheld with costs. Such costs include the costs of two
counsel.
2. The order of the court a quo is set aside and replaced by the following
order:
2.1 The main application is dismissed with costs. Such costs include
the costs of two counsel.
3. All the costs shall be paid in terms of scale B of Uniform Rule 67A.
VARIATION I.T.O. RULE 42 (1) (b)
Nhlangulela AJP (Majiki J and Nobatana AJ concurring)
[1] In the judgment that was delivered on 28 August 2025, an order granted
would have been predicated on the terms that are encapsulated in the
concluding paragraph that reads:
‘Conclusion:
[21] The interpretation of s 18 (1) of the Act, read with Rules 49 (1) (b) reveal that a
precondition for suspension of operation and execution of a judgment or order is the
existence of an application for leave to appeal that was brought within 15 days after
judgment; or within such extended time thereafter that would have been authorised by the
court as envisaged in Rule 49 (1) (b). Having found that the application for leave does not
comply with Rule 49, coupled with the non -existent order of a court extending 15 days,
the operation and execution of the orders by Mjali J was not the subject of an application
for leave to appeal, or an appeal, as contemplated by the legislature in s 18 (1).
Therefore, the belated application for leave to appeal a High Court lapsed, with the
consequence that the judgment against which leave to appeal is sought is excluded from
the operative effect of section 18 (1).’
[2] But the order that followed went in the direction that was not predicated
on the judgment. Upholding the appeal, not striking it from the roll, is the
intended outcome that reflects the reasoning adopted throughout the
judgment.
[3] Upon reflection, and soon after the delivery of the judgment, it dawned
that the order granted contradicted the intention of the judgment. For that
reason, it falls to be varied by the court in the exercise of its power as given
in terms of Rule 42 (1) (b) of the Uniform Rules of Court1. The variation
will not prejudice the parties.
1 The permissible power to correct patent error or omission -see: Seattle v Protea Assurance Co. Ltd 1984
(2) SA 537 (C); as opposed to unauthorized changing of the judgment: see: Firestone SA (Pty) Ltd v
Gentiruco AG 1977 (4) SA 298 (A).
[4] Accordingly, the previous order falls to be varied, and replaced by a new
order that reads in the following terms:
Order:
In the result, the following order shall issue:
1. The appeal is upheld with costs. Such co sts to include costs of
two Counsel.
2. The orders made in the court a quo are set aside, and are
replaced by the following order:
2.1 The urgent application is dismissed with costs.
3. The costs incurred in this Court and court a quo shall be paid on
scale B referred to in Uniform Rule 67A.
______________________
Z. M. NHLANGULELA
ACTING JUDGE PRESIDENT OF THE HIGH COURT
I concur:
___________________
B. MAJIKI
JUDGE OF THE HIGH COURT
I concur:
____________________
M NOBATANA
ACTING JUDGE OF THE HIGH COURT
Appearing for the respondents: Adv. A. M. Bodlani SC
Instructed by: Messrs Zilwa Attorneys Inc
MTHATHA.
Appearing for the respondents: Adv. V. Notshe SC
Instructed by: Messrs Maponya Ledwaba Inc
c/o Messrs Mjulelwa Inc
MTHATHA.