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ROAD ACCIDENT FUND RESPONDENT
In re:
Case Number: 28763/22
RAMAGWEDE HULISANI PERTUNIA OBO MINORS APPLICANT
AND
ROAD ACCIDENT FUND APPLICANT
Procedure: Whether default judgment against RAF can be pursued
without filing substantive application with effect from the 26 February 2024
contrary to the consolidated Gauteng division practice directive 1 of 2024-
Whether practice directive directing filing of substantive default application
on RAF matters with effect from 26 February 2024 circumvent or
undermine the uniform rules of the High court , in particular rule 31(2) (a)
read with rule 31(4) under the circumstances.
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JUDGMENT
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RESENGA AJ:
Introduction
[1] “No shortcuts exist to the top of a palm tree1”.
[2] The applicants in all these matters seek default judgments against
the RAF in their respective claims. These matters came before me for
consideration and adjudication on the 26 June 2025. It is common
cause between all parties that the applicants have decided not to file
1 African proverb
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substantive default applications. The applicants only filed the default
notice in terms of rule 31(2) without filing substantive application. These
notices were all filed after the practice directive came into effect on the
26 February 2024. It is prudent and necessary to dispose these three
matters through this judgment as these matters raise similar legal issue
to be determined by this court.
Relevant Background
[3] These matters were set down for default judgment caused by the
respondents’ failure to defend these claims. Upon consideration of
these matters, it became evident that applicants failed to file substantive
applications as provided in the consolidated practice directive 1 of 2024
of this division with effect from 26 February 2024.
[4] The consolidated practice directive among others deals with
compliance for default trial date and default judgment against RAF . It
basically provides conditions to be met when setting down the matter s
for default trials specifically in RAF matters and came into effect from
26 February 2024.
[5] The practice directive in page 113 provides under number 5 read as
follows;
“A notice of motion informing the RAF of the bringing of this
application together with a founding affidavit fully setting out the
grounds on which application for judgment by default is bein g
brought has been uploaded to the case file”
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[6] This court during the hearing of these matters on the morning of 26
June 2025 graciously alerted counsel representing the applicants about
the preposition of practice directive and its implications in these RAF
matters. It appears all counsel were unaware of the provisions of the
directive on this issue. The directive was for the benefit of all counsel
also uploaded to the caselines on the morning of 27 June 2025.
[7] It is further common cause and accepted by all counsel that t he
notices for default judgment made in all these matters were made after
the 26 February 2024. In the matter of Ndlangamandla the notice for
default is dated 14 June 2024 and served on the 20 June 2024 , in the
matter of Ralikwatha the notice is dated 14 May 2024 and served on
the 13 June 2024 and in the matter of Ramagwede the notice is dated
11 July 2024 and served on the 12 July 2024.
[8] The court further afforded all applicants’ counsel sufficient
opportunity to obtain instruction and to consider removing these matters
from the roll as the y are not properly before this court . Despite the
court’s position in these matters counsel surprisingly and gravely
refused to remove these matters from the roll. They persisted that they
are entitled to proceed with the default applications against RAF and
they are rightly before court.
[9] The court stood the matters down for the following day , the 27 June
2025 for counsel to consider their preposition and to file heads of
argument dealing with this aspect . The applicants all filed Heads of
argument. The court further inquired on the morning of the 27 June 2025
if parties have considered the directive and whether they have not
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reconsidered to remove their matters from the roll . Counsel for all th e
applicants further persisted and regrettably refused to see the light. They
were all given audience and argued their specific matters before court on
the 27 June 2025. I shall fully deal with their argument below.
[10] It is necessary to indicate that there are two related matters of
Ramano M.E V RAF Case Number 35 390/21 and Mosakare V RAF
Case Number 24999/19 without substantive applications. Having
considered these two matters stated above it became evident that they
are not affected by the practice directive and draft orders in those two
matters have been made orders of court prior to this judgment. These
two matters have fortunately narrowly escaped this judgment on the
basis that the request for default made in those two matters was made
before the practice directive came to effect on the 26 February 2024.
[11] The issue to be determined is whether the applicants are rightly
before this court and whether they are entitled to their relief without
compliance with the consolidated practice directive 1 of 2024 by filing
substantive default applications.
The applicable legal principles
[12] The purpose of the practice directive in any court or division is
essentially to deal with the daily functioning of the courts and its purpose
is to supplement the rules of the court for the better administration of the
court. It is through the practice directive that the Judge President provide
clear practical administration of the court processes based on the lived
professional experience and prevailing court administration challenges.
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[13] The practice directive must be subordinate to the rules and legislation.
The SCA highlighted that, In the The National Director of Public
prosecutions (Ex parte Application 2), the court held the practice
directives may not derogate from legislation, commo n law or rules of the
court that have a binding effect.
[14] The SCA in The National Director of Public prosecutions (Ex parte
Application) in para 31 held as follows;
“The practice directive is subordinate to any relevant statute, the common law and
the Uniform rules and it cannot be applied to restrict or undermine any piece of
legislation, the Uniform Rules of Court or the common law. Practice directives deal
essentially with the daily functioning of the courts and, their purpose is to supplement
the rules of court. In this case, the court a quo afforded the practice directive statutory
force overriding both s 38 of the POCA and rule 6(4)(a) of the Uniform rules which i s
impermissible. The practice directive should not negate the provisions of s 38 and rule
6(4)(a) of the Uniform rules. In my view the portion of the practice directive dealing with
ex parte applications is not applicable to ex parte applications brought in terms of s 38.”
[15] In Izwelethu Cemforce CC v Dr Ruth Segomotsi Mompati District
Municipality3 the court in para 19 held as follows;
“The importance of compliance with these Directives and Rules cannot be overstated.
Failure to adhere to these guidelines not only hampers the smooth functioning of the
Court but also undermines the integrity of the judicial process. It can result in
unnecessary delays, confusion, and prejudice to the parties involved in a case ”
2 2021 ZASCA 142; 20229(1) SACR 1 (SCA) at para 31
3 M509/2022(20230 ZANWHC 192 (September 2023)
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[16] In Reitmann and Janse van Resburg4 Coetzee J said;
“Rules are made to be followed, and Rules are there so that rights and duties flow; in
the event of non-compliance, legal results flow”
Analysis
[17] Counsel for the applicants in essence correctly argued that the default
application does not in terms of rule 31(2) (a) postulate the filling of
substantive application seeking default judgment as envisaged in rule 6. I
fully agree with this submission. It was further argued that practice directive
in requiring the substantive application to be filed undermine or circumvent
rule 31(2)(a). This court disagree that the practice directive undermine or
circumvent rule 31(2) (a) under the circumstances. The court was
persuaded to ignore the practice directive on this aspect as if does not exist.
This argument was supported by all counsel for the applicants.
[18] Rule 31(2)(a) of the uniform rules of high court read as follows;
“ 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 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 orders as deems fit”
4 1984(2) SA 174 (W) at 179H
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[19] Rule 31(4) of the uniform Rules of court provides as follows;
“The proceedings referred to in subrules (2) and (3) shall be set down for hearing upon
not less than five days’ notice to the party in fault: provided that no notice of set down shall
be given to any party in default of delivery of notice of intention to defend ”
[20] The practice directive specifically provided for filing of the application
in these RAF Matters. It is public knowledge that thousands of RAF matters
of different higher values and types countrywide remain undefended and
as result claimants through th eir representatives seek default judgments.
This unfortunate occurrence among others necessitated the creation of
default trial rolls in this division.
[21] The directive with effect from 26 February 2024 requires that such
default applications be brought under notice of motion and founding
affidavit. It specifically provides that grounds of application by default must
be fully set out in the founding affidavit accompanying such notice of
motion. The applicant as result of the practice directive is provide d an
opportunity to fully set out evidence in an affidavit in support of his/her
grounds of application by default.
[22] Counsel for the applicants failed to demonstrate to the effect that the
required substantive application for default negatively override or
undermine rule 31(2)(a) . They further failed to demonstrate that the
directive is to the disadvantage or detriment of the applicants. There is no
prejudice demonstrated whatsoever by the applicants for being required to
file substantive application for default judgment.
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[23] The substantive application required as provided by the practice
directive 1 of 2024 in essence supplement rule 31(2)(a) to ensure the
effective and convenient functioning of the court in fully assessing these
RAF matters. The substantive application essentially ensures the default of
the RAF is confirmed under oath by the applicant. The founding affidavit
further provides an opportunity for the court to fully assess relevant steps
taken by the applicant before approaching court seeking default judgment.
The steps taken by the applicant are therefore placed under oath through
an affidavit as evidence and assessed by the court accordingly. The court
was not told why this can prejudicial to the applicant.
[24] It is evident that some of these RAF claims are substantial in value and
important to the claimants. As a result, these matters require diligent and
meticulous consideration by court. It is necessary for the applicant seeking
default judgment to place all relevant evidence under oath and in one
founding affidavit. If anything, good or bad may arise at any stage the
evidence placed before court through the founding affidavit may be easily
revisited or referred.
[25] There is no legal basis laid by counsel to justify refusal of the
compliance with the practice directive whatsoever under the
circumstances. The requirements laid down by the SCA In the Director of
National public prose cutions (ex parte ) are not met and no attempts
were made in argument by counsel to meet the requirements.
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[26] This court is not persuaded that the practice directive should simply
be ignored because applicants’ legal representatives do not like it or for
whatever convenient reason. The practice directive is provided for a reason
and must be complied with. There is no prejudice to be suffered or
demonstrated by the applicants by filing the substantive application. The
applicants failed to demonstrate that the practice directive unde rmine or
negatively affect their rights as provided in rule 31(2)(a). The mechanism
provided under rule 31(2)(a) still remain intact and is not undermined by
the practice directive in any form.
[27] The required substantive application in my view is basically to the
advantage of the applicant than the respondent in many ways in that the
respondent’s default is through grounds set out in the founding affidavit fully
placed before court under oath. The refusal by the applicants to comply
with the practice directive is unfounded and misplaced.
[28] The court was referred by counsel for the applicants to the Eastern
Cape full court judgment case of Dlodlo and others v Omega
Construction and Buidling (pty) Ltd5 which in para 14 read as follows;
“There is, however, a further matter of concern which arises from the papers. As I have
said the application for default judgment proceeded in terms of rule 31(2). In terms of
the rule, where a defendant is in default of the delivery of a plea, as in this case, a
plaintiff is entitled to “set the action down ” for default judgment. It doe s not postulate
the filing of an application, as envisaged in rule 6, supported by affidavits. In the present
matter the plaintiff brought its application for default judgment on notice of motion
supported by a founding affidavit and annexures running to m ore than 40 pages. The
approach reflects a tendency that appears to be gaining momentum in this court and
that constitutes an abuse of the process of court. The proceedings had been
that constitutes an abuse of the process of court. The proceedings had been
5 (CA85/2022) (2022) ZAWCMKHC 1 (1 March 2022)
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commenced by way of action. Where there is no notice of intention to defend, or a plea,
filed the factual averments contained in the particulars of claim are deemed to be
admitted. However, where a claim is made for unliquidated damages, as in this case,
the court is required to hear evidence in order to properly assess the issue and to make
an appropriate order. In Economic Freedom Fighters 6 the SCA explained that
application proceedings are inappropriate for this purpose. Generally, in action
proceedings, evidence must be presented viva voce. In exceptional cases evidence
may, with the leave of the trial court, be received on affidavit. Thus, a plaintiff seeking
default judgment in terms of rule 31 cannot seek to bolster his case by an extensive
affidavit nor is it necessary to repeat the allegations made in the particulars of claim on
affidavit. The present case provides an illustration of the consequences of such an
abuse of the court process.”
[29] It is clear as daylight without any confusion that ordinarily the legal position
in seeking default judgment does not require substantive application to be filed.
This is clearly confirmed as provided in rule 31(2)(a) read with rule 31(4). The
Dlodlo case is distinguishable from these three matters b efore this court and
not applicable in that in the Dlondlo matter there was no specific practice
directive requiring substantive application to be filed against RAF matters unlike
in these cases wherein the directive specifically provides that in RAF matters
substantive application must be filed. The fact that the directive only specify
RAF matters only to the exclusion of others, by logic suggest that other matters
may ordinarily procced as provided under rule 31(2)(a) without filing substantive
application.
[30] The Dlodlo matter evidently as confirmed in its para 14 is primarily based
on addressing the abuse of court process in f iling unnecessary and excessive
6 Economic Freedom Fighters and Others v Manuel 2021 (3) SA 425 (SCA) at para [93]
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substantive default application, and further filing unnecessary papers before
court. This is confirmed in para 15 which read as follows;
“As a result of the form of the application the appellants found it necessary to
address all the averments made in the affidavit (which should never have been filed)
and I have referred earlier to the extent of the answering papers that followed. Thus,
the record on appeal, in respect of a default judgment application, now amounts to 540
pages. To add insult to injury, a few days prior to the he aring of the appeal Omega ’s
legal representatives found it neces sary to deliver a “Supplementary Appeal Record”
containing a further 270 pages of documentation relating to rescission applications filed
by the appellants…”
[31] The reliance by counsel on the Dondlo judgment is unfortunately misplaced as
that judgment is not applicable or comparable for purposes of this this matter . The
Dlodlo judgment can only be relevant on circumstances wherein there is no practice
directive requiring substantive application to be filed.
[32] There was an argument made by counsel after the court inquired whether Dlodlo
judgment is binding to this court. The high court in terms of stare decisis7 is not bound
by the decisions of another court including full court of another division. The doctrine
of precedent is often expressed by t he Latin maximum stare decisis at non quieta
movere8. However, such decisions if comparable and applicable carry strong
persuasive authority and are treated with high respect to ensure legal certainty and
the uniform rule of law.
[33] The essence of the doctrine may be captured in the rule that a court is bound by
the previous decisions of a higher court and by its own previous decisions in similar
matters9. The high court is bound by the decisions of the supreme court of appeal and
7 The principles of precedent
8 “to stand by decisions and not to disturb settled matters”.
7 The principles of precedent
8 “to stand by decisions and not to disturb settled matters”.
9 Precedent and the constitutional court by J Brickhill; www.saffli.org
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the Constitutional court. The Dodlo judgment if appliable and comparable would only
be persuasive under the circumstances.
[34] The court was further referred to the case of Economic freedoms fights and
others v Emanual. The court in para 92 said as follows;
…..An unliquidated claim for damages must be pursued by institution of an action. No
less so, when an aggrieved victim of a defamatory statement seeks compensation.
That has always been the position and it is reflected in the Uniform Rules of Court.
Uniform Rule 17(2) compels a person claiming unliquidated damages to use a long
form summons and file particulars of claim, and Uniform Rule 18(10) obliges ‘a plaintiff
suing for damages [to] set them out in such manner as will enable the defendant
reasonably to assess the quantum thereof’ and plead thereto. In respect of damages
claims for personal injury the rule requires even greater specificity…”
[35] The SCA in para 93 further said;
“This is not mere technicality. Claims for unliquidated damages by their very nature
involve a determination by the court of an amount that is just and reasonable in the
light of a number of imponderable and incommensurable factors. That exercise
cannot be undertaken in proceedings by way of application. As Harms DP said in
Cadac:
' … motion proceedings are not geared to deal with factual disputes – they are
principally for the resolution of legal issues – and illiquid claims by their very nature
involve the resolution of factual issues.'(Emphasis added.)”
[36] The reliance of the Economic freedom f ighters case insofar as the cases before
this court is again misplaced. This case deal with whether determination of quantum
of damages can be dealt with by motion proceedings and the SCA ruled that such
determination must be referred to oral evidence for determination.
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[37] The substantive application required by the practice directive is not in anyway
meant to oust the obligations on a party pursuing unliquidated damages to prove
his/her claim. The applicant seeking default judgment on unliquidated damages still
has to satisfy the court on the merits and extent of the damages claimed.
[38] The practice directive among others requires the grounds of default to be fully set
out by the applicant through an affidavit. This does not in any way suggest that the
contents of the founding affidavit must only be exclusively considered for the claim.
The court still has to among others assess pleadings, reports (if any) and other
relevant documents to assess and verify i f proper case is made. The substantive
application does not absolve the applicant from either leading oral evidence or filing
rule 38(2) application for evidence to be considered through affidavits.
[39] It was further argued that rule 38(2) application filed by the applicant is enough to
place the applicant’s evidence under oath. This submission is again legally unfounded
and incorrect in that rule 38(2) does not specifically deal with the default grounds of
the RAF. The rule 38(2) application normally requires the court to consider either
factual evidence10 or expert evidence through filed affidavits without such witnesses
testifying in court.
Conclusion
[40] In the premise s, it is found that , the re is no sound and founded legal basis
advanced by the applicants to justify refusal to comply with consolidated practice
directive 1 of 2024 and further that there is no prejudice demonstrated or to be suffered
by the applicants by filing substantive default application against RAF.
10 Ordinarily deposed through an affidavit.
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[41] Consequently, I make the following order;
In the matter of NDLANGAMANDLA NELISWA PORTIA V ROAD ACCIDENT
FUND CASE NO: 54826/21;
41.1 The application for default judgment without filing substantive application is
refused.
41.2 No order as to costs.
In the matter of RALIKWATHA LATANI SALPHINAH V ROAD ACCIDENT FUND
CASE NO: 12935/2;
41.3 The application for default judgment without filing substantive application
is refused.
41.4 No order as to costs.
In the matter of RAMAGWEDE HULISANI PERTUNIA OBO MINORS V ROAD ACCIDENT
FUND CASE NO: 28763/22.
41.5 The application for default judgment without filing substantive application
is refused.
41.6 No order as to costs