REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025-027842
(I) REPORTABL E: YES ;@ .
(2) OF INTE REST TO OTHER JUDGES:@ NO
(3) REVIEWED :@No
27 October 2025
DA TE
In the matter between:
SETHIBE: SAMSON
And
ROAD ACCIDENT FUND
Raubenheimer AJ:
Order
JUDGMENT
[1] In this matter I make the following order:
Plaintiff
Defendant
1. The defendant's notice of intention to defend is set aside as an abuse of
process.
2
2. The defendant shall pay the cost of the application on the scale as
between attorney and client
[2] The reasons for the order follow below.
Introduction
[3] The matter was enrolled for default judgment on 9 September 2025 and was
heard on 10 September 2025, the plaintiff seeking default judgment on the
merits as well as quantum. The damages heads in dispute are general
damages , past and future loss of _i_ncome and an undertaking in respect of
future medical expenses.
Background
[4] On 10 February 2024, the plaintiff was a pedestrian when the insured motor
vehicle collided with him whilst he was walking on the pavement on the right
side of the public road.
[5] The plaintiff suffered injuries as a result of the collision and lodged a claim
with the defendant on 31 October 2024.
[6] Summons was served on the defendant on 6 March 2025 and when the
prescribed time period for the entering of an appearance to defend, namely
18 March 2025 had lapsed no such notice of intention to defend had been
served by the defendant.
[7] Noting that the defendant had not served a notice to defend, the plaintiff
proceeded to enrol the matter on the default judgment roll. This the plaintiff
did by notice of set down on the default judgment roll for 9 September 2025
to the defendant on 25 July 2025.
[8] The plaintiff then proceeded to serve the expert reports of the Orthopaedic
I .
3
Surgeon1 Occupational Therapist1 Industrial Psychologist and actuary on the
defendant during August 2025.
(9] The defendant was also served with a Rule 38(2) application on 5 September
2025.
[1 O] On the day before the default hearing the defendant served a notice of
intention to defend on the plaintiff and on the day of the hearing the defendant
served a plea on the plaintiff.
[11] The plaintiff applies for the notice. of intention to defend be set aside.
(12] At the commencement of the argument the defendanfs representative
indicated that despite being so invited by the court she does not intend
submitting any opposing papers or heads of argument and that she will
solely rely on oral argument presented from the bar.
Submissions by the applicant
(13] The defendant entered an appearance some six months after the prescribed
period for doing so had lapsed and after being duly informed that the plaintiff
will be proceeding on default judgment, receipt of the set down , the expert
reports and the application in terms of Rule 38(2).
(14] The merits are not contentious due to the nature of the incident as stated
under oath by the plaintiff in his Section 19 affidavit, which is in turn
confirmed by the information contained in the accident report compiled by
the police officer who attended to the scene. The quantum is furthermore
not substantial.
[15] The defendant filed no substantive application for postponement and
assumed that the entering of an appearance to defend will automatically
lead to a postponement affording the defendant additional time to settle the
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matter.
[16] The defendant brought no application for condonation for the late filing of
the appearance to defend, neither did it provide a basis for the filing of the
plea and that the defence of the matter is bona fide.
(17] The late filing of the appearance to defend amounts to a stratagem to buy
more time for the defendant and as such is an abuse of the process as the
purpose of entering an appearance to defend is to raise a defence that has
some merit.
Submissions by the defendant
[18] The defendant contended that Rule 19(5) provides that a defendant is at
liberty to enter and appearance to defend at any time before judgment is
granted. As the rule does not definitively preclude the filing of a notice of
intention to defend after the prescribed period of time within which it had to
be filed, the provisions of Rule 27, which deals with the extension of time is
not applicable to the time periods contained in Rule 19. Hence there is no
obligation to apply for condonation for the late filing of the notice or the
provision of any explanation for the lateness or the presence of a bona fide
defence to the claim.
Discussion
[19] This issue has served before the respective Gauteng courts on numerous
occasions and has these courts produced judgments in this regard of which I refer
to a selection which is not comprehensive.1 The mentioned decisions contain
1
Hug o v Road Accident Fund (055136/2022) [2024] ZAGPPHC 791 (12 Augus t 2024). Seronica Na thram v
Road Accident Fund 46876/2020, 26 April 2024). Delport v Road Accident Fund 10978/2020. Mcunu v
Road Accident Fund (37320/2022) [2024] ZAGPPHC 722 (22 July 2024). Mattheus v R oad Accident Fund
(32445/23) [2024] ZAGPPHC 1170 (18 No vemb er 2024). Mphuthi v Road Accident Fund (34766/2021)
(2024] ZAGPP HC 1205 (20 N ovember 2024). N yawo v Road Accident Fund (11267/2022). Mabaso v Roa d
Accident Fund (35840/2021). S.S.N . obo N .M . and Another v Road Accident Fund (34316/2020) [2025]
ZAGPPHC 615 (17 June 2025).
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extensive prescripts in respect of what the defendant should do in a situation
where a belated appearance to defend and plea is filed. Not only did the
defendant elect not to adhere to the detailed procedures prescribed in the
mentioned judgments but also elected not to favour the court with opposing
papers and heads of argument, despite being invited to do so. The defendant
simply submitted in argument that these judgments are not binding as they are
all single judge judgments. No authority for this submission was presented to the
court.
[20] It is trite that before a court can deviate from a previous judgment in the
same division the presiding judge must be convinced that the previous judgment
is clearly wrong.2
[21] The doctrine of stare decisis is not simply a matter of judicial comity it is a
manifestation of the rule of law which is one of the founding values of the South
African Constitution3 the purpose of which is to avoid uncertainty and confusion,
to protect vested rights and to uphold the dignity of the courts.4
[22] The standard for departure from a previous decision has been articulated
as clearly wrong or patently wrong5 and it is not permissible for a judge to prefer
a different conclusion or interpretation. The error in the previous judgment must
be manifest and indisputable.
[23] In R v Phillips Dairy (Pty) Ltd6 the court stated that a decision point by a
sister binds a single judge "unless the Court is completely satisfied that such
decision is clearly wrong, and has been arrived at by some oversight or
2 Camps Bay Ratepayers' and Residents' Association & another v Harrison & another 2011 (2) BCLR 121
(CC) par 28
3 Camps Bay (n 1 above)
4
Ex parte M inister of Safety and Security and Others: in re S v Walters and Another 2002 (4) SA 613 (CC )
paras 57, 59 & 61 ; Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA} paras 26 -30.
5 Camps Bay (n1 above). Ex parte: Sheriff Bloemfontein West (1889/2024) (2024) ZAF SHC 127 (1 July 2024)
par 24 &33
par 24 &33
6 1955 (4) SA 120 (TPD) 122C-D. See also: Bonnet v Department of Agricultural Credit and Land Tenure
1974 (3) SA 737 (TPD) at 743A.
6
misunderstanding, and that a palpable mistake has been made."
[24] The defendant advanced no argument to the effect that any of the
mentioned decisions are "clearly wrong," "has been arrived at by some oversight
or misunderstanding" and "that a palpable mistake has been made."
[25] I could find no reason to deviate from the principles articulated rn the
mentioned judgments.
[26] There is no condonation application, no explanation for the lateness of the
appearance to defend as required in te~ms of Rule 27.
[27] The plea of the defendant amounts to a bare denial and has the defendant
not identified any truly triable issues. Reference to Rule 19(5) as a guarantee of
procedural substance in these circumstances is misplaced7 as it is clear that the
only reason for the belated filing of the appearance to defend and the plea is for
tactical purposes to gain time. This contention by the plaintiff in his founding
affidavit was not denied by the defendant.
[28] The non-compliance with the Rules has been identified a cause for
concern.8
[29] The rules of court are not an end in themselves but a means to achieve
justice. These rules cannot be exhaustively detailed and consequently judicial
interpretation is unavoidable and such interpretation inherently serves as
guidance to litigants.9
[30] The most frequent and most important way in which courts provide guidance
7 Seronica Nathram (n 1 above)
8 G root Boom v National Prosecuting Au thority the Constitutional Court (2014) 1 BC LR 65 (CC) par 21
9 Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654C-F .
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is by means of reasoned judgments.10
[31] The inherent power of courts to regulate and direct their own processes also
entails the authority to provide guidance to litigants in circumstances where the
rules does not explicitly provide for.11
(32] Not only has the defendant not complied with the Rules, it has consistently
without substantiation refused to follow the guidance provided by the courts in
their interpretation of the Rules. The conduct of the defendant has resulted in
obstructing the proper flow of litigation and frustrating the opposing party.
(33] The rules of court are designed to ensure the proper, expeditious and
inexpensive adjudication of disputes.12 A consistent and continuous refusal to
adhere to the guidance of the court on the interpretation of the rules elevates the
non-compliant conduct beyond a mere technical breach and represents a
challenge to the authority of the court and amounts to a deliberate frustration of
the judicial process.
(34] Constantly engaging in an interpretation of the rules contrary to judicial
guidance resulting in inter alia procedural delays amounts to an abuse of court
process.13
Conclusion
(35] Based on the reasons above the notice of intention to defend is hereby set
aside as an abuse of process.
10 Szedlacsek v Szedlacsek, Van der Walt v Van der W alt and Warn er v Warner 2000 (4) SA 147 (E) at
149F -G. Uitenhage Transitional Local Coun cil v South A frican Revenue Service 2004 (1) SA 292 (SCA)
at para 6. M yeni v Organisation Un doing Tax A buse NPC and Another 2021 (1) SA 361 (GP ) at para 45.
Standard Bank of South Africa Ltd v Sa underson and Others 2006 (2) SA 264 (SCA). Absa Bank Ltd v
The Fann Klippan 490 CC 2000 (2) SA 211 (W) at 214J-215A.
1 1
Moulded Components and Rotomoulding So uth Africa (Pty) ltd v Coucourakis and Others 1979 (2) SA
457 (W) 462H -463B
12 Trans-African Insurance Co ltd v Ma luleka 1956 (2) SA 273 (A) at 278F-G .
13 Beinash v Wixley 1997 (3) SA 721 (SCA) at 7340-F.
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[36] The defendant shall pay the cost of the application on the scale as between
attorney and client.
E Raubenheimer
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISIONJOHANNESBURG
Electronically submitted
Delivered: This judgement was prepared and authored by the Acting 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 of the judgment is deemed to be 27 October 2025
COUNSEL FOR THE PLAINTIFFS :
INSTRUCTED BY :
COUNSEL FOR THE RESPONDENT:
INSTRUCTED BY :
DATE OF ARGUMENT :
DATE OF JUDGMENT :
Mr U Jordaan
Leon Van Rensburg Attorneys
Ms Ma khathini (State Attorney)
Road Accident Fund
11 September 2025
27 October 2025