SAFLII Note: Certain personal/privat e details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED YES/NO
DATE: 10/11/25
SIGNATURE
Case No: 27833/2016
In the matter between:
M B MALEBANE Applicant
and
ROAD ACCIDENT FUND Respondent
Case No: 92057/2019
In the matter between:
MEYER, ANNAMARIE Applicant
and
THE ROAD ACCIDENT FUND Respondent
Case No: 42813/2019
In the matter between:
HIRENA ALITA NDLOVU Applicant
and
THE ROAD ACCIDENT FUND Respondent
Case No: 95361/2016
In the matter between:
I[...] T[...] obo A[...] T[...] Applicant
and
THE ROAD ACCIDENT FUND Respondent
Case No: 101077/2023
In the matter between:
JOHANNA VIOLET PATEL Applicant
and
THE ROAD ACCIDENT FUND Respondent
Case No: 4714/2021
In the matter between:
ZANOVIA JANIS MEAS Applicant
and
THE ROAD ACCIDENT FUND Respondent
(This judgement was handed down electronically by circulation to the parties
and/or the parties’ representatives by email and by being uploaded onto the onli ne
file. The date and time for hand down is deemed to be 10h00 on 11 November
2025.)
JUDGEMENT
FARRELL, AJ:
[1] Of the approximately 200 applications that served before me in the
Special Interlocutory Court during the week of 01 September 2025, a
significant number of them were what I shall call Delinquency
Applications contemplated in and authorized by paragraph 4.9 of the
Revised Mediation Protocol Applicable in the Gauteng Division of the
High Court. 1 The majority (if not all) of the Delinquency Appl ications
were predicated on a respondent’s failure to have replied at all to a
applicant’s Amplified Rule 41A Notice. 2 What struck me, however, is
that most of the latter notices were perfunctory, were substantially
similar, lacked the substantive particul ars required by paragraph 4.6.2
of the Revised Mediation Protocol and were neither case sensitive nor
structured to meaningfully initiate court -annexed mediation as is
contemplated by the Revised Mediation Protocol. My increasing
impression was that Delinq uency Applications are being reduced to
little more than a tactical shortcut to the default judgement roll.
[2] In the result, I invited argument in appropriate cases on whether a
applicant may invoke the delinquent -party machinery for which
paragraph 4.9 of the Revised Mediation Protocol makes provision in
circumstances where the foundational Amplified Rule 41A Notice itself
lacks compliance with the substantive requirements of paragraph 4.6.2
of the Revised Mediation Protocol. After all, as a matter of princ iple and
1 Hereinafter “the Revised Mediation Protocol”.
2 I refer here to the Amplified Rule 41A Notices for which paragraph 4.6 of the Revised
Mediation Protocol makes provision.
authority, a defective initiating notice ought not to trigge r the delinquent
party regime in the Revised Mediation Protocol.
[3] The Revised Mediation Protocol was introduced on 22 April 2025 by
way of the Revised Directive Introducing Mandatory Media tion in the
Gauteng Division.3 The Mediation Directive was adopted to address an
acute civil trial backlog. The policy is to divert suitable cases out of the
congested trial roll and to restore timely access to justice. Uniform Rule
41A is the foundational rule to the Revised Mediation Protocol.
However, the Revised mediati on Protocol supplements the rule by
creating a structured, court -annexed system aimed at relieving trial
congestion.
[4] The Revised Mediation Protocol prescribes, inter alia, the process and
content for both an Initial Rule 41A Notice, as well as an Amplified Rule
41A Notice. Both notices, to the extent possible and applicable, ought
to stipulate the matters for which paragraph 4.6.2 of the Revised
Mediation Protocol makes provision.
[5] The Revised Mediation Protocol, in addition, creates a delinquent party
regime in paragraph 4.9. That paragraph provides for a compulsion
order against a defined “delinquent party ” and permits access to the
default judgement court in the event of persistent delin quency. To my
mind, the textual architecture of the delinquent party regime
presupposes that only a compliant initiating Rule 41A or Amplified Rule
41A notice can commence the countdown to delinquency. Additionally,
3 Hereinafter “the Mediation Directive”.
the broad remit of paragraph 4.9.1 of th e Revised Mediation Protocol 4
suggests that the sanctions for which p aragraphs 4.9.2 and 4.9.3 of the
Revised Mediation Protocol make provision should not be licensed on
the back of a notice that itself does not comply with paragraph 4.6.2.
The policy of t he Mediation Directive is not served by weaponizing
defective notices to force an opponent into default judgement court. It is
rather served by good faith compliance with its terms.
[6] Paragraph 4.6.2 of the Revised Mediation Protocol outlines eight
matters which ought to be traversed in a Rule 41A or an Amplified Rule
41A No tice. Those matters have likely been included in paragraph
4.6.2 of the Revised Mediation Protocol to ensure early and meaningful
engagement between the parties, to provide the Court with sufficient
reassurance about how the mediation will be managed, to facilitate
case management, to promote focused mediation, to build discipline
into the mediation process, to front -load the mediation process, to align
the mediation with the nature and co mplexity of the case and,
ultimately, to clear the court roll backlog . Paragraph 4.6.2 of the
Revised Mediation Protocol is designed to ensure that mediation is fit
for purpose and not merely a procedural hoop.
[7] The stipulations in paragraph 4.6. 2 of the Re vised Mediation Protocol
include the following:
4 That paragraph does not limit delinquency to a failure to respond or to adequately respond
to a Rule 41A or Amplified Rule 41A Notice. It also defines a delinquent party as one that
fails t o co -operate in the furtherance of the mediation process in accordance with the
Mediation Directive and the Revised Mediation Protocol.
[7.1] The name and relevant details of one or more of the proposed
mediators.5 The purpose of this paragraph is to force early,
meaningful engagement on the mediator. It is the precursor to
either agreement or triggering the umpire pathway;
[7.2] The common cause facts and the facts in dispute. The purpose
of this paragraph is to facilitate a crisply bound dispute. Generic
recitals and the replication of pleadings fails to attain this
objective;
[7.3] The disputed fac ts that ar e resolvable by admissions. The
purpose of this paragraph is to identify low hanging fruit for
narrowing the divide. It ought to be tailored to the case;
[7.4] The expert evidence. The purposes of this paragraph are to
facilitate a different mediation design, to avoid ambush, to
assess complexity and to support the consideration of a single
expert;
[7.5] The procedural aspects and timelines that can be agreed. The
purpose of this paragraph is to promote mediation as a case
management tool. Agreements on proce dure can also unlock
settlement.
[7.6] The response period. The purposes of the paragraph is to
ensure disciplined exchanges, ensure alacrity in the mediation
process and avoid drift;
5 Paragraph 4.6.2.2
[7.7] Any other material issues. The purpose of the paragraph is to
provide a safety valve for case specific complexities.
[8] Together, the requirements of paragraph 4.6.2 are intended to
transform mediation from a perfunctory gesture to a meaningful, early
engagement mechanism consistent with the Mediation Directive. As
such, they are not optional embellishments, but conditions precedent to
the delinquent party regime. To view it differently subverts the policy of
the Mediation Directive and morphs a cooperative mechanism to a
tactical path to the default judgement court.
[9] As I have said, Rule 41A i s the foundational rule to the Revised
Mediation Protocol. According to paragraph 2.2.4 of that protocol,
nothing in either the Mediation Directive or the Revised Mediation
Protocol detracts from the right of parties to refer their dispute to
mediation in accordance with the provisions of Rule 41A or otherwise
by agreement between them, or from a Judge, or a case management
Judge referred to in Rule 37A, to direct the parties to consider referral
of the dispute to mediation as contemplated in Rule 41A(3). Put simply,
voluntary mediation outside the remit of the Revised Mediation Protocol
and in terms of Uniform Rule 41A remains unaltered and intact.
[10] Against this background, given my concerns about a possible abuse of
Delinquent Applications, and in response to my invitation outlined in
paragraph 2 above, the following salient points were argued before me:
[10.1] first, a Directive that is not in line with the Uniform Rules of
Court is invalid. 6 Resultantly, any provision in the Revised
Mediation Directive which is n ot consonant with Uniform Rule
41A is invalid. Paragraph 4.6.2 of the Revised Mediation
Protocol imposes obligations on the parties that exceed the
provisions of, and is thereby not consonant with, Rules
41A(2)(a) to (c). To that extent, paragrap h 4.6.2 of the Revised
Mediation Protocol is invalid;
[10.2] second, all that Uniform Rules 41A(2)(a) to (c) require is a
Notice compliant with Form 27 of the First Schedule to the
Uniform Rules of Court. There are no further minimum
requirements. A litigant is thus not ob liged to comply with the
stipulations in paragraph 4.6.2 of the Revised Mediation
Protocol. Those stipulations are “mere guidelines”;
[10.3] third, to require that the stipulations outlined in paragraph 4.6.2
of the Mediation protocol ought to be includ ed in an A mplified
Rule 41A Notice would be inconsistent with Uniform Rule
41A(2)(c) and, to that extent, the requirement is invalid. The
mere service of and lack of response to a Form 27 Notice is
thus sufficient to entitle a litigant to access the delinquency
pathway in paragraph 4.9 of the Revised Mediation Protocol;
[10.4] fourth, for a court to scrutinise an Amplified Rule 41A Notice
would violate the privilege imperative in Uniform Rule
6 Reliance was placed on Malebana v Road Accident Fund 2025 JDR 0151 (GP) for this
proposition.
41A(2)(d). In the result, judicial oversight of the Revised
Mediation P rotocol te rminates once a litigant produces
satisfactory evidence of their intention to mediate. It is
impermissible for a Court to enquire beyond whether there is a
Form 27 compliant notice, and, more specifically, to enquire
into whether there has been compliance with paragraph 4.6.2 of
the Revised Mediation Protocol; and
[10.5] fifth, this court need not exercise a supervisory role over the
adequacy or otherwise of the Amplified Rule 41A notices that
serve before it, as non -compliance falls for future determina tion
in ac cordance with the enforcement mechanisms outlined in
paragraph 4.10 of the Revised Mediation Protocol.
[11] I briefly deal with these submissions.
[12] It is correct that an Amplified Rule 41A Notice and a response to it are
essentially notices in terms of sub-Rule 41A(2).
[13] It is well established that practice directives may not derogate from or
override statutes, the common law or the Uniform Rules of Court. They
may not override Rules based entitlements. They are merely
procedural-administrative instruments that fac ilitate and streamline the
daily functioning of court operations. 7 However, courts may enforce
properly issued, Rule consistent directives, but may not thereby deny
Rule based rights or deny access to justice. It is thus correct that
7 National Director of Public Prosecution (Ex parte application) 2018 (2) SACR 176 (SCA)
(31 May 2018) at [30] and [31]; Frank Mhlongo and Others v Tryphinah Mokoena N O and
Others (723/20) [2022] ZASCA 78 (May 2022) at [12] and [13]; In re several matters on the
urgent court roll 18 September 2012 [2012] 4 All SA 570 (GSJ) at [10] to [14]
paragraph 4.6.2 of the Revised Mediation Protocol must not derogate
from or override Uniform Rule 41A for, if it does, it is invalid.
[14] The Revised Mediation Protocol requires that an Initial or Amplified
Rule 41A Notice delivered pursuant to the Revised Mediation Proto col
must comply with Uniform Rule 41A. This much is plain from
paragraphs 4.2, 4.5.1, 4.5.2 and 4.7. As a general proposition, the
Revised Mediation Protocol thus reinforces the need to comply with
Uniform Rule 41A. In fact, paragraph 2.1.2.1 says as much. It does n ot
seek to override or detract from Rule 41A. Paragraph 4.7 of the
Revised Mediation Protocol makes it plain that the parties, with cogent
reason, even retain the right to oppose referral to mediation.
[15] Paragraph 4.6.2 of the Revised Mediation Pr otocol req uires the
inclusion of 8 stipulations in the Rule 41A Notice. The stipulations are
in addition to the information prescribed by Rule 41A. This much is
plain from paragraphs 4.5.2 and 4.6 .2. The stipulations neither detract
from nor override the requirement s contained in Uniform Rules
41A(2)(a) to (c). They merely constitute internal case management
particulars that facilitate court -annexed mediation . In addition, and for
the reasons which I have outlined in paragraphs 3,6,7 and 8 of this
judgement, the incl usion of those stipulations is in the interests of
justice. The reference to Form 27 of the First Schedule in Rule
41A(2)(c) merely imposes form and not substance. The substance
required by that sub -Rule is expressly preserved by the Revised
mediation Prot ocol. In the result, paragraph 4.6.2 of the Revised
----
Mediation Protocol merely facilitates Rule 41A attain ing the laudable
policy objective of the Mediation Directive. It is not invalid.
[16] Nothing contained in the Revised Mediation Protocol requires of a
litigant to file a Rule 41A or an Amplified Rule 41A Notice with the
Registrar, whether at all, or whether to access the delinquency pathway
in Paragraph 4.9 of the Revised Mediation Protocol. The Special
Interlocutory Court is capacitated to supervise complia nce with the
Revised Mediation Protocol without violating the privilege for which
Rule 41A(2)(d) provides. The privilege in that Rule protects content, not
procedural facts.
[17] Rule 41A(2)(d)8 stipulates that the notices in sub -Rule 41A(2) shall be
without prejudice and shall not be filed with the Registrar. The purpose
of this Rule is to protect bona fide settlement communications between
the parties. The effect of the Rule is to confer privilege on those
exchanges. The privilege is joint, at least where both parties have
complied with the Rule. In the latter event, and generally speaking, the
notices are inadmissible absent a recognised exception or mutual
waiver.
[18] In the cases before me, the applicants attached to and relied upon the
Amplified Rule 41A Notices in their Delinquency Applications. No claim
to privilege was made before me. I was not asked to strike out the
Amplified Rule 41A Notices. To my mind, this conduct evidences the
8 Subject to the provisions of sub-Rule 41A(9)(b).
applicants’ intention to waive privilege in respect of those notices and
constitutes implied or imputed waiver of privilege by the applicants.9
[19] None of the respondents had filed responding notices in terms of Rule
41A(2)(b), read with the Revised Mediation Protocol at all. There were
thus no notices in terms of Rule 4 1A(2)(b) t o which the respondents
could claim privilege. There were no simply no Rule 41A attempts at
bona fide settlement by the respondents. In addition, the respondents
neither objected to the applicants’ unilateral disclosure of those notices,
nor opposed the ap plications. To the extent that joint privilege may
have arisen in relation to the applicants’ Amplified Rule 41A Notices
(which I doubt) , the respondents conduct similarly evidences an
intention to waive that privilege and constitutes implied or imputed
waiver of privilege by the respondents.
[20] In the result, either:
[20.1] no joint privilege arose in respect of the applicants’ notices in
terms of the Amplified Rule 41A. The privilege was that of only
the applicants. The applicants were entitled to and did
unilaterally waive privilege to those notices; or
[20.2] any joint privilege that may have arisen , was mutually waived
by the parties.
9 Naidoo v Marine & Trade Insurance Co Ltd 1978 (3) SA 666 (A); Contango Trading SA v
Central Energy Fund SOC Ltd 2020 (3) SA (SCA) at [41] to [53], albeit in the context of
legal privilege; KLD Residential CC v Empire earth Investments 17 (Pty) Ltd 2017 (6) SA
55 (SCA).
[21] Where there is waiver of the privilege bestowed by Uniform Rule
41A(2)(d) the supervisory court may have recourse to the Amplif ied
Rule 4 1A notice itself. Where there is no waiver of that privilege, a
procedural compliance affidavit ought to suffice for purposes of seeking
relief in terms of paragraph 4.9 of the Revised Mediation Protocol. 10
Thus, no privilege needs to be pierced to supervise compliance.
[22] Last, it is discordant to argue that the very court that is capacitated to
invoke the enforcement mechanisms in paragraph 4.10.2 of the
Revised Mediation Protocol, ought not to satisfy 11 itself that the
Amplified Rule 41A Notice is c ompliant w ith paragraph 4.6.2 of that
protocol.
[23] The arguments before me are not the last word, however.
[24] It is well established that where a court ’s machinery is invoked by a
litigant for an improper purpose or to divert it from its true course, such
conduct constit utes an abuse of process. 12 After all, process ought to
vindicate rights not leverage procedural advantages. Using a facially
non-compliant Rule 41A or Amplified Rule 41A Notice to expedite
access to the default judgement court undermines the Medi ation
Directive and perverts the Revised Mediation Protocol. In those
circumstances, relief ought not to be granted.
10 The affidavit can verify that each stipulation in paragraph 4.6.2 of the Revised Mediation
Protocol was substantively addressed in the Rule 41A or Amplified Rule 41A Notice
without disclosing or traversing the content of the notice.
11 Whether based on a procedural compliance affidavit or, in appropriate cases, the notice
itself where there has been waiver of privilege.
12 Nathram v Road Accident Fund (46876/2020) [2024] ZAGPPHC 440 (26 April 2024);
Beinash v Wixley 1997 (3) SA 721 (SCA) at 734F -G; Price Waterhouse Coopers Inc and
Others v National Potato Co -operative Ltd [2015] 2 All SA 403 (SCA) (4 Mar ch 2015) at
[50].
[25] I now briefly deal with the individual matters in which I reserved
judgement.
Malebane:
[26] Privilege to the Amplified Rule 41A Notice was waived. 13 The Amplified
Rule 41A Notice is dated 25 April 2025.
[27] The Amplified Rule 41A Notice is manifestly perfunctory, largely rote
and strikes one as boilerplate text. It, in addition, lacks the substantive
particulars required by paragraph 4.6.2 of the Rev ised Media tion
Protocol.
[28] The applicant has dedicated a substantial portion of the Amplified Rule
41A Notice to the issue of liability. He states in the notice that:
[28.1] the mediation may assist in resolving the issue of liability
(including merits and causation) or iden tify issues in relation to,
inter alia, liability in a relatively expeditious and inexpensive
manner;
[28.2] he proposes that mediation on the question of liability be
undertaken first. He additionally proposes and lists the
documents “by virtue of the availability” of which the merits can
be mediated.
13 CaseLines, pages 000(c)-29 to 000(c)-32.
[29] The issue of the defendant’s liability was finally resolved by agreement
and ordered by this court on 17 January 2020. This is more than 5
years prior to the Amplified Rule 41A Notice.
[30] To my mind, this in itself is rather compelling evidence that the
applicant paid no heed to the facts of the case and made no concerted
and bona fide effort to attain the policy objectives of the Mediation
Directive or to comply with the spirit and letter of the mediation pro tocol
when drafting the Amplified Rule 41A Notice. It justifies the reasonable
inference that the Amplified Rule 41A Notice was a mere tick box
exercise. This alone justifies a dismissal of the application.
[31] Although my conclusion in paragraph [31] is dispositive , the follwong
bears noting. The applicant’s Amplified Rule 41A Notice neither
contemplates nor stipulates the common cause and disputed facts at
all. In argument, it was contended that this is to be determined from the
pleadings. This is not what t he Revised Mediation Protocol requires. It
does not list disputed facts that might reasonably be resolved by
admissions at all. In argument it was contended that these issues are
canvassed in the expert notices and are determined by the pleadings.
This is not what t he Revised Mediation Protocol requires. No
procedural aspects and timelines applicable to the further conduct of
the matter were meaningfully traversed. In argument it was contended
that requiring of the defendant to respond to the Amplified Rule 41A
Notice within 10 days satisfies this requirement, in addition to the
following paragraph in the notice:
“Plaintiff believes that some, if not all issues may be resolved
through mediation. An agreement defining the ambit of the
mediation will also assist the p rocess as determined by the
rule.”
This paragraph defies meaningful interpretation within the context of
paragraph 4.6.2.6 of the Revised Mediation Protocol.
[32] Given the policy objectives of the Mediation Directive and having
regard to the purpose of paragra ph 4.6.2 of the Mediation Protocol, I
am not satisfied that the Amplified Rule 41A Notice in this case is
anything more than a perfunctory gesture shorn of intent to either meet
the true objectives of the Mediation Directive or to comply with the
stipulations in paragraph 4.6.2 of the Mediation Protocol.
[33] The applicant’s Amplified Rule 41A Notice does not clear the threshold
for relief offered by paragraph 4.9 of the Mediation Protocol.
[34] The application is, therefore, dismissed with costs.
[35] The appl icant is g ranted leave to file a further Amplified Rule 41A
Notice within 10 days from the date of this judgement.
[36] I am indebted to counsel for their instructive submissions.
Meyer:
[37] Privilege to the Amplified Rule 41A Notice was waived.14
14 CaseLines, pages I34 to I39.
[38] The Amplified Rule 41A Notic e is confined to and conforms with
Form 27 of the First Schedule read with Rule 41A(2)(a). Beyond listing
three names (with no further particulars) it neither refers to nor attempts
to comply with any the further stipulations in paragraph 4.6.2 o f the
Revised Mediation Protocol.
[39] In the result, the applicant’s Amplified Rule 41A Notice is non-compliant
with the Revised Mediation Protocol.
[40] The application is therefore dismissed with costs.
[41] The applicant is granted leave to file a further Amplified Rule 41A
Notice within 10 days from the date of this judgement.
Ndlovu:
[42] Privilege to the Amplified Rule 41A Notice was waived.15
[43] The Amplified Rule 41A Notice is divided into two distinct parts. The
first part conforms with Form 27 of the First Schedule read with Rule
41A(2)(a). The second part traverses the matters for which paragraph
4.6.2 of the Revised Mediation Protocol makes provision.
[44] I am satisfied that the applicant has applied her mind to the Amplified
Rule 41A Notice and has substantially fulfilled the spiri t of the Revised
Mediation Protocol. However, no case is made out for a punitive costs
order.
15 CaseLines, pages 04-3 to 04-7.
[45] In the result, I grant the following order:
[45.1] The respondent is ordered to reply to the applicant’s Amplified
Rule 41A Notice dated 05 June 2025 within 10 days from the
date of this order.
[45.2] The respondent is ordered to pay the costs of this application
on the party and party scale.
T[...]:
[46] Privilege to the Amplified Rule 41A Notice was waived.16
[47] The applicant’s Amplified Rule 41A Notice conflates and does not
readily distinguish between Rule 41A(2)(a) and paragraph 4.6.2 of the
Revised Mediation Protocol.
[48] The applicant’s Amplified Rule 41A Notice is a desultory and formulaic
reproduction of the key phrases contained in paragraph 4.6.2 of the
Revised Mediatio n Protocol which fail to obfuscate that, first, the
applicant has not complied with its provisions and, second, the
applicant has had no regard to the case itself in preparing the notice.
[49] The applicant states in the Amplified Rule 41A Notice that:
[49.1] there are no issu es that might reasonably be resolved by
admissions;
16 CaseLines, pages 0001-22 to 0001-257.
[49.2] expert evidence is essential, that the applicant has filed all their
reports and that the respondent can consider the “loss of
support of the matter” fully;
[49.3] they have industrial psychology exper t evidence and an
actuarial calculation;
[49.4] there is no need to appoint a single expert on a given issue;
[49.5] the respondent has not provided medico legal reports nor has
the respondent given any indication of its intention to appoint
experts;
[49.6] the respondent has not objected to the plaintiff’s expert reports.
The applicant then calls on the respondent to deliver Rule 36(2) and
36(9)(a) Notices within 14 days of the Amplified Rule 41A Notice if it
intends appointing its own experts.
[50] Even the most cursory contrast ing of app licant’s Amplified Rule 41A
Notice with the facts of the matter illustrates that the notice was not
spawned or composed with the intent of attaining meaningful
engagement with the respondent through mediation.
[51] The case file reveals the following:
[51.1] the applicant’s claim is a loss of support claim;
[51.2] the respondent has admitted that the deceased died as a result
of the injuries sustained by him in the motor vehicle collision
that occurred on 14 March 2015;17
[51.3] the respondent has already obtained an exper t opinion from an
industrial psychologist. It was done in 2019 already;18
[51.4] the respondent has already filed an actuarial calculation. It was
done in 2021 already;19
[51.5] the parties’ industrial psychologists have already brought out a
joint minute. It was done in 2019 already;20
[51.6] the disputes between the industrial psychologists concerning
the deceased’s career trajectory and associated earnings, and
the salary scales to be used to calculate the prospective
earnings, are limited;21
[51.7] there are no disputes concerning t he the bas is for calculating
the dependents’ losses of support;22
[51.8] the respondent has admitted the expertise of the applicant’s
experts;23
17 CaseLines, page 005-3
18 CaseLines, section 010 and page 005-5.
19 Ibid.
20 CaseLines, section 011 and page 005-6.
21 Ibid.
22 Ibid.
23 CaseLines, pages 005-04 and 005-05
[51.9] the respondent has essentially confirmed that it accepts the
agreements reached between the experts;24
[51.10] an actuarial report based up on the expert joint minutes has
already been prepared;25
[51.11] the respondent requested an unabridged birth certificate of the
minor child at the pre -trial conference on 15 October 2019 to
facilitate settlement of the claim. 26 It has still not been
discovered.27
[52] The facts of the case bear no resemblance to the content of the
Amplified Rule 41A Notice. It seems fair to conclude that the applicant
paid little or no heed to the facts of the case and had no bona fide
intent to meet the policy objectives of the Mediation Directive or to
comply with the spirit and letter of the mediation protocol when drafting
the Amplified Rule 41A Notice. It again justifies the reasonable
inference that the applicant’s Amplified Rule 41A Notice was merely
tokenistic.
[53] The application is, therefore, dismissed with costs.
[54] The applicant is granted leave to file a further Amplified Rule 41A
Notice within 10 days from the date of this judgement.
Patel:
24 Ibid.
25 CaseLines, page 008-40 onwards.
26 CaseLines, pages 005-2 and 005-7.
27 CaseLines, section 007.
[55] Privilege to the Amplified Rule 41A Notice was waived.28
[56] The materially different facts in thi s case (when contrasted, for
example, with those in paragraph [51]), lead me to conclude that that
the applicant has applied her mind to the Amplified Rule 41A Notice
and has substantially fulfilled the spirit of the Revised Mediation
Protocol. The relativ e brevity and the limited stipulations contained in
the notice are commensurate with the narrow disputes, which are
limited to the following:
[56.1] the provision to the applicant of an undertaking in terms of
Section 17(4)(a) the Road Accident Fund Act, 1996 (Ac t 56 of
1996); and
[56.2] the quantification of general damages, the respondent having
already accepted that the injury is “serious” in terms of
Regulation 3 of the Road Accident Fund Regulations, 2008.
[57] I am not satisfied that a case has been made out f or a punit ive costs
order against the respondent.
[58] In the result, I grant the following order:
[58.1] The respondent is ordered to reply to the applicant’s Amplified
Rule 41A Notice dated 17 June 2025 within 10 days from the
date of this order.
28 CaseLines pages 001-35 to 001-40.
[58.2] The respondent is ordered to pay the costs of this application
on the party and party scale.
Meas:
[59] Privilege to the Amplified Rule 41A Notice was waived.29
[60] The facts in this case lead me to conclude that that despite the
relatively brief stipulations in the applicant’s Amplif ied Rule 41A Notice,
the applicant has applied her mind to the Amplified Rule 41A Notice
and has substantially fulfilled the spirit of the Revised Mediation
Protocol. In reaching this conclusion, I have had regard to, inter alia ,
the fact that the respondent has ess entially absented itself from the
litigation. Beyond entering an appearance to defend the action in 2023,
the respondent has not participated at all in the litigation . There is no
plea, there are no pre -trial conference minutes and there are no j oint
expert minutes from which the applicant can extract the information
outlined by the stipulations in paragraph 4.6.1 of the Revised Mediation
Protocol; and
[61] I am not satisfied that a case has been made out for a punitive costs
order against the respondent.
[62] In the result, I grant the following order:
29 CaseLines pages 0001-25 to 0001-28.
[62.1] The respondent is ordered to reply to the applicant’s Amplified
Rule 41A Notice dated 11 June 2025 within 10 days from the
date of this order.
[62.2] The respondent is ordered to pay the costs of this application
on the party and party scale.
_________________________
S T FARRELL
ACTING JUDGE OF THE HIGH COURT
PRETORIA
M B MALEBANE v ROAD ACCIDENT FUND Case No: 27833/2016
Counsel on behalf of applicant:
R J de Beer SC
R G Bowles
Instructed by: Surita Marais Attorneys
Ref: S Marais/ME7548
MEYER, ANNAMARIE v ROAD ACCIDENT FUND Case No: 92057/2019
Counsel on behalf of applicant:
L van Eeden
Instructed by: Gert Nel Incorporated
Ref: I I Martens/KB/GN13577
HIRENA ALITA NDLOVU v ROAD ACCIDENT FUND Case No: 42813/2019
Counsel on behalf of applicant:
L van Eeden
Instructed by: Gert Nel Incorporated
Ref: C Roux/KB/GN12750
I[...] T[...] obo A[...] T[...] v RAF Case No: 95361/2016
Counsel on behalf of applicant:
B Smith
Instructed by: Jacobus Attorneys
Ref: A B Jacobus/AT1266
JOHANNA VIOLET PATEL v RAF Case No: 101077/2023
Counsel on behalf of applicant:
B Smith
Instructed by: Jacobus Attorneys
Ref: A B Jacobus/AP1559
ZANOVIA JANIS MEAS v RAF Case No: 4714/2021
Counsel on behalf of applicant:
B Smith
Instructed by: Jacobus Attorneys
Ref: A B Jacobus/AM1450