THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO. 2025-057581
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
In the matter between:
E[…] B[…] M[…] (M[…])
OBO S[…] M[…] ,
H[…] M[…] ,
X[…] M[ ...] PLAINTIFF
and
ROAD ACCIDENT FUND DEFENDANT
___________________________________________________________________
JUDGMENT
___________________________________________________________________
BHOOLA AJ,
Introduction
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[1] The plaintiff, Ms E […] B[… ] M[…] who acts on behalf of her three minor
children, S[…] M[…] , H[…] M[…] and X[…] M[…] , institutes action against the Road
Accident Fund (RAF) seeking damages arising from a motor vehicle collision which
occurred on 3 March 2022, near Konig Street and Sir George Grey Street,
Roodepoort, Johannesburg, Gauteng Province, where the biological father of the
plaintiff’s minor children sustained severe bodily injuries of which he died.
[2] The plaintiff seeks relief on behalf of the minor children are-:
2.1. past loss of earnings
2.2 future loss of earnings
2.3 funeral expenses.
[3] The issue of funeral expenses is postponed sine die.
[4] The summons was served on the defendant on 30 April 2025. The dies for
filing a notice of intention to defend has expired and the plaintiff proceeds by way of
default judgment in terms of Rule 32, read with Rule 38(2) of the Uniform Rules.
[5] The parties have reached a settlement agreement, which they request to be
made an order of court.
Legal Principles
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[6] The Constitutional Court in Eke v Parsons 1 established that a settlement
agreement may be made an order of court if:
(a) litigation is pending;
(b) the agreement relates directly to the dispute between the parties; and
(c) the agreement is competent and proper, serving the interests of justice.
[7] In RAF matters, the Supreme Court of Appeal has confirmed that once
litigation is pending, a settlement agreement resolving the dispute should ordinarily
be made an order of court, unless it is incompetent or contrary to public policy.2
[8] More recently, the Constitutional Court in Mafisa v Road Accident Fund 3
emphasised that courts must respect the terms agreed by the parties and may not
rewrite them.
[9] Liability had previously been settled at 100% in favour of the plaintiff. The
issue of general damages has also been settled. The present settlement agreement,
quantifies damages for loss of earning capacity, provides for an undertaking in terms
of section 17(4)(a) of the Road Accident Fund Act 56 of 1996, and deals with costs.
It is directly connected to the dispute, lawful in its terms, and consistent with the
statutory framework.
Conclusion
1 (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (29 September 2015)
2 PM obo TM v Road Accident Fund [2019] ZASCA 97
3 [2024] ZACC [4]
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[10] I am satisfied that the agreement meets the criteria set out in Eke v Parsons 4
and subsequent RAF authorities. It is therefore competent and proper to make the
settlement agreement an order of court.
Order
[11] As a result, I make the following order-:
1. The application in terms of Rule 38(2) is granted.
2. The settlement agreement entered into by agreement between the
parties, is made an order of court as follows.
3. Merits are conceded 100% in favour of the Plaintiff’s proven damages.
4. That the defendant shall pay the plaintiff’s attorneys of record the sum of
R 1 845 876.00 (ONE MILLION EIGHT HUNDRED AND FORTY- FIVE
THOUSAND EIGHT HUNDRED AND SEVENTY- SIX THOUSAND RANDS.)
in respect of the plaintiff’s claim of past and future loss of support of the minor
children namely:
4.1 S[…] M[…] – R 440 853.00
4.2 H[…] M[…] – R 547 918.00
4.3 X[…] M[…] – R 856 105.00
5. The issue of Funeral Expenses is postponed sine die.
6. The above-mentioned amount shall be paid within 180 days from the
date of court order into Maphaha Attorneys’ trust account as follows:
ACCOUNT HOLDER: MAPHAHA ATTORNEYS TRUST
NAME OF THE BANK: FIRST NATIONAL BANK
4 (CCT 156/22) [2024] ZACC 4; 2024 (6) BCLR 805 (CC); 2024 (4) SA 426 (CC) (25 April 2024)
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ACCOUNT NUMBER: 6[… ]
BRANCH: W[… ]
PLAINTIFF’S REF: RE0312/M[… ]
7 The Plaintiff’s attorneys (MAPHAHA ATTORNEYS) are ordered:
7.1 To cause a trust (“the TRUST”) to be established in accordance
with the Trust Property Control Act No. 57 of 1998 on behalf of the minor
children, upon receiving payment from the defendant.
7.2 The Plaintiff’s attorneys (MAPHAHA ATTORNEYS) must keep the
monies received on behalf of S […] M[…] , H[…] M[…] and X[…] M[…] ,
as set out in clause 5.1 of this order in an interest bearing Trust account
for the benefit of S[…] M[…] , H[…] M[…] and X[…] M[…] and shall only
be allowed to pay such monies over to the Trustee of the Trust to be
created in terms of clause 5.1 of this order, once the Master of the High
Court has issued the Trustee with the necessary letter of authority;
7.3 The Plaintiff in her representative capacity on behalf of S[…]
M[…] , H […] M[…] and X […] M[…] attorneys of record (MAPHAHA
ATTORNEYS) shall attend to the creation of an inter vivos Trust in order
to protect the awarded funds to the exclusive benefit of S[…] M[…] , H[…]
M[…] and X[…] M[…] , The Trustee shall be obliged to furnish security to
the Master in accordance with paragraph 2 supra.
7.4 The Defendant is ordered to pay the costs in respect of the
creation and future administration of the said Trust to be formed in order
to manage and administer the compensation payable to S […] M[…] ,
H[…] M[…] and X[…] M[…] (in terms of Trust Property Control Act, 57 of
1988) as referred to in paragraph 1 of this order, which costs shall
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include the fees of the Trustee, and which costs of administration shall be
limited to the amount of costs and fees chargeable by Curators Bonis in
terms of the Administration of Estate Act, Act 66 of 1965, as amended.
7.5 Upon establishment of a Trust and opening of a bank account of
the Trust, the Plaintiff’s Attorneys shall pay the capital amount as referred
to in paragraph 1 above, into the Trust’s said bank account for the benefit
of S[…] M[…] , H[… ] M[…] and X[…] M[…] .
8. The Plaintiff is liable for the payment of all the reasonable costs of the
Trustees appointed, in respect of the establishment of the Trust and any other
reasonable costs that the Trustees may incur in the administration thereof
which may include and ne subject to the following:
8.1 The Fees and administration costs shall be determined in
accordance with the Trust Property Control Act, 57 of 1988 (the Trust
Act), as amended from time to time, and shall include not be limited to
disbursements incurred.
8.2 The costs associated with the yearly audit of the Trust by a
chartered accountant as determined in the Trust Deed.
8.3 The reasonable costs of furnishing of security in obtaining
required by the Master of the High Court, or to meet the requirements
of the Master of the High Court.
9. The terms of the trust are as follows:
9.1 The TRUSTEES of this trust are ABSA TRUST LIMITED as
represented by its nominee from time to time and the minor children’s
mother, E […] B[…] M[…] as the second Trustee. The nominee an
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employee of ABSA TRUST LTD, whose written consent to act as
Trustee in the Trust and trust deed are annexed hereto marked "M1"
and “M2” respectively.
9.2 The TRUSTEE shall be entitled to resign from his office after
having given at least 30 (thirty) days written notice of such resignation
to the FOUNDER, before the resignation takes effect.
9.3 Should the TRUSTEE for any reason whatsoever no longer fulfil
the office of trustee, the FOUNDER shall be entitled to appoint another
person as trustee, who shall then occupy the office subject to the
provisions of this Deed.
9.4 The donor hereby donates to the Trustees the sum R
1 845 876.00 (ONE MILLION, EIGHT HUNDRED AND FORTY- FIVE
THOUSAND, EIGHT HUNDRED AND SEVENTY- SIX THOUSAND
RANDS), Less any Fees, VAT, Disbursements and Costs, which shall
vest in the Trustees with immediate effect and is to be held in Trust and
administered in accordance with the provisions of this Trust Deed. It is
hereby confirmed that the creation of this trust is not a donation but a
payment for compensation as a result of an action against the ROAD
ACCIDENT FUND.
9.5 The BENEFICIARIES are: S [… ] M[… ], H […] M[…] and X […]
M[…] .
9.6 The beneficiaries will have immediate vested rights in the trust
fund.
9.7 For so long as any capital remains, or any portion thereof, the
TRUSTEES may in their sole discretion, make such payment of the
income, and in such amounts as they shall decide for reasonable
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maintenance or for any other purposes which they may decide to be in
the BENEFICIARIES' interest. If the income is not sufficient for the
purpose the trustees may utilise capital. Any surplus income not
utilized for the purposes set out herein shall be capitalised.
9.8 The trust shall terminate by leave of the high court. The TRUST
shall exist for a period until each minor child reaches the age of 18
years, respectively, where after the residue of the money of each child
in accordance with their own portion of settlement held in the Trust
Fund will be deposited into their own respective bank accounts of their
choice.
9.9 To accept any further amounts or endowments on behalf of the
beneficiaries.
9.10 POWERS OF TRUSTEE: The TRUSTEE shall have unlimited
and absolute power, for the purposes of this trust, in its sole and
absolute discretion, to:
9.10.1 Exchange, replace, re- invest, sell, let, insure, manage, modify,
develop, improve, convert to cash or deal in any other manner with any
asset which from time to time form part of the TRUST FUNDS with the
consent of the beneficiary.
9.10.2 Provide for the day to day care of the beneficiary as and when
such needs arise. This includes, but is not limited, to various aspects of
the health, educational, daily and social needs of the beneficiary.
9.10.3 Institute or defend any legal proceedings or otherwise to take
any other steps in any court of law or other tribunal and to subject
controversies and disagreements to arbitration.
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9.10.4 To call up and/or collect any amounts that may from time to time
become due to the TRUST FUND.
9.10.5 Settle or waive any claim in favour of the trust.
9.10.6 Exercise any option and to accept and exercise any rights.
9.10.7 Exercise any rights or to incur any obligation in connection with
any shares, stocks, debentures, mortgage bonds or other securities or
investments held by this trust.
9.10.8 Open accounts at any bank or other financial institution and to
manage such accounts and if necessary, to overdraw such account.
9.10.9 Take advice from any attorney or advocate or any other expert
for the account of the relevant trust account.
9.10.10 Appoint professional or other persons on a temporary or
permanent basis to conduct the whole or any portion of the business of
the trust under supervision of the TRUSTEE or to manage the
investment of part or the entirety of the funds of the trust and to
remunerate such persons for their services out of the funds of the trust.
9.10.11 Accept any disposal in favour of this trust and to comply with
any conditions regarding such disposal.
9.10.12 To all things and to sign all documents required to give effect to
the aims of this trusts.
9.10.13 ACCOUNTING
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The TRUSTEE shall keep complete records, statements and accounts of
all transactions and shall prepare proper statements in connection with
all financial activities in accordance with the Generally Accepted
Accounting Practice in South Africa.
9.10.14 REMUNERATION
The TRUSTEE shall be entitled to a management fee of 1% (ONE
PERCENT) per annum plus VAT, calculated on the capital held under
administration. In addition, the TRUSTEE shall be entitled to charge
market related fees in respect of specialized services which it may have
performed on behalf of the trust.
9.10.15 REGISTRATION OF THE TRUST
The TRUSTEE undertakes to register this trust deed at the office of the
Master of the High Court under the Trust Property Control Act 1988 as
amended and shall be entitled to settle the costs payable in respect of
such registration, out of the income and if necessary out of the capital of
the trust.
9.10.16 EXEMPTION FROM SECURITY
The TRUSTEE shall be obliged to furnish security to the Master of the
High Court or any other authority for the proper compliance of its duties as
such.
9.10.17 INDEMNITY
The TRUSTEE and any person in its employment, shall insofar it may be
valid in terms of the Trust Property Control Act, Act 57 of 1988, be
indemnified against liability for expenses, incurred in the execution of its
duties as trustee in terms of this trust deed and against any loss the
TRUST FUND may suffer as a result of the depreciation of any investment
made by the TRUSTEE.
9.10.18 PROHIBITION AGAINST ENCUMBRANCE
No beneficiary receiving benefits under this trust deed may utilize his or
her interest in the TRUST FUND as security for debt or encumber it in any
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manner whatsoever and should such event occur, shall the encumbrance
of benefits of those beneficiaries not be recorded against the TRUST
FUND.
9.11.19 EXCLUSION FROM JOINT ESTATE
Any benefit accruing or payable to any beneficiary in accordance with this
trust deed, does not form part of the joint estate of that person and that
person's spouse and no husband of any female person, whether the
marriage be in or out of community of property, shall have or receive any
marital power, control, power of alienation or administration in respect of
any benefit received by any such female beneficiary under this deed.
9.11.20 AMENDMENT OF THIS DEED
The provisions of this trust deed, excluding the appointment of the
beneficiaries, may only be amended in writing jointly by the FOUNDER
and the TRUSTEE of the trust. If the Court has given consent to it.
10. The Defendant is ordered to pay the Plaintiff’s taxed or agreed party and
party legal costs on a High Court Scale on scale B, which costs will include
plaintiff counsel’s day fee and preparation fees of 23 October 2025 and 24
October 2025., also to include but will not be limited to, the following:
10.1 The reasonable taxable fees of consultation and preparation for
trial, qualifying and reservation fees (if any and on proof thereof) as well
as the costs of the Plaintiff’s medico- legal reports and medico -legal
addendum reports; including assessors report and fees.
10.2 The costs of the Plaintiff’s counsel, including settlement and/or
professional fees (where applicable);
10.3 The costs in respect of the preparation, drafting and copying of all
of the bundles of trial documentation, legal expert reports, pleadings and
formal notices, together with all indexes thereto;
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10.4 The costs attended upon obtaining of payment of payment of the
amounts referred to in this order.
11. The plaintiff shall in the event of the costs not agreed, serve the notice of
taxation on the defendant’s attorney of record.
12. The plaintiff shall allow the defendant 180 days to make payment of the
taxed costs.
13. The contingency fees agreement between plaintiff and its attorney is
declared invalid. The plaintiff’s attorney shall only be entitled to recover from the
plaintiff ordinary attorney and client fees which may be taxed but shall not exceed
25% of the capital awarded to the plaintiff.
___________________________
CB. BHOOLA
Acting Judge of the High Court
Gauteng Division of the High Court, Johannesburg
Delivered: This judgment was prepared and authored by the Judge whose name
is reflected on 09 January 2026 and is handed down electronically by circulation to
the parties/their legal representatives by e mail and by uploading it to the electronic
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file of this matter on CaseLines. The date for hand- down is deemed to be 09
January 2026.
APPEARANCES
Date of hearing: 24 October 2025
Date of judgment: 09 January 2026
For the plaintiff: Adv. RR Mambani
(Tel: 083 767 4434)
Instructed by: Maphaha Attorneys
(Tel: 011 333 0641, email -:
rudzani3@maphahaattorneys@co.za)
For the Defendant: State Attorney
Ms N Mhlongo
(Tel: 072 452 7151, email NkatekoM@raf.co.za )