C.M obo S.M & Another v Road Accident Fund (2023/04853) [2026] ZAGPJHC 32 (15 January 2026)

80 Reportability

Delict

Brief Summary

{'topic': 'Delict — Road Accident Fund — Settlement Agreement', 'facts': 'The plaintiff, acting on behalf of her minor daughter, sought damages from the Road Accident Fund following a motor vehicle collision where the child was a pedestrian. Liability was settled at 100% in favor of the plaintiff, with the only remaining issue being future loss of earnings.', 'legal_issue': 'Whether the settlement agreement reached by the parties should be made an order of court.', 'holding': 'The court found that the settlement agreement met the criteria established in Eke v Parsons and was therefore competent and proper to be made an order of court.'}

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a Road Accident Fund damages action arising from a motor vehicle collision in which the claimant was a minor pedestrian. The proceedings came before the Gauteng Division, Johannesburg, with the plaintiff, Ms C[…] M[…], acting on behalf of her minor daughter, S[…] M[…], seeking compensation from the Road Accident Fund (the defendant).

The action was instituted by summons served on 30 January 2023. After the time period for delivering a notice of intention to defend expired, the plaintiff proceeded on a default judgment basis and invoked Rule 38(2) of the Uniform Rules of Court, so that evidence could be presented by affidavit. During the course of the proceedings, the parties reached a settlement agreement and requested that it be made an order of court.

The dispute concerned delictual compensation under the Road Accident Fund scheme. By the time the matter came before the court for determination, the parties had already settled liability (at 100% in the plaintiff’s favour) and general damages. The only remaining issue related to future loss of earnings and/or loss of earning capacity, ultimately resolved by agreement and placed before the court for endorsement as a court order.

2. Material Facts

A motor vehicle collision occurred on 10 December 2015 near Zikode Street, Jabulani, Gauteng Province. The plaintiff’s minor child, S[…] M[…], was a pedestrian at the time of the collision. The judgment proceeded on the basis that the collision founded a statutory damages claim against the Road Accident Fund.

In the litigation process, the parties achieved settlement on core merits and part of quantum before the hearing in question. In particular, it was recorded that liability had been settled on the basis that the defendant was liable for 100% of the plaintiff’s proven damages. General damages were also settled, leaving only compensation in respect of future loss of earnings and earning capacity as the outstanding head of damages requiring resolution.

Procedurally, after service of the summons and the expiry of the period to defend, the plaintiff proceeded by way of default judgment with reliance on Uniform Rule 38(2) to lead evidence by affidavit. Notwithstanding that procedural posture, the parties subsequently concluded a settlement resolving the outstanding issues and sought to have it made an order of court, including provisions dealing with the payment of the agreed capital amount, the creation and administration of a trust for the minor’s benefit, a section 17(4)(a) undertaking, and costs.

The settlement amount determined for the remaining head of damages was R3 805 407.60 in full and final settlement of the claim for loss of earning capacity arising from the collision. The agreement further contemplated that, after deduction of the plaintiff’s attorneys’ legal costs, the net proceeds would be paid to a trust to be established for the benefit of the minor within a stipulated period.

3. Legal Issues

The central legal question before the court was whether the parties’ settlement agreement should be made an order of court, given that it disposed of the outstanding issue (future loss of earnings/earning capacity) and included ancillary mechanisms relating to the administration of the award through a trust, the defendant’s obligations under a statutory undertaking, and costs.

This was primarily a question of law and the application of law to the agreed outcome, rather than a factual dispute about the collision or the quantification of damages through contested evidence. The court was required to apply the legal standards governing when a settlement may competently and properly be endorsed as a court order, particularly in the context of RAF litigation, and to consider whether the agreement was lawful, connected to the dispute, and consistent with the interests of justice.

A further legal dimension, addressed at the level of principle, was the extent of the court’s role in relation to the agreement’s terms, particularly that courts should not rewrite the settlement terms concluded by the parties.

4. Court’s Reasoning

The court approached the matter on the footing that litigation was pending and that the parties had concluded a settlement regulating the final unresolved head of damages. It identified the governing constitutional principle from Eke v Parsons, namely that a settlement agreement may be made an order of court if litigation is pending, the settlement relates directly to the dispute between the parties, and the agreement is competent and proper, serving the interests of justice.

In addition, the court referred to RAF-specific authority from the Supreme Court of Appeal, noting that in RAF matters, once litigation is pending and the settlement resolves the dispute, the agreement should ordinarily be made an order of court unless it is incompetent or contrary to public policy. The court also relied on the more recent Constitutional Court guidance that courts must respect the terms agreed upon by the parties and may not rewrite them, reinforcing a restrained approach to the court’s role when asked to embody a settlement in an order.

Applying these principles to the facts placed before it, the court reasoned that the settlement agreement was directly connected to the dispute in the litigation because it quantified the outstanding damages for loss of earning capacity, addressed the statutory section 17(4)(a) undertaking, and regulated costs. The agreement was regarded as lawful in its terms and consistent with the applicable statutory framework. On that basis, it satisfied the competence and propriety requirements for being made an order of court.

The court’s evaluative conclusion was that the settlement met the criteria established in Eke v Parsons and confirmed in subsequent RAF authority. There was accordingly no basis, on the record before it, to refuse to make the agreement an order of court.

5. Outcome and Relief

The court granted the plaintiff’s Rule 38(2) application and made the settlement agreement an order of court.

As ordered, the Road Accident Fund was directed to pay R3 805 407.60 to the plaintiff in full and final settlement of the claim in respect of loss of earning capacity arising from the motor vehicle accident of 10 December 2015. The payment was to be made within 180 days of the order into the trust account of the plaintiff’s attorneys (details specified in the order).

The order further provided for the establishment of a trust for the benefit of the minor, funded by the net proceeds after deduction of the plaintiff’s attorneys’ costs, and regulated the trust’s administration through detailed provisions, including the appointment of a specified trustee (subject to Master’s oversight), the furnishing of security, trustee remuneration, and administrative powers.

The court also made orders dealing with costs. The defendant was directed to pay the plaintiff’s High Court party-and-party costs, taxed or agreed, including specified categories (such as counsel’s costs for identified dates, and the reasonable taxable costs of expert reports and related expenses), with payment timelines and a taxation procedure if costs were not agreed. The order recorded that there was a valid contingency fee agreement.

Cases Cited

Eke v Parsons (CCT214/14) [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) (29 September 2015).

PM obo TM v Road Accident Fund [2019] ZASCA 97.

Mafisa v Road Accident Fund (CCT 156/22) [2024] ZACC 4; 2024 (6) BCLR 805 (CC); 2024 (4) SA 426 (CC) (25 April 2024).

Legislation Cited

Road Accident Fund Act 56 of 1996, section 17(4)(a).

Trust Property Control Act 57 of 1988.

Rules of Court Cited

Uniform Rules of Court, Rule 38(2).

Held

The court held that the parties’ settlement agreement met the requirements for being made an order of court because litigation was pending, the agreement related directly to the dispute, and it was competent, lawful, and consistent with the interests of justice. The court further accepted the principle that, particularly in RAF litigation, settlements should ordinarily be made orders of court unless incompetent or contrary to public policy, and that the court is not permitted to rewrite the parties’ agreement.

On that basis, the settlement was made an order of court, including the quantified amount for loss of earning capacity, the payment directions, the trust-related provisions for administering the net proceeds for the minor’s benefit, the section 17(4)(a) undertaking-related provisions, and the costs orders.

LEGAL PRINCIPLES

A settlement agreement may be made an order of court where litigation is pending, the agreement relates directly to the dispute before the court, and the agreement is competent and proper in that it is lawful and serves the interests of justice, as formulated in Eke v Parsons.

In Road Accident Fund litigation, once proceedings are pending and the settlement resolves the dispute, the agreement should ordinarily be made an order of court unless it is incompetent or contrary to public policy, reflecting the approach endorsed in PM obo TM v Road Accident Fund.

Courts must respect the terms agreed by the parties and may not rewrite settlement agreements when asked to embody them in court orders, consistent with the Constitutional Court’s emphasis in Mafisa v Road Accident Fund.