SAFLII Note: Certain personal/private 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, JOHANNESBURG)
Case Number: 105993/2025
(1) REPORTABLE: NO
(2) OF INTREST TO OTHER JUDGES: NO
(3) REVISED: NO
MOKGADI CATHERINE MAKHURA APPLICANT
(ID : 7[…])
AND
THE ROAD ACCIDENT FUND RESPONDENT
JUDGMENT
___________________________________________________________________
This Judgment was handed down electronically and by circulation to
the parties’ legal representative by way of email and shall be
uploaded on CaseLines. The date of the hand down is deemed to be
on the 04 FEBRUARY 2026.
MAKUME J:
1. This matter served before me in the unopposed roll on the
19 January 2026. Counsel for the Applicant handed up a draft
order which reads as follows:
1.1. The Respondent is hereby ordered to deliver its discovery
affidavit within 10 (ten) days of delivering of this order upon
the Respondent.
1.2. In the event that the Respondent fails to comply with prayer
1 above, the R espondent’s defence is hereby ipso facto
struck out on the day of default (that is on the 11 th day after
service of the order) and the Applicant may then approach
the Court for a date for hearing on the default trial roll.
1.3. The Respondent is ordered to pay the cost of this
application on party and party Scale A.
2. Counsel for the Road Accident Fund who was present in court,
rose to object to the wording of the draft order. He informed the
Court that to order that the R espondent’s defence is to be struck
off ipso facto on expiry of ten days is unconstitutional and
trumps the rule audi alteram partem . Counsel referred this
Court to the Eastern Cape High Court decision in the matter of
MEC for the Department of Public Works v Ikamva Architects ,
case number 235/2021, a judgment delivered on 17 March 2022.
3. In response to the objection, counsel for the Applicant referred
this Court to the Consolidated Practice Directive 1 of 2024,
Court Operation in the Gauteng Division operative with effect
26 February 2024.
4. In particular, paragraph 27. 11 of the Practice Directive reads as
follows:
“To prevent unnecessary delays, additional cost
and a waste of court resources, caused by
noncompliance with orders handed down in the
SIC, a party may seek an order in the SIC that
provides for the ipso facto striking out of the
claim or defence, in the event that the other
party fails to comply with an order granted by
the SIC within a specified time, provided that;
27.11.1, the order has been served on the
delinquent party; and
27.11.2, a Rule of Court provides that such
noncompliance entitles an aggrieved
party to apply strike out of the claim
or defence.”
5. Counsel for the Applicant argues that the draft order is
produced verbatim on the words used in the Practice Directive.
6. A brief history of events leading up to this application appears
hereunder. The Applicant sustained injuries when as a
pedestrian was hit by a motor vehicle in Johannesburg on
28 July 2023.
7. Summons were issued against the Road Accident Fund in July
2025, in which the Applicant claimed compensation.
Simultaneously with the summons, the applicant served a notice
in terms of Rule 41 A of the Uniform Rules in which she indicated
her agreement to refer the matter to mediation.
8. On 30 October 2025 , the Applicant served on the State
Attorney’s office a notice in terms of Rule 35(1), (6), (8) and
(10), calling on the R espondents to make discovery within
20 days of all documents relating to the matter in question.
9. The Respondent failed to comply with the notice referred to
above. As a result, Applicant filed a notice supported by an
affidavit on 30 November 2025, in which notice of motion prayer
2 of the draft order referred to above was been sought.
10. The notice of motion was served on the State Attorney's office
on 1 December 2025. The notice setting down the notice to
compel was served on the State Attorney on 18 December 2025,
notifying them of the date of hearing being 19 January 2026.
11. The Respondents through their attorneys did not file any papers
opposing the application set down for 19 January 2026.
12. The question is therefore whether the draft order handed up
should be granted as it is, as it is based on the Practice
Directive or whether the ipso facto striking of the defence
should be omitted.
13. The Court in Ikamva supra had to deal with the validity of an
order granted by Her Ladyship Majiki J, in which she granted an
order striking out the defence of the department. The Appeal
Court sitting as a full bench issued a directive on 18 May 2021,
in the following words:
“Did Majiki J have jurisdiction in terms of
Rule 35(7) to make the order of 11 November
2011, striking out the defendant’s defence,
and, if not, is the order a nullity as envisaged
in the matter of the High Court Northern
Gauteng High Pretoria v Motala 2012 (3) SA
325 (SCA).”
14. The Appeal Court in paragraph 18 concluded as follows:
“It must be accepted that the Majiki J order was
erroneous on the basis that it followed a one- as
opposed to two -stage procedure. Uniform Rule
35(7) does not contemplate a striking out of a
defence automatically, but rather on the
application on the same papers amplified if
necessary. As noted by Plasket J, it is only
when a court has had the opportunity to decide
that grounds exist for the striking out of a
defence that an application for default judgment
may be made. The dismissal of a claim or the
striking of a defence is a drastic remedy, and the
power to grant such a remedy is discretionary, a
discretion that must be exercised judiciary. The
power to strike out the defence is derived from
the Uniform Rules. The interpretation and
application of a court r ule often requires a
consideration of the provisions of the
Constitution. Section 34 is relevant in this
respect, providing that everyone has the right to
have a dispute that can be resolved by the
application of law decided by a court or tribunal
in fair public hearing. The striking out of the
plaintiff’s claim or a defendant defence has a
far -reaching impact on this right. It has the
potential to deprive a litigant of a fair trial,
bringing an end to a claim or defence. In the
case of a defendant, the usual effect of a
striking out is to prevent the presentation of a
defence so that judgment will be entered for the
plaintiff, subject to any further order of court.”
15. Rule 35(7) provides that if any party fails to give discovery, or
having been served with a notice under subrule 6, omits to give
notice, the party desiring discovery may apply to court, which
may order compliance. This subrule applies only where there
has been a failure to comply with subrules 1 to subrule 6. The
rule does not permit an automatic striking of a defence or claim,
should a litigant fail to comply.
16. It is clear that the offended part y still has a duty and an
obligation to then inform the delinquent party that now that it
has failed to abide the order compelling, there will now follow
an application to strike the defence.
17. In the result, paragraph 2 of the draft order is deleted in toto
and I accordingly grant the following order.
ORDER
(1) The Respondent is hereby ordered to deliver a discovery
affidavit with 10 (ten) days of delivering of this order upon the
Defendant.
(2) Respondent is ordered to pays costs of this Application on a
party and party Scale A.
__________________________
MAKUME J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: Ngomani Attorneys
For the Respondent: State Attorney, Johannesburg