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2026
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[2026] ZAGPJHC 80
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Knockies v Road Accident Fund (208805/2019) [2026] ZAGPJHC 80 (5 February 2026)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
Number: 208805-2019
(1)
REPORTABLE: NO
(2)
OF INTREST TO OTHER JUDGES
(3)
REVISED: NO
HOWELL
HERBERT JAMES KNOCKIES
APPLICANT
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
05 FEBRUARY 2026.
MAKUME J:
1.
In this matter the applicant seeks an order
that the defence pleaded by the defendant in the main application be
struck off, and
that the applicant thereafter be granted leave by
this court to enrol the matter on the default trial roll of this
division.
2.
The basis of the application is that the
respondent failed to comply with the court order dated 23 April 2025,
in which the Honourable
Wright J made the following order:
“
The
defendant is to discover by 4 pm on 5 May 2025, failing which the
plaintiff may apply for the striking of the defence and the
entering
of judgment in favour of the plaintiff.”
Background facts
3.
It is common cause that the main action was
removed from the trial roll on 22 April 2025 as it was discovered
that respondent had
not filed discovery in terms of the rules, hence
a finding that the matter was not ripe for hearing.
4.
It is also common cause that the respondent
served the discovery affidavit on the applicants by way of email on
26 April 2025, in
terms of rule 4 A(1)(c) of the
Uniform
Rules of Court
. On 21 August 2025
the applicant lodged this application. In his affidavit the
applicant says the following:
“
The
respondent sent an email on 25 April 2025 in which it annexed a
discovery affidavit for service in terms of rule 4 A(1)(c).
The
email and discovery affidavit are annexed hereto and marked as
ANNEXURE RP2 and RP3 respectively. There exists no agreement
between the applicant and the respondent for service of documents per
email. The respondent has thus failed to make discovery
in
terms of the order as service thereof was irregular.”
The issues
5.
What is in issue is that the service of the
discovery affidavit was irregularly served and not in accordance with
rule 4 A(1)(c)
of the
Uniform Rules of
Court
.
6.
It is the applicant’s case that there
was no agreement between the parties that documents be exchanged via
email, and not
be served physically.
7.
The applicant did receive the discovery
affidavit on 25 April 2025 and did not object that it was served
irregularly. He condoned
the service, and has not been able to
prove that such service has been prejudicial to the further conduct
of his case. It
is also on record that when the applicant’s
attorney took over this matter from the applicant’s previous
attorneys,
they served their notice of appointment during 2021 per
email. They did not have the consent of the respondent’s
attorneys
to do so, and yet they now insist that there should have
been consent. I find this rather disingenuous and an act of
self-serving.
8.
The cornerstone of our legal system is not
only entrenched in section 34 of the
Constitution
,
but also in the rules of this court, which require that notice of
legal proceedings against any party be served on such person
or
party, failing which any judgment that follows upon non-service is
regarded as null and void
ab initio
.
9.
This rule applies equally to applications
for striking off a defence due to alleged non-compliance. The
court in
MEC for Department of Public
Works and Others v Ikamva Architects and Others
(235/2021) [2022] ZAECBHC dealt with striking out defences and held
as follows:
“
As
noted by Plasket J it is only when a court has had the opportunity to
decide that ground exists for the striking off 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 judicially. The power
to strike out a defence is
derived from the uniform rules. The interpretation and
application of a court rule often requires
a consideration of the
provisions of the
Constitution
.
Section 34 is relevant in this respect, providing that everyone has a
right to have a dispute that can be resolved by the
application of
law, decided by a court or a tribunal, in a fair public hearing.
The striking off a plaintiff’s claim
or a defendant’s
defence has a far-reaching impact on this right. It has a
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.”
10.
In this matter the applicant has failed to
show what prejudice he has suffered by receiving the discovery
affidavit via email instead
of physical. In my view, the
applicant is relying on technicality, when in fact what he asked for
he has received.
11.
In the result, I make the following order:
11.1.The
application is dismissed;
11.2. The applicant is
ordered to pay the respondent’s taxed party and party costs.
MAKUME
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
For
the Applicant:
Adv
Anton Louw
For
the Respondent:
State
Attorney, Johannesburg
Mr
Matimu Madasele