IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
. Case Number: 28705/2021
(l) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED. NO
RESPONDENT/ PLAINTIFF
,.'
AND
ROAD ACCIDENT FUND APPLICANT / DEFENDANT
JUDGMENT
This Judgment was handed down electronically and by circulation to
the parties' le gal representative by way of email and shall be
uploaded on Caselines .
1. In this matter , the applicant seeks an order:
1.1. Condoning the late filing of this application .
1.2. Extending the time and removal of bar .
1.3. Further and any alternative relief .
1.4 . No orders to cost if the application is not opposed .
2. The salient facts leading to this applicat ion are set out here
under . During or about 2020 the respondent lodged a claim with
the applicant claiming compensation for injuries that she says
she sustained in a motor vehicle accident on the 30th of
November 2019 .
3. On receipt of the claim , the applicant's cla im handler , one Violet
Ngema , addressed a letter to the respondent's attorneys ,
Messis Sepamla Attorneys , and in it said the following .
"We acknowledge receipt of your claim form
lodged in terms of the act . The RAF hereby
repudiates your claim and will defend any action
instituted against us in that : no nexus . We will
also bring this letter to the att ention of the
presiding judicial officer to take into account when
making orders towards cost ."
4. On the 15th of June 2021 , respondent 's attorneys
issued summons against the appl icant claiming
damages under various heads for a total amoun t of
R1 800 000 ,00 . The summons were served on the
applicant 's offices in Parktown on the 18th of June
2021 .
5 . In the summons issued on the 15th of June 2021 , the defendant
(Applicant ) was called upon to file its intention to defend within
10 days of the service of summons on them . The applicant did
not do that , Instead , notice to defend was only filed and se rved
on the respondent's attorneys on the 10th of Ma rch 2022 , a
period of nine months after service . The notice of intention to
defend is signed by Ms N.Moyo from the office of the State
attorney .
6. On the 25th of October 2023 , the respondent's attorneys served
a notice of bar on the applicant's attorneys calling on them to
file their plea within five days from date of that notice . The
applicant did nothing and did not comply with that notice .
7 . On the 16th of October 2024 , the respondent's attorneys served
a notice on the a pp Ii cant's attorneys to the effect that they w i 11
be applying for default judgment due to their failure to file a
plea .
8. The application for default judgment was set down for hearing
on the 5th of August 2025 . The notice of set down was served
on the applicant on the 27th of February 2025 . The applicants
did nothing .
9. On the 17th of September 2025 , the app lication for default
judgment served before acting Judge Kruger . I am informed that
Ms Mayo appeared for the applicant and resulting from her
presentation , the Court granted the applicants an indulgence
and were ordered to file a substantive application w ithin 15 days
presumably to remove the bar and that applicant be granted
leave to file their plea . The matter was postponed sine die .
10. The 15 days came and passed and no application as ordered
by the Court was _filed . The respondent , as she was entitled to
do , set down the application for default judgment for hea ring on
the 10th of February 2026 .
11 . On the 10th of February 2026 , this matter ser ved before me
and once more attorney Moye on behalf of the applicants
pleaded for more time . I granted indulgence and directed that
the applicant file a substantive application by not later than
Friday the 13th of February 2026 and that the matter be heard
on the 18th of February 2026 .
12 . My order and directive were duly complied with as the
respondent duly filed the opposing affidavit and short heads of
argument . This is the application that served before me on the
18th of February 2026 .
13 . The aff idavit support of application is deposed to by Ms Hane lie
Conradie , who says that she is in the employ of the applicant as
a manager in the Merits Determination Department . I
understand this to mean that she is employed by the Road
Accident Fund and not by the Office of the State Attorney .
14 . In paragraph 4 .5 of her affidavit , Ms Conradie says that the
reason for them hav ing failed to comply with the Notice of Bar
is due to volumes of litigious matters that the applicant deals
with on a daily basis . She concludes by saying that failure to
file a plea was not wilful. There is no confirmatory affidavit from
the Office of the State Attorney to corroborate that allegation .
15. Ms Conradie confirmed that as far back as the year 2020 , they
had discovered material discrepancies in the claim , hence they
repudiated in a letter annexed as RAF3 to this app li cation .
16 . This means that the RAF had already satisfied itself that the
respondent has no valid claim and should have filed their plea,
which they did not do .
17. In support of the Nexus finding , Ms Conrad ie says that there
are discrepancies in the descript ion of the motor veh icle
involved as well as to the time when the accident happened .
She concludes that the respondents have no prospect of
success . This conclusion the RAF reached and knew as far back
as the year 2020 and yet by February 2026 they had not filed a
plea or explained to the Court why they did not file a plea .
18 . It is trite law that extension and abridgment of time for
condonation purposes may only be granted if not by agreement
between the parties by a Court on good cause shown . The
Appellate division in the matter of Tshivhase Ro y al Cou n cil vs
Tshivhase , 1992 (4) SA 852 (A) , held that condonat ion is an
indulgence which may be refused in cases of flagrant breaches
of the rules . In the matter of Small Busine ss Development
of the rules . In the matter of Small Busine ss Development
Corporation Limited vs Khubeka , 1990 (2) SA 851 (T) , the Court
concluded that condonation may also be refused , where it would
defeat the purpose or object of the rule of which the applicant
is in breach .
19 . In this matter , the applicant has not only failed to comply with
the notice calling upon them to file a plea on two occasions ,
firstly , in the body of the summons in 2021 , secondly , when a
notice of bar was served , and as if that was not sufficient, the
applicant ignored a Court order by Kruger AJ granted in
September 2025 .
20 . The applicant failed to set out precisely what prevented them
from filing their plea despite so many indulgences , all that Ms
Conradie tells this Court is that they had administrative
challenges without explaining precisely what that means . There
is no affidavit setting out the merits to enable this Court to weigh
prospects of issues worthy of being tried in a court.
21. In the matter of Standard Bank of South Africa Limited vs John
and Ajax , Kircos . 1957 , P.H .F. 46 (SR) , the Court held that an
affidavit of merits would appear to be a statement setting out
the applicant 's case in sufficient detail to enable the Court to
decide whether it is bona fide and not frivolous . In Levin vs
Rick , CPD 242 the Court held that a failure to fi le such affidavit
could result in the application to remove the bar being refused .
22 . All that the applicant says in the affidav it is that respond en ts
provided information to the police and to the hospital which is a
fabr ication. What the applicant cannot dispute is that on the
30th of November 2019 the respondent was admitted at hospital
and on admission she told the medical people that she was a
backseat passenger in a motor vehicle that overturned and that
is how she sustained the injuries.
23 . The applicant, despite being furnished with details of the motor
vehicle , did not do anything to trace the owner and get a
statement from the owner. There is , in my view , no evidence to
gainsay what the respondent has said in a Section 19 affidavi t.
gainsay what the respondent has said in a Section 19 affidavi t.
The applicant has , in my view , failed to set out reasons for the
The applicant has , in my view , failed to set out reasons for the
delay and omission on so many occasions until the matter is set
down for default judgment on two occasions . What is most
aggravating is to flagrantly ignore a Court order by Kruger AJ .
This alone warrants a punitive cost order against applicant.
24 . The respo ndent has been waiting for five years to be
compensated and has been to Court on two occasions and been
delayed further. I deem it appropriate that respondent be
granted preferential date of hearing of her default judgment
application by a pp roaching the office of the Deputy Judge
President.
Order:
1. The application for condonation and removal of the bar
is dismissed .
2. The applicant is ordered to pay the cost of this
application on an attorney client scale.
3. The respondent is granted leave to approach the office
of the Deputy Judge President in this division to be
allocated a preferential date on the default judgment
role.
JUDGE OF THE HIGH COURT
JOHANNESBURG
Appearance
For the Applicant:
For the Respondent:
Sepamla Attorneys
Road Accident Fund