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2026
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[2026] ZAGPJHC 266
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Zuma v Road Accident Fund (35022/2021) [2026] ZAGPJHC 266 (13 March 2026)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Case No: 35022/2021
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
13
March 2026
In the matter between:
SIMPHIWE
EMMANUEL ZUMA
Applicant
and
ROAD ACCIDENT
FUND
Respondent
JUDGMENT
Mia J,
Introduction
[1] This is an
interlocutory application brought by the applicant seeking an order
striking out the respondent’s plea
and permitting the applicant
to proceed to trial by default. The application arises from the
respondent’s failure to comply
with an order granted by
Malungana AJ on 20 April 2023, directing the respondent to provide
four dates and times for attendance
of a Rule 37 pre-trial conference
within five days of service of the order. The applicant contends that
the respondent failed to
comply with the order and in view of the
respondent’s failure such non-compliance justifies the striking
out of the respondent’s
defence. In response the respondent
opposes the application and contends that the order was served late
and that it was practically
impossible to comply within the time
stipulated.
Background facts
[2] The application
flows from an underlying action arising from a motor vehicle
collision that occurred on 11 September 2019,
in which the applicant
was a passenger. The applicant sustained injuries as a result of the
collision and instituted a claim for
damages against the respondent.
The applicant issued summons on 21 July 2021 and served on the
respondent on 2 August 2021. The
respondent delivered its notice of
intention to defend on 2 June 2022, approximately ten months after
service of summons. The applicant
thereafter served a notice of bar
on the respondent on 2 September 2022. The respondent subsequently
delivered its plea on 19 October
2022. The applicant contends
that the plea constitutes a bare denial and does not disclose a
substantive defence.
[3] On 23 February
2023, the applicant launched an application to compel the respondent
to attend a pre-trial conference.
On 20 April 2023, Malungana AJ
granted an order directing the respondent to provide four dates and
times within five days of service
of the order for the holding of a
Rule 37 pre-trial conference. The order further provided that
in the event of non-compliance
the applicant would be entitled to
supplement its founding affidavit and proceed with an application to
obtain a date for default
judgment. The order of Malungana AJ was
served on the respondent by hand on 15 May 2023 and by email on 16
May 2023. The respondent
failed to comply despite the service of the
order within the prescribed period. The applicant accordingly
launched the present
application seeking an order striking out the
respondent’s defence.
[4] According to
the applicant the respondent has demonstrated a pattern of disregard
for the rules of court and orders of
this Court. The applicant
maintains that the respondent’s conduct in failing to comply
with the order of Malungana AJ constitutes
serious procedural
non-compliance which warrants the striking out of its defence. In
addition to it non-compliance, the respondent
provided no
satisfactory explanation for its failure to comply with the court
order.
The applicant maintains
further that the respondent should not be permitted to continue
participating in the litigation.
[5] In its
opposition to the application to strike out its defence, the
respondent submits that the order relied upon by the
applicant was
served approximately 24 to 25 days after it was granted. Moreover,
the respondent argues that because of the late
service of the order,
it was impossible to comply with the requirement that the pre-trial
dates be provided within five days. The
respondent further submits
that it has always been willing to hold a pre-trial conference. It is
argued that the striking out of
the defence would cause substantial
prejudice to the respondent as it would prevent the respondent from
defending the claim. It
submits that any prejudice suffered by the
applicant can be remedied by an appropriate costs order.
Issues for
determination
[6] The following
issues arise for determination:
6.1
Whether the respondent failed to comply with the order of Malungana
AJ.
6.2
Whether such non-compliance justifies the striking out of the
respondent’s plea.
6.3
Whether the Court should exercise its discretion to permit the
respondent to continue defending the action.
Legal principles
[7]
It is trite that court orders must be complied with. The rule of law
requires that orders of court be obeyed unless and
until they are set
aside by a competent court. In
Fakie
NO v CCII Systems (Pty) Ltd
[1]
,
the
Supreme Court of Appeal emphasised that disobedience of court orders
undermines the authority of the courts and the rule
of law. Courts
possess an inherent power to regulate their own process which
includes the power to strike out pleadings where a
party’s
conduct constitutes an abuse of the court process. However striking
out a defence is a drastic remedy and should
only be granted in
exceptional circumstances. This discretion is exercised having due
regard to the interests of justice.
Analysis
[8] The central
question is whether the respondent’s conduct justifies the
drastic remedy sought by the applicant. It
is common cause that the
order of Malungana AJ required the respondent to provide dates for a
pre-trial conference within five
days of service of the order. The
order was granted on 20 April 2023; the applicant maintains service
of the order was effected
on 15 May 2023 and 16 May 2023. The
respondent contends that service was affected several weeks after the
order was granted. This
according to the respondent rendered
compliance impractical. The explanation sounds hollow when the order
states that the respondent
was to furnish dates within five days of
the service of the order and not after the grant of the order.
[9] The respondent
tenders no other reasonable explanation why it could not give effect
to the order after it was served.
The respondent’s inability to
furnish a reasonable explanation is not the sole factor determining
whether the respondent’s
defence be struck out. It is necessary
to consider the broader litigation history of the matter. The
chronology reveals significant
delays in the progression of the case.
The applicant did not serve the order immediately upon the granting
of the order. It is
necessary to balance the need to enforce
compliance with court orders against the principle that disputes
should, where possible,
be determined on their merits.
[10] The striking
out of a defence has the effect of denying a litigant the opportunity
to participate in the adjudication
of the dispute. It is appropriate
to grant such relief where the conduct of the defaulting party
demonstrates a clear disregard
for the authority of the Court. In the
present matter, although the respondent’s conduct may be
criticised, a balancing of
interests must consider whether the
prejudice suffered by the applicant cannot be remedied by other
means. A less drastic remedy
may be appropriate.
[11] Having regard
to the facts of this matter and the submissions made by the parties,
considering whether the interests
of justice favour the granting of
the relief sought is informed by the need to enforce procedural
discipline with the principle
that disputes should ordinarily be
resolved on their merits. In the present matter the interest of
justice is best served by considering
the merits of the matter.
Costs
[12] In this matter
the respondent’s opposition is essentially an indulgence to be
permitted to do what is was required
to procedurally. The respondent
has conceded that its conduct be visited with an appropriate costs
order.
Order:
[12] In the result,
the following order is made:
1. The application
to strike out the respondent’s defence is dismissed.
2. The respondent
is directed to provide dates for the holding of a Rule 37 pre-trial
conference within five days of the grant
of this order.
3. The respondent
shall pay the costs of this application.
S C MIA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
On behalf of the
applicant
: ST Mosomane
Instructed
by
: Webber Wentzel Attorneys
ST Mosomani Attorneys
st@mosomani.co.za
On behalf of the
respondent
: E M MDlovu
Instructed
by
: RAF
Elias Matalani Mdlovu
eliasmatalani@raf.co.za
Date of
hearing
: 18 July 2025
Date of
judgment
: 13 March 2026
[1]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA)