THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 932/2024
In the matter between:
NEWNET PROPERTY (PTY) LTD t/a SUNSHINE
HOSPITAL APPELLANT
and
THE ROAD ACCIDENT FUND FIRST RESPONDENT
RADIKWENA PHORA SECOND RESPONDENT
Neutral citation: Newnet Property v The Road Accident Fund & Another
(932/2024) [2026] ZASCA 35 (24 March 2026)
Coram: MEYER, MOLEFE, and KATHREE-SETILOANE JJA
Heard: 12 November 2025
Delivered: 24 March 2026
Summary: Relief sought to enforce judgment debt s and related relief for
mandamus - non-compliance with court orders - directing the acting Chief Executive
2
Officer of the Road Accident Fund to ensure that the Road Accident Fund complies
with orders of court – - the relief sought not res judicata.
3
ORDER
On appeal from: Gauteng Division of the High Court, P retoria (Mali J sitting as
court of first instance):
1 The appeal is upheld with costs.
2 The order of the full court is set aside and replaced with the following order:
‘(i) The Road Accident Fund is hereby ordered to make payment of the judgments
obtained in favour of Newnet Property (Pty) Ltd t/a Sunshine Hospital
(Newnet) in the amount of R92 085 106.36 within 7 days from date of service
of this order on it.
(ii) The Road Accident Fund is ordered to provide Newnet with an updated
Requested Not Yet Paid (RNYP) list within 7 days from date of service of this
order.
(iii) The Road Accident Fund is ordered to provide an updated RNYP list to
Newnet every 14 days after compliance with prayer (ii) above.
(iv) The Road Accident Fund is ordered to adjudicate all accounts issued to it by
Newnet within 120 days from receipt of such account from Newnet.
(v) The Road Accident Fund is directed to make payment to Newnet of all
amounts due to it on the May 2023 RNYP list, being R158 890 967.70, within
30 days from date of service of this order on it, and thereafter to make payment
to Newnet of all amounts due to it as per a current RNYP list within 30 days
of such adjudicated account appearing on the RNYP list.
(vi) The Acting Chief Executive Officer , Mr Radikwena Phora, is directed and
ordered to ensure that the Road Accident Fund complies with prayers (ii) to
(vii) of the order.
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(vii) The Road Accident Fund is directed to pay the costs of the app lication
including those of two counsel.’
JUDGMENT
Kathree-Setiloane JA (Meyer and Molefe JJ concurring):
[1] The primary question for determination in this appeal is whether the relief
sought by the appellant, Newnet Property (Pty) Ltd t/a Sunshine Hospitals (Newnet)
in an urgent application, in the Gauteng Division of the High Court, Pretoria to, inter
alia, enforce the payment of a civil judgment granted against the first respondent,
the Road Accident Fund (the Fund) is res judicata.1 On 13 June 2024, the high court
(Mali J) fou nd it was and it made an order dismissing the application
(the Mali J order). Newnet applied for leave to appeal against this order which was
granted by the high court to this Court.
The Facts
[2] The facts in this appeal are essentially common cause. At the time of the
institution of the June 2024 application in the high court, Newnet operated as a
hospital. It treat ed patients who were injured in motor vehicle accidents. A large
majority of these patients were referred or transferred to Newnet for treatment by
either the Fund, a state entity established in terms of s 2(1) of the Road Ac cident
Fund Act 56 of 1996 (the RAF Act), or state hospitals that were unable to provide
them with the necessary medical care. In the former instance, the merits of a motor
1 Due to the multiplicity of urgent application s that are referred to in the judgment, I will refer to this application as
‘the June 2024 application’.
5
vehicle accident claim against the Fund would have been determined, and it would
have provided the patient with an undertaking to pay all future medical expenses. In
the latter instance, the merits of the motor vehicle accident claim would have not
been fully determined, and Newnet assumed the risk that it may not be compensated
for treatment of the patient.
[3] With its agreement, Newnet invoiced the Fund for payment of services
rendered by it, as well as those provided by its associate medical practitioners. 2
Although Newnet experienced payment challenges prior to 2020, by March of that
year, the Fund stopped paying Newnet for services rendered to motor vehicle
accident patients. This led to extensive legal proceedings against the Fund. Newnet
launched its first application against the Fund for payment in the high court in 2020.
The application was brought on an urgent basis for an order that the Fund be directed
to make payment of the outstanding amount of R353 443 850.34 that was due, at
that stage, in respect of ‘Requested Not Yet Paid’ (RNYP) claims (the 2020 urgent
application). RNYP claims are for invoices that have already been audited and
approved by the Fund. Once approved, they are loaded into its system , indicating
that they are due for payment. I will deal with the significance of these claims later
in the judgment.
[4] Due to the Fund’s inability to pay, Newnet sought an order that the
outstanding indebtedness be paid by way of monthly instalments of R36 908 000.00.
This was Newnet’s minimum monthly operational requirement to avoid closing
down and relocating patients to other facilities. In December 2020, the high court
2 The Fund sanctioned the practice of Newnet including doctors’ and service providers’ claims with its claims when
lodging them with the Fund. The Fund permitted ‘combined or global claims’ as it avoided the duplication of
documents lodged with the Fund. See in this regard Road Accident Fund v Newnet Properties (Pty) Ltd t/a Sunshine
Hospital and Another (616/2024) [2026] ZASCA 15 (11 February 2026) paras 7-11, 22 and 25.
6
granted an order against the Fund for payment of the said monthly instalments (the
December 2020 order). The order was granted by agreement between the Fund and
Newnet.
[5] After 18 months, the Fund stopped paying in compliance with the December
2020 order. In response, Newnet sought to execute the judgment by issuing a writ
for the attachment of certain moveable property of the Fund to sell at auction. The
Fund launched an application to suspend the sale which Newnet opposed. Newnet
counter-applied for an order that the Fund be directed to pay it the amount of
R301 721 492.50 in monthly instalments of R45 581 098.50. On 25 July 2022, the
high court (Van Niew enhuizen J) granted an order to this effect. Leave to appeal
against this order was refused by the high court, as well as by this Court and the
Constitutional Court.
[6] In the interim, Newnet obtained several further judgments against the Fund in
respect of amounts owing to it. These judgments were granted either by default or
with the Fund’s consent. None of them have been appealed against or rescinded.
Collectively, the y compelled the Fund to pay Newnet a total amount of
R403,812,884.05. The Fund has only paid Newnet the amount of R336,316,021.13.
A balance of R92,085,106.36 remains unpaid and is ow ing to Newnet. As a result,
on 5 June 2024, Newnet instituted the June 2024 application.
[7] In prayer 2 of the notice of motion of that application, Newnet sought payment
of the amount of R92,085,106.36 by the Fund. In prayers 3 and 4, it sought orders
directing the Fund to provide Newnet with an updated RNYP list within 7 days from
date of service of the order, and every 14 days after compliance with prayer 2 thereof.
In terms of prayers 5 and 6 of the notice of motion, Newnet sought orders directing
7
the Fund to, inter alia, adjudicate all accounts within 120 days of receipt, and to make
payment to Newnet of all amounts due to it on the May 2023 RNYP list within 30
days of date of service of the order on the Fund. In prayer 7, Newnet sought an order
that the second respondent, Mr Collins Phutjane Letsoalo, be directed to ensure that
the Fund complies with prayers 2 to 6 of the notice of motion. At the time,
Mr Letsoalo was the Chief Executive Officer of the Fund.
[8] In terms of the Fund’s internal processes, it is required to make full payment
of the RNYP amounts that are due within 30 days after listing them on the RNYP
list. The Fund, however, obstructed payment of Newnet’s long -overdue RNYP
claims by delaying settlement. It also withheld the RNYP list from Newnet, and has
not sent an updated RNYP list to it since May 2023. According to the last RNYP list
furnished by the Fund to Newnet, the Fund was indebted to Newnet in an amount of
approximately R380 000 000 of which R158 890 967.70 remains unpaid.
[9] The Fund paid its medical service providers regularly within 30-60 days after
the evaluation, approval and placement of the account on the RNYP list for payment.
This was necessary in order to keep the hospitals running and to ensure that patients
receive the much needed medical care. The Fund has, however, become a recalcitrant
payer. Since October 2023, it has stopped adjudicating and placing Newnet’s claims
on the RNYP list. This is directed at preventing Newnet from approaching a court
for payment of amounts due on the RNYP list.
[10] Despite the non-payment of amounts due by the Fund, at the date of the 2024
urgent application (5 June 2024 ), Newnet continued to render services to patients
injured in motor vehicle accidents at its own expense. This placed considerable
financial strain on its shareholders, who made intermittent capital contributions to
8
enable Newnet to continue operating. That position was, however, unsustainable,
and in April 2023 Newnet was compelled to close the hospital. The closure was due
to the Fund’s failure to make payment of arrears due to Newnet. Most patients who
were in a critical condition had to be transferred to other hospitals, and staff had to
be retrenched. Following the closure of the hospital, the Fund made limited
payments, as a result of which Newnet was able to re -open the hospital in August
2023. On its reopening, the hospital had assisted more than 970 motor vehicle
accident patients who had been injured.
[11] The Fund has, nevertheless, persisted in not honouring its obligation to make
payment of judgment debts owing to Newnet . Newnet was accordingly forced to
bring the June 2024 urgent application. As at the date of the application, Newnet had
28 motor vehicle accident patients in its wards at the hospital. These patients were
extremely ill and in need of constant medical attention. Some of them were in need
of ongoing critical care. It was clear that unless Newnet received payment of th e
judgment debts owing to it, Newnet would be unable to treat these patients, and their
lives would be placed at se vere risk. There were simply no funds to p urchase
medication, personal protective equipment for its frontline employees, and medical
equipment and supplies to treat the se patients. There were also no funds to pay
Newnet’s 150 staff members and its service providers. This meant that unless
Newnet received payments from the Fund, it would have no option but to close down
the hospital again, as it did in April 2023.
[12] In an attempt to exercise its available remedies, Newnet obtained a writ of
execution for the attachment, removal and subsequent sale of moveable property of
the Fund. The sale was scheduled for 26 March 2024. However, on attempting to
remove the attached movable s, the Sheriff of the high court (the Sheriff) was
9
restrained from doing so by members of the Fund and members of the South African
Police Services (SAPS), whom the Fund enlisted to assist.
[13] In a further attempt to obstruct the execution process, the Fund launched an
urgent application, on 26 March 2024, in the high court in which it sought an order
staying the execution of the warrants of attachment and the return of the movable
property that was removed from its offices (the March 2024 application). The high
court dismissed this application with costs on the very same day. The sale of the
movable property could, however, not proceed , as only the Fund arrived at the
auction to purchase its own moveable assets. The following excerpt of a statement
made, on 15 March 2024, by Mr Macintosh Palela, the spokesperson of the Fund on
‘eNCA’, is indicative of its policy of non-payment of judgment debts:
‘No, no, claimants are not affected by this, you must remember that they come and take our
furniture and to day they opened a storage and took the kind of furniture that we don’t use, I mean
sometimes they come and take the desks, I mean all the time that I go the offices in Centurion at
head office, there is always a paper at the door with a list of assets that they want to take and
fortunately what they do is they then auction the assets there and we just continue to buy them
back. We’re going to do this until we resolve these issues.’
[14] Mr Palela furthermore stated, on eNCA, that Newnet was involved in a corrupt
scheme involving the movement of patients from other hospitals across the county
to itself; over servicing these patients; and over charging the Fund. These allegations
were comprehensively investigated by various investigatory bodies of the Fund. The
investigations yielded no irregular or unlawful conduct on Newnet’s part.
[15] Since the second quarter of 2024, Newnet has attempted to execute against
fuel and road accident levy funds purportedly owing to the Fund by the relevant
10
entities. On 12 April 2024, the Sheriff served a warrant of execution on the South
African Revenue Service (SARS) directing it to:
‘[A]ttach and, upon receipt of payment, to pay to the execution creditor [Newnet] a portion of the
debt owed by the [SARS] to the defendant/ execution debtor ( the Fund) (being the obligation to
pay to the execution debtor its monthly allocation collected from Fuel and Road Accident levies
in terms of Schedule 1, Part 5 of the Customs and Excise Act 1964 …in the amount of
R3 845 680. 92 … in respect of the judgment granted by the [high court] on 24 July 2024 …’.
SARS responded in writing informing the Fund that it does not pay monthly fuel and
road accident levies to the Fund.
[16] On 22 April 2024, Newnet then served a new warrant of execution on the
South African Reserve Bank (the SARB) for payment of the same amount as in the
warrant of execution served on SARS. A legal advisor at the SARB advised
Newnet’s attorney of record, telephonically, that the National Treasury and not the
SARB was responsible for payment of the monthly fuel and road accident levies to
the Fund.
[17] On 26 April 2024 , Newnet served a warrant of execution on the National
Treasury. It responded in writing informing Newnet that no ‘debt’ was owing by
National Treasury to the Fund. This was followed by a discussion between Newnet’s
attorney and a legal advisor at the National Treasury, who confirmed that it was not
responsible for making monthly fuel and road accident levy payments to the Fund.
[18] On establishing that the Fund received its allocated fuel and road accident levy
income from the Department of Transport, Newnet sought to attach those funds. It
was, however, informed that the Department of Transport did not ‘owe’ any monies
to the Fund. The attachment of the monies in the Fund’s bank accounts had also
11
proven to be ineffective , as the bank account numbers were unknown. Where the
bank accounts numbers were known to Newnet, only small amounts of monies had
been found . Since the Department of Transport makes ad hoc, purpose -specific
transfers, the Fund’s accounts did not hold large balances. Thus, having exercised
the alternative remedies at its disposal , Newnet was left with no alternative but to
approach the high court for the orders as set out in its notice of motion.
[19] Instead of filing an answering affidavit in the June 2024 application, the Fund
filed a notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court (the rules)
in which it raised the following points of law: urgency; non -joinder; no cause of
action; and res judicata.
[20] The high court found that the application was urgent but dismissed it on the
basis that the relief sought was res judicata. It held:
‘[Newnet] raised the very same issue against the same party, being the [Fund]. [Newnet] does not
bring a different case against the [Fund], except that the court must order the second respondent
[the CEO of the FUND] to make payment. There is no substantial case made out against the second
respondent [the CEO of the Fund] bar that he is cited “herein in so far as it has an obligation to
ensure that the Fund is delivering on its manda te.” There are no allegations made against the
second respondent [the CEO of the FUND] proving that he precluded the [Fund] to deliver on its
mandate. [Newnet’s] argument assumes that were the orders in the first place issued against the
second respondent [the CEO of the FUND], the current problem would be non -extant. I cannot
agree with this contention, because the second respondent [the CEO of the FUND] acts on behalf
of the [Fund]. In essence, the judgment is against the [Fund], there is no legal position changing
same. The order sought mirrors the order that has already been granted. In my view the [Fund]
remains the sole judgment debtor’.
12
[21] The high court concluded that its finding in respect of the res judicata point
was dispositive of the application, hence it was unnecessary to deal with the other
points of law. The appellant applied for leave to appeal against the dismissal of its
urgent application. The Fund did not cross appeal the high court’s omission to deal
with the other law points raised in the rule 6(5)(d)(iii) notice.
Res Judicata
[22] The principle of res judicata is well-established in our law. Where a court has
given a final judgment in a matter, any subsequent litigation between the same
parties in respect of the same subject matter and based on the same cause of action
is impermissible.3 The question for determination in this appeal is whether the Fund
should be ordered to comply with the judgment, and if so whether the relief sought
is barred by the principle of res judicata.
[23] The Fund argued, in the appeal, that the relief sought in the June 2024
application is barred by the principle of res judicata as it is based on the judgments
that: (a) were obtained by Newnet against the Fund; (b) were obtained on the basis
of claims submitted to the Fund for payments for services rendered by Newnet and
its associated medical doctors; and ( c) finally determined the issue of whether
Newnet was entitled to payment by the Fund. Newnet countered this by arguing that
its cause of action in the June 2024 urgent application is different as it is for the
enforcement of the civil judgment s against the Fund and, inter alia, the related
mandamus against the Chief Executive Officer (CEO) of the Fund.
3 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) 835F-G.
13
[24] The relief sought by Newnet is , inter alia, for the civil enforcement of the
judgment debt against the Fund. Newnet does not seek to enforce a civil claim for
payment of debt by asking for a new judgment or order for payment of the
R92 million debt owing, but it rather seeks to enforce payment of judgment debt s.
In other words, it is seeking compliance with court orders. In addition, it seeks a
mandamus directing the CEO of the Fund to ensure that the Fund complies with its
payment obligations in terms of the judgment s obtained in Newnet’s favour in the
amount of R92 million, as well as the relief sought in prayers 3 to 6 of the notice of
motion.
[25] Our courts have recognised that a mandamus (often in the form of a mandatory
interdict or an order for specific performance ) is an extraordinary, but often
necessary, remedy that may be used by a judgment creditor to compel a public body
or state organ to perform a statutory duty, including the payment of a final judgment
debt, where no other means can achieve the desired outcome. In Nyathi v MEC for
Department of Health, Gauteng and Another (Nyati),4 the Constitutional Court
observed as follows in the context of a challenge to s 3 of the State Liability Act No.
20 of 1957:
‘No doubt, there may well be cases in which applying for a mandamus might be impractical and/or
increase legal costs. However that, in my view, will not provide a justification for striking down
section 3 [of the State Liability Act]. The possibility of a mandamus as a way to enforce the order
is a consideration to be borne in mind in determining whether there was nothing lawful the
applicant could do to obtain payment as was submitted on his behalf. Whether a mandamus could
have coerced the MEC (or any other relevant state official such as the Head of Department) to pay
is, for the purpose of this case, a matter I refrain from determining lest one speculates. Without
saying anything about the wisdom, expediency or efficacy of the execution scheme, the fact
4 Nyathi v MEC For Department Of Health, Gauteng and Another 2008 (5) SA 94 (CC); ZACC 8; 2008 (5) SA 94
(CC); 2008 (9) BCLR 865 (CC) para 146 (Nyathi).
14
remains that a mandatory order is one of the remedies available to compel compliance with a court
order.’
In addition, the Constitutional Court in Nyathi observed:
‘The Court had, with respect, seemingly lost sight of the fact that a common law remedy of a
mandamus would have been a more plausible recourse because it forces a public authority to carry
out a legal duty or obligation and responds to administrative inertia. In my view, a mandamus or
a structural interdict, somewhat similar to the one granted by Froneman J in Magidimisi, would
have been appropriate in the circumstances of this case.’5
[26] The primary relief sought by Newnet is the civil enforcement of judgment
debts obtained against the Fund in the amount of R92 million to be paid within 7
days of date of service of the order. It is coupled with prayer 7 of the notice of motion
in terms of which Newnet seeks a mandamus directing the first respondent, the CEO,
to ensure that the Fund complies with prayers 2 to 6 of the order. Mr Collins Letsoalo
was cited as the CEO of the Fund in the June 2024 application. However, on
6 August 2025, Mr Letsoalo’s contract had terminated. It is common cause that the
Fund has to date not appointed a permanent CEO . The current acting CEO of the
Fund is Mr Radikwena Phora. This was confirmed by the Fund in a letter to the
Registrar of this Court , dated 3 February 2026. Mr Radikwena Phora (the acting
CEO of the Fund ) is substituted for Mr Letsoalo as the second respondent in the
appeal.
[27] The Fund is listed as a national public entity in terms of Schedule 3A of the
Public Finance Management Act 1 of 1999 (the PFMA) . In terms of s 49 of the
PFMA,6 the Board is the accounting authority of the Fund. The Fund, accordingly,
5 Nyathi at para 148.
6 Section 49 of the PFMA provides:
‘Accounting authorities. — (1) Every public entity must have an authority which must be accountable for the purposes
of this Act.
15
contended that the mandamus in prayer 7 of the notice of motion should have been
sought against the Board and not the CEO of the Fund. It argued that as the
accounting authority of the Fund, the Board, and not its CEO, is responsible for its
finances. Thus the relief sought against the CEO is not competent as the Board of
the Fund, and not its CEO ought to have been cited as the second respondent in the
application.
[28] The Fund also suggested, at the hearing, that a mandamus may not be sought
against the CEO of the Fund as the Fund is not an organ of state. It is not necessary
to dwell on this question as in Mafisa v The Road Accident Fund7 the Constitutional
Court expressly stated that the Fund is an organ of state. It performs a public function
as contemplated in terms of s 239(b)(ii) of the Constitution. The powers and
functions of the Fund are provided for in s 4 of the Road Accident Fund Act, 56 of
1996 (the RAF Act). They include:8
(2) If the public entity—
(a) has a board or other controlling body, that board or controlling body is the accounting authority for that entity; or
(b) does not have a controlling body, the chief executive officer or the other person in charge of the public entity is
the accounting authority for that public entity unless specific legislation applicable to the public entity designates
another person as the accounting authority.
(3) The relevant treasury, in exceptional circumstances, may approve or instruct that another functionary of a public
entity must be the accounting authority for that public entity.’
7 Mafisa v Road Accident Fund 2024 (4) SA 426 (CC) ; ZACC 4; 2024 (6) BCLR 805 (CC); 2024 (4) SA 426 (CC)
para 1.
8 Section 4 of the Act provides:
(1) The powers and functions of the Fund shall include–
(a) the stipulation of the terms and conditions upon which claims for the compensation contemplated in section
3, shall be administered;
(b) the investigation and settling, subject to this Act, of claims arising from
(b) the investigation and settling, subject to this Act, of claims arising from
loss or damage caused by the driving of a motor vehicle whether or not the identity of the owner or the driver
thereof, or the identity of both the owner and driver thereof, has been established;
(c) the management and utilization of the money of the Fund for purposes connected with or resulting from the
exercise of its power or the performance of his duties; and
(d) procuring re-insurance for any risk undertaken by the Fund under this Act.
(2) In order to achieve its object, the Fund may–
(a) purchase or otherwise acquire goods, equipment, land, buildings, shares, debentures, stock securities and all
other kinds of movable and immovable property;
(b) sell, lease, mortgage, encumber, dispose of, exchange, cultivate, develop, bid upon, improve or in any other
way deal with its property;
16
‘(a) the stipulation of the terms and conditions upon which claims for the compensation
contemplated in s 3, shall be administered;
(b) the investigation and settling, subject to the Act, of claims arising from loss or damage caused
by the driving of a motor vehicle whether or not the identity of the owner or the driver thereof, or
the identity of both the owner and driver thereof, has been established;
(c) the management and utilisation of the money of the Fund for purposes connected with or
resulting from the exercise of its powers and the performance of its duties.’
[29] In terms of s 3 of the RAF Act, the object of the Fund is the payment of
compensation in accordance with the Act for loss of damage wrongfully caused by
the driving of motor vehicles. Section 5(1) of the Act provides that the Fund shall
procure the funds it requires to perform its functions by way of a fuel levy in respect
of all fuel sold within the Republic and by raising loans. 9 In terms of s 7 ‘the
resources and facilities of the Fund shall be used exclusively to achieve, exercise
and perform the object, powers and functions of the Fund, respectively’.
(c) invest any money not immediately required for the conduct of its business and realise, alter or re-invest such
investments or otherwise deal with such money or investments;
(d) borrow money and secure the payment thereof in such manner as it may deem fit;
(e) make donations for research in connection with any matter relating to injuries sustained in motor vehicle
accidents on such conditions as it may deem advisable;
(f) draw, draft, accept, endorse, discount, sign and issue promissory notes, bills and other negotiable or
transferable instruments, excluding share certificates;
(g) take any other action or steps which are incidental or conducive to the exercise of its power or the
performance of its functions;
(h) make financial contributions to road safety projects and programmes approved by the Minister;
(i) conclude any agreement with any person for the performance of any particular act or particular work or the
rendering of particular services contemplated in this Act.
(3) In the exercising of the powers conferred on it by this Act, the Fund may deal with any person, partnership,
association, company, corporation or other juristic person wherever seated.
(4)(a) The Fund may conclude an agreement with any other organ of State regarding any matter provided for in this
Act in order to improve or ensure–
(i) the effective management of the Fund;
(ii) the efficiency of the Fund;
(iii) co-ordination of functions;
(iv) co-operative governance contemplated in Chapter 3 of the Constitution.
(b) The Minister shall, by notice in the Gazette, publish a summary of the terms of any agreement concluded
under paragraph (a).
9 Section 5(1)(a) and (b) of the Act.
17
[30] The CEO of the Fund is appointed under s 12(1) of the RAF Act to, inter alia,
manage the day to day operations of the Fund. The CEO is responsible for the
executive or operational management of the Fund. The key functions of the CEO
include implementing strategies and policy approved by the Board of the Fund,
managing staff, preparing annual budgets for consideration by the Board and
exercising delegated powers regarding claims. 10 The operational management
function of the CEO is to direct day-to-day operations of the Fund including claims
processing, finance, and stakeholder relations. Section 12(2) of the RAF Act
provides that subject to the directions of the Board, the CEO of the Fund shall
conduct the current business of the Fund, and he or she may exercise the power and
shall perform the functions of the Fund mentioned in s 4(1)(b); (c); (2) and 3 of the
RAF Act. Section 12(2) of the RAF Act therefore confers on the CEO the power,
subject to the directions of the Board, to manage and utilise the money of the Fund
for purposes connected with or resulting from the exercise of its powers and the
performance of its duties’ . Thus as the operational manager of the Fund, the CEO
(or acting-CEO as the case may be ), has a statutory duty to ensure that the Fund
makes payment of all judgment debts owing to judgment creditors.
10 Section 12 of the Act provides:
(1)(a) The Minister shall upon the recommendation of the Board, appoint the Chief Executive Officer of the Fund
on such terms and conditions of employment as the Board may determine.
(b) The Chief Executive Officer shall be a person who is suitably qualified and experienced to manage the day
to day affairs of the Fund.
(2) Subject to the directions of the Board, the Chief Executive Officer shall conduct the current business of the
Fund, and he or she may–
(a) exercise the power and shall perform the f unctions of the Fund mentioned in section (4)(1)( b), (c) and (d),
(2) and (3);
(2) and (3);
(b) appoint, determine the conditions of employment of and dismiss the staff of the Fund, excluding members of
staff on management level;
(c) draft internal rules and directions in respect of the management of the Fund and make recommendations in
respect thereof to the Board;
(d) enter into an agreement with any person for the rendering of a particular service related to the management
of the Fund or its functions;
(e) issue guidelines to agents regarding the manner in which claims should be administered by them on behalf
of the Fund; and
(f) exercise such powers and shall perform such duties as may be delegated and assigned to him or her by the
Board under section 11(1)(h).
18
[31] Section 165( 3) of the Constitution Act 108 of 1996 (the Constitution)
prohibits any person or organ of state from interfering with the functioning of courts.
Section 165(4) of the Constitution obliges organs of state through legislative and
other measures to assist and protect the courts to ensure their independence,
impartiality, dignity, accessibility and effectiveness.11 Integral to this is the duty to
comply with court orders. As an organ of state , the Fund bears a constitutional
obligation to comply with court orders , and to refrain from any conduct that
interferes with the functioning, dignity or effectivenss of the courts. Yet, it has
deliberately and publicly demonstrated its refusal to comply with the orders for
payment to Newnet . What’s more, is that it had enlisted the SAPS to obstruct the
removal of assets pursuant to the lawful execution of the court orders.
[32] The high court’s finding that there are no allegations made against the CEO
of the Fund (at the time) proving that he precluded the Fund from delivering on its
mandate, ignores the fact that the spokesperson of the RAF had, on 15 March 2024,
publicly announced the Fund ’s policy not to pay all judgment debts in favour of
Newnet. And to continually obstruct auctions by buying back its attached goods,
instead of effecting payment of the judgments debts. The Fund’s spokesperson made
it clear that the Fund would continue not to pay the judgment debts until they resolve
‘these issues’.
[33] The Fund’s deliberate refusal through its officials not to comply with the court
orders constituted a breach of its statutory obligations under the RAF Act, as well as
its constitutional obligations under s 165 of the Constitution. Although Newnet does
not, in its founding affidavit, attribute the Fund’s failure and refusal not to comply
11 S v Jaipal 2005 (4) SA 581 (CC) para 29.
19
with the court orders, directly to the CEO, at the time, it is inconceivable that the
CEO, as the person in charge of the executive management of the Fund, would have
been unaware of the Fund’s purported policy in this regard , as made public by the
spokesperson. Newnet was according entitled to seek a mandamus compelling the
CEO to ensure that the relief sought in prayers 2 to 6 of the notice of motion is
complied with by the Fund.
[34] The high court found that Newnet was not entitled to the relief sought because
it had not shown that it had executed the judgments. This conclusion ignores the fact
that Newnet had shown that the Fund had not only frustrated the execution process,
but that it had also obtained the assistance of the SAPS to interfere and obstruct
execution of the orders. In addition , the Fund had publicly expressed its policy not
to pay Newnet pursuant to the various court orders to do so, and to frustrate the
execution of those court orders . This conduct undermines the rule of law and the
dignity and authority of the courts. As observed by the Constitutional Court in Pheko
v Ekhurhuleni Metropolitan Authority and Another:12
‘The rule of law, a foundational value of the Constitution, requires that the dignity and authority
of the courts be upheld. This is crucial, as the capacity of the courts to carry out their functions
depends upon it, as the Constitution commands, orders a nd decisions issued by a court bind all
persons to whom and organs of state to which they apply, and no person or organ of state may
interfere, in any manner, with the functioning of the courts. It follows from this that disobedience
towards court orders or decisions risks rendering our courts impotent and judicial authority merely
a mockery. The effectiveness of court orders or decisions is substantially determined by the
assurance that they will be enforced.’
12 Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC) at para 1.
20
[35] Where an organ of state defaults on its obligation to comply with a court order,
a court is compelled to assume the invidious task of overseeing state action to secure
compliance. Although the Board is the accounting authority of the Fund, nothing
prevents this Court from making an order against the CEO (or acting CEO) of the
Fund who is ultimately responsible for its executive management, to ensure that the
court order is complied with.
[36] Newnet has also made out a case for the relief sought in prayers 3 to 6 of the
notice of motion. After an invoice for payment is adjudicated it is placed on the
RNYP list. Once this is done, it is effectively an admission by the Fund that that
invoice has been checked, audited and is due for payment. The Fund is obliged to
pay suppliers (in this case Newnet) within 30 days of the invoice being placed on
the RNYP list. This is common cause as the Fund has failed to file an answering
affidavit that may show otherwise. Newnet is also entitled to receive updated RNYP
lists from the Fund. This will enable Newnet to keep track of what payments are due
to it, and that the Fund is adjudicating its claims.
[37] As a final endeavour to overcome its persistent non-payment of the judgment
debts to Newnet, the Fund submitted that it lacked the financial means to satisfy
those debts. The facts in this matter are uncontested as the Fund chose not to file an
answering affidavit but rather a rule 6(5)(d)(iii) notice. In the circumstances, it would
be inappropriate for this Court to consider the new factual defence. To do so, will
prejudice Newnet as it has not had an opportunity to respond to the new facts. The
Fund also contended that the appeal is moot as Newnet has ceased to operate. I
disagree. P ursuant to an inquiry from the Registrar of this Court concerning its
status, Newnet inform ed this Court, in a letter dated 5 February 2026, that: (a) it
suspended the operation of the hospital in May 2025; (b) it remains the owner of the
21
hospital; and (c) it has not been provisionally wound -up and no pending legal
process or threat in this regard exists; (d) the shareholders and Board of Newnet will
seriously consider reopening the hospital upon payment by the Fund of the
outstanding indebtedness and agreement being reached with the Fund as to the way
forward in respect of future business. Thus as things stand, the closure of the hospital
is not an impediment to Newnet succeeding in the appeal.
[38] For all these reasons, Newnet is entitled to the relief sought in its notice of
motion.
[39] In the result, the following order is made:
1 The appeal is upheld with costs.
2 The order of the full court is set aside and replaced with the following order:
‘(i) The Road Accident Fund is hereby ordered to make payment of the judgments
obtained in favour of Newnet Property (Pty) Ltd t/a Sunshine Hospital
(Newnet) in the amount of R92 085 106.36 within 7 days from date of service
of this order on it.
(ii) The Road Accident Fund is ordered to provide Newnet with an updated
Requested Not Yet Paid (RNYP) list within 7 days from date of service of this
order.
(iii) The Road Accident Fund is ordered to provide an updated RNYP list to
Newnet every 14 days after compliance with prayer (ii) above.
(iv) The Road Accident Fund is ordered to adjudicate all accounts issued to it by
Newnet within 120 days from receipt of such account from Newnet.
(v) The Road Accident Fund is directed to make payment to Newnet of all
amounts due to it on the May 2023 RNYP list, being R158 890 967.70, within
30 days from date of service of this order on it, and thereafter to make payment
22
to Newnet of all amounts due to it as per a current RNYP list within 30 days
of such adjudicated account appearing on the RNYP list.
(vi) The Acting Chief Executive Officer , Mr Radikwena Phora, is directed and
ordered to ensure that the Road Accident Fund complies with prayers (i i) to
(vii) above.
(vii) The Road Accident Fund is ordered to pay the costs of the app lication
including those of two counsel.’
______________________
F KATHREE-SETILOANE
JUDGE OF APPEAL
23
Appearances
For the appellant: F Arnoldi SC with B Stevens and ZT
Motha
Instructed by Podbielski Mhlambi Carletonville Inc,
Pretoria
Claude Reid Attorneys, Bloemfontein
For the first and second respondents: G Naude SC with A Ngidi
Instructed by: Malatji & Co Attorneys, Sandton
Honey Attorneys, Bloemfontein.