IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
JUDGMENT
Case No.: 4696/2022
In the application between:
LINAH MABUNDA Plaintiff in case No:4696/2022
MEMORY NTOMBFUTHI METISO Plaintiff in case No:3400/2021
And
ROAD ACCIDENT FUND DEFENDANT
___________________________________________________________________
JUDGMENT
NGWENYA AJ
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED YES/NO
_21 JANUARY 2026 ____NGWENYA AJ_________
DATE SIGNATURE
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Introduction
[1] In this judgment , I deliver two judgments in respect of two matters that came
before me on the 05th June 2025 on the case management roll.
[2] The other matter is Metiso Memory Ntombifuthi v the Road Accident Fund, case
no. 3400/2021.
[3] I have decided to consider these matter s in the same judgment as they raise
the same issues and legal principles.
[4] Both matters came before me on the case management roll for certification for
trial readiness.
Case no: 469/2022 ( Mabunda Case)
[5] Counsel for the Plaintiff informed me that the matter relates to a personal injury
claim against the Road Accident Fund arising from a motor collision that occurred on
the 26th of September 2021, in which the plaintiff was a passenger.
[6] She informed me that the past medical expenses and general damages had
already been settled.
[7] The heads of damages that remain in dispute are loss of earnings and future
medical expenses.
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[8] She further informed me that the parties held a meaningful pre-trial conference
and that they have completed a joint statement of issues.
[9] Counsel for the defendant also confirmed that the matter was trial -ready and
reiterated that certain heads of damages had been settled. At the same time, the loss
of earnings and future medical expenses remained outstanding.
Case no: 3400/2021 (Metiso Case)
[10] Counsel for the Plaintiff submitted that this is a personal injury claim that arose
from a motor vehicle accident which occurred on the 07th of September 2019.
[11] Counsel informed me that the merits have been conceded at 100% and th at
only the quantum for general damages and loss of earnings remains to be
determined.
Applicable Legal Principles
[12] Rule 37A of the Uniform Rules of Court governs case management.
[13] For a matter to be certified trial -ready by a case management Judge, parties
must comply with the following requirements:
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13.1 Parties must hold a pre-trial meeting before holding a case management
conference at which issues identified in sub -rule (10) will be discussed ,
see sub-rule 37A(7)(c).
13.2 Parties must deliver an agreed minute of the proceedings held in terms
of paragraph (c) (that is, the pre-trial meeting), alternatively, if there was
no agreement in the content of the minute, a minute signed by the party
filing the document, together with an explanation why an agreement on
its content has not been obtained. See sub-rule 37A(7)(d)(ii).
13.3 Parties must deliver a detailed statement of issues which indicate s the
issues that are not in dispute and the issues in the case that are in
dispute, describing the nature of the dispute , setting forth the parties’
respective contentions i n respect of each such issue . See subrule
37A(9)(a)(i) and (ii).
[14] This matter only engages the last requirement, i.e., sub-rule 37A(9)(a) (ii).
[15] I find it appropriate to reproduce the entire sub-rule, and it reads thus:
“(9) (a) In addition to the minute referred to in subrule (7)(d)(ii), the parties shall
deliver a detailed statement of issues, which shall indicate-
(i) …………
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(ii) The issues in the case that are in dispute, describing the nature of the dispute
and setting forth the parties’ respective contentions in respect of each of such
issues.”
[16] Under this sub-rule, parties are required to engage earnestly, identify the issues
in dispute, and state their contentions regarding those issues.
[17] The first step is to define the terms ‘issues’ and ‘contention’.
[18] The Black’s Law Dictionary, Seventh Edition, defines issues as follows:
“ A point in dispute between two or more parties.”
[19] Therefore, in the context of sub-rule 9(a)(ii), ‘issues that are in dispute’ refer to
the points of disagreement regarding the central question that must be ultimately
resolved by the court. For instance, a central question in a motor vehicle accident is
negligence; resolving this central question may require consideration of issues such
as whether the defendant was speeding or failed to keep a proper lookout. These are
the points of disagreement that must be resolved to ultimately determine the central
question (negligence). Therefore, negligence cannot be characterised as an issue that
is in dispute for purposes of the sub-rule.
[20] Accordingly, it is not sufficient for a party to say that the merits or quantum is
an issue that is in dispute, as litigants often do . Merits are a broad term referring to
the various facts supporting a case. Black’s Law Dictionary defines merits as follows:
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“1.The elements or grounds of a claim or defense; the substantive considerations
to be taken into account in deciding a case, as opposed to extraneous or technical
points, esp. of procedure<trial on merits>. 2. Equity (3)<on questions of
euthanasia, the Supreme Court has begun to concern itself with the merits as well
as the law>.”
[21] I now move to deal with the definition of the term ‘contention’. In simple terms,
contention is an argument or assertion. So , in the context of sub -rule 9(a) (ii), a
contention is an argument or a statement in support of the issue that is in dispute or
point of disagreement.
[22] What is contemplated by the sub-rule may be equated to heads of argument or
written closing submissions. That is what is expected to be set out in a joint statement
under the sub-rule.
[23] The key feature of the sub-rule is that the parties must engage earnestly to
clearly identify the points of disagreement. What is the remedy of a party if his or her
opponent refuses to engage? Our practice directives provide a potent and useful
remedy: the invocation of Rule 30A. The potency of this rule is that the defaulting
party’s claim may be dismissed or its defence struck out for failure to comply, thus
curtailing the proceedings with the end result that the compliant party will get judgment
in its favour on an unopposed basis should it be successful in the Rule 30A
proceedings.
[24] Clause 3.12 of the April 2025 Practice Directives provides as follows:
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“Any party may invoke the provisions of Rule 30A in the event of a defaulting
party’s failure to comply with the court rules or with an order or direction issued by
a Case Management Judge during a judicial case management conference.”
[25] Failure to cooperate in the proper completion of a joint statement of issues as
required by sub-rule 9(a)(ii) is a failure to comply with the court rules as contemplated
in clause 3.12 of the Practice Directives. Accordingly, the party that does not receive
cooperation from another must seek relief in terms of Rule 30A. Therefore, the
aggrieved party cannot be assisted by having the matter certified as trial-ready, and I
have observed that the aggrieved party often implores the court to do so. This would
defeat the purpose of the sub-rule, which is to refer matters to trial with clearly defined
issues for determination.
[26] The purpose of a joint statement where issues in dispute are clearly defined is
to assist the trial judge in understanding the issues that ought to be determined without
wasting time on issues that are not in dispute. In addition, proper engagement when
completing a joint statement may lead to settlement, thus curtailing the proceedings
and saving costs.
[27] The importance of clearly defining issues is stated in the case of HAL obo MML
v MEC For Health 2022 (3) SA 571 SCA, where the SCA made reference to rule 37A
at paragraph 198, where it said the following:
“[198] This diffuse, unfocused approach to the conduct of complex litigation is to
be deprecated. If the issues are not properly and clearly defined the conduct
of the trial cannot be controlled in a properly efficient manner. On appeal,
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by which stage the issues should have been clear and the alleged
negligence defined in terms of the acts or omissions of specific individuals,
HL's counsel contented themselves with saying that the appellant's case
was that: ‘as a result of her prolonged l abour and the lack of attention and
medical care she received, in particular the failure by the personnel to
properly monitor her and the foetal in order to either expedite delivery or
perform an emergency caesarean section delivery upon detecting foetal
distress, [MML] suffered a hypoxic ischemic insult in the intrapartum period.’
The heads of argument proceeded by saying that the trial focused on an
almost complete absence of hospital records and submitting that the res
ipsa loquitur principle should be applied. The impression is that even at this
stage the precise basis of the claim is uncertain.
[199] The remedy is straightforward. In any case where the pleadings and pre -
trial procedures have not resulted in a clear statement of the issues, the
trial judge should require the parties to deliver a statement of the issues in
accordance with Rule 37A(9)(a), that is, a statement of what is not in
dispute and a statement of what is in dispute, setting out the parties'
respective contentions on those issues. If the matter is subject to judicial
case management under that rule such a detailed statement is a
requirement. If it is not, it is within the judge's powers, under Rule 38(8)(c)
and their inherent power to regulate the proceedings, to require that such a
statement be provided.”
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[28] As spelt out by the SCA, the joint statement must be detailed : the issues in
dispute must be clearly defined, and the contentions made must be clear.
Discussion
[29] I now turn to consider whether there was compliance with sub -rule 9(a) (ii) in
both cases. I shall first deal with the Mabunda case.
Mabunda Case
[30] In this case, in an attempt to comply with the sub-rule, the parties state the
following at paragraphs 4 to 4.2.4 of their joint statement:
“4.1 PLAINTIFF
4.1.1 Future medical expenses:
Future medical treatment has been defined and set out in the
medico-legal reports by the orthopaedic surgeon, physician and
occupational therapist. According to the available expert
evidence, the Plaintiff will require future medical treatment and
same will be proven at trial.
4.1.2 Past and Future loss of earnings – (Contingencies):
The Plaintiff’s future loss of earnings should be calculated based
on the difference between his pre - and post- accident earnings
potential as postulated by the industrial psychologist and by
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applying a higher -then-normal post -accident contingency
deduction for the increased chance of loss of future income. This
matter will be decided by the above Honourable Court based on
the evidence presented and summarised below.
4.2 DEFENDANT
4.2.1 Future medical expenses:
The plaintiff experts made recommendations for future medical
expenses. Defendant to take instructions. The issue of future
medical expenses is still in dispute.
4.2.2 Past and Future loss of earnings – (Contingencies if any):
The matter will only proceed on Contingencies. The issue of loss
of earnings is still in dispute.”
[31] The Plaintiff attempts to identify the issues. However , the statement is
insufficient because the issues a trial judge must decide in a dispute over future
medical expenses and past and future loss of earnings are not clearly defined. Parties
should clearly define the points of disagreement regarding future medical expenses
and past and future loss of earnings. For instance , with respect to loss of past and
future income, it should be stated whether the issue in dispute is the absence of proof
of income, a challenge to the basis of the actuarial calculations, or both.
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[32] As for the Defendant , it clearly fails in all respect s, as it still refers to taking
instructions regarding future medical expenses. Accordingly, in the absence of
instructions, no point of disagreement can arise in relation to the dispute.
[33] Accordingly, in relation to the Mabunda case , I find that the Plaintiff attempted
to comply with the sub -rule, and the Defendant clearly failed to take the process
seriously.
[34] In the premises , I find that the parties have not complied with the sub -rule. I
further find that the main cause of the non-compliance is attributable to the Defendant.
Metiso Case
[35] In an attempt to comply with the sub -rule, th e parties say the following in
paragraph 4.2:
“4.2 The issues that are in dispute (Rule 37A(9)(a)(ii)
Plaintiff outline issues which are in dispute for purposes of Rule 37A 9 (a)(ii)
4.2.1. All issues in the case relating to merits and quantum are in dispute.”
The Plaintiff’s respective contentions are set forth below:
1. Orthopaedic Surgeon: Dr Z Umar
- The Orthopaedic surgeon appointed by the Plaintiff intends on testifying
on the medico -legal report as to the extent of the Plaintiff’s injuries
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sustained in the accident, as well as the seriousness of the above -
mentioned injuries.”
[36] Having stated as above, the Plaintiff proceeds to set out its contentions.
However, the contentions are not those that are contemplated in the sub -rule but
rather constitute what is contemplated in sub-rule (10)(e), where a party is required to
identify witnesses it intends to call and , in broad terms, set out the nature of the
evidence to be given by such witness. As set forth in the joint statement, the Plaintiff
identifies its expert witnesses and the nature of the evidence it will present at trial. As
explained above under applicable legal principles, contentions are arguments or
assertions similar to heads of argument.
[37] As for the Defendant, it simply says the following:
[37.1] That on the merits , the insured driver was not negligent , and that the
court will have to decide whether the insured driver was negligent. No
point of disagreement is identified in the negligence claim. The broad
statement that the insured driver was not negligent is insufficient.
[37.2] Regarding general damages, the Defendant states that it has not made
an election as to the seriousness of the injury and that the court therefore
lacks jurisdiction.
[37.3] On the question of loss of earnings, the Defendant denies the allegations
and the experts' opinions, leaving it to the Court to decide.
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[38] Accordingly, in this matter as well, I find no compliance with the sub-rule's
requirements.
Appropriate orders
[39] Under sub-rule 12(a), I may either certify that the matter is trial-ready or refuse
certification. Furthermore, I can put the parties on such terms as appropriate to
achieve trial readiness and direct them to report to the case management judge at a
further case management conference on a fixed date. In addition, I can make an order
as to costs, including order ing de bonis propriis against the parties’ legal
representatives or any other person whose conduct frustrates the objective of the
judicial case management process.
[40] The Defendant’s conduct in both cases falls short of what is required of a litigant
seeking to finalise the cases. In both cases, the Defendant either makes bare denials
on the issues or ha s no instructions. Were it not for the Plaintiffs' failure to comply in
some respects, I would have issued a punitive cost order against the Defendant.
[41] In the premises, I make the following order:
41.1 The matters are not trial-ready.
41.2 The parties are directed to hold a new case management conference
within 10 days of this order and to appear before a case management
judge 10 days thereafter , having compiled a joint statement which
complies with sub-rule (9)(a)(ii).
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Tel No: 066 303 4094
Email Address: fulufheloS@raf.co.za
METISO MEMORY NTOMBIFUTHI: CASE NO 3400/2021
For the Plaintiff: Mboweni and Partners Incorporated
Tel No: 013 752 4830
Email Address: info@mboweniandpartners.co.za
For the Defendant: Ms GP Mokoena
Instructed by: Office of the State Attorney
Link No: 4998423
Email Address: gugum1@raf.co.za