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[2026] ZAGPPHC 290
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Road Accident Fund v Ruele and Others (A321/2024) [2026] ZAGPPHC 290 (14 April 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: A321/2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE
2026-04-14
SIGNATURE
In
the matter between:
THE
ROAD ACCIDENT
FUND
Appellant
and
LISBETH
RUELE
First Respondent
MALEPE
ATTORNEYS
Second Respondent
SHERIFF
PRETORIA
EAST
Third Respondent
THE
LEGAL PRACTICE
COUNCIL
Fourth Respondent
This
judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to
the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The date
for handing
down is deemed to be 14 April 2026.
JUDGMENT
POTTERILL J
Introduction
[1]
On 19 January 2024, Marumoagae AJ dismissed an application for
rescission of a judgment
granted by default on 15 February 2021
against the Appellant, the Road Accident Fund [the RAF]. The default
judgment was granted
for loss of earnings in the amount of
R5 368 308.00. This appeal is before us pursuant to the
Supreme Court of Appeal
granting leave to appeal to the Full Court of
this Division.
The common cause facts as
background to the matter.
[2]
Prior to this default judgment being granted, the parties partially
settled the matter
in that the RAF accepted 100% liability for the
First Respondent, Lisbeth Ruele’s [Ruele] proven or agreed
damages. Furthermore,
the RAF provided an Undertaking in terms of
Section 17(4)(a) of the Act for future medical expenses and settled
the quantum for
general damages in the amount of R500 000.00.
The only outstanding issue was the claim for loss of income
[3]
Malepe Attorneys, the second respondent, did not file any affidavit
in opposition
to the rescission. The Third Respondent, the Sheriff,
Pretoria East and the Fourth Respondent, the cited Legal Practice
Council,
did not participate in the proceedings.
[4]
The erstwhile attorney of Ruele on 21 May 2019 served on the RAF a
notice of set down
for trial on 30 November 2020. This notice was
withdrawn and simultaneously gave notice of set-down for the trial of
15 February
2021. Whether this was a regular set-down is in dispute.
[5]
On 27 August 2021, Ruele served a writ of execution on the RAF. The
RAF responded
by issuing an urgent application seeking the suspension
of the operation and execution of the default judgment and writ of
execution.
[6]
The RAF, pursuant to assessing the claim for loss of earnings, made a
partial payment
to Ruele in the sum of R2 156 050.00. The
payment was made on 21 September 2021.
[7]
On 6 October 2021, Davis J granted the RAF’s urgent application
by ordering
the stay of execution pending the institution of and
finalization of an application for rescission within 20 days of the
order.
[8]
On 7 October 2021, the attorneys for Ruele sent an email to the
attorneys of the RAF
with the following proposal:
“
Please
notice that we propose that this matter be retried.
On condition that you
appoint your own experts, IP Actuary and others if necessary.
Then you await for us to
supply you with additional medical records of the claimant.
Further, the Plaintiff’s
attorney will appoint new orthopaedic and physiotherapist.
Then
do the joint minutes and restart negotiations.
If not possible of being
settled parties, then go to court to determine final settlement.
We are
urgently looking forward to hear from you.”
[9]
On 1 November 2021, the RAF sent an email seeking Ruele to abandon
the judgment in
terms of Rule 42 for the parties to start from a
clean slate. She also enquired whether, on behalf of Ruele, further
experts were
appointed and informed that the RAF will appoint
experts.
[10]
On 3 November 2021, on behalf of the RAF, a further email was sent to
Ruele’s attorney
wherein the following is stated:
“
We
accepted that proposal and requested that the judgment be formally
abandoned to start afresh.”
And
“
We
expect you to honour the agreement reached about this matter being
retried, please serve the notice of Abandonment of the February
2021
judgment without delay.”
[11]
On 21 November 2022, the attorney for the RAF emailed Ruele’s
attorney, placing on record
inter alia that they did not proceed with
the application for rescission because of the agreement reached to
retrial the matter.
The response to this email is that: “The
judgement granted by Judge Davis was the misleading one. Since you
have been threatening
to appoint experts and even to the date nothing
has happened.” There is an immediate response questioning on
what basis Judge
Davis’ judgment is misleading, and that the
RAF had reassessed the claim and paid the amount for loss of income.
Should they
not be happy with the amount paid, they should in terms
of their agreement, place the matter on the trial roll as agreed for
re-trial.
[12]
On 25 November 2022, Mr. Malepe wrote to the RAF attorney that they
had no agreement and made
disparaging remarks about the attorneys for
the RAF and again remarked that Judge Davis’ judgment was
misleading.
[13]
No further procedural steps were taken until July 2023, when Ruele
proceeded to execute a further
warrant of execution. The sale in
execution was scheduled for 25 July 2023. The RAF brought an urgent
application to suspend the
operation and execution of all warrants of
execution pending the application for rescission of the default
judgment granted to
be brought by the RAF. Such order was granted by
Labuschagne J.
[14]
An application for leave to appeal against the suspension order
granted by Labuschagne J was
sought. This application was dismissed
on the basis that a suspension order is not a final order and there
were no compelling grounds
to grant leave to appeal. A petition to
the Supreme Court of Appeal against the refusal to grant leave to
appeal was lodged but
was dismissed with costs by the Supreme Court
of Appeal. A direct access appeal to the Constitutional Court was
brought but was
dismissed and pursuant to Directions issued by the
Constitutional Court pertaining to costs the Court ordered that “the
costs
of the application should be paid by Mr Selaelo Malatji
de
bonis propriis.
”
[15]
On 26 July 2024, de Vos AJ refused an urgent application from Ruele
for a “counterclaim”
and declared that Labuschagne AJ’s
order is interlocutory and not susceptible to
s18(2)
of the
Superior
Courts Act 10 of 2013
. A
de
bonis propriis
cost order
was granted against Mr. Malatji pursuant to submissions made after
the costs were reserved.
[16]
Neither party filed further reports.
The hearing of the appeal
[17]
I find it necessary to highlight the following during the hearing of
this Appeal. Mr Malatji
was informed by means of email prior to the
hearing that no Heads of Argument had been filed on behalf of Ruele.
A response was
received that Heads would be filed shortly before the
hearing. Another email was sent informing him that that would not be
acceptable
as it is not in terms of the Rules of Court or the
practice at the High Court.
[18]
The evening before the hearing Heads of Argument were uploaded onto
caselines. I find it necessary
to quote these “Heads of
Argument”:
“
1.
Firstly, it is inconceivable, irregular, and constitutes an abuse of
the Uniform Rules
of Court and rule of the law as to how the RAF’s
purported legal team, Mr Rip, once struck off the roll Mr Pillay and
deranged
attorney Sunelle who just falsely instituted this appeal
randomly.
2.
The whole appeal is meritless and incompetent.
3.
The RAF has acquiesced itself of the judgement by making payment of
both capital
amount and the costs purported to be appealed by the
so-called an imposed legal team of the Road Accident Fund.
4.
The 1
st
Respondent reserve rights to advance more
argument, points of the law at the hearing of the appeal.
5.
Wherefore, the Respondent Ms Ruele prays from the appeal to be
dismissed with
punitive costs
de bonis propriis
against
deranged purported legal team of the RAF Mr C Rip, Mr T Pillay and
attorney Sunelle Eloff together with Road Accident Fund
one to pay
another to be absolved.”
[19]
It speaks for itself that this document does not constitute Heads of
Argument. Heads of Argument
is a written summary of the legal
arguments, facts, and authorities a party intends to present in
court. It is submitted prior to
the hearing to assist the Judges
hearing the Appeal. It acts as a roadmap for the case, highlighting
key issues, addressing legal
principles, and rebutting the opponent’s
arguments.
[20]
But, more disturbingly, it contains derogatory, disparaging and
unbecoming remarks about the
legal team of the RAF.
[21]
When confronted with why the Heads of Argument were filed so late, it
was met with the argument
that there is no Rule providing when Heads
must be filed, and Directives in terms of a SCA decision are not
Rules. Mr Malatji is
seemingly unaware of Rule 49(15) that requires a
respondent to an appeal to file Heads of Argument 10 days before the
hearing of
an appeal. He displayed a total disrespect to this Court.
[22]
Mr Malatji then insisted that the Court strike the Appeal because
there was no power of attorney
for the RAF. The Counsel for the RAF
handed up a power of attorney by the new board of the RAF submitting
to the Court that at
every hearing Mr Malatji sought to have the
matter struck due to a lack of a power of attorney. There was, as
required, another
power of attorney uploaded onto caselines, but as a
precaution, this power of attorney was obtained from the new board of
the RAF.
There was compliance with filing a power of attorney and
this point is dismissed.
[23]
The further argument raised was that the RAF had not complied with
Rule 49, but this appeal emanated
from a ruling by the Supreme Court
for the Full Court to entertain the Appeal and did not follow upon
leave being granted by the
Court a quo. It was not “falsely”
and “randomly” instituted.
The Court a quo’s
decision.
[24]
The application for rescission was brought in terms of Rule 31(6)(a)
that reads as follows:
“
Any
person affected by a default judgment which has been granted, may, if
the plaintiff has consented in writing to the judgment
being
rescinded, apply to court in accordance with Form 2B of the First
Schedule to rescind the judgment, and the court may upon
such
application rescind the judgment.”
[25]
Rule 31(6)(b) caters for the situation where there was a judgment
granted against a judgment
debtor and the judgment debtor paid the
judgment debt, interest and costs in full. No consent from the
judgment creditor is required,
only proof that the judgment debt was
paid in full.
[26]
The Court a quo did an analysis of Rule 49 of the Magistrate’s
Court Act, the equivalent
to Rule 31(6), and the case law thereon
relevant to Rule 31(6)(b) and not Rule 31(6)(a). The Court a quo did
draw a distinction
between the purpose of Rule 31(6)(a) and Rule
31(6)(b) on the basis that there was no good cause requirement in
Rule 31(6)(a).
The Court came to the following conclusion:
“
[69]
The wording of both
section 23A
of the
Superior Courts Act and
Rule
31(6)(a) of the Uniform Rules of Court suggest that rescission
applications can only be brought in terms of these provisions
where
there is no possibility of judgment creditors opposing these
applications. Where written consent has been granted there will
generally be no need for these matters to go back to trial or to be
reconsidered by the courts. There will also be no need for
judgment
debtors to demonstrate that they have
bona
fide
defenses (sic). Surely, judgment
creditors who are likely to consent in writing to these applications
are those who are no longer
pursuing claims against judgment debtors.
[70]
It is clear to me that not every judgment debtor can rely on Rule
31(6)(a) of the
Uniform Rules of Court. To allow every judgment
debtor to rely on this rule will render Rule 31(2)(b), Rule 42(1),
and the common
law redundant by allowing judgment debtors to
unreasonably delay bringing their rescission applications and excuse
themselves from
explaining to the court why they brought their
applications late. This will make a mockery of rescission
applications and lead
to abuse of untold proportions.
[71]
This will create a situation where judgment debtors who did not fully
comply with their
obligations to their judgment creditors and desire
to have their matters retried or reconsidered not to satisfy the
court that
they have
bona fide
defences that can successfully
be raised should they be allowed to oppose or defend their matters.
Most importantly, this will incorrectly
empower these judgment
debtors not to apply for condonation when they eventually decide to
bring their rescission applications
to court. This cannot be allowed.
[72]
In my view, judgment debtors who desire to have their matters retried
or reconsidered
are not entitled to approach the court in terms of
this rule. They should approach the court in terms of Rule 31(2)(b),
Rule 42(1),
or the common law. In this case, given the fact that the
applicant has not fully satisfied its obligations to the first
respondent
and claims to have a
bona fide
defense (sic)
against the first respondent, the applicant cannot rely on Rule
31(6)(a) of the Uniform Rules of Court. If it was
competent for the
applicant to utilise this Rule, why did Davis J order the applicant
to bring its rescission application within
20 days of his order? In
my view, Davis J’s order implies that the applicant ought to
have relied on Rule 31(2)(b). It is
important to note that the
applicant failed to comply with this order.”
[27]
The Court was correct that the purpose of
inserting Rule 31(6)(b) was to address the problem of judgment
debtors having paid off
their debt but remained backlisted. They
could not in terms of rules 42, 31 and the common law seek rescission
of the judgment
because they did not have a bona fide defence.
[28]
Rule 31(6)(a) caters for when a “plaintiff”, not
described in the Rule as “a
judgment creditor” as in rule
31(6)(b), consented to rescission. The distinction is clear; rule
31(6)(a) caters for a different
scenario with the only barrier to
invoking the Rule is that the plaintiff must have consented. It
speaks for itself that if the
plaintiff consented, no further
requirements are necessary to invoke this Rule.
[29]
The Court erred in finding that the RAF could not in terms of Rule
31(6)(b), seek the rescission
of the default judgment. We would agree
that, in principle, Rule 31(6)(a) and (b) foresee unopposed
applications due to the requirements
of either written consent by the
judgment creditor or proof of payment of the debt. However, this does
not imply that such application
cannot be opposed by the judgment
creditor or plaintiff precisely because either there was no consent,
or insufficient payment
in terms of the default judgment. In casu the
dispute related to consent. The RAF did not seek to raise a bona fide
defence; it
contended that there was consent to a retrial, which
could only happen if the judgment was abandoned or rescinded. The RAF
did
not need to raise a bona fide defence for the rescission to be
granted. No judgment debtor can utilize this Rule unless it can prove
consent of the judgment creditor and therefore it can never render
Rules 42, 31 and the common law rescissions redundant. It is
very
seldom that a judgment creditor would have consented, excepting if
there was full compliance with the default judgment or
some other
compelling reason. Rules 42,31 and the common law rescissions would
stay highly relevant and most used. A judgment debtor
could never be
successful in utilising this Rule to circumvent condonation
applications if no written consent is attached, or could
be proved,
and would not be the tool used to circumvent condonation for the late
filing of a rescission application.
[30]
The Court further erred in relying on Davis J’s order of the
rescission application to
be brought as corroboration for his
reasoning. It is practice when granting a suspension order to insert
a time frame for the rescission
application to circumvent a position
where a warrant is suspended and the judgment debtor takes no steps
to rescind the judgment,
rendering the warrant to stay suspended for
an indefinite period. The 20 days ordered can never be interpreted as
that Davis J
was implying that the RAF should have utilized Rule
31(2)(b). The basis on which the implication was deducted is wrong in
fact
and law.
[31]
Another factual misdirection from the Court a quo is the finding that
there was no instruction
from Ruele to her attorney to make the
proposal for a re-trial. Ruelle herself was clearly aware of the
proposal made by her attorney
because in her answering affidavit she
sets out that: “It is indeed true that my attorney made this
proposal, however it
was not explicitly or tacitly accepted.”
Furthermore, it was not Ruele’s case on the papers that she did
not give the
instruction to her attorneys to make such a proposal.
Was there consent?
[32]
The Court found there was no consent because there was no mandate
from Ruele [addressed above]
to make the proposal, incorrect reliance
on the ratio of Davis J [addressed above] and no acceptance of the
offer by the RAF.
[33]
The Rule requires written consent. In law, consent is the clear,
voluntary and conscious agreement
or permission given by a person
with legal capacity to engage in a specific act. The function of the
Court was to interpret the
emails setting out the offer and the
responses thereto, as well as the contextual common cause facts and
the apparent purpose of
the proposal in determining whether there was
consent to a rescission. The Court must interpret it objectively and
give a sensible
meaning to the proposal and its acceptance in
determining whether there was consent.
[1]
[34]
The proposal or offer speaks for itself and is not contested. The
offer, emanating from Ruele,
was that the loss of income must be
re-tried. In context it is important to note that the proposal is
made the day after the suspension
of the warrant of execution order,
inclusive of the order that the RAF must bring a rescission
application. Further context is
that the offer is made 2 weeks after
the RAF made a payment for the loss of income. A re-trial on the loss
of income is only possible
on two scenarios; if Ruele, who is making
the offer, abandons the default judgment, or the RAF proceeds with
the application for
rescission of the judgment. By making this
proposal while having an order in hand that the RAF must apply for
rescission, the proposal
has only two consequences; either it
consents to rescission, or Ruele knows it must abandon the judgment.
While not using the order
for rescission as a tool to force the RAF
to apply for rescission, the only sensible interpretation of the
offer is that they consented
to the rescission, or, as an
alternative, would abandon the judgment. The consequent email from
the RAF is correct in law seeking
the abandonment of the judgment.
[35]
It is correct that there is no direct acceptance of the proposal, but
there is most definitely
not a “no” to the proposal.
There is also not silence from the RAF pertaining to the offer.
Within 3 weeks it confirmed
that it accepted the offer to have the
matter retried and urged Ruele to abandon the judgment. It does so
again 4 days later. This
is not an unreasonable period of delay for
acceptance, and the RAF, in writing, confirmed it accepted the
proposal. It need not
bring an application for rescission because
Ruele had consented to the rescission or abandonment. A consent need
not be signed
by both parties; it is not a settlement agreement; it
is the acceptance of an offer, and the acceptor must convey its
acceptance.
The requirement of consent will be satisfied if consent
is embodied in the correspondence of the attorneys, no signatures are
required.
[36]
The finding of the Court criticising Labuschagne AJ in finding that
the email dated 3 November
2021 proved that there was consent is
factually incorrect. The Court a quo found that in this email there
is no reference to Ruele’s
proposal to retry the matter. I
repeat the relevant portion in the email: “
We
expect you to honour the agreement reached about this matter being
retried, please serve the Notice of Abandonment of the February
2021
judgment without delay.” Not only is the word “retried”
used, but it has clearly conveyed its acceptance
of the proposal. The
finding that there was no written acceptance is a misdirection.
[37]
The Court did not consider or make a finding on whether the offer was
conditional, and accordingly,
no ground of appeal was raised thereon.
This Court will accordingly only remark that the acceptance of a
proposal must be unconditional.
In the proposal the words “on
condition” is countered or nullified by the words “if
necessary” and thus
this offer was unconditional.
No
further requirements
Rule
31(6)(a) has no further requirements and we need not decide any
further issues despite much being made of the absence of the
RAF at
the hearing when default judgment was granted.
Conduct
of Mr Malatji
[38]
Mr Malatji in open Court orally referred to Ruele’s legal team
as “deranged.”
The Court requested him to refrain from
using such language. He persisted and was warned to desist from using
this language. Despite
this, Mr Malatji continued. The Court warned
him that this matter would be referred to the Legal Practice Council
attaching the
record of proceedings.
Costs
[39]
There is no reason why costs should not follow the result, including
the costs of two counsel,
one on scale B and one on Scale C.
[40]
The following order is made:
[40.1]
The appeal is upheld.
[40.2]
The judgment granted on 15 February 2021 is rescinded.
[40.3]
All warrants of execution premised on the default judgment are set
aside.
[40.4]
The Respondent can approach the office of the Deputy Judge-President
for a preferential trial date.
[40.5]
The conduct of Mr Malatji is referred to the Legal Practice Council
for investigation.
[40.6]
The respondent is to carry the costs of the appeal, including the
costs of two counsel, one on scale B and one on Scale
C.
S.
POTTERILL
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
I agree
N.G.M. MAZIBUKO
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
I agree
J. VAN DER MERWE
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
PRETORIA
CASE
NO:
A321/2024
HEARD
ON:
25
February 2026
FOR
THE APPELLANT:
ADV.
T. PILLAY
ADV.
C.M. RIP
INSTRUCTED
BY:
Malatji
& Co Attorneys
FOR
THE FIRST RESPONDENT:
MR.
S. MALATJI
INSTRUCTED
BY:
Malatji
S Legal Practitioners
DATE
OF JUDGMENT:
14
April 2026
[1]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA);
University
of Johannesburg v Auckland Park Theological Seminary and Another
2021
(6) SA 1
(CC) par [93]