IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case No.: 9105/2023
In the matter between:
AGGRIPPA MUDAVANHU NHUNGE Applicant
And
ROAD ACCIDENT FUND Respondent
Coram: Francis J
Heard: 24 April 2026
Delivered: 13 May 2026
ORDER
______________________________________________________________________
The respondent is ordered to pay the applicant’s costs of this application on the scale as
between attorney and client, such costs to include counsel’s costs on Scale A in terms of
rule 67A of the Uniform Rules of Court.
______________________________________________________________________
JUDGMENT
_____________________________________________________________________________________
FRANCIS, J:
Introduction
[1] On the morning of the hearing, the parties resolved the substantive disputes
between them by agreement. The terms of the settlement were embodied in a
consent order taken that day, directing the Road Accident Fund (‘Fund’) to make
the decision required by regulation 3(3)(dA) of the Road Accident Fund
Regulations, within a stipulated period, in respect of the applicant’s RAF 4 serious
injury assessment report. The only matter remaining is the question of costs. The
parties were unable to agree on it and invited the court to determine that question,
and its scale, on the papers and on argument from the bar.
[2] Applications of this kind, in which a claimant seeks to compel the Fund to
discharge its duty under regulation 3(3)(dA), have become a recurring feature of
this Division’s motion roll. That pattern, and what it suggests about the Fund’s
approach to such litigation, calls for a fuller treatment of the applicable principles
than the question of costs would otherwise require.
The principles governing costs after settlement
[3] Where the parties have settled the substantive issues and only costs remain, the
court need not conduct a full investigation of the merits. It conducts such an
examination of the papers and entertains such an argument as is sufficient to form
a view on where the merits and the conduct of the litigation are likely to have lain.
The locus classicus is Gamlan Investments (Pty) Ltd and Another v Trilion Cape
(Pty) Ltd and Another 1996 (3) SA 692 (C).
[4] In Gamlan at 700F–701C, the court, drawing on Jenkins v SA Boilermakers, Iron
and Steel Workers’ and Ship Builders’ Society 1946 WLD 15, held that a court
asked to determine costs after settlement should not descend into adjudicating the
merits, but must be sufficiently informed to make a just and sensible order. The
question, as the court there put it, is whether, had the matter proceeded, one side
would have been “substantially successful” on the material before the court. That
is the inquiry I undertake below.
[5] That approach falls to be applied against the more familiar general rules. Costs lie
in the discretion of the trial court, a discretion to be exercised judicially. In Fripp v
Gibbon & Co 1913 AD 354 at 363, Innes ACJ stated the test in terms still applied:
“… the law contemplates that he [the trial judge] should take into
consideration the circumstances of each case, carefully weighing the
various issues in the case, the conduct of the parties and any other
circumstance which may have a bearing upon the question of costs, and
then make such order as to costs as would be fair and just between the
parties.”
[6] Subject to that overriding discretion, the general rule is that costs follow the result
(Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996 (2) SA 621 (CC) at para 3; Graham v Odendaal 1972 (2) SA 611 (A) at
616A). The function of a costs order is to provide the successful party with an
indemnity for the expense to which it has been put by the litigation ( Texas Co (SA)
Ltd v Cape Town Municipality 1926 AD 467 at 488).
[7] Two points follow. The first is that “success”, for purposes of the cost’s inquiry, is
[7] Two points follow. The first is that “success”, for purposes of the cost’s inquiry, is
assessed in substance and not in form. Where a respondent concedes the
substantive relief sought on the day of the hearing, the applicant is ordinarily to be
regarded as the successful party (see Maluleko v Total SA (Pty) Ltd [2023]
ZAGPJHC 161). The second is that the court is entitled to weigh the
reasonableness of the parties’ respective positions, their pre -litigation conduct,
and the degree to which the opposition was bona fide and substantial. That much
follows from Fripp.
The factual and procedural matrix
[8] A short summary of the relevant facts is sufficient. The applicant was injured as a
pedestrian in a motor collision on 18 March 2022. He lodged a claim with the Fund
on 19 October 2022. By letter dated 7 February 2023, the Fund acknowledged
receipt of the lodgement documents and called for further information. On 31
January 2024, the applicant delivered to the Fund a RAF 4 serious injury
assessment report, with a medico -legal report by Dr MB Deacon, an orthopaedic
surgeon. From that date, regulation 3(3)(dA) gave the Fund 90 days within which
to accept the assessment, reject it with reasons, or direct the claimant to submit to
a further assessment. The 90 -day period expired on or about 30 April 2024. No
decision was taken. On 26 June 2024, the applicant’s attorneys demanded a
decision within 30 days. No substantive response was received. The application
was launched in due course, and the Fund opposed it. By the time the answering
affidavit was deposed to on 13 June 2025, more than a year had elapsed since the
90-day period expired.
[9] The Fund’s opposition rested on three grounds, which, while analytically
separable, were advanced as a single integrated defence:
(a) that the applicant’s underlying claim had been validly rejected on 7
February 2023 for non -compliance with section 24 of the Act, and that the
rejection remained valid and binding until set aside on review, invoking the
principle in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222 (SCA), as applied to the Fund in Road Accident Fund v
Duma and Others 2013 (6) SA 9 (SCA);
(b) that the applicant had in any event failed to comply with the lodgement
requirements of section 24, read with Board Notice 271 of 2022 and the
new RAF 1 form promulgated under it; and
(c) that the applicant’s remedy, if any, lay in review proceedings under the
Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) and not in
compulsion proceedings of the kind brought before the court.
Evaluation of the merits for costs purposes
[10] Following the approach in Gamlan, I turn to consider whether, had the matter been
argued to conclusion, the applicant would probably have been substantially
successful. I do so only for purposes of disposing of costs.
(a) The reliance on Oudekraal and the letter of 7 February 2023
(i) The premise of the Fund’s reliance on Oudekraal, as applied in Duma, is
that there exists an administrative decision rejecting the applicant’s claim,
that the decision has not been impugned by way of review, and that until
set aside , it stands and produces legal consequences. That premise
depends on the letter of 7 February 2023 being a decision of that character.
It is not. The letter records receipt of the lodgement documents and asks
for further information. It does not invoke section 24, identify any non -
compliance, or convey any final view that the claim is invalid. A request for
further documents is not a refusal of the claim.
(ii) There is a further difficulty with this defence. Even if the letter of 7 February
2023 had constituted an administrative decision, it could only have related
to the lodgement of the claim under section 24. It could not have been a
decision under regulation 3(3)(dA), since the trigger for that regulation, the
delivery of a RAF 4 serious injury assessment report, did not occur until 31
January 2024, almost a year later. The relief sought was not the setting
aside of any rejection of the claim. It was the compulsion of a peremptory
statutory duty in respect of a separate document delivered long after the
letter relied upon. Oudekraal and Duma presuppose the existence of an act
capable of producing legal consequences for the question in issue. A
decision under section 24, even if one had been taken, could not dispose of
an obligation that had not yet arisen.
(b) Substantial compliance with section 24
(i) The second leg of the defence was that the applicant had failed to comply
with section 24, by not lodging on the prescribed RAF 1 form, with the
result that no valid claim was before the Fund and no duty to elect arose
under regulation 3(3)(dA). The proper approach to non -compliance with
section 24 was settled long before this dispute by the Supreme Court of
Appeal in Pithey v Road Accident Fund 2014 (4) SA 112 (SCA) and
reaffirmed in Road Accident Fund v Busuku 2023 (4) SA 507 (SCA) . The
lodgement requirement is satisfied where the claim form, taken with the
supporting documents, contains sufficient information to enable the Fund to
investigate the claim. The principle is one of substantial, not perfect,
compliance.
(ii) Applied to the present case, the lodgement meets that standard. The
applicant submitted a completed claim form with the supporting documents
required by the Fund’s own checklist. The answering papers do not identify
a single piece of information necessary to investigate the claim that was , in
fact, missing. The complaint is one of form, not of substance, of the kind
that the Supreme Court of Appeal in Pithey held insufficient to invalidate a
lodgement.
(iii) Substantially identical arguments by the Fund were considered and
rejected by this Division in Maarman and Others v Road Accident Fund
[2025] ZAWCHC 106. The court there held that a claim lodged in
substantial compliance with the prior RAF 1 form, supported by the
documentation reasonably required for investigation, satisfied section 24,
and that the Fund could not point to mere form -related differences as a
basis for treating the claim as a nullity. That reasoning, which accords with
Pithey and Busuku, I respectfully endorse.
(iv) The Fund’s own conduct also tells against the section 24 point. The
lodgement documents were not returned to the applicant. The applicant
was not notified that the claim was invalid for non -compliance with section
24. The Fund engaged with the claim, called for further information, and, in
due course, received and held a RAF 4 form for almost two years without
invoking any deficiency in lodgement. Having dealt with the lodgement as a
valid one for almost two years, the Fund cannot now treat it as a nullity to
defeat a duty that has since matured against it.
(c) Board Notice 271 of 2022
(i) Closely allied to the section 24 point was the Fund’s reliance on Board
Notice 271 of 2022 and the new RAF 1 form promulgated under it. The
submission was that the lodgement was deficient because it did not employ
the new prescribed form. Well before the Fund’s answering affidavit was
deposed to, that very instrument had been declared invalid. In Legal
Practitioners’ Indemnity Insurance Fund NPC and Others v Road Accident
Fund and Others 2024 (4) SA 594 (GP), a full court of the Gauteng Division
declared Board Notice 271 of 2022, and the new RAF 1 form prescribed
under it, invalid and set them aside. The Fund’s appeal against that order
was dismissed by the Supreme Court of Appeal in Road Accident Fund and
Others v Legal Practitioners’ Indemnity Insurance Fund, NPC and Others
[2026] ZASCA 63, delivered on 30 April 2026.
(ii) The consequence is that the Fund cannot, in defence of its inaction, invoke
a regulatory instrument that has been struck down. The applicant’s
lodgement falls to be assessed against the prior, valid prescriptions. As I
have already said, it satisfied those requirements in substance.
(iii) That the Fund continued to advance reliance on Board Notice 271 of 2022
in these proceedings, more than a year after it had been declared invalid by
the full court, is a matter to which I return below.
(d) The "PAJA-only" defence
(i) The third strand of the Fund’s opposition was that the applicant’s remedy, if
any, lay in review proceedings under PAJA, and not in compulsion
proceedings of the kind brought before the court. The argument calls for
care, since the relationship between common -law mandamus and PAJA’s
failure-to-decide jurisdiction is not as straightforward as the Fund’s
submissions suggested.
(ii) The applicant’s complaint was a failure to act, not an act done. PAJA
contemplates that failure: section 6(2)(g) renders the failure to take a
decision reviewable, and section 6(3) provides for relief where an
administrator has failed to decide within a prescribed period. The relief
sought in this application, an order compelling the Fund to take the decision
required by regulation 3(3)(dA), is in substance available under PAJA. The
question is therefore not, as the Fund framed it, “PAJA or no PAJA”, but
whether the procedural vehicle adopted by the applicant was an
appropriate one.
(iii) So framed, the answer is straightforward. Where a statutory functionary has
failed to discharge a peremptory duty, an application to compel the
performance of that duty is an orthodox procedural vehicle, whether
characterised as a mandamus at common law or as relief under section
6(3) of PAJA. The substantive complaint, the relief sought, and the legal
basis upon which it is sought are all identified in the founding papers. The
Fund did not contend in its answering affidavit that the application's
procedural form prejudiced it, and no such prejudice could have arisen. The
argument that the application was incompetent because it was not styled as
a PAJA review must fail. That conclusion accords with Maarman.
(e) The Fund’s peremptory duty under regulation 3(3)(dA)
(i) Underlying each of the three defences is a more basic point. Regulation
3(3)(dA) imposes a peremptory duty on the Fund. Within 90 days of receipt
of a serious injury assessment report, the Fund must do one of three
things: accept the assessment, reject it with reasons, or direct the claimant
to submit to a further assessment. The provision uses the word “shall”, and
the structure of the regulatory scheme leaves no room for inaction. A
claimant who has lodged a claim and submitted a RAF 4 form is entitled, as
of right, to a decision within the prescribed period. Where no such decision
is taken, the claimant is entitled to come to court to compel one.
[11] Taken together, I am satisfied that, had the matter proceeded to a full hearing, the
applicant would probably have been substantially successful within the meaning of
Gamlan. The reliance on the letter of 7 February 2023 faced two difficulties, either
of which would likely have been dispositive: the letter is not, on its face, a
rejection, and on no view could it have addressed an obligation that arose almost
a year later. The section 24 objection ran against the substantial compliance
principles in Pithey and Busuku, and against the Fund’s own treatment of the
claim. The reliance on Board Notice 271 of 2022 was, by the date of the
answering affidavit, reliance on an instrument that had been struck down. The
procedural objection misconceived the nature of the relief sought. The settlement
on the day of the hearing gave the applicant the substantive relief he sought in
court. He is, on the test in Gamlan, to be regarded as the substantially successful
party, and the ordinary rule that costs follow the result applies.
The scale of costs
[12] The applicant seeks costs on the attorney -and-client scale. Such an order is
exceptional. It will be made only where the court finds that a party’s conduct has
exceptional. It will be made only where the court finds that a party’s conduct has
been vexatious, reckless, dishonest, malicious or frivolous, or is otherwise such as
to constitute an abuse of process ( Nel v Waterberg Landbouwers Ko -operatiewe
Vereeniging 1946 AD 597 at 607; Plastic Converters Association of SA v National
Union of Metalworkers of SA (2016) 37 ILJ 2815 (LAC) at para 46; and see Public
Protector v South African Reserve Bank 2019 (6) SA 253 (CC)). The Fund did not,
in its written submissions, address the scale of costs, save to oppose costs
altogether.
[13] Three features of the respondent’s conduct, taken together, persuade me that an
order on the attorney-client scale is warranted.
[14] The first is the duration and character of the breach. Almost two years passed
between the delivery of the RAF 4 form and the hearing. The Fund took no
decision, made no request for a further assessment, and offered no acceptable
explanation. That is not an isolated administrative oversight; it is a sustained
failure to perform a peremptory statutory duty owed to a claimant under a no -fault
compensation scheme, on the timely operation of which injured persons depend.
[15] The second is the character of the opposition. By June 2025, when the answering
affidavit was deposed to, each of the principal grounds of opposition was
foreclosed by binding or persuasive authority. The reliance on Board Notice 271 of
2022 had been overtaken by the full court’s judgment in LPIIF more than a year
earlier. The section 24 argument ran counter to the substantial compliance
principles laid down by the Supreme Court of Appeal in Pithey and Busuku. It had
been applied to near -identical facts in Maarman. The Oudekraal defence rested
on a letter that, on any fair reading, was neither a final decision nor directed at the
RAF 4 assessment. A litigant is, of course, free to advance arguable points. But to
press, as a single integrated defence, arguments that the case law had closed
against the Fund, while the underlying duty remained unperformed, is a factor that
may legitimately be factored into the cost award.
[16] The third is the lack of attention to the specific facts. Material portions of the
answering affidavit, notably paragraphs 21 and 23, correspond closely to
answering affidavit, notably paragraphs 21 and 23, correspond closely to
submissions recorded in Maarman. I do not draw any conclusion as to whether or
how the affidavit was prepared. It is enough to record that the answering papers
do not, on their face, engage with the features of this claimant’s lodgement, the
documents he supplied, or the period of inactivity that followed. An answering
affidavit which confines itself to recycled jurisdictional objections, without engaging
with the particulars of the claim before the court, tends to confirm that the
opposition was not substantial in the relevant sense.
[17] I am aware of the systemic pressures under which the Fund operates, including a
high volume of claims, well -known administrative constraints, and a workforce
processing matters at scale. None of that displaces the rule that a public body
must act lawfully, must perform its peremptory duties within the periods prescribed
by the legislature, and must, when it litigates, observe the same standards of
reasonable conduct as any other party. As the Constitutional Court reaffirmed in
Public Protector v SARB , the higher standard of conduct expected of public
officials extends to the conduct of litigation. That obligation is not relaxed by the
volume of claims under management.
[18] It does not assist the Fund that it conceded the substantive relief on the day of the
hearing. The applicant had by then incurred the expense of preparing and
prosecuting the application in its entirety. A late concession does not
retrospectively erase the costs occasioned by earlier opposition . It still leaves the
question of costs unresolved.
[19] In all the circumstances, the conduct of this litigation crosses the threshold for an
order on the attorney-client scale, and I am satisfied that such an order is fair.
The allegation that the application was premature
[20] In its written submissions and in correspondence preceding the hearing, the Fund
contended that the application was premature because the applicant ought to
have launched a PAJA review of the supposed decision of 7 February 2023 before
bringing compulsion proceedings. The point was not p ursued at the hearing and,
in any event, is not persuasive. The letter of 7 February 2023 was not a decision
in any event, is not persuasive. The letter of 7 February 2023 was not a decision
rejecting the claim. Even if it had been, the Fund’s actions could not preclude a
claimant from approaching th e court to compel the discharge of a separate
peremptory duty arising under regulation 3(3)(dA) (see Maarman). The applicant
gave clear notice of his intention to bring this application in his attorneys’ letter of
26 June 2024 and waited almost a year before launching it. The litigation was
neither precipitate nor misconceived. It became necessary because the Fund
failed to act.
Counsel’s fees
[21] Counsel for the applicant asked that any costs award include the costs of counsel
under rule 67A of the Uniform Rules of Court, taxed on Scale A. That is the
appropriate scale. While the application raised certain questions of law, it was
argued as an ordinary opposed motion. The principal legal issues, namely the
relationship between section 24 and regulation 3(3)(dA), the application of the
Oudekraal and Duma principles, and the consequences of the LPIIF declaration,
had already been canvassed in earlier judgments of this and other Divisions.
Scale A reflects the complexity of the matter as it was actually argued.
Order
[22] I make the following order:
The respondent is ordered to pay the applicant’s costs of this application on the
scale as between attorney and client, such costs to include counsel’s costs on
Scale A in terms of rule 67A of the Uniform Rules of Court.
____________________
M FRANCIS
Judge of the High Court
Appearances:
For Applicant: Adv Naseerah Essa
Instructed by: Campbell Attorneys
For Respondent: Mr Brett Lategan
Instructed by State Attorney (Cape Town)