REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
Case Number : 34467/2016
( l ) REPORT ABLE: NO
(2) O F INTEREST TO OTHER JUDG ES: NO
(3) REVISED.
In the appea l between:
ROAD ACCIDENT FUND
and
KA TERINA PA TTICHIDES
PIETER JACOBUS SMIT
MUNNI K
16 April 2026
DATE
PIETER JOHANNES OOSTHUIZEN
Applicant
First Responden t
Second Respondent
Third Respondent
Fourth Respondent
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MAGEZA M Fifth Respondent
MABEKO T Sixth Respondent
MTHEMBU SMT Seventh Respondent
FERREIRA MC Eighth Respondent
MATJILA MJ Nineth Respondent
KADERLI BM Tenth Respondent
THE SHERIFF OR HIS DEPUTY
PRETORIA EAST Eleventh Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
Introduction
[1] On or about 1 December 2023, t he applicant, the Road Accident Fund (“the
Fund”), brought an application for an order staying warrants of execution issued
at the behest of the first to tenth respondents against the applicant in respect of
judgments obtained against the Fund, pending the finalisation of an application
for rescission of the judgments.
[2] Only the first respondent opposes the relief claimed by the applicant.
Applicant’s case
[3] In order to obtain the relief sought, the Fund must establish that it has a prima
facie case for the rescission of the orders.
[4] In support of the claim for the rescission of the orders , the Fund avers that the
first to tenth respondents (“the respondents”) issued summonses against it
claiming inter alia payment of past medical expenses, which expenses “were
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awarded by the court at its own instance or by agreement with the legal
representatives of the Applicant in other instances.”
[5] Notwithstanding the allegation that the award of past medical expenses was, in
some instances, by agreement between the legal representatives of the parties,
the Fund stated that the orders were erroneously granted in its absence. In terms
of rule 42(1)(a), orders that were erroneously sought or erroneously granted in
the absence of a party affected by it may, on application, be rescinded or varied
by the court.
[6] Upon perusal of the orders, it appears that the fund was represented in the fourth
and seventh respondents’ matters. The orders were, therefore, not granted in the
absence of the Fund and do not fall within the ambit of rule 42(1)(a) .
Consequently, the relief sought against the fourth and seventh respondents
stands to be dismissed. The Fund is at liberty, if so advised, to seek leave to
appeal the orders.
[7] Insofar as the remain der of the respondents are concerned , the only factual
allegation supporting the rescission relief is contained in paragraph 28 of the
founding affidavit and reads as follows:
“The respective Court Orders were delivered to the Applicant for payment and upon
consideration of the content of these Court Orders, it came to the attention of the
Applicant that the Presiding Officers in these matters awarded the Respondent the costs
for past medical expenses which should not have been awarded when regard is had to
the provisions of the Act. I r eturn to this point later in the affidavit when I deal with the
merits of the application.” (own emphasis)
[8] It is not clear on what basis the content of the court orders could provide a factual
basis for a rescission application. Be that as it may, i n support of the rescission
relief, the Fund relies on an interpretation of section 17(5) and section 17(6) of
the Road Accident Fund, 56 of 1996, read with regulation 8 of the Medical
Scheme Regulations.
Scheme Regulations.
[9] These legal conclusions are, however, devoid of any factual averments. The
applicant simply does not know whether the past medical expenses awarded to
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the remainder of the respondents were paid by medical aid schemes. When this
dilemma was highlighted in court, Mr D Mosama, counsel for the Fund, indicated
that the Fund still had to establish whether the expenses were indeed paid by a
medical aid scheme.
[10] In amplification of the Fund’s lack of knowledge, Mr Vermeulen SC, counsel for
the first respondent, referred to an affidavit signed by the first respondent in which
she stated in no uncertain terms that she paid for her past medical and hospital
expenses. The affidavit forms part of the documents that were before the court
that granted judgment in her favour.
[11] It is untenable for a litigant to allow a default judgment to be granted and to
thereafter seek rescission of the judgment to investigate facts that might or might
not exist. Even if such conduct is countenanced, the law does not allow a litigant
to obtain relief, even on an interim basis, if the ultimate relief has no factual basis
whatsoever.
[12] Whether the applicant is correct in its legal conclusions can only be determined
once facts justifying the conclusions are averred.
[13] In the result, the applicant has failed dismally to establish a prima facie right to
claim rescission of the orders. Without a right to claim rescission of the orders,
the interim relief cannot be granted and stands to be dismissed.
Costs
[14] Costs should follow the result. Counsel’s fees on scale B.
Order
1.The application is dismissed.
2.The applicant must pay the costs of the first respondent. Costs of counsel on scale
B.
NSE VAN NIEUWENHUIZEN J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
DATE OF HEARING : 10 February 2026
DATE OF JUDGMENT 15 April 2026
APPEARANCES
Counsel for the plaintiff:
Instructed by:
Attorney for the defendant:
Instructed by :
Adv D. Mosoma
State Attorney
Adv P. Vermeulen SC
Adv C. Nell
Hagerman and Associates
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