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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Case No: 059387/2022
Reportable: No
Of interest to other Judges: No Revised: No
SIGNATURE
Date: 29 April 2026
In the matter between:
THE ROAD ACCIDENT FUND Applicant
and
MBAY SPECIALISTS (PTY) LTD 1st Respondent
THE SHEFIFF, PRETORIA EAST 2nd Respondent
In re:
MBAY SPECIALISTS (PTY) LTD Plaintiff
and
THE ROAD ACCIDENT FUND 1st Defendant
NOZUKO NXUSANI ATTORNEYS 2nd & Further
Defendants
2
JUDGEMENT
_____________________________________________________________________________________________
MOOKI J
1 The applicant (the RAF) seeks to have the Court rescind a judgement
granted in favour of the first respondent (Mbay Specialists). MBay
Specialists obtained a default judgment against the RAF on 19 April 2024,
in which an order was made that the RAF pay Mbay Specialists the amount
of R43, 901,113.04.
2 Mbay Specialists contends that the default judgement “relates to amounts
owing to Mbay by virtue of medico -legal services rendered to the RAF. The
claim is based on 2593 invoices relating to assessments conducted by Mbay
for the RAF.” The services, according to Mbay, were rendered either
directly upon instruction by the RAF or upon instruction from attorneys
instructed by and representing the RAF in various road accident fund
matters.
3 The RAF invokes Rule 41(1)(a), alternatively, the common law, as the bases
for the rescission. The RAF contends that the judgement was erroneously
sought or granted because Mbay Specialists served summons at a branch
office of the RAF, instead of service at the RAF’s main office in Centurion.
The RAF essentially contends that summons were not served in accordance
with the Rule, by having service effected at a principal place of business or at a
registered address, with the result that there was no proper service on the RAF
3
and that the RAF is thus entitled to the rescission.
4 Mbay Specialists contends that summons were properly served and that
the RAF did not enter a defence. It was submitted that service was effected
in terms of 4(1)(a)(viii), as shown in the sheriff’s return of service.
5 The return of service records, in part, as follows:
This is to certify that on the 19 th of January 2023 at 09:00 at 3[...] I[...]
STREET, MENLO PARK, PRETORIA, being the Principal Place of Business of
THE ROAD ACCIDENT FUND, a copy of the COMBINED SUMMONS WITH
ALL ANNEXURES was served upon MR T MOKHUTLE ADMINISTRATION
CLERK IN THE CLAIMS DEPARTMENT OF THE MENLYN OFFICE BRANCH),
…”
6 The service of summons was defective. This is the case even on the basis
that service was effected on the RAF as “a statutory body” as contemplated
in Rule 4(1)(a)(viii). Service on a statutory body must be effected on “the
secretary or similar officer or member of the board or committee” of a
statutory body. The sheriff effected service on an “administration clerk in
the claims department” at the RAF’s Menlyn office branch. Such service
does not comply with Rule 4(1)(a)(viii), even on accepting that the RA F is a
“statutory body” contemplated in the Rule.
7 The sheriff had in mind that he was effecting summons at the RAF’s
“principal place of business”, as expressly recorded in the return of service.
4
Service was effected at a branch of the RAF’s office. Mbay Specialists did not
take issue with the RAF’s assertion that the RAF’s main office is at
Centurion. That is the RAF’s principal place of business.
8 The purpose of Rule 42(1)(a) is to correct an error in the procedure that
was followed to obtain default judgment. 1 An applicant is, without further
ado, entitled to rescission once an applicant can point to an error in the
proceedings.2 An order is erroneously granted where there was no
procedural entitlement to such an order.3
9 The summons were not served on the RAF as required in the Rules. A
showing that summons were served other than as required by the Rules is
determinative, and the RAF is entitled to relief. It is unnecessary to
consider the RAF’s case for rescission based on the common law.
10 I make the following order:
(a) The order granted by Madam Justice Baloyi-Mbembele AJ under case
number 059387/2022 on 19 April 2024 is rescinded.
(b) The first respondent is ordered to pay costs, on Scale B.
O MOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
1 Freedom Stationery (Pty) Ltd and others v Hassam and others 2019 (4) SA 459 (SCA) at
465F-H and the authorities referred to therein.
2 Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 (ECD) at 471G-H.
3 Lodhi 2 Properties Investment CC v Bondev Developments [2007] ZASCA 85. Approved by
the Constitutional Court in Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet
N.O. [2017] ZACC 18, para 22
5
Counsel for the applicant: V J Chabane
Instructed by: X & Z Ngogodo Inc.
Counsel for the first respondent: V V Mabuza
Instructed by: Joubert Scholtz Inc.
Date heard: 6 March 2026
Date of judgment: 29 April 2026