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[2026] ZAGPJHC 564
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Burger N.O. obo Mamabolo v Road Accident Fund (Ex-Tempore) (45297/2021) [2026] ZAGPJHC 564 (21 May 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number: 45297/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
21/05/2026
In
the matter between:
ADV
W BURGER
N.O.
OBO RINDAU
MAMABOLO
Applicant
and
ROAD
ACCIDENT
FUND
Respondent
EX-TEMPORE
JUDGMENT
Mahosi,
J
[1]
The applicant seeks an order striking out the respondent’s
defence on the grounds that it failed to comply with
this court’s
order dated 18 September 2025, which directed the respondent to
arrange a date for a pre-trial conference within
10 days. The
applicant contends that the respondent only emailed proposed dates on
18 May 2026, and that the email was sent to
an incorrect email
address. The respondent thereafter sent the dates to the correct
email address on the day before this hearing.
[2]
It is common cause that the respondent did not comply strictly with
the time period set by the court order. The respondent
admits that
its first attempt, sent on 18 May 2026, was addressed to the wrong
email address due to an administrative error. Upon
realising the
mistake, the respondent re-sent the proposed dates to the applicant’s
correct email address on the day prior
to this hearing.
[3]
Striking out a defence is a drastic remedy. It deprives a party of
its right to be heard and should only be granted where
the
non-compliance is wilful, contumelious, or where there is clear
prejudice to the other party that cannot be remedied by any
other
means. A mere delay or technical misstep, particularly one that is
later corrected, does not automatically warrant the ultimate
sanction.
[4]
The respondent’s conduct is undoubtedly unsatisfactory and
falls short of the standard expected of a litigant. However,
two
factors weigh against striking out its defence. The first is that the
respondent made an effort to comply by sending proposed
dates on 18
May 2026, albeit to the wrong address. The error appears to be an
oversight rather than a deliberate strategy to frustrate
the
applicant or the court process. The second is that the applicant
received the correct email with the proposed dates before
this
hearing. The applicant has not demonstrated any concrete prejudice
flowing from the delay that a suitable cost order cannot
cure. The
pre-trial conference can still be arranged without unduly delaying
the trial.
[5]
Striking out the defence would be disproportionate in these
circumstances. The overriding objective of just, speedy, and
inexpensive litigation is better served by allowing the matter to
proceed on the merits, while penalising the respondent for its
laxity
through a punitive costs order.
Order
[6]
Accordingly, the following order is made:
1. The matter is
removed from the roll.
2. The respondent
must pay the costs of this application on the attorney-and-client
scale.
D. Mahosi
Judge
of the High Court
Gauteng Division, Johannesburg
Heard:
21 May 2026
Delivered:
21 May 2026.
Appearances
For
the applicant:
Advocates N. Pather
Instructed
by:
Sonya Meistre
Attorneys
For
the respondent: Ms. T
Tivana
Instructed
by:
State Attorney,
Johannesburg