SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION KIMBERLEY )
In the matter between:
CASE NO: 1636/2021
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
Edited: YES / NO
B[...], L[...] N.O. Applicant
And
THE ROAD ACCIDENT FUND Respondent
--------------------------------
And in the matter between:
CASE NO: 1150/2019
V[...] W[...] , C[...] J[...] J[...] First Applicant
V[...] W[...] , S[...] Second Applicant
and
THE ROAD ACCIDENT FUND Respondent
Page 2
Neutral citation: L B[...] v The Road Accident Fund (Case No: 1636/2021)
and CJJ V[...] W[...] & Another v The Road Accident Fund (Case No:
1150/2019)
Coram: Nxumalo J
Date Heard: 29 May 2025
Date Delivered : 08 May 2026
ORDER
(a) Both applications are hereby dismissed with costs.
(b) The costs are to be borne by the applicants jointly and severally, the
one paying the other to be absolved .
JUDGMENT
INTRODUCTION :
[1] There are two applications before this Court which are against the
Road Accident Fund. 1 First is that of Ms L[...] B[...] (case number
1636/21). Second is that of Ms C[...] J[...] J[...] V[...] W[...] and Ms S[...]
V[...] W[...] (case number 1150/19 ).2 Whilst the applications were
lodged separately, the parties agreed that they should be heard and
adjudicated together , in terms of Rule 11 of the Uniform Rules of Court .
[2] Rule 11 expressly provides that where separate actions have been
instituted and it appears to the Court convenient to do so, it may upon
the application of any party thereto and after notice to all interested
parties, make an order consolidating such actions, whereupon (a) the
said actions shall proceed as one action; (b) the provisions of Rule 10
shall mutatis mutandis apply with regard to the actions so consolidated;
and (c) the Court may make any order which to it seems meet, with
regard to the further procedure and may give one judgment disposing
1 Hereinafter simply referred to as “the respondent.”
2 Hereinafter simply referred to as “the applicants”
Page 3
of all the matters in dispute in the said actions . It is so that Rules
10,11,12,13 and 14 mutatis mutandis apply to all applications; regard
being had to rule 6(14) of the Uniform Rules of Court .
[3] It is clear from the facts and circumstances of these matters that the
relief of the applicants depends upon the determination of substantially
the same question of law of fact which, which arise in each application .
This Court therefore ordered accordingly .
[4] Ms L[...] B[...] , is a major female person, residing at 1[...] D[...] Street,
Keimoes. She is the biological mother and guardian of her minor child,
one Ms M[...] L[...] B[...] . Ms B[...] sued in her representative capacity,
as the biological mother and guardian of the minor child . The minor
child was a dependant of the deceased father, one Mr C[...] V[...] W[...] ,
Who died in a motor vehicle accident on 29 December 2017 .
[5] Ms C[...] J[...] J[...] V[...] W[...] , is a major female residing at 2[...] R[...]
L[...], Exten sion 7, Keimo es. Ms V[...] W[...] sued in her personal and
representative capacity, as the mother and guardian of the minor child,
Ms M[...] K[...] V[...] W[...] . S[...] V[...] W[...] , also resides at 2[...] R[...]
L[...], Extension 7, Keimo es. The V[...] W[...] s sued in their
representative capacities as guardians of the minor child, for loss of
support as a result of the demise of the deceased ,
[6] The respondent is the Road Accident Fund, a juristic person
established in terms of the provisions of the Road Accident Fund Act
56 of 1996, 3 with its principal place of business situate at 3[...] I[...]
Street, Menlo Park, Pretoria; alternatively 3[...] L[...] Street, New Park,
Kimberley .
3 “the Act”
Page 4
[7] Both these motions pertain to the amendment of the original order s of
this Court, dated 01 July 2021 and 21 February 2023, respectively .
The motions are in terms rule 42(1)(b) of the Uniform Rules of Court,
by deleting paragraph s 5.1, in each order and substituting same with
the following ; respectively :
“5.1. Costs of counsel as per the Bar Council parameters of raised counsel
fees, which costs shall include, but not limited to, general
preparation; consultation; perusal; travel expenses; research;
preparation of heads of argument; advise on evidence; preparation
for trial; and day fee for 01 July 2022.” 4
[8] The applicant s contemporaneously seeks costs, only in the event of
the motions b eing opposed . Further and/or alternative relief , is also
sought. Both founding affidavit s are deposed to by one Mr André Felix
Du Plessis, the applicants ’ attorney of record , who averred that the
contents of the said affidavit, fall within his person knowledge, unless
otherwise stated or where the contrary clearly appears from the
context.
[9] The relevant part of the impugned order s severally direct the
respondent to pay the applicants taxed or agreed party and party costs
on the Magistrate s’ Court scale. Of significance is the fact that, at all
material times hereto, the applicant s were represented by one Mr Ernst
on the instructions of Mr Du Plessis and the respondent, by one Ms
Rabie, of the State Attorneys, Kimberley .
[10] The respondent is opposed to the order s sought being granted and has
delivered answering affidavit s to that effect . The said affidavit s are
deposed to by one Ms Kholofelo Maila, a Senior Officer in the Litigation
Department of the respondent . The said officer also averred that the
4 Emphasis supplied
Page 5
contents of the said affidavit s, fall within her personal knowledge,
unless indicated to the contrary . Of significance in this regard is the
fact that Ms Rabie has not delivered any confirmatory affidavit in these
proceedings .
BRIEF OVERVIEW OF BACKGROUND FACTS :
[11] The action s respectively arise from claims for the payment of
compensation s for damages resulting from the death of the deceased ,
one Mr C[...] V[...] W[...] , who was involved in a fatal road accident,
which is regulated by the Act . The said accident occurred on
29 December 2017 . Thereafter , the applicant s lodged a claim against
the respondent, in their personal and representative capacities,
respectively , for the loss of support suffered, as a result of the demise
of the deceased .
[12] On 01 July 2022 and 21 February , respectively the parties settled both
matters by agreement, which agreements were made orders o f Court.
In terms of the said settlement s, it was agreed that the defendant shall
pay the plaintiff s amounts of R104 950.00 (One Hundred and Four
Thousand and Nine Hundred and Fifty Rand) R301 370.00 (Three
Hundred and One Thousand Three Hundred and Seventy Rand) . The
respondent was also ordered to pay the costs of both suits;
respectively as follows:
“5. Subject to the discretion of the taxing master, the defendant must pay
plaintiff’s taxed of agreed subject to the taxing master or agreed
party and party costs on the Magistrates’ Court Scale, which costs
shall include, but not limited to the following -
5.1. Cost of counsel, Adv JRF Ernst, which costs shall include, but
not limited to general preparation, consultation, perusal,
Page 6
travel expenses, research, preparation of heads of argument,
advice on evidence, preparation for trial and day fee for 01
July 2022.” 5
[13] According to the applicant s, whilst compiling the taxed bill of costs, the
cost consultant, acting on behalf of the applicants ’ attorney of record,
indicated that the impugned paragraph s were not in accordance with
the necessary statement regarding costs of counsel . That following
consultation with the said consultant and counsel, it became apparent
that the omission s of the phrase s “ … as per the Bar Council
parameters of raised counsel fees…” sought to be inserted was as a
result of “mere bona fide error s”, which has to be rectified .
[14] Thereafter, according to applicants , the applicant s only then addressed
the relevant electronic mails on 23 May 2023 and 07 February 2024,
respectively to the Office of the State Attorney, Kimberley . Both these
mails were for the attention of one Ms Benita Wells, wherein the
alleged bona fide errors were explained . Significantly the former mail
was transmitted almost 10 months after the impugned order was
granted and the latter almost one year later . A copies of said mails are
attached to the founding affidavit s, respectively as annexure LB2 and
VW2. It is apposite to quote said annexure , extensively hereunder, for
context:
“It is our advice from our cost consultant and also my understanding of how
the taxing master will deal with the matters is that the Court orders, where a
Magistrate Court costs is awarded, it must be provided for that counsel can
include his/her increased costs . In the current Court orders for the above 2
matters, provision was made only for a day fee . It is our advice that this is
insufficient as for current Magistrates’ Court fees for counsel an application
it would only allow R887 per day and for trial R2 514.50 per day.(sic)
5 Emphasis supplied
Page 7
It is my opinion that none of the parties had a comprehensive or clear
understanding of the effect of the prayers in the above two matters’ Court
orders dealing with Counsel’s fees on Magistrate s Court scale, as we do not
practice in the Magistrates’ Court and don’t often deal with Magistrate s
Court scales party and party bills of costs . This is a bona fide
misunderstanding and omission on the part of the plaintiff and perhaps both
parties and I think you’ll agree that the amount of costs to be allowed by the
taxing master for Counsel’s day fees, if its only on Magistrate Court tariff as
indicated above, is not sufficient, especially when I was as attorney for the
plaintiff has to account to a plaintiff on the party and party bill of costs, as
expectations is that most of/reasonable amount of fees and disbursements will
be recovered in the party and party bill of costs . This is especially true where
the quantum is “small” , i.e . below R400 000.00.
It is advised by our cost consultants Peta Fernie attorneys/cost consultants,
who has a long-term experience in drafting and taxing/settling both High
Court and Magistrates’ Court bills of cost that the order with regards to
counsel fees must read: “Costs is to include the costs of counsel as per the
Bar Council parameters of raised counsel fees” .
If you agree with the above, it is my suggestion that we then draft amended
Court orders with regards to the prayers dealing with Counsel’s fees, and on
which two amended Court orders we can then apply for an
amendment/varying thereof by agreement and with the defendant’s consent .
Accordingly, no cost order will be sought in these 2 applications.
Look forward to hear from you.
Regards” 6
6 Emphasis supplied
Page 8
[15] It is not clear from the said mail s as to when the costs consultant was
consulted . Same was also never responded to or acknowledged by the
respondent . It is against this backdrop that the applicant s was lodge d
these application s on 13 March 2022, approximately 1 year and 6
months later .
[16] In paragraphs 5. 2 and 5. 3 of the founding affidavit s, the applicant also
undertook that this motion will be served on the respondent’s attorneys
and if successful, the amended Court order will also be served
accordingly .
[17] The foregoing notwithstanding, i n paragraph 18 of the answering
affidavit s (ad paragraph 5) the respondent barely denied the contents
of the said paragraph and laconically averred that the impugned cost
order was appropriate . The respondent also submitted that this Court
cannot make any finding in favour of the applicant s as sought since
there is no legal basis for same.
THE PARTIES’ ARGUMENTS, IN SUM :
The applicant’s
[18] The applicant s, in the main submitted that it was incumbent on this
Court to correct the said error s to give effect to the true intention of the
parties. That same were bona fide errors and if rectified, no party
would suffer any prejudice . That on the day s the matter s was settled,
both Mr Ernst, counsel for the applicant s and his instructing attorney,
Mr Du Plessis, were of the opinion that the manner in which the Court
orders were drafted was sufficient to exclude counsel’s fees from the
limitations of rule 69(3) of the Uniform Rules of Court.
Page 9
[19] The applicants ’ attorney further averred that it was only when his costs
consultants, were preparing the party and party bill s of costs that he
was advised that the impugned Court orders did not specifically
exclude the effects of rule 69(3), with regard to counsel’s fees . That
since this was not the intention of the parties, the impugned order
should be varied or amended to correctly reflect the intention of the
parties. The fact that the matter s were settled does not take away the
right of the applicant s and their counsel to be reimbursed on
reasonable and correct party and party scale s applicable tariffs .
[20] Whilst the applicant s agreed that the respondent is obliged to protect
public funds, the applicant s disagreed that the order sought would
amount to fruitless and wasteful expenditure . That it is so since the
applicant s are not claiming exorbitant costs without any legal basis .
[21] That the applicants ’ attorney and counsel committed bona fide errors in
formulating the impugned order s as is . That inadvertently, the
impugned phrase “ on Magistrate Court scale” was inserted with regard
to party and party costs . The impugned phrase cannot be used against
the applicant s to deny them of their fair and reasonable party and party
fees and disbursements, with regard to the costs contribution payable
by the respondent . The applicant s merely seek to vary the impugned
orders so as to reflect the true meaning of how counsel’s fees and
disbursements should have been worded in the said order s. That the
said bona fide errors were the consequences of the applicants’ legal
representatives’ misinterpretation of import of rule 69(3), at all material
times hereto .
[22] The applicants ’ attorney, who is the deponent to the founding papers
averred that at all material times hereto , he laboured under the
misapprehension that the impugned order s were suitably formulated to
misapprehension that the impugned order s were suitably formulated to
cover the fees and expenses relating to counsel and that the applicant s
Page 10
would be properly reimbursed for party and party fees disbursements .
That in the premise, it was incumbent on this Court to amend the
impugned order s so as to give effect to the true intention s of the
parties.
[23] That regard being had to the amount awarded, after normal attorney
and counsel fees and disbursements have been deducted, the
applicant s will in effect be out of pocket, which is not the intention
towards a claimant or client of an attorney, when a third -party claim is
successfully finalised . Fair and reasonable party and party costs must
be reimbursed to the applicant s. It was therefore necessary for
counsel’s raised fees as per Bar Council parameters to be included in
the impugned order .
[24] When th ese matters were settled on 01 July 2022 and 21 February ,
respectively both applicants ’ legal representatives were of the opinion
that the manner in which the impugned Court orders were drafted, was
sufficient to exclude counsel’s fees from the limitation of rule 69(3) . At
all material times hereto, it was their intention to exclude the limitation
on counsel’s fees as set out in rule 69(3) . The applicants ’ attorney
believed that this was the respondent’s intention too and that the
parties were ad idem that counsel’s fees would not be limited to the
Magistrate s’ Court scale.
[25] It was only when the applicants ’ costs consultant were busy preparing
the party and party bill of costs that the applicants ’ attorney was
advised that the impugned Court orders did not specifically exclude the
effects of rule 69(3) on counsel’s fees . That since this was not the
intention of the parties, the impugned Court order should be varied or
amended to correctly reflect the intention of the parties .
The Respondent’s Argument, in sum
Page 11
[26] The respondent, for its own part, maintained that th ese motions
amount to an abuse of Court process as the claimed amount s clearly
fall within the monetary jurisdiction of the Magistrate’ s Court. Thus the
actions should not have been instituted in this Court, in the first place .
The applicants ’ decision to issue summons in this Court amounted to
abuse of Court process, which must be frowned upon . That the
respondent is also obliged to protect public funds . It has a duty to
guard against any fruitless and wasteful expenditure; regard being had
to the Public Finance Management Act 1 of 1999. 7
[27] That the applicant s confirmed that this application was brought solely
on the strength of the advice received from their costs consultant . The
law is clear regarding the scale of costs, when a matter is settled in the
amount such as in th ese matters. One cannot simply be paid
exorbitant costs without any legal basis by an organ of state as same
would violate the PFMA and trust that the public has on the
respondent.
[28] That th ese application ha d no merits and it was therefore proper and
necessary for the respondent to oppose the application s. The correct
thing for this Court to do, to prevent this kind of hopeless and
unnecessary applications clogging the busy Court roll is to order costs
against the applicant s. In the circumstances, the application s stood to
be dismissed with costs . So the respondent’s argument, in sum went .
DETERMINATION :
[29] The applicant s have predicated their motion on rule 42(1)(b) of the
Uniform Rules of this Court . The said rules expressly and
unambiguously authorises this Court, in addition to any other powers,
7 “the PFMA”
Page 12
to mero motu or upon the application of any party affected, rescind or
vary an order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent of such ambiguity, error or
omission . It is trite that such an application must be brought within a
reasonable time. 8
[30] It follows from the foregoing that the following issues fall for
determination in this motion; to wit: (a) whether the application s have
been brought within a reasonable time; and (b) whether, regard being
had to the facts and circumstances of th ese cases, the impugned
orders suffer from any ambiguity or a ny patent error s or omission s,
within the contemplation of rule 42(1)(b) . These issues are determined
in turn, hereunder .
Whether the application s has been brought within a reasonable time
[31] Whilst in cases of matters accessory to judgments, such as interest,
costs or the appropriate tariffs of costs, Courts have the discretion to
supplement their judgments . There is a generic reluctance to extend
this exception beyond its narrow confines. 9 The relief sought is
therefore discretionary. 10
[32] Rule 69(3), expressly and unambiguously stipulates as follows:
“Save where the defendant or respondent is awarded costs, the tariff of
maximum fees for advocates between party and party referred to in part IV of
Table A of Annexure 2 to the Rules of the Magistrates’ Court (hereinafter
referred to as the tariff”) shall apply where the amount or value of the claim
falls within the jurisdiction of the Magistrates’ Court , unless the Court, on
8 FNB v Van Rensburg NO 1994(1) SA 677 (T)
9 Thompson v SABC 2001 (3) SA 746 (SCA)
10 Thivase Royal Council v Thivase 1992 (4) SA 852 (A) at 862J
Page 13
request made before or immediately after giving the judgment, otherwise
directs.” 11
[33] It can be deduced from the foregoing that the default position is that
the tariff of maximum fees for advocates between party and party
referred to in part IV of Table A of Annexure 2 to the Rules of the
Magistrates’ Court apply ipse jure where the amount or value of the
claim falls within the jurisdiction of the Magistrates’ Court, unless the
Court, on request made before or immediately after giving the
judgment, otherwise directs . No request has been made as
contemplated .
[34] As alluded above, the impugned order s are dated 01 July 2022 and
21 February, respectively . The motion s were both lodged 13 February
2024. The former 18 months later and latter almost a year later . It is
not clear on the papers as to when did the alleged consultation with the
costs consultant occur . This Court is of the opinion that a delay of 18
and almost a year sans any explanation for the delay , is inordinately
long; regard being had to the facts and circumstances of this case .
Whether the impugned order s suffer from any ambiguit ies or patent
errors or omission s, within the contemplation of rule 42(1)(b)
[35] Of significance in this regard is the fact that the “a mbiguity ”, “error” or
“omission ” contemplated in rule 42(1)(b) , must be attributable to the
Court such that the judgment s patently do not reflect its intention s.12
[36] It is not so in this case since its nub is the allegation is that it was only
whilst compiling the taxed bill s of costs, that the costs consultant
indicated that paragraph s 5.1 of the Court orders, respective are not in
11 Emphasis supplied
12 Thivase Royal Council v Thivase 1992 (4) SA 852 (A) at 863
Page 14
accordance with the necessary statement regarding costs of counsel. 13
That it was only during consultation with the costs consultant and
counsel that it became apparent that th ese were mere error s, which
have to be rectified. 14 The applicant s contemporaneously contended
that the impugned tariff of costs are mere “…bona fide
misunderstanding and omission on the part of the plaintiff and perhaps
both parties.” 15
[37] It follows from the foregoing that th ese motions do not implicate rule
42(1)(b) , but rule 42(1)(c) . The latter rule specifically and
unambiguously permits this Court to similarly rescind or vary an order
or judgment granted as a result of a mistake common to the parties .
The respondent unequivocally denies that paragraph 5.1 of the
impugned orders came about as a result of any mistake common to the
parties or at all .
[38] It must be accepted that a settlement, whether or not is embodied in an
order of Court, is a substantive contract which exists independently of
the cause that gave rise to it . To the extent that the applicant s seek to
rectify settlement agreement s which were subsequently made order s of
Court. The general rules applicable to the rectification of contracts are
implicated, in casu.
[39] It is so that the object of rectification is to have a written contract
conform to the common intention of the parties . A party claiming
rectification, as in casu must therefore inter alia prove bona fide
common or unilateral error s in drafting the impugned document s; that
the written document s did not reflect the common intention of the
parties correctly . The common continuing intention of the parties, as it
existed when the agreement s were reduced to writing must also be
13 Paragraph 3.3, p 7, Founding Affidavit.
14 Paragraph 3.4, ibid
15 Paragraph 3, p13, ibid
Page 15
established . Same may be deduced from an antecedent agreement s,
for instance. 16 In addition, it must also be alleged and proved that the
errors were iustus. Incidental mistake s or mistake s relating to the
reasoning or motivation behind the agreement s only, is not iustus.17
[40] The respondent denies that the mistake in casu is mutual . There is
also nothing that establishes the common continuing intention of the
parties, as it existed when the agreement s was reduced to writing
which i s contra paragraph 5.1 . of the impugned order s. Nor are there
any alleged facts evincing any antecedent agreement s contra same.
Significantly, o n the version of the applicant s, the mistake s in casu
were allegedly discovered whilst compiling the taxed bill s of costs and
only when the costs consultant indicated that paragraph 5.1 of the
Court orders are respectively not in accordance with the necessary
statement s regarding costs of counsel. 18
[41] The foregoing evinces that the applicants ’ alleged bona fide
misunderstanding and omission s pertaining to the costs tariff s in fact
are incidental mistake s or mistake s relating to the reasoning or
motivation behind the agreement s and nothing more . It is also clear
from the founding papers that the applicant s have also subsequently
created retrospective mistake s by means of fresh evidence which was
not relevant when the parties entered into the impugned settlement
agreement s. In the premise, this Court finds that the alleged error s is
not iustus and therefore renders the application to be dismissed with
costs, respectively .
ORDER:
[42] The following order therefore issues:
16 City Council of the City Durban v Rumdel Construction [1997] 3 All SA 20 (D)
17 Van Reenen Steel v Smith NO 2002(4) SDA 264 (SCA)
18 Paragraph 3.3, p 7, Founding Affidavit
Page 16
(a) THE APPLICATIONS ARE BOTH DISMISSED WITH COSTS.
(b) THE COSTS OF BOTH APPLICATIONS ARE TO BE BORNE
BY THE APPLICANTS JOINTLY AND SEVERALLY, THE ONE
PAYING THE OTHER TO BE ABSOLVED.
_____________________________
APS NXUMALO J
HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION
KIMBERLEY
For the Applicant : MS SNYDERS
On instructions of : André Du Plessis Attorneys
Pretoria
c/o Engelsman Magabane Inc.
Kimberley
For the Respondent: MR MOGANO
On instructions of : Office of the State Attorney
Kimberley