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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 4508412021
In the matter between:
THE ROAD ACCIDENT FUND Applicant
and
ADV. YVETTE ISAACS N.O. obo
CHELSE-LEIGH GLYNNIA TIEMIE Respondent
REASONS FOR JUDGMENT
LUKHAIMANE, AJ
The Order
[1] This matter was argued on 21 April 2026 and the following order was granted on
the same date:
1. The application for rescission of judgement is dismissed.
2. The Apphcant is ordered to pay the costs of the Respondent in respect of
the application on the High Court scale as between party and party.
3. The costs referred to in paragraph 2 above to include, but not be limited to
the following:
3.1 the costs of the Respondent's attorney of record and correspondent
attorney;
3.2 the costs of two counsel on Scale B, one of whom is a senior
counsel.
4. The aforesaid costs to be paid to the Respondent's attorney of record by
direct transfer into their trust account with the following details:
ACCOUNT HOLDER : JS TERBLANCHE INC.
BANK : FIRST NATIONAL BANK
BRANCH CODE : 210 655
ACCOUNT NUMBER : 6[…]
REFERENCE NUMBER : WIL10/CA0093
5. Costs are to be paid within 14 days of se ttlement or taxation, failing which
interest shall accrue at the prescribed interest rate as from the due date to date
of payment.
6. The deponent to the founding affidavit, Ilse Tamara Goertzen, is ordered
to take the necessary steps to ensure that the Applicant loads the matter on the
requested but not yet paid ('RNYP') list and all other steps as may be required to
ensure that payment of the matter is effected in terms of the order granted on 28
August 2025.
Reasons
[2] The reasons follow. The Applicant seeks to have the Court Order dated 28
August 2025 by the Honourable Justice Mogotsi AJ under case 45084/2021 (ADV Y
ISAACS NO obo C-L G TIEMIE vs RAF)1 (“trial order:) rescinded and set aside. In doing
so the Applicant relies on Rule 42(}(a). To succeed, the Applicant must therefore
demonstrate that such impugned order was erroneously sought or erroneously granted".
The application is opposed by the Respondent.2
[3] The applicant's contention centers around its non -compliance with the order
granted by the Honourable Justice Teffo on 4 August 2025 ("compelling order") 3,
directing the applicant to file a reply to the respondent's amplified Rule 41A notice within
1O days service of the said order and the Directive and Protocol Introducing Mandatory
Mediation in the Gauteng Division as amended, effective from 22 April 2025 ("the
Directive").
[4] As it will be clear from the ruling, it is not necessary for the court to go into detail
as to the content of both the trial order and the compelling order, except to state that the
applicant is aggrieved that the respondent's attorneys filed certain affidavits prior to the
expiry of the allotted court days, essentially paving the way for the order that they now
seek to rescind. At all times, notices of set down were served on the applicant and
therefore they were fully aware of the matters proceeding before the court, including the
short service of the notice of intention to amend the particulars of claim which they
contend amounted to non-compliance with the Uniform Rules of Court4
[5] In dealing with the meaning of erroneously granted, the following was stated in
Bakoven Ltd v GJ Howes (Pty) Ltd5:
"An order or judgment is 'erroneously granted' when the Court commits an 'error
in the sense of 'a mistake in a matter of law appearing on the proceedings of a
Court of record' (The Shorter Oxford Dictionary). It follows that a Court in
deciding whether a judgment was 'erroneously granted' is, like a Court of Appeal,
1 Caselines 30-22/34
2 Notice of Intention to Oppose Caselines 30-148; Answering Affidavit Caselines 30-154/344
2 Notice of Intention to Oppose Caselines 30-148; Answering Affidavit Caselines 30-154/344
3 Annexure RA2 Caselines 30-35 to 37
4 FA, page 14 at paragraph 44 CseLines 30-19
5 1990 (2) SA 446 at page 471 E - H
confined to a record of proceedings. In contradistinction to relief in terms of Rule
31(2)(b) or under the common law, the applicant need not show 'good cause' in
the sense of an explanation for his default and a bona fide defence (Hardroad
(Pty) Ltd (supra) at 578F -G; De Wet (2) at 777F -G; Tshabalala and Another v
Pierre 1979 (4) SA 27 (T) at 30C -D). Once the applicant can point to an error in
the proceedings, he is without further ado entitled to rescission".
[6] Further. in Nyingwa v Moolman NO6 the court stated as follows:
"therefore, it seems that a judgment has been erroneously granted if there
existed at the time of its issue a fact of which the Judge was unaware, which
would have precluded the granting of the judgment and which would have
induced the Judge, if he had been aware of it, not to grant the judgment"
[7] The respondent contends that the applicant has failed to challenge the substance
of the trial order. It states that the Applicant cannot rely on Practice Directives; 7 or the
compelling order, 8 once the matter was allocated at the calling of the roll. There is
further no merit in the complaint based upon Rules 28(2), as the amendment was
effected in terms of Rule 28(10). 9 The respondent contends that the circumstances of
the present case are exactly the same as those that prevailed in the matter of Road
Accident Fund v Manzini obo Mokone 202510:
"In the present case it cannot be said that the judgement was erroneously
granted or sought when one considers the fact that the Court having read the
papers and submissions quite justifiably decided to grant the relief sought. The
Court had before it pleadings, expert evidence and written submissions which
made much explicit the basis of the claim and having read papers quite justifiably
decided to grant relief sought by the Respondent."
6 1993(2) SA 508 at 570
7 Founding Affidavit paragraph 11-18 Caselines 30-10 to 13
8 Founding Affidavit paragraph 10.3 Caselines 30-9
8 Founding Affidavit paragraph 10.3 Caselines 30-9
9 Answering Affidavit paragraph 22 Caselines 30-170 to 171
10 JDR 4040 (GP) par [52]
[8] The respondent submitted that the applicant has already partially complied with
the trial order by furnishing an undertaking dated 9 September 2025 11 in compliance
with the impugned order. It is therefore the respondent's case that when the applicant
partially complied with the order, the applicant accepted the judgment, in other words
the applicant acquiesced to the judgment and has therefore perempted this application
for rescission.
[9] It is further stated that " the purpose of the rule is to correct expeditiously an
obviously wrong judgment or order"12. "In order words Rule 42(1)(a) caters for a mistake
in the proceedings.'' 13 It is clear from the papers that the applicant knew that default
judgment is to be taken against it and did nothing to stop it but acquiesced to the
judgment. The Court had before it pleadings, expert evidence, filing notices and written
submissions which made much explicit the basis of the claim and having read papers
quite justifiably decided to grant relief sought by the Respondent.
[10] I therefore concluded that the applicant failed to satisfy the requirement of a
rescission in terms of Rule 42(1)(a) of the Uniform Rules of Court.
[11] In addition, the conduct of the applicant, failing to defend both the compelling
order and the trial order, but instead applying for rescission of judgment is to be frowned
upon and deserves costs on a punitive scale.
[12] The application is dismissed, applicant to pay costs on attorney and client scale.
MA LUKHAIMANE
Acting Judge of the High Court
11 Caselines 000-152
12 City of Tshwane Metropolitan Municipality v Beknor CC2025 JDR 4828 (GP) par [61]
13 Kesiilwe v Absa Bank Ltd 2025 JDR 42 74 (NWM) par [321
Gauteng Division, Pretoria
HEARD AND GRANTED JUDGMENT: 21 April 2026
REASONS HANDED DOWN: 11 May 2026
Appearances:
For the Applicant: Adv V Mnisi, instructed by the State Attorney, Pretoria
For the Respondent: Adv BP Geach SC and Adv CPJ Strydom instructed by JS
Terblanche Inc Attorneys.