SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 28903/2018
26 May 2026
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE.....26 May 2026
SIGNATURE
In the matter between:
THE ROAD ACCIDENT FUND Applicant
and
HERCULES ALEXANDER SANDENBERGH N.O. Respondent
(in his capacity as Curator Bonis for BOITUMELO AUDRY KHOZA)
(Substituted, by notice in terms of Rule 15(2) and 15(3) dated 17 December 2025, for Adv
Heila Basson N.O., the erstwhile Curator ad Litem.)
This order is made an Order of Court by the Judge whose name is reflected
herein, duly stamped by the Registrar of the Court and is submitted
electronically to the Parties/their legal representatives by e -mail. This Order
is further uploaded to the electronic file of this matter on Case Lines by the
Judge or his/her secretary. The date o f this Order is deemed to be 26 May
2026.
JUDGMENT
2
DU PLESSIS, AJ
INTRODUCTION
1.
1.1. This is an opposed application by the Road Accident Fund (“the
RAF”, “the applicant” or “the defendant” in the main action) for the
rescission of an order of default judgment granted against it by
Hawman AJ on 25 September 2024 under the above case number.
The applicant also seeks condonation, in terms of Rule 27 of the
Uniform Rules, alternatively under the common law, for bringing
this application outside the time periods prescribed by the Rules.
Mr Mostert appears for the RAF instructed by the State Attorney.
1.2. The application is opposed by Mr Hercules Alexander
Sandenbergh N.O., in his capacity as Curator Bonis for Ms
Boitumelo Audry Khoza (“the patient”), who was substituted in
terms of Rule 15(2) and 15(3) for Adv Heila Basson N.O., the
erstwhile Curatrix ad Litem, by notice dated 17 December 2025. I
shall refer to the respondent and his predecessor interchangeably
as “the respondent” where the context permits. Adv Snyman SC
appears with adv Adv Ronald Ernst.
1.3. The respondent opposes the application on the merits and on
points in limine and seeks an order dismissing it with costs on the
punitive scale of attorney and own client, including the costs of two
counsel on scales C and B respectively.
1.4. For the reasons which follow, I am persuaded that the application
falls to be dismissed and that a punitive costs order is justified.
THE PARTIES AND BACKGROUND
2.
2.1. The applicant is the Road Accident Fund, a juristic person
established in terms of section 1 of the Road Accident Fund Act 56
of 1996, with its head office at Eco Glades Office Park, Centurion.
The deponent to the founding affidavit, Mr Faizel Antulay,
describes himself as a Senior Claims Handler stationed at the
RAF’s Menlo Park office.
2.2. The respondent represents the patient, Ms Boitumelo Audry
Khoza, who was injured as an eight -year-old pedestrian in a motor
vehicle collision on 27 February 2000. It is common cause that the
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patient sustained, amongst other injuries, a serious brain injury
with neurocognitive, neuro-psychological and psychiatric sequelae,
and that she is unable to manage her own affairs.
2.3. A claim was lodged with the RAF on 18 October 2000 by the
patient’s mother and natural guardian, then represented by
Rolanda Lemmer Attorneys. On 23 September 2009 the RAF
made an offer of settlement which was accepted on 2 October
2009 in the capital sum of R9 800,00 (with R3 293,83 contribution
to costs), all of which was paid out. That settlement is hereinafter
referred to as “the 2009 settlement”.
2.4. In 2017 a Curatrix ad Litem was appointed for the patient. On 24
April 2018 summons was issued, and served on the RAF on 2 May
2018, seeking inter alia to set aside the 2009 settlement and to
claim the patient’s damages afresh. The RAF’s erstwhile panel
attorneys, Mothle Jooma Sabdia Inc, entered an appearance to
defend and filed a plea on 25 February 2019 which incorporated
two special pleas: prescription and (so-called) misjoinder.
2.5. In March 2020 the RAF’s litigation model changed: its panel of
attorneys was disbanded and the file returned to the RAF. From
that point on, and on the deponent’s own version, the RAF’s case
“was basically left unattended”.
2.6. On 25 August 2021, after argument, Tolmay J handed down an
order in which she (a) separated the special pleas and the issue of
settlement from quantum and liability in terms of Rule 33(4), (b)
dismissed the special pleas, (c) set aside the 2009 settlement
agreement, and (d) postponed the determination of quantum and
liability sine die. The order made consideration of inter alia section
13(1) of the Prescription Act 68 of 1969 and the report of Dr
Kritzinger that the patient was, from the date of the collision,
incapable of managing her affairs. The RAF was served with notice
of set down and was invited to participate in those proceedings but
failed to do so. It has never sought to appeal or rescind the order
failed to do so. It has never sought to appeal or rescind the order
of Tolmay J, and it accordingly stands as a final order of this Court.
I shall return to its significance.
2.7. On 1 August 2023 Tlhapi J (per the order on the papers) granted
an order compelling the RAF to comply with the respondent’s
notice in terms of Rule 21 and to attend a pre -trial conference. The
RAF did not comply. On 8 March 2024 Lenyai J struck out the
RAF’s defence on the application of the respondent. The RAF has
not sought to rescind the order of 1 August 2023 or the strike -out
order of 8 March 2024.
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2.8. On 25 September 2024 the default judgment application
proceeded before Hawman AJ. The applicant’s erstwhile defence
having been struck out, the matter proceeded on the quantum of
damages. Hawman AJ granted judgment in favour of the
respondent in the sum of R4 136 095,00 (made up of R1 800
000,00 for general damages and R2 336 095,00 for loss of
earnings), together with costs of suit including the qualifying and
reservation fees of the respondent’s experts. The amount obtained
under the 2009 settlement was, on the respondent’s undisputed
version, taken into account in arriving at that figure. It is this order,
and only this order, which the present application seeks to set
aside.
2.9. The application was served on the respondent on 20 May 2025 —
almost eight months after the order which it seeks to rescind, and a
year and a half after the strike -out order. The respondent filed its
answering affidavit on 25 June 2025. The applicant has not filed a
replying affidavit. Nor, as the respondent’s counsel pointed out,
has the applicant filed any heads of argument.
THE RELIEF SOUGHT — A FUNDAMENTAL DISCONNECT
3.
3.1. The applicant’s notice of motion seeks the following relief:
“1. The Applicant seeks an order setting aside / rescinding the
order granted on the 25th September 2024 by the honourable
Justice Hawman AJ.”
“2. The Applicant also seeks for an order that condonation be
granted in terms of Rule 27 of the above Honourable Court’s
Rules, alternatively in terms of the common law, for bringing this
Application out [of] time.”
“3. That in the event that any Respondent opposes this
Application, [it] is ordered to pay costs of this Application.”
“4. Granting the Applicant such further and/or alternative relief
as the above Honourable Court may deem fit.”
3.2. The first difficulty confronting the applicant is the marked
disjunction between the relief reflected in the notice of motion and
the case actually pleaded in the founding affidavit. The deponent
the case actually pleaded in the founding affidavit. The deponent
says, at paragraph 9 of the founding affidavit, that the relief sought
is interim:
“That pending finalization of the application for rescission of the
5
default judgments or judgments obtained by the First
Respondent against the Applicant, the Warrant of Execution
issued and/or authorised by the court in favour of the
Respondent under the above Case Number be and are hereby
stayed and/or held in abeyance ...”
3.3. In the alternative, paragraph 10 of the founding affidavit prays for
the suspension of execution of the orders, and paragraph 11 prays
for leave to issue an application for rescission. None of these
forms of relief are reflected in the notice of motion, which seeks
final rescission and condonation. There is, moreover, no warrant of
execution attached to the founding affidavit and no allegation that
any such writ has been issued or even threatened. The founding
affidavit thus supports relief that has not been claimed, and fails to
support the relief that has.
3.4. A litigant is bound to its notice of motion. Where the founding
papers do not match the notice of motion, the application is, on
that ground alone, defective. Counsel for the respondent
submitted, correctly, that this defect is fatal. I agree. The applicant
cannot be granted relief which it has not sought, and the relief
which it has sought is not supported by the affidavit on which it
relies.
POINTS IN LIMINE
4.
Lack of personal knowledge
4.1. The respondent contends, in limine , that the deponent to the
founding affidavit, Mr Antulay, lacks personal knowledge of the
matters to which he deposes. He fails to explain how and when the
matter came under his supervision; he does not say what
knowledge he has of the conduct of the various case handlers,
senior case handlers, team leaders and panel attorneys who dealt
with the file before him; and he ventures opinions on the conduct,
knowledge and motivation of officials of the RAF whose minds he
cannot read.
4.2. On the respondent’s undisputed chronology, the deponent himself
was copied into a number of emails before judgment was granted
on 25 September 2024 (see, by way of example, the email of 9
on 25 September 2024 (see, by way of example, the email of 9
September 2024 addressed to Ms Millicent Chiloane and copying
“F[...]”), yet his founding affidavit conspicuously avoids dealing with
that fact. The affidavit, in significant part, consists of inadmissible
6
hearsay and bald assertions of opinion.
4.3. I need not base my judgment on this point alone, but the
deficiencies in the founding affidavit materially undermine the
applicant’s case at the threshold and inform the assessment of the
overall “sufficient cause” test which I deal with below.
No case made out for the relief in the notice of motion
4.4. The disjunction described in paragraphs 14 to 17 above also
constitutes, properly understood, a point in limine. The founding
affidavit makes out a case (such as it is) for an interim stay of
execution pending the launch of a rescission application. The
notice of motion seeks final rescission of the order of Hawman AJ.
The two are not interchangeable, and the founding affidavit cannot
do duty for both.
THE APPLICANT’S FAILURE TO ATTACK THE PRIOR ORDERS
5.
5.1. A central, and in my view dispositive, feature of this application is
what it does not seek to do.
5.2. The 2009 settlement was set aside by Tolmay J on 25 August
2021. The special pleas of prescription and misjoinder were
dismissed in the same order. That order has stood, unchallenged,
for more than four and a half years. It has not been appealed; no
rescission application has ever been brought in respect of it; no
condonation has ever been sought for the delay; and no factual
basis is laid in the founding affidavit for impugning it. Yet the
applicant’s founding affidavit, at paragraphs 31 to 32 and
elsewhere, attempts to resuscitate the very issues finally
determined in that order — namely, that the claim has prescribed
and that there is a misjoinder. Those issues are res judicata. The
Court is not at liberty, in this rescission application, to revisit them.
5.3. Similarly, the order of 1 August 2023 compelling the RAF to
comply with the Rule 21 notice and to attend a pre-trial conference;
the order of 8 March 2024 striking out the RAF’s defence; and the
certification of the matter as trial -ready in 2020 — none of these
certification of the matter as trial -ready in 2020 — none of these
orders are sought to be set aside. The order which the applicant
seeks to rescind — that of Hawman AJ on 25 September 2024 —
was granted because, and only because, the RAF’s defence had
been struck out. It is, in substance, the inexorable consequence of
the strike -out order, the rescission of which the applicant has
expressly elected not to seek.
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5.4. It follows that even if I were minded to set aside the order of
Hawman AJ, the strike -out order would remain. The matter would
be reset to the position which obtained on 9 March 2024: with the
RAF’s plea struck out, and the respondent entitled to take default
judgment afresh. Rescission of the order of 25 September 2024
would, in those circumstances, serve no purpose. It would not
restore the RAF’s opportunity to defend; it would merely require
the respondent to re -litigate the quantum determination already
made. As I shall illustrate below, that is precisely the species of
abuse with which our courts have been increasingly confronted by
the RAF.
THE LEGAL FRAMEWORK FOR RESCISSION
6.
6.1. The applicant’s notice of motion does not specify the legal basis
upon which rescission is sought. There are three possible bases:
Rule 31(2)(b), Rule 42(1) and the common law. I deal briefly with
each.
Rule 31(2)(b)
6.2. Rule 31(2)(b) applies to default judgments granted in actions. An
application thereunder must be brought within 20 days of the
applicant having knowledge of the judgment, and good cause must
be shown. The applicant filed this application some eight months
after the judgment of 25 September 2024 and gives no proper
explanation for the delay. The threshold of “ good cause ” under
Rule 31(2)(b) is identical, in substance, to the common -law test, to
which I shall turn in a moment.
Rule 42(1)(a)
6.3. Rule 42(1)(a) permits the setting aside of an order erroneously
sought or erroneously granted in the absence of any party affected
thereby. As the Constitutional Court made plain in Zuma v
Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector Including
Organs of State and Others 2021 (11) BCLR 1263 (CC), where a
litigant has been given notice of the case against them and
sufficient opportunity to participate, but elects to be absent, that
sufficient opportunity to participate, but elects to be absent, that
absence does not bring the matter within Rule 42(1)(a). An order
granted in such circumstances is not “erroneously granted” within
the meaning of the Rule.
6.4. On the respondent’s detailed (and undisputed) chronology, the
8
RAF was given notice of every step in this litigation between March
2020 and September 2024. Set-downs were served by email at the
addresses provided by the RAF’s own management; case
handlers were specifically invited to CaseLines; multiple reminders
were sent; and the deponent himself was copied into emails
confirming the 25 September 2024 date. The applicant cannot
avail itself of Rule 42(1)(a).
Common law
6.5. At common law, an applicant for rescission must show “ sufficient
cause”, which the cases have crystallised into a conjunctive three -
fold requirement (see Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at 9; Chetty v Law
Society, Transvaal 1985 (2) SA 756 (A) at 764J–765D):
“(a) a reasonable and acceptable explanation for the default;”
“(b) that the application is made bona fide; and”
“(c) the existence of a bona fide defence which prima facie has
some prospect of success.”
6.6. As Muller JA emphasised in Chetty, the test is dual in nature,
conjunctive and not disjunctive: “ an acceptable explanation of the
default must co -exist with evidence of reasonable prospects of
success on the merits ”. Without a reasonable explanation,
prospects of success are immaterial; without prospects of success,
the explanation will not avail.
6.7. Where the default is wilful, or attributable to gross negligence, the
court should generally not come to the applicant’s aid ( Harris v
Absa Bank Ltd t/a Volkskas 2006 (4) SA 527 (T) at 530). “ Wilful” in
this context means knowing of the action, knowing of the steps
required to avoid default, and yet deliberately failing to take those
steps.
APPLYING THE LAW TO THE FACTS
7.
Explanation for the default
7.1. The applicant’s entire explanation for its default is contained in two
sentences of the founding affidavit:
“During March 2020, the Applicant’s legal model changed due
to the erstwhile panel of attorneys falling away after a Court
to the erstwhile panel of attorneys falling away after a Court
decision that ordered such and the matter was not dealt with
9
[by] an Attorney and did not receive the attention it deserved,
since all the files were requested to be handed back to the
Applicant and were basically left unattended.”
7.2. That explanation is, with respect, entirely inadequate. First, the
change of litigation model was a deliberate decision of the RAF
itself; it cannot rely on the consequences of its own choice to
excuse non-participation. Second, the explanation covers a period
of more than four and a half years (from March 2020 to September
2024). Third, the explanation is silent on the chronology of more
than 40 separate emails, notices, set -downs, applications and
court orders, all of which were served on the RAF at the addresses
it provided. Fourth, the deponent himself was copied into critical
correspondence in 2024 and offers no explanation for his own
inaction.
7.3. In Road Accident Fund v Ngobeni obo Phelela (35926/17) [2022]
ZAGPPHC 866 (18 November 2022), this Division held that the
RAF’s deliberate policy of relying on “ judicial oversight” rather than
attending court was not a defence available on a rescission
application. So too in Road Accident Fund v Plaatjies (72939/2017)
[2022] ZAGPPHC 540 (25 July 2022). The RAF is to be treated as
every other litigant; section 9 of the Constitution requires no less.
7.4. I find that the applicant has not provided a reasonable and
acceptable explanation for its default. On the contrary, the conduct
revealed by the chronology amounts to wilful default within the
meaning of Harris v Absa : the RAF knew of every step in the
proceedings, knew what was required to avoid default, and
deliberately elected to do nothing. As the SCA reminded us in
Lodhi 2 Properties Investments CC v Bondev Developments 2007
(6) SA 87 (SCA), a court granting judgment in such circumstances
does not grant it on the basis that there is no defence, but on the
basis that the defendant has been duly notified and has elected not
to defend.
Bona fide defence
to defend.
Bona fide defence
7.5. The two defences upon which the applicant relies on the merits are
prescription and “ misjoinder”. Both were raised in the special
pleas. Both were dismissed by Tolmay J on 25 August 2021. That
dismissal has never been challenged. It is res judicata between the
parties. The applicant cannot, in this rescission application, attempt
to relitigate those issues.
7.6. Even were it permissible to revisit those defences, they would face
formidable obstacles. As regards prescription, section 13(1) of the
10
Prescription Act 68 of 1969 suspends the running of prescription
where the creditor is under a disability. The Constitutional Court in
Van Zyl N.O. v Road Accident Fund [2021] ZACC 44 confirmed
that, in the case of a person of unsound mind, prescription begins
to run only from the date of the appointment of a curator ad litem
(in this case, 27 July 2017). On the facts before Tolmay J,
including the report of Dr Kritzinger that the patient is incapable of
managing her own affairs, prescription cannot succeed. As regards
“misjoinder”, the applicant has not begun to make out a
sustainable case. It remains free, if so advised, to institute its own
proceedings against Ms Lemmer or the patient’s mother; that does
not give it a defence to the patient’s claim.
7.7. The further “ defence” advanced — that payment in terms of the
2024 order would amount to fruitless and wasteful expenditure
given the prior 2009 settlement — is unsustainable. The 2009
settlement was set aside by an order of this Court which has not
been challenged. The R9 800,00 paid in 2009 was, on the
respondent’s undisputed evidence, taken into account in
computing the amount awarded by Hawman AJ. There can be no
fruitless or wasteful expenditure incurred pursuant to a valid court
order: cf Road Accident Fund v Plaatjies (supra) at paragraphs 24–
25.
Bona fides
7.8. In light of the matters set out above, I am unable to find that this
application has been brought bona fide. It has been brought:
7.8.1. nearly eight months out of time;
7.8.2. in support of a notice of motion which is not aligned to
the founding affidavit;
7.8.3. without any attack on the strike -out order which is the
proximate cause of the default judgment under attack;
7.8.4. in reliance on defences finally adjudicated against it
more than four years ago;
7.8.5. without a replying affidavit answering the respondent’s
detailed chronology; and
7.8.6. without the filing of heads of argument by the applicant
who launched it.
7.8.6. without the filing of heads of argument by the applicant
who launched it.
7.9. The inference is, in my view, irresistible that this application was
launched not in good faith but in order to delay payment to a
patient who has been waiting nearly a quarter of a century for fair
11
compensation for life -altering injuries sustained when she was a
child of eight. That is precisely the sort of conduct which our courts
have characterised as vexatious. As Gardiner JP observed in In re
Alluvial Creek Ltd 1929 CPD 532 at 535 (a dictum approved by the
Supreme Court of Appeal in Boost Sports Africa (Pty) Ltd v South
African Breweries (Pty) Ltd 2015 (5) SA 38 (SCA)), proceedings
may be vexatious where they have the effect of putting the other
side to unnecessary trouble and expense which the other side
ought not to bear, even where the litigant’s subjective intent may
not have been to vex. The conduct of this application is squarely
within that description.
CONDONATION
8.
8.1. The applicant seeks condonation in terms of Rule 27 “ for bringing
this Application out [of] time ”. Beyond the bald request, however,
no case is made out: there is no explanation in the founding
affidavit for the period that elapsed between 25 September 2024
and 20 May 2025; no condonation principles are addressed; no
prejudice analysis is conducted.
8.2. The principles for condonation overlap, in this context, with the
common-law test for rescission. As Muller JA emphasised in
Chetty v Law Society (supra), an acceptable explanation of the
default must co-exist with reasonable prospects of success on the
merits; neither limb suffices on its own. The respondent’s heads of
argument correctly draw attention to the further principle that,
where there is no reasonable and acceptable explanation for the
delay, the prospects of success become immaterial; and where
there are no prospects of success, the explanation, however
convincing, will not save the application. In view of my findings
above on the merits, prospects of success are non -existent.
Condonation falls to be refused on that ground alone.
ABUSE OF PROCESS
9.
9.1. Section 173 of the Constitution and our common law empower a
court to protect its own processes against abuse. In Ascendis
court to protect its own processes against abuse. In Ascendis
Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation 2020
(1) SA 327 (CC), the Constitutional Court reaffirmed that abuse -of-
process concerns are motivated by the need to protect the integrity
12
of the adjudicative functions of the court and to ensure that its
procedures are not used for purposes extraneous to the truth -
seeking objective inherent in the judicial process.
9.2. This application bears every hallmark of the very abuse with which
Phatudi J was confronted in Road Accident Fund v Plaatjies
(supra): a generic, template application brought as a matter of
course to delay payment, without proper grounds and without
proper engagement with the matter. The applicant’s own failure to
file a replying affidavit, or heads of argument, or even to apply for
an enrolment date (which the respondent had to procure for the
applicant), is eloquent on the issue of bona fides . I find that this
application is an abuse of the process of this Court.
COSTS
10.
10.1. The respondent seeks costs on a punitive scale of attorney and
own client, including the costs of two counsel on scales C and B
respectively. The principles governing punitive costs are well -
established. As Tindall JA observed in Nel v Waterberg
Landbouers Ko -operatiewe Vereeniging 1946 AD 597 at 607,
attorney-and-client costs are appropriate where, by reason of
special circumstances arising from the conduct of the losing party,
the court considers it just to make such an award so that a
successful party will not be out of pocket.
10.2. In the present case, the circumstances cumulatively warrant a
punitive order:
10.2.1. the applicant deliberately ignored numerous notices,
set-downs and invitations to participate over a period of
several years;
10.2.2. it launched this application on demonstrably defective
papers;
10.2.3. it did not file a replying affidavit;
10.2.4. it did not file heads of argument;
10.2.5. it obliged the respondent to enrol the application;
10.2.6. the practical effect of the application, win or lose, is to
delay payment of life -changing compensation to a
profoundly injured and vulnerable patient.
10.3. As to the prayer for the costs of two counsel, I am unable to grant
13
it. The respondent’s practice note identifies only one counsel
briefed on the application — Adv R Ernst, of Club Advocates’
Chambers — and the heads of argument are signed by him alone.
Although n o second counsel is named on any of the papers, a
second counsel Adv Snyman SC was in attendance at the hearing
and argued the matter. The matter is a two counsel matter on its
facts and complexity. The appropriate order is for the costs of two
counsel on where so employed.
CONCLUSION AND ORDER
11.
11.1. The applicant has failed to make out a case on any recognised
basis for the rescission of the order of Hawman AJ. There is no
proper explanation for the default. There is no bona fide defence.
The application is not aligned to its own notice of motion. It does
not attack the orders which gave rise to the default judgment under
attack. It is brought outside the time limits, without any proper case
for condonation.
11.2. In the result, the following order is made:
11.2.1. The application for condonation is refused.
11.2.2. The application for rescission is dismissed.
11.2.3. The Applicant/ Defendant is ordered to pay all capital
amounts due and payable to the Respondent /Plaintiff,
including any and all costs already taxed, together with
interest on all such amounts, within 30 calendar days of
date of service of this order.
11.2.4. The applicant is ordered to pay the costs of the
application on the scale as between attorney and client,
such costs to include the costs of two counsel where so
employed.
________________________________
J DU PLESSIS AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
14
Date of hearing: 26 May 2026
Date of judgment: 27 May 2026
APPEARANCES:
For the Applicant:
Mr F Mostert
Instructed by:
The State Attorney, Pretoria
For the Respondent:
Adv Snyman SC with Adv Ronald Ernst Chambers, Pretoria
Instructed by:
Andre du Plessis Incorporated,
c/o Stegmanns Inc, Pretoria