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 )
CASE NO: 1082/2019
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES / NO
Circulate to Regional Magistrates: YES / NO
Edited: YES / NO
In the matter between:
RIED, DINA Applicant
And
THE ROAD ACCIDENT FUND Respondent
Neutral citation: Ried v The Road Accident Fund (Case No: 1082/2019 )
Coram: Nxumalo J
Heard: 29 May 2025
Delivered : 12 June 2026
ORDER
1. The application is hereby dismissed with costs.
Judgment: Ried v RAF [1082/2019] Page 2
JUDGMENT
INTRODUCTION :
[1] This is an application to amend the order of this Court dated 01 July
2022, by deleting paragraph 5 .1 thereof and substituting same with the
following:
“5.1. Costs of counsel, Adv JRF Ernst, 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 , advice on evidence , preparation for trial and day fee s
for 19 November 2021 and 1 July 2022.” 1 (Emphasis supplied)
[2] The applicant contemporaneously seeks costs, only in the event of the
motion being opposed . Further and/or alternative relief is also sought .
The founding and replying affidavit s are deposed to by one Mr André
Felix Du Plessis, the applicant ’s attorney of record, who averred that the
contents of the said affidavit, fall within his person al knowledge, unless
otherwise stated or where the contrary clearly appears from the context .
He further averred that he is duly authorised to bring this application and
to depose to the said affidavits on behalf of the applicant.
[3] The respondent is opposed to the order sought being granted and has
delivered an answering affidavit to that effect . The said affidavit is
deposed to by one Lungile Nkosi, an Acting Team Leader in the
respondent’s Death Adjudication Department . The said offic ial also
1 The relevant portion of the order granted by this Court, by agreement between the parties, reads as follows:
“5. Subject to the discretion of the taxing master, the Defendant must pay Plaintiff’s taxed or agreed party and
party costs on the Magistrate’s Court scale, which costs shall include, but not limited to the following:
5.1 Costs of counsel, Adv JRF Ernst, which costs shall include, but not limited to, general preparation,
consultation, perusal, travel expenses, research, preparation of heads of argument, advice on evidence,
preparation for trial and day fees for 19 November 2021 and 1 July 2022.”
Judgment: Ried v RAF [1082/2019] Page 3
averred that the contents thereof falls within her personal knowledge,
unless indicated to the contrary . Of significance in this regard is the fact
that Ms Rabie , who at all material times hereto represented the
respondent, has not delivered any confirmatory affidavit in these
proceedings .
[4] The applicant is one MS DINA RI ED, a major female residing at Dakota
Plakkerskamp, No 2[...], U […], Northern Cape . The applicant is the
biological mother of the late Mr Henry Jacobus R ied (“the deceased ”).
[5] The respondent is the ROAD ACCIDENT FUND , a juristic person
established in terms of the Road Accident Fund Act 56 of 1996 (“the
Act”), with its principal place of business situate at 3[...] I[...] Street,
Menlo Park, Pretoria, Gauteng and 3[...] L[...] Street, New Park,
Kimberley, Northern Cape .
THE FACTS UPON WHICH THE APPLICANT RELIES FOR RELIEF :
[6] The action arises from a claim for damages resulting from the death of
the deceased on 16 September 2016 . The claim was brought in terms of
the Act, which governs the liability of the Road Accident Fund and the
compensation of persons who suffer loss arisi ng from motor vehicle
accidents . At the time of the accident , the deceased was a passenger in
one of the motor vehicles involved in a head -on collision . The applicant’s
case (as plaintiff) was that , at the time of the said collision, the deceased
was the breadwinner and owed a duty of support to the applicant ;
alternatively , he had undertaken a duty to maintain the applicant .
Consequently, the applicant sued the respondent (as defendant in the
action) in the amount of R335 100.00; 2 for the loss of support suffered as
a result of the death of the deceased, together with costs of suit and
2 Three Hundred and Thirty-Five Thousand One Hundred Rand only.
Judgment: Ried v RAF [1082/2019] Page 4
further and/or alternative relief .
[7] The matter was ultimately set down for 01 July 2022 . On the said date, it
is common cause that the parties settled the matter by agreement . This
agreement was made an order of this Court . In terms of the said
settlement, it was agreed that the respondent shall pay the applicant a
reduced amount of R244 380.00. 3 There is n o doubt that the said amount
falls well below this Court’s minimum monetary jurisdiction and squarely
within the jurisdiction of the Magistrates’ Court .
[8] In addition to the foregoing, the respondent was also ordered to pay the
costs of suit in relevant part as follows:
“5. Subject to the discretion of the taxing master, the defendant must pay
Plaintiff’s taxed or agreed party and party costs on the Magistrate’s
Court scale , which costs shall include, but are 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, travel
expenses, research, preparation of heads of argument, advice on
evidence, preparation for trial and day fee s for 19 November
2021 and 1 July 2022.” (Emphasis supplied)
[9] Of significance is the fact that paragraph 6 of the said order
contemporaneously provided that in the event that the costs are not
agreed between the parties, the applicant shall serve the notice of
taxation on the respondent and allow the latter 14 (fourteen) C ourt days
to make payment of the taxed costs . It is also so that the applicant
entered into a contingency fee agreement with her attorney of record,
regard being had to paragraph 7 of the said order.
3 Two Hundred and Forty- Four Thousand Three Gundred and Eighty Rand only.
Judgment: Ried v RAF [1082/2019] Page 5
[10] It is apparent from the foregoing that the order ought to be amended
expressly provides for the costs of the action, including the costs of
counsel, to be paid on a party -and-party basis on the Magistrates’ Court
scale, subject to taxation or agreement and the discretion of the taxing
master.
[11] It is against this backdrop that, the facts upon which the applicant relies
for relief, fall for consideration; to wit: Whilst compiling the taxed bill of
costs, the costs consultant acting for the applicant’s attorney of record,
indicated that prayer 5.1 of the Court order is not in accordance with the
necessary statement regarding the costs of counsel . Following
consultation with the said cost consultant and counsel, it became
apparent that this was a mere bona fide error which had to be rectified .
[12] Thereafter, according to applicant, the applicant only then addressed the
relevant electronic mail on 23 May 2023 , to the respondent’s attorneys .
This electronic mail was addressed to one Ms Benita Wells, wherein the
alleged bona fide error w as put up . Significantly , the said mail was
transmitted almost 1 1 months after the order sought to be amended, was
granted. A cop y of the said mail is attached to the founding affidavit as
annexure DR2. It is apposite to quote the 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
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 R 2 514.50 per day. (sic)
Judgment: Ried v RAF [1082/2019] Page 6
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 magistrates court scale, as we do not practice in
the Magistrate ’s Court and don’t often deal with magistrates court scale party
and party bills of cost . 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 the costs to be allowed by the taxing master for Counsel’s day
fees, if its only on magistrates court tariff as indicated above, is not sufficient,
especially when I as attorney for the plaintiff has to account to a plaintiff on the
party and party bill of costs, as the expectation is that most of / a reasonable
amount of fees and disbursements will be recovered in the party and party bill of
costs. This is especially true in matters where the quantum s is “small”, i.e
below R400 000.00. (sic)
It is advised by our cost consultants Peta Fernie attorneys/cost consultants, who
has long -term experience in drafting and taxing/settling both High Court and
Magistrate ’s Court bills of cost that the order with regards to counsel fees must
read: “ The costs is to include the cost of counsel as per the Bar Council
parameters ” of “raised counsel fees” . (sic)
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.
I look forward to hear from you.
Regards” 4 (sic)
[13] It is not clear from the said e-mail or the papers before this Court as to
when the costs consultant was consulted . The said e-mail was also
4 Emphasis supplied.
Judgment: Ried v RAF [1082/2019] Page 7
never responded to or acknowledged by the respondent . It is against this
backdrop that the applicant lodged th is application on 13 February 2024,
approximately 1 year and 7 months down the line .
THE PARTIES’ ARGUMENTS, IN SUM :
The applicant’s :
[14] The applicant based this application on the allegation that the incorrect
order was granted as a result of a reasonable mistake . That it is so since
the applicant’s legal representatives were unaware of the impact of the
wording of the settlement agreement at the time same was made an
order of Court. That consequently, the order in question does not reflect
the true intention of the parties . That it was therefore incumbent on this
Court to correct the said error to give effect to the true intention of the
parties. That same w as a bona fide error, and if rectified, no party would
suffer any prejudice.
[15] That on the day the matter was settled, both applicant’s legal
representatives were of the mistaken opinion that the manner in which
the order in question was drafted was sufficient to exclude counsel’s fees
from the limitations of rule 69(3) of the Uniform Rules of Court . That the
applicant’s legal representatives also believed this to be the intention of
the respondent and because of a reasonable mistake they were of the
view that the wording used would achieve the purpose .
[16] Significantly, t he applicant ’s attorney also averred that it was only when
his costs consultants, were preparing the party and party bills of costs
that he was advised that the Court order in question 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 order in question
should be varied or amended to correctly reflect the intention of the
Judgment: Ried v RAF [1082/2019] Page 8
parties. That the fact that the matter was settled does not take away the
right of the applicant and counsel to be reimbursed on a reasonable and
correct party and party scale applicable tariff .
[17] That the applicant ’s legal representatives committed a bona fide error in
formulating the order in question . That inadvertently, the phrase “ on
Magistrate Court scale ” was inserted with regard to party and party costs .
That t he said phrase can therefore not be used against the applicant to
deny her of her fair and reasonable party and party fees and
disbursements, with regard to the costs contribution payable by the
respondent .
[18] The applicant merely seek to vary the order in question so as to reflect
the true meaning of how counsel’s fees and disbursements should have
been worded in the order sought to be amended or varied . That the said
bona fide error arose as a consequence of the applicant ’s legal
representatives’ having misinterpreted the import of Rule 69(3) at all
material times .
[19] The applicant ’s attorney further averred that at all material times hereto,
he laboured under the misapprehension that the order in question was
suitably formulated to cover the fees and expenses relating to counsel
and that the applicant would be properly reimbursed for party and party
fees disbursements . That in the premise, it was incumbent on this Court
to amend the order in question so as to give effect to the true intention of
the parties .
[20] That regard being had to the amount awarded, after normal attorney and
counsel’s fees and disbursements have been deducted, the applicant will
in effect be out of pocket, which is not the intended result in respect of a
claimant or client of an attorney upon successful finalisation of a third -
party claim . That f air and reasonable party and party costs must be
Judgment: Ried v RAF [1082/2019] Page 9
reimbursed to the applicant . It was therefore necessary for counsel’s
raised fees as per Bar Council parameters to be included in the order
sought to be amended .
[21] That w hen th is matter was settled on 01 July 2022 , the applicant ’s legal
representatives were of the opinion that the manner in which the order in
question was drafted was sufficient to exclude counsel’s fees from the
limitation of rule 69(3) . That a t all material times hereto, it was their
intention to exclude the limitation on counsel’s fees as set out in the said
rule. The applicant ’s 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 Magistrates’ Court scale .
[22] That a party cannot be prescribed as to its choice of forum . That w hilst
the amount claimed falls within the monetary jurisdiction of the
Magistrates’ Court, the applicant was nevertheless entitled to issue
summons out of this Court, which has a concurrent jurisdiction with the
latter.
[23] That whilst the applicant agreed that the respondent is obliged to protect
public funds, the applicant disagreed that the order sought would amount
to fruitless and wasteful expenditure . That it is so since the applicant is
not claiming exorbitant costs without any legal basis , s o the applicant’s
argument went , in sum.
The respondent’s :
[24] The respondent, for its own part, in the main maintained that this motion
amounts to an abuse of Court process as the claimed amount clearly fall s
within the monetary jurisdiction of the Magistrate’s Court . Thus, the
actions should not have been instituted in this Court, in the first place .
That the applicant ’s decision to issue summons in this Court amounted to
Judgment: Ried v RAF [1082/2019] Page 10
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 (“the PFMA”).5
[25] That the applicant confirmed that this application was brought solely on
the strength of the advice received from the costs consultant . That the
law is clear regarding the scale of costs, when a matter is settled in the
amount such as in th is matter. That 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.
[26] That whilst it is so that a party cannot be prescribed as to its choice of
forum, such a party may face a cost order on a lower scale, such as in
this matter . That to the extent that this application had no merits , it was
proper and necessary for the respondent to oppose same. That th e
correct thing for this Court to do, to prevent this kind of hopeless and
unnecessary applications clogging its busy roll is to dismiss this motion
with costs. So the respondent’s argument, in sum , went.
DETERMINATION :
[27] It is significant to point out at the onset that this Court has already
handed down a joint judgment in Beukes v RAF 6 and Van Wyk v RAF ,7
which are pari materia to the matter in casu. The reliefs sought were also
similar. In the absence of any basis to distinguish those matters, this
Court follows the reasoning therein .
5 In terms of Section 1 of the PFMA “fruitless and wasteful expenditure ” means expenditure which was made in
vain and would have been avoided had reasonable care had been exercised . Section 81(1) of the PFMA, for its own
part, expressly stipulates that an accounting officer for a department or a constitutional institution commits an act of
financial misconduct if that accounting officer willfully or negligently , inter alia, makes or permits an unauthorised
expenditure, an irregular expenditure or a fruitless and wasteful expenditure.
6 Case number 1636/21.
7 Case number 1150/19 .
Judgment: Ried v RAF [1082/2019] Page 11
[28] The applicant , as in the abovementioned cases, has predicated this
motion on rule 42(1)( b) of the Uniform Rules of this Court . The said rule
expressly and unambiguously authorises this Court, in addition to any
other powers it may have , 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
[29] It follows from the foregoing that the following issues fall for determination
in this motion; to wit: (a) whether the application was brought within a
reasonable time; and (b) whether, regard being had to the facts and
circumstances of th is matter , the order sought to be amended or varied
suffer from any ambiguity or any patent error or omission, within the
contemplation of rule 42(1)( b). These issues are determined in turn,
hereunder .
Whether the application has been brought within a reasonable time :
[30] Whilst in matters accessory to judgments, such as interest, costs or the
appropriate tariff of costs, Courts have a discretion to supplement their
judgments , there is a gener al reluctance to extend this exception beyond
its narrow confines. 9 Rule 42 confers upon the Court a discretion to order
rescission or variation, which discretion must be exercised judicially . The
relief sought is accordingly discretionary. 10
[31] Rule 69(3), expressly and unambiguously stipulates as follows:
“Save where the defendant or respondent is awarded costs, the tariff of
8 First National Bank of Southern Africa Ltd v Van Rensburg NO and Others : in re First National Bank of
Southern Africa Ltd v Jurgens and Others 1994 (1) SA 677 (T) at 681B–G; see also Firestone South Africa (Pty)
Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306H.
Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306H.
9 See generally Thompson v South African Broadcasting Corporation 2001 (3) SA 746 (SCA).
10 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) paras 5- 7.
Judgment: Ried v RAF [1082/2019] Page 12
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
request made before or immediately after giving the judgment, otherwise
directs.” 11 (Emphasis supplied)
[32] 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 .
[33] As alluded to above, the order sought to be amended is dated 01 July
2022. The motion was only l odged on 13 February 2024 , approximately
19 months later. It is not clear from the papers when the alleged
consultation with the costs consultant occurred. This Court is of the view
that a delay of 1 9 months, sans any explanation thereof, is inordinately
long; regard being had to the facts and circumstances of this case .
Whether the order in question suffer from any ambiguit y or any patent error
or omission, within the contemplation of rule 42(1)(b) :
[34] Of significance in this regard is the fact that the “ambiguity”, “error” or
“omission” contemplated in rule 42(1)( b), must be attributable to the Court
such that the judgment patently does not reflect its intention. 12
[35] Patently, the essence of this motion is the assertion that it was only whilst
11 Before its deletion by GN R4477 of 8 March 2024.
12 First Consolidated Leasing Corporation Ltd v McMullin 1975 (3) SA 606 (T) at 608F; see also Seatle v Protea
Assurance Co Ltd 1984 (2) SA 537 (C) at 541C.
Judgment: Ried v RAF [1082/2019] Page 13
compiling the taxed bills of costs ex post facto , that the costs consultant
indicated that paragraph 5.1 of the Court order in question is not in
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 same was a m ere error, which ha s to be
rectified. 14 The applicant contemporaneously contended that the
impugned tariff of costs is a mere “…bona fide misunderstanding and
omission on the part of the plaintiff and perhaps both parties.” 15 It is apparent
from the foregoing that the alleged error is in no way attributable to this
Court. Not at all .
[36] It follows from the foregoing that this motion do es 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 order in question came
about as a result of any mistake common to the parties or from any
mistake at all.
[37] It must be accepted that a settlement or compromise ( transactio ),
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 . It follows that
to the extent that the applicant seek s to rectify a settlement agreement
which was subsequently made an order of Court, it is trite that t he
general rules applicable to the rectification of contracts are implicated. 16
[38] 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
13 Paragraph 3.3, p 6, Founding Affidavit.
14 Paragraph 3.4, p 7, ibid.
15 Paragraph 3, Annexure DR2 to the Founding Affidavit.
14 Paragraph 3.4, p 7, ibid.
15 Paragraph 3, Annexure DR2 to the Founding Affidavit.
16 See Mafisa v Road Accident Fund 2024 (4) SA 426 (CC) paras 33-38.
Judgment: Ried v RAF [1082/2019] Page 14
error in drafting the impugned document; that the written document did
not reflect the common intention of the parties correctly . The common
continuing intention of the parties, as it existed when the agreement w as
reduced to writing , must also be established . Same may be deduced
from antecedent agreements, for instance. 17 In addition, it must also be
alleged and proved that the error was iustus. Incidental mistakes or
mistakes relating to the reasoning or motivation behind the agreements
only, are not iustus.18
[39] The respondent denies that the mistake in casu is mutual . Nothing
therefore evinces the common intention of the parties as it existed when
the settlement was made an order of Court.19 Nor are there any alleged
facts evincing any antecedent agreement contra same. Significantly, on
the version of the applicant, the mistake in casu, was allegedly
discovered ex post facto whilst compiling the taxed bills of costs and only
when the costs consultant indicated that paragraph 5.1 of the Court order
are respectively not in accordance with the necessary statements
regarding costs of counsel.
CONCLUSION :
[40] The foregoing evinces that the applicant ’s legal representative’s alleged
bona fide misunderstanding and omission pertaining to the costs tariffs in
fact is an incidental mistake or mistake relating to the reasoning or
motivation behind the agreement and nothing more . It is also clear from
the founding papers that the applicant has also subsequently created a
retrospective mistake by means of fresh evidence which was not relevant
when the parties entered into the settlement agreement which was
subsequently made an order of Court.
17 See City Council of the City of Durban v Rumdel Construction (Pty) Ltd & Others [1997] 3 All SA 20 (D).
18 See Van Reenen Steel (Pty) Ltd v Smith NO and Another 2002 (4) SA 264 (SCA).
19 See Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd 1970 (2) SA 498 (A) at 503.
Judgment: Ried v RAF [1082/2019] Page 15
[41] In the premise, this Court finds that the alleged error is not iustus and
therefore , renders the application to be dismissed with costs .
ORDER:
[42] The following order therefore issues:
1. THE APPLICATION IS HEREBY DISMISSED WITH COSTS.
_____________________________
APS NXUMALO J
HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION
KIMBERLEY
For the Applicant: MS JA SNYDERS
On instructions of: André Du Plessis Attorneys
Pretoria
c/o Engelsman Magabane Inc.
Kimberley
For the Respondent: MR M MOGANO
On instructions of: Office of the State Attorney
Kimberley