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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2021/55976
In the matter between:
ROAD ACCIDENT FUND Applicant
and
T[…] : K[…] E[…]
obo N[…] T[…] T[…] Respondent
JUDGMENT
VERVEEN AJ:
This judgment is handed down electronically by circulating it to the parties’
representatives by email and by uploading on CaseLines.
Introduction
[1] The applicant, the Road Accident Fund (“the RAF”), applies under Uniform
Rule 42 and the common law to rescind the order granted by Weideman AJ
(1) REPORTABLE: NO/YES
(2) OF INTEREST TO OTHER JUDGES: NO/YES
(3) REVISED: NO/YES
…………..………….............
SIGNATURE DATE 25 August 2026
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on 16 February 2024. The material part of that order directed the RAF to pay
R5 537 040.00 for the respondent’s loss of earnings.1
[2] The RAF was served with the judgment by 25 February 2024, according to its
own founding affidavit. It served this application on 28 November 2024.2
The applicable principles
[3] Rule 42(1)(a) permits rescission only of an order erroneously sought or
granted in the absence of a party affected by it. A party who was procedurally
entitled to judgment is not deprived of that entitlement merely because a
defence is later advanced.
3
[4] Under the common law, an applicant must establish good cause: a reasonable
explanation for the default; bona fides; and a bona fide defence carrying prima
facie prospects of success. The requirements are considered in the
circumstances as a whole.
4
[5] In particular, Colyn at para 9 confirms that an internal or attorney -side failure
does not, without more, constitute the procedural error contemplated in Rule
42(1)(a). Paragraph 12 confirms that an inadequate explanation for default is
not cured merely by a stronger case on the merits. Lodhi at paras 25 –27
makes clear that a later -disclosed merits defence cannot transform a
procedurally valid default judgment into an erroneously granted order.
Rule 42
[6] The RAF cannot satisfy the absence requirement. Its representative,
Ms Nziyanziya, appeared for it at the hearing. When invited to address the
1 Bundle, p207.
2 Bundle, p 38, 248.
3 Lodhi 2 Properties Investments CC and Another v Bondev Developments (Pty) Ltd 2007 (6) SA 87
(SCA) paras 25–27.
4 Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) paras 11–
12; Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) at 476.
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Court, she recorded that the RAF was barred and that she had no instructions
on general damages or loss of earnings.5
[7] Concerningly, in these proceedings the founding affidavit expressly states that
it representative was not present in court. The applicant has now conceded
that the allegation in its founding affidavit that it was absent when the order
was granted is incorrect. That concession is decisive of its reliance on Rule
42(1)(a). The transcript establishes that the applicant was represented, was
afforded an opportunity to address the Court, and was not precluded from
participating. Its representative stated only that the applicant was barred and
that she held no instructions. The applicant cannot convert its own election not
to advance submissions into an absence for purposes of Rule 42(1)(a).
[8] Nor was the order erroneously sought or granted. The Court heard the
respondent’s submissions, interrogated the actuarial assumptions and
contingencies, and independently determined the amount eventually awarded.
The later allegation that the minor progressed more favourably at school than
the experts had predicted is an attempted challenge to the merits of the
assessment. It does not disclose a procedural error which rendered the order
rescindable under Rule 42.
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Common-law rescission
[9] The explanation for the approximately nine- month delay is inadequate. The
RAF says that an internal memorandum had to be prepared and that the
matter was later allocated to the State Attorney after settlement efforts failed.
It gives no sufficient account of the material periods of inactivity, nor does it
identify the dates, steps, or persons responsible. The explanation is materially
based on information supplied by another official, without confirmatory
evidence.
7
5 Bundle, p 251, 252.
6 Bundle, p 254, 255.
7 Bundle, p 38.
4
[10] The RAF has also not demonstrated a bona fide defence with prospects of
success. It accepts that the respondent is entitled to compensation for loss of
earnings, but challenges the amount on the basis that the minor passed
Grade 11 and that the experts’ projections were therefore wrong.
8 That
contention does not engage with the Court’s own evaluation of the evidence
and contingencies. More importantly, the factual allegations underlying it are
expressly said to have been conveyed to the deponent by the RAF’s claim -
investigation officer. No confirmatory affidavit from that officer or admissible
source material supporting the alleged school progression was placed before
the Court.9
[11] The application therefore seeks, in substance, a reconsideration of the
quantum order upon incomplete and inadmissible evidentiary material.
Rescission is not an appeal. The RAF has not made out a case under Rule 42
or at common law.
Costs
[12] The respondent sought attorney -and-client costs and a referral of the RAF’s
legal representative to the Legal Practice Council. Although the application
cannot succeed, it does not automatically warrant attorney -and-client costs or
a referral to the LPC. Those exceptional consequences would ordinarily
require a finding that the incorrect allegation was knowingly made, recklessly
persisted in, or inadequately withdrawn, and that the conduct merits censure.
[13] Costs should follow the result on the ordinary scale.
Order
[14] The following order is made:
8 Bundle, p 280.
9 Bundle, p 35.
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1. The application for rescission is dismissed.
2. The applicant shall pay the respondent’s costs on the party -and-
party scale, including the costs of counsel on Scale B.
_________________________
P VERVEEN
Acting Judge of the High Court
Johannesburg
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APPEARANCES:
Applicant: ADV. H SCHOUTEN
Instructed by: WIM KRYNAUW ATTORNEYS
Respondent: PUMZA NZIYANZIYA
Instructed by: STATE ATTORNEY
Hearing: 24 August 2026
Judgment: 25 August 2026