IN THE HIGH COURT OF SOUTH AFRICA
MPUMALA NGA DIVISION , MBOMBELA (MAIN SEAT)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES
03/09/2026
DATE SIGNATURE
In the matter between:
GOODWILL MDUDUZI THIMBA
and
THE ROAD ACCIDENT FUND
Case No.: 66/2024
Appeal Case No: A2026-049216
APPELLANT
RESPONDE NT
Coram:
Heard:
RATSHIBVUMO AJP, NOBANDA et FOURIE AJJ
21 August 2026
Delivered: This judgm ent was handed down by uploading to CaseLines
on 03 September 2026.
2
_____________________________________________________________
ORDER
_____________________________________________________________
The Appeal is dismissed.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
FOURIE AJ:
Introduction.
[1] This is an appeal against the whole judgment and order of Tshetlo AJ, of
this Division (court a quo), delivered on 22 August 2025, in which the
Plaintiff’s claim for loss of earnings was dismissed with costs.
[2] Leave to appeal, having been refused in the court a quo, was subsequently
granted to this Court by the Supreme Court of Appeal upon the Appellant's
petition.
Background.
3
[3] The Appellant instituted action in the court a quo against the Respondent
for several heads of damages arising from a motor vehicle accident in
which he was involved.
[4] The Appellant, when lodging his RAF1 form with the Respondent,
indicated that a claim was proposed to be instituted for general damages
in the amount of R 4 million, and no intended claim in respect of loss of
earnings or past and future medical expenses was listed.
[5] However, w hen the Appellant ultimately issued Summons against the
Respondent, he claimed the following heads of damages:
a. An undertaking in terms of Section 17(4)(a) of the Road Accident
Fund Act, 56 of 1996 (the Act), for future medical expenses;
b. R 100 000.00 for past medical expenses;
c. General damages in the amount of R 2 million;
d. Future loss of earnings in the amount of R 3 million; and
e. Past loss of earnings in the amount of R 2 million.
[6] With the trial date for the matter looming , and on 28 January 2025, the
Respondent advanced to the Appellant an Offer of Settlement in full and
final settlement of the Appellant’s claim.1
1 See Casel Lines Bundle 025-26
4
[7] The following material facts in respect of the settlement offer deserve to
be highlighted:
7.1 The offer is marked ‘without prejudice’.
7.2 The preamble of the agreement states the following:
‘The RAF hereby offers, without prejudice or admission of liability, in full and final
settlement of your claim, the amount as set out hereunder.’ (Emphasis added).
7.3 The table dealing with the ultimate offer made under the respective
heads of damages reflects as follows:
7.4 An undertaking in terms of Section 17(4)(a) was provided.
7.5 The agreement expressly state d, as per a disclaimer on the part of the
Appellant, that:
7.5.1.1 ‘I understand the meaning and extent of this offer and
acceptance notice, and confirm that it records the full and
final agreement between the RAF and me. The RAF is
discharged from all liability pertaining to loss suffered in
the above-mentioned accident.’ (Emphasis added).
SECTI ON A: CAPITAL PAYMENT DETAILS AND BREAKDOWN
I PAST I FUTURE I TOTAL
HOSPITAL /MEDI CAL EXPENSES R0.00 R0.00 R0.00
LOSS OF SUPPORT R0.00 R0.00 R0.00
LOSS OF EARNINGS R0.00 R0.00 R0.00
FUNERAL COSTS R0.00
GENERAL DAMAGES (Pain & Suffering , Permanent disabilitv , etc) R 700 000.00
SUB-TO TAAL R 700 000.00
Minus: Apportionm ent Percentage: 20% R 140 000.00
SUB-TO TAAL R 560 000.00
Minus : Risk Percentage : 0% R0.00
SUB-TOTAAL R 560 000.00
Minus: Interim Payments R0.00
SUB-TOTAAL R 560 000.00
Minus: WCC Award (Workman 's Compensat ion) R0.00
SUB-TOTAAL R 560 000.00
GRAND TOTAL R 560 000.00
5
7.6 As to how the offer was to be accepted, the agreement stated:
7.6.1.1 ‘This offer can only be accepted by full completion and on
receipt of the signed original document. Any amendment to
this form will not constitute settlement of this claim unless
such amendment is expressly agreed on by the fund.’
7.7 In respect of acceptance, the agreement further stated that:
7.7.1.1 ‘Acceptance of this offer will only be deemed valid acceptance if it is
accepted in its totality. An acceptance on one or more aspects of the offer
(such as merits or quantum only, or only selected heads of quantum) will
be regarded as a counteroffer by the Claimant and will not be deemed to
constitute a valid agreement, unless the Road Accident Fund expressly
accepts the counteroffer.’
7.8 The offer was accepted, and the agreement was signed and countersigned
on 20 January 2025 by the Appellant.
[8] On 03 February 2025, after settlement of the matter by countersigning the
settlement agreement, the parties appeared before the settlement court.
During such appearances and at the request of the parties, the following
order was made:
1. The Settlement Agreement is made an order of court.
2. The trial for the issue of past and future loss of earnings is
postponed to 10 March 20255, as matter No 15 on the roll.
3. Cost of suit on High Court Scale to be taxed.’
6
[9] After the settlement of the claim, the Appellant proceeded on 21 February
2025 to file an ancillary RAF1 form, seeking to introduce new heads of
damage seemingly for loss of earnings. The filing of the new RAF1 form
on the part of the Appellant triggered a response by the Respondent to file
a notice of intention to amend its plea, dealing therein with a lack of
compliance with Sections 24(6) and 19(f) of the Act, and the issue of res
judicata premised thereon that the Appellant’s claim was settled in its
entirety.
[10] The ultimate amendment of the respondent’s plea under the auspices of
Rule 28 of the Uniform Rules of Court did not occur for reasons that are
not evident from the appeal record.
[11] At the commencement of the trial as set down, both the previously
anticipated special pleas were canvassed with the court a quo , and
submissions were made by the respective legal representatives
representing the parties on all the issues presented to the court.
[12] Flowing from the submissions made, the court a quo found that the
Plaintiff’s claim and the extent of the heads of damages as per the
Appellant’s Particulars of Claim are impermissibly wider than the claim
lodged in the initial RAF1 form. It further concluded that, as a result of
the settlement, the matter between the Appellant and the Respondent is
res judicata.
[13] Premised on the aforesaid, the Court a quo ordered as it had.
Issues on appeal.
[14] The Appellant predicated the appeal on two grounds, namely:
7
[14.1] “The court a quo erred in finding that the Appellant’s claim
and heads of damages according to the Particulars of Claim
are impermissibly wider than the claim lodged in the RAF1
form and that all heads of damages that were not set out in
the RAF1 form (but sought to be advanced in the
Particulars of Claim) are accordingly unacceptable claims
under the RAF Act, and no such claim is legally
enforceable as it is against the RAF Act ‘sic’.
[14.2] The court a quo erred in finding that the settlement that
was made an order of court on 11 February 2025 (order by
Mangena AJ), was a full and final settlement of the entire
claim for the following reasons:
[14.2.1] Both parties were represented, and the
settlement agreement was made an order of
court. The Respondent agreed to a postponement
of the claim action for loss of income to 10
March 2025; and
[14.2.2] Neither the Draft Order nor the Court Order
states that the settlement was a full and final
settlement in respect of all heads of damages;
rather, it states that it was a settlement conceding
liability at an 80/20 apportionment, payment for
general damages, and an undertaking.”
8
Mero motu questions of law.
[15] The issues ultimately before the court a quo , which were raised in the
current appeal, do not arise from the pleadings of the respective parties.
They include:
15.1.1.1. The filing of a further RAF1 form.
15.1.1.2. The proposed Special Plea pertaining to the objection to the
further RAF1 form; and
15.1.1.3. The Special Plea that the Respondent was of the intention of
raising under the auspices of res judicata, dealing in essence with
the settlement of the matter between the respective parties.
[16] In Fischer and Another v Ramahlele and Others 2 the Supreme Court of
Appeal emphasised the adversarial nature of the South African civil
procedure and held that it is for the parties to define the only issues, that
the court is to adjudicate on, and that it is not for a court to raise new issues
not traversed in the pleadings or affidavit, however interesting or
important they may seem to it.
[17] The court, however, emphasised that there may be instances in which a
court may, mero motu, raise a question of law that emerges fully from the
evidence and is necessary for the decision of the case. That is subject to
the proviso that no prejudice will be caused to any party by its being
raised.
2 [2014] ZASCA 88; 2014 (4) SA 614 (SCA)
9
[18] The principles in the matter of Fischer, supra, were confirmed in the
matter of Molusi and Others v Voges N.O and Others3. Although the issues
dealt with by the court a quo did not emanate from the pleadings, they
would ultimately lead to a conclusion of the matter. The Court a quo was
justified in dealing with them, irrespective of whether the pleadings were
amended prior to the commencement of the trial . Neither the Appellant
nor the Respondent took issue at the time with the court dealing with the
points of law, and neither party could accordingly raise any prejudice in
respect of such.
[19] Although not addressed as a confined ground of appeal, this Court found
it necessary to elaborate on this point , as much of the Appellant’s
argument centres on the court a quo engaging with issues it ought not to
have done.
Res Judicata.
[20] For reasons that will follow, the Court first addresses whether the court a
quo was correct in finding and upholding the Special Plea regarding res
judicata. If the issues between the parties are found to have been settled
prior to the trial before the court a quo, there would be no live disputes
remaining between the parties to be determined. If this Court accepts that
the parties had settled their litigious dispute, such settlement would
terminate the Court’s authority or jurisdiction to pronounce on the
litigious dispute.4
3 2016 (3) SA 370 (CC) at para 28
4 Mafisa v Road Accident Fund and Another (CCT 156/22) [2024] ZACC 4; 2024 (6) BCLR 805 (CC); 2024 (4)
SA 426 (CC) (25 April 2024) at 53
10
[21] As in the matter of Mafisa, supra, this Court is not requested to pronounce
on the validity and terms of the settlement agreement between the parties;
as such, they are not in dispute, and the Court will not be open to
pronounce on same.
[22] In the current matter, the settlement agreement in its current form was
neither challenged nor rectified.
[23] The Supreme Court of Appeal in the matter of Tosholo v Road Accident
Fund5 has already scrutinised and evaluated the terms of offers of
settlement by the current Respondent, and the implication for a Plaintiff,
or in this case an Appellant, who signs and accepts such an offer without
qualification.
[24] This Court can do no better than to repeat what was stated by Molefe JA,
where it was stated that:
‘[10]. The issue in this Court is whether the appellant’s claim was
compromised and settled. A compromise is founded on the prescribed
principles of offer and acceptance, and involves each party making a
concession, either by reducing their purported claim or by
acknowledging their liability. 6 It is important to ensure that there is a
clear offer to compromise, and a transparent acceptance of the
settlement offer when a claim is settled and a compromise is attained. 7
Therefore, the language of an offer to compromise in order to resolve a
conflict must be precise and definite.
5 (875/2023) [2025] ZASCA 21 (19 March 2025)
6 R H Christie, The Law of Contract in South Africa (2022) 8 th edition at 557.
7 Ibid.
11
[11] If the compensation made by the debtor is considered an offer of
compromise ( animo contrahendi ), which the creditor agrees to, the
creditor usually loses the right to pursue the debtor further. 8 Accepting
an offer of compromise without reservation or restrictions to the
debtor’s offer of compromise is typically understood to be done with
the implicit, if not explicit, stipulation that the creditor abandons any
right to pursue the remainder of their claim.
[12]. The legal position on how a court should deal with a settlement
agreement was confirmed by the Constitutional Court in Mafisa v Road
Accident Fund and Another (Mafisa),9 where it was stated that
‘[c]ontractual agreements concluded freely and voluntarily by the
parties ought to be respected and enforced. This is in accordance with
the established principle pacta sunt servanda (agreements must be
honoured)’.10 The Court further held that, as a general rule, a judge
should not interfere with the terms of a settlement agreement. 11 This
Court found that a compromise puts an end to the lis between the parties
and has the effect of res judicata. Courts must therefore exercise
restraint to ensure that there is no undue imposition on the parties’
contractual freedom.12
[13] In Burt N O v National Bank of South Africa,13 this Court held that:
‘The tender is made for the purpose of settling the action, and neither
the person who makes the offer nor the person who accepts it can
possibly have any misconception as to its meaning. If, therefore, a
plaintiff unreservedly accepts an offer made in those terms, he must be
taken to accept it, with the condition attached that he shall abandon the
8 Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd [2006] ZAWCHC 72; 2006 (6) SA
379 (C) at 392H-J.
9 Mafisa supra
10 Ibid para 36.
11 Ibid para 50.
12 Road Accident Fund v Taylor and Other Matters [2023] ZASCA 64; 2023 (5) SA 147 (SCA) paras 37 -42 and
51.
13 1921 AD 59 at 67.
12
balance of his claim, and in these circumstances it is, to my mind,
inconceivable that he can retain the money and at the same time be
allowed to sue for the balance of the claim.’
[14]. An agreement of compromise therefore has the effect of discharging the
existing obligations of the debtor and the creditor’s claim will be
regarded as finally adjudicated upon ( res judicata).14 Compromise is a
settlement of disputed obligations by agreement. Any litigation
following the settlement will relate to non -compliance with the
settlement agreement and not the original dispute.
[15] When the legal principles set forth are applied to the facts in this matter,
a clear picture emerges. The ‘offer and acceptance of settlement’
prepared by the RAF, dated 25 September 2013, and signed by the
appellant on 18 November 2013, clearly indicated that the settlement
was in full and final settlement of the appellant’s claim. It also
confirmed that the RAF was discharged from all liability pertaining to
the loss suffered in the accident.
[16] In addition, the appellant warranted as follows:
‘I understand the meaning and extent of this Offer and Acceptance
Notice and confirm that it records the full and final agreement
between the RAF and me. The RAF is discharged from all liability
pertaining to the loss suffered in the above mentioned accident.’
[17] This was a written contract. There was no basis on the pleadings or
evidence to impugn it. Nor could evidence be led to contradict its terms.
Nor was it pleaded that the agreement was subject to rectification. It is
14 The principle is that, generally, parties may not again litigate on the same matter once it has been determined on
the merits.
13
clear that the agreement of compromise was binding on the appellant.
That means that no lis between the parties remained.
[25] The Appellant failed to address the issues enunciated in Tosholo in their
argument. There is no reason to believe that the principles as stated in
Tosholo ought not to be rigidly applied by this Court.
[26] From a mere evaluation of the settlement agreement entered into between
the parties, it is evident that each head of damage as claimed by the
Appellant was considered and an appropriate value that the Respondent
wished to offer to the Appellant was assigned to such claim. The offer of
settlement also dealt with issues not found in the initial RAF1 Form, and
an offer by way of undertaking in terms of Section 17(4)(a) was made
even though no such claim was present on the initial RAF1 form.
Similarly, the Respondent addressed the issue of loss of earnings, and it is
evident that the Respondent offered R 0.00 to the Appellant in respect of
this head of damage. The offer of settlement accordingly dealt with the
whole of the Appellant’s claim, nothing excluded.
[27] Confronted with the offer of settlement, the Appellant knew that by
accepting the offer of settlement it would settle each and every dispute
between him and the Respondent. The offer of settlement was not silent
on any issues , nor was there any waiver or disclaimer indicating that
certain heads of damages were not considered or included. The settlement
agreement expressly stated that by signing it, all issues between the parties
would be settled.
[28] By signing the agreement, as in the matter with Tosholo, the lis between
the parties was removed, and, as such, no issues remained alive for a court
to deal with.
14
[29] The Appellant’s attempts to reason that the order made by Mangena AJ
somehow revives the lis between the parties specifically pertaining to loss
of earnings, is simply incorrect and fatally flawed.
[30] The order by Mangena AJ made no pronouncement on the amendment of
the settlement agreement nor did it ratify the agreement in any way as the
Appellant seems to believe. Insofar as any party, in this case the Appellant,
wished to refer any issue to the Court to adjudicate, Mangena AJ ordered
the issue of loss of earnings to the Court a quo. Mangena AJ did not
pronounce that there existed a lis between the parties in respect of the issue
of loss of earnings, and when the court a quo was confronted with the
Appellant’s claim for loss of earnings, it correctly found that the matter
was res judicata and that the court was precluded from dealing with the
matter in any way further.
[31] This Court cannot fault the reasoning of the court a quo, and as such this
ground of appeal cannot be sustained.
First Ground of appeal.
[32] Having ultimately found that the matter was res judicata , it was
unnecessary for the court a quo to deal with any other issues before it at
the hearing, other than costs.
[33] It becomes academic and irrelevant for this Court to deal with whether the
Appellant’s claim in his Particulars of Claim was impermissibly wider
than the claim lodged in the RAF1 Form, as Appeal Courts are not
designed to deal with moot issues. The issues under this ground of appeal
----
15
also do not concern a discrete point of law of public importance, nor does
the interest of justice dictate that this Court should entertain them .
[34] This issue is not novel and was already dealt with in Nonkwali v Road
Accident Fund 15 where Maya JA (as she then was) held that:
‘[10] In the event, the claim for damages relating to the appellant’s head injury
did not constitute a new cause of action but was merely an additional item to her
original cause of action. The appellant’s amendment to her summons did,
therefore, interrupt the r unning of prescription in respect of the further claim. It
was thus not necessary for her to lodge an amended claim form.16 ‘
[35] This principle was applied as recently as 30 April 2026 in this Court 17.
It was unnecessary for the Court a quo to address any issue other than res
judicata, and similarly this Court will be confined to that issue . It could
be that the Respondent was alive to this approach when, in its settlement
offer, it addressed heads of damages that were not referenced in the initial
RAF1 Form.
Costs.
[36] The matter remained unopposed and as such this Court finds no reason to
make any cost order that either follows the result or otherwise.
15 (105/2007) [2008] ZASCA 3; [2008] 2 All SA 503 (SCA); 2009 (4) SA 333 (SCA) (6 March 2008)
16 Boti v Unie en Nasionale Versekeringsmaatskappy, Bpk 1968 (4) SA 567 (O).
17 Mathebula v Road Accident Fund (2436/24) [2026] ZAMPMBHC 38 (30 April 2026)
16
Order.
[37] For the aforesaid reasons, the appeal cannot succeed, and the following
Order is proposed:
[37.1] The Appeal is dismissed.
I agree
I agree, and it is so ordered.
HFFOURIE
ACTING JUDGE OF THE HIGH COURT,
MPUMALANGA DIVISION
PLNOBA NDA
ACTING JUDGE OF THE HIGH COURT,
MPUMALANGA DIVISION
TV RATSHIBVUMO
ACTING JUDGE PRESIDENT
MPUMALANGA DIVISION
17
Counsel for the Appellant: ADV S MBHALATI
Instructed by: MFUNDO MOGALE
Cell: 063 049 4524
Email: info@mpmogaleattorneys.co.za
Counsel for the Respondent: NO APPEARANCE