IN THE IDGH COURT OF SOUTH AFRICA
MPUMALA NGA DIVISION, MBOMBELA (MAIN SEAT)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
16 SEPTEMBER 2026
DATE SIGNATURE
In the matter between:
NGOBENIBONGANIDOMINGO
and
ROAD ACCIDENT FUND
LINK NO: 4873138
JUDG1\1ENT
1
Case No.: 3196/2020
PLAINTIFF
DEFENDANT
2
FOURIE AJ:
INTRODUCTION:
[1] When the matter came before this Court, the Court was confronted with
the perplexing notion that the Plaintiff and the Defendant were not ad idem
on whether or not the matter is proceeding on both merits and quantum,
alternatively whether merits have been settled for the matter only to
proceed on the quantification of the Plaintiff’s claim.
[2] Where this Court would have appreciated for judicial resources to be
expended sensibly, the Court was necessitated to hear and indeed make a
determination on which portions of the dispute between the Plaintiff and
the Defendant remain alive.
[3] This Court is tasked, accordingly, to determine whether the Plaintiff’s
claim specifically in respect of merits has been settled, and as such is to
be excluded from a further trial, alternatively whether, at the
recommencement of the trial, ultimately the Plaintiff’s claim remains to
be proven in respect of both merits and quantum.
RELEVANT BACKGROUND:
[4] It seems largely uncontested that the Plaintiff was involved, as a
passenger, in a motor vehicle collision that occurred on
15 December 2016.
[5] It is further largely uncontested that the Plaintiff lodged his claim with the
Defendant by the filing of his RAF1 on 14 October 2019. It is necessary
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to state that the Plaintiff’s RAF1 form and the claimant affidavit annexed
thereto have two crucial aspects that deserve to be highlighted, namely:
[6.1] The Plaintiff’s affidavit references the date of accident as 15
December 2018 and not 15 December 2016; and
[6.2] Both the Plaintiff's affidavit and the RAF1 form indicate that the
drivers of the vehicles that, according to the Plaintiff, caused the
accident were unidentified and unknown.
[6] The Court deals later with the incorrect date as provided in the Plaintiff’s
affidavit, but at this junction it is necessary to highlight that the manner in
which the Plaintiff proceeded with their claim attracted the application of
Section 17(1)(b) of th e Road Accident Fund Act, 56 of 1996 read with
Regulation 2 of the RAF Regulations.
[7] Principled solely on the aforesaid provisions and if the incorrect
information as provided by the Plaintiff is disregarded, and regard is had
to the true and correct dates, a proper evaluation of the facts might lead to
a finding that the Plaintiff’s claim was lodged outside the statutory
timeframe provided for the lodging of a Plaintiff’s claim.
[8] More on this issue shall follow later in this Judgment.
[9] After lodging the Plaintiff's claim with the Defendant and approximately
on 1 December 2020, the Plaintiff proceeded to serve a Summons
incorporating Particulars of Claim on the Defendant.
[10] On 17 January 2020, prior to the issuing of the Summons by the Plaintiff
and seemingly premised solely on the Plaintiff’s claim lodged and the
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information found thereon, the Plaintiff received a “without prejudice”
offer of settlement of the merits of the Plaintiff’s claim.
[11] The crucial elements of the offer of settlement are at least the following:
[11.1] The offer is limited to the negligence aspect relating to how the
collision occurred. The offer may not be interpreted or construed
in a manner that would have the RAF concede any other aspect
of the claim. To avoid doubt, the RAF reserves all its rights in
law with regard to all other procedural and substantive aspects of
the claim.
[11.2] Acceptance of the offer will be effective only when the RAF
receives this offer (the settlement offer) with the “acceptance of
offer” portion fully completed.
[11.3] If the offer was made after the claim became prescribed, it will
not be deemed a waiver of prescription, and any purported
acceptance will not be enforceable.
[11.4] The offer remains open for acceptance for a period of 20 (twenty)
days from the date of the letter, or until the date preceding the
date of prescription of the claim, whichever is the sooner. The
RAF may, at its sole discretion, consent to the acceptance of the
offer after expiry of the 20 (twenty) day period, but any consent
of acceptance after the claim has prescribed will not be deemed
to be a waiver of prescription, and the purported acceptance will
not be enforceable.
[12] The Plaintiff did not accept the Defendant’s offer of settlement within the
allowed 20 (twenty) day period as per the offer of settlement.
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[13] The Plaintiff attempted to accept the settlement by filing a document titled
“notice of acceptance of offer of settlement – merits” which was dated
27 July 2022, more than two years after the original offer was sent.
[14] It is common cause that the acceptance of the offer on 27 July 2022 was
not accompanied by the consent of the Respondent to accept the offer
outside the 20 (twenty) day period stated in the offer of settlement.
[15] A further nearly three years later, the parties filed a document titled
"meaningful pretrial questions and answers” dated 18 March 2025 in
which, as background, the parties recorded that the issue of merits has
been settled between the parties in the regio n of 100% in favour of the
Plaintiff.
[16] The pre-trial minute made no reference to any concessions made by the
respective parties or the terms of settlement. The only evidence before
this Court was that, when the pre-trial conference between the parties was
held, some five years after the initial settlement offer was made, the parties
acted under the mistaken belief that the matter had been compliantly and
validly settled.
[17] The evidence presented does not indicate that the pre -trial minute
constitutes a settlement of the merits; it appears to state what the parties
believed to be the factual position at the time. The two concepts are
distinctly different.
[18] As the trial date for the matter was fast approaching and less than a month
before the ultimate set down of the matter on 25 August 2026, the Plaintiff
proceeded to file a supplementary affidavit seemingly to address the
discrepancies in the initial 19F affidavit filed as well as to , at that stage,
and six years after the lodgement of the initial RAF1 form, to indicate the
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matter as one not dealing with unknown drivers but stating and identifying
the identities of the respective drivers.
[19] By amending the Plaintiff’s claim at that stage, a significant consequence
was attracted in that, if the Court ultimately accepts the version of the
Plaintiff as amended, the Plaintiff’s claim would attract a statutory
timeframe to lodge his claim of three years rather than two years as was
previously the case in respect of unidentified and unknown drivers.
[20] This Court is not tasked with evaluating whether the Plaintiff’s claim has
ultimately prescribed nor whether a valid claim, compliant with the
statutory provisions, has been lodged. No doubt the trial Court that
ultimately deals with this matter shall need to grapple with these issues as
they will in future pose a conundrum to be overcome by the respective
parties.
[21] This Court shall deal with whether the matter can be regarded as settled in
respect of merits. In evaluating the position, the Court must make a
practical assessment to reach a just conclusion.
[22] To do so, the Court evaluates three crucial questions to be answered,
namely:
[22.1] Did the Plaintiff accept the settlement offer made by the
Defendant?
[22.2] Could the Defendant have ratified the settlement at any later
stage by way of the pre-trial minute or any other actions; and
[22.3] Was the initial settlement offer competent?
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WAS THE SETTLEMENT OFFER MADE BY THE DEFENDANT
ACCEPTED BY THE PLAINTIFF:
[23] It is common cause that the initial offer made was not accepted within the
provided 20 (twenty) day period, and as such the offer was not open for
acceptance at any later stage unless expressly so authorised by the
Defendant.
[24] It is common cause that the Defendant did not expressly extend the
settlement offer to remain open for acceptance at a later stage.
[25] As such, and insofar as the Defendant relies on the acceptance of the offer
on 27 July 2022, such reliance cannot be sustained.
COULD THE DEFENDANT HAVE RATIFIED THE SETTLEMENT AT
ANY LATER STAGE BY WAY OF THE PRE -TRIAL MINUTE OR ANY
OTHER ACTIONS:
[26] Counsel appearing on behalf of the Plaintiff indicated during argument
that the Court is erroneously disregarding the pre-trial minute between the
respective parties. The Court indicated to the Plaintiff that it is expressly
so regarding the pre -trial minute, but that it needs to evaluate its content
and context. Given the timeframes as already set out and the manner in
which the claim was dealt with, the Court has no difficulty in accepting
that both the Plaintiff and the Defendant, in the compiling of the pre-trial
minute, were, rather, in error, stating an incorrect factual summary of
historic events rather than unequivocally and on instructions of their
clients engaging into the settlement of the Plaintiff’s claim. This Court
accepts that true concessions made by parties in pretrial engagement
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resolve issues finally between the respective parties. In the current matter,
however, no evidence was led to show that this is indeed what transpired
between the parties. If the Plaintiff seriously believed that there were
settlement negotiations that led to the concession in the pre -trial minute,
as the Plaintiff is now alleging, then it was for the Plaintiff to adduce some
sort of evidence to confirm this notion.
WAS THE INITIAL SETTLEMENT OFFER COMPETENT:
[27] At the commencement of the trial, the Plaintiff’s claim had been
significantly altered. At the current stage of litigation, the Court cannot
evaluate the parties' historic actions on the pleadings as they currently
stand. To determine whether the parties' historic actions ultimately
indicate that the matter has been settled, the Court must evaluate the
papers and facts that were present when those alleged actions occurred.
[28] The initial offer of settlement was made under circumstances where the
Plaintiff represented to the Defendant that the accident occurred two years
later than it actually had. The Plaintiff’s own actions accordingly
circumvented possible red flags in respect of prescription to be waived at
that junction.
[29] At all stages at which the Plaintiff alleges the matter was settled, the facts
that presented themselves to the respective parties and the Court indicated
that such settlement could not be made as the Plaintiff’s claim, described
in the manner the Plaintiff had at that stage, had become prescribed.
[30] It might be that the Court ultimately dealing with the matter finds that the
later submissions made by the Plaintiff lead the matter to be evaluated
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under a different lens, but the facts that presented themselves at all
material times stand opposite to what the Plaintiff seeks to achieve.
[31] The notion the Plaintiff wishes the Court to accept is that as Plaintiff
would be allowed to have the merits of their claim settled premised on a
certain proposition and facts only for the same Plaintiff to, after receiving
an offer of settlement, complete ly change the narrative and the position
under which a claim was to be settled and then still hold the Defendant to
such a settlement. This is an unacceptable notion.
[32] Whilst small mistakes may be cured ex post facto, the changes the Plaintiff
ultimately makes to his claim are material. It identifies possible parties
involved in the proceedings, which the Defendant could use to assess its
ultimate liability . To summarise, the changes materially affect the
statutory framework within which the Plaintiff’s claim is dealt with, and
no doubt the manner in which the Defendant ultimately deals with the
matter either at trial or alternatively by way of settlement.
[33] The facts present at the time indicated that the Plaintiff’s claim had
become prescribed and as such no valid offer could have been received
from the Defendant nor ratified by the Defendant at any stage. Even if the
notion could be accepted that the Defen dant could indeed make such a
valid offer, which I reiterate it cannot, then holding the Defendant to a
settlement agreement, if regard is had to the Plaintiff's actions, would not
be justice done between the parties.
WHAT WAS PERPORTEDLY SETTLED:
[34] The terminology used by the parties is significant.
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[35] The offer of settlement seems to deal specifically with negligence, and it
still gives the Defendant the right to challenge alternative aspects of the
merits, such as prescription. Even the notice of acceptance on merits,
although invalid, indicates the settlement deals only with how the accident
allegedly occurred and with negligence, rather than a total settlement of
the merits.
[36] The fact that the right to raise prescription, amongst others, remains intact
was dealt with by the Court in the matter of Nondabula v Road Accident
Fund1and this Court aligns itself with the views in this regard as expressed
by Alkema J in relation thereto.
[37] In Nondabula supra, the Court was, however, tasked with evaluating
whether the Plaintiff’s claim had prescribed, an issue I am not currently
dealing with; but for the purpose of evaluating the current question, the
principles are relevant to state herein.
EVALUATION:
[38] The Court desists from entering into a further evaluation in respect of
whether the Plaintiff’s claim has ultimately prescribed or not. To do so
would be to intervene in the evaluation that the Trial Court will ultimately
make.
[39] The ultimate evaluation on which portion of Section 17 or 23 of the Act
finds application, whether there has been statutory compliance or not, and
whether or not the Plaintiff’s claim has ultimately prescribed remains open
to the Trial Court to deal with.
1 Nondabula v Road Accident Fund (2845/13) [2016] ZAECMHC 45 (26 September 2016)
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[40] At the current juncture, the Court evaluates whether the merits have, in
totality, been settled. The Court concludes that it has not.
[41] The proposal in respect of the settlement of negligence, forming but part
of the ultimate finalisation of the Plaintiff’s claim on merits, was not
concluded within the confines of the settlement offer made by the
Defendant.
[42] Having not concluded the settlement within the confines of the offer of
settlement tabled by the Defendant, the Court evaluated whether
alternative facts exist indicating that the purported settlement of the matter
may nonetheless be regarded as valid and enforceable. Regard being had
to the actions of the Plaintiff, the premise on which the Plaintiff’s claim
was founded and the facts available to the respective parties at the time,
the Court cannot accept that the merits of the matter have become settled
in totality.
[43] To give recognition to any effects flowing from the erroneous actions of
the Plaintiff in presenting one case to the Defendant only to, after
receiving an offer of settlement, amend their claim to a completely
different claim and still rely on the initial offer of settlement can simply
not be accepted as justice being done between the respective parties. The
dictum of ex turpi non causa rings true in circumstances where the Court
cannot give recognition to the manner in which the Plaintiff wishes to
enforce any sort of concession, knowing full well that he ought not to be
entitled to do so. To give any recognition to the actions of the Plaintiff
cannot be justified.
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[44] The parties filed amended Heads of Argument specifically dealing with
the issues at hand. The Plaintiff specifically referred me to the matters of
Ontoro v Road Accident Fund 2 and MM v Road Accident Fund 3.
[45] In Ontoro, however, the Plaintiff indicated on the RAF1 form that the
accident was expressly not highlighted as a hit-and-run accident, contrary
to the current matter where the Plaintiff expressly made known that the
identities of the respective drivers were unknown , and contrary to the
current matter, where the Defendant could not have expected to object to
the Plaintiff’s claim under circumstances where the Plaintiff indicated an
incorrect date of accident on its affidavit to support its claim. If the
Plaintiff conveyed the correct day on which the accident occurred, the
Plaintiff could have relied on Ontoro as authority asking the Defendant to
object to the Plaintiff’s claim. When it is the Plaintiff who in essence
misled the Defendant on the true date of the accident, the Plaintiff cannot
rely on the Defendant who needed to object to the validity of the Plaintiff’s
claim.
[46] Insofar as it relates to MM, supra, the matter is distinguishable from the
current matter in that, in MM, the Defendant wished to withdraw from a
compromise reached between the parties. In MM, the parties reached a
valid compromise, and the Court evaluated whether the RAF ought to be
allowed to step away from it.
[47] In the current matter, however, no settlement came into existence, and as
such there was no necessity for the Defendant to withdraw from such
compromise. The Defendant tabled a compromise to the Plaintiff which
was not validly accepted. Absent a valid acceptance, there is no need to
2 Ontoro v Road Accident Fund (6810/2020) [2026] ZALMPPHC 65 (28 May 2026)
3 MM v Road Accident Fund (25/11/2019) [2019] ZAMPMBHC 11 (4 December 2019)
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evaluate the entitlement of the Defendant further to withdraw from such
compromise.
[48] Having found as aforesaid, it is not necessary to evaluate any other
principles applicable to the matter. The merits of the Plaintiff’s claim have
not been conceded to a degree that the Court can accept that those issues
are no longer alive between the Pl aintiff and the Defendant and are
accordingly to be regarded as res judicata . The issues between the
Plaintiff and the Defendant pertaining to merits remain very much alive
and are to be dealt with by a Trial Court.
COSTS:
[49] The finding of this Court at this juncture does not mean ultimate success
for either the Plaintiff or the Defendant, it merely highlights the juncture
in the litigious process where the litigants currently find themselves. As
such, the Court is satisfied that the costs in relation to the current
proceedings can stand over to be dealt with during the main action when
the Court ultimately hears same.
ORDER:
[50] For the aforesaid reasons, the following Order is made:
[50.1] The Defendant has not conceded the merits of the Plaintiff’s
claim.
[50.2] The trial shall proceed on both quantum and merits, both of
which the Plaintiff must prove.
[50.3] The parties shall set the matter down within 20 (twenty) days
of this Order on the judicial case management roll to case
manage the matter.
[50.4] Costs of the matter as set down from the trial week of
7 September 2026 shall stand over for adjudication in the main
action.
Counsel for the Plaintiff:
Instructed by:
Counsel for the Defendant:
Instructed by:
Date of hearing:
Date of judgment:
HFFOURIE
ACTING JUDGE OF THE IDGH COURT,
MPUMALANGA DIVISION
ADV M PIENAAR
MAHLALELA ATTORNEYS
ADV TSHITAMBA
OFFICE OF THE STATE ATTORNEY
10 September 2026
16 September 2026
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