..
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHE~1'_ 1S NOT APPLICABLE
(l )REPORTABLE:@)
(2}OF INTEREST TO OTHERS JUDGES:~
(3)REVISED: YES
In the matter between:
NH SIGWILI
AND TWELVE OTHERS
and
MINISTER OF FINANCE
THE NATIONAL TREASURY
ROAD ACCIDENT FUND
MINISTER OF TRANSPORT
THE SOUTH AFRICAN REVENUE SERVICE
And
In the matter of:
CASE NO.: 2025-095101
First Applicant
Second to Thirteenth Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
CASE NO.: 2025-102711
ULRICH LE ROUX BESTER
and
THE MINISTER OF FINANCE
THE NATIONAL TREASURY
ROAD ACCIDENT FUND
MINISTER OF TRANSPORT
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THE SOUTH AFRICAN REVENUE SERVICE
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is reflected
herein and is handed down electronically by circulation to the parties' legal
representatives by email and by uploading it to the electronic file of this matter on
CaseUnes. The date and time for hand-down is deemed to be 10:00 on 8
September 2026.
JUDGMENT
SUMMARY:
Execution against RAF - is it competent to involve the Minister of Finance and
National Treasury in execution steps?
INTRODUCTION:
[1] The applications before me are the unfortunate result of Third Respondent's
("RAF") conduct in making it virtually impossible for its creditors to execute
their judgments. In casu those creditors are all victims of road accidents who
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had to resort to seeking extraordinary relief to assist execution of judgments
exceeding R52 million in value.
[2] In both the Sigwili and Roux matters, Applicant cited the Minister of Finance
and National Treasury as First and Second Respondents (I will refer to them
merely as "Respondents"). In summary, Applicant sought the following (main)
relief against Respondents:
2.1 That Respondents be ordered to maintain the sum of R52,681 831.28
in the National Revenue Fund, pending an attachment thereof.
2.2 That those Respondents be ordered to inform Applicants' attorney of
the date and time of allocation of the aforesaid amount to the RAF.
[3] Applicants sought orders in the alternative that Respondents be ordered to
disclose the details of the bank account of the RAF into which the funds from
the National Revenue Fund would flow.
[4] Further alternative relief was sought against the RAF to maintain the sum
owed in its bank accounts and to disclose its banking details to Applicants.
[5] The RAF did not bother to oppose the application or to file a Notice to Abide.
[6] I was however informed from the bench by Applicants' counsel that by the
Friday preceding the hearing, the RAF had basically settled all the claims and
that only some interest was outstanding in the Bester-matter. The RAF had
also tendered the costs of Applicants, but not those of First and Second
Respondents. In the circumstances, the relief sought became moot. The
only remaining issue was therefore whether Applicants are liable to pay
Respondents' costs.
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APPLICABLE TEST:
[7] 'When the merits of a matter have been disposed of ... and only the costs of
the whole case remain to be decided, the issue of costs must be decided on
broad general lines and not on lines that would necessitate a full hearing on
the merits.,,.,
APPLICANTS' ARGUMENTS ON COSTS:
[8] In a nutshell Applicants raised the following arguments:
8.1 Section 6(1)(g) of the Public Finance Management Act compels
National Treasury to promote and enforce transparency regarding the
revenue of public institutions (like the RAF) and to prevent breaches
of a public duty.
8.2 Even if Applicants would ultimately not succeed on the relief sought
against Respondents, the case raises constitutional issues not of a
frivolous nature and the Biowatch-principle applies,2 i.e. that as a
general rule in constitutional litigation, an unsuccessful litigant in
proceedings against the State ought not to be ordered to pay costs.
RESPONDENTS' ARGUMENTS ON COSTS:
[9] Respondents essentially raised three arguments namely:
2
9.1 In the absence of very sound reasons, a party withdrawing its
application - formally or tacitly - is equal to an unsuccessful litigant
and thus liable for costs.
Van Loggerenberg: Erasmus Superior Court Practice, Volwne 2 RS30, 2026, D5-55 (my emphasis).
Biowatch Trust v Registrar, Genetic Resources and Others, 2009 (6) SA 232 (CC).
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9.2 The applications were bad in law as far as First and Second
Respondents were concerned.
9.3 The payments made by the RAF - subsequent to the applications
having been launched - had nothing to do with any pressure having
been exerted on Treasury or the Minister of Finance.
DISCUSSION:
[1 OJ Because the "merits" of the case have become largely academic, little
purpose will be served in analysing the complex legal arguments raised on
Applicants' theoretical chances of succeeding against Respondents. Any
such "judgment" will therefore be obiter.
[11] Thus, without formally deciding the merits of the initial relief, I will say that
prims facie the relief sought by Applicants against First and Second
Respondents may be problematic in view of the authorities quoted -
especially the decision of Minister of Finance v Golden Arrow Bus Services
(PM Ltd/201012 All SA 237 (SCA).
[12) That however is not the end of the argument because Applicants also rely on
the Biowatch-principle. Respondents' response to this argument was in
essence: the application does not concern constitutional litigation; it is simply
a means of private debt enforcement; no "right" exists between Applicants
and Respondents; and Applicants had no case in law.
(13] In my view this is an appropriate case where I should not order the
"unsuccessful Applicants" (vis a vis First and Second Respondents) to pay
Respondents' costs because:
13.1 Respondents' papers contradict their submission that constitutional
rights were not at stake. In their application for condonation - for late
filing of their Answering Affidavit - Respondents' own deponent (Ms
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Thandeka Ncula, employed by National Treasury as a Director:
Corporate Law within the Chief Directorate: Legal Services) stated as
follows in paragraph 15 of the Founding Affidavit:
'This matter raised complex constitutional and statutory issues
concerning the PFMA, the Road Accident Fund Act ... , the scope
thereof, and the relationship between the National Treasury and the
RAF. As a result, the process of gathering instructions internally
within the National Treasury and preparing a comprehensive
answering affidavit necessarily required more time than is usual."
13.2 The amounts involved are high and Applicants had been frustrated by
the RAF in executing legitimate judgments.
13.3 In these circumstances, ordinary citizens are entitled to look at the
State (in wider sense) in exploring new methods of obtaining justice.
The applications simply cannot be labelled as frivolous or baseless
litigation. The fact that the RAF ended up paying their dues is not an
irrelevant consideration in these circumstances.
ORDER:
[14] In the premises, I make the following orders:
14.1 In the matter of Sigwili & Others v The Minister of Finance & Others
{case no: 2025-095101):
{1) Third Respondent is ordered to pay Applicants' costs of the
application, including the costs consequent upon the
employment of two counsel on Scale C.
(2) First and Second Respondents are to pay their own costs.
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14.2 In the matter of Ulrich Le Roux Bester v The Minister of Finance &
Others (case no: 2025-102711):
APPEARANCES:
APPLICANT :
INSTRUCTED BY:
(1) Third Respondent is to pay Applicant's costs of the
application, including costs consequent upon the employment
of two counsel on Scale C.
(2) First and Second Respondents are to pay their own costs.
FJ ERASMUS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv J G Cilliers SC
Adv M van Rooyen SC
Podbielski Mhlambi Inc
Electronlcal/y delivered and signed.
FIRST AND SECOND
RESPONDENTS: Adv P Ngcongo
Adv S B Nxumalo
INSTRUCTED BY: The State Attorney, Pretoria