Msibi v Road Accident Fund (2022-031070) [2025] ZAGPJHC 1127 (29 October 2025)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, JOHANNESBURG

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES / NO

(3) REVIEWED: YES/NO

29 October 2025

DATE SIGNATURE

In the matter between:

________________________________________________________________

JUDGMENT

Raubenheimer AJ:

Order

[1] In this matter I make the following order:

1. The application for the setting aside of the notice of intention to defend is granted;

2. The defendant is liable for the costs of the application on the scale as between attorney and client.

[2] The reasons for the order follow below.

Introduction

[3] The matter came before me in default judgment court on 9 September 2025. Merits and quantum were in dispute. The quantum heads for determination were general damages, past medical and hospital expenses, past loss of earnings and future loss of earnings and an undertaking for future medical expenses. The plaintiff had filed and served all the expert reports timeously as well as the application for default judgment and an application to present evidence by means of Rule 38(2). The defendant filed a notice of intention to defend on the morning of 9 September 2025 and the plaintiff brought an application for the notice to be set aside as an abuse of process.

[4] As the defendant had not filed any opposing papers, I enquired from the legal representative whether the defendant wishes to file opposing papers. The legal representative of the defendant indicated that the defendant want to file an opposing affidavit. As the plaintiff had filed heads of argument I invited the legal representative of the defendant to likewise favour the court with heads of argument.

[5] The matter was stood down until the 12 September 2025 for argument. When the argument commenced I noticed that the defendant had not filed any Heads of Argument and neither had the plaintiff filed any replying affidavit. I enquired from both parties whether they are in a position to proceed with the argument and both parties confirmed that the filing of any further papers would not make any difference and that they are ready to proceed.

The litigation chronology

[6] The plaintiff was involved in a motor vehicle collision on 25 October 2019 during which he sustained injuries. The claim was lodged with the defendant on 25 April 2022 and the summons was issued on 19 October 2022. The defendant did not serve and file a notice of intention to defend or a plea and the plaintiff enrolled the matter on the default judgment roll on 25 June 2025 for 9 September 20025.

[7] The notice of setdown was served on the defendant on 1 July 2025. The defendant served a notice of intention to defend via e-mail on 9 September 2025 despite there being no agreement to effect service by e-mail.

[8] The defendant did not file a substantive application for postponement neither did the defendant provide any explanation for the late filing of the notice of intention to defend.

The contentions by the plaintiff

[9] The Defendant served its notice of intention to defend an inordinate amount of time after the prescribed period in terms of Rule 19(1), namely two years and eleven months. The notice was filed on the day of the trial and amounts to an overt attempt to derail and frustrate the proceedings.

[10] The merits of the matter is such that the defendant does not have a defence as the insured driver admitted in the police accident report dated 25 October 2025 that he performed a right turn into the path of travel of the injured driver and that the injured driver had right of way.

[11] The plaintiff’s Section 19(f) affidavit is dated 2 December 2019 in which he confirmed that the insured driver executed a right hand turn into his path of travel.

[12] The defendant had been in possession not only of the statutorily required information but also of an album consisting of 17 photographs of the scene of the collision since 2 October 2024. Apart from being in possession of the photographs and other statutory documents the defendant made an offer for the settlement of the merits on 7 July 2025 which offer was rejected by the plaintiff on the basis that the defendant proposed an apportionment, which was unwarranted as the plaintiff only had to prove 1% negligence by the insured driver.

Submissions by the Defendant

[13] The defendant contends that the default judgement hearing be removed, the matter be postponed sine die, the application for abuse of court process be dismissed and the applicant be ordered to pay the costs on the scale as between attorney and client.

[14] The defendant raises a point in limine and three points of law in opposing the application for the notice of intention to defend to be set aside as an abuse of process.

[15] The point in limine entails that proceeding with the default judgment would amount to an infringement of the audi alteram partem rule which is an enshrined right in terms of the Bill of Rights in the Constitution of the Republic of South Africa, Act 108 of 1996.

[16] The first point of law deals with the law on Notice of Intention to Defend. In this argument the defendant refers to the provisions of rule 19(5) and submits that as the rule provides that a notice of intention to defend may be delivered after the expiration of the in the rule prescribed period a defendant is at liberty to deliver such notice at any time before judgment has been granted.

[17] In the second point of law dealing with judgment on confession and by default the defendant submits that rule 31(2)(a) prescribes that default judgment may only be granted when a notice of intention to defend has not been delivered. As the defendant has delivered such notice, default judgment may not be granted.

[18] In the condonation for the late filing of the notice of intention to defend the defendant contends that it is public knowledge that the defendant is swamped by claims which causes delays in dealing with matters specifically entering an appearance of defend matters. The claim was initially objected to but the objection was eventually uplifted evidencing that the defendant is actively working on the matter.

Discussion

[19] Before embarking on a discussion of the points raised by the parties I regard it necessary to address some matters of procedure and conduct.

[20] The legal representative of the defendant was specifically afforded an opportunity to favour the court with Heads of Argument. She pertinently indicated that she would not be filing Heads but then proceeded in referring to and discussing decided cases and raising legal arguments in the affidavit filed in opposing the application by the applicant.

[21] What is furthermore concerning is that she was the deponent of the affidavit and that she states that she is “a state Attorney, for the Road Accident Fund and employed as such” and that she is duly authorised to depose to the affidavit on the Respondent’s behalf.”

[22] Not only does the affidavit contain legal argument but also details about the incident and reference to evidentiary material only contained in the files and documents of the defendant. The deponent does not mention that she had access to the files and documents in the possession of the defendant neither does she attach a confirmatory affidavit by the claims handler in the matter.

[23] It is trite that affidavits should only contain factual averments¹ sufficient to support the cause of action on which the relief being sought is based.² This requirement in essence entails that the essential evidence that would be led at trial should be included in the pleadings.³ Argumentative material should not be included in affidavits⁴

[24] Legal arguments are to be reserved for heads of argument and not to be contained in affidavits. ⁵

[25] I now turn to discuss the points raised by the defendant. First to be dealt with is the audi alteram partem point in limine.

[26] The defendant effectively argues that as the audi rule is a seminal rule embedded in the Constitution it is simply there for the taking and should it not be limited or inhibited in any manner or form by any other rule.

[27] It has been authoritatively decided on numerous occasions that the rules of court does not generally amount to an infringement of the audi rule.⁶ In the process of assessment the court will have to balance the right of the plaintiff to finality through default judgment.

[28] The reference to the audi rule is consequently misplaced and misconstrued.

[29] The submission that the notice of intention to defend the action may be delivered at any time before judgment loses sight of the provisions of Rule 27 which deals with the extension of time, removal of bar and condonation. This rule deals with the extension of “any time prescribed by these Rules” This is clearly a general provision that is applicable to any time period contained in the Rules.

[30] The general principle in respect of a procedural step taken out of time is of no consequence as the right to take such procedural step had expired after the time period within which the step had to be taken had lapsed. It effectively amounts to a procedural nullity and is by its very nature an irregular step.

[31] Only after the notice of intention to defend was delivered did the defendant bring a condonation application. The condonation application presents as reasons for the out of time delivery of the notice the contention that the defendant is swamped with many claims which sometimes cause a delay in time frames for defending matters, the difficulties encountered by the defendant in assessing claims, the fact that the claim was initially objected to but that the objection was eventually uplifted.

[32] The defendant furthermore contends that it has a bona fide defence to the claim and even if the explanation for the late delivery is not satisfactory it is not in the interests of justice not to grant the condonation. The bona fide defence is not disclosed by the defendant.

[33] The bona fide defence that the defendant relies on is an integral part of the requirements to be met in an application for condonation namely degree of non-compliance, an explanation for the non-compliance, the importance of the case and the prospects of success.⁷

[34] The defendant has not presented a substantive explanation for the non-compliance. The only explanation deals with its internal administrative processes and burdens. Despite this apparent overburdened administrative processes the defendant was still able to make a settlement offer which renders this explanation to ring hollow.

[35] The importance of the case was argued from the perspective of the size of the claim. This even the defendant did not get right in argument. The claim in the application for default judgment was for an substantially lower than the amount claimed in the initial summons.

[36] The broad and general principles in dealing with procedural technical points, are as follows:

(a) The court does not generally encourage a formalistic approach in the application of the rules as the rules should not be regarded as an end in themselves⁸.

(b) Technical objection based on procedural defects should not be permitted unless the other party would suffer prejudice as a result.⁹

(c) The superior court may in the exercise of their inherent power adjust the rules depending on the circumstances of a give case.¹⁰

(d) The rules of court are designed to achieve justice and thus courts will in the exercise of their inherent power, relax the application of the rules where strict application thereof may result in substantial injustice.¹¹

[37] The mentioned principles have to be balanced against the foundational purpose of the rules as well as the time periods therein prescribed of which the purpose is to assert the control of the court over its processes and speedy resolution of disputes.¹²

[38] In GrootBoom v National Prosecuting Authority the Constitutional Court¹³ held that court rules serve a necessary purpose namely that the business of the courts run effectively and efficiently.

[39] In its judgment the Court expressed its concern with a trend of non-compliance with the rules and stated unequivocally that such practice should be stopped. The Court referred specifically to the non-compliance with time periods without seeking condonation beforehand.

[40] The principle that courts are entitled to protect itself and others against an abuse of its process has been recognised for a very long period of time.¹⁴

[41] This inherent power to protect and regulate their own process is conferred by the Section 173 of the Constitution on the Constitutional Court, the Supreme Court of Appeal and the High Court.

[42] In Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd¹⁵ this inherent power was described as a mechanism to prevent abuse of process and to prevent the court's procedure from being used for purposes foreign to its design.

[43] In Beinash v Wixley¹⁶ the court held that an abuse of process occurs where the procedures are used for a purpose other than that for which they were intended such as when proceedings are initiated with an improper and ulterior motive or when the process is used to achieve something that is not permissible or for which the process was not designed. The determination of an abuse is determined by the circumstances of each case. The fundamental question to be answered deals with the lack of bona fides in the use of the court's procedures.

[44] Litigation consumes a public resource and the abuse thereof is harmful not only to the litigants but to the entire justice system.¹⁷ The court emphasised that its processes should be used for the resolution of genuine disputes and not for tactical purposes.

Conclusion

[45] The delivery of the notice of intention to defend amounts to a clear abuse of process. It is significant that the notice was delivered on the day of the default hearing, that the defendant had presented argument that the fact that the objection to the lodgement had been lifted and that a settlement offer had been made are all indications that the defendant were actively working on the matter, yet did not deem it necessary to deliver the notice within the prescribed time period. It is further significant that at the time of the delivery of the notice no condonation application was brought. The defendant did not disclose its defence neither did it deal with the prospects of success of the defence. In the light of the uncontroverted evidence by the insured driver which is corroborated by the plaintiff, the alleged defence seems non-existent.

[46] As a consequence the application for the notice of intention to defend to be set aside is grated and the defendant is to pay the costs of the application on the scale as between attorney and client.

_________________________

E Raubenheimer

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

JOHANNESBURG

Electronically submitted

Delivered: This judgment was prepared and authored by the Acting Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 29 October 2025