Thirteen years after vehicle accident, and five default judgments against the fund later, claimant has still not received payment.
The Road Accident Fund (RAF) has been castigated in a high court judgment for “contemptuously ignoring all the court orders issued” by the court and for “abusing the court processes”.
Acting Judge W Domingo on Wednesday commented on the RAF’s contempt and abuse of the court processes in a judgment in which she dismissed with costs an application by the RAF to suspend the operation and execution of two quantum court orders dated 9 April 2021 and 1 June 2023, and the warrant of execution dated 29 November 2023, pending the institution by the fund of an application to rescind these court orders within 20 days of the order.
The RAF brought the application against Matshelto Mary Jane Mabela and the Sheriff Pretoria East.
Domingo said it has been 13 years since Mabela’s vehicle accident, with five default judgments against the RAF, and Mabela has yet to receive her payment.
“The injustice in this matter rests solely on the shoulders of the first respondent [Mabela] who has had to bear the brunt of the applicant [RAF] contemptuously ignoring all the court orders issued by this Honourable Court,” the acting judge said.
“The applicant [RAF] has failed to make an appearance at all the court hearings, including this matter.
“I can therefore only conclude that the applicant [RAF] is abusing the court’s processes.”
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The backstory
Domingo said Mabela was injured in a motor vehicle accident as far back as 16 April 2012 and lodged a direct claim with the RAF that became prescribed in the hands of the fund.
She said Mabela then proceeded to institute action under common law, and summons was served on the RAF as far back as 15 September 2017.
However, Domingo said the RAF did not file any notice of intention to defend and remained silent until Mabela’s writ of execution was served on the fund by the Sheriff Pretoria East on 28 November 2023.
“Only thereafter, did the applicant [RAF] launch this application.
“In the interim, by default, all the following five orders were granted against the applicant [RAF]:
- 22 August 2018: 100% merits per van der Westhuizen J.
- 9 April 2021: loss of income R350 000 per Neukircher J.
- 12 August 2022: compel decision per Kooverjie J.
- 1 June 2023: general damages R550 000 per Oosthuizen-Senekal AJ.
- 20 October 2023: compel future medical per Mokoena J.
“Despite all the services and default judgments, the applicant [RAF] remained inactive and failed to engage up until the writ of execution was served on the applicant [RAF] on the 28 November 2023,” Acting Judge Domingo said.
She added that none of the existing five underlying default judgments were questioned or legitimately argued against by the RAF.
And that, under the present circumstances, it will not be in the interest of justice to suspend an execution order where, on the facts of this case and the law, no real and substantial justice requires a stay of execution.
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Furthermore, it will be an injustice to Mabela to interdict the Sheriff Pretoria East from proceeding with the execution against the applicant’s movable assets.
“The enforcement of a judgment is tantamount to access to justice,” she said.
Domingo said the RAF contends that Mabela failed to comply with Section 24(1) of the Road Accident Act prior to issuing summons.
However, the RAF loses sight of the fact that the cause of action embodied in such summons is not in terms of the RAF Act at all, but for damages at common law based on the fund’s negligence in allowing Mabela’s claim under the Road Accident Act to become prescribed, she said.
“Section 24(1) of the Act does not apply to such common law claims. Furthermore, the [RAF] proffers no explanation for its default and therefore the inference that can be drawn is that the [RAF] chose instead to rely on judicial oversight.”
Comment on this judgment was requested from the RAF, but a response has not yet been received.
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‘Kicking the can down the road’
Several attorneys and an advocate Moneyweb spoke to expressed concern that if the RAF takes the same stance with the new compulsory mediation for civil matters as it does with pre-trial conferences and the fund’s frequent non-adherence to the uniform rules of court, the compulsory mediation process will not address and relieve the huge court roll backlogs and merely amount to “kicking the can down the road”.
This is a reference to Gauteng Judge President Dunstan Mlambo’s directive issued last month that from 14 April 2025, all civil trial cases set down after 1 January 2027 must first be subjected to mediation in a bid to alleviate the civil trial load in the Gauteng Division of the High Court.
In terms of the directive, civil trial cases will only be entertained by the court if no agreement can be reached via obligatory mediation.
Civil trial dates in Gauteng are currently issued for 2031.
Advocate Justin Erasmus, chair of the Personal Injury Plaintiff Lawyers Association (Pipla), which represents about 400 personal injury lawyers, said the mediation directive effectively pre-empted work already being undertaken by the SA Law Commission to test the efficacy of mandatory mediation.
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Erasmus said the commission’s discussion paper was in fact out for comment until 30 April 2025 and will then be amended further, depending on the commentary received.
He said the Law Commission is still grappling with a number of issues, including concerns that this approach could not only be more expensive but will severely disadvantage plaintiffs who are already on the court roll.
Erasmus stressed that the core issue remains the judiciary’s severe under-resourcing and that the real problem is the lack of judges, courtrooms, and registrars.
He added that in countries like Australia, where similar compulsory mediation has been implemented, they have found that over time it can actually act as a barrier to justice.
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Sars dispute update
The RAF has meanwhile welcomed the High Court in Pretoria’s dismissal with costs of an application by the South African Revenue Services (Sars) for leave to appeal a 26 March 2025 judgment interdicting and prohibiting the tax collection authority from deducting R5.1 billion – or any part of this amount – from the RAF levies it collects to pay Eskom in terms of a settlement agreement between Sars and the power utility.
The fund said Judge Ronel Tolmay said she would provide reasons for her decision at a later stage.
This article was republished from Moneyweb. Read the original here.
