Passenger Rail Agency of South Africa v Ramokanopi (25327/2013) [2025] ZAGPPHC 831 (13 August 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 831 | Noteup | LawCite sino index ## Passenger Rail Agency of South Africa v Ramokanopi (25327/2013) [2025] ZAGPPHC 831 (13 August 2025) Passenger Rail Agency of South Africa v Ramokanopi (25327/2013) [2025] ZAGPPHC 831 (13 August 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_831.html sino date 13 August 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 25327/2013 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED Date: 13 August 2025 Signature: K. La M Manamela In the matter between: PASSENGER RAIL AGENCY OF SOUTH AFRICA Applicant and RAMOKANOPI MOAGI MESHACK Respondent In re : RAMOKANOPI MOAGI MESHACK Plaintiff and PASSENGER RAIL AGENCY OF SOUTH AFRICA Defendant DATE OF JUDGMENT: This judgment is issued by the Judge whose name is reflected herein and is submitted electronically to the parties/their legal representatives by email. The judgment is further uploaded to the electronic file of this matter on CaseLines by the Judge’s secretary. The date of the judgment is deemed to be 13 August 2025. JUDGMENT Khashane Manamela, AJ Introduction [1]        Passenger Rail Agency of South Africa (‘PRASA’), the applicant, sought the postponement of the civil trial in the action proceedings launched years ago by the respondent, Mr Moagi Meshack Ramokanopi (‘the respondent’). The application was opposed by the respondent. The trial, inevitably, could not continue for reasons that appear below. [2]        The matter had been enrolled for civil trial on 5 May 2025. This was after a notice of set down for the trial was served on Diale Mogashoa Attorneys, the attorneys of record for PRASA at the time, on 8 July 2024. [1] Notably, this was almost ten months prior to the date of trial. The application for postponement of the trial was initiated by PRASA in the afternoon of 2 May 2025. This was on the eve of the trial. [3]        The civil action by the respondent , born on 22 December 1968, relates to the injuries he sustained in a train accident on 17 April 2010 at or near Park Station in Johannesburg. According to the respondent, he was injured after he was pushed out of a moving train by fellow passengers jostling for space inside the train. The respondent fell through the open door. He claimed that he suffered damages due to the injuries. He blames the negligent conduct of PRASA’s train conductor to have exclusively caused the accident in which he was injured and, consequently, sued PRASA for compensation in the amount of nearly R5 million. PRASA is defending the matter or action. [4]        PRASA instructed Diale Mogashoa Attorneys (‘DM Attorneys’) to act as its legal representatives in the defence of the respondent’s claim. They played this role from April 2013 to 22 April 2025, when they withdrew as attorneys of record. Notably, this was shortly before the trial on 5 May 2025. As would become clearer below their extrication from the matter was far from cordial. This is borne by the application for leave to intervene in these proceedings or PRASA’s postponement application they brought on the date of the trial on 5 May 2025. DM Attorneys were disturbed by the allegations made by PRASA – to prop its postponement application – that they admitted that PRASA is liable to compensate the respondent (for whatever damages he may prove) without the authority of PRASA. The other ground for postponement of the trial advanced by PRASA is that the hospital or clinical notes relied upon by the respondent appear fraudulent, more so, due to their brevity. [5]        On Monday, 5 May 2025, the Deputy Judge President (‘the DJP’), seized with roll call in terms of the convention of this Division, allocated the matter to me for purposes of the disposal of the application for postponement. Dr T Ramatsekisa appeared for PRASA and Mr A Masombuka for the respondent. Dr Ramatsekisa appeared on instructions from Maluleke Attorneys of Sandton, Johannesburg (‘PRASA New Attorneys’). They were substituted for DM Attorneys. Mr M Chauke, appeared for DM Attorneys, seeking leave for his client to intervene in the proceedings or the application. [6]        The primary ground for the intervention was to explain or correct statements made about DM Attorneys in the postponement application which they found to be misleading the Court and defamatory (of their character). The respondent informed the Court that he would also be relying on material in the intervention application to oppose the postponement, rather than simply settling for a confirmatory affidavit by DM Attorneys. PRASA, in turn, informed the Court that it seeks to answer to the intervention. [7]        It became clear immediately upon hearing preliminary submissions by counsel on behalf of the parties that the postponement application cannot be decided immediately, until the exchange of papers in the intervention is completed. The matter, accordingly, was stood down to Wednesday, 7 May 2025 for the exchange of further affidavits in the intervention application. Upon conclusion of argument or submissions by counsel around lunch-time on 7 May 2025, the postponement of the trial had become inevitable. The matter had been set down for trial for two to three days and, thus, 7 May 2025 was the third and last day of allocation. What remained of the application for postponement was the determination of liability for costs and associated issues. This, obviously, can only be properly done after a review of the facts advanced for and against postponement. The intervention application ended up requiring no specific determination by the Court. I will say more on it below. Consequently, I reserved this judgment at the conclusion of the proceedings. Brief background [8]        I briefly narrate the issues in the background under this part. But most background material would appear under the sections dealing with the parties’ respective cases and submissions on their behalf. There is similar material in the application for leave to file an explanatory affidavit or intervene by DM Attorneys (‘the intervention application’). [9]        After summons was issued on 29 April 2013 and served on PRASA, the latter notified the respondent of its intention to defend the action on 15 November 2013 through DM Attorneys. PRASA delivered its plea to the claim on 4 December 2013. After a myriad of activities in the litigation towards trial, a notice of set down of the matter for trial was served by electronic mail on DM Attorneys on 14 March 2023. [2] This, evidently, was more than seven months before the date of the previous trial. [10]      On 19 October 2023, a pretrial conference was held between the legal representatives for the parties where the separation of issues relating to the merits or liability from those relating to quantum was agreed upon. [11]      On 2 November 2023, the matter came before the DJP for trial and an order appear to have been made by agreement between the parties in terms of which, among others, PRASA accepted liability to compensate the respondent for 90% of the damages he suffered (‘the Court Order’). [3] It is the Court Order that PRASA is now alleging that it was fraudulently obtained and was not authorised. To me the Court Order appears to be authentic. It bears the stamp of the registrar of this Court and what appears to be the signature of the DJP. [12]     It appears that - in due course - another pre-trial conference was held between the respective legal representatives of the parties. The following was recorded with regard to settlement of the matter: Settlement 2.1       It is recorded that the merits of the matter were granted [sic] in favour of the Plaintiff in terms of a Court Order on 2 November 2023. ANSWER: Kindly provide defendant with such proof. [4] [13]      PRASA raised concerns with the abovementioned answer given by DM Attorneys regarding the settlement of the merits in terms of the Court Order. I will revert to this below. [14]      On 8 July 2024, as stated above, the matter was set down for civil trial on 5 May 2025, ostensibly to dispose of issues relating to quantum. The notice of set down was properly served on PRASA’s legal representatives at the time, DM Attorneys. This allowed the parties a period of almost ten months to prepare anything necessarily outstanding for trial. [15]      On 22 April 2025, DM Attorneys withdrew as attorneys of record for PRASA. It would appear below that the withdrawal was at the instance of PRASA rather than DM Attorneys abandoning ship, so to speak. I say this because the trial was a few days away. PRASA New Attorneys came on board the same day. [16]      On 2 May 2025, being the eve of the civil trial, the application for postponement of the trial ensued. PRASA’s (i.e. applicant’s ) case (and submissions) [17]      Dr Ramatsekisa, as counsel for PRASA, managed to file heads of argument. I am grateful for his efforts. What follows below would be derived from his written and oral submissions, as well as the affidavits (i.e. founding and replying) by his client, PRASA. I will also have regard to the material in the intervention application. PRASA, also, filed answering papers in the latter. [18]      As stated above, PRASA’s application for postponement was premised on two grounds, namely, (a) ‘reasonable suspicion’ that the Court Order was obtained fraudulently, and (2) a suspicion that the respondent’s claim is fraudulent due to the nature and extent of the available hospital or clinical records. [19]      Ms Lufuno Tshikosi, a legal advisor of PRASA, deposed to both the founding and replying affidavits in the application for postponement, as well as the answering affidavit in the intervention application by DM Attorneys. Ms Tshikosi is an admitted attorney. She commenced her employment with PRASA as a legal advisor around August 2024. The latter is derived from the intervention application. [20]      According to Ms Tshikosi, PRASA became aware of the Court Order on 23 October 2024. This was when DM Attorneys sent an email to PRASA enclosing a taxed bill of costs requiring that same be paid by PRASA. But, Ms Tshikosi says that PRASA has no records of instructing DM Attorneys to settle the matter. This – if true – would mean that DM Attorneys agreed to the terms of the Court Order without their client’s instructions. They bound PRASA to 90% liability of the respondent’s proven or agreed damages quantified in a total amount of almost R5 million, without a mandate. But, I hasten to point out that it does not appear that Ms Tshikosi took up the issue with DM Attorneys or the respondent’s attorneys until in the founding affidavit for postponement. I will deal with this further below. [21]      In expatiation of the issue of the settlement of the liability, the following is also asserted by PRASA. There is no proof of set down of the trial for 2 November 2023 on DM Attorneys. Also, the Court Order has not been uploaded on the CaseLines platform. Further, the Court Order does not state or reflect who appeared in Court on behalf of PRASA to confirm the settlement of the merits contrary to the convention in this Division. Only the details of the respondent’s attorneys or legal representatives are recorded. [22]      Reference is also made to the answer given by DM Attorneys regarding settlement of the merits in the pre-trial minutes, quoted above. [5] It is claimed that the answer (i.e. requiring proof of settlement) confirmed that even DM Attorneys were not aware of the existence of the Court Order. DM Attorneys ought to have known of the settlement of the merits since they were then on record as PRASA’s attorneys in the action, it is pointed out. PRASA as a publicly funded entity deems it necessary to investigate how the settlement occurred, it is asserted. But DM Attorneys explained the answer in the intervention. And they added that PRASA could have verified this with them before raising the fraud claims in court papers. [23]      The further submissions by Dr Ramatsekisa - on behalf of PRASA - on this ground included the following. The issues relating to quantum of the respondent’s claim cannot be determined based on the Court Order, due to PRASA’s suspicions of fraud. The Court is urged not to associate itself with a questionable order. When an order is granted by a court, this ought to be done in a manner that is above board, counsel further submitted. [24]      The second ground predicating the application for postponement is the issue of the alleged submission of fraudulent hospital or clinical records by the respondent, as the plaintiff in the action. It is stated that PRASA also wanted to investigate this issue. The fraud is said to have emerged when the respondent was supposed to be assessed by the neurosurgeon appointed by PRASA. But, PRASA does not explain the basis for these allegations. All that is mentioned is that there was a concern of unavailability of adequate hospital records raised by PRASA’s neurosurgeon and that an attempt to request copies of the hospital records from the respondent was met with failure on the part of the respondent. [25]      Counsel for PRASA, further, made the following submissions regarding the second pivot for postponement. He reiterated that the alarm regarding the clinical records was raised by the neurosurgeon retained by PRASA in the matter. The latter expert was unable to produce an expert report based on the same clinical notes, which comprise two pages. The neurosurgeon deposed to a confirmatory affidavit in the intervention application. [26]      After becoming aware of these concerns (i.e. the two grounds for postponement), PRASA requested postponement of the matter by directing a letter to the respondent. The attorneys for the respondent reacted to the letter disputing, as unfounded, the allegations and indicating that the respondent will oppose any attempts to postpone the matter. [27]      It is further PRASA’s case that, the respondent was made aware of PRASA’s concerns almost a year ago and there has not been any explanation, with the respondent sweeping the allegations or concerns under the proverbial carpet. Therefore, any prejudice which may be suffered by the respondent would have been self-created and will not outweigh the greater need to protect the public purse when irregularities have been uncovered by PRASA. But the delay in attending to the so-called investigation is not explained. [28]      PRASA’s papers - in support of its application for postponement of the trial – also made reference to the fact that a pre-trial conference has not been held for over a year in the matter, and to some unresolved issues necessitating the application for postponement. But, PRASA did not bother disclosing the nature and extent of those issues. Further, that the matter was not certified as trial ready in respect of the issues relating to quantum and, therefore, its set down does not comport with the practice directives of this Division. The latter issue is also said to count against any assertions as to prejudice on the part of the respondent. Finally, the postponement was also sought to allow the new attorneys of record for PRASA to acquaint themselves with the matter and prepare accordingly. [29]      Overall, it is submitted that PRASA brought the application for postponement in order to be afforded reasonable opportunity to conduct an investigation and verification of how the Court Order was obtained and whether the clinical notes are fraudulent. In what appears to be a tentative concession of the weakness of his client’s case for postponement based on the Court Order, counsel submitted that even if the issue of authenticity of the clinical notes could be or should have been dealt with in terms of the Rules of the Court, the Court Order remained an obstacle against the determination of the matter. Respondent’s case (including submissions) [30]      As indicated above the application was opposed by the respondent, as the plaintiff in the action. What appears below is material from the opposing papers filed on behalf of the respondent and oral submissions made by Mr A Masombuka, as counsel for the respondent. There will, unavoidably, be derivatives from the intervention application. [31]      I start with the Court Order. It is pointed out on behalf of the respondent that there were settlement discussions between DM Attorneys, as the then legal representatives for PRASA, and those for the respondent. The discussions commenced in September 2023, but did not yield any resolution of the matter until during the morning of the day of the trial on 2 November 2023. Settlement was reached on the basis that PRASA would be liable for 90% of any proven or agreed damages suffered by the respondent. The settlement was made an order of court by DJP Ledwaba (i.e. the Court Order). [32]      The respondent accused PRASA of deliberately misconstruing the statements by DM Attorneys, its previous attorneys, as recorded in the pre-trial minutes. The respondent denies that DM attorneys disputed the settlement of the merits or liability. They only sought proof by way of a court order. DM Attorneys, subsequently, allowed the taxation of the bill of costs without demur. There is no doubt that they wouldn’t have allowed this, if the Court Order was in dispute, it is argued. Therefore, the application was brought in bad faith, it is also argued. [33]      Further, the respondent’s attorneys contacted telephonically their new counterpart for PRASA on 24 April 2025, requesting that a further pre-trial conference be held in order to comply with the practice directive of this Court. But, PRASA New Attorneys advised that they were unable to accede to the request as they were still busy acquainting themselves with the matter and seeking relevant instructions from PRASA. [34]      The respondent disputed the assertions by PRASA in support of its application for postponement. The allegations of fraud in the granting of the Court Order are considered by the respondent as, effectively, casting aspersions on this Court as the forum which granted the Court Order. And PRASA accuses this Court of having granted the Court Order without ensuring that both parties were aware of its contents, present in Court and having consented thereto. The allegations, also, impugn the integrity of DM Attorneys, as PRASA’s attorneys of record at the material times, and counsel who was briefed on the day. The same trepidations are harboured in respect of the respondent’s legal representatives who were involved when the Court Order was made. The respondent hinted of the possibility of a defamatory lawsuit. [6] [35]      Regarding the Court Order it is pointed out on behalf of the respondent that the impugned clinical records were duly served on DM Attorneys in response to a Rule 36(6) notice on 2 December 2013. Therefore, PRASA was in possession of the records for over eleven years. PRASA also failed to invoke the provisions of Rule 35(3) [7] challenging the authenticity or adequacy of the clinical records. Further, PRASA could have verified the records with the hospital itself, rather than waiting until the proverbial eleventh hour to mount its challenge against the records. PRASA’s conduct in this regard is mala fide and constitutes abuse of the process of the Court and strategic litigation tactics aimed at delaying the proceedings. All these ought not to be countenanced by the Court, it is argued. [36]      The talk of an investigation, it is also pointed out, is not borne by PRASA’s prior conduct. As far back as 2013, PRASA furnished the respondent with an investigation report confirming the nature and extent of the respondent's injuries sustained in the impugned train accident. Thus, the about turn is unfounded and mala fide. There is no basis for the alleged fraud, and the records - clearly - come from the mentioned institution. The allegations fall short of what is envisaged by Rule 35(6) [8] regarding authenticity of discovered documents. Also, should the allegations of fraud be true, PRASA should have been keen to proceed to trial on the quantum issues to disprove the contents of the impugned clinical records. [37]      The reference to a neurosurgeon is misleading as to date PRASA has not filed any report within this speciality. Only reports compiled by an orthopaedic surgeon and occupational therapist have been filed. Both of the latter reports rely on the impugned clinical records, it is pointed out. The allegations suggest that PRASA has withheld the neurosurgeon’s report contrary to Rule 36(9)(b). The neurosurgeon’s report is referenced in the occupational therapist’s report, the respondent asserted. There is no mention of fraud in the report, but only that the clinical notes do not refer to a head injury. This suggests deliberate misrepresentation by Ms Tshikosi, PRASA’s legal advisor, warranting judicial sanction or censure. [38]      It was also argued that the respondent would suffer substantial prejudice due to the postponement given his age and the current timeframes for enrolments on the civil trial roll of this Division. The situation is exacerbated by the respondents unemployment directly arising from the injuries he sustained in the accident. Further delay would cause him continued hardship and, effectively, would amount to unjust and prejudicial hindrance of his right of access to justice. On the contrary no discernible prejudice would be suffered by PRASA as a juristic entity, the respondent’s argument concluded. [39]      Overall, the application is considered by the respondent to be without merit and an opportunistic quest to delay the final determination of the respondent’s claim, due to PRASA’s unpreparedness to proceed with the trial. The respondent stated that the conduct of PRASA’s attorneys will be brought to the attention of the Legal Practice Council for investigation of an appropriate sanction, as it constitutes ethical breaches of the rules applicable to legal practitioners. Also, that PRASA, as a litigant, cannot avoid the legal consequences of the conduct of its legal representatives unless there was demonstrative evidence of fraud or negligence. Further, DM Attorneys deny that they lacked instructions to settle the merits and, thus, were duly instructed at all material times. [40]      It was also submitted for the respondent that should the Court be inclined to grant a postponement it should consider directing PRASA to make interim payment to the respondent in the amount of R1 million in order to strike a balance between the effect of the postponement and the undue prejudice on the respondent emanating from the delay in the finalisation of his claim. Application for leave to intervene by DM Attorneys [41]      Diale Mogashoa Attorneys (i.e. DM Attorneys) acted for PRASA from when the notice of intention to defend was delivered on 15 November 2013 to their withdrawal on 22 April 2025. It is stated that the termination of their mandate was contrary to the service level agreement concluded with PRASA. Also, that Ms Tshikosi, according to DM Attorneys, could have addressed any conspiracy theories PRASA has with DM Attorneys when the issue of termination of their mandate was discussed in April 2025. DM Attorneys, also pointed out that, the imminence of the date of trial was also raised and, equally, the need to protect the interests of PRASA, when their termination was mooted. DM Attorneys sais they still act for PRASA in other matters, although the assertions by PRASA in the postponement application may place this in jeopardy. [42]      DM Attorneys were alerted to the accusations by PRASA by the respondent’s attorneys in a letter received in the afternoon of Friday, 2 May 2025. On Sunday, 4 May 2025, DM Attorneys initiated the application for urgent leave to file an explanatory affidavit to address the accusations by PRASA. DM Attorneys, actually, sought leave to intervene in the event that it was deemed necessary for the delivery and admittance into the record of its explanatory affidavit. But the application has been conveniently branded an intervention application. [43]      DM Attorneys complained that the founding affidavit in support of the application for postponement contains certain material which is considered prejudicial and defamatory as it alludes to ethical and professional misconduct on their part. It is stated that the allegations are false. DM Attorneys considered itself to have a duty to bring certain matters to the attention of the Court. The conduct of PRASA New Attorneys and Ms Tshikosi, PRASA’s the legal advisor, is considered to be both egregious and a display of disregard of professional duties. [44]      Ms Tshikosi, as stated above, has been employed in that capacity with PRASA since August 2024. DM Attorneys pointed out that - without conferring with her colleagues who were involved with the matter prior to her appointment - she would have no first-hand knowledge of the material facts. But, she could have contacted DM Attorneys for accurate information including on the Court Order. She failed to take meaningful steps to enquire as to the true facts before making the defamatory allegations. [45]      DM Attorneys confirmed that the Court Order was indeed made on 2 November 2023 following a proper set down of the matter and a pre-trial conference at which the separation of issues relating to merits and quantum was agreed. Another attorney within DM Attorneys handled the matter until December 2023, when he resigned. He had prepared internal memorandum on the merits or liability of PRASA on the matter. He interacted with the insurance department of PRASA. A senior manager from the latter department authorised DM Attorneys to negotiate amicable settlement with the respondent’s attorneys. Ultimately, settlement of issues relating to liability was reached on the day of the trial and the Court Order was made. This was reported back to the insurance department of PRASA still in early November 2023. On 30 November 2023, DM Attorneys received a notice of intention to tax a bill of costs of the respondent. They instructed a tax consultant to oppose the taxation. Ms Tshikosi was already with PRASA when payment of the bill of costs was made. [46]      Ms Geraldine Burger, an attorney and director of DM Attorneys, deposed to the affidavits in the intervention application. She is the attorney who inherited the matter from the one that resigned. She disagrees with the interpretation given by Ms Tshikosi or PRASA to the impugned pre-trial minutes. [9] She explained that she requested a copy of the Court Order as she didn't have same on her file for the matter. The file was with the tax consultant and the Court Order was not yet uploaded on the CaseLines system at the time of the pre-trial conference. [47]      Regarding the allegations of the absence of authority to settle the matter, Ms Burger pointed out that the senior manager in the insurance department of PRASA, namely Mr Beresford Makaza is still employed with PRASA and could have clarified the relevant issues to Ms Tshikosi. The instructions to settle were furnished both telephonically and in writing by Mr Makaza. There was also no attempt to inquire on the correct state of affairs from DM Attorneys. [48]      In the answering affidavit to the intervention application Ms Tshikosi, among others, have the following to say. There was no need for DM attorneys to enter the fray as there is a separate contractual relationship between them and PRASA. Concerns as to costs of the application are also raised. It is denied by PRASA that the contents of the founding affidavit for postponement are defamatory. They are simply calling for an investigation of the relevant issues, it is asserted. For example, DM Attorneys, themselves, sent an email to their counterpart for the respondent requesting that the hospital records be made available. The allegations DM Attorneys is complaining about are only expressing prima facie impressions. Nothing is conclusive, save that there are things that are ‘glaringly suspicious’. [49]      Further and of critical importance it is stated that the settlement is denied by Mr Makaza. He did not have the requisite authority to give such instructions, including settlement of liability on a 90/10% basis. PRASA, therefore, ought to investigate the matter including transcribing the record of when the matter was settled in Court. Mr Makaza deposed to a confirmatory affidavit. [50]      Also reference is made to the report by the neurosurgeon which is said to have been available since 10 April 2025, but not filed by DM attorneys on behalf of PRASA. PRASA or Ms Tshikosi, the legal advisor, considers this prejudicial to PRASA considering that the matter was heading to trial on 5 May 2025. She, also, finds the alleged omission to be unethical, which according to her is ironic given that DM Attorneys accuse her of ethical breaches. Also, to note that the neurosurgeon who is said to have raised the alarm on the authenticity or adequacy of the clinical notes, also, deposed to a confirmatory affidavit. He also raised further issues primarily explaining why he did not compile a medico-legal report. DM Attorneys filed a replying affidavit which essentially denied most of what is contained in answering affidavit by PRASA. Issues requiring determination [51]      From what appears above, the issues to be determined in the application for postponement are the two grounds of postponement: (a) the authenticity or alleged fraudulent nature of the Court Order, and (b) the authenticity or alleged fraudulent nature of the clinical records.  Obviously, now that the trial has come and gone, the issues will be looked at from the angle whether the application was justified for purposes of deciding costs of the application and the postponed trial. [52]      In addition to the above two main issues, there may be other issues of an ancillary nature to address, particularly arising from the material generated in the intervention application. There may be some unavoidable interlinkages between the issues, despite my attempts in segmenting them. The Court Order and its alleged fraudulent nature [53]      Counsel for the applicant submitted that the Court Order appears fraudulent. [10] Nothing much is proffered to establish the alleged fraud. Initially, PRASA quibbled about the alleged absence of the details of the lawyers who appeared on behalf of PRASA - on the face of the Court Order - when it was made. This was put paid to by the uploading of  a clear copy of the Court Order. [11] And DM Attorneys, unequivocally, confirmed their involvement in the settlement discussions in respect of PRASA’s liability and, ultimately, when the Court Order was granted. Therefore, considered objectively on the available facts, the settlement of liability of the respondent’s claim – even without PRASA’s authority – would not amount to fraud. At most it would be an issue between DM Attorneys, as the agent at the time, and PRASA, as the principal. No investigation is necessary in this regard when all relevant facts have been disclosed by DM Attorneys. Or even if an investigation is necessary it should not involve the respondent, let alone this Court. [54]      Be that as it may PRASA has long been aware of the existence of the Court Order. Ms Tshikosi has been aware of it since 23 October 2024, when she dealt with the taxed bill of costs. She did not ask for a copy of the actual document embodying the Court Order. PRASA acquiesced in the Court Order by settling the liability emanating from taxed bill of costs. This may be the reason why Ms Tshikosi did not bother raising the so-called concerns with DM Attorneys for purposes of this application. Confronted with the disclosure of the correct facts in the intervention by DM Attorneys, all Ms Tshikosi could muster was to blame them for seeking intervention and asserting some incomprehensible assertions as to the contractual relationship between PRASA and DM Attorneys. I agree with the respondent and his legal representatives when they say that this was nothing, but an attempt to engineer a postponement. But I consider it to be on the desperate side of that equation. [55]      Even if the assertions as to fraud in the granting of the Court Order were – at face value – credible, PRASA has not offered a reasonable explanation as to why it has not taken any investigative or remedial steps by the time the matter was heard in May 2025. Nothing prevented PRASA from doing something, of the objective value or consideration, from as far back as October 2024. I agree with the respondent that the cited ground for postponement regarding the authenticity of the Court Order was nothing, but tactical manoeuvre designed to subvert a lawful Court Order and to avoid the trial on quantum issues. Indeed, the conduct directly contradicts Ms Tshikosi’s assertion that, all these are in a quest to act in the best interests of PRASA. Therefore, a postponement on the ground that the Court Order seems fraudulently obtained is without merit and would not avail PRASA. Hospital or clinical notes and their alleged fraudulent nature [56] The impugned hospital or clinical records are said to have been flagged by Dr Rambelani Khohomela, a neurosurgeon, instructed on behalf of PRASA to assess the respondent and furnish a report. He says that he could not furnish the report due to the absence of hospital or clinical records. He considered something to be amiss or suspicious with the two-paged clinical records. He also mentioned that he was placed under pressure by DM Attorneys to finalise his report despite his concerns about the extent of the clinical records. But he did not say what – in substance rather than form – it is that he found ‘amiss’ or ‘suspicious’ with the records furnished. All I could decipher from his assertions is a complaint about the brevity of the records, as they comprised two pages. The neurosurgeon says he immediately called PRASA, directly, to inform them about his concerns regarding the respondent’s injuries. He does not disclose the date when he did this; whom he spoke to, and what the conclusion was on the discussion. [57]      Be that as it may, it is unclear to me what is to be investigated by PRASA with regard to the clinical notes. Clearly, the suspicions of a neurosurgeon as to fraud with regard to the appearance of documents does not establish that the clinical records are fraudulent. Other experts appear to have found the same records not posing insurmountable hurdles to furnish their reports. Also, PRASA compiled a liability report, as far back as 2013, as to the nature and extent of the respondent's injuries sustained in the accident. [12] The report was filed by DM Attorneys on behalf of PRASA in July 2022. One would expect PRASA to fall back on the liability report when confronted with anything requiring verification. Or to ask the relevant department to urgently compare the review of the clinical records against the liability report. This could have taken a matter of days as it would have been internal to PRASA at this stage. [58]      Fraud or no fraud, the hospital records were furnished to DM Attorneys, when they acted for PRASA, several years ago in December 2013. [13] They do not appear to have been concerned by their nature and extent to warrant the so-called ‘investigation’. Several other activities followed including the medico-legal reports by both parties and the Court Order. [59]      It is stated on behalf of PRASA that, after becoming aware of the so-called concerns, PRASA New Attorneys requested postponement of the matter by directing a letter to the respondent’s attorneys. The latter attorneys reacted to the letter and disputed - as unfounded – any suggestions of fraud. They vowed that their client would oppose any attempt to postpone the trial. The change of attorneys on the part of PRASA occurred very late (i.e. closer to the trial date) - to start with - and so were the letters exchanged. It was always going to be a monster of a challenge for new attorneys to pick up the baton on 22 April 2025 and get going with the preparations for trial and the trial itself on 5 May 2025. PRASA consciously decided to change legal representation very late. Little wonder that one of the reasons advanced for postponement is that it was ‘necessary to afford the new attorneys of record [sic] to acquaint themselves with the matter and prepare accordingly’. [14] This appears to be a paramount reason. Perhaps the only reason for postponement. [60]      And it does not appear that any tender of costs to be occasioned by the postponement was made on behalf of PRASA, considering the timing of the request. One gets the impression that, even from submissions by counsel for PRASA, that the respondent even prior to the so-called ‘investigation’, is being blamed for all these. But the respondent is not to blame. PRASA sought an indulgence and, thus, ought to have tendered costs which would be occasioned and rendered wasted by the postponement. Obviously, a tender of costs does not automatically change the complexion of an otherwise ill-timed and unmeritorius application for postponement, but it is a strongly positive factor for the determination. Principles relating to postponement of court proceedings [61]      The learned author of Erasmus: Superior Court Practice [15] sets out the following as, among others, the  legal principles finding application to the determination by the courts whether or not to grant applications for postponement: (a) The court has a discretion as to whether an application for a postponement should be granted or refused. Thus, the court has a discretion to refuse a postponement even when wasted costs are tendered or even when the parties have agreed to postpone the matter. (b) That discretion must be exercised in a judicial manner. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons. If it appears that a court has not exercised its discretion judicially, or that it has been influenced by wrong principles or a misdirection on the facts, or that it has reached a decision which could not reasonably have been made by a court properly directing itself to all the relevant facts and principles, its decision granting or refusing a postponement may be set aside on appeal. (c) An applicant for a postponement seeks an indulgence. The applicant must show good and strong reasons, ie the applicant must furnish a full and satisfactory explanation of the circumstances that give rise to the application. A court should be slow to refuse a postponement where the true reason for a party’s non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics, and where justice demands that he should have further time for the purpose of presenting his case. (d) An application for a postponement must be made timeously, as soon as the circumstances which might justify such an application become known to the applicant. If, however, fundamental fairness and justice justify a postponement, the court may in an appropriate case allow such an application for postponement even if the application was not so timeously made. (e) An application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled. (f) Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of the court will be exercised; the court has to consider whether any prejudice caused by a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanism. (g) The balance of convenience or inconvenience to both parties should be considered: the court should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the applicant if it is not. (h) In Lekolwane v Minister of Justice and Constitutional Development [ [2006] ZACC 19 ; 2007 (3) BCLR 280 (CC) in paragraph [17] ] the court added the following factors to be considered in granting a postponement: (i) the broader public interest; and (ii) the prospects of success on the merits. (i) In Shilubana v Nwamitwa (National Movement of Rural Women and Commission for Gender Equality as Amici Curiae) [ [2007] ZACC 14 ; 2007 (5) SA 620 (CC) at 624E–F ] the court held that the following factors could non-exhaustively be added to the above: (i) the reason for the lateness of the application for postponement if not timeously made; (ii) the conduct of counsel; (iii) the costs involved in the postponement; (iv) the potential prejudice to other interested parties; (v) the consequences of not granting a postponement; and (vi) the scope of the issues that must ultimately be decided. (j) … (k) … Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right. [quoted without accompanying footnotes and page numbers] [62]      Counsel referred to some of the abovementioned principles for and against the granting of postponement. But counsel for PRASA also referred to other authorities branded judgments or orders procured by fraud. I don’t think any such authorities are necessary given the fact that in PRASA’s own words there is still only suspicions of fraud and the need for an investigation. Conclusion and costs [63]      The application for postponement was late, very late, especially considering that the two main reasons given for postponement concerned documents which have been in PRASA’s possession for months to years. Ms Tshikosi in her own words knew of the Court Order as far back as October 2024 and did not see any reason to raise her current vociferous statements regarding its validity. Regarding the clinical records even if neurosurgeon’s alleged concerns are to be taken as anything to go by, the postponement sought to verify same will be an indulgence to PRASA. [64]      From the moment it became clear that the procession of the trial was imperilled, PRASA ought to have tendered reasonable costs occasioned by postponement. Instead, Ms Tshikosi – no doubt – supported by PRASA New Attorneys saw it fit to come to Court and raise issues regarding the matter they knew little to nothing about when they could have first sought clarity from their colleagues, DM Attorneys. The latter attorneys are still acting for PRASA in other matters. They would not have been difficult to reach, as borne by their reach by the respondent’s attorneys to alert them of the accusations made in this application. [65]      The late application for postponement gave rise to the intervention application. The latter application was necessary. It clarified and disproved most of the matters in the  application for postponement. I am grateful to DM Attorneys for coming forth to clarify the matters to the Court. This is salutary and comports well with their role as officers of the Court. In my interactions during the hearing with counsel appearing for DM Attorneys, I emphasised that, although DM Attorneys have obviously incurred costs and the application is opposed by PRASA, I would not decide the actual issue of the necessity of the intervention and costs thereof. This, actually, accorded with the primary objective of the nature of the participation sought by DM Attorneys, namely, to file an explanatory affidavit with the Court. [66]      In the end, the trial could not continue, not due to any semblance of merit in the application for postponement, but as the latter ended up taking the entire period for which the civil action was set down for. But the application for postponement – to avoid doubt – will be dismissed for lack of merit. [67]      Another issue to deal with concerns the conduct of PRASA and its functionaries and representatives in this application. The conduct does not suggest mere clumsiness or slip of mind in mounting this application, but a calculated or tactical manoeuvre to force a postponement of a trial in this matter. A very old matter indeed. Ms Tshikosi is also an admitted attorney or legal practitioner and, therefore, an officer of this Court. I agree with the respondent that this type of conduct deserves to be probed by the Legal Practice Council (‘LPC’) for possible breaches of ethical rules. I am not saying that Ms Tshikosi or anyone is guilty of anything, but the LPC and not the Court is best placed to look into these issues. One hopes that the respondent would indeed approach the LPC as he said he would. [68]      Therefore, I fully agree with the respondent that the application is mala fide and an abuse of the process of the Court. As already stated, it will be dismissed, with costs. It is a fitting and highly qualified candidate for a punitive costs order of attorney and client scale. Although this would ensure that the respondent is not out of pocket when he is in no way to blame for the postponement, the funds to foot the bill of costs would come from PRASA and not Ms Tshikosi or any of the others who acted for PRASA. In the end the interests of PRASA are not served by those given the responsibility to do so. I will order that costs be at that scale for both the futile application for postponement and wasted costs occasioned by the postponement of the trial. [69]      The respondent also urged the Court to ameliorate any harm that might befall him due to the postponement of the trial by directing that PRASA make an interim payment to the respondent in the amount of R1 million. I agree that this would have lessened any possible prejudice on the part of the respondent, which may arise from the delay in the finalisation of his claim. But, such relief is not possible in the current circumstances of the matter. One hopes that the costs order to be made and a request to the office of the DJP to grant preferential date of hearing or trial in this matter may go a little far in assuaging the respondent’s actual and potential prejudice. Other than what appears above, consideration – for the approach to the office of the DJP - ought to also be given to the facts that the respondent was injured as far back as April 2010 and is now about 57 years old. He has endured life with his injuries and their sequelae for over 15 years. Orders [70]      In the premises, I make the order, that: 1.         the application for postponement of the civil trial is refused and the applicant is liable for costs of the application on attorney and client scale; 2.         the trial in the action is postponed sine die and the defendant is liable for the wasted costs occasioned as a consequence of the postponement of the hearing of the trial; and 3.         the office of the deputy judge president – to the extent it considers permissible – may be approached to consider allocating a preferential date for the hearing or trial in this matter. Khashane La M. Manamela Acting Judge of the High Court Dates of Hearing                                     :          05-07 May 2025 Date of Judgment                                   :          13 August 2025 Appearances For the Applicant / Defendant                 :           Dr T Ramatsekisa Instructed by                                           : Maluleke Inc. t/a Maluks Attorneys Johannesburg For the Respondent / Plaintiff                 :           Mr A Masombuka Instructed by                                           : M.O Matlala Attorneys Kempton Park c/o Mathebula Chavalala Attorneys Pretoria For the Intervening Party / Defendant’s erstwhile attorneys                :           Mr M Chauke Instructed by                                             :           Diale Mogashoa Inc, Pretoria [1] CaseLines (‘CL’) 15-1 to 15-4. [2] Answering Affidavit (‘AA’) annexure ‘OM3’, CL 27-40 to 27-43. [3] CL 00-2 to 00-3. [4] Founding Affidavit (‘FA’) annexure ‘MAL1’, CL 25-12. [5] Par [12] above. [6] Le Roux and Others v Dey (CCT 45/10) [2011] ZACC 4 ; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) (8 March 2011) . [7] Rule 35(3) provides: ‘If any party believes that there are, in addition to documents or tape recordings disclosed as aforesaid, other documents (including copies thereof) or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring such party to make the same available for inspection in accordance with subrule (6), or to state on oath within 10 days that such documents or tape recordings are not in such party’s possession, in which event the party making the disclosure shall state their whereabouts, if known.’ [8] Rule 35(6) provides in the material part: ‘[a]ny party may at any time by notice in accordance with Form 13 of the First Schedule require any party who has made discovery to make available for inspection any documents … disclosed in terms of subrules (2) and (3). Such notice shall require the party to whom notice is given to deliver within five days, to the party requesting discovery, a notice in accordance with Form 14 of the First Schedule, stating a time within five days from the delivery of such latter notice when documents … may be inspected at the office of such party’s attorney or, if such party is not represented by an attorney, at some convenient place mentioned in the notice…. The party receiving such last-named notice shall be entitled at the time therein stated, and for a period of five days thereafter, during normal business hours and on any one or more of such days, to inspect such documents or tape recordings and to take copies or transcriptions thereof. A party’s failure to produce any such document or tape recording for inspection shall preclude such party from using it at the trial, save where the court on good cause shown allows otherwise. [9] Par [12] above for a reading of the material part of the pre-trial minutes. [10] Heads of Argument p ar 2.1, CL 3 [11] CL 00-1 to 00-2. [12] Liability Report CL 26-10 to 26-18. [13] Respondent’s Rule 36(4) notice dated 20 November 2013, CL 04-9 to 04-10. [14] FA par 12, CL 25-10. [15] DE van Loggerenberg, Erasmus: Superior Court Practice ( Revision Service 24, 2024 , Jutastat October 2024) RS 25, 2024, D1 Rule 41-6 to RS 22, 2023, D1 Rule 41-9. sino noindex make_database footer start