Road Accident Fund v Mlotha and Another (25040/2022) [2024] ZAGPPHC 1122 (11 November 2024)

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 >> 2024 >> [2024] ZAGPPHC 1122 | Noteup | LawCite sino index ## Road Accident Fund v Mlotha and Another (25040/2022) [2024] ZAGPPHC 1122 (11 November 2024) Road Accident Fund v Mlotha and Another (25040/2022) [2024] ZAGPPHC 1122 (11 November 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1122.html sino date 11 November 2024 IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA Case No: 25040/2022 Reportable: No Of interest to other Judges: No Revised: No SIGNATURE Date:  11 November 2024 In the matter between: THE ROAD ACCIDENT FUND                                                       Applicant and M MLOTHA                                                                          First Respondent THE SHERIFF, CAPE TOWN WEST                                Second Respondent # JUDGEMENT JUDGEMENT # # MOOKI J MOOKI J # 1The first respondent (Mr. Mlotha) claimed damages from the Road Accident Fund (the Fund) for injuries suffered arising from a car accident. The parties settled the claim. The settlement was made an order of court on 23 August 2023. 1 The first respondent (Mr. Mlotha) claimed damages from the Road Accident Fund (the Fund) for injuries suffered arising from a car accident. The parties settled the claim. The settlement was made an order of court on 23 August 2023. # # 2The Fund subsequently informed Mr. Mlotha that the Fund would pay once Mr. Mlotha, a foreign national, had shown that he was lawfully in the country when he was injured. 2 The Fund subsequently informed Mr. Mlotha that the Fund would pay once Mr. Mlotha, a foreign national, had shown that he was lawfully in the country when he was injured. # # 3The Fund issued a directive on 21 June 2022, essentially making it a pre-condition to payment for a claim by a foreign national that such a national show that they were lawfully in the country at the time of their injury. Mr. Mlotha had issued summons against the Fund before 21 June 2022. 3 The Fund issued a directive on 21 June 2022, essentially making it a pre-condition to payment for a claim by a foreign national that such a national show that they were lawfully in the country at the time of their injury. Mr. Mlotha had issued summons against the Fund before 21 June 2022. # # 4Mr. Mlotha issued a writ of execution against the Fund on 12 March 2024.  The Fund in turn brought an application to suspend the writ pending the outcome of review proceedings[1]before the Full Court in this Division (“the Mudawo matter”) which was set down for 5 March 2024. The Full Court was to consider the lawfulness of the directive. 4 Mr. Mlotha issued a writ of execution against the Fund on 12 March 2024.  The Fund in turn brought an application to suspend the writ pending the outcome of review proceedings [1] before the Full Court in this Division (“the Mudawo matter”) which was set down for 5 March 2024. The Full Court was to consider the lawfulness of the directive. # # 5Mr. Mlotha launched a counter-application on 5 April 2024.  He sought relief that the stay application be dismissed and that the Fund be ordered to comply with the order made on 23 August 2023.  Mr. Mlotha also sought to have the chief executive officer of the Fund held in contempt of the 23 August 2023 order. 5 Mr. Mlotha launched a counter-application on 5 April 2024.  He sought relief that the stay application be dismissed and that the Fund be ordered to comply with the order made on 23 August 2023.  Mr. Mlotha also sought to have the chief executive officer of the Fund held in contempt of the 23 August 2023 order. # # 6The Fund did not prosecute its application to stay the writ. Mr. Mlotha then set his counter application down. This matter is thus set-down for the court to consider Mr. Mlotha’s counter-application. 6 The Fund did not prosecute its application to stay the writ. Mr. Mlotha then set his counter application down. This matter is thus set-down for the court to consider Mr. Mlotha’s counter-application. # # 7Mr. Mlotha contended that the Full Bench had dismissed the application by the Fund in the Mudawo matter on 26 March 2023, with the result that there was no basis to stay the writ. Mr. Mlotha relied on the following two additional bases for relief. First, the stay application was defective because the Fund did not comply with Rule 6(5)(b)(iii) because the Fund’s notice of motion did not specify the date for the hearing of the application. He relied on the decision in RH Plant Hire CC v Vlok and Others.[2]Second, that the directive did not apply retrospectively. He relied in the decision in Maphosa v Road Accident Fund[3]for this contention. 7 Mr. Mlotha contended that the Full Bench had dismissed the application by the Fund in the Mudawo matter on 26 March 2023, with the result that there was no basis to stay the writ. Mr. Mlotha relied on the following two additional bases for relief. First, the stay application was defective because the Fund did not comply with Rule 6(5)(b)(iii) because the Fund’s notice of motion did not specify the date for the hearing of the application. He relied on the decision in RH Plant Hire CC v Vlok and Others. [2] Second, that the directive did not apply retrospectively. He relied in the decision in Maphosa v Road Accident Fund [3] for this contention. # # 8It is denied on behalf of the Fund that the Fund was in contempt of the 23 August 2023 order. That was because the directive required the Fund to be satisfied that Mr. Mlotha was lawfully in the country when he got injured before the Fund could pay him. 8 It is denied on behalf of the Fund that the Fund was in contempt of the 23 August 2023 order. That was because the directive required the Fund to be satisfied that Mr. Mlotha was lawfully in the country when he got injured before the Fund could pay him. # # 9It was also averred on behalf of the Fund that the Fund had sought leave to appeal in the Mudawo matter. It was pointed out that Mr. Mlotha launched his counter-application before expiry of the period for the bringing of an application for leave to appeal. 9 It was also averred on behalf of the Fund that the Fund had sought leave to appeal in the Mudawo matter. It was pointed out that Mr. Mlotha launched his counter-application before expiry of the period for the bringing of an application for leave to appeal. # # 10The Fund denied that its non-compliance with Rule 6(5)(b)(iii) rendered the Fund’s application defective. That was because Rule 27 permits condonation for non-compliance with the Rules of Court. The Fund also referenced the Practice Directive of this Division, which does not permit setting out a hearing date in the notice of motion before service of that notice. 10 The Fund denied that its non-compliance with Rule 6(5)(b)(iii) rendered the Fund’s application defective. That was because Rule 27 permits condonation for non-compliance with the Rules of Court. The Fund also referenced the Practice Directive of this Division, which does not permit setting out a hearing date in the notice of motion before service of that notice. # # 11The Fund denied that it was unwilling to comply with the court order. It also denied that its chief executive officer was in contempt of court of the court order. 11 The Fund denied that it was unwilling to comply with the court order. It also denied that its chief executive officer was in contempt of court of the court order. # # Analysis Analysis # 12The parties mentioned when the matter came for a hearing that the Full Bench dismissed the Fund’s application for leave to appeal, and that the Fund had since petitioned the Supreme Court of Appeal. The parties agreed that the issues in the Mudawo matter remain live because of the petition to the Supreme Court of Appeal. 12 The parties mentioned when the matter came for a hearing that the Full Bench dismissed the Fund’s application for leave to appeal, and that the Fund had since petitioned the Supreme Court of Appeal. The parties agreed that the issues in the Mudawo matter remain live because of the petition to the Supreme Court of Appeal. # # 13The resolution of Mr. Mlotha’s application is linked to the determination of the issues in the Mudawo matter. This court cannot determine whether the directive is a bar to the Fund paying Mr. Mlotha before Mr. Mlotha had satisfied the Fund that he was lawfully in the country when he got injured before the petition to the Supreme Court of Appeal has been resolved. Courts are required to aim for coherence in their determinations. It would not be coherent or make for an efficient administration of justice for this court to determine an application when there is a pending matter before a superior court dealing with the very same subject. This court cannot anticipate, and should not seek to anticipate, the outcome of the petition to the Supreme Court of Appeal. 13 The resolution of Mr. Mlotha’s application is linked to the determination of the issues in the Mudawo matter. This court cannot determine whether the directive is a bar to the Fund paying Mr. Mlotha before Mr. Mlotha had satisfied the Fund that he was lawfully in the country when he got injured before the petition to the Supreme Court of Appeal has been resolved. Courts are required to aim for coherence in their determinations. It would not be coherent or make for an efficient administration of justice for this court to determine an application when there is a pending matter before a superior court dealing with the very same subject. This court cannot anticipate, and should not seek to anticipate, the outcome of the petition to the Supreme Court of Appeal. # # 14Mr. Jacobs, counsel for Mr. Mlotha, agreed that the status of the Mudawo matter renders it pre-mature for this court to make a finding in relation to the relief sought in prayer 1 of the Fund’s application, namely: 14 Mr. Jacobs, counsel for Mr. Mlotha, agreed that the status of the Mudawo matter renders it pre-mature for this court to make a finding in relation to the relief sought in prayer 1 of the Fund’s application, namely: # # “suspending the operation and execution of the court order dated the 23rdday of August 2023, pending the outcome of the matter under Case No:11795/2022 heard before a Full Court of the Pretoria High Court on the 5thday of March 2024.” “ suspending the operation and execution of the court order dated the 23 rd day of August 2023, pending the outcome of the matter under Case No:11795/2022 heard before a Full Court of the Pretoria High Court on the 5 th day of March 2024.” # # 15Mr. Jacobs submitted, however, that Mr. Mlotha had two other independent bases for his relief. 15 Mr. Jacobs submitted, however, that Mr. Mlotha had two other independent bases for his relief. # # 16Mr. Jacobs initially submitted that the stay application stood to be dismissed, for non-compliance with Rule 6(5)(b)(iii). Mr. Jacobs accepted, on the questioning by the court, that a court can dismiss a matter only after considering the merits. This was in relation to Mr. Mlotha’s contention that the stay application was not properly before court and ought to be dismissed on that account. The court, in substance, enquired whether the court can dismiss a matter that was not properly before court, as opposed to a court striking such a matter from the roll. Mr. Jacobs conceded that such a matter ought to be struck from the roll, and not dismissed. 16 Mr. Jacobs initially submitted that the stay application stood to be dismissed, for non-compliance with Rule 6(5)(b)(iii). Mr. Jacobs accepted, on the questioning by the court, that a court can dismiss a matter only after considering the merits. This was in relation to Mr. Mlotha’s contention that the stay application was not properly before court and ought to be dismissed on that account. The court, in substance, enquired whether the court can dismiss a matter that was not properly before court, as opposed to a court striking such a matter from the roll. Mr. Jacobs conceded that such a matter ought to be struck from the roll, and not dismissed. # # 17Mr. Mlotha did not persist with his contentions that the chief executive officer of the Fund be found to be in contempt of court. 17 Mr. Mlotha did not persist with his contentions that the chief executive officer of the Fund be found to be in contempt of court. # # 18I am not persuaded that the stay application is defective only for non-compliance with Rule 6(5)(b)(iii). The court in RH Plant Hire CC v Vlok and Others did not declare the law for the ages on this aspect. I agree that non-compliance with the rules of court does not, without more, render an application fatally defective. The law reports are replete with instances of matters being heard on the merit notwithstanding non-compliance with the rules of court. 18 I am not persuaded that the stay application is defective only for non-compliance with Rule 6(5)(b)(iii). The court in RH Plant Hire CC v Vlok and Others did not declare the law for the ages on this aspect. I agree that non-compliance with the rules of court does not, without more, render an application fatally defective. The law reports are replete with instances of matters being heard on the merit notwithstanding non-compliance with the rules of court. # # 19The court inRH Plant Hire CCwas not addressing the failure to detail a date in a notice of motion as a general statement. The importance of a date arose in the unique confines of that application, which the court detailed as follows: 19 The court in RH Plant Hire CC was not addressing the failure to detail a date in a notice of motion as a general statement. The importance of a date arose in the unique confines of that application, which the court detailed as follows: # # Can it be said that an application is made if an application is issued but a hearing date is not reflected in the notice of motion, served on the company and the CIPC, if the application remains unopposed?[4] Can it be said that an application is made if an application is issued but a hearing date is not reflected in the notice of motion, served on the company and the CIPC, if the application remains unopposed? [4] # # 20The in court inRH Plant Hire CCwas, in substance, dealing with whether the requirements for the “the making” of an application in business rescue proceedings had been met. This is made clear when considering the statement by the court that: 20 The in court in RH Plant Hire CC was, in substance, dealing with whether the requirements for the “the making” of an application in business rescue proceedings had been met. This is made clear when considering the statement by the court that: # # “An omission to set out a stated date is fatal to the application in question, and a subsequent notice of set down cannot cure the defect.As a result, the omission to include a stated date in the notice of motion pertaining to the business rescue application renders the application, as it stands, of no-consequence.”[5] “ An omission to set out a stated date is fatal to the application in question, and a subsequent notice of set down cannot cure the defect . As a result, the omission to include a stated date in the notice of motion pertaining to the business rescue application renders the application, as it stands, of no-consequence. ” [5] # # 21The court inRH Plant Hire CCwas thus primarily dealing with the absence of a date for a hearing in the context of business rescue proceedings, where the question of “the making” of an application is unique to those proceedings. 21 The court in RH Plant Hire CC was thus primarily dealing with the absence of a date for a hearing in the context of business rescue proceedings, where the question of “the making” of an application is unique to those proceedings. # # 22Both parties contended that their respective applications were urgent. It is unnecessary to consider urgency. That is because the matter was given a special allocation. 22 Both parties contended that their respective applications were urgent. It is unnecessary to consider urgency. That is because the matter was given a special allocation. # # 23The counter-application must fail. I make the following order: 23 The counter-application must fail. I make the following order: # # (i)The counter-application in matter number 25040/2022 is dismissed. (i) The counter-application in matter number 25040/2022 is dismissed. # # (ii)The applicant in the counter-application is ordered to pay costs, including costs at Scale B in terms of Rule 67A. (ii) The applicant in the counter-application is ordered to pay costs, including costs at Scale B in terms of Rule 67A. # # O Mooki O Mooki # JUDGE OF THE HIGH COURT JUDGE OF THE HIGH COURT # GAUTENG DIVISION, PRETORIA GAUTENG DIVISION, PRETORIA # Appearance : Counsel for the applicant : G Jacobs (in the counter-application) : Instructed by: Campbell Attorneys Counsel for the respondent : R B Mphela (in the counter-application) : Instructed by: Mpoyana Ledwaba Inc. Date heard: 22 August 2024 Date of Judgement: 11 November 2024 [1] Mudawo and Others v Minister of Transport and Another (011795/2022) [2024] ZAGPPHC 258 (26 March 2024) [2] RH Plant Hire CC v Vlok and Others (2023-055592;2023-018259) [2023] ZAGPPHC 683 (14 August 2023) [3] Maphosa v Road Accident Fund (2022-1093) [2024] ZAGPJHC 263 (7 March 2024) [4] See para 18 of the judgement. [5] See para 22 of the judgement (internal footnotes omitted) sino noindex make_database footer start