Sethibe v Road Accident Fund (2025-027842) [2025] ZAGPJHC 1096 (27 October 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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1096 | Noteup | LawCite sino index ## Sethibe v Road Accident Fund (2025-027842) [2025] ZAGPJHC 1096 (27 October 2025) Sethibe v Road Accident Fund (2025-027842) [2025] ZAGPJHC 1096 (27 October 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1096.html sino date 27 October 2025 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, JOHANNESBURG CASE NO: 2025-027842 (1)      REPORTABLE: YES / NO (2)      OF INTEREST TO OTHER JUDGES: YES / NO (3)      REVIEWED: YES /NO DATE 27 October 2025 SIGNATURE In the matter between: SETHIBE: SAMSON Plaintiff And ROAD ACCIDENT FUND Defendant JUDGMENT Raubenheimer AJ: Order [1]         In this matter I make the following order: 1. The defendant’s notice of intention to defend is set aside as an abuse of process. 2.     The defendant shall pay the cost of the application on the scale as between attorney and client [2]         The reasons for the order follow below. Introduction [3]     The matter was enrolled for default judgment on 9 September 2025 and was heard on 10 September 2025, the plaintiff seeking default judgment on the merits as well as quantum. The damages heads in dispute are general damages, past and future loss of income and an undertaking in respect of future medical expenses. Background [4]     On 10 February 2024, the plaintiff was a pedestrian when the insured motor vehicle collided with him whilst he was walking on the pavement on the right side of the public road. [5]     The plaintiff suffered injuries as a result of the collision and lodged a claim with the defendant on 31 October 2024. [6]     Summons was served on the defendant on 6 March 2025 and when the prescribed time period for the entering of an appearance to defend, namely 18 March 2025 had lapsed no such notice of intention to defend had been served by the defendant. [7]     Noting that the defendant had not served a notice to defend, the plaintiff proceeded to enrol the matter on the default judgment roll. This the plaintiff did by notice of set down on the default judgment roll for 9 September 2025 to the defendant on 25 July 2025. [8]     The plaintiff then proceeded to serve the expert reports of the Orthopaedic Surgeon, Occupational Therapist, Industrial Psychologist and actuary on the defendant during August 2025. [9]     The defendant was also served with a Rule 38(2) application on 5 September 2025. [10] On the day before the default hearing the defendant served a notice of intention to defend on the plaintiff and on the day of the hearing the defendant served a plea on the plaintiff. [11]     The plaintiff applies for the notice of intention to defend be set aside. [12]     At the commencement of the argument the defendant’s representative indicated that despite being so invited by the court she does not intend submitting any opposing papers or heads of argument and that she will solely rely on oral argument presented from the bar. Submissions by the applicant [13]     The defendant entered an appearance some six months after the prescribed period for doing so had lapsed and after being duly informed that the plaintiff will be proceeding on default judgment, receipt of the set down, the expert reports and the application in terms of Rule 38(2). [14]     The merits are not contentious due to the nature of the incident as stated under oath by the plaintiff in his Section 19 affidavit, which is in turn confirmed by the information contained in the accident report compiled by the police officer who attended to the scene. The quantum is furthermore not substantial. [15]     The defendant filed no substantive application for postponement and assumed that the entering of an appearance to defend will automatically lead to a postponement affording the defendant additional time to settle the matter. [16]     The defendant brought no application for condonation for the late filing of the appearance to defend, neither did it provide a basis for the filing of the plea and that the defence of the matter is bona fide . [17]     The late filing of the appearance to defend amounts to a stratagem to buy more time for the defendant and as such is an abuse of the process as the purpose of entering an appearance to defend is to raise a defence that has some merit. Submissions by the defendant [18]     The defendant contended that Rule 19(5) provides that a defendant is at liberty to enter and appearance to defend at any time before judgment is granted. As the rule does not definitively preclude the filing of a notice of intention to defend after the prescribed period of time within which  it had to be filed, the provisions of Rule 27, which deals with the extension of time is not applicable to the time periods contained in Rule 19. Hence there is no obligation to apply for condonation for the late filing of the notice or the provision of any explanation for the lateness or the presence of a bona fide defence to the claim. Discussion [19] This issue has served before the respective Gauteng courts on numerous occasions and has these courts produced judgments in this regard of which I refer to a selection which is not comprehensive. [1] The mentioned decisions contain extensive prescripts in respect of what the defendant should do in a situation where a belated appearance to defend and plea is filed. Not only did the defendant elect not to adhere to the detailed procedures prescribed in the mentioned judgments but also elected not to favour the court with opposing papers and heads of argument, despite being invited to do so. The defendant simply submitted in argument that these judgments are not binding as they are all single judge judgments. No authority for this submission was presented to the court. [20] It is trite that before a court can deviate from a previous judgment in the same division the presiding judge must be convinced that the previous judgment is clearly wrong. [2] [21] The doctrine of stare decisis is not simply a matter of judicial comity it is a manifestation of the rule of law which is one of the founding values of the South African Constitution [3] the purpose of which is to avoid uncertainty and confusion, to protect vested rights and to uphold the dignity of the courts. [4] [22] The standard for departure from a previous decision has been articulated as clearly wrong or patently wrong [5] and it is not permissible for a judge to prefer a different conclusion or interpretation. The error in the previous judgment must be manifest and indisputable. [23] In R v Phillips Dairy (Pty) Ltd [6] the court stated that a decision point by a sister binds a single judge “ unless the Court is completely satisfied that such decision is clearly wrong, and has been arrived at by some oversight or misunderstanding, and that a palpable mistake has been made.” [24]     The defendant advanced no argument to the effect that any of the mentioned decisions are “clearly wrong,” “has been arrived at by some oversight or misunderstanding” and “that a palpable mistake has been made.” [25]     I could find no reason to deviate from the principles articulated in the mentioned judgments. [26]     There is no condonation application, no explanation for the lateness of the appearance to defend as required in terms of Rule 27. [27] The plea of the defendant amounts to a bare denial and has the defendant not identified any truly triable issues. Reference to Rule 19(5) as a guarantee of procedural substance in these circumstances is misplaced [7] as it is clear that the only reason for the belated filing of the appearance to defend and the plea is for tactical purposes to gain time. This contention by the plaintiff in his founding affidavit was not denied by the defendant. [28] The non-compliance with the Rules has been identified a cause for concern. [8] [29] The rules of court are not an end in themselves but a means to achieve justice. These rules cannot be exhaustively detailed and consequently judicial interpretation is unavoidable and such interpretation inherently serves as guidance to litigants. [9] [30] The most frequent and most important way in which courts provide guidance is by means of reasoned judgments. [10] [31] The inherent power of courts to regulate and direct their own processes also entails the authority to provide guidance to litigants in circumstances where the rules does not explicitly provide for. [11] [32]     Not only has the defendant not complied with the Rules, it has consistently without substantiation refused to follow the guidance provided by the courts in their interpretation of the Rules. The conduct of the defendant has resulted in obstructing the proper flow of litigation and frustrating the opposing party. [33] The rules of court are designed to ensure the proper, expeditious and inexpensive adjudication of disputes. [12] A consistent and continuous refusal to adhere to the guidance of the court on the interpretation of the rules elevates the non-compliant conduct beyond a mere technical breach and represents a challenge to the authority of the court and amounts to a deliberate frustration of the judicial process. [34] Constantly engaging in an interpretation of the rules contrary to judicial guidance resulting in inter alia procedural delays amounts to an abuse of court process. [13] Conclusion [35]     Based on the reasons above the notice of intention to defend is hereby set aside as an abuse of process. [36]     The defendant shall pay the cost of the application on the scale as between attorney and client. E Raubenheimer ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISIONJOHANNESBURG Electronically submitted Delivered: This judgement 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 27 October 2025 COUNSEL FOR THE PLAINTIFFS: Mr U Jordaan INSTRUCTED BY: Leon Van Rensburg Attorneys COUNSEL FOR THE RESPONDENT: Ms Makhathini (State Attorney) INSTRUCTED BY: Road Accident Fund DATE OF ARGUMENT: 11 September 2025 DATE OF JUDGMENT: 27 October 2025 [1] Hugo v Road Accident Fund (055136/2022) [2024] ZAGPPHC 791 (12 August 2024). Seronica Nathram v Road Accident Fund 46876/2020, 26 April 2024). Delport v Road Accident Fund 10978/2020. Mcunu v Road Accident Fund (37320/2022) [2024] ZAGPPHC 722 (22 July 2024). Mattheus v Road Accident Fund (32445/23) [2024] ZAGPPHC 1170 (18 November 2024). Mphuthi v Road Accident Fund (34766/2021) [2024] ZAGPPHC 1205 (20 November 2024). Nyawo v Road Accident Fund (11267/2022). Mabaso v Road Accident Fund (35840/2021). S.S.N. obo N.M. and Another v Road Accident Fund (34316/2020) [2025] ZAGPPHC 615 (17 June 2025). [2] Camps Bay Ratepayers' and Residents' Association & another v Harrison & another 2011(2) BCLR 121 (CC) par 28 [3] Camps Bay (n 1 above) [4] Ex parte Minister of Safety and Security and Others: in re S v Walters and Another [2002] ZACC 6 ; 2002 (4) SA 613 (CC) paras 57, 59 & 61; Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) paras 26 - 30. [5] Camps Bay (n1 above). Ex parte: Sheriff Bloemfontein West (1889/2024) [2024] ZAFSHC 127 (1 July 2024) par 24 &33 [6] 1955 (4) SA 120 (TPD) 122C-D. See also: Bonnet v Department of Agricultural Credit and Land Tenure 1974 (3) SA 737 (TPD) at 743A. [7] Seronica Nathram (n 1 above) [8] Groot Boom v National Prosecuting Authority the Constitutional Court [2014] 1 BCLR 65 (CC) par 21 [9] Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654C-F. [10] Szedlacsek v Szedlacsek, Van der Walt v Van der Walt and Warner v Warner 2000 (4) SA 147 (E) at 149F-G. Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at para 6. Myeni v Organisation Undoing Tax Abuse NPC and Another 2021 (1) SA 361 (GP) at para 45. Standard Bank of South Africa Ltd v Saunderson and Others 2006 (2) SA 264 (SCA). Absa Bank Ltd v The Farm Klippan 490 CC 2000 (2) SA 211 (W) at 214J-215A. [11] Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Others 1979 (2) SA 457 (W) 462H-463B [12] Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 278F-G. [13] Beinash v Wixley [1997] ZASCA 32 ; 1997 (3) SA 721 (SCA) at 734D-F. sino noindex make_database footer start