Nathram v Road Accident Fund (GP) (unreported case no 46876/2020, 26-4-2024) (Davis J)The Road Accident Fund (RAF) has over the years proved not to be collegial and an easy litigant. The RAF is a statutory body established to compensate victims of motor vehicle accidents who have sustained serious injuries. In a scathing judgment delivered on 6 February 2024, Monene AJ noted that the RAF framework should in essence operate as an administrative process wherein claimants can easily lodge claims and timeously receive due compensation (Ramulongo v Road Accident Fund (LP) (unreported case no 46/2017, 6-2-2024) (Monene AJ)). Unfortunately, this is not the case. The case under discussion is a perfect illustration that legal intervention remains fundamental to ensure the proper functioning of the RAF, a view that evidently does not find resonance with the RAF’s Chief Executive Officer, Mr Collins Letsoalo.
The RAF has notoriously followed an abusive practice wherein it ignores legal action instituted against it and only seeks to act on the eve of the set down date, particularly on matters wherein plaintiffs seek judgment by default. This practice is couched under the guise/auspices of r 19(5) of the Uniform Rules of Court (the Rules). Rule 19(5) enables a party against whom summons have been issued and served, to deliver a notice of intention to defend outside the dies prescribed in r 19(1), provided that the wasted costs are tendered to the plaintiff.
At first glance, it appears that r 19 provides for and also undermines its own purpose. Rule 19(1) imposes a dies for compliance. Whereas r 19(5) provides an escape route against compliance with r 19(1). One cannot be faulted for harbouring such sentiments. When drafting a summons, the plaintiff is in terms of the Rules required to succinctly inform the defendant of the statutory compliance periods and the repercussion for failure to comply therewith. The proviso in r 19(5) seems to provide delinquent parties with a way out of compliance by merely tendering costs. The picture painted here is not a pleasant one – comply or pay for non-compliance and get a second bite of the cherry. The point made here is that r 19(5) may enable financially-well off litigants to disregard compliance with the Rules on the strength that they may tender costs at any stage of the litigation and still get an opportunity to participate. Indeed, this might be sufficient to sooth a litigant whose only query is wasted costs, but it falls short of the rigour needed to comply with the Rules and required to maintain the authority of our judicial system and the proper functioning of the courts. More concerning is when this conduct is perpetuated by state institutions, using public funds.
The RAF in this matter was aware of the plaintiff’s claim, as it was duly lodged on 12 September 2019. RAF tendered an offer on the merits on 4 March 2020, which the plaintiff duly accepted. Since then, the RAF took no further steps in settling the claim thus, necessitating the plaintiff to issue summons on 17 September 2020. On receipt of the summons, the RAF was in terms of r 19(1) required to serve its notice of intention to defend within ten days. It failed to do so and took no steps to ensure compliance despite numerous attempts from the plaintiff to solicit compliance.
The plaintiff proceeded to apply for judgment by default, which was set down for 25 January 2024. On the 24 January 2024, RAF served its notice of intention to defend. This was approximately four years late. Technically, r 19(5) enables the RAF to defend the matter because default judgment was not yet granted; and the RAF tendered costs to the plaintiff. Rule 19(5) does not prescribe any maximum period for its reliance.
Unimpressed with RAF’s conduct, the plaintiff made a substantive application and sought to have the court declare the notice to defend an irregular step in terms of r 30. It further sought to have the aforesaid conduct declared an abuse of process. The RAF defended the application and deposed an affidavit by a designated senior case handler. For an institution that could not complete and serve a standard notice in four years, one should commend the RAF for swiftly defending the plaintiff’s application. The problem, however, was the content of such a defense/affidavit. The court (Davis J) was unimpressed with the grounds forwarded by the RAF in justification of the late delivery of the notice to defend.
RAF blamed the non-compliance on various grounds including the administrative hurdles flowing from the dissolution of the previous panel of attorneys that handled matters on behalf of the Fund, COVID-19 pandemic and internal administrative challenges. The court was not persuaded. The court noted particularly that the RAF did not substantively oppose the r 30 application nor disclose any intention to genuinely have the matter proceed to trial. No indication had been given as to what bona fide defence the RAF wished to plead, let alone pursue at a trial and thus it sought to defend the matter with an ulterior motive.
In assessing whether the elements for abuse of court process have been established, the court relied on various court decisions including Beinash v Wixley 1997 (3) SA 721 (SCA), wherein the court held that an abuse of court process occurs ‘where the procedures permitted by the Rules of Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective’ or ‘when … an attempt [is] made to use for ulterior purposes machinery devised for the better administration of justice’ (De Klerk v Scheepers and Others 2005 (5) SA 244 (T)); and Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W), the court defined abuse of court process as when ‘its procedure is used by a litigant for a purpose for which it was not intended or designed, to the prejudice or potential prejudice of the other party to the proceedings’.
The RAF in the current matter sought to defend the plaintiff’s action way beyond the dies prescribed in r 19(1) without tendering sound reasons. Neither did it outline any substantive response against the plaintiff’s reliance on r 30.
The court decided in favour of the applicant – declared the notice of intention to defend an abuse of court process and consequently set it aside. The plaintiff proceeded with the default judgment and managed to prove the quantum of R 3 699 870 (loss of income) and R 183 356.18 (medical expenses).
The Rules and procedures should only be utilised for their intended purpose. The courts should be slow in allowing litigants to misuse the Rules that were drafted for genuine purposes, simply because they can tender costs. Rule 19(5) should not be construed as an enabler for non-compliance with r 19(1), rather it should be understood to grant a party that could not timeously defend a matter, on sound reasons, to do so before default judgment is granted. It is unfortunate that r 19(5) is currently being abused. This invites criticism, questioning whether it is desirable to maintain r 19(5) in the rules against the danger that it weakens the authority and proper
functioning of the judicial system. Further, r 19(5), if used in the manner sought by the RAF contravenes s 34 of the Constitution by not encouraging the effective and timeous resolution of disputes, a right which the plaintiff is entitled to enjoy.
The plaintiff, having lodged her claim on 12 September 2019 waited for legal recourse until 25 January 2024. As if that delay was not enough, the RAF, by defending the matter on the 24 January 2024, sought to further delay or alternatively deny the plaintiff recourse merely because it could tender costs in terms of r 19(5) and have the matter removed from the roll and thus allow it to use its defence.
The plaintiff had a choice between accepting the costs tendered, as most litigants customarily do, or seek another recourse. The plaintiff chose the latter and couched his recourse under the auspices of r 30. The plaintiff successfully argued that the RAF’s notice to defend be set aside as an irregular step and further that it constitutes an abuse of court process. This is constructive relief which proved effective. This judgment is, therefore, a warning for other delinquent litigants like the RAF, to respect and duly comply with the Rules. Litigants who ignore action(s) brought against them and only seek to deliver their intention to defend outside the prescribed period run the risk of having such a notice, as we have seen the current case, declared an abuse of court process. This may also attract a punitive costs order.
Wandile Masango LLB LLM (Mercantile Law) (UP) is a candidate legal practitioner at Rantho and Associates Inc in Pretoria, political and legal activist (NADEL Tshwane) and co-founder of Organisation for Progressive Legal Practitioners.
This article was first published in De Rebus in 2024 (October) DR 36.
