Johester and Others v Road Accident Fund (2020/23383) [2024] ZAGPJHC 574 (12 June 2024)

Johester and Others v Road Accident Fund (2020/23383) [2024] ZAGPJHC 574 (12 June 2024)

The Court held that a party cannot be compelled to make an election to call expert witnesses or to comply with an undertaking in a pre-trial minute to call experts if it elects not to do so. Rule 36 does not impose a positive obligation to appoint experts, and non-compliance with such undertakings does not constitute non-compliance with the Rules justifying a striking out order under Rule 30A. The striking out of a defence is a drastic remedy and is only competent where expressly provided for in the Rules, such as Rule 21(4) and Rule 35(7). In the absence of such provision, less onerous remedies are available, such as excluding future expert reports or precluding the filing of heads of...

Citation
[2024] ZAGPJHC 574
Parties
Plaintiff: Beukes Emmarentia Johester; Plaintiff: Mbongo Samuel Mfahelo; Plaintiff: Njiyela Phumeza Cleopatra; Plaintiff: Shawa Winston; Plaintiff: Mpila Matthew S Thabani; Plaintiff: Mahlatsi Thekiso Simon; Plaintiff: Mohale Tsakane Pertunia; Plaintiff: Lee Minyoung; Plaintiff: Nsele Lulu Purity; Respondent: Road Accident Fund; Respondent: MEC for Health Gauteng
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 June 2024
Case Number
2020/23383
Procedural Posture
Special Interlocutory Application / Application to Compel And/or Strike Out Defence
Outcome
Applications to compel the Road Accident Fund to make an election regarding expert witnesses or to strike out its defence for failing to do so are dismissed, except where specific prayers are granted as set out in the orders.
Judges
B. Ford
Legal Topics
Striking Out of Defence, Rule 30a Application, Expert Evidence, Pre Trial Undertakings, Raf4 Form Compliance
Civil Procedure Striking Out of Defence Rule 30a Application Expert Evidence Pre Trial Undertakings Raf4 Form Compliance

Case Brief

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Parties

Beukes Emmarentia Johester

Plaintiff

Mbongo Samuel Mfahelo

Plaintiff

Njiyela Phumeza Cleopatra

Plaintiff

Shawa Winston

Plaintiff

Mpila Matthew S Thabani

Plaintiff

Mahlatsi Thekiso Simon

Plaintiff

Mohale Tsakane Pertunia

Plaintiff

Lee Minyoung

Plaintiff

Nsele Lulu Purity

Plaintiff

Road Accident Fund

Respondent

MEC for Health Gauteng

Respondent

Procedural Posture

Special Interlocutory Application / Application to Compel And/or Strike Out Defence

Legal Issues

  1. 1 Whether a party can be compelled to make an election to call expert witnesses or comply with a pre-trial undertaking to do so.
  2. 2 Whether non-compliance with a pre-trial undertaking to call experts or revert on such election justifies striking out a defence under Rule 30A.
  3. 3 Whether failure by the Road Accident Fund to make an election regarding the RAF4 form can result in its defence being struck out.

Ratio Decidendi

The Court held that a party cannot be compelled to make an election to call expert witnesses or to comply with an undertaking in a pre-trial minute to call experts if it elects not to do so. Rule 36 does not impose a positive obligation to appoint experts, and non-compliance with such undertakings does not constitute non-compliance with the Rules justifying a striking out order under Rule 30A. The striking out of a defence is a drastic remedy and is only competent where expressly provided for in the Rules, such as Rule 21(4) and Rule 35(7). In the absence of such provision, less onerous remedies are available, such as excluding future expert reports or precluding the filing of heads of...

Court Disposition

Applications to compel the Road Accident Fund to make an election regarding expert witnesses or to strike out its defence for failing to do so are dismissed, except where specific prayers are granted as set out in the orders.

Orders

  • In Case Number 2020/23383, the application is dismissed with no order as to costs.
  • In Case Number 2022/001504, the application is dismissed with no order as to costs.