Phangwa v Road Accident Fund (27752/2022) [2022] ZAGPPHC 998 (16 November 2022)

Phangwa v Road Accident Fund (27752/2022) [2022] ZAGPPHC 998 (16 November 2022)

Default judgment cannot be granted where the defendant has served a notice of intention to defend before judgment is granted, even if the notice was late. The plaintiff's attorney failed in his duty of full disclosure to the court by not drawing attention to the notice of intention to defend at the hearing. Both parties failed to comply fully with procedural and ethical obligations, but the defendant's conduct does not justify granting default judgment. The appropriate order is to remove the application for default judgment from the roll and award costs to the plaintiff up to the date the notice of intention to defend was served.

Citation
[2022] ZAGPPHC 998
Parties
Plaintiff: Eunice Nelisiwe Phangwa; Defendant: Road Accident Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 November 2022
Case Number
27752/2022
Procedural Posture
Default Judgment Application / Application for Default Judgment; Hearing on 4 October 2022; Further Submissions Received 14 November 2022; Judgment Delivered 16 November 2022.
Outcome
Application for default judgment removed from the roll; costs awarded to the plaintiff up to and including 29 September 2022.
Judges
Khashane La M. Manamela
Legal Topics
Road Accident Fund Act, Default Judgment, Notice of Intention to Defend, Practice Directives, Professional Conduct
Civil Procedure Delict Road Accident Fund Act Default Judgment Notice of Intention to Defend Practice Directives Professional Conduct

Case Brief

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Parties

Eunice Nelisiwe Phangwa

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Default Judgment Application / Application for Default Judgment; Hearing on 4 October 2022; Further Submissions Received 14 November 2022; Judgment Delivered 16 November 2022.

Legal Issues

  1. 1 Whether default judgment can be granted where the defendant served a notice of intention to defend after the prescribed period but before judgment was granted.
  2. 2 Whether the conduct of the plaintiff's attorney in failing to disclose the notice of intention to defend to the court constitutes a breach of professional duty.
  3. 3 What costs order is appropriate in circumstances where both parties have failed to comply fully with procedural and ethical obligations.

Ratio Decidendi

Default judgment cannot be granted where the defendant has served a notice of intention to defend before judgment is granted, even if the notice was late. The plaintiff's attorney failed in his duty of full disclosure to the court by not drawing attention to the notice of intention to defend at the hearing. Both parties failed to comply fully with procedural and ethical obligations, but the defendant's conduct does not justify granting default judgment. The appropriate order is to remove the application for default judgment from the roll and award costs to the plaintiff up to the date the notice of intention to defend was served.

Court Disposition

Application for default judgment removed from the roll; costs awarded to the plaintiff up to and including 29 September 2022.

Orders

  • The application for default judgment is removed from the roll.
  • The defendant is liable for costs of the application for default judgment up to and including 29 September 2022.