Road Accident Fund v Applegate and Others (52500/2015) [2021] ZAGPPHC 345 (27 May 2021)

Road Accident Fund v Applegate and Others (52500/2015) [2021] ZAGPPHC 345 (27 May 2021)

The court found that the Road Accident Fund failed to provide any reasonable or acceptable explanation for its default in not filing an opposing affidavit to the Rule 34A application and for its delay of 28 months in bringing the rescission application. The defendant did not allege or prove fraud or justus error, nor did it establish a bona fide defence with prospects of success. The objections to the vouchers were general and provisional, lacking substantive detail. The court held that the order for interim payment was not erroneously granted within the meaning of Rule 42(1)(a), as the defendant was procedurally notified and failed to defend. The requirements for rescission at common law...

Citation
[2021] ZAGPPHC 345
Parties
Applicant: Road Accident Fund; Respondent: Olive Brendan Applegate; Respondent: Joanne Howard Swick; Respondent: The Deputy – Sheriff of Pretoria East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 May 2021
Case Number
52500/2015
Procedural Posture
Rescission Application / Judgment on Application for Rescission or Variation of Interim Payment Order
Outcome
Application for rescission of the order by Sardiwalla AJ on 7 August 2017 is dismissed.
Judges
JF Barnardt
Legal Topics
Rescission of Judgment, Rule 42 Uniform Rules, Interim Payment, Wilful Default, Condonation, Costs Award
Civil Procedure Rescission of Judgment Rule 42 Uniform Rules Interim Payment Wilful Default Condonation Costs Award

Case Brief

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Parties

Road Accident Fund

Applicant

Olive Brendan Applegate

Respondent

Joanne Howard Swick

Respondent

The Deputy – Sheriff of Pretoria East

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission or Variation of Interim Payment Order

Legal Issues

  1. 1 Whether the order for interim payment granted on 7 August 2017 was erroneously granted and subject to rescission under Rule 42(1)(a).
  2. 2 Whether the defendant established grounds for rescission at common law, including fraud or justus error.
  3. 3 Whether the defendant provided a reasonable and acceptable explanation for its default and delay in bringing the rescission application.

Ratio Decidendi

The court found that the Road Accident Fund failed to provide any reasonable or acceptable explanation for its default in not filing an opposing affidavit to the Rule 34A application and for its delay of 28 months in bringing the rescission application. The defendant did not allege or prove fraud or justus error, nor did it establish a bona fide defence with prospects of success. The objections to the vouchers were general and provisional, lacking substantive detail. The court held that the order for interim payment was not erroneously granted within the meaning of Rule 42(1)(a), as the defendant was procedurally notified and failed to defend. The requirements for rescission at common law...

Court Disposition

Application for rescission of the order by Sardiwalla AJ on 7 August 2017 is dismissed.

Orders

  • The application for rescission of the order by Sardiwalla AJ on 7 August 2017 is dismissed.
  • The applicant/defendant is ordered to pay the costs of the application.