Road Accident Fund v Rossouw (Application for Rescission) (9403/2022) [2024] ZAGPPHC 1235 (28 November 2024)

Road Accident Fund v Rossouw (Application for Rescission) (9403/2022) [2024] ZAGPPHC 1235 (28 November 2024)

The court found that the Fund was properly served with the application to compel and the subsequent orders, and its absence from the trial interlocutory court was not due to lack of notice or any bar to participation. The Fund did not provide any explanation for its default. Rule 42(1)(a) does not provide a ground for rescission where a party chooses not to participate despite being notified. Furthermore, the Fund was present and represented when the quantum was determined before Nyathi J, and deliberately chose not to participate except to raise a point in limine. The orders were not granted in the Fund's absence, and there was no basis for rescission or variation under Rule 42(1)(a)....

Citation
[2024] ZAGPPHC 1235
Parties
Applicant: Road Accident Fund; Respondent: Mignon Rossouw
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 November 2024
Case Number
9403/2022
Procedural Posture
Rescission Application / Application for Rescission and Variation of Prior Orders
Outcome
Application for variation and rescission dismissed with costs on Scale C.
Judges
E van der Schyff
Legal Topics
Rescission of Judgment, Rule 42 Application, Default Judgment, Variation of Order
Civil Procedure Rescission of Judgment Rule 42 Application Default Judgment Variation of Order

Case Brief

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Parties

Road Accident Fund

Applicant

Mignon Rossouw

Respondent

Procedural Posture

Rescission Application / Application for Rescission and Variation of Prior Orders

Legal Issues

  1. 1 Whether the order granted by Burger AJ on 25 August 2023 was granted in the absence of the Fund and thus susceptible to rescission under Rule 42(1)(a).
  2. 2 Whether the order granted by Nyathi J on 29 April 2024 was granted in the Fund's absence.
  3. 3 Whether the Fund is entitled to variation or rescission of the orders under Rule 42(1)(a).

Ratio Decidendi

The court found that the Fund was properly served with the application to compel and the subsequent orders, and its absence from the trial interlocutory court was not due to lack of notice or any bar to participation. The Fund did not provide any explanation for its default. Rule 42(1)(a) does not provide a ground for rescission where a party chooses not to participate despite being notified. Furthermore, the Fund was present and represented when the quantum was determined before Nyathi J, and deliberately chose not to participate except to raise a point in limine. The orders were not granted in the Fund's absence, and there was no basis for rescission or variation under Rule 42(1)(a)....

Court Disposition

Application for variation and rescission dismissed with costs on Scale C.

Orders

  • The variation- and rescission application is dismissed with costs on Scale C.