Van der Westhuizen v Road Accident Fund (16743/2015) [2019] ZAGPJHC 163 (24 May 2019)

Van der Westhuizen v Road Accident Fund (16743/2015) [2019] ZAGPJHC 163 (24 May 2019)

The court found that the defendant had not taken a decision on the plaintiff's claim for general damages as required by law. According to the authority in Mphala v RAF, the court may not entertain such a claim in the absence of a decision by the defendant. The proper remedy for the plaintiff is to apply to court to compel the defendant to make a decision. The order granted on 22 May 2019 was made in error and as a result of a common mistake between the parties. Therefore, it is appropriate to rescind the order under Rule 42(1).

Citation
[2019] ZAGPJHC 163
Parties
Plaintiff: Martinique Van der Westhuizen; Defendant: Road Accident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 May 2019
Case Number
16743/2015
Procedural Posture
Civil Trial / Rescission of Order
Outcome
Order of 22 May 2019 rescinded.
Judges
Wright
Legal Topics
Rescission of Judgment, General Damages, Raf 4 Form, Court Mandate, Rule 42 Application
Civil Procedure Delict Rescission of Judgment General Damages Raf 4 Form Court Mandate Rule 42 Application

Case Brief

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Parties

Martinique Van der Westhuizen

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Rescission of Order

Legal Issues

  1. 1 Whether the court may entertain a claim for general damages where the defendant has not taken a decision on the RAF 4 form.
  2. 2 Whether the order granted on 22 May 2019 should be rescinded under Rule 42(1).

Ratio Decidendi

The court found that the defendant had not taken a decision on the plaintiff's claim for general damages as required by law. According to the authority in Mphala v RAF, the court may not entertain such a claim in the absence of a decision by the defendant. The proper remedy for the plaintiff is to apply to court to compel the defendant to make a decision. The order granted on 22 May 2019 was made in error and as a result of a common mistake between the parties. Therefore, it is appropriate to rescind the order under Rule 42(1).

Court Disposition

Order of 22 May 2019 rescinded.

Orders

  • The order of 22 May 2019 is rescinded.