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# South Africa: South Gauteng High Court, Johannesburg [![Support
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Africa: South Gauteng High Court, Johannesburg](../) >> [2025](./) >> **[2025]
ZAGPJHC 18**

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##  Makhubela v Road Accident Fund (2011/30124) [2025] ZAGPJHC 18 (16 January
2025)

**Download original files** [![](/images/pdficon_small.gif)PDF format](/za/cases/ZAGPJHC/2025/18.pdf) [![](/images/word_logo.gif)RTF format](/za/cases/ZAGPJHC/2025/18.rtf) |   
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**IN THE HIGH COURT OF SOUTH AFRICA**

**GAUTENG LOCAL DIVISION, JOHANNESBURG**



Case number: 2011/30124



(1) REPORTABLE:  NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED:

16 January 2025

  

**In the matter between:**



MAKHUBELA TSUNDUKANI ALICIA |  Plaintiff   
  
---|---  
and |    
  
  
ROAD ACCIDENT FUND |  Defendant  
  
  

**JUDGMENT**



**WEIDEMAN AJ**



[1]  Counsel's Heads of Argument suggested that this would be a fairly
straight forward matter, albeit that the incident from which the original
claim arose occurred as far back as 4 October 2009.



[2]  Counsel recorded the following in paragraph 2 of his Heads of Argument:

"_The outstanding issues are merits and quantum which have not been finalised.
The Plaintiff is ready to proceed in terms of merits and quantum. "_



[3]  The following appeared in paragraph 1.4 of the Heads of Argument:

"_1.4 The order we seek is as follows:_

*    _Merits 100% in favour of the Plaintiff._

*    _The claim for General Damages is R1  800 000._

*    _The claim for loss of earnings is R2  056 855.00._

*    _Medical undertaking for his future medical expenses to be furnished within 30 days._

*    _The Defendant is to pay the cost on a party and party scale. "_



[4]  Adams J handed down an Order on 16 July 2024, striking out defendant's
defence.



[5]  It was thus anticipated that the matter would proceed unopposed and
without participation by the defendant. At the commencement of the proceedings
a legal representative of the defendant drew my attention to the fact that the
matter was more complicated than what was presented in the Heads of Argument.
I was referred to a series of documents which I would not have considered in
the ordinary course as they are not referred to in the Practice Note and Heads
of Argument.



[6]  The documents referred to above revealed the following facts not
mentioned in the Practice Note or counsel's Heads of Argument:

6.1 On the 5th September 2014 Wright J handed down the following Order
(CaseLines 028-83):

6.1.1 "_By agreement between the parties, the following order is granted:_

 _6.1.1.1 The defendant shall furnish the plaintiff with an undertaking in
terms of [Section
17](http://www.saflii.org/za/legis/num_act/rafa1996147/index.html#s17) (4) (a)
of the [Road Accident Fund Act, No 56of
1996](http://www.saflii.org/za/legis/num_act/rafa1996147/), for 100% of the
costs of the plaintiff's future accommodation in a hospital …_

 _6.1.1.2 The defendant shall make payment of the plaintiff 's agreed or
taxed High Court costs of the action to date of this order, such costs to
include:_

      _6.1.1.2.1 Costs of senior junior counsel._

_6.1.1.2.2 The qualifying and reservation fees, if any, of the following
experts, Dr Read, Ms Roos and Dr Ormond-Brown._

_6.1.1.3 The defendant is ordered to pay the costs in respect of the curatrix
ad litem._

      _6.1.1.4 ….."_

6.2 Correspondence between the original attorneys, who obtained the order from
Wright J and the plaintiff's current attorneys of record, at CaseLines 028-88,
suggest that the plaintiff's current attorneys were advised that the matter
had been settled in its totality. The correspondence reads as follows:

 "_Judge Wright made the draft order proposed by the curator ad litem an order
of court after having had signed (sic) of her report and recommendations. No
aspect of quantum was postponed and the matter was therefore settled in full
and final settlement. The court is in possession of the curator 's signed
report and same can be retrieved from the court file if you require a signed
copy of the curator's report."_

6.3 The report of the _curatrix ad litem_ is at CaseLines 028-76. In it she
considered the then available medico-legal reports and recommended that the
matter be disposed of by acceptance of the defendant's offer of settlement of
an undertaking only plus costs.

6.4 Mohlala Attorneys, who represented the defendant in 2013, submitted a
template letter to the defendant on 1 October 2013, CaseLines 029-38. In it
and under the heading "Outcome and Liability" they recorded that the matter
proceeded to trial on the 1st October 2013, that the matter was settled and
that the settlement was made an order of court. They further indicated that
the Road Accident Fund was liable to compensate the claimant for 100% of the
future medical expenses, that no capital has to be paid and that the plaintiff
is entitled to party and party costs on the High Court scale.

6.5 In his second supplementary affidavit, albeit that it is not clear to
which application the affidavit relates, plaintiff's attorney correctly
pointed out that the date of the Mohlala letter was the same as the date of
the appointment of the _curatrix ad litem, but_ long before Wright J's Order
confirming the settlement of the matter. This calls for an explanation, which
was not proffered.



[7]  What is of more concern is the plaintiff's Rule 38(2) application, which
application was granted at the commencement of the hearing. This application
makes provision for the plaintiff's affidavit, which does not contain a
version, a portion of the OAR and the plaintiff's original hospital records.
It further lists the reports of 6 experts, excluding the 3 experts referred to
in the Order of Wright J.

None of the documents referred to above and relating to the earlier
proceedings formed part of the application.



[8]  To summarise: Neither the Practice Note, nor the [Rule
38](http://www.saflii.org/za/legis/num_act/rafa1996147/index.html#s38)
application nor counsel's Heads of Argument contain any reference to the
earlier proceedings. In fact, whereas Wright J's Order contains a confirmation
that liability had been disposed of on a basis that the Plaintiff is entitled
to 100% of her damages (this follows from the fact that the Undertaking is for
a 100%) and that an undertaking is to be awarded, counsel, in his Heads of
Argument, records that liability is still in dispute and a significant portion
of his Heads purports to deal with liability. In addition, counsel maintained
that the claim included a request for an undertaking in respect of future
medical expenses whereas this head of damage had also been settled in terms of
the Order.



[9]  Conclusion: Based on the documentation that is available on CaseLines it
is clear to me that the attorney who originally dealt with the matter, the
_curatrix ad litem_ as well as the attorney who acted on behalf of the Road
Accident Fund were of the opinion that the matter had been finally settled on
the basis of an offer of settlement which the _curatrix_ considered and
recommended to the court should be accepted. The Order of Wright J of 5
September 2014 confirms this settlement. To me it is clear that the matter was
finalised in its totality on 5 September 2014 and that the subsequent
proceedings by the current attorneys had been ill advised. The conduct of the
plaintiff's attorney and counsel, by not taking the court into their
confidence from the outset, warrants further scrutiny.



My order is therefore as follows:

1.  The claim under case number 2011/30124 was settled in its totality on 5 September 2014.

2.  The application for default  judgment is dismissed as it relates to a claim that had already been extinguished by way of settlement.

3.  The Registrar is to forward a copy of this judgment to the Legal Practice Council to consider whether the manner in which the attorney and counsel engaged with the court meets the required standard of conduct expected of officers of the court.



**WEIDEMAN AJ**

**ACTING JUDGE OF THE HIGH COURT**

**GAUTENG DIVISION, JOHANNESBURG**



This judgment was handed down electronically by circulation to the parties'
representatives by email, by being uploaded to _CaseLines_. The date and time
for hand-down is deemed to be 16 January 2025.

Heard on: |  7 November 2024   
  
---|---  
Delivered on:  |  16 January 2025  
  
  

  

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