Story audio is generated using AI
The Road Accident Fund (RAF) has failed to have a February 2024 Johannesburg high court order awarding more than R5.5m for loss of earnings to an accident victim rescinded. The same court, in its ruling passed on Wednesday by acting judge Prince Verveen, found that the RAF was represented when the original order was granted and had failed to provide a sufficient explanation for its subsequent delay in filing its rescission application. The judgment is significant for the RAF because it reinforces the limits of its ability to reopen compensation orders after judgment, in particular if the fund was represented at the original hearing but failed to properly advance its case. The (RAF) cannot convert its own election not to advance submissions into an absence for purposes of Rule 42(1)(a).— Acting judge Prince VerveenThe fund had applied under Uniform Rule 42 and the common law to rescind the order granted by the court on February 16 2024 that directed the RAF to pay R5.5m for the claimant’s loss of earnings. The RAF was served with the judgment by February 25 2024 and it served the rescission application on November 28 2024.Verveen said rule 42(1)(a) permits rescission only of an order erroneously sought or granted in the absence of a party affected by it, and the RAF could not satisfy the absence requirement. “Its representative, Ms Nziyanziya, appeared for it at the hearing. When invited to address the court, she recorded that the RAF was barred and that she had no instructions on general damages or loss of earnings,” the judge said.Verveen also said in the current proceedings that the founding affidavit by RAF expressly stated that its representative was not present in court. “The RAF has now conceded that the allegation in its founding affidavit that it was absent when the order was granted is incorrect. That concession is decisive of its reliance on rule 42(1)(a).” Verveen said the transcript showed that the RAF was represented, was afforded an opportunity to address the court and was not precluded from participating. “The RAF cannot convert its own election not to advance submissions into an absence for purposes of rule 42(1)(a).” Verveen said the February 2024 order was not erroneously sought or granted. “The court heard the [claimant’s] submissions, interrogated the actuarial assumptions and contingencies and independently determined the amount eventually awarded. “The later allegation that the minor progressed more favourably at school than the experts had predicted is an attempted challenge to the merits of the assessment. It does not disclose a procedural error which rendered the order rescindable under rule 42.” The judge also said the explanation for the about nine-month delay in bringing the rescission application was inadequate. The RAF said an internal memorandum had to be prepared and that the matter was later allocated to the state attorney after settlement efforts failed. “It gives no sufficient account of the material periods of inactivity, nor does it identify the dates, steps, or persons responsible. The explanation is materially based on information supplied by another official, without confirmatory evidence,” Verveen said. He said the RAF had also not demonstrated a defence with prospects of success. The RAF accepted that the claimant was entitled to compensation for loss of earnings but challenged the amount on the basis that the minor passed Grade 11 and that the experts’ projections were therefore wrong. Verveen said that contention did not engage with the court’s own evaluation of the evidence and contingencies. Verveen said the application was essentially asking the court to reconsider the amount awarded based on incomplete and inadmissible evidence. “Rescission is not an appeal. The RAF has not made out a case under rule 42 or at common law.” TimesLIVE
