Ryno v Road Accident Fund (2020/19852) [2025] ZAGPJHC 516 (27 May 2025)

 

GOODENOUGH,
AJ

 

Order

1. 
Paragraph 1 of the Notice of Motion
is dismissed.

 

2. 
Each party is to pay their own costs.

 

3. 
By no later than 30 July 2025, the
parties are to participate in mediation.

3.1. 
In this regard the parties are to
comply with the provisions of the Directive
Introducing Mandatory Mediation in the Gauteng Division and
the Mediation Protocol Applicable
in the Gauteng Division of the High Court (April 2025)

 

Summary

 

4. 
The
Applicant in his notice of motion sought an order compel the
Respondent to attend a pretrial conference alternatively
to
complete and sign the Applicant’s draft pretrial minute
(“the application to compel”) [1]

 

5. 
On the morning of 8 May 2025, the
date of the hearing of this application, the Respondent did
complete and sign the Applicant’s
draft pre-trial minute in
compliance with prayer 1 of the Notice of Motion. 

 

6. 
Both parties were in my view,
somewhat at fault for the fact that a pre-trial conference has not
taken place and that the
Respondent only completed and signed the
Applicant’s pre-trial minute on the date of the hearing.

 

7. 
I decline to order the holding of a
pre-trial conference and instead I order the parties to
participate in mediation.

 

Common
Cause Facts/ Facts Which Appear from CaseLines Documents

 

8. 
In the action, liability is conceded,
and all heads of damages have been resolved save for general
damages.

 

Service
Of Rule 37 Notice and Related Documents

 

9. 
On
26 February 2025 the Applicant’s attorney (emanating from
the email address of Mr Jannie Louw of the Applicant’s

attorneys namely j[….]a)
sent an email[2] 
to Mr M.Khan, who was the person at the State Attorney’s
office who had all along been dealing with the Applicant’s

action. Mr Khan’s email address was M[…].

 

10. 
That
email address – namely  M[…]
– which the Applicant used for delivery of the Rule 37 notice and
draft pre-trial minutes and for all correspondence to the
RAF /
State Attorneys by the Applicants attorneys, was the same  email
address that Respondent had at the outset of
the action
proceedings provided to the Applicant in its  notice of
intention to defend[3]
. The Applicant additionally sent that email to j[…][4]
which is the Respondent’s  designated e-mail address
for service of processes as per the practice directive.

 

11. Attached
to that email of 26 February 2025 were:

11.1. 
the
Applicant’s Rule 37(2) notice calling for a pretrial
conference to be held on 3 March 2025[5],
and

11.2. 
the
Applicant’s draft pre-trial agenda[6]
for a pretrial conference which the Applicant proposed should be
held on 3 March 2025[7]
and

11.3. 
a
letter[8]
requesting that if the date of 3 March 2025 was inconvenient to
the Respondent then Respondent should provide an alternative

date.   

 

12. 
The
following additional recipients were  included in the
Applicant’s  email of 26 February 2025, namely two

other officers of the Respondent whose email addresses were 
l[…]
and e[…]

 

13. 
There was no response at all from the
Respondent or the State Attorney to that email or any of its email
attachments until
10 March 2025.

 

Communications
On 10 March 2025

 

14. 
On
10 March 2025, the Applicant’s attorney again emailed a
letter[9]
to Mr M. Khan’s email address M[…]
recording that no RAF person attended the pre-trial conference on
3 March 2025.   In this letter, Applicant gave
the
Respondent further time until 12 March 2025 to complete the draft
pretrial minute and stated that, failing this, the
Applicant would
apply for an order compelling Respondent to convene a pretrial
conference[10].

 

15. 
On
that same day the Applicant’s attorney (again emanating from
the email address of Mr Jannie Louw j[…]))[11]
sent an email [12]
to the same email recipients as per the 26 February 2025 email,
chasing up a response to the 26 February 2025 documents.

 

16. 
I
find that one of the officers of the Respondent itself must
somehow have become aware of those emails from the Applicant’s

offices that had been sent to Mr. M Khan’s email address,
notwithstanding that Mr M.Khan had long since resigned. I
base
that finding on the fact that, later that same day, at 2:25 pm, 
the Respondent itself sent an email [13]
from j[…]
to Ms Ameersingh and to the Applicant attorney’s Mr Jannie
Louw, asking Mr Louw to furnish the draft pretrial minute
to Ms
Ameersingh, who was to attend to the matter.

 

17. 
Later
on that same day, the State Attorney per Ms Ameersingh, sent an
email[14]
to the Applicant’s attorney (to Mr Jannie Louw’s email
address j[…]))
requesting a copy of the Applicant’s draft pretrial minute,
but failing to nominate a time and date for a pretrial
conference
as had been requested.

 

18. 
I accept that the aforementioned
emails of 10 March 2025 represent the first intimation that Ms
Ameersingh personally had
received that the Respondent or the
State Attorney had now put her in charge of the matter.

 

19. 
It is formally agreed that the
Applicant’s attorney did not respond to Ms Ameersingh’s
email request.

 

20. 
The
10-March-2025 email  from the email address j[…]
from the Respondent was similarly the first intimation that the
Applicant’s attorney was given of the fact that it
was now
Ms Ameersingh and no longer Mr M Khan who was dealing with the
matter at the State Attorney’s office. It was
formally
agreed at the hearing that 10 March 2025 was the first time that
Respondent informed Applicant’s attorney
that Muzafar Khan
was no longer dealing with the matter. 

 

Service
of the Application to Compel

 

21. 
On
11 April 2025, the Applicant physically served on the Respondent
(but not on the State Attorney ) the Applicant’s
application
to compel[15].  

 

22. 
Paragraph 1 of the Notice of Motion
reads as follows:

 

“1.That
the Respondent be ordered to complete and sign the Applicant’s
pretrial minute within 5(five) days of the date
of this order,
alternatively to nominate a date and time within 5(five) days of
the date of this order on which the Respondent
will be available
for a formal pre-trial teleconference”

 

23. 
It
is evident from the contents of Ms Ameersingh’s subsequent
emails [16]
sent in the early morning of the date of hearing on 8 May 2025
that Ms. Ameersingh did not become personally aware before
the
early morning of 8 May 2025 that the application to compel had
been served on the Respondent on 11 April 2025.

 

Further
Request by Ms Ameersingh for a Copy of The Draft Pre-trial Minute

 

24. 
On
30 April 2025, Ms Ameersingh, still unaware that the application
to compel had been served, again sent to the Applicant’s

 attorney (at email address j[…])
an email requesting the draft pre-trial minute. [17]

 

25. 
There was also no response from the
Applicant’s attorney to that request.

 

Events
on 8 May 2025 – The Date of The Hearing

 

26. 
On
8 May 2025 – being the set-down date of the hearing – at
7h18 am – Ms Ameersingh again emailed Mr Jannie Louw of
the
Applicant’s attorney, yet again requesting a copy of the
draft pre-trial minute[18]

 

27. 
In
response thereto, Mr Louw for the first time responded to Ms.
Ameersingh’s requests by emailing the draft pretrial
minute
to Ms Ameersingh at 8h15am[19]
and Ms Ameersingh then that same morning completed and signed the
minute and emailed it to Mr Louw and uploaded it to Case
Lines
before the matter was argued later that day.[20]

 

My
Reasons Underlying the Dismissal of Prayer 1 of the Application

 

28. 
As at the time that the application
to compel was argued, the Respondent had already, on the morning
of 8 May 2025, just completed
and signed the Applicant’s
draft pre-trial minute in compliance with prayer 1 of the Notice
of Motion.   

29. 
The
Applicant in his notice of motion sought an order compel the
Respondent to attend a pretrial conference alternatively
to
complete and sign the Applicant’s draft pre-trial minute
[21]

 

30. 
Having delivered the completed and
signed pre-trial minute, there was no basis in which I could grant
an order directing the
Respondent to attend a pre-trial
conference, because that relief had only been sought in the
alternative to an order to complete
and sign the pretrial minute.

 

31. 
For that reason, I do not grant an
order in terms of prayer 1.

 

Considerations
Relevant to My Ordering the Parties to go to Mediation

 

32. 
Applicant in his heads states:
”From the pre-trial minute,
as sent by the Respondent, it appears that the minute (or
questionnaire) was responded to as a
matter of formalistic
compliance in order to attempt a forced removal of the matter from
the roll….This formalistic
response appears from the
blanket denial of most of the pre-trial questions and, perhaps
most glaringly, when one considers
the answer at para 6.7 of the
document (Case lines 0-7) where the Respondent answers: “Defendant
enquires whether the
matter was referred to the HPCSA and whether
a finding was made in this regard.”

 

33. 
“The
above response appears, despite what has been stated in the
introduction of the draft minute (Case lines 0-2) where it
is
stated: “The
HPCSA indicated that the Plaintiffs injuries are serious and thus
has a claim in regards of General Damages. The Plaintiff
is ready
to proceed on the determination of the remaining quantum.”

 

34. 
The Applicant’s counsel
submitted that “this type of
response smacks of an abuse of process.”.
I do not agree with that submission.  The Applicant must
accept some of the responsibility for the fact that the pretrial

minute was hurriedly completed and signed on the very morning of
the hearing.

 

35. 
The Applicant’s counsel
submitted that: “Even in
light of the Respondents signed pre-trial minute, it appears that
there is still a need for a pre-trial to be held
as the
Respondents response – as contained in the draft pre-trial
minute – does not assist in limiting the issues
or of
reaching settlement (as is required by the parties in terms of
Rule 37 and the various practice directives of the above
court)”
and that “the
need for an order for a formal pre-trial to be held (as was
requested in the letter of 25 February 2025 (Case lines 4-13)

therefore persists.”

 

36.  
I agree with the Applicant’s
counsel that the pre-trial minute so hastily completed and signed
by Ms Ameersingh leaves
something to be desired and that there is
scope for the issues to be narrowed further.

 

37. 
However, in my view, less is
likely to be achieved by the holding of a pre-trial conference
than by the holding of a mediation.

 

38. 
For that reason (coupled with the
reason that I am not at liberty to order the Respondent to attend
a pre-trial conference),
I am instead ordering the parties to hold
a mediation.