Musejie Vennon Motswai v Road Accident Fund

The plaintiff instituted a claim against the Road Accident Fund (RAF) for injuries sustained in a motor vehicle collision in August 2008. His attorneys, Wim Krynauw Inc, pleaded that he suffered a fractured ankle, whereas hospital records indicated a soft tissue injury. On the day set down for trial, the matter was settled in chambers before Satchwell J on the basis of an undertaking under s 17(4)(a) of the Road Accident Fund Act, with costs. During informal discussions in chambers, the judge accused the plaintiff’s attorneys of fabricating the claim and committing fraud. Without holding a proper hearing or affording the attorneys an opportunity to respond in open court, the judge delivered a judgment making adverse findings of fraud and unethical conduct against the plaintiff’s attorney and others, referred them to professional bodies, and later made a punitive costs order preventing the attorneys from recovering fees. The attorney appealed to the Supreme Court of Appeal.

The appeal succeeded. Paragraph 1 of the high court’s order of 30 April 2013 was set aside. The RAF was ordered to furnish the plaintiff with an undertaking under s 17(4)(a) for 80% of future medical costs and to pay the plaintiff’s taxed costs on the magistrates’ court scale. It was recorded that the plaintiff was not personally liable for any costs and that his attorneys could not recover costs for the proceedings giving rise to the second judgment, the application for leave to appeal, or the appeal.

The case is significant for affirming procedural fairness and the audi alteram partem principle, particularly where courts consider making serious adverse findings against legal practitioners. It underscores that judges may not make findings of fraud or misconduct without a proper hearing based on evidence in open court, and cautions against reliance on informal chamber discussions. The judgment protects professional reputations and clarifies limits on judicial criticism in costs judgments.