The Road Accident Fund and Others v Hlatshwayo and Others

The first and second respondents instituted separate delictual claims against the Road Accident Fund (RAF) arising from motor vehicle accidents. In both matters, the RAF failed to meaningfully participate in rule 37 pre‑trial conferences and rule 37A judicial case management processes. Shortly before the scheduled trial dates, the RAF settled (or partially settled) both claims. The Mpumalanga Division of the High Court refused to make the settlements orders of court and, concerned about the recurring practice of last‑minute settlements, the Judge President constituted a full court to conduct an inquiry into the wasted costs occasioned by the late settlements. Following the inquiry, the full court ordered the RAF’s Chief Executive Officer (CEO) and the RAF Board to pay the wasted costs and inquiry costs de boniis propriis (out of their own pockets). The RAF, CEO and Board appealed to the Supreme Court of Appeal.

The appeal was dismissed insofar as it related to the Road Accident Fund, but upheld in respect of the CEO and the RAF Board. The personal costs orders against the CEO and the Board were set aside. The High Court order was replaced with an order directing the RAF to pay the respondents’ costs of suit, including the costs of the inquiry and the costs of two counsel where applicable.

This judgment clarifies the scope of judicial case management under rule 37A and affirms the power of High Courts to inquire into wasted costs caused by late settlements. Importantly, it reinforces the stringent requirements for granting costs de boniis propriis against public officials and underscores the necessity of joinder before adverse personal cost orders may be made. The case provides guidance on balancing judicial oversight of systemic litigation failures with procedural fairness and statutory protections afforded to public office bearers.