Road Accident Fund v Sarah Wilson Lewis

The respondent, Ms Sarah Lewis, instituted a claim against the Road Accident Fund (RAF) in September 2009 arising from a motor vehicle accident in November 2006 in which her husband died. The matter endured a long procedural history involving multiple legal representatives and experts. Both parties appointed psychiatrists and clinical psychologists whose joint expert minutes agreed that the respondent suffered a psychiatric injury as a result of her husband's death in the accident. An industrial psychologist, Dr Lourens, was jointly appointed to assess the respondent's loss of earnings and earning capacity. The RAF admitted 100% liability for the respondent's proven or agreed damages in its 2022 amended plea and settled claims for general damages and medical expenses based on her psychiatric injury. However, after appointing a new psychiatrist, Dr Khan (based in the USA), and receiving her reports in late 2022, the RAF attempted to amend its plea to deny that the respondent had suffered a psychiatric injury caused by the accident and to withdraw its prior admissions. The respondent opposed the amendment. The high court refused the RAF's application to amend its plea on 18 May 2023. Leave to appeal was refused by the high court on 27 July 2023 and by the Supreme Court of Appeal on 18 October 2023. On 4 April 2024, the President of the Supreme Court of Appeal referred the order refusing leave to appeal to the Court for reconsideration in terms of s 17(2)(f) of the Superior Courts Act.

• Whether the lapsed application for leave to appeal should be reinstated
• Whether the compromise concluded between the parties was actuated by a common incorrect assumption of a present or past fact and therefore void
• Whether the amendment sought by the RAF was mala fide or not
• Whether the RAF has demonstrated exceptional circumstances warranting variation of the order refusing leave to appeal under s 17(2)(f) of the Superior Courts Act
• Whether the refusal of the RAF's application for leave to amend its plea violated its right to have a dispute decided in a fair public hearing before a court as contemplated in s 34 of the Constitution

The application for reconsideration in terms of s 17(2)(f) of the Superior Courts Act was dismissed with costs, including costs of two counsel.

The binding legal principles established are: (1) Reconsideration under s 17(2)(f) of the Superior Courts Act requires truly exceptional circumstances amounting to a risk of grave injustice or circumstances that would bring the administration of justice into disrepute. The introduction of a new expert opinion obtained after settlement and after trial readiness, following earlier expert consensus, does not constitute exceptional circumstances. (2) A compromise or settlement agreement can only be set aside for common mistake where both parties laboured under a common, material and mutual mistake of fact existing at the time of the agreement. A later divergent expert opinion does not retrospectively prove that the original assumption was incorrect or that it was a mutual mistake. (3) An application to amend pleadings to withdraw an admission requires proof of bona fides and that the amendment will not cause prejudice that cannot be cured by costs. Where an admission was made based on expert consensus and the party now seeks to withdraw it based on a later contrary opinion, this does not constitute a bona fide mistake but a change in litigation strategy. (4) Applications for condonation or reinstatement require a full, detailed and accurate account of the causes of delay and their effects. Where non-compliance is flagrant and the explanation is manifestly inadequate, condonation may be refused regardless of prospects of success.

The Court made several non-binding observations: (1) That s 17(2)(f) is not a mechanism for disappointed litigants to secure another opportunity for appeal, but rather a safeguard to avoid manifest injustice. (2) That litigants must keep at the forefront of their minds that reconsideration under s 17(2)(f) is designed to consider whether the judges below were correct in refusing leave to appeal, and if the decision refusing leave is unassailable, it will be left intact. (3) That if arguments of the type advanced by the RAF were accepted, it would encourage litigants to retreat from their admissions whenever a newly appointed expert expressed a contrary view, thereby destabilising the integrity of judicial case management. (4) The Court emphasized that one would expect a party that benefits from exceptional indulgence under s 17(2)(f) to act with heightened diligence in prosecuting the appeal. (5) The Court noted that the amount of money at stake, while significant, is not determinative where the party was aware of the quantum from the outset and still conceded liability.

This case is significant in South African jurisprudence for several reasons: (1) It clarifies the high threshold for establishing 'exceptional circumstances' under s 17(2)(f) of the Superior Courts Act, emphasizing that this remedy is not intended to give disappointed litigants a third opportunity to appeal but is reserved for cases where grave injustice would otherwise result. (2) It reinforces the principles governing amendment of pleadings, particularly the withdrawal of admissions, requiring demonstration of bona fides and that any prejudice can be cured by costs. (3) It affirms the principles of compromise agreements and the doctrine of common mistake, holding that a later divergent expert opinion does not retrospectively render a compromise void where it was deliberately entered into based on expert consensus at the time. (4) It emphasizes the importance of procedural compliance and finality in litigation, particularly in long-running cases. (5) It provides guidance on the proper use of expert evidence and the limitations on parties seeking to resile from positions adopted based on their own experts' advice. The case demonstrates the court's commitment to preventing parties from adopting inconsistent positions to gain tactical advantage and to protecting the integrity of the judicial process.