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[2021] ZAGPJHC 393
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Willemse v Road Accident Fund (2014/09203) [2021] ZAGPJHC 393 (19 April 2021)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
REPORTABLE: No
OF INTEREST TO OTHER
JUDGES: Yes
19/4/2021
Case No.: 2014/09203
In the matter between:
WILLEMSE
, JOHANNES
JACOBUS
Plaintiff
and
ROAD ACCIDENT FUND
Defendant
JUDGMENT
Gilbert AJ
1.
During the afternoon of 9 April 2021 the parties reached
a
settlement and consequent upon a joint written submission in support
of the settlement signed by the plaintiff’s counsel
and the
Fund’s claim manager I was requested to make a draft order
reflecting the settlement an order of court.
2.
Given the circumstances that gave rise to this settlement and
as it
is relevant to the issue of costs, it is appropriate that I set out
what transpired in the trial as it unfolded before me.
Of particular
relevance is a mismatch between the amounts claimed by the plaintiff
in respect of which judgment was sought and
the significantly lower
amounts claimed in the particulars of claim, and which mismatch I
would only become aware of after I had
reserved judgment.
3.
The plaintiff, a twenty-six year old male, instituted proceedings
against the Road Accident Fund (“the Fund”) for the
recovery of damages suffered by him in his personal capacity as
a
result of injuries sustained in an motor vehicle accident which
occurred on 3 May 2013 and in which he was a passenger.
The
plaintiff was 16 years old and a scholar in Grade 9 at the time of
the accident.
4.
The aspect of merits was previously settled, with the Fund being
liable for 100% of the plaintiff’s agreed or proven damages.
5.
What remained for determination at trial were the following
heads of
damages:
5.1.
general damages;
5.2.
future medical expenses;
5.3.
past loss of earnings and/or earning capacity; and
5.4.
future loss of earnings and/or earning capacity.
6.
The trial was set down for 1 September 2020. Notwithstanding
various interactions between the plaintiff’s legal
representatives and the Fund, the matter was not settled and the
trial
was allocated for hearing before me on 2 September 2020.
7.
When the matter was a called before me on the afternoon of
2 September 2020, shortly after 2 pm, there was no appearance on
behalf of the Fund. The plaintiff was ready to proceed in
the absence
of the Fund.
8.
I was satisfied, after considering the emails uploaded on Caselines
as part of the court file and the various submissions made by the
plaintiff’s counsel, that the Fund was aware of the set
down of
the trial for 1 September 2020, that the trial had stood down
until 2 September 2020 and that in the absence
of the matter
being settled, the plaintiff would proceed with the trial in the
Fund’s absence. The Fund had neither instructed
any one to
appear on its behalf to make any submissions as to the further
conduct of the trial nor directed any communications
to my registrar
as to what the Fund’s intentions were or whether they required
a further stand down of the matter. It appeared
that in the absence
of the plaintiff accepting the Fund’s then most settlement
offer, the Fund had left the fate of the trial
in the hands of the
plaintiff and the court.
9.
Although this was not a desirable state of affairs, in the absence
of
the Fund seeking a postponement or otherwise dealing with the matter,
the plaintiff could not be prejudiced by the Fund’s
intransigence and there was no reason before me why the trial should
not proceed in the absence of the Fund.
10.
Uniform Rule 39(1) provides that if, when a trial is called, the
plaintiff appears
and the defendant does not appear, the plaintiff
may prove his claim insofar as the burden of proof lies upon him and
judgment
shall be given accordingly, insofar as he discharges such
burden, but provided that where the claim is for a debt or liquidated
demand no evidence shall be necessary unless the court otherwise
directs. As the present action for damages is neither a claim
for a
debt nor a liquidated demand as envisaged in Rule 39(1), it was
for the plaintiff to adduce evidence to prove his claim
insofar as
the burden of proof lay upon him.
11.
The
plaintiff chose to do this by way of affidavit. This is permissible
in these matters.
[1]
The
plaintiff adduced into evidence affidavits confirming under oath the
content of the various medico-legal reports. In addition,
affidavits
of the evidence of the plaintiff as well as the plaintiff’s
current employer were adduced into evidence for purposes
of
confirming the factual basis upon which the experts based their
opinions. When the matter was called on 2 September 2020,
it
transpired that an affidavit from one of the medical experts was
missing. The matter accordingly stood down until 15h00 on 3 September
2020 to afford the plaintiff an opportunity to adduce this affidavit.
The plaintiff then did so, and, after hearing the plaintiff’s
counsel’s submissions in argument, I reserved judgment on
3 September 2020.
12.
The Fund remained absent notwithstanding the further stand down of
the matter
to 3 September 2020.
13.
During
the evening of 3 September 2020, when the judgment was in an
advanced state of preparation, I was unable to locate particulars
of
claim seeking the amounts prayed for and motivated during argument
totalling R7 524 081.00. The only particulars of
claim
uploaded on Caselines were for R4 million, with
inter
alia
,
estimated past and future loss of earnings at R300 000.00
[2]
and general damages at R400 000.00.
14.
I requested my registrar to address an email to the parties and
particularly
to the plaintiff’s legal representatives seeking
of them to urgently upload “
a copy of the amended
particulars of claim”
. I assumed that there was an amended
particulars of claim that had inadvertently not been uploaded to the
electronic Caselines
file given that the plaintiff’s counsel in
arguing the matter before me and leading evidence on behalf of the
plaintiff had
sought judgment in a total amount of R7 524 081.00
in respect of loss of earning and general damages, being
R6 024 081.00
for loss of earnings and R1 500 000.00
for general damages. I did not contemplate that the plaintiff may be
seeking judgment
in an amount exceeding that claimed in the
particulars of claim, as an elementary aspect of trial preparation
would be to ensure
that which would be claimed at trial aligns with
the pleadings. More so, given the extensive obligatory pre-trial case
management
that is necessary in matters such as this, in terms of the
Practice Manual and the various practice directives.
15.
Unfortunately, my registrar misinterpreted my direction and instead
informed
the plaintiff’s legal representatives at 8h39 on 4
September 2020 that “
Acting Judge Gilbert requests you to
amend your particulars of claim and to upload to caselines by 16h00
today”
.
16.
Later that day, at 10h50, the plaintiff’s attorneys emailed to
my registrar:
16.1.
a notice of intention to amend in terms of Uniform Rule 28 dated
27 August 2020, together with
a covering email of the same date
27 August 2020 serving the notice upon the Fund. The notice records
that unless there was written
objection to the proposed amendment
within 10 days, the amendment would be effected. The intended
amendment was principally to
increase the total claim from R4 million
to R10 million, with R8 000 000.00 for estimated future
loss of earnings and
the like and R1 500 000.00 for general
damages;
16.2.
a filing sheet, dated 4 September 2020, enclosing amended pages.
17.
What is immediately evident is that:
17.1.
the particulars of claim before me at that stage were in their
unamended state, seeking a total of
R4 000 000.00;
17.2.
the plaintiff had not amended his particulars of claim by the time I
reserved judgment the day before;
17.3.
the amendment, if effected, would in any event have been premature in
that the plaintiff has called
upon the Fund to object within ten
days, but those ten days have not yet lapsed.
18.
It would subsequently transpire that the plaintiff’s attorneys
had not
served the amended pages upon the Fund simultaneously when
filing same on 4 September 2020 and did not appear to have any
intention
of doing so.
19.
I was unaware of this state of affairs when evidence was led before
me in support
of amounts far exceeding the claims in the particulars
of claim, and when I reserved judgment. Again, I had not anticipated
that
evidence would be led and judgment sought for sums for exceeding
the extant particulars of claim, and at least not without my
attention
being drawn thereto.
20.
The plaintiffs’ attorneys tendered no explanation in their
covering email
to my registrar on 4 September 2020 when attaching the
notice to amend and the amended pages, apparently content that no
more was
required of them. The plaintiff’s attorneys appeared
oblivious to the serious difficulties that the plaintiff faced,
including
that judgment had already been reserved by the time the
plaintiff purported to amend his particulars of claim (prematurely)
on
4 September 2020, that no amendment had been regularly effected
and so judgment was being sought for amounts far higher than claimed
in the extant particulars of claim and that at no stage had I been
alerted to any potential amendment or that the evidence had
been led
and amounts claimed far exceeding the extant particulars of claim.
21.
I recalled the matter for hearing before me at 14h00 that day, on
4 September
2020.
22.
When the matter was re-called, the plaintiff’s attorney was
present as
well as representatives of the Fund. The Fund’s
representatives were claims managers rather than legal practitioners
and
therefore did not actively participate in the proceedings, and so
“sat” in the virtual gallery.
23.
The plaintiff’s attorney, who confirmed that he had rights of
appearance
in the High Court, stated that he was unable to make
contact with plaintiff’s counsel as there appeared to be some
or other
connection problem and requested that the matter stand down.
I declined given that he had rights of appearance. I put the
difficulties
to him.
24.
The plaintiff’s attorney remained somewhat oblivious to the
gravity of
the situation and sought to simply move for an amendment
of the particulars of claim. I pointed out that there were various
substantive
and procedural difficulties and that it would be
necessary to first reopen the plaintiff’s case. He then
proceeded to ask
that the plaintiff’s case be re-opened so he
could then ask for the amendment. I pointed out that the reopening
the case
requires a substantive application, at least in these
circumstances, motivating why the case should be reopened.
25.
As the plaintiff’s attorneys remained at somewhat of a loss, I
intimated
that it may be necessary for the matter to be postponed
sine die
to enable such an application to be made. I also
enquired of him why I had not been informed at any time on 2 or
3 September 2020
when the matter was before me that the
pleadings as they stood did not support the relief that was being
sought or that there was
a pending amendment (bearing in mind the
notice to amend delivered on 27 August 2020).
26.
Plaintiff’s counsel then joined the hearing, having only just
becoming
aware of his attorney’s attempts to contact him.
27.
The plaintiff’s counsel also seemed somewhat unconcerned, at
first, at
the gravity of the situation and too proceeded to
effectively seek an amendment. As was the case with the plaintiff’s
attorney,
I pointed out that procedurally this may be problematic and
that the plaintiff’s case may have to first be reopened. The
plaintiff’s counsel submitted that this may not be necessary as
an amendment could be made at any stage, including on appeal.
I
intimated that it may be appropriate for the matter to be postponed
so that a substantive application to reopen the case could
be made,
particularly as the plaintiff’s counsel did not appear to have
adequate instructions on the pending amendment, and
the state of the
pleadings.
28.
As the matter ultimately settled, it is not necessary to go into any
further
details on this aspect.
29.
In the circumstances, I granted an order on 4 September 2020 as
follows, with
reasons to follow later (which reasons are these):
29.1.
the trial is postponed
sine die
;
29.2.
the plaintiff is granted leave to bring a substantive application to
reopen his case within twenty
days of this order;
29.3.
the application is to be served on the defendant. The periods
provided for in Uniform Rule 6(5) shall
apply;
29.4.
the parties are granted leave to approach the court for the
re enrolment of the matter before
this court (Gilbert AJ)
on a date to be determined by the Registrar in consultation with the
Deputy Judge President;
29.5.
the costs of 2, 3 and 4 September 2020 are reserved.
30.
The plaintiff then proceeded to timeously launch a substantive
application to
reopen his case, which was not opposed by the Fund
notwithstanding multiple communications with the Fund.
31.
The trial, which included the plaintiff’s application to reopen
his case,
was set down for resumption initially for 12 January
2021 and then at the request of the plaintiff, with the agreement of
the Fund, removed from the roll and re enrolled for 9 April
2021.
32.
On 9 April 2021 the trial resumed before me. At the commencement of
the hearing,
the Fund’s managers Messrs Kola and Johnstone who
were also in the virtual hearing introduced themselves, and informed
the
court that they were there on behalf of the Fund to render such
assistance as the court may require. Mr Johnstone excused
himself, leaving his colleague Mr Kola to attend to the trial on
behalf of the Fund. Neither Messrs Kola or Johnstone are legal
practitioners and so naturally the extent to which they could
formally participate from the virtual ‘gallery’ in the
proceedings was limited.
33.
Plaintiff’s counsel proceeded to move the application to reopen
the plaintiff’s
case, which I granted, ordering that there were
no costs ordered in relation to the plaintiff’s reopening of
his case and
that the plaintiff’s counsel and attorney were not
entitled to recover from the plaintiff any remuneration relating to
the
application. I indicated that my reasons would follow later.
34.
As the matter has become settled, it is unnecessary to deal in detail
with the
application to reopen the case. The plaintiff sought to
reopen his case to firstly address the difficulty that his extant
particulars
of claim did not accord with the judgment he sought of
the court and secondly to adduce further evidence.
35.
Although the explanation given by the attorney in his affidavit
supporting the
reopening of the case is not persuasive, to refuse the
application would have been highly prejudicial to the plaintiff.
There was
no opposition to the application by the Fund. There did not
appear to be any compelling reason why the plaintiff should be
prejudiced
by the conduct of his legal practitioners. An appropriate
costs order relating to the application to reopen, to which the
plaintiff’s
legal practitioners readily acceded during
argument, addressed the position.
36.
Having granted the plaintiff leave to reopen his case, the
plaintiff’s
counsel adduced further evidence that was largely
directed at addressing deficiencies that had been overlooked
previously before
the plaintiff had closed his case. The plaintiff
further introduced an updated actuarial calculation by his expert
actuary, Gregory
Whittaker. Plaintiff’s counsel informed me
that the purpose of this updated actuarial evidence was to include an
updated
actuarial report that calculated the capital value of the
claim as at 1 September 2020, being the date the trial commenced
as the previous actuarial report that had been relied upon from
Mr Whittaker had calculated the capital value as at a year
earlier, 1 September 2019.
37.
Although
the plaintiff’s counsel submitted that the plaintiff had
already amended his particulars of claim by increasing the
quantum
sought from R4 million to R10 million by way of delivery of
amended pages on 14 September 2020 consequent upon
the notice to
amend in terms of Rule 28 that had been delivered on 27 August
2020, a few days before the trial commenced,
I expressed reservations
as to whether this procedure was competent.
[3]
I was also concerned that the plaintiff persisted in seeking an
amendment of the capital sum to R10 million, when judgment was
being
sought for R7 634 486.00. By that stage the plaintiff knew
the sum it was claiming and motivating to the court
be the amount of
the judgment.
38.
Again, it is unnecessary to dwell further on this aspect given that
the plaintiff’s
counsel then elected to rather move for an
amendment afresh from the Bar in the following terms:
38.1.
By substituting paragraph 8 of the particulars of claim with the
following paragraph:
“
As a result of
the aforementioned collision and injury sustained by the plaintiff,
the plaintiff has suffered and will suffer damages,
in an amount of
R7,634,486, which is calculated as follows:
8.1
Deleted.
8.2
Estimated future medical expenses
- a section 17(4) undertaking.
8.3
Estimated future loss of earnings /
loss of earning capacity / loss of employability
:-
R6,134,486.00;
8.3.1
the estimate makes allowances for the time the plaintiff will be off
work as a result of the sequelae of his injuries, as
well as the time
he will be off work as a result of treatment for such sequelae;
8.3.2
the estimate also makes allowance for the fact that the plaintiff's
aforesaid injuries and sequelae have interfered with his
earning
capacity;
8.3.3
the estimate also makes allowance for the plaintiff's loss of
employment prospects and/or general loss of employability and/or
loss
of productivity;
8.3.4
it is not practicable for the plaintiff at this stage to give any
greater particularity in respect of this claim.
8.4
General damages
:- R1, 500,
000.00.
The
amount claimed is not capitalised and represent an estimate of the
damages suffered. It is not reasonably practical for the
plaintiff to
apportion the amount claimed in respect of general damages amongst
the components thereof.
8.5
Total
:-
R7 634 486.00.
”
38.2.
By the substitution of the amount of R10 million in prayer 1
of the particulars of claim
with the amount of R7 634 486.00.
39.
In addition, the plaintiff’s counsel moved for and I granted an
amendment
to also provide for a prayer in the particulars of claim
for a section 17(4) undertaking.
40.
The Fund’s representative, Mr Kola, remained attendant
throughout the
amendment proceedings, and raised no objection to the
intended amendment, notwithstanding the considerable increase in the
quantum.
41.
I accordingly granted the amendment.
42.
The plaintiff, by this stage, having commenced his action in 2014 and
after
having dealt with the challenges arising from the manner in
which his case had been conducted, had reached a position in the
trial
where his revised claim totalling R7 634 486.00 was
aligned with now his amended pleadings and which claim, his counsel
submitted, was sustainable on the evidence adduced by affidavit.
43.
But that the trial was to take another unexpected turn.
44.
At that point Mr Kola for the Fund interjected and requested that the
matter
effectively be postponed to allow the Fund an opportunity to
consider its position now that the case had been reopened, and the
amendment allowed significantly increasing the capital amount of the
claim from R4 million to R7 634 486.00.
45.
I expressed some reservation at this approach on behalf of the Fund
as it had
been aware throughout the plaintiff intended amending his
particulars of claim. The Fund was “present” that morning
throughout the court proceedings and the lengthy interactions between
the court and the plaintiff’s counsel which resulted
in the
plaintiff’s case being reopened, further evidence being adduced
and the amendment being granted, all without any objection
from the
Fund.
46.
The parties requested a short indulgence to engage with each other.
47.
I then stood down the matter on several occasions to allow this
engagement.
48.
Pursuant to these engagements, the parties settled the matter, as
indicated
at the beginning of this judgment, agreeing upon a draft
order (save for the issue of costs which I was left in my discretion)
and which resulted in the jointly signed written submissions in
support of the settlement.
49.
Given the various practice directives relating to settlements of
actions against
the Fund, the parties were required to and sought
that I interrogate the settlement based upon the joint written
submissions. Naturally
I would do this in the context of what had
unfolded before me, which included the evidence adduced on affidavit
by the plaintiff.
50.
The parties have agreed upon a capital amount, in addition to the
usual section 17(4)(a)
undertaking, in an amount of
R4 388 610.10. This is made up of:
50.1.
loss of earnings of R3 588 610.10;
50.2.
general damages of R800 000.00.
51.
Having applied my mind to the matter, especially shortly after I had
reserved
judgment on 3 September 2020, as described above, and
in light of the significantly reduced capital amount agreed upon, I
am satisfied that the settlement amount is appropriate.
52.
What is immediately noticeable that although the plaintiff had to go
to considerable
lengths to increase the quantum as reflected in his
initial particulars of claim to R7 634 486.00, the
plaintiff then
within an hour or two agreed to a reduced capital
amount of R4 388 610.10, which is only little more than the
R4 million
sought in the initial unamended particulars of claim
issued in 2014.
53.
The plaintiff’s counsel informed me that this was a result of
the Fund
having adopted a particularly aggressive approach in
applying contingencies in light of the plaintiff’s pre morbid
schooling
difficulties and having disputed the career progression
opined upon by the plaintiff’s experts. The signed joint
submission
provides as follows:
“
7.
THE OFFER ON LOSS OF EARNINGS
7.1.1. The
Defendant disputed the Plaintiff's loss of earnings as calculated and
believed that in light of the Plaintiff's
pre-morbid schooling
difficulties and the career progression opined upon by Ms McGill
Scott and Ms Nicolene Kotze higher contingencies
should be applied.
7.1.2. The
Defendant, while accepting the past loss of R366,751.00 was only
willing to tender an amount of R3,221,889.10
in respect of future
loss. This amount is arrived at based on a compromise between the
Defendant's experts own assessment of loss
amounted R6,7 million
before contingencies and the Plaintiff's loss of R8,140,693 prior to
contingencies. The Defendant then applied
a risk discount of 30%to
account for the uncertainties of the pre- morbid career progression
before applying further contingencies
to the calculation of 38%
pre-morbidly to arrive at the aforesaid amount.
7.1.3. The
client, after all the risks associated with the matter and the
inherent uncertainties and the somewhat arbitrary
nature of
contingencies was explained to him, and the fact that the court, even
on an unopposed basis may not accept all the evidence
at face value
placed before it, elected to accept the amount offered.
7.1.4. In
the premises this head of damages has been compromised between the
parties on an agreed amount of R3,588,640.10
(R366,751 plus
R3,221,889.10).
”
54.
When I applied my mind to the matter on 3 September 2020,
I
gave close consideration to whether the contingency (discount) to the
future value of the loss of earnings but for the injury
should be
increased (which would ultimately decease the damages) in that the
plaintiff suffered from pre-morbid behavioural difficulties.
The
evidence shows that the plaintiff was a troubled youth, having
experienced a deeply traumatic childhood and living a nomadic
lifestyle. He struggled at school, from Grade 5, missed school,
failed Grade 7 in 2011, and at the end of 2011 insisted that he
would
not be returning to school. But he appears to have perhaps turned a
corner when his uncle took him in, and enrolled him at
a technical
college for Grade 8, where his marks improved and he passed.
Unfortunately for the plaintiff, the accident intervened
in 2013,
whereafter, the plaintiff contends, his injuries afflicted his
educational path. It cannot be predicted whether the plaintiff
would
have maintained his newfound upward trajectory that commenced in 2012
and so achieve a higher education or better employment
(and maintain
that employment), or whether he would have lapsed into his pre-morbid
behavioural difficulties.
55.
The Fund’s challenge to the plaintiff’s version on this
aspect is
understandable and there does not appear to be any reason
for me to go behind the parties’ negotiated outcome on this
aspect,
at R3,588,640.10.
56.
The Fund also adopted a less generous approach to the assessment of
the plaintiff’s
general damages, agreement being reached on an
amount of R800 000.00 in contrast to the R1.5 million
general damages
sought by the plaintiff.
57.
I also gave consideration to this aspect on 3 September 2020 as
it appeared
to me that the plaintiff’s contended for general
damages was somewhat generous when regard was had to certain of the
cases
cited in the plaintiff’s heads of argument. Again, I see
no reason to go behind the negotiated outcome of the parties in
relation to general damages at R 800,000.00.
58.
To summarise:
58.1.
the plaintiff had initially claimed a capital amount of R4 million in
his particulars of claim;
58.2.
at trial, when I reserved judgment on 4 September 2020, the plaintiff
sought judgment in an increased
capital amount of R7 524 081.00
but had neither effected nor drawn the court’s attention to the
then pending amendment
seeking to increase the capital amount to R10
million;
58.3.
after I granted leave re-opening the case, on 9 April 2021, the
plaintiff amended his claim to
R7 634 486.00,
and sought judgement in that revised amount;
58.4.
the plaintiff then settled on a significantly lower amount of
R4 388 610.10, which I am
prepared to grant by way of the
draft consent order.
59.
It
is difficult not to have a sense of disquiet at how the trial played
out. The involvement of the Fund, as sporadic and belated
as it may
have been, resulted in a settlement at a capital amount significantly
less than that in respect of which the plaintiff,
after much effort,
sought judgment. This demonstrates the importance of the active
involvement of the Fund, which is obviously
seriously restricted by
the Fund’s failure to instruct attorneys to protect its
interests. And it is unlikely that that the
difficulty that arose in
the present trial, being the mismatch between the plaintiff’s
pleadings and the judgment sought
of the court, would have gone
unnoticed until after judgment was reserved had the Fund been legally
represented throughout the
trial proceedings. The problematic
situation of the Fund having terminated the mandates of their
attorneys in the matters against
it as identified by Fisher J in
Taylor
[4]
resonates in the present matter.
60.
What remains is the issue of costs. Although the draft order provided
that the
Fund would pay the plaintiff’s taxed or agreed party
and party costs on the High Court scale, including the costs of
various experts, I expressed reservation at the formulation in
relation to costs of the plaintiff’s legal practitioners given
the manner in which the matter had unfolded. The plaintiff’s
legal practitioners readily accepted that not only the Fund
but also
their client, the plaintiff, should not be prejudiced by any costs
incurred after the reservation of my judgment on 3 September
2020. Had the matter been properly attended to, including ensuring
that matter was trial ready (which would include ensuring that
the
relief being sought of the court was aligned with the relief sought
in the pleadings and that all the necessary evidence to
support the
relief had been adduced, including an updated actuarial report),
there would have been no need for any further proceedings
after 3
September 2021.
61.
In
the circumstances, such legal costs as are to be recoverable by the
plaintiff’s attorney and counsel are to be limited
to those
legal costs up until and including 3 September 2020. This is not
an unusual costs order, as specific reference is
made to costs orders
of this nature disallowing a legal practitioner from recovering costs
from his or her own client in the various
practice directives that
have been issued from time to time.
[5]
62.
An order is accordingly granted as follows:
62.1.
The defendant shall pay the plaintiff
the amount of R4 388 610.10 (“the capital amount”).
62.2.
Payment of the capital amount shall be
made to the plaintiff’s attorneys of record, by payment into
their trust account with
the following details:
RENE
FOUCHE INC
STANDARD
BANK – TRUST ACCOUNT
ACC.
NR: [....]
BRANCH
CODE: 004305
REF:
GPS/JDK/QM/W43
62.3.
The defendant shall pay to the plaintiff
the capital amount together with interest
a
tempore morae
calculated in
accordance with the
Prescribed Rate of Interest Act 55 of 1975
, read
with
section 17(3)(a)
of the
Road Accident Fund Act 56 of 1996
.
62.4.
The defendant shall furnish to the plaintiff an
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
, for 100% of the costs of the future accommodation of
the plaintiff in a hospital or nursing home or treatment of or
rendering
of a service to the plaintiff or supplying of goods to the
plaintiff arising out of the injuries sustained by the plaintiff in
the motor vehicle collision which occurred on 3 May 20213, after such
costs have been incurred and upon proof thereof.
62.5.
The statutory undertaking referred to in
the preceding sub-paragraph shall be delivered by the defendant to
the plaintiff’s
attorney of record within 14 (fourteen) days of
service of this order.
62.6.
The defendant shall pay the plaintiff’s
taxed or agreed party and party costs of suit on the High Court
scale, including:
62.6.1.the
costs of the reports (including RAF 4 Forms and addendum reports, if
any) of Dr A. Pechè, Dr A.P.J. Botha
Dr Fine, Dr O. Guy,
Dr J. Goosen, Dr Hovsha, Dr Van Niekerk, Sandton Radiology, Ms M
Scott, Dr C. Kahanovitz, Ms A. Reynolds,
Dr T. Bingle, Ms du Buisson,
Mr L.J. Van Tonder and Ms N. Kotze;
62.6.2.the
costs of the experts who attended to the preparation of joint
minutes;
62.6.3.the
qualifying and preparation costs of the experts, including relating
to the affidavits of experts (if any);
62.6.4.the
costs of senior-junior counsel for 1, 2 and 3 September 2020,
inclusive of the costs in preparing for and appearing at
the
pre-trial conference and for the preparation and research of
comprehensive heads of argument;
62.6.5.the
costs of the actuarial reports, inclusive of the amended reports, of
Mr G Whittaker (Algorithm Consulting Actuaries);
62.6.6.the
plaintiff’s reasonable travelling expenses to and from
medico-legal appointments;
save
that the defendant is not liable for any legal costs (i.e. those of
the plaintiff’s attorneys and counsel) for any attendances
after 3 September 2020.
62.7.
The plaintiff’s attorneys and
counsel are disallowed from recovering any remuneration and/or
disbursements (other than disbursements
to experts) from the
plaintiff for any attendances after 3 September 2020.
62.8.
In the event that the costs are not agreed, the plaintiff’s
attorneys are to tax their costs,
and are to serve a notice of
taxation on the defendant and/or the defendant’s attorneys of
record.
62.9.
The defendant is to pay the taxed and/or agreed costs within fourteen
(14) days of such taxation or
agreement.
Gilbert AJ
Date of hearing:
2, 3, 4 September 2020 and 9 April 2021
Date of judgment:
19 April 2021
For the
plaintiff:
M
van den Barselaar
Instructed
by:
René Fouché Inc
For the defendant:
No
formal appearance
(Attendances by fund
manager Mr Kola)
Instructed
by:
No
attorneys mandated any longer.
[1]
Havenga
v Parker
1993 (3) SA 724
(T). This principle is reiterated in the recent
Judge President’s Directive 1 of 2021, para 29, although that
directive
is not applicable to this matter as the trial commenced
before the commencement of the directive.
[2]
This may be a typographical error and should be R3 million, based on
the total claim of R4 million.
[3]
For example, the manner of service of the notice to amend and
amended pages on the Fund might be deficient (see
Taylor
v Road Accident Fund
2020 JDR 2351 (GJ), para 94), and delivery of the amended pages on
14 September 2020 occurred after the plaintiff had closed
his case.
[4]
Above, para 9, 10, 32, 123 and 124
[5]
See, for example, paragraph 4 of the Judge President’s
Practice Directive 2 of 2019 and paragraph 3 of the subsequent and
most recent Judge President’s Practice Directive 1 of 2021.