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[2010] ZAGPPHC 563
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Saligwazi v Road Accident Fund (40676/2008) [2010] ZAGPPHC 563 (2 March 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
CASE NO: 40676/2008
DATE: 2 MARCH 2010
in tne matter
oetween :
MJALI
ANNA
SALIGWAZI
................................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
................................................................................................................
Defendant
JUDGMENT
ON THE ISSUE OF COSTS OF TWO COUNSEL
MATOJANE
J
[1] The plaintiff
seeks an order that defendant pays the costs of two counsel in
respect of an action for damages against the fund
that was settled on
the day of the trial.
[2] In the main
matter the plaintiff sued the defendant for payment of the sum of Rl
830 000.00 being the alleged damayes arising
from a road accident
that occurred on the 26 January 2008. The defendant in its plea
denied every allegation in the particulars
of claim and put the
plaintiff to the proof thereof.
[3] In so far as the
defendant was contesting every aspect of the case, the plaintiff
requested certain particulars for trial on
the 5 May 2009. The
defendant failed to provide the requested particulars.
[4]
At a pre-trial conference held on the 15 January 2010 the plaintiff
put a series of detailed questions, enquiries and other
matters it
sought from the defendant. The standard response to ali the questions
was "
The
defendant will revert by 12 February 2010".
The
defendant never reverted to the plaintiff with the result that as at
the date of trial, everything was still in issue.
[5] A senior counsel
and a junior were briefed on behalf of the plaintiff. The defendant
instructed counsel on the day of the trial
to settle both the merits
and quantum. The parties could not agree whether the costs should
include the costs of two counsel.
[6] The issue of
costs is in the discretion of the court. The court must consider
whether it was proper and reasonable to brief
two counsel. Rule 69 of
the rules of this Court provides that:
"Save where the
court authorizes fees consequent upon the employment of more than one
advocate to be included in a party and
party bill of costs, only such
fees as are consequent upon the employment of one advocate shall be
allowed as between party and
party."
[7] Counsel for the
defendant submitted that it was not necessary for the plaintiff to
have employed two counsel as plaintiff should
have known that the
matter will become settled for an amount less than what it claimed in
the particulars of claim.
[8] Counsel for the
plaintiff on the other hand, submitted that it had been wise and
reasonable for the plaintiff to brief two counsel
in this matter;
relevant consideration being that the case was important to the
plaintiff and she did not want to take any chances.
According to
expert reports, plaintiff suffered head and brain injury with
prolonged loss of consciousness, extensive lacerations
and multiple
fractures and has to undergo four operations. She is depressed and is
emotionally unable to cope with the loss of
her spouse and the
consequences of her physical injuries. Counsel argued that the court
should not consider the settlement amount
but should ask itself
whether the plaintiff took a wise precaution in employing two
counsel. The plaintiff was a domestic worker
who earned little hence
the low quantum of damages.
[9] I agree with
counsel for the plaintiff. In my view, various factors attendant in
this matter rendered it wise and reasonable
for the plaintiff to
brief two counsel. The issues in the main trial were complicated by
the fact that the defendant was until
the morning of the trial
contesting every aspect of the case both quantum and merits. The
plaintiff had to make extensive preparations
for trial as there were
eleven expert witnesses, nine of them were to testify on behalf of
the plaintiff. The trial was going to
be long and complex. For these
reasons I do not agree with the submission by counsel for the
defendant that there was no need to
engage the services of a senior
counsel as the settlement amount was going to be less. The settlement
amount was definitely going
to be less because the plaintiff, being a
domestic worker earned less but this does not detract from the
complexity of the matter
and the recalcitrance of the defendant.
[10] The matter is
clearly of great importance to the plaintiff anc m my view, it cannot
be said that plaintiff was extravagant
or overcautious to have
employed two counsel when regard is had to rne obstructive attitude
of the defendant. I do not feel justified
in saying that it is unfair
to the defendant that it should be required to bear the costs
incurred in the employment of two counsel
as it deliberately sought
to frustrate the legitimate claim of the plaintiff by not acting
diligently and compelling plaintiff
to incur costs to initiate
litigation only to agree to settlement on the date of trial.
[11] I am satisfied
on the consideration of the relevant factors, that tne employment of
two counsel by the plaintiff in this matter
was justified.
Consequently
[12] The defendant
is ordered to pay the costs incurred by the plaintiff in the above
matter; such costs to include the costs of
two counsel.
KE
MATOJANE
JUDGE OF THE HIGH
COURT