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[2012] ZAECPEHC 79
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Xakaxa v Road Accident Fund (3902/2011) [2012] ZAECPEHC 79 (13 November 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION - PORT
ELIZABETH)
CASE NO: 3902/2011
DATE HEARD: 26/10/2012
DATE DELIVERED:
13/11/2012
In the matter between
MANDLA GOODMAN XAKAXA
....................................................................
PLAINTIFF
and
ROAD ACCIDENT FUND
...........................................................................
DEFENDANT
JUDGMENT
ROBERSON J:-
[1] In this action the plaintiff
claims damages from the defendant for loss of support, arising from
the death of his wife (the
deceased) after she was struck by a motor
vehicle. The claim has been settled in the sum of R79 094.00, but the
issue of costs
remains, the plaintiff contending that costs on the
High Court scale should be awarded and the defendant contending that
costs
on the Magistrates’ Court scale should be awarded.
[2] In the matter of
Vermaak v Road
Accident Fund
[2006] ZAECHC 10
, Jones J said the following at
paragraph [5]:
“
The
high court frequently
restricts
costs to the magistrates’ courts scale on the ground that the
plaintiff could and should have proceeded in the magistrate’s
court where litigation is less expensive. In doing so, it applies the
basic principle of costs that the court has a discretion
which it
must exercise judicially upon a consideration of all the facts of
each case, and that the underlying consideration is
fairness to both
sides. The amount of the judgment or settlement is always a
significant factor in balancing fairness. The courts
discourage
litigants from choosing a more expensive forum where relief can be
obtained in a less expensive one. The defendant should
not have to
pay more in the way costs because he has been brought to a more
expensive court unnecessarily. While the amount of
a judgment is
always important, it is, however, not the only consideration. Various
other circumstances – for example, the
complexity of the
factual issues, the difficulty of the legal issues, the seriousness
of an imputation against reputation, the
honesty of officials, the
general importance of the issue to the parties or the public –
might induce a court to award costs
on the high court scale although
the amount involved is small. But as a general rule the proper
exercise of the court’s discretion
on costs provides a powerful
deterrent against bringing proceedings in the high court which might
more conveniently be brought
in the magistrate's court, and this
implies that the party who could have chosen to proceed in the lower
courts will have to satisfy
the high court that there are good and
sufficient reasons for the exercise of a discretion to award high
court costs in his or
her
favour
1
.”
[3] In the present matter, the
plaintiff initially claimed the total sum of R333 074.76, made up as
follows:
Past loss of support R13 659.53
Future loss of support R314 169.23
Funeral expenses R5 246.00
[4] The summons was issued on 8
December 2011. It was specifically alleged in the particulars of
claim that at the time of her death
the deceased was employed as a
domestic worker and earned R760.00 per month, excluding bonuses and
other fringe benefits. It was
assumed that the deceased would have
been employed up to the age of 65 years and would have received an
annual salary increase
of 10%. It was also alleged that the plaintiff
was at all material times dependent on the deceased, was unable to
work, and had
no other source of support.
[5] On 19 January 2012, in reply to
the defendant’s request in terms of Rule 36 (4), the plaintiff
made available to the defendant
the deceased’s salary advice
and employer’s certificates, the post mortem report and the
invoice for funeral expenses.
The plaintiff also authorised the
inspection of hospital and other relevant records.
[6] In its plea delivered on 20
February 2012, the defendant admitted the collision but pleaded no
knowledge of the alleged negligence
of the driver of the insured
vehicle or of the plaintiff’s damages, and put the plaintiff to
the proof thereof.
[7] The action was set down for
hearing on 26 October 2012, and the parties were notified of this
date by the Registrar on 2 March
2012.
[8] In the reply to a request for
particulars for trial, delivered on 9 May 2012, the plaintiff set out
details of the deceased’s
employment at the time of her death,
including the names of her employers, the number of days she worked
per month, her hourly
rate, her monthly salary, whether she worked
overtime, and whether deductions were made from her salary. It was
pleaded that she
would have worked until 65 years of age, at her
current salary plus an annual increase of 10%. A schedule of how the
claim was
calculated was attached to the particulars. This reflected
the deceased’s projected earnings (including the 10% increase)
for each year from the date of her death until 2028, in the total sum
of R655 657.51. It was pleaded that the plaintiff and the
deceased
had no children and the plaintiff would have received half of this
amount for his maintenance. It was further pleaded
that the plaintiff
is unable to work and had stopped working before the death of the
deceased. Copies of the deceased’s salary
slips and of the
funeral invoice were also attached to the trial particulars.
[9] On 1 October 2012, in response to
the plaintiff’s Rule 37 (4) agenda, served on 27 September
2012, the defendant admitted
that the sole cause of the collision was
the negligence of the driver of the insured vehicle, and that the
collision was the sole
cause of the deceased’s death. The
defendant indicated it would revert on the question of whether it was
prepared to admit
past loss of support in the sum of R22 158.00,
future loss of support in the sum of R64 413.00 and funeral expenses
as claimed.
The defendant indicated that it stood by its plea, that
it was in a position to proceed to trial, and that it would provide
the
plaintiff with a settlement offer “in due course”.
[10] With regard to the question of
whether or not the matter should be transferred to another court, the
defendant stated that
it was of the opinion that the matter should
have proceeded in the Magistrates’ Court, and objected to the
present forum.
It reserved its right to argue that costs should be
limited to the Magistrates’ Court scale.
[11] With regard to the admission of
documents, the defendant admitted the death register, the accident
report, and the entire police
docket. It did not admit the deceased’s
employer’s certificate or the actuarial report (served on the
defendant’s
attorneys on 10 October 2012).
[12] The defendant made an offer on 24
October 2012. The amount settled upon is the lower of the two
calculations of the actuary,
plus funeral expenses.
[13] The defendant’s admission
regarding the sole cause of the collision was made at a very late
stage, when it had had ample
time to investigate the collision. Its
offer was made two days before the trial date. The particulars of
claim and the further
particulars for trial were such that the
defendant would have been in a position to make an offer some time
before it actually
did, and thus potentially curtail costs. The
defendant was content to let the matter run in the High Court until
the eleventh hour,
and only raised the issue of the appropriate forum
on 1 October 2012. There was no earlier suggestion that the matter be
transferred.
Similar conduct has been taken into account in deciding
on which scale costs should be awarded, or whether or not costs
should
be reserved following an order deciding the merits in a
plaintiff’s favour, in case the
quantum
fell within the
jurisdiction of the Magistrates’ Court. See for example
Perino
v Minister of Safety and Security
, SECLD case number 559/04
judgment delivered 10 June 2005,
Vergottini v Padongelukkefonds
[2005] ZAFSHC 37
,
Beetge v Road Accident Fund
case number
SECLD 1970/02 judgment delivered 20 October 2003,
Brauns v SA
Shoprite Checkers (Pty) Ltd
2004 (6) SA 211
(ECD), and
George
v Lid van Uitvoerende Raad, Departement van Onderwys, Bisho
, ECD
case number 3261/06.
[14] I do not think that it was
clearly apparent that the plaintiff’s claim fell within the
jurisdiction of the Magistrates’
Court. The calculation of a
claim for loss of support is not a simple matter, involving as it
does such factors as assumptions,
contingencies, inflation, and
capitalisation rates. The actuary calculated the loss of support on
two bases, the first being the
deceased’s earnings at the time
of the accident, increased with inflation, and the second the
prescribed minimum wage for
domestic employees. As already mentioned,
the settlement offer was the lower of the two calculations. The
higher calculation was
R86 571.00. The amount settled upon and the
higher amount are not far short of the Magistrates’ Court’s
monetary jurisdiction
of R100 000.00.
[15] The eventual award remains within
the discretion of the court and the court is not bound to award the
amount calculated by
an actuary. In that case it was not certain that
the eventual award, had the trial run, would have been less than R100
000.00.
As was submitted by counsel for the plaintiff, to have
proceeded in the Magistrates’ Court merely to avoid the risk of
an
adverse costs order, would have been negligent. It was therefore
prudent, in my view, to have instituted proceedings in the High
Court.
[16] It is correct that the amount
settled upon is substantially less than that initially claimed.
However I do not think that the
claim was reckless. Counsel for the
plaintiff submitted that it was a
bona fide
calculation and I
have no reason to believe otherwise. In the reply to the request for
particulars for trial the method of calculation
was disclosed. It was
a rough calculation which did not allow for factors such as
capitalisation and contingencies, but it was
a starting point.
[17] It was submitted on behalf of the
defendant that the plaintiff was in a position to calculate his claim
at the outset. As pointed
out by counsel for the plaintiff, the
obtaining of an actuarial report is not obligatory and there is also
the cost of such a report
to take into account. As already mentioned,
the defendant had sufficient details to make an offer, yet only did
so two days before
the trial. On 1 October 2012 the defendant merely
indicated that an offer would be made in due course. The plaintiff
therefore
had no choice but to expect to proceed to trial. The
plaintiff did not unnecessarily prolong the proceedings after the
offer was
made, thus curtailing further costs.
[18] It was submitted on behalf of the
defendant that the claim could have been brought in the Regional
Civil Court, which has a
monetary jurisdiction of R300 000.00. The
legislation governing the civil jurisdiction of Regional Courts came
into operation on
9 August 2010. These courts had therefore not been
functioning for very long at the time summons was issued in this
case. Further,
if one has regard to ss 12 (6), (7) and (8) of the
Magistrates’ Court Act 32 of 1944, which came into operation on
9 December
2010, there are certain requirements to be met before the
Magistrates’ Commission enters the name of a magistrate on a
list
of regional magistrates who may hear civil matters. The claim as
framed was in excess of R300 000.00. As already mentioned, the
defendant did not suggest at any stage that the matter should be
transferred, and only raised the issue of the correct forum at
a late
stage. In these circumstances I am of the view that it was neither
reckless nor an abuse of the legal process to have chosen
the High
Court in preference to the Regional Court.
[19] It was submitted on behalf of the
defendant that to proceed in the more expensive forum was to restrict
access to justice.
Reference was also made to exorbitant legal fees
charged. However, in the event of it being appropriate to have
proceeded in the
High Court, these arguments fall away. The
plaintiff’s bill of costs will be taxed and the defendant will
have an opportunity
to object to items in the bill.
[20] For all the above reasons I am
persuaded that I should exercise my discretion in favour of the
plaintiff and award costs on
the High Court scale.
[21] I make the following order:
[21.1] The defendant is ordered to pay
the plaintiff the sum of R79 094.00, together with interest thereon
at the legal rate from
a date 14 days after date of this order to
date of payment.
[21.2] The defendant is ordered to pay
the plaintiff’s taxed or agreed costs of the action on the High
Court scale, such costs
to include the qualifying expenses, if any,
of the actuary Mr. Gerard Jacobson, together with interest on the
costs at the legal
rate from 14 days after date of
allocatur
or agreement, to date of payment.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances:-
For
the Plaintiff: Adv A Frost, instructed by Kevin E Fourie Attorneys,
Port Elizabeth
For
the Defendant: Mr K Karsan, Boqwana Loon & Connellan, Port
Elizabeth