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[2018] ZAECPEHC 6
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Mntwaphi v Road Accident Fund (701/2017) [2018] ZAECPEHC 6 (16 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION - PORT ELIZABETH
Case
No.: 701/2017
In
the matter between:
ZANDISILE
MICHAEL
MNTWAPHI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
REVELAS
J
:
[1]
On 8 February 2018 Judgment was delivered in respect
of general damages (the only issue in dispute), awarded to
the plaintiff and suffered by him
during a motor vehicle accident.
The
evidence relating to the nature of the plaintiff's injuries are
contained in the judgment. The order made was to
the
effect that that the plaintiff was to be compensated by
the defendant, in the amount of R75 000.00 for general
damages, which
figure took into account the plaintiff's contributory negligence
which was fifty percent. The defendant was ordered
to pay the
plaintiff's costs of suit.
[2]
On 13 February 2013, the defendant served and filed a Notice
of Enrolment wherein the Registrar was to appoint a date for a
reconsideration
of the costs order made on 8 February
2018, in terms of Rule 34(12) of the Uniform Rules
of Court.
[3]
The matter was enrolled and during the subsequent hearing of
argument on the question of costs, the defendant handed up two
separate
offers of settlement made in terms of Rule
34(1) and (5).
[4]
The first offer was made on 18 January 2018 and the second on
25 January 2018. In the first offer the defendant offered to
pay the
plaintiff without prejudice the sum of R125 000.00
in respect of general damages,
and the plaintiff's taxed
or agreed party and party costs on the applicable court scale.
[5]
In the second offer of 25 January 2018, the earlier offer was
withdrawn, and the figure increased
to R150 000.00. Costs were tendered on the same
terms as the previous offer. The costs included the payment
of
the qualifying fees, if any, of any experts in respect of whom
the plaintiff had given notice in terms
of Rule
36(9)(a) and (b).
[6]
It
is plain that
the award made in respect of general damages
was exceeded by the defendant's offer to
a considerable
degree, namely fifty percent.
[7]
Rule 34(12) reads:
"if
a court has judgment on the question of costs in ignorance of the
offer or tender and it is brought to the notice
of the
registrar, in writing, within five days after
the date of judgment, the question of costs
shall be
considered afresh in the light of the offer or tender.
Provided that nothing
in this sub rule
contained shall affect the court's discretion
as to an award of costs."
[8]
The object of sub-rule
(12) is to enable the court to take into account, when exercising its
discretion as to a fair costs order
in all the circumstances of the
case, the fact that a generous offer, as in the present
case, had been
rejected by the
plaintiff. The rule provides
a court with an
opportunity to reconsider the matter
afresh, after learning about the
tender
[1]
.
Once it has been
established that the tender or offer
beat the amount
awarded, the
discretion
becomes
limited, apart from determining the
spatium
deliberandi
[2]
,
which in this case
has to be the period between the two offers. The usual practice is,
if the offer or tender exceeds the amount
of the judgment, to order
the defendant to pay the plaintiff's costs incurred up to the date of
the offer and the plaintiff to
pay the costs
thereafter.
[9]
In applying the
aforesaid principles, there are no facts or other considerations in
this case indicating a departure from the general
practice referred
to. The relevant period for purposes of such an order is from 25 and
26 January 2018 to 8 February 2018 (date
of judgment).
[10]
In the
circumstances, paragraph 2 of the order made on 8
February 2018 is substituted with
the
following:
1.
The defendant shall pay
the plaintiff's cost of suit up to 25 January 2018, with interest
thereon, at the current legal rate as
from a date fourteen days after
taxation to date of
payment.
2.
The plaintiff
shall pay the defendant's cost of suit
from 26 January 2018, with interest thereon,
at the current
legal rate as from a date fourteen days after taxation
to date of
payment.
_____________________
E
REVELAS
Judge
High Court
Appearances
:
For
the Applicant : Adv Mullins
instructed by Gregory Clark
&
Associates, Port Elizabeth
For
the respondent: Adv Paterson instructed by Friedman Scheckter, Port
Elizabeth
Date
heard:
15 February 2018
Date
delivered: 16 February 2018
[1]
Erasmus:
Superior Court Practice, Volume 2 D1 - 449
[2]
Winlite Aluminum
Windows and Doors v Pyramid Freight 2011 (1) 571 at 573 para
[9]