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[2023] ZAECQBHC 63
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Sokaya v Road Accident Fund - Reasons for Order (138/2021) [2023] ZAECQBHC 63 (1 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 138/2021
In
the matter between:
MONDE
ARTHUR SOKAYA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
REASONS
FOR ORDER
BANDS
J:
[1]
This matter
came before me on the civil trial roll on 13 June 2023, having been
enrolled on four previous occasions,
[1]
namely, 3 February 2023; 10 February 2021; 17 February 2023; and 27
February 2023. On the morning of the hearing, I was advised
that save for certain issues pertaining to costs, the remainder of
the issues had become settled between the parties.
[2]
The terms of the parties’ settlement, inclusive
of the
plaintiff’s proposed order in respect of costs, was reduced to
writing in the form of a proposed draft order.
For present
purposes, it suffices to repeat the content of the disputed
paragraphs only, which read as follows:
“
5.
Defendant shall pay Plaintiff’s costs of suit on the scale as
between party and
party, on the High Court Scale, up to and including
13 June 2023, as taxed or agreed, such costs are to include:
5.1
…
5.2
…
5.3
…
5.4
The costs of the trial for 3 February 2023, 10 February 2023, 17
February 2023, 27 February 2023
and 13 June 2023.
5.5
The costs of Plaintiff’s attorney and counsel upon attendances
at Court on the dates
10 March 2023 and 24 March 2023.
5.6
The costs of Plaintiff’s counsel for the trial days trial for 3
February 2023, 10
February 2021, 17 February 2023, 27 February 2023
and 13 June 2023 as well as counsel’s preparation costs…”
[3]
In respect of the above, it was common cause that the
matter was set
down for trial on 3 February 2023 and thereafter on 13 June 2023.
Accordingly, the proposed cost order, insofar
as it related to those
dates, was undisputed. The discord between the parties was
rooted in the plaintiff’s contention
that the matter had been
set down for trial on 10 February 2023; 17 February 2023; and 27
February 2023 (“
the disputed dates
”), which the
defendant disputes, alleging that the matter had, on the disputed
dates, remained on the trial roll for settlement
purposes. The
parties were further unable to agree on the costs for attendances by
the plaintiff’s legal representatives
in front of the Deputy
Judge President Van Zyl (“
the DJP
”) on 10 and 24
March 2023 respectively.
[4]
I pause to emphasise that nothing in this judgment is
to be
misconstrued in any manner as to: (i) limit the powers of the taxing
master/mistress in the performance of his/her functions;
and/or (ii)
interfere in any manner with the exercise of his/her discretion.
[5]
On 14 June
2023, having been satisfied that the matter had been set down for
trial on the disputed dates, as well as the plaintiff’s
entitlement to the attendance fees on 10 and 24 March 2023
respectively, I granted an order in the terms proposed by the
plaintiff.
On 8 August 2023, an amended order was granted at
the request of the parties in accordance with Uniform Rule 42(1)(b),
correcting
a patent error contained in the order of court,
[2]
the details of which are irrelevant for present purposes.
[6]
What follows are the reasons for the order issued by
me, in respect
of costs, having been requested by the defendant to provide such
reasons.
[7]
At the commencement of the proceedings, three bundles
of documents
were handed up and marked as exhibits “A”, “B”,
and “C” respectively. Apparent
from exhibit “B1”,
read together with the draft order commencing on “B3”, is
that the matter was set down
for trial on 21 November 2022.
What is clear from the content of exhibit “A”, being
correspondence between the
parties’ respective legal
representatives, is that during the period of 10 November 2022 to 21
November 2022, various offers
of settlement in respect of the merits,
with the application of an apportionment, were made by the
defendant. Ultimately
at 08h45 on the morning of the trial, 21
November 2022, the merits were conceded 100% in favour of the
plaintiff.
[8]
A draft order to this effect was prepared by agreement
between the
parties, with the plaintiff’s claims for quantum, in terms of
paragraph 4 of such draft, being separated in terms
of Uniform Rule
33(4) and postponed to Monday 28 November 2022. An amendment to
the draft order is apparent from the face
thereof, by way of a hand
annotation, reflecting that the postponement was
for settlement
purposes.
[9]
Whilst paragraph 4 is absent from the stamped order of
court, the
court file was endorsed as follows:
“
In Chambers:
Order i.t.o. the Draft Order as amended and initialled. (Plaintiff’s
claims for quantum be and is hereby separated
i.t.o. Rule 33(4) and
postponed to 28 November 2022 for settlement purposes.”
[10]
That this was the
de facto
position was not placed in dispute
by either party in argument.
[11]
Mindful of the above, the plaintiff’s counsel brought to my
attention
that on the postponed date, being 28 November 2022, the
defendant inexplicably sought to contend that it was no longer
prepared
to concede liability and that it would seemingly be
proceeding on the basis that the issues of liability and quantum both
remained
in dispute. The reasons for this are unclear.
That the defendant laboured under such mistaken belief is apparent
from
exhibit “B59”, being correspondence addressed to the
plaintiff’s attorney of record by a representative of the
defendant, on 10 March 2023, recording an offer of settlement, to
which a 20% apportionment was applied. The plaintiff’s
insistence that the issue of liability had previously been conceded,
which concession had been recorded in an order of court, which
is
apparent from exhibit “B60”, fell on deaf ears.
Bafflingly, the issue of the apportionment was only resolved
on the
morning of 13 June 2023, being the date on which the matter served
before me. This is apparent from exhibit “B61”,
being an email addressed to the plaintiff’s attorney of record
on 13 June 2023, at 08h33, by one Jonas Khutele, a representative
of
the defendant. The email reads as follows:
“
Good day!
We have revised the
offer as follows and same will be sent to you when the printout is
available:
General Damages
R450 000
Past
loss
R143 701
Future
loss
R983 958
Total
offer
R1 577 660
Further note that
we have removed apportionment.
We wait to hear from
you.
Kind regards
”
[own emphasis].
[12]
Notwithstanding the aforesaid, and without addressing the above
misnomer, it
was argued on behalf of the defendant that the issue of
liability had become settled on 21 November 2022 and that from that
date
onward, the only issue in dispute between the partes remained
that of quantum. Whilst this may be so in fact, implicit in
the
aforesaid correspondence is that the defendant was, at all material
times, from 28 November 2022 up until 13 June 2023, of
the misguided
view that the issue of liability remained a live issue for
determination by the court.
[13]
With no progress being made on 28 November 2022, the matter was
referred back
to the DJP and an order was granted, on 1 December
2022, in terms of which the defendant was ordered to pay the
plaintiff’s
costs from 22 November 2022 to 1 December 2022, as
taxed or agreed, together with other ancillary relief. More
particularly,
paragraph 4 of the order reads as follows:
“
4.
Defendant shall make a decision on whether or not it accepts that
Plaintiff sustained
a serious injury arising from the motor vehicle
accident which occurred on 2 April 2018 at the intersection of
Khawulela Street
and Ramra Street, NU-B, Motherwell, Gqeberha on or
before 13 January 2023.
”
[14]
The matter was thereafter set down for trial on 3 February 2023, on
which date
the matter was postponed at the request of the defendant
to 10 February 2023, the reason for such request being self-evident
from
the content of paragraph 2 of the order. The order of
court reads as follows:
“
1.
The matter be and is hereby postponed to the 10
th
of February 2023.
2.
The Defendant is to address paragraph 4 of the order dated 1 December
2022 on
or before 10 February 2023.
3.
The cost of the postponement is to be costs in the cause.
”
[15]
On 10 February 2023, more than two months subsequent to the DJP’s
order,
directing the defendant to take a decision in respect of the
“seriousness” of the plaintiff’s injuries, the
matter
came before Collett AJ. Once again, the matter was
postponed at the request of the defendant, the aforesaid issue still
being
unresolved. Accordingly, an order was granted in the
following terms:
“
1.
The matter be and is hereby postponed at the request of the Defendant
to the 17
th
of February 2023.
2.
The Defendant is to address paragraph 4 of the order dated 1 December
2022 on
or before 17
th
February 2023.
3.
The costs of the postponement are costs in the cause.
”
[16]
Collett AJ, in endorsing the draft order of court on 10 February 2023
made
a note thereon that the file was to be return to the DJP.
The matter was thereafter allocated to Zilwa J for 17 February 2023.
On 17 February 2023, at the request of the defendant, an order was
granted in the same terms as that on 10 February 2022, but for
the
inclusion of extended time frames, as follows:
“
1.
The matter be and is hereby postponed at the request of the Defendant
to the 27
th
of February 2023.
2.
The Defendant is ordered to address paragraph 4 of the order dated 1
December
2022 on or before 23 February 2023.
3.
The costs of the postponement are to be costs in the cause.
”
[17]
It was argued by the plaintiff’s counsel that Zilwa J, when
granting
the aforesaid order, expressed his concern that the matter
was again being postponed. That this was in fact so, was not
placed
in dispute on behalf of the defendant.
[18]
There is no
record in the court file as to what transpired on 27 February 2023,
nor does there appear to be an order of court issued
on the said
date. Neither of the legal representatives were able to shed
any light on this aspect save for the submission
on behalf of the
plaintiff’s counsel that on each and every postponed date, not
only did he hold a trial brief, but the plaintiff
was ready to
proceed with the trial.
[3]
[19]
The attorney appearing on behalf of the defendant, during the course
of argument
referred me to two decisions of the Eastern Cape High
Court,
Williams NO v Taxing Mistress of the High Court, Port
Elizabeth; in re: Williams NO v Road Accident Fund and Others
3
All SA 658
(ECP) (“
Williams
”) and
Trollip v
Taxing Mistress of the High Court and Others
2018 (6) SA 292
(ECG) (“
Trollip
”), both of which repeat the
accepted position that:
“…
the
acceptance of a brief on the running roll requires the advocate to
give consideration to the possibility that the matter may
not
commence on the allocated date
and
that
it may run for longer than anticipated. The acceptance of a brief on
trial in these circumstances necessarily means that the
trial fee
may be earned not on the day allocated for the trial but on a
subsequent day. If the matter settles either on the
allocated date or
thereafter, the entitlement to a trial fee will depend upon whether
the advocate has, as the authorities put
it, lost the opportunity to
earn the fee. Where the day has been “reserved” it
necessarily follows that no other appearance
work has been or can be
conducted on that date. In the event that other appearance work is
performed the advocate is not entitled
to charge the trial fee on the
basis merely that the day has been reserved.
”
[4]
[20]
Neither decision is of assistance to the defendant on the facts of
the present
matter. The legal principles as to when counsel is
entitled to raise a trial fee is not in dispute between the parties.
What is in dispute is the factual position as to whether or not the
matter was set down for trial purposes, on the disputed dates.
On the facts of this matter, it is not disputed that in the event of
a finding that the matter was set down for trial and was not
merely
standing down for the purposes of settlement, the plaintiff would be
entitled to the order sought.
[21]
If I accept that the defendant was under the mistaken belief that the
trial
was to continue on the issues of both liability and merits,
which I must accept for the reasons stated, coupled with the
following
further facts: (i) there are no notes on the file to
indicate that the matter was merely standing down and/or that it was
to remain
on the trial roll for settlement purposes only; (ii) the
orders of court on the disputed dates specifically postponed the
matter
to future dates, with the orders granted on 10 and 17 February
2023 recording that the postponements were at the request of the
defendant; (iii) the file was not retained by each and every judge
seized with the matter, for the purposes of settlement, but
instead
transferred to alternative judges, seized with civil trials in the
relevant week/s; (iv) no cogent reason was advanced
on behalf of the
defendant as to why the matter was not set down for trial on the
disputed dates; there was no reason upon which
to find that the
matter was set down for any other reason than for the purposes of
trial on the disputed dates.
[22]
I now turn to the attendances by the plaintiff’s legal
representatives
on 10 and 24 March 2023. Apparent from exhibit
“B53” is that whatever transpired on 27 February 2023,
the matter
remained on the trial roll. A draft order was
prepared by the parties in which it was recorded that the defendant
accepted
that the plaintiff had suffered serious injuries in terms of
Regulation 3(3)(b) of the Regulations. Notwithstanding the
draft
order, the matter stood down, at the request of the defendant,
until 24 March 2023 when the matter was ultimately removed from the
trial roll and the following order was issued:
“
1.
The matter is removed from the trial roll and the registrar may enrol
the matter for
hearing on 13 June 2023.
2.
The costs of the trial are to be costs in the cause.
3.
Defendant having accepted that Plaintiff has suffered serious
injuries in terms
of Regulation 3(3)(b) of the Regulations, Plaintiff
shall be entitled to claim such general damages as he may prove or as
agreed
upon.
”
[23]
Such attendances were not disputed on behalf of the defendant during
argument,
which attendances I accept. Moreover, no reasons,
whatsoever, were advanced on behalf of the defendant as to why the
plaintiff
was not entitled to such costs, in the absence of which,
there exists no reason as to why they ought not to have been
granted.
[24]
Having already granted the order on 14 June 2023, I need make no
further order.
I
BANDS
JUDGE
OF THE HIGH COURT
Coram:
Bands J
Date heard:
13 June
2023
Order granted:
14 June 2023
Amended order:
8 August 2023
Written reasons:
1 November 2023
Appearances:
For the plaintiff:
Adv Frost
Instructed by:
Labuschagne van der
Walt Inc.
6 Cuyler Street,
Central, Gqeberha
For defendant:
Ms Jantjes
Instructed by:
State Attorney
29 Western Road,
Central, Gqeberha
[1]
In addition to which the matter had also previously been set down in
November 2022, the costs for which are not disputed.
[2]
The
capital sum having been recorded as R1,577,660 instead of
R1,577,660.15.
I
was advised by the parties that the disparity in the said sum,
whilst somewhat insignificant, was causing a delay in the processing
of payment.
[3]
Presumably
the plaintiff either would have elected to abandon general damages
or seek a separation of issues at the commencement
of the trial.
[4]
Williams
(supra)
at paragraph [25].