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[2023] ZAFSHC 124
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Grimbreek N.O MJ Shai v Road Accident Fund (506/2017) [2023] ZAFSHC 124 (20 April 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no
506/2017
In
the matter between:
AA
GRIMBREEK N.O MJ SHAI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
BY:
T RAMDEYAL AJ
HEARD
ON:
12 APRIL
2023
DELIVERED
ON:
20 APRIL 2023
JUDGMENT
[1] The
court is called upon to determine the aspect of costs in this matter.
[2] On
the 17
th
of December 2015 a motor vehicle collision
occurred whereby the plaintiff, who is now the late Mohau John Shai,
instituted action
proceedings against the defendant, Road Accident
Fund having claimed damages to the amount of R1 050 000.00
for past
medical and hospital expenses, estimated future medical
treatment, past loss of income, estimated future loss of income and
general
damages.
[3]
Merits of this matter were settled and the quantum aspect postponed.
The plaintiff subsequently passed away.
At all relevant times the
matter was before the High Court, proceedings having been instituted
in the High Court due to the amount
exceeding the magistrate court
and regional court jurisdiction.
[4] The
parties agreed to this matter being heard in the High Court and
agreed that it not be transferred to another
court. The contention
now arises from the defendant that upon settlement of the quantum in
the amount of R150 000, that the
court should order costs on a
Magistrate Court Scale.
[5] The
defendant submits that after the death of the late Mr Shai that the
claim for future loss of earnings
fell away and the quantum of the
claim effectively fell within the jurisdiction of the Magistrate
Court and therefore the costs
order should be based on the Magistrate
Court Scale and not that of the High Court.
[6]
Rule 39(22) of the Uniform Rules of Court provides as follows:
‘
By
consent the parties to a trial shall be entitled, at any time, before
trial, on written application to a judge through the registrar,
to
have the cause transferred to the magistrate’s court: Provided
that the matter is one within the jurisdiction of the latter
court
whether by way of consent or otherwise.’
[7]
This was not done by either party. The plaintiff instituted
proceedings in the High Court, there was no contention
to this. It is
only at the very end of the proceedings having further agreed to
settlement of the quantum that the defendant submits
that the claim
for future loss of earnings falls away and the quantum of the claim
having fallen within the jurisdiction of the
Magistrate’s
Court; that the costs order be granted in line with same. Whilst it
can be argued that counsel for the plaintiff
was aware of the
expected reduced amount of the claim appropriate to the magistrate
court jurisdiction, the defendant too was aware
of the plaintiff’s
death and the possibility of settlement in this matter on an amount
appropriate for the lower court. The
defendant too was entitled to
apply to transfer the matter to a lower court and to investigate the
case properly. This too can
be a factor for the court to consider in
exercising its discretion.
Road
Accident Fund v Isaacs
[1]
Counsel for the plaintiff
submitted that he only became aware of the dispute of costs in the
late afternoon of the 11
th
of April 2023.
[8]
This is not a case of a litigant having instituted proceedings in the
High Court when he should have proceeded
in the lower court. In such
a case a litigant will be mulcted in costs and awarded costs in the
forum he ought to have chosen.
[2]
[9]
However, if a plaintiff can justify his recourse to the High Court
the question that arises as to whether
High Court costs or
Magistrate’s Courts costs are to be awarded is a matter within
the discretion of the trial judge, to
be exercised judicially upon a
consideration of all the facts.
Ramsusran
and Another v Yorkshire Insurance Co Ltd
[3]
[10]
The costs order stands to be determined. In
Rafiek
Williams v Road Accident Fund Western Cape High Court
:
[4]
“
In
considering the exercise of its discretion whether to award costs on
the high court or magistrate’s court scale where the
eventual
judgment is within the magistrates’ courts’ jurisdiction
the court will have regard to whether it was reasonable,
as seen from
the plaintiff’s perspective when proceedings were launched, to
proceed in the high court. Regard may also be
had to the subsequent
developments in the case that ought to cause the plaintiff to revise
his previous estimate of the importance
of the case, and to explore
the possibility of having the case transferred to the magistrates
court.”
[11] In this matter
had the plaintiff not passed away then the claim for damages would
have been in excess of R1 000
000 for general damages, loss of
income and future medical expenses, as a result of the plaintiff’s
death the executor can
only proceed on a claim for general damages
and past loss of income. The situation changed after proceedings were
already instituted
in the High Court. Reports of expert witnesses to
be called by the plaintiff were compiled whilst the matter was
enrolled in the
High Court, unfortunately Mr John Shai passed away
thereafter on the 3
rd
of February 2018. It was agreed at
the pre-trial conference held on 19 August 2022 that the matter
should not be transferred, and
a trial date was obtained and agreed
upon for the 11
th
and 12
th
of April 2023 in the
High Court. Counsel was instructed for the plaintiff. It is not the
contention of the defendant that it was
unaware of the passing of the
plaintiff.
[12] Plaintiff’s
perspective to proceed in the High Court when proceedings were
instituted is correct and to continue
with the matter in the High
Court even after plaintiff’s death is reasonable in the
circumstances especially in light of
the fact that it was agreed by
both parties that the matter not be transferred to another court.
[13] With that
agreement in mind, preparation for trial and the instruction of
counsel in the High Court the plaintiff should
not be mulcted in
costs. It is apparent that there was no agreement that should the
matter continue in the High Court, a lower
court cost order will be
requested and awarded.
[14]
I am aware that case law submitted by the defendant leans towards
granting lower court cost orders when matters are in
the high court
but the amount ordered or settled falls within the jurisdiction of
the lower court, but the circumstances of this
matter differ. In
International
Exports (Pty)Ltd v Fowles
:
[5]
“
The
Court’s discretion is a wide, unfettered and equitable one. It
is a facet of the Court’s control over the proceedings
before
it. It is to be exercised judicially with due regard to all relevant
considerations…”
[15] Two draft
orders have been handed to court by both the plaintiff and the
defendant which are both in agreement that the
defendant shall pay
the plaintiff the amount of R150 000 in respects of general
damages.
[16] In the
circumstances of this matter I award costs to be paid by the
defendant to the plaintiff on a High Court Scale
and make the order
of court as per the draft order submitted by the plaintiff and marked
with “X”.
ORDER
1.
1.1
The defendant shall, by agreement between the parties, pay the
plaintiff the sum of R150 000.00
(One Hundred and Fifty Thousand
Rand) in respect of general damages.
1.2
The defendant shall pay the abovementioned amount into the
plaintiff’s attorneys trust account.
The plaintiff’s
attorney’s trust account details are as follows:
ACCOUNT HOLDER:
VZLR
INC
BRANCH:
ABSA
BUSINESS BANK HILLCREST
BRANCH CODE:
632005
TYPE OF ACCOUNT:
TRUST
ACCOUNT
ACCOUNT NUMBER:
[….]
REFERENCE:
MAT92950
1.3
In the event that the defendant does not, within 180 (one hundred and
eighty) days from the date on
which this order is handed down, make
payment of the capital amount, the defendant will be liable for
payment of interest on such
amount at 11.25% (the statutory rate per
annum) compounded and calculated fourteen days from date of this
order.
2.
2.1
The defendant to pay the plaintiff’s taxed or agreed party and
party costs, up to and including
the date, when the order is made an
order of court.
2.2
The reasonable qualification fees of all the plaintiff’s
experts of whose reports had been furnished
to the defendant and/or
its experts:
2.2.1
Dr LF Oelofse -
Orthopaedic
Surgeon
2.2.2
Ms R van Biljon - Occupational
Therapist
2.2.3
Mr B Moodie - Industrial
Psychologist
2.2.4
Mr J Sauer - Actuary
2.3
The costs of Counsel
2.4
In the event of default on the costs payment, interest shall accrue
on such outstanding amount at the
statutory more rate on the date of
taxation/settlement of the bill of cost, as per the
Prescribed Rate
of Interest Act, 55 of 1975
, as amended, per annum, calculated from
due date until the date of payment.
T
RAMDEYAL AJ
On
behalf of the Plaintiff: Adv
JC Van Eeden
Instructed
by: Du
Plooy Attorneys
BLOEMFONTEIN
On
behalf of the Defendant: Mrs C
Bornman
Instructed
by: Road
Accident Fund
BLOEMFONTEIN
[1]
Full
Bench Appeal in the High Court of SA Northern Cape Division,
Kimberley, Case no. JA 78P10 judgment delivered on 11 May2018).
[2]
LAWSA
Vol 3 Part2 Second Edition para 299.
[3]
1965
(2) SA (D) at 264 G - 265A.
[4]
Case
No 13312/2006 delivered on 26 February 2010.
[5]
1999(2)
SA 1045 at 1055 f – i.