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[2022] ZANCHC 76
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Du Toit N.O obo Nkuna v Road Accident Fund (Leave to Appeal) (545/2010) [2022] ZANCHC 76 (16 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 545/2010
Reportable:
YES
/ NO
Circulate
to Judges: YES
/ NO
Circulate
to Magistrates: YES
/ NO
Circulate
to Regional Magistrates: YES
/ NO
Heard:
09/05/2022
Date
delivered: 16/09/2022
In
the matter between:
ADVOCATE
ALBERTUS JOHANNES DU TOIT N.O.
Obo
MAWETHU MAXWELL NKUNA
Applicant / Plaintiff
and
THE
ROAD ACCIDENT FUND
Respondent / Defendant
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
EILLERT,
AJ
1.
The Applicant applies for leave to appeal
to the Supreme Court of Appeal, alternatively to the Full Bench of
this Court in terms
of section 17 of the Superior Courts Act, Act 10
of 2013, against the whole of my judgment delivered and order granted
on 17 December
2021, in terms whereof I dismissed the Applicant’s
application for a special cost order against the Defendant.
2.
The grounds advanced by the Applicant in
his Notice of Application for Leave to Appeal are that I had erred
and/or misdirected myself,
where a reasonable prospect of success
exists that another Court may come to another conclusion, in respect
of the following:
“
2.1
By finding that the Applicant’s Calderbank offer (dated 14
October 2020) was ‘not available’ to
the Applicant and
thus the Court was precluded from considering/re-considering the
costs awarded to the Applicant in the Capital/trial
judgment dated 11
December 2020;
2.2
By finding that the Applicant’s Calderbank offer was not
governed by the provisions of Rule 34, nor
that the mechanisms
provided by Rule 34(12) were available to him;
2.3
By finding that the Applicant’s Calderbank offer was
‘inadmissible’ in relation to costs;
2.4
By finding that the Applicant’s attorneys had failed to ‘go
far enough’ in the formulation
of their 14 October 2020 offer
to qualify as a Calderbank offer;
2.5
By finding that the Applicant had failed to word, correctly or at
all, the Calderbank offer to include “without
prejudice save as
to costs”, thus precluding the Applicant from either relying
upon the offer to claim punitive costs or
to have the trial
party-and-party costs reconsidered;
2.6
By failing to find that the Respondent had behaved unreasonably or
had put the Applicant to unnecessary expense,
by not accepting or
acting upon the Calderbank offer, timeously or at all;
2.7
By finding that the ‘mere difference’ of R20,000.00
between the Calderbank offer and the Capital/trial
judgment was
insufficient for the Applicant to invoke – or rely upon –
the Calderbank offer;
2.8
By finding that the R20,000.00 differential between the Calderbank
offer and the Capital/trial judgment did
not offer the Respondent a
‘fair discount’;
2.9
By failing to uphold Applicant’s unopposed application (dated
25 February 2021) and the uncontested
allegations of fact contained
therein.
”
3.
Several of the grounds for leave to appeal
advanced by the Applicant are in the context of my judgment and order
interrelated, and
I will therefore for the sake of convenience and
expediency proceed to deal with those interrelated grounds
simultaneously.
THE
FIRST GROUND OF LEAVE TO APPEAL
4.
I am of the view that the first ground for
leave to appeal advanced by the Applicant constitutes an incorrect
interpretation of
my judgment. In paragraph 12 of my judgment, I
found as follows:
“
Because
I am of the view that
the
plaintiff’s offer of 14 October 2020 is not governed by the
provisions of Rule 34
, it
necessarily follows that
the
mechanism provided by Rule 34(12) is not available to the plaintiff
herein
and would not allow me to
consider the question of costs afresh at this stage
”
(my emphasis added).
There
is therefore a marked difference between what the Applicant in his
first ground for leave to appeal contends I found in my
judgment, and
what was in fact found in my judgment.
5.
It
is clear from the passage quoted above that it was not my finding
that, in principle, the mechanism of a so-called Calderbank
offer was
not available to the Applicant. On the contrary, paragraph 13 of my
judgment made it clear that a plaintiff is not precluded
from making
a secret offer to a defendant outside of the rules of court. It has
been recognised practice since the judgment in
AD
and Another v MEC for Health and Social Development, Western Cape
[1]
that so-called Calderbank offers form part of our common law. In the
same paragraph of my judgment, I also cited the matter of
Van
Reenen v Lewis and Another
[2]
,
where the Free State High Court applied the principles of so-called
Calderbank offers and gave a punitive cost order against the
second
defendant.
6.
Given
that the Applicant’s first ground of appeal is founded upon a
patently incorrect interpretation of my judgment, I am
unable to find
a sound and rational basis
[3]
that would support a conclusion that the Applicant’s first
ground for leave to appeal carries a reasonable prospect of success
on appeal.
THE
SECOND GROUND OF LEAVE TO APPEAL
7.
Mr Eia, on behalf of the Applicant, did not
advance argument in support of the second ground for leave to appeal
in either the Applicant’s
heads of argument or in argument
before me, save to submit that the courts in
AD
and
Van
Reenen
accepted that ‘Calderbank’
Offers are akin to Rule 34 offers when it comes to the question of
costs, because both are
secret/without prejudice offers which one
party may rely upon when it comes to the argument of costs and the
scale thereof. Given
my judgment that follows on the further grounds
for leave to appeal advanced by the Applicant, it is not necessary
for me to decide
whether the second ground for leave to appeal
carries a reasonable prospect of success on appeal.
THE
THIRD, FOURTH AND FIFTH GROUNDS FOR LEAVE TO APPEAL
8.
In my judgment of 17 December 2021, I found the Applicant’s
offer of 14 October 2020 to be inadmissible in relation to the
aspect
of costs. The basis for this finding was set out in paragraphs 14 to
16 of my judgment, in that I held that the wording
employed by the
Applicant, both in the offer itself, as well as in the e-mail under
cover of which the offer was dispatched, did
not properly qualify the
Applicant’s offer as a ‘Calderbank offer’.
9.
Mr Eia submitted that the Applicant’s offer of 14
October 2020, being a secret offer, by legal implication made it a
‘
without prejudice
’ offer. The Applicant is
further of the view that the wording employed by the Applicant in the
offer contained an express
recordal or reservation in respect of
costs, and as such met the requirements for admissibility.
10.
Mr Eia further contended that the issues of
how far an applicant must go in the formulation of his or her
Calderbank offer and what
the formulation of a Calderbank offer ought
to be are particularly suited for referral to the Full Bench for
decision.
11.
It is currently still the position, as it
was at the time of writing my judgment, that Calderbank offers had
only been considered
in two South African reported cases, being that
of
AD
and
Van Reenen
.
In both such cases, the plaintiff’s Calderbank offers were held
to be admissible with regard to costs, but the wording of
the offers
were not recounted in the reported judgments.
12.
I am persuaded in the circumstances that on
the third, fourth, and fifth grounds for leave to appeal a reasonable
prospect of success
exists and that another court may come to a
different conclusion on such grounds.
THE
SIXTH, SEVENTH AND EIGHTH GROUNDS FOR LEAVE TO APPEAL
13.
It
was held in
AD
that a plaintiff who has made a Calderbank offer is not entitled to
attorney and client costs merely because he made a secret offer
which
was less than what the Court awarded. The Court must still consider
whether the defendant behaved unreasonably, and thus
put the
plaintiff to unnecessary expense, by not accepting the offer or
making a reasonable counteroffer.
[4]
14.
As
stated in
AD
[5]
,
certain factors are mentioned in the Commonwealth cases which would
guide a court in determining whether a defendant’s conduct
may
be said to be unreasonable, being: whether the defendant has engaged
reasonably in attempting to settle; whether the plaintiff
was
offering a fair discount based on a realistic assessment of the case
rather than holding out for the best conceivable outcome;
whether the
plaintiff allowed the defendant a reasonable time to consider the
offer; the extent of the difference between the amount
offered and
the amount awarded; and the nature of the proceedings and resources
of the litigants.
15.
In my considered view there is a reasonable
prospect that another court, in applying the aforementioned factors
to the facts of
the matter at hand, may weigh the factors differently
and in doing so, may conclude that the Defendant’s conduct in
this
matter may have been unreasonable. This may of course lead
another court to making an adverse cost order against the Defendant.
16.
Mr Eia advanced two further arguments,
which are compelling. He submitted that when considering whether the
Plaintiff offered a
significant discount, it must be borne in mind
that such discount cannot be offered arbitrarily, as the Plaintiff’s
attorneys
would thereby expose themselves to the risk of being found
professionally liable. This consideration might form part of the
question
of what a realistic assessment of the case was. It was also
submitted that, because the taxation of the expenses relating to the
Plaintiff’s experts were still left in the discretion of the
taxing master, the Plaintiff would be left significantly out
of
pocket with regard to such expenses.
17.
In the premise I am of the view that the
sixth, seventh and eighth grounds for leave to appeal also carry a
reasonable prospect
of success.
THE
NINTH (AND FINAL) GROUND FOR LEAVE TO APPEAL
18.
It is so, that the Applicant’s
application for a special cost order, was not opposed by the
Respondent and that the Applicant’s
allegations of fact were
uncontested. In my view, this of course did not relieve the court of
its responsibility in determining
whether the Applicant met the
requirements in law for the order sought. Furthermore, it is trite
that costs are always in the discretion
of the court, which
discretion must be exercised judicially.
19.
What is then left of this ground for leave
to appeal, in my view, constitutes a conclusion in law, based on all
the other grounds
for leave to appeal already advanced by the
Applicant. Having found that a reasonable prospect of success exists
on several of
the other grounds advanced by the Applicant, this
ground must also follow suit.
CONCLUSION
20.
In the premise, I find that the Applicant
has shown a reasonable prospect of success on appeal in respect of
the third to ninth
grounds for leave to appeal advanced by the
Applicant.
21.
In this instance I am of the view that none
of the considerations set out in section 17(6)(a)(i) or (ii) of the
Superior Courts
Act are currently present, and the Applicant must
therefore be granted leave to appeal to the Full Bench of this Court.
The
following order is made:
1.
The Applicant is granted leave to
appeal to the Full Bench of this Court in respect of the judgment and
order of 17 December 2021.
EILLERT,
A
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant/Plaintiff:
Adv. PC Eia
Instructed
by: Elliott,
Maris, Wilmans & Hay
HvN/H5192
For
the Respondent/Defendant: No opposition
Represented
by: The
Road Accident Fund
LINK:
250 7904
REF:
70/1353411/13/0
[1]
2017 (5) SA 134 (WCC)
[2]
(2302/2014)
[2019] ZAFSHC 55
(14 May 2019)
[3]
Land and Agricultural Development Bank of South Africa and Another v
Van den Berg and Others
[2022] 1 All SA 457
(FB) at [16]
[4]
At paragraph [61].
[5]
Ibid.