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[2021] ZAGPPHC 347
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Simelane v Road Accident Fund (42992/2015) [2021] ZAGPPHC 347 (17 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 42992/2015
In
the matter between:
N.
M. SIMELANE obo S. A.
SIMELANE
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
K.
STRYDOM (AJ):
1.
This matter
was placed before me on the 16th of April 2021 on the Settlement Roll
in terms of Directive 1 of 2021. On that
date it was indicated
to the Plaintiff's counsel that the scale of costs appeared to fall
within the jurisdiction of the Magistrate's
Court being R112 248.00
(One Hundred and Twelve Thousand Two Hundred and Forty Eight Rand).
The matter was subsequently stood
down to the 19th of April 2021 to
enable counsel to file Heads of Arguments and make submissions to the
aspect of costs.
The
Claim and Settlement:
2.
The Plaintiff
claims on behalf of a minor child for loss of support suffered as a
result of the death of the minor's father in a
motor vehicle
collision.
3.
The settlement
is based on a calculation assuming an income of R18 000.00 (Eighteen
Thousand Rand) per year received by the deceased
up until the age of
majority of the minor child. The deceased was paid a salary of
R800.00 (Eight Hundred Rand) a month in
addition to a further R700.00
(Seven Hundred Rand) per month working as a gardener.
Plaintiff’s
submissions:
4.
Mr Lubbe
prepared well researched Heads of Argument on the matter and the
Court expresses its gratitude in this regard.
5.
The facts
underlying the Plaintiff's contention that it is entitled to High
Court costs can be summarised as the following:
6.
On the 20
th
of October 2017 the Honourable Ledwaba DJP granted an order in terms
of which the Defendant was found liable for 100% of Plaintiff’s
proven or agreed damages. These costs were awarded on the High
Court scale;
7.
In two
pre-trials held respectively in October 2015 and May 2018 the
Defendant did not raise the point that High Court costs should
not be
awarded or reserved.
8.
The Road
Accident Fund, no longer having legal representation, did not make
any submissions however the following can be extracted
as to their
view of the matter:
9.
In the
document “Offer and Acceptance of Settlement” dated the
7
th
of October 2020 the Road Accident Fund makes the tender.
However, it is noted that in Section C the costs on the
appropriate
scale
will
be paid following the settlement.
10.
In a letter
from the claims handler dated the 11
th
of January 2021 the claims handler confirms the settlement amount
however it notes that the scale of costs are reserved and postponed
sine die
(It is uncertain where the concept of the reservation and
postponement come from, considering that there was no previous
appearance
in this regard). A further e-mail from the claims
handler dated the 19
th
of April 2021 confirms that costs were tendered on the High Court
scale.
11.
The Heads of
Argument indicated that the differing attitude of the claims handler
pertaining to the costs were as a result of correspondences
between
the parties, where the Plaintiff indicated that costs were previously
settled on the High Court scale and the Road Accident
Fund did not
object to the matter being in the High Court.
12.
The gist of
the Plaintiff’s argument is that the Defendant’s
“reprehensible and dilatory” conduct in finalising
this
matter is the reason why this matter remained in the High Court.
The Plaintiff submits that the Plaintiff should not
be penalised with
the Magistrate’s Court cost order in circumstances where the
Road Accident Fund could have finalised this
case at the merits
stage. The so-called dragging out of the matter by the
Defendant and failure to for instance file its
own experts are
mentioned as some of the reprehensible conduct by the Defendant.
13.
The Plaintiff
referred to the matter of
Road
Accident Fund v Izaaks
a
Full Bench Appeal in the High Court of South Africa Northern Cape
Division, Kimberley, Case Nr. JA78P10, Case Nr. 1552/14 hear
on 23
March 2018 and Judgment delivered on 11 May 2018.
14.
In this matter
the Court considered the fact that the Plaintiff’s claim was
not properly and timeously investigated and that
the RAF did not
request to transfer the matter as factors the Court can consider in
exercising its discretion regarding the scale
of costs.
15.
In that case
the Court placed great emphasis on the use of the Rule 37(4)
procedures and indicated that the Road Accident Fund at
that stage
should have insisted on the matter being transferred.
Discussion:
16.
I am in
agreement with the sentiments in the matter of
Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2) SA 1045
at 1055 f-i
where it was stated:
“
T
he
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. These
would include the nature of the litigation being conducted before it
and the conduct of the parties
(or their representatives). A Court
may wish, in certain circumstances to deprive a party of costs, or a
portion thereof, or order
lesser costs than it might otherwise have
done, as a mark of its displeasure at such parties’ conduct in
relation to the
litigation. Is it to be precluded by agreement
by doing so? A Court should not be obliged to give its imprimatur to
an order
of costs which, in the circumstances, it considers entirely
inappropriate or undeserved. In my view as a matter of policy
and principle, a Court should not, and must not, permit the ouster of
its discretion because of agreement between the parties with
regards
to costs
”.
17.
In the matter
of
Rafiek
Williams v Road Accident Fund
(Western Cape High Court Case Nr. 13312/2006, Judgment delivered on
the 26
th
of February 2010) it was stated that:
“
(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 was within the Magistrate’s Court’s
jurisdiction, the Court will have regard to whether it was
reasonable, as seen from the Plaintiff’s perspective
when the proceedings were launched, to proceed in the High Court.”
[Underlining
my own]
18.
The
learned Judge went further and referred to an unreported case of
Moronta
Meja obo Mpetsheni v Road Accident Fund
(unreported judgment delivered on the 15
th
of November 2007) where the Court took into account that the
Defendant never suggested that the matter be referred to the
Magistrate’s
Court; the wide ranging nature of the legal and
factual disputes both in regard to a special plea that the Plaintiff
failed to
comply with certain regulations and the disputes pertaining
to the minor’s injuries, sequelae and damages and the fact that
the RAF’s admissions pertaining to merits and the undertaking
was made at a late stage.
19.
In the matter
of
Nobantu
Confidence Mafumana v Road Accident Fund
(High Court of South Africa Gauteng Division, Case Nr. 4900/2017,
Judgment delivered on the 29
th
of April 2019) the Plaintiff had died at some point during the course
of the proceedings, which effectively served to lower the
quantum
amount to within the jurisdiction of the Magistrate’s Court.
The parties were
ad
idem
that
had the Plaintiff not died, the Plaintiff would have been entitled to
costs on the High Court scale. Rule 39(22) of
the Uniform Rules
of Court deals with the transfer of matters from the High Court to
the Magistrate’s Court and states:
“
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.”
20.
The learned
Judge held that the section does not place an obligation on a party
to transfer a matter but only provides for an entitlement.
He
held that:
“
It
leaves a party with a choice and thereby suggests that a party should
not be penalised for exercising an option not to transfer
the
matter.”
“
But,
on the other hand it does not deal with costs and the discretion of a
Court remains unfettered. I am of the view that a Plaintiff
with
knowledge that the amount of damage he will be able to provide will
not be more than the jurisdictional amount of the Magistrate’s
Court, should use
his
entitlement and transfer the
matter. If this is not done a Court should only award costs on
a Magistrate’s Court scale
from the time where the matter
should have been transferred.
“
[Underlining myown]
21.
In the present
instance the matter pertains to a relatively straightforward loss of
support claim and cannot be construed as one
of severe complexity or
difficulties. It is important to note, at this juncture, that,
at inception of the matter, the Particulars
of Claim estimated the
loss of support to be at R129 200.00 only. This amount has
never gone above the threshold to
place it within the jurisdiction of
the High Court.
22.
The
entitlement to transfer a matter resides not only with the Defendant
but also with the Plaintiff. The Plaintiff has
dominus
litis
in
all these cases. It is the Plaintiff who, at inception, decides
in which Court a matter should be brought and through
his or her
legal representatives makes that election - presumably advised of the
risks that should he not prove High Court costs
entitlement, such
costs will be on the Magistrate’s Court scale. I disagree
with the contention that where a Defendant
does not object to the
forum in a pre-trial, that automatically ousts the Court’s
discretion to decide on costs. As
stated the rule pertaining to
transfers does not deal with costs and the Court’s discretion
in this regard remains unfettered.
23.
Insofar as the
considerations pertaining to scale of costs have now been seemingly
expanded to include the conduct of the parties
as part of the
consideration pertaining specifically to High Court versus
Magistrate’s Court costs, the argument is circular;
punitive
costs are awarded at the end of a trial during which the conduct of a
party has become evident. The decision to
institute a matter in
the High Court is taken at the very outset of the matter, when there
can be no argument that the conduct
of the impugned party would have
been anticipated as being reprehensible. Punitive cost orders
are usually awarded on attorney
client scales, costs a
bonus
propriis
,
disallowance of costs etc, at the end of the matter. The
election regarding the forum of institution of the matter falls
squarely to the Plaintiff.
In
casu,
it
was clear to the Plaintiff from the outset that this matter should
not have been brought in the High Court. Had the proceedings
been brought correctly in the Magistrate’s Court, the Plaintiff
would not have been prohibited in that forum for applying
for
punitive cost orders in the normal course. To use the
Plaintiff’s own incorrect institution of the matter in the
High
Court retrospectively as a punitive cost order would be unjust and
illogical.
24.
Whilst I am in
agreement that this matter should have been settled at the merits
stage and that the conduct of the Defendant in
this matter falls far
short of what is expected from a statutory body endowed with the
responsibility to serve the public, it should
be noted that the
Plaintiff was already awarded High Court costs at the merits stage
and is therefore not completely out of pocket
insofar as a greater
portion of the costs are concerned. The Plaintiff indicates
that the quantum should have been settled
on the same day as the
order for merits was made. I am not privy to the expert
documentation available on that day, however
on the strength of the
submission, one will assume there were actuarial calculations
available at that date already. The
Defendant therefore would
have been liable for those costs on a High Court scale at that stage
including the cost of counsel and
the like.
25.
In the
Mafunana
case
supra
the
learned Judge indicated that he was of view that the Plaintiff’s
legal representatives, upon the death of the Plaintiff
should have
proactively transferred the matter to the Magistrate’s Court
causing cost effective litigation. It was
accordingly held that
the Plaintiff would only be entitled to costs on a High Court scale
up until the date when it reasonably
should have transferred the
matter to the Magistrate’s Court.
26.
In casu
this is a
matter that should never have been instituted in the High Court, but,
in view of the previous Court order, the Plaintiff
has already been
awarded High Court scales for a portion of its preparation. Should my
finding against considering the scale of
costs (Magistrate’s
Court vs High Court) as a punitive element, be incorrect, I find that
any such punitive costs have already
been addressed by the previous
Court order.
27.
I accordingly
am of the view that costs should be awarded on the Magistrate’s
Court scale as per the draft order marked “X”
attached
herewith.
K
STRYDOM
ACTING
JUDGE OF THE HIGH COURT
OF
SOUTH AFRICA GAUTENG
DIVISION,
PRETORIA
Heard
on: 19 April 2021
Judgement
delivered:
Appearances:
For
the Plaintiff: Adv G Lubbe
Instructed
by: Nell Kotze & Van Dyk Attorneys
142
Haak & Steek Avenue
Wonderboom
Tel:
012 567 3329
Ref:
Reefa Steenkamp/A50379
No appearance for
Defendant.