About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2021
>>
[2021] ZANCHC 66
|
|
du Toit obo Nkuna v Road Accident Fund (454/2010) [2021] ZANCHC 66 (17 December 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: 454/2010
Date
Delivered
:
17 December 2021
In
the matter between:
Adv
AJ du Toit N.O. on behalf of
MAWETHU
MAXWELL NKUNA
Plaintiff/Applicant
and
THE
ROAD ACCIDENT
FUND
Defendant/Respondent
JUDGMENT
Eillert
AJ.
1.
This matter concerns an application by the
plaintiff for a special costs order against the defendant. The
plaintiff instituted a
claim for damages against the defendant
arising out of a motor vehicle accident that occurred on 18 May 2007.
After the defendant
had conceded the merits of the plaintiff’s
claim, the trial in respect of the quantum of the plaintiff’s
claim came
before Mofokeng AJ on 24 November 2020.
2.
Mofokeng AJ delivered judgment on 11
December 2020. The judgment contained somewhat extensive provisions
for the payment of the
plaintiff’s costs by the defendant.
Broadly speaking, Mofokeng AJ awarded the plaintiff costs on the High
Court scale as
between party and party.
3.
On 18 December 2020 the plaintiff’s
counsel, Mr Eia, addressed an e-mail to Mofokeng AJ’s clerk,
requesting that the
Acting Justice’s attention be draw to the
fact that on 14 October 2020 the plaintiff had made a so-called
Calderbank
offer to the defendant. Mofokeng AJ was requested to
exercise her discretion in favour of the plaintiff and to award the
plaintiff
costs on the attorney and client scale in view of the
aforesaid Calderbank offer.
4.
On 25 January 2021 Mofokeng AJ advised the
plaintiff’s legal representatives through the acting court
manager that, having
considered the plaintiff’s request, she
was of the view that the order that had been granted should stand.
5.
The plaintiff persisted with his request
and on 25 February 2021 launched the application that is the subject
of this judgment.
The plaintiff now seeks relief in the following
terms:
“
That
the respondent/defendant is liable for the applicant/plaintiff’s
costs on an attorney and client scale, from the date
of service of
the applicant/plaintiff’s Calderbank offer….”
6.
The application was properly served upon
the defendant and brought to the attention of the claims handlers of
the defendant beforehand.
The defendant elected not to oppose the
application. A judgment-monitoring officer in the employ of the
defendant, Mr. A. Rakgwale,
did attend the hearing of the
application, but informed the Court that he did not have any
instructions in the matter. The factual
averments and legal
submissions made by plaintiff’s legal representatives in the
application are therefore undisputed.
7.
The events that led up to the plaintiff
making the so-called Calderbank offer were these. The plaintiff’s
attorneys served
the notice of set down in respect of the quantum
trial on the defendant’s attorneys on 20 February 2020. On 4
March 2020,
the defendant’s attorneys withdrew as attorneys of
record. The plaintiff’s attorneys therefore sent a copy of the
notice
of set down and the defendant’s former attorneys’
notice of withdrawal to the defendant by e-mail on 29 July 2020.
On 18 September 2020, a bit more than two months prior to the quantum
trial, the plaintiff’s attorneys sent a “without
prejudice” settlement proposal to the defendant’s claims
handlers. One of the claims handlers, Mr. Frank, read the
e-mail from
the plaintiff’s attorneys on 25 September 2020. No response was
however forthcoming from the defendant. On 2
October 2020, the
plaintiff’s attorneys sent a follow-up email to the defendant’s
claims handlers. This e-mail was
again read by Mr. Frank, and on the
same day elicited a response from a Mr. Mowzer stating that Mr. Frank
would attend to the matter
as soon as humanly possible. By 14 October
2020, the plaintiff’s attorneys had still not received a
response from the
defendant, and then proceeded to deliver the
so-called Calderbank offer. The covering e-mail of the plaintiff’s
attorneys
was read by Mr. Frank on the same day. It is apparent that
the defendant never substantially responded to the plaintiff’s
settlement proposals.
8.
The plaintiff proceeded with the quantum
trial on 24 November 2020. Paragraph 4 of Mofokeng AJ’s
judgment records that Mr.
Rakgwale was present in court and that he
confirmed that the defendant was aware that the matter was set down
for trial. The Court
was informed that the claims handler of the
defendant based in Cape Town had submitted an executive summary to
the defendant’s
Pretoria office for a mandate, but that the
claims handlers were unable to make an offer until they received a
mandate. Such mandate
however never materialised.
9.
At trial, the plaintiff called two expert
witnesses, Dr Z. Domingo, a neurosurgeon and Ms Kotze, an industrial
psychologist to testify
on the plaintiff’s behalf, as well as
the plaintiff’s sister. The plaintiff further relied on the
expert reports and
joint minutes that had been filed of record.
10.
As a result of the quantum trial, Mofokeng
AJ awarded the plaintiff a total amount of R7 208 988.16 in
damages, consisting
of general damages, loss of earnings and past
medical expenses.
11.
In
seeking the special costs order against the defendant, the plaintiff
relied both on Rule 34 and on the so-called Calderbank
offer. Mr
Eia, who also appeared on behalf of the plaintiff and argued the
application, submitted that the plaintiff’s offer
of 14 October
2020 fell four-square within the provisions of Rule 34. I find
myself unable to agree with this proposition,
for the simple reason
that the purpose of Rule 34 is to enable a defendant to
safeguard himself against liability for costs
by utilising the
procedures prescribed by the Rule.
[1]
The procedures prescribed in Rule 34 may be utilised by a
defendant, a party who may be ordered to contribute towards
an amount
for which any other party to an action may be held liable, a third
party, or by a plaintiff as a defendant in reconvention.
[2]
The provisions of Rule 34 do not provide for the situation
before me, where a plaintiff, who is not a defendant in reconvention,
makes an offer to a defendant. Rogers J in
AD
and Another v MEC for Health and Social Development, Western Cape
[3]
also drew this distinction when the learned Judge stated that Rule 34
permits a defendant to make a secret tender, but that
a plaintiff may
also make a secret tender outside of the rules.
12.
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.
13.
However,
as foreshadowed in paragraph 11 above, a plaintiff is not
precluded from making a secret offer to a defendant outside
of the
rules of court. It has since the judgment in
AD
and Another
supra
in 2017 been recognised that a so-called Calderbank offer, after the
judgment of the English Court of Appeal in
Calderbank
v Calderbank
[4]
,
forms part of our common law. A Calderbank offer is a settlement
offer made by a litigant under the qualification “without
prejudice save as to costs”, or words to similar effect, which
at the time it is made may naturally not be disclosed to the
court,
but which the litigant may, once judgment had been granted, rely on
in support of a request for a particular costs order.
The law
relating to Calderbank offers formed the basis upon which the Court
in
Van
Reenen v Lewis and Another
[5]
inter alia made a punitive costs order against the second defendant
in favour of the plaintiff.
14.
In
relation to the plaintiff’s so-called Calderbank offer, it must
first be determined whether the plaintiff’s offer
is admissible
at all in relation to costs. In order to be admissible for the
purposes of costs, the offer must explicitly state
that it is made
without prejudice “except in relation to costs” or must
employ words to similar effect.
[6]
In the matter of
Van
Reenen
supra
,
the plaintiff did not employ the explicit working of “without
prejudice save in relation to costs”. The Court nevertheless
held that the Calderbank offers were admissible, as it could be
inferred from the terms of the offers that it was without prejudice
except for the costs, in that the second defendant was placed on
notice not to disclose the offer to the Court at any stage before
judgment. The Court held that it was also clear that the offer in
respect of costs was to be disclosed to the Court after judgment
for
the purpose of considering an appropriate costs order.
15.
In the matter at hand, the plaintiff’s
offer of 14 October 2020 took the form of a notice with the
title “Plaintiff’s
Calderbank Offer in terms of Rule
34”. It proceeded to set out the plaintiff’s offer,
namely that the plaintiff
would
inter
alia
accept payment of a capital sum of
R7 188 988.16. It concluded with the words:
“
BE
PLEASED TO TAKE FURTHER NOTICE that should the above offer not be
accepted by the defendant within a reasonable time and the
eventual
outcome is similar or less favourable to the defendant, the plaintiff
will request that a punitive costs order be made
against the
defendant.”
The
notice was sent to the claims handlers of the defendant under cover
of an e-mail of the plaintiff’s attorney, which advised
the
defendant that the plaintiff was thereby serving the plaintiff’s
Calderbank offer in terms of Rule 34, and that
the defendant
would note from the offer that the defendant was placed at risk of a
punitive (attorney and client) costs order from
the date of the offer
in the event of the trial court in due course awarding a similar or
greater capital sum.
16.
I am in the circumstances not persuaded
that the plaintiff’s attorneys went far enough in the
formulation of the plaintiff’s
offer of 14 October 2020 to
qualify it as a proper Calderbank offer. The words “without
prejudice save as to costs”
were not employed, nor were words
to similar effect. I also do not think that Calderbank offers are so
notorious in our civil procedure
and practice that the mere use of
the title of “Calderbank offer” would qualify a document
as a Calderbank offer or
properly alert the defendant without more of
the document’s import. I am therefore of the view that the
plaintiff’s
offer of 14 October 2020 is not admissible at
this stage after judgment for the purposes of considering the
question of costs
afresh, or alternatively, cannot form the basis for
a punitive costs order against the defendant herein.
17.
Even
if I am wrong in this respect and perhaps being too strict, overly
technical, or formulaic, if the plaintiff’s offer
of 14 October
2020 were to be construed as a proper Calderbank offer which is in
fact admissible, there are two factors that
in such case would have
militated against a special costs order. 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 counter-offer.
[7]
It is so that the defendant in the matter at hand did not engage
reasonably in attempting to settle the matter; in fact,
the defendant
failed to engage at all. As there is no version of the defendant
before the Court, I am left to wonder why that is.
A plethora of
cases have expressed scathing criticism against the Road Accident
Fund for the manner in which it conducted litigation
[8]
and this case could be added to the long list. The plaintiff also
allowed the defendant a reasonable time to consider his offer.
However, there is a mere difference of R20 000.00 between the
amount of the plaintiff’s offer and the amount of Mofokeng
AJ’s
reward. Given the extent of the quantum, the plaintiff was not
offering a fair discount to the defendant, but was basically
asking
the defendant to pay what he was in any event claiming. Based upon a
realistic assessment of the case, I would not have
been able to find
that the defendant was unreasonable in not reacting to the
plaintiff’s offer or not making a counter-offer.
18.
In the result I make the following order:
The
plaintiff’s application dated 22 February 2021 for a special
costs order against the defendant is hereby dismissed.
__________________
A
EILLERT
ACTING
JUDGE
Northern
Cape Division, Kimberley
Appearances
Adv
P Eia for the plaintiff/applicant
Instructed by
Elliot Maris, Kimberley
No
appearance for the defendant
[1]
Herbstein
& Van Winsen, The Civil Practice of the High Courts of South
Africa, Fifth Edition, Juta & Co Ltd, page 615.
[2]
Herbstein
supra
,
page 617.
[3]
2017
(5) SA 134
(WCC) at [46].
[4]
[1975]
3 All ER 333 (CA)
[5]
(2302/2014)
[2019] ZAFSHC 55
(14 May 2019)
[6]
See
AD and Another
supra
,
paragraphs [42] – [43]
[7]
AD
and Another
supra
,
paragraph [61].
[8]
A
number of these cases are enumerated in Daniels and Others v Road
Accident Fund and Others
[2011] ZAWCHC 104
(28 April 2011).