About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 144
|
|
Mafumana v Road Accident Fund (4900/2017) [2019] ZAGPPHC 144 (26 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES:
YES
/NO
(3)
REVISED
CASE NO: 4900/2017
26/4/2019
In
the matter between -
NOBANTU
CONFIDENCE
MAFUMANA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
STRYDOM
AJ
[1]
This
is a matter in which the plaintiff, now deceased, is claiming damages
from the Road Accident Fund (the defendant) as a result
of injuries
sustained by him in a motor collision. It should be noted that the
plaintiff was not substituted by his estate as a
party but this point
was not taken due to the matter becoming settled on merits and
quantum. For purposes of this judgment I will
still refer to the
plaintiff as such.
[2]
The
only outstanding issue relates to costs. Not the defendant's
unwillingness to tender same as this was done, but rather on which
scale the court should order the defendant to pay the plaintiff's
costs: on the High Court scale or on the Magistrate Court scale.
[3]
During
argument it became clear that the contentious issue was not whether
the plaintiff should have instituted the action in this
court but
rather whether the plaintiff should have caused the matter to be
transferred from the High Court to the Magistrate's
Court at some
stage after the plaintiff passed away. And further whether the
plaintiff should have informed the defendant of the
death of the
plaintiff leaving it with a choice to decide whether to transfer the
matter.
[4]
It
was argued that the plaintiff died on or about 26 June 2017 and soon
thereafter the plaintiff's attorney should have realised
that the
estate of the plaintiff would never be able to prove damages, if the
merits were proven or settled on a 100% liability
basis or less,
beyond the jurisdiction of the Regional Magistrate's Court, which
stood at the amount of R400, 000 (four hundred
thousand) at the time.
[5]
As
long ago as 26 August 2016, an offer was made by the defendant to
settle the merits on an apportionment of 80%
I
20% in favour of the plaintiff. This
offer was not accepted at the time. The matter was set down to be
heard on 18 April 2019. Only
on 25 March 2019, the defendant's 2016
offer was accepted by the plaintiff. This offer made no mention of
any tender as far as
costs are concerned.
[6]
After
the need for the trial on the merits fell away the quantum of damages
remained in dispute and the matter remained on the trial
roll.
[7]
On
17 April 2019, one day before the trial, the amount of damages was
settled. The settlement amounted to R43, 238.40 (forty three
thousand
two hundred and thirty eight rand and forty cents) which represented
the plaintiff's loss of earnings before he died.
The court was
informed that his death was natural and unrelated to the collision.
The plaintiff could not have proven an amount
higher than this. This
settlement amount is significantly lower than the R400, 000 (four
hundred thousand rand) jurisdictional
limit determined for damages
actions to be instituted in the Regional Magistrates Court. The
settlement of the amount of damages
came with an offer to pay the
plaintiff's costs on the Magistrate's Court scale and not on that of
the High Court. This was not
acceptable to the plaintiff and the
parties argued before me to make a determination on which scale costs
should be awarded to
the plaintiff.
[8]
At
the first pre-trial conference, held during or about 19 September
2017, the parties were in agreement that the scale of costs
would be
that of the High Court. This is evidenced by the agreement to the
effect that the plaintiff's attorneys cost for attending
the
pre-trial conference should be allowed and taxed on a party and party
High Court scale. It was argued from the bar by counsel
representing
the defendant that no reliance should be placed on this concession as
at that date the plaintiff was already deceased
and the defendant was
not informed of this. It was only during a second pre-trial
conference held on or about 11 April 2019, i.e.
about seven days
before the trial that defendant was informed about the death of the
plaintiff. No information was placed before
me in this regard to
enable me to establish whether the plaintiff's legal representatives
knew at the time when the first pre-trial
conference was held that
their client had passed away. According to a letter of authority
signed by the Master of this Court, an
executor for the estate of the
plaintiff was appointed on 17 November 2017 , a date after the first
pre-trial conference was held
and more than a year after the
plaintiff's passing.
[9]
It
was argued on behalf of the plaintiff that considering that the
plaintiff's injuries were extensive, and also in light of the
concession on behalf of the defendant to the effect, that the
plaintiff was entitled to institute the action in the High Court
and
that there was no duty on the plaintiff to transfer the matter to the
Magistrate Court even when it became clear that the quantum
that this
court could award would fall comfortably within the jurisdiction of
the Magistrate Court. The plaintiff insisted that
the appropriate
cost order would be one on the High Court scale. This argument in
essence boils down to a view that once a matter
was properly
instituted in the High Court, it could remain there despite changed
circumstance causing the amount of damages to
fall within the
jurisdiction of the lower court.
[10] On
behalf of the defendant, it was argued that shortly after the death
of the plaintiff, the plaintiff's
legal representative should have
known that the amount of damages which the plaintiff could possibly
be awarded could never have
exceeded the amount of R400, 000 (four
hundred thousand rand) and consequently, the matter should have been
transferred for trial
to the lower court by the plaintiff's
representatives. If not, then the plaintiff would not be entitled to
be awarded cost on the
High Court scale. It was argued that the
plaintiff was only earning approximately R2, 500 (two thousand five
hundred rand) per
month and any claim for loss of income would have
fallen within the jurisdiction of the lower court. This aspect was
not disputed
by the plaintiff before me.
[11]
It
was submitted that litigants should litigate cost-effectively and if
the defendant was informed about the death of the plaintiff,
the
defendant might have applied for the matter to be transferred to the
lower court.
[12]
As
indicated, the defendant was only informed about the plaintiff's
death during or about 11 April 2019. Whether the defendant would
have
transferred the matter to the lower court once it established that
the plaintiff passed away, remains speculative as no such
evidence
was placed before me. Fact is the defendant, which at all relevant
times were probably facing a cost order, would have
had the option to
transfer the matter.
[13] Two
questions arise in this matter: first, should the plaintiff have
transferred the matter to the
Magistrate Court? Second, should the
plaintiff's legal representatives have informed the defendant about
the death of plaintiff,
sooner?
[14]
I
will consider these questions together. It should be noted that this
is not a matter where at all relevant stages it was clear
that the
amount of damages would fall within the jurisdiction of the
Magistrate's Court. If this was the case and the matter came
before
me, I would have allowed costs on the Magistrate's Court scale only,
unless there were other circumstances justifying the
matter to remain
in the High Court. The onus would have been on the plaintiff to
justify his recourse to the more expensive tribunal.
For instance,
the plaintiff could have shown that there were other reasons than the
amount of the damages which justified the matter
to be adjudicated in
the High Court. For instance, special complexity of law or fact, or
public interest or alike. This was never
argued in this matter.
In
casu,
the issue is different. The
parties were
ad idem
that
the plaintiff would have been entitled to proceed in the High Court
but, it was submitted, that after the death of the plaintiff,
the
matter should have been transferred to the lower court to save costs.
[15]
Rule 39(22) of the Uniform Rules of
Court deals with the transfer of matters from the High Court to the
Magistrate Court and reads
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 consent or otherwise."
[16]
This section places no obligation on a
party to transfer a matter from a forum which has jurisdiction to
adjudicate the matter,
to another with jurisdiction. It only provides
for an entitlement. The intension of the rule maker was clearly not
to place an
obligation on a party to transfer a matter, but what the
rule provides for is for a party to try to get consent from the other
party to have the matter transferred. It leaves a party with a choice
and thereby suggests that a party should not be penalized
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 damages he will be able to prove
will not be more
that 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
when the matter should have been
transferred.
[17]
But it can be argued that that the
defendant could have transferred the matter with consent, or even
without it, on application
to this court (see:
Veto
v lbhayi City Council
[1]
)
but that it was never done. To
consider a transfer, a party will have to be aware of the changed
circumstances.
In casu,
this
circumstance would be the death of the plaintiff rendering his claim
substantially less than at the time the claim was instituted.
The
plaintiff for some unknown reason only informed defendant of the
death of the plaintiff days before the trial. At that stage
counsel
would have been appointed on trial and the costs incurred in the High
Court. I am of the view that there was a duty on
the plaintiffs
attorneys to inform the defendant as soon as they became aware of his
death. The delay to inform defendant meant
that the defendant could
not even consider to transfer the matter. If the executor of the
estate of the plaintiff failed to inform
the plaintiffs legal
representatives the blame is on the side of the plaintiff and not the
defendant. This failure to inform the
defendant, limited its option
the exercise its entitlement in the terms of Rule 39(22) and the cost
order I intend to make would
reflect this court's disapproval of not
informing the defendant timeously.
[18]
This court was not informed on which
date the plaintiffs legal representatives became aware of the death
of the plaintiff. What
the court does know is that on 17 November
2017, the executor for the plaintiffs estate was appointed by the
Master of this Court.
The executor of the plaintiffs estate should
have instructed the plaintiffs attorneys to continue with this
matter. The plaintiffs
attorneys should have placed facts before the
court why it decided not to transfer the matter to the lower court.
This was not
done. See in this regard the decision of
Vermaak
v Road Accident Fund
[2]
where Jones J found as follows:
“
[5]
…
But as
a
general rule the proper exercise
of the court's discretion on costs provides
a
powerful deterrent against
bringing proceedings in the High Court which might more conveniently
be brought in the Magistrates' Court,
and this
implies
that the party who could have chosen to proceed in the lower court
will have to satisfy the High Court that there are good
and
sufficient reasons for the exercise of discretion to what High Court
costs in his or her favour."
[19]
The basic rule is that all cost awards
are in the discretion of the court. The court has a wide discretion
which should be exercised
with due regard to all relevant
considerations.
[20]
The court takes cognisance of the fact
that the offer to settle the merits was made more than two years
before it was accepted by
the plaintiff. The defendant was never
informed about the death of the plaintiff right up to a week before
the trial. The plaintiff's
representatives must have been aware
considering the low income of the plaintiff before the accident, that
there was not even a
remote chance that he would be awarded an amount
for loss of earning higher than the Magistrate's Court jurisdiction.
I am of the
view in light of all these circumstances that the
plaintiff, through his legal representatives, should have transferred
the matter
to the Magistrate's Court causing cost-effective
litigation. It unfairly prejudiced the defendant not to transfer the
matter and
not to inform the defendants about the death of plaintiff
enabling the defendant to choose to exercise its entitlement to
transfer
the matter. In these circumstances it would be unfair to
expect of the defendant to pay the plaintiff's costs on trial on the
High
Court scale. Moreover, this matter should have been settled long
before the trial date to avoid cost on trial. The delay to settle
the
matter was caused by the plaintiff.
[21]
As stated above, the plaintiff was
initially entitled to litigate in the High Court. At a later stage
however, it is the finding
of this court that the matter should have
been transferred to the Magistrate's Court. Insufficient facts were
placed before the
court, making it difficult to determine from which
date the plaintiff, would only be entitled to Magistrate's Court
cost. I am
of the view that soon after the executor was appointed, on
17 November 2017, the matter should have been transferred and the
defendants
should have been informed about the death of the
plaintiff. The court will allow two months during which it should
have been done.
The court is of the view that the following costs
order should be made and be inserted in the draft order provided to
me by the
defendant which I will mark with an "X".
[21.1]
The defendant is ordered to pay the plaintiff's costs on the High
Court scale up to and
including 27 January 2018.
[21.2]
Costs incurred after 27 January 2018, including the trial costs,
should be paid by the
defendant on the Magistrates Court scale.
STRYDOM AJ
ACTING JUDGE
GAUTENG DIVISION
PRETORIA
Date
of hearing: 23 April 2019
Date
of judgment:29 April 2019
Appearances:
For
the plaintiff: Adv M. Thabethe
For
the defendant: Adv D. Bekker
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION
-
PRETORIA]
On 18
th
April 2019, at
Court 8G, before the Honourable Strydom AJ.
CASE NO: 4900/2017
In
the matter between:
NOBANTU
CONFIDENCE MAFUMANA
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
DRAFT
By
agreement between the parties.
the following order is made :
1.
The defendant
concedes to pay
80%
of the proven
damages resulting from a motor vehicle accident which occurred on the
12
th
December 2015
in
which the Plaintiff was a driver.
2.
The
Defendant pays the sum of
R 43 238.40
(FORTY THREE THOUSAND TWO HUNDRED AND THIRTY EIGHT RAND FORTY CENTS
ONLY)
in full and final settlement
of the plaintiff' s claim and the said amount is payable into the
following bank account
Account Holder
: Sivu
Shongwe Attorneys
Bank Name
:
Standard Bank
Branch Code
:
018305
Account Number
: [….]
Type of Account
: Trust
Account
3.
The
Defendant will not be liable for interest on the above amount
provided that same is paid within fourteen (14) days, failing
which
interest at a rate of 10 .25 % per annum will be payable calculated
from the date on which this order was made.
4.
Defendant
to pay the Plaintiff' s taxed or agreed party and Party costs on a
High Court scale up to and including
27
th
January 2018.
Cost incurred after
27
th
January 2018,
including trial costs,
should be paid by the defendant on the Magistrate's court scale. In
the event that the costs are not agreed,
the Plaintiff agrees as
follows:
4.1.
The Plaintiff shall serve the notice of
taxation on the Defendant's attorneys of record;
4.2.
The Plaintiff shall allow the Defendant
Fourteen (14) court days to make the said payment of the taxed costs;
and
4.3.
Should payment not be effected
timeously, Plaintiff will be entitled to rec over interest at the
rate of 10 .25 % on the taxed or
agreed costs from date of
allocatur
to date of final payment .
5.
The
above costs will also be paid into the above trust account , which
costs shall include the following:
5.1.
The fees of Counsel;
5.2.
The costs of obtaining report of Poneso
(Actuary).
6.
There is no contingency fee agreement.
BY ORDER
[1]
1990
(4) SA
93
(SE) at 95H.
[2]
2006 JDR 0182 (SE) at para 5.