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[2019] ZAGPPHC 315
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Nkonde v Road Accident Fund (50571/ 2016) [2019] ZAGPPHC 315 (19 July 2019)
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 NUMBER: 50571/ 2016
19/7/2019
In
the matter between:
SIPHO
TREVOR NKONDE
PLAINTIFF
and
THE
ROAD ACCIDENT FUND
DEFENDANT
Coram:
A Vorster AJ
Heard:
17 July 2019
Delivered:
19 July 2019
ORDER
1.
The
defendant is liable to compensate the plaintiff for 100% of the loss
suffered by him on 27 November 2011, which loss was caused
by, or
arose from, the negligent driving of a motor vehicle by a third
party.
2.
The
defendant is ordered to compensate the plaintiff for the loss
suffered by him for past medical expenses and loss of earnings
in the
sum of R78'687.67 (seventy eight thousand six hundred and eighty
seven rand and sixty seven cents).
3.
The
defendant is not liable to compensate the plaintiff for pain,
suffering, discomfort, mental anguish, loss of amenities or distress
(general damages).
4.
The
defendant is ordered to forthwith furnish the plaintiff with an
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act No. 56 of 1996
, wherein the defendant should undertake to pay
100% of the costs of future accommodation of the plaintiff in a
hospital or nursing
home or treatment of or rendering of a service or
supplying of goods to him pursuant to injuries sustained by him in
the aforesaid
motor vehicle collision.
5.
The
defendant is ordered to pay the plaintiff's taxed or agreed party and
party costs on the Magistrate's Court scale.
6.
Any
costs associated with the plaintiff's plastic surgeon; clinical
psychologist, and orthoptist & prosthetist is disallowed.
7.
Notwithstanding
any agreement to the contrary, the plaintiff's attorney may not
recover any legal costs from the capital of the
plaintiff's claim.
8.
Notwithstanding
any agreement to the contrary, the scale of fees to be taken by the
Fund's attorneys, from the Fund, shall be that
set out in Table A of
Annexure 2, of the Rules Regulating the Conduct of Proceedings of the
Magistrates' Courts of South Africa,
in addition to necessary
expenses.
JUDGMENT
A
Vorster AJ
1.
Before
me is a dispute relating to costs.
2.
The
genesis of this dispute is a motor vehicle collision which occurred
on 27 November 2011, in which the plaintiff was involved
as a
passenger.
3.
In
this collision the plaintiff sustained injuries.
4.
On
25 February 2014 the plaintiff lodged a claim, on the statutorily
prescribed RAF1 form, with the Road Accident Fund, a statutory
insurer established in terms of
section 2(1)
of the
Road
Accident Fund Act,
for
compensation
for the injuries sustained in the motor vehicle collision.
5.
The
procedure prescribed for lodging the claim is dealt with in
section
24
of the Act.
6.
The
Fund's liability arises out of the provisions of
section 17(1)
of the
Act.
7.
On
30 June 2015, after the statutory embargo on litigation of 120 days,
as provided for in
section 24(6)(a)
lapsed, the plaintiff instituted
action against the Fund.
8.
On
7 July 2015 the Fund's attorneys entered an appearance to defend, and
on 2 September 2015 delivered a plea.
9.
During
the course of litigation various procedural steps were taken, and on
18 October 2017 the plaintiff enrolled the matter on
the trial roll
of 27 May 2019.
10.
The matter became settled on the day of
the trial, namely 27 May 2019.
11.
In terms of the settlement the Fund
undertook to pay the plaintiff an amount of R78'687.67 in full and
final settlement of his claim
[1]
.
12.
The Fund also agreed to furnish the
plaintiff with an undertaking in terms of
section 17(4)(a)
of the Act
to provide for future medical expenses.
13.
The Fund further accepted liability to
pay the costs of the action, but contended that, based on the agreed
quantum of the claim,
costs should be on the Magistrate's Court
scale.
14.
The plaintiff disagreed with this
contention and insisted that the costs be paid on the High Court
scale.
15.
Due to the state of the trial roll, no
judges were available to adjudicate upon this dispute, and the matter
was postponed to 17
July 2019.
16.
When the matter came before me on 17
July 2019 the parties persisted with their entrenched positions
regarding the scale of costs.
17.
I was therefore called upon to determine
whether the plaintiff was entitled to costs on the High Court or
Magistrate's Court scale.
18.
As would appear from this judgement, the
matter is more complex than merely determining on what scale costs
should be paid by the
Fund.
19.
At the outset it is important to deal
with the chronology of events as the litigation in this matter
unfolded
[2]
:
18.1.
As
I've already mentioned the accident occurred on 27 November 2011.
18.2.
On
25 February 2014 the plaintiff lodged its claim with the Fund.
18.3.
On
30 June 2015 the plaintiff issued summons against the Fund.
18.4.
On
7 July 2015 the Fund entered an appearance to defend.
18.5.
On
27 July 2015 the plaintiff delivered a report by its orthopaedic
surgeon
[3]
.
18.6.
On
27 July 2015 the plaintiff delivered an RAF4 form in which the
plaintiff motivated why his injuries should be regarded as serious,
in order for him to qualify for general damages.
[4]
18.7.
On
the same date the plaintiff delivered an employer's certificate
detailing the income of the plaintiff at the time of the collision.
18.8.
On
2 September 2015 the defendant delivered its plea.
18.9.
In
a curious turn of events the defendant was served with a notice of
bar on 11 September 2015, nine days after the Fund delivered
its
plea.
18.10.
On
18 May 2016 the defendant delivered a report by its orthopaedic
surgeon
[5]
.
18.11.
On
24 May 2016 the defendant delivered its occupational therapist's
report.
18.12.
On
27 May 2016 the defendant delivered its industrial psychologists'
report.
18.13.
On
8 December 2016 the plaintiff delivered its occupational therapists'
report.
18.14.
On
16 May 2017 the parties held a first pre-trial
[6]
.
18.15.
On
29 June 2017 the Health Professions Council of South Africa
communicated to the parties that the tribunal was satisfied that
the
plaintiff's Whole Person Impairment was less than the 30% threshold,
that the plaintiff's injuries could not qualify as a serious
injury
under the narrative test, and that the tribunal concluded that the
injuries were not serious
[7]
.
18.16.
On
28 July 2017 the plaintiff delivered its plastic surgeon's report and
an RAF4 form, completed by a plastic and reconstructive
surgeon,
motivating why the plaintiff's injury should be considered to be
serious.
18.17.
On
3 October 2017 a judicial pre-trial hearing was held at court.
18.18.
On
5 October 2017 a settlement was reached that the Fund would
compensate the plaintiff for 100% of his agreed or proven loss.
18.19.
On
18 October 2017 the plaintiff set the matter down for hearing on the
trial roll of 27 May 2019.
18.20.
On
9 April 2019 the plaintiff delivered a further occupational
therapist's report.
[8]
18.21.
On
26 April 2019 the plaintiff delivered its industrial psychologist's
report.
18.22.
On
3 May 2019 the plaintiff delivered its actuary's report.
18.23.
On
13 May 2019 the parties' respective occupational therapists prepared
a joint minute.
18.24.
On
16 May 2019 the parties' respective industrial psychologists prepared
a joint minute.
18.25.
On
27 May 2019 the matter was on the trial roll, and on this date the
parties settled the matter in respect of quantum and the Fund's
liability to pay costs, merits having been conceded on 5 October
2017.
18.26.
The
parties, being unable to agree on the scale of costs requested that a
judge be allocated to argue this issue.
18.27.
Due
to the state of the trial roll, no judges were available, and the
issue of the scale of costs was postponed to 17 July 2019
[9]
.
18.28.
On
17 July 2019 the matter came before me, and the parties argued the
scale of costs.
19.
Mr. Trumpie on behalf of the plaintiff
argued that costs should be on the High Court scale with reference to
the following facts:
19.1.
the
nature and complexities of the injuries as it appears from the RAF4
form, completed by Dr. Hechter Schultz, a General Practitioner,
who
assessed the plaintiff's injuries to be serious;
19.2.
the
fact that at various pre-trials the defendant confirmed that the
matter should not be transferred to a different court, and
notwithstanding having had various opportunities to do so, did not
object to the matter being in the High Court;
19.3.
the
fact that the offer to settle was only forthcoming on the day of the
trial.
20.
Mr.
Bekker on behalf of the defendant argued that costs should be on the
Magistrate's Court scale with reference to the following
facts:
20.1.
the
fact that the matter was settled in an amount which falls within the
monetary jurisdiction of the Magistrate's Court;
20.2.
the
fact that:
20.2.1.
the
defendant delivered the expert reports of its Occupational Therapist
and Industrial Psychologist as far back as May 2016, and
20.2.2.
the
plaintiff was informed of the fact that the Health Professions
Council Tribunal scuppered the plaintiff's claim for general
damages
as far back as 29 June 2017;
facts which should have alerted the plaintiff
to the fact that its claim would in all probability fall within the
monetary limit
of the Magistrate's Court.
21.
In
support of these contentions both legal representatives referred me
to the following cases:
21.1.
RAF v Isaacs
(1552/14)
[2018] ZANCHC 27
(11 May 2018).
21.2.
Vermaak
v Road Accident Fund
[2006] ZAECHC
10
21.3.
Xakaxa
v Road Accident Fund
(3902/2011)
[2012] ZAECPEHC 79 (13 November 2012).
22.
I
do not read any of these cases to establish mandatory or persuasive
precedent which compels me to deviate from the accepted principle
that in awarding costs, the court has a discretion to be exercised
judicially, upon a consideration of the facts in each case,
and that
in essence the decision is a matter of fairness to both sides
[10]
.
23.
In
the cases referred to by Counsel the respective courts took into
consideration the circumstances of the cases before them, carefully
weighing the issues in the cases, the conduct of the parties, and any
other circumstances which may have had a bearing on the issue
of
costs, and then made such orders as to costs as were justified in
those cases.
24.
The
approach adopted by the respective courts cannot in any way be
controversial and I am in respectful agreement with those decisions.
25.
After
all, in each instance the cost orders made were fair and just,
considering the facts before the respective courts.
26.
In
making a cost order which is fair and just in this matter, I have to
consider the peculiar facts of this case, and make an order
which is
justified by those facts.
27.
I
am of the view that, based on the facts of this case, neither the
plaintiff, nor the defendant, should bear the consequences of
an
adverse costs order, their attorneys should.
28.
An
adverse costs order in as far as the plaintiff is concerned being
costs on the Magistrate's Court scale, and an adverse costs
order in
as far as the defendant is concerned being costs on the High Court
scale.
29.
As
I will indicate in this judgement, I am of the view that both the
attorneys for the plaintiff and the defendant had a duty to
ensure
that this matter is instituted and prosecuted in the correct forum,
and that costs are saved, a duty which in my considered
view both
sets of attorneys dismally failed to execute.
30.
If
anyone should bear the consequences of an adverse costs order, it
should be the attorneys for the plaintiff and the defendant,
and not
their respective clients.
31.
I propose to make a cost order as
provided for in terms of rule 37(9)(a)(ii) of the Uniform Rules of
Court which provides that:
“
At
the hearing of the matter, the court shall consider whether or not it
is appropriate to make a special cost order as to costs
against the
party or his attorney, because he or his attorney
-
(ii)
failed to a material degree to promote the effective disposal
of the
litigation'
32.
There
were various stages in the litigation when there was an opportunity,
and in fact an obligation on the respective attorneys,
to conclude
that this is a matter which should have been prosecuted in the
Magistrate's Court.
33.
Before
I deal with the obligation which rested on the respective attorneys,
I will first deal with the opportunities the attorneys
had to
conclude, as any prudent attorney should, that this matter did not
belong in the High Court, and to take steps to curtail
legal costs in
this matter.
34.
The
plaintiff lodged its claim on 25 February 2014.
35.
The
Act provides for an embargo on the institution of legal proceedings
for a period of 120 days.
36.
The
purpose of this embargo is to allow the Fund to investigate the claim
and make a reasonable offer for compensation, thereby
obviating the
risk and associated costs of litigation.
37.
A
proper investigation would inevitably mean that the Fund will have to
refer the claimant to appropriate experts to properly verify
and
quantify the claim.
38.
If
I am mistaken as to the purpose of the embargo, the embargo will be
rendered nugatory.
39.
There
is nothing in the record to suggest that the Fund investigated the
plaintiff's claim in any meaningful way.
40.
I
also engaged Mr. Bekker who appeared for the defendant on this issue,
and he conceded that the Fund did not properly investigate
the claim
during the embargo period.
41.
It
follows from the provisions of sections 4 and 24 of the Act that the
Fund and its personnel cannot just sit and relax after having
received a claim for compensation. They are under a duty to
investigate and if required to settle a claim lodged with the
Fund
[11]
.
42.
The
plaintiff instituted action against the fund on 30 June 2015.
43.
Ex
facie the particulars of claim the plaintiff's attorney, who has the
right to appear in the High Court in terms of section 4(
2) Act 62
of
1995, drafted the particulars of claim.
44.
The
following injuries were listed in paragraph 8 of the particulars of
claim:
44.1.
fracture of the left tibia;
44.2.
head injury ;
44.3.
soft tissue injury to the neck.
45.
The
sequelae of these injuries, from a loss perspective, were not
described in any particularity.
46.
Notwithstanding
the fact that the plea was vacuous in respect of the sequelae of the
injuries, the plaintiff still claimed compensation
as follows :
46.1.
future medical expenses in the amount of
R340'000.00;
46.2.
general damages in the amount of
R500'000.00.
46.2.
general damages in the amount of R500'000.00.
47.
It
is apposite to point out that at this stage the plaintiff did not
prefer a claim against the defendant for loss of earnings or
past
medical expenses.
48.
One
must accept that the author of the plea held specific instructions as
to what to plead.
[12]
49.
What
was pleaded in the particulars of claim with regards to the injuries
could only have been ascertained through clinical examinations
by
suitably qualified physicians, and with regards to the quantification
of the claim, through assessments by suitably qualified
occupational
therapists and industrial psychologists.
50.
It
is reasonable to draw an inference that what was pleaded in the
particulars of claim was not informed by relevant examinations
or
assessments by suitably qualified experts.
51.
The
sequelae of the injuries were at best a layman's assessment, and the
quantification of the loss what is colloquially referred
to as a
'thumb suck'.
52.
I
cannot conclude that the plaintiff's attorney had proper instructions
when he drew the particulars of claim
[13]
53.
This
state of affairs is in no way surprising.
54.
The
majority of third party claims are done on a contingency basis, or
what is also known as a no win no fee basis.
55.
This
means that the attorney derives his compensation partly from the
compensation awarded to his client, and any cost orders made
against
the Fund.
56.
The client would as a general
proposition not contribute financially to any costs incurred in the
course of prosecuting his or her
claim.
57.
Any
costs incurred before litigation commences are generally not
recoverable from the Fund.
58.
Due
to the operation of the
Contingency
Fees Act
66 of 1997
cost orders
would often be more advantageous to plaintiff attorneys in claims
with a low monetary value, than the rights accrued
in terms of
contingency fee agreement.
59.
Differently
put, in claims with a low monetary value, attorneys would often do
better to recover taxed costs from the Fund, than
to recover such
costs from the award made to their client.
60.
Attorneys
therefore avert the risk of incurring irrecoverable expenses on a
claim with marginal prospects of success, or demonstrable
low
monetary values, by drawing particulars of claim without specific
instructions, and only properly formulating the claim after
the
institution of legal proceedings, when costs may be recovered.
61.
This
practice is not acceptable.
62.
If
the plaintiff's attorneys obtained proper instructions, by appointing
relevant experts, before they instituted action, they would
in all
likelihood have realised that the ultimate compensation to be awarded
to the plaintiff would have fallen within the monetary
jurisdiction
of the Magistrate's Court.
63.
After all, there were no foreseeable
supervening circumstances which might have changed the plaintiff's
position from the date of
the accident to the date of the hearing of
the matter.
64.
I
do not know, and could not ascertain from the documents filed of
record, whether the Fund instructs its attorneys when a claim
is
lodged, or only after summons had been issued.
65.
Whatever
the case might be, when the Fund's attorneys receive an instruction
from the Fund, and it appears that the Fund neglected
its duty to
properly investigate the claim, the attorneys for the Fund should do
so.
"The [Road Accident Fund] exists to
administer in the interests of road accident victims, the funds it
collects from the public.
It has the duty to
effect
that administration with integrity and efficiency. This entails the
thorough investigation of claims and
where litigation is responsibly contestable, the adoption of
reasonable and timeous steps in
advancing its defence. These are not
exacting requirements. They must be observed.
'
[14]
66.
The
duty espoused in the aforementioned quote does not only extend to the
Fund, but also to its attorneys.
67.
So
when the Fund's attorneys receive a summons without proper
instructions, they have to slam the brakes on any further litigation
by acting in terms of rule 36(1) & (2) of the Uniform Rules of
Court and insist that the plaintiff submit him or herself to
medical
examinations in order to determine the true extent and sequelae of
the injuries sustained by the plaintiff, and the quantum
loss
suffered as a result of the injuries.
68.
This
would enable the Fund's attorneys at an early stage of the litigation
to make a reasonable offer to the plaintiff, or properly
formulate a
defence.
69.
The
Fund's attorneys did not act in the manner suggested above, but
rather filed a plea which contained bare denials.
70.
As
has become the practice in third-party claims, attorneys routinely
refer plaintiffs to medical experts, only after merits have
been
conceded or disposed of.
71.
As
a result of this practice, claims and defences are only properly
formulated at a very late stage in the proceedings.
72.
Earlier
in the judgement I've dealt with the dates on which the respective
expert reports were delivered.
73.
From
a simple reading of these reports it should have become apparent to
both sets of attorneys that the plaintiff could never succeed
with
his initial claim for compensation as set out in the particulars of
claim, and that a possibility existed that the ultimate
compensation
payable to the plaintiff would fall within the monetary jurisdiction
of the Magistrate's Court.
74.
When
the expert reports came to light, both sets of attorneys should have
properly considered the reports, and should have discussed
the issue
of transferring the matter to the Magistrate's Court.
75.
They failed to do so.
76.
On 15 August 2017 the plaintiff's
attorneys delivered an amendment in which they increased the quantum
of the plaintiff's claim
from R840'000.00 to R1' 078'240.00.
77.
The
amended particulars of claim now included a claim for loss of
earnings.
78.
This
amendment was not justified if one has regard to the content of the
expert reports which were delivered prior to the date of
the
amendment.
79.
Apart
from an orthopaedic surgeon, occupational therapist and plastic
surgeon's reports, the plaintiff had not at that stage filed
any
further reports.
80.
The
defendant's industrial psychologist report was available when the
amendment was affected, and that report did not support the
exorbitant amounts claimed in the amendment.
81.
Shortly
after the plaintiff delivered its occupational therapist ' report, it
affected a
further amendment in which the quantum of the
plaintiff's claim was adjusted downward to an amount of R849'320.77
82.
This
amendment preceded to plaintiff’s industrial psychologist and
actuary's reports and it is hard to imagine how the plaintiff's
attorneys arrived at the amount in respect of loss of earnings.
83.
The
amended particulars now included a further claim for past medical
expenses.
84.
Although
the claim was adjusted downwards, the quantum was still not justified
if one has regard to the content of the expert reports
delivered
prior to the amendment having been effected.
85.
The
only claim which was justified in as far as quantum was concerned was
the negligible claim for past medical expenses in the
amount of
R683.77.
86.
During
the course of litigation two pre-trials were held, the first between
the respective legal teams on 16 May 2017, and the second,
a judicial
pre-trial held on 3 October 2017.
87.
As
I understand from Mr. Trumpie for the plaintiff, and from a reading
of the pre-trial minutes, the defendant's attorneys at both
these
pre-trials agreed that the matter should not be transferred to
another court.
88.
Mr.
Trumpie argued that, based on the failure of the defendant's
attorneys to object to the jurisdiction of the High Court, and
their
failure to insist that the matter be transferred to the Magistrate's
Court, the defendant in effect acquiesced to the jurisdiction
of the
High Court, and by parity of reasoning, should now be non-suited to
argue that costs be on the Magistrate's Court scale,
irrespective of
the value of the award.
89.
I
find this argument bizarre and perverse in the extreme.
90.
If
there were facts present which should have moved the attorneys for
the defendant to insist that the matter be transferred to
the
Magistrate's Court, these facts would also have been known to the
plaintiff's attorneys.
91.
It
cannot be accepted that a duty to curtail costs only rests on the
defendant's attorneys, and not on the plaintiff's attorneys.
92.
Both
parties should have insisted on a transfer of the matter from the
High Court to the Magistrate's Court when it became apparent
that the
quantum of the claim did not justify the prosecution thereof in the
High Court.
93.
There
were various other stages in the litigation when there were
opportunities to curtail costs.
94.
However
for purposes of this judgement, the instances referred to in the
preceding paragraphs would suffice.
95.
I am of the view that the attorneys for
both parties had an obligation and a duty to curtail costs, an
obligation and duty which
they neglected to observe.
96.
In
Cape Law Society v Gihwala
(14154/17)
[2019] ZAWCHC 1
;
[2019] 2 All SA 84
(WCC) (29 January 2019) at pars
74 and 75 a full bench of the Western Cape High Court held as follows
(footnotes omitted):
'[74]
In
General Council of the Bar
of SA v Geach
Ponnan JA
pointed out that as members of a 'distinguished and venerable'
profession lawyers occupy a very important place in our
society. As
officers of the Courts they play a vital role in upholding the
Constitution and ensuring that our Justice system is
efficient and
effective and as a result 'absolute
personal integrity and
scrupulous
honesty are required of them. In addition the law expects the
'highest possible degree of good faith' from practitioners
in their
dealings with those for whom they act and in their dealings with the
Courts.
[75]
Without these fundamental qualities neither members
of the public to
whom they turn for help and advice in times of need nor the Courts
before whom they appear to plead their cases,
can trust and therefor
rely on them, and in such circumstances the edifice on which the
system is built may come tumbling down.
Because of this, the Courts
must be vigilant in seeking to uphold these values.
'
97.
The
quote by Ponnan JA as referred to in this judgement is relevant on
two scores.
98.
The
first is that as an incidence of integrity and scrupulous honesty,
attorneys, both for plaintiffs and defendants, have a duty,
not only
towards their clients, but also towards the courts and the
administration of justice, to ensure that unnecessary costs
in
litigation are avoided.
99.
But
more importantly, Ponnan JA remarked that, as officers of the Courts,
attorneys play a vital role in upholding the
Constitution.
100.
I am in respectful agreement with the
sentiment expressed by Ponnan AJ.
101.
When attorneys and Counsel are admitted
to practice as such, they swear or affirm that they will be faithful
to the Republic of
South Africa, and uphold and protect the
Constitution and the human right entrenched in it.
102.
The
scope and tenor of the pledge towards the Republic should be
understood with reference to the
Constitution.
103.
For attorneys to be faithful to the
Republic, they should subscribe to the norms and values enshrined in
the
Constitution.
104.
Section 34 of the
Constitution
provides as follows:
'Everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair
public hearing before
a court or, where appropriate, another
independent and impartial tribunal or forum
.
'
105.
A fair public hearing does not only
implicate the dispute between the parties, but also the costs
associated with the litigation.
106.
An incidence of a fair public hearing is
that the legal costs associated with litigation should be reasonable,
and curtailed to
what is strictly necessary to prosecute the matter
to finality.
107.
When attorneys unnecessarily proliferate
the costs of litigation, or fail to take positive steps to curtail
costs, they act in breach
of section 34 of the
Constitution,
and the oath or affirmation which
they took when they were admitted as attorneys.
108.
In light of the factual findings I've
made, and having regard to the legal position referred to in the
preceding paragraphs, I deem
it necessary to sanction the conduct of
both sets of attorneys through the costs orders I propose to make.
109.
After all, what is good for the goose is
good for the gander.
110.
The plaintiff's attorneys will be
adequately sanctioned if I order that they are only entitled to
recover costs from the Fund on
a Magistrate's Court scale, and that
they be precluded from recovering any legal costs from the capital of
the plaintiff's claim.
111.
I propose to make such an order.
112.
An appropriate sanction to be visited
upon the defendant’s attorneys is a bit more involved.
113.
An order that costs are only recoverable
on Magistrate's Court scale would obviously have no effect on the
defendant's attorneys,
because in terms of their Service Level
Agreement with the Fund - they are entitled to fees irrespective of
the scale of costs.
114.
An appropriate sanction should
circumvent this state of affairs.
115.
The order which I propose to make,
namely that costs only be recoverable on the Magistrate's Court
scale, will further not serve
as a disincentive for the Fund's
attorneys in general to engage in unnecessarily costly litigation.
116.
I therefore propose to make an order
that the scale of fees to be taken by the Fund's attorneys, from the
Fund, shall be that set
out in Table A of Annexure 2, of the
Rules
Regulating the Conduct of Proceedings of the Magistrates' Courts of
South Africa,
in addition to
necessary expenses.
117.
Apart from sanctioning the attorneys in
this matter, I also believe that such orders would 'inhibit the
exuberance of litigants
and induce them to exercise discretion and
moderation in the prosecution and defence of actions'
[15]
.
118.
Before I make the proposed orders there
is one last issue which should be dealt with, and this is the issue
of superfluous expert
reports.
119.
The plaintiff's attorneys gave notice of
the plaintiff's intention to call the following experts to give
evidence as experts at
the hearing of the matter:
119.1.
a plastic surgeon;
119.2.
a clinical psychologist;
119.3.
an orthoptist & prosthetist.
120.
The plaintiff did not proceed to deliver
reports in respect of the plastic surgeon and clinical psychologist,
only in respect of
the orthoptist & prosthetist.
121.
None of these experts' evidence would
have been relevant, relevance being determined with reference to the
disputed issues in the
pleadings, and perhaps the expert reports of
relevant experts.
122.
Plaintiffs, who are mostly lay people,
cannot asses which experts to appoint, and the decision is, as a
matter of course, taken
by the attorneys.
123.
I do not believe that plaintiffs should
be penalised if unnecessary experts are engaged, or unnecessary costs
incurred, because
attorneys should be circumspect when they appoint
experts, and be conscious of the requirement that the evidence of
experts should
be relevant.
124.
It was unnecessary to incur any costs in
relation to the experts listed in paragraph 119, and such costs
should be disallowed.
125.
I propose to make such an order.
126.
The plaintiff also delivered two
occupational therapist reports, by two different occupational
therapists.
127.
Mr. Bekker on behalf of the defendant
submitted that in as far as it was reasonable for the plaintiff to
revisit the occupational
therapist 's report, considering the time
that elapsed between the initial report and the trial date, the
second report should
be treated as an addendum, and costs should be
taxed accordingly.
128.
I agree with Mr. Bekker's submission.
129.
There was no need to engage the services
of a second occupational therapist.
130.
The occupational therapist who first
assessed the plaintiff could have been approached to prepare an
addendum report, and through
that costs could have been saved.
131.
For these reasons, the following order
is made:
i)
The
defendant is liable to compensate the plaintiff for 100% of the loss
suffered by him on 27 November 2011, which loss was caused
by, or
arose from, the negligent driving of a motor vehicle by a third
party.
ii)
The
defendant is ordered to compensate the plaintiff for the loss
suffered by him for past medical expenses and loss of earnings
in the
sum of R78'687.67 (seventy eight thousand six hundred and eighty
seven rand and sixty seven cents).
iii)
The
defendant is not liable to compensate the plaintiff for pain,
suffering, discomfort, mental anguish, loss of amenities or distress
(general damages).
iv)
The
defendant is ordered to forthwith furnish the plaintiff with an
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act No. 56 of 1996
, wherein the defendant should undertake to pay
100% of the costs of future accommodation of the plaintiff in a
hospital or nursing
home or treatment of or rendering of a service or
supplying of goods to him pursuant to injuries sustained by him in
the aforesaid
motor vehicle collision.
v)
The
defendant is ordered to pay the plaintiff's taxed or agreed party and
party costs on the Magistrate's Court scale.
vi)
Any
costs associated with the plaintiff's plastic surgeon; clinical
psychologist, and orthoptist & prosthetist is disallowed.
vii)
Notwithstanding
any agreement to the contrary, the plaintiff's attorney may not
recover any legal costs from the capital of the
plaintiff's claim.
viii)
Notwithstanding
any agreement to the contrary, the scale of fees to be taken by the
Fund's attorneys, from the Fund, shall be that
set out in Table A of
Annexure 2, of the Rules Regulating the Conduct of Proceedings of the
Magistrates' Courts of South Africa,
in addition to necessary
expenses.
A VORSTER AJ
Acting Judge of the High Court
Date
of hearing:
17 July
2019
Date
of Judgment :
19 JULY 2019
Counsel
for plaintiff:
D BEKKER
Instructed
by:
GELDENHUYS INC
Counsel
for defendant:
B TRUMPIE
Instructed
by:
FOURIE FISMER INC
[1]
I am conscious of the fact that the Fund is also providing an
undertaking, and that a monetary value should be attached to such
undertaking. However on direct questioning neither Mr. Trumpie for
the plaintiff, nor Mr. Bekker for the defendant, could inform
me
what the monetary value of the undertaking is. For purposes of this
judgement I therefore do not take the monetary value of
the
undertaking into account. Both parties agree that the quantum of
compensation to be paid fall within the monetary jurisdiction
of the
Magistrate's Court.
[2]
This chronology was prepared by the respective legal
representatives, and I am indebted to them.
[3]
As has become custom in litigation against the Road Accident Fund,
this report did not comply with the provisions of either rule
36(9)(b) of the Uniform Rules of Court, or the test laid down In
Coopers (South
Africa) (pty) Ltd v Deutsche Gesellschaft Fur Schadlingsbekampfung
MBH
1976 (3) SA 352 (A).
[4]
This is to comply with the requirements set out in section 17(1) of
the Act.
[5]
The defendant's orthopaedic surgeon's report, and for that matter
all subsequent reports delivered by both parties suffered from
the
same defects as the plaintiff's orthopaedic surgeon's report.
[6]
It was recorded at this pre-trial that the issue of general damages
was referred to the Health Professions Council of South Africa
and
that the parties were awaiting the outcome of these proceedings.
[7]
The effect of these findings were that the plaintiff did not qualify
for general damages unless these findings were successfully
reviewed.
It would
seem from the documents filed of record that the plaintiff and his
attorneys reconciled themselves with these findings,
because as far
as I could ascertain these findings were never challenged on review.
[8]
This report was by a different occupational therapists to the one
who prepared the initial report.
[9]
To alleviate the burden on the ordinary trial troll, provision was m
de for third-party matters to be heard in recess by acting
judges,
who presides pro bona.
[10]
See Erasmus:
Superior Court Practice
2
nd
Edition
at D5- 5 under the heading ' Award of costs in court 's discretion'
and the cases referred to by the learned author.
[11]
Hlalele v Road Accident Fund
( 5668/2016)
(2017) ZAFSHC 210
(18 October 2017) at par 19.
[12]
Jwili v Road Accident Fund
(2009/12886) [2010] ZAGPPHC 37;
2010 (5) SA 32
(GNP) (6 May 2010) at par11.
[13]
Legal practitioners often misconstrue the true meaning of the term
'instructions.' Instructions are not what a client tells an
attorney, or an attorney tells Counsel. Instructions are facts upon
which an attorney or counsel may advance a specific legal
proposition.
[14]
Per Howie JA ( as he then was) in
Road Accident Fund v
Klisiewicz,
Case No. 19212001 (SCA), at para [42), as quoted by
Maya AJA in
Madzunya and another v Road Accident Fund
2007
(1) SA 165
(SCA) at para [17]) and Froneman J (as he then was) in
Bovungana v Road Accident Fund
( 209012007) [2009) ZAECHC 22;
2009 (4) SA 123
(E) (27 February 2009) par 1.
[15]
See the commentary in Jones & Buckle:
The Civil Practice of
the Magistrates Courts in South Africa
10
th
Edition,
on the scale of costs