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[2019] ZAFSHC 93
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Mokoena v Road Accident Fund (1971/2018) [2019] ZAFSHC 93 (6 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1971/2018
In
the matter between:
NICHOLAAS
KENNY
MOKOENA
PLAINTIFF
and
THE ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
CORAM:
NAIDOO J
HEARD
ON:
Written Heads of Argument Submitted 21 May 2019
DELIVERED
ON:
06 JUNE 2019
[1]
The cause of action in this matter arose from a motor vehicle
accident
which occurred on 6 June 2015, in which
the plaintiff was injured.
The
plaintiff was a pedestrian at the time, and sued the defendant (RAF)
for damages he suffered as a result of the negligence of
the
defendant’s insured driver. At a Rule 37 conference held
between the parties on 30 August 2018, they agreed to separate
the
issues of merits and quantum. The matter came before me, having been
set down for trial on the merits, on 7 and 8 May 2019.
On 7 May 2019,
the merits were settled without the matter having proceeded to trial.
The defendant agreed to accept liability for
60% of the plaintiff’s
proved or agreed damages. The parties could not, however, agree on
the issue of costs, and resolved
to file heads of argument, in order
that the issue of costs may be decided by a judge in Chambers. This
was done by 21 May 2019.
Quantum was to be determined at a later
stage. Ms KN Peterson represented the plaintiff and Mr I Sander
represented the defendant
[2]
The plaintiff seeks an order that the defendant pay his costs on a
party and party scale. The defendant, on the other hand contends
that
costs should be costs in the cause, as it is not possible at this
stage to determine if the High Court tariff or the Magistrates
Court
tariff should apply. Where the parties have agreed to separate the
issues of merits and quantum and the court makes an order
to this
effect (usually at the pre-trial hearing), the practice in this
Division is to set the hearing of merits of the matter
down for
trial. Quantum stands over for determination at a later stage. After
the merits are determined, either by way of the court
hearing
evidence and making an order, or by the parties settling the merits,
the parties would normally (several months later)
then enrol the
quantum aspect on the pre-trial roll.
Once
the matter is certified trial ready, the aspect of quantum is set
down for trial, and is invariably heard by a judge other
than the
judge who presided at the merits trial. It also frequently happens
that once all the expert reports in respect of quantum
are filed, the
parties would settle the issue of quantum, without proceeding to
trial.
[3]
It stands to reason that where these issues have been separated, and
the merits are set down for trial, the plaintiff would
call only
those witnesses who are able to testify about how the collision
occurred and to give insight into the liability of the
parties for
the collision. In the Free State, RAF is represented by one firm of
attorneys, who appear to have great difficulty
in coping with the
large number of matters that are enrolled for trial in this Division.
Counsel is more often than not, briefed
a day or two before trial,
and often appears in court without having seen or consulted with
RAF’s witnesses. The nett result
of this is that the plaintiff
is usually obliged to come to court on the appointed trial day with
his/her witnesses relevant to
the merits, and defendant comes to
court without any of its witnesses. That was the situation that
prevailed in this matter on
7 May 2019. The added complication was
that summons was issued in this matter in the Free State High Court,
as well as in the North
Gauteng High Court. After allowing the matter
to stand down, the matter was resolved and the merits were then
settled on the basis
indicated above.
[4]
I outline the circumstances in detail to demonstrate that the merits
trial is separate from the determination of quantum (in
this
Division, at any rate), and comes with its own attendant costs.
Mr
Sander relied on the case of
Mbatha v Road
Accident Fund 2017(1) SA 442 (GSJ)
for his
contention in respect of the costs order, which I mentioned above. In
Mbatha, the court was presented with a draft order,
after merits were
settled without proceeding to trial. The draft order contained, inter
alia, an agreement to pay costs,
“
such
costs to include the costs of counsel and costs of medico legal
experts who assessed and filed medico legal reports on
behalf of the
plaintiff.”
The
draft order also contained agreement on issues such as the
contingency fee agreement, which were not part of the agreement in
this case. The parties in this matter did not ask for the costs of
the expert witnesses to be included in the court’s order.
In
addition, it is clear that the manner of dealing with matters,
especially the RAF matters seems to differ in the various Divisions
of the High Court. It appears that Mbatha was dealt with by the judge
handling the roll call (of trial matters), which is not the
way it is
done in this Division. Once a matter is certified trial ready (on
merits, as in this case), the Registrar allocates trial
dates for the
hearing of merits, and the file is allocated to one of the judges on
trial duty for that week. This is done several
weeks before the trial
date.
[5]
The judge reads the file and prepares to hear the trial. It is not
usual for the costs of medico-legal experts, or obtaining
of
medico-legal expert reports to be included in a draft order settling
the merits of a matter. If it is it so included, my experience
has
been that such expert costs will not be allowed, unless the experts
are those necessary to decide the merits of the matter,
for example,
an accident reconstruction specialist. The other possible situation
would be where merits and quantum were not separated,
and the reports
of medical experts were obtained and consultations were held with
such experts to prepare them for trial.
In
that event, the court would possibly consider, at the merits stage,
granting those costs, if merits were settled without hearing
evidence, and quantum stood over (for whatever reason) for later
determination. In such a case, only costs reasonably incurred
in
preparing experts for trial may well be what the court will allow.
The remarks of the court in Mbatha, relating to costs must
be seen in
the context of the draft order presented to it as well as the manner
and procedure by which trial files are dealt with
in that Division.
In my view, Mbatha can be distinguished from this case.
[6]
It is well established in our law that the general rule regarding
costs is that the unsuccessful party pays the costs of the
successful
party on the party and party scale. The determination of an
appropriate costs order is in the discretion of the court,
which
discretion is usually informed by a number of factors in order that
such discretion be exercised judiciously. These factors
include
consideration
of the circumstances of each case, carefully weighing the issues in
the case, the conduct of the parties and any other
circumstance which
may have a bearing on the issue of costs and then make such order as
to costs as would be fair and just between
the parties.
(Erasmus, Superior Court Practice, D5-6).
In this matter, the plaintiff came to court, ready to
proceed to trial. The defendant did not have its witnesses at court
and would
not have been able to proceed. The fact that the merits
were settled without the court having heard any evidence, and with
the
defendant accepting liability for more than fifty percent of the
plaintiff’s damages does not change the position that the
plaintiff was substantially successful, and that the defendant was
the unsuccessful party. In that event, the general rule that
costs
follow the result must apply.
[7]
Quantum will be determined at a later stage, most probably in the
course of a trial, where different witnesses to those that
are called
in a merits trial, are led. Such witnesses would usually be medical
experts who examined the plaintiff and assess his
damages based on
his injuries. The order that the defendant seeks in this matter will
have the result that the plaintiff would
have to pay his legal fees
immediately, while having to wait several months to recover the costs
incurred in respect of the merits
trial. In my view this would be a
wholly inequitable situation, considering that the defendant’s
legal representatives will
be paid immediately, irrespective of their
success or failure in the merits trial. In my view, therefore, the
submission made by
Mr Sander
that “If the
matter had been heard as a trial and the court itself had decided on
the merits, then the successful party would
be entitled to ask for
costs”
, is without merit and cannot be
sustained, The acceptance of liability by the defendant is akin to a
court making the order, in
that such acceptance places the plaintiff
in the position of the successful party and the defendant in the
position of the unsuccessful
party. Both counsel attached proposed
draft orders to their respective Heads of Argument. I am inclined to
accept the draft order
proposed by the plaintiff, with the necessary
amendments I have effected thereto.
[9]
In the circumstances, I make the following order:
9.1 The defendant shall
pay Sixty Persent (60%) of the plaintiff’s proven or agreed
damages;
9.2 The defendant shall
pay the plaintiff’s taxed or agreed party and party costs, on
the High Court scale, such costs to
include
9.2.1 The plaintiff’s
reasonable travel expenses and costs of
accommodation,
if any;
9.2.2 Reasonable travel
expenses and costs of accommodation, if
any, of
the plaintiff’s witnesses, who must have been
necessary
witnesses for the purpose of the trial on merits, and
9.2.3 Costs of counsel,
including preparation and reservation fees.
9.3 In the event that
such costs are not agreed:
9.3.1 The plaintiff’s
attorney of record shall serve a Notice of Taxation on the
defendant’s attorney of record;
9.3.2 The plaintiff shall
allow the defendant fourteen (14) court
days,
from the date of the Taxing Master’s allocator, to make
payment of the taxed costs;
9.3.3 In the event that
the plaintiff’s taxed costs are not paid in
terms
of paragraph 9.3.2, the defendant shall be liable for the
payment of interest on such costs, at 10.25 % per annum,
calculated from the date of default to the date of
payment.
____________________
S.
NAIDOO, J
On
behalf of Plaintiff: Adv. Ms KN Petersen
Instructed
by: Honey Attorneys
1
st
Floor Honey Chambers
Northridge
Mall
Kenneth
Kaunda Road
Bloemfontein
(Ref:A
Prinsloo/fk/J03710)
On
behalf of the Defendant: Adv. I Sander
Instructed
by: Maduba Attorneys
Unit
1, Ground Floor
Canterbury
Park
Westdene
Bloemfontein
(Ref:
MA/RAF/2624)