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[2019] ZAECELLC 5
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Pitt obo Pitt v Road Accident Fund (850/2016, ECD 2150/2016) [2019] ZAECELLC 5 (5 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EAST
LONDON CIRCUIT LOCAL
DIVISION
REPORTABLE
Case No.:
850/2016
ECD 2150/2016
Replying
Affidavit filed on 18 February 2019
Date
Delivered: 5 March 2019
In
the matter between:
CHANTELLE
PITT obo TANEAL
PITT
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
GAJJAR
AJ:
Introduction
[1]
This
matter calls for an interpretation of Rule 29(2)(a) and (b) read
together with Eastern Cape Practice Rule 3(1)(c) which relate
to the
set down of a mater.
[2]
Pursuant
to a “
notice
of set down”
dispatched by electronic mail by the Registrar’s office on 31
October 2018 to both the plaintiff’s and defendant’s
attorneys, the latter accepted that the matter was in fact set down
for trial on that basis. The merits were previously
settled and the trial was to proceed in respect of the claim for loss
of earnings only, the remaining heads of damages having been
previously settled.
[3]
On
31 January 2019 the matter was, by agreement, postponed
sine
die
and the costs occasioned by the postponement is the only issue which
must be determined.
Background
[4]
On
31 January 2019 the plaintiff’s attorney, Mr Nohaji, and Mr
Clark, the defendant’s counsel, presented themselves
before me
in chambers. They informed me that the matter could not proceed
as Mr Nohaji only came to learn of the “
set
down
”
of the matter the previous week when the defendant’s attorney
contacted his office. Mr Nohaji confirmed that
his office
received the electronic mail of 31 October 2018 from the Registrar’s
office enclosing the “
set
down
”
of this matter for hearing on 31 January 2019. He told me that
for reasons unknown to him the matter was not diarised
by his
office. Consequently he was not in a position to proceed with
the matter. Thereafter the parties agreed that
the plaintiff
would pay the costs occasioned by the postponement.
[5]
I
was taken aback by the agreement that was reached as the plaintiff
had no part in the admitted omission on the part of her attorney’s
office. Moreover, there was no indication that this agreement
was reached on the basis of an instruction which Mr Nohaji
had
obtained from the plaintiff, it being trite that an attorney must at
all times act on the instructions of his/her client.
I informed
the parties’ representatives that I was not bound by the
agreement reached between them
[1]
and gave them a further opportunity to reconsider the agreement
reached between them. This matter was previously set
down for
hearing on 26 June 2018, when, by agreement, the matter was postponed
at the plaintiff’s instance with the plaintiff
bearing the
costs occasioned by the postponement. It is not clear why the
matter was previously postponed.
[6]
I
was concerned that the agreement reached was going to visit the
plaintiff with costs when, as stated, she had no hand in how the
matter was being attended to by her attorneys. The parties
subsequently agreed as follows:
6.1
The matter be postponed
sine die
;
6.2
The Plaintiff’s attorney files an affidavit on or before 7
February 2019, setting out the reasons why
he should not pay the
wasted costs, if any, of the postponement
de bonis propriis
;
6.3
The Defendant may file an affidavit in response thereto on or before
14 February 2019;
6.4
The Plaintiff’s attorney may file a reply, if any, on or before
18 February 2019.
[7]
I
accordingly issued an order in those terms.
The
arguments advanced on behalf of the parties
[8]
Pursuant
to the aforesaid order, both Mr Nohaji and the defendant’s
correspondent attorney, Mr Macozoma, deposed to affidavits
in
accordance with the order of 31 January 2019.
[9]
The
contents of Mr Nohaji’s affidavit may be summarised as follows:
9.1
on 2 November 2017 the Registrar allocated 25 June 2018 as the trial
date. Pursuant
to receiving the Registrar’s notice the
plaintiff’s attorneys filed and served a notice of set down
dated 7 November
2017 setting the matter down for hearing on 25 June
2018, in accordance with the Registrar’s notice of set down.
The
latter notice was served on the defendant’s attorneys on 9
November 2017;
9.2
on 25 June 2018, by agreement, the matter was postponed
sine die
with the plaintiff paying the defendant’s wasted costs
occasioned by the postponement;
9.3
on 25 October 2018 application was made to the Registrar for a
new trial date;
9.4
on 31 October 2018 the Registrar’s office allocated 31 January
2019 as the trial date.
Following this no set down for hearing
of the matter on 31 January 2019 was served and filed by his office;
9.5
on 25 January 2019 he received an email from the defendant’s
instructing attorneys
wherein it was recorded that the matter is set
down for trial on 31 January 2019 and further requesting that the
plaintiff confirms
that she is indeed ready to proceed to trial.
The defendant’s rights in respect of any costs implications as
a result
of the plaintiff not being ready to proceed and not
timeously informing the defendant thereof were reserved;
9.6
on 25 January 2019 the plaintiff’s attorney wrote to the
defendant’s instructing
attorneys wherein it was recorded that
he was not aware that this matter was set down for trial on 31
January 2019 and requested
the defendant’s instructing
attorneys to ‘
furnish us with a copy of the notice of
set down
’;
9.7
on 30 January 2019 the defendant’s instructing attorneys
received confirmation from
the Registrar’s office that the
Registrar had dispatched her notice of set down on 31 October 2018
and it was further stated
by the defendant’s instructing
attorneys that ‘
our counsel will be at court tomorrow to
argue the wasted costs in this matter as the defendant was ready to
proceed to trial
’;
9.8
reliance is placed on Rule 29(2)(a) and (b) which reads as follows:
“
(a)
upon allocation of a date of trial or dates for the trial, the
Registrar must inform all parties of the allocated
dates.
(b)
The party which applied for the trial date must, within ten (10) days
of notification from the
Registrar, deliver a notice informing all
other parties of the date or dates on which the matter is set down
for trial.”
9.9
Reliance is also placed on Eastern Cape Practice Rule 31(1)(c) which
provides that ‘
whenever in any cases not carried on by
default, the pleadings have been closed, the plaintiff or, if he
fails to do so within 30
days, the defendant may set down the case on
the roll for trial by entering the particulars in the register, kept
by the Registrar,
and by forthwith giving notice in writing to the
opposite party and the Registrar, in the form set out in the First
Schedule hereto
that he has done so.
’
9.10
It is submitted that a Notice of Set Down from the plaintiff, failing
which the defendant, should be delivered
to the opposite party and
the Registrar before a matter can be said to have been correctly set
down. According to this argument,
the Registrar cannot set the
matter down.
[10]
The
contents of Mr Macozoma’s affidavit may be summarised as
follows:
10.1
Prior to making the order of 31 January 2019 the parties had
reached agreement in terms
whereof the plaintiff agreed to pay the
wasted costs occasioned by the postponement. In light of the
agreement so reached the plaintiff’s
attorney is precluded from
now raising an argument that neither he nor the plaintiff should
pay the wasted costs occasioned
by the postponement. With
reference to Rule 29(2)(b) the defendant accepts that the plaintiff
failed in her pre-emptory obligation
to serve a notice of set down on
the defendant. This set down simply serves to inform the
defendant that the trial has (already)
been set down for hearing on a
particular day;
10.2
with reference to Eastern Cape Practice Rule 3(1)(c) the plaintiff
failed
to give the defendant
notice that she had set the case down for trial. What clearly
emerges from this rule is that it is
the entering of the particulars
in the register kept by the Registrar that sets the case down for
trial and not the subsequent
notice served on the defendant;
10.3
from a reading of Rule 29(2)(b) and Eastern Cape Practice Rule
3(1)(c) the plaintiff’s notice of set
down is simply further
notice to the defendant of the trial date. Should a matter be
removed from the roll for lack of service
of a notice of set down on
the defendant, such is done for the benefit of the defendant (and not
the plaintiff) in order to ensure
that the defendant has notice of
the trial date. The plaintiff cannot rely on her own failure to
comply with the rules;
10.4
the assistant Registrar, Ms Kirsten, confirmed this to be the
practice in this court when she was called
to chambers. She
clearly intimated that it was the entry of the case in the register
of the Registrar that sets the matter
down for trial and that a
further notice of set down from the plaintiff (after and in addition
to the notice of set down sent by
the Registrar to the parties) is
simply a courtesy. She stated further that the case would
remain on the Registrar’s
roll unless removed by way of a
notice of removal;
10.5
the plaintiff’s attorney blames his failures (in failing to
diarise the date allocated
by the Registrar and serve the notice of
set down on the defendant) on a clerical oversight at his office.
Discussion
[11]
Mr
Nohaji’s reference to Eastern Cape Practice Rule 3(1)(c) is, in
my view, of no assistance in resolving the determination
of the issue
of costs. The purpose of Eastern Cape Practice Rule 3(1)(c) is
to afford the plaintiff firstly an opportunity
to
apply
for a trial date by submitting the form set out in the First Schedule
to the Eastern Cape Rule 3(1)(c), and should the plaintiff
fail to do
so then within thirty days of the close of pleadings, the defendant
may
apply
for a set down of the matter.
[12]
In
my view, the words “
set
down
”
in East Cape Practice Rule 3(1)( c) do not bear the meaning which
parties’ representatives ascribe to it. Rule
3(1)(c) is
no more than a written application addressed to the Registrar seeking
an allocation of a trial date in the form of a
notice. The
notice is reproduced below.
First
Schedule
FORM OF NOTICE UNDER RULE 3
IN THE SUPREME COURT OF SOUTH
AFRICA
(Eastern Cape Division)
In the matter
of:………………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
.
Plaintiff/Applicant.
versus
…………………………………………………………………………………………………………………
.
Defendant/Respondent
NOTICE OF SET-DOWN IN TERMS OF RULE
3(1) OF THE RULES OF THIS COURT
KindlKindly take notice that the
above-mentioned matter has been set down for hearing.
The fThe following counsel will be
briefed to appear:
……………………………………………………………………………………………………………………………………………………
.
……………………………………………
.
for
Plaintiff/Applicant
and
……………………………………………………………………………………………………………………………………………………
.
……………………………………………
.
for
Defendant/Respondent
Dated at
..................................... this ......................
day of ............................19……
……………………………………………………
.
Attorney
for Plaintiff/Applicant
Address
.......................................
.....................................................
To: The Registrar of the above
Honourable Court; and to:
……………………………………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………………………………
……………………………………………………………………………………………………………………………………………
Attorney for Defendant/Respondent
Address
………………………………………………………………………………………………………………………………
………………………………………………………………………………………………………………………………………………
[13]
The
heading of the notice under Rule 3(1)(c) is anomalous since it
creates the impression that a matter is set down. This
is
unfortunate. No provision is made for a date for “
set
down
”
in that notice. In my view, the Rule 3(1)(c) notice must
be properly read and understood as an application for
a trial date.
[14]
To
compound matters further, the Registrar in response to the party’s
Form 3 Notice dispatches a document headed “
notice
of set down”
,
pursuant to Rule 29(2)(a). This notice, however, serves no more
than to advise the requesting party which date is available.
This interpretation is supported by having regard to what Rule
29(2)(b) requires of a party who has applied for a trial date.
The requesting party is required within ten days of receipt of the
notice in terms of Rule 29(2)(a) from the Registrar to make
an
election, that is either to “accept” the Registrar’s
proposed trial date by means of a formal notice of set
down or not.
If it is not so accepted, the Registrar will be at liberty to make
such date available to another requesting
party. At least three
practical considerations for this procedural mechanism for
effectively managing the set down process come
to mind. The
first is that it allows the Registrar to manage his/her trial roll
and the second is to allow the requesting
party a period of ten days
to decide whether the matter can proceed on the proposed date(s),
having regard to,
inter
alia
,
the availability of witnesses. Thirdly, the ten day period
allows the parties to engage with each other regarding the
suitability
of the proposed trial date.
[15]
It
is significant to note that in terms of Rule 29(2)(b) it is only the
requesting party that can file a notice of set down.
Whilst the
defendant has submitted that the plaintiff cannot seek to benefit
from the omission on the part of her attorney by failing
to set the
matter down in terms of Rule 29(2)(b), it, in my view, would have
entitled the defendant to have correctly assumed that
in the absence
of such notice that the matter was not set down for hearing on 31
January 2019. Tellingly, on 25 January 2019
the plaintiff’s
attorney in reply to the defendant’s instructing attorneys
electronic mail of the same date stated
that “
[w]e
are not aware that this matter is set down for trial on Thursday the
31
st
January 2019, kindly urgently furnish us with a copy of the notice of
set down
”.
The notice referred to can only be the notice in terms of Rule
29(2)(b). In reply, the defendant’s instructing
attorney
relied on the Registrar’s Rule 29(2)(a) notice of set down.
[16]
It
is incorrect to assume that the “
notice
of set down
”
dispatched by the Registrar in terms of Rule 29(2)(a) constitutes a
setting down of the matter for trial on a specified
date. In my
view, the compilation of the list of trial cases by the Registrar
must be based on the receipt of a formal notice
of set down in terms
of Rule 29(2)(b) from the requesting party.
[17]
In
the result, it seems to me that to properly and effectively set a
matter down for trial encompasses taking three distinct steps,
namely:
171
The completion of the form in terms of notice under Rule 3(1)(c) of
the Eastern Cape Rules;
17.2
the Registrar’s response to that notice in terms of Rule
29(2)(a), and
17.3
the notice of set down in terms of Rule 29(2)(b) by the requesting
party.
[18]
In
the instant matter on 30 October 2018 the plaintiff’s attorneys
duly filed a notice in terms of Eastern Cape Rule 3(1)(c).
Pursuant to that notice the Registrar by notice dated 31 October 2018
“
set
the matter down
”
for hearing on 31 January 2019 in terms of Rule 29(2)(a). It is
common cause that the Registrar’s notice was
transmitted to
both the plaintiff’s and defendant’s attorneys by
electronic mail.
[19]
What
is, however, absent is the third stage of the set down process,
namely the attorney’s notice of set down as contemplated
by
Rule 29(2)(b).
[20]
As
alluded to, the matter was previously set down for trial for hearing
on 25 June 2018. It is instructive to note that after
receiving
the Registrar’s notice pursuant to Rule 29(2)(a), the
plaintiff’s attorneys in fact set the matter down for
hearing
for that date being 25 June 2018, that notice being served on the
defendant’s correspondent attorneys on 9 November
2019 pursuant
to Rule 29(2)(b). Thus, the plaintiff’s attorney
previously complied with Rule 29(2)(b).
[21]
In
my view, for a trial matter to be properly and effectively set down
encompasses taking all three steps set out in paragraphs
17.1 to 17.3
above.
[22]
Non-compliance
with Rule 29(2)(b) in the present case means thus that the matter was
not properly set down for hearing on 31 January
2019. That
being my conclusion, it would not be proper to mulct either party
with costs.
[23]
The
defendant’s reliance on the agreement reached with the
plaintiff’s attorney that his client pays the costs occasioned
by the postponement is accordingly unavailing.
[24]
A
word, however, needs to be said about the manner in which the
plaintiff’s attorney has conducted the matter.
[25]
The
plaintiff sues in her representative capacity as mother and natural
guardian in respect of her son who sustained injuries in
a motor
vehicle accident which occurred on 5 July 2015. As stated, loss
of earnings is the only head of damage which remains
outstanding.
[26]
Notwithstanding
the fact that this matter was previously enrolled for trial on 25
June 2018, there appears to have been very little,
if anything, that
was done on behalf of the plaintiff other than having filed an
application for a trial date with the Registrar
on 30 October 2018.
Since then it appears that no active steps have been taken on the
plaintiff’s behalf to further
advance the action to reach
finality.
[27]
The
plaintiff’s attorney has regrettably displayed a level of
apathy and dilatoriness unbecoming of an officer of the court.
The inept conduct on the part of the plaintiff’s attorney in
attending to the plaintiff’s claim, which is in essence
the
minor’s claim, is cause for concern.
[28]
Attorneys
are expected to discharge their duties towards their client(s)
diligently.
[2]
[29]
In
this regard the court in
Thulo
v Road Accident Fund
[3]
said
:
“
[45]
It is said that an attorney's word is his or her bond and unless
litigation can be conducted with an officer of the court being
able
to place absolute trust in the undertaking of another officer of the
court the conduct of litigation will rapidly break down
and become
less efficient. Given that litigation is the means chosen by the
legislature to resolve claims for bodily injuries
arising from
motor vehicle accidents and given the huge sums of public funds
involved in this industry a breakdown in the means
whereby these
claims are to be processed, where attorneys' words must be their
bonds, cannot be tolerated by the profession or
by the courts whose
trial rolls are at present made up of approximately 80% of such
matters.
[46]
If the attorneys entrusted with the conduct of those trials do not
acquit themselves with scrupulous professionalism they exacerbate
the
condition of what is already a massive problem in the courts of this
division.”
[30]
I
express the sincere hope that the plaintiff’s attorney will
discharge his duties and responsibilities towards his client
with
greater diligence than he has thus far displayed. The plaintiff
deserves better.
[31]
In
the result, I make the following order in respect of the costs
occasioned by the postponement of the matter on 31 January 2019
and
the subsequent attendances by the respective attorneys:
31.1
There shall be no order as to costs;
31.2
Neither attorney is to recover any fees from their respective clients
in respect of their appearance, the
postponement and the affidavits
filed pursuant to the order of 31 January 2019.
G
J GAJJAR
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv Kotze instructed by Cinga
Nohaji Inc, East London
For
Defendant: Adv Clark instructed
by Bate Chubb & Dickson, East
London
[1]
In my view the position is analogous to the discretion which a court
has to refuse a postponement even when the parties
agree to postpone
the matter: See: National Police Service Union v
Minister of Safety and Security
2000 (4) SA 1110
(CC) at 1112E.
[2]
See Mazibuko v Singer 1979(3) SA 258 (W) at 261C; Mlenzana v
Goodrick and Franklin Inc
2012 (2) SA 433
(FB) at para [97]
[3]
2011 (5) SA 446
(GSJ) at para [45] and [46]