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[2018] ZAGPPHC 375
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Van Rensburg v Road Accident Fund (66640 /16) [2018] ZAGPPHC 375 (9 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OFSOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
Case
Number: 66640 /16
9/3/2018
In
the matter between:
ANNIE VAN
RENSBURG
Plaintiff
And
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
NOWOSENETZ AJ
[1]
This is an action by the plaintiff for damages for loss of support
arising from the
death of her common law husband In a multiple motor
vehicle accident on 28 June 2013. The accident happened in the
Western Cape.
The parties agreed to separate the issue quantum and
only the merits were to be determined on trial set down to be heard
on 8 March
2018.
[2]
On 6 March 2018 the plaintiff filed and served a notice of motion and
a substantial
affidavit requesting a postponement of the trial on the
basis that It was prejudiced by the conduct of the defendant if the
matter
proceeded. The application included a prayer for costs on a
punitive s le. Shortly before the roll call the defendant conceded
the merits and conceded a postponement. The only outstanding issue
was costs In respect of which argument was heard. This judgment
is
pursuant thereto.
[3]
The plaintiff presented a detailed and thorough review of the conduct
of the defendant
during preparation of this litigation. The salient
non compliances and prejudicial conduct of the defendant’s
attorneys were
the following:
[4]
First pre trial meeting 22 February 2017. The defendant made no
admissions of substance
on any of the issues. This was aggravated by
the plea being mostly bare denials. The defendant had not yet
investigated the accident
but undertook to do so and consult the
driver. No further action was taken.
[5]
The plaintiff sent notices in terms of Rule 21 and 37(4) on 14
December 2017 to the
defendant. There was no response from the
defendant at all.
[6]
Second pre-trial meeting - March 2018 , The defendant had still not
appointed an assessor.
The plaintiff gave the defendant the
assessor's phone number to contact the assessor. The plaintiff agreed
to rely on the assessor's
report. The defendant had no instructions
on the questions requested to be answered for trial purposes. The
defendant was not in
possession of the docket. The plaintiff provided
it to the defendant.
[7]
On
6 March 2018 the defendant's attorney filed notices in terms of Rule
35(9) objecting
to
documents
of the plaintiff including documents such as the death certificate of
the deceased. The defendant still did not admit
negligence and did
not make any admissions on any aspect at ell. The plaintiff had
to
then arrange to call up to 30
witnesses. Some had to fly from the Cape. The plaintiff warned the
defendant that she was prejudiced
and of the provisions of Rule 3
7
(9). The plaintiff faced
difficulties in locating witnesses as even the police were unable to
do so.
[8]
It was contended by the plaintiff that the defendant was in bad faith
as evidenced
by its non-compliances and Its Rule 35 (9) notices. In
addition the defendant had failed to make discovery. The unreported
decision
of Southwood J in this court in Lucas Neo Jwili v RAF
(2009/112886) dated 6 May 2010 was cited. In that case the
defendant's attorney
had failed to prepare the case and relied on
tack of instructions. It was stated that under such circumstances the
attorney should
have withdrawn. The defendant's counsel in argument
did not rely on lack of instructions and made the disingenuous
proposition
that the application was unnecessary as both parties were
unprepared. A punitive costs order was granted against the
defendant's
attorney and the defendant jointly and severally and the
attorney was declared not entitled to receive any fees. The attorneys
who handled the defendants case were M Theron and M Sithole of the
firm Lekhu Pilson Attorneys Pretoria.
[9]
Rule 3
7
(9) (a) (Ii) is applicable in this case. It provides
that a court at the hearing of the matter may consider whether it is
appropriate
to make a special order as to costs against a party or
hi& attorney because the party or the attorney failed to a
material
degree to promote the effective dispose! of the litigation.
The defendant’s attorney has not compiled with the procedures
and preparations in litigation expected of a reasonable attorney and
in addition were obstructive and mala fide towards the plaintiff
and
her attorneys. Furthermore this has resulted in unnecessary costs and
problems in preparation being occasioned by the plaintiff.
The following order is made:
1.
The
Defendant is 100 % liable to pay the Plaintiff's proven or agreed
damages.
2.
The
aspects of quantum is postponed
sine
die.
3.
The
Defendant Is ordered to pay the Correspondent and Instructing
attorneys costs of suit to date on the Attorney and Own Client
scale,
which costs include (but not be limited to):
3.1
The
costs of the preparation of 6 trial bundles as per the Gauteng High,
Court Practise Directive and as agreed upon in the Pre-Trial
Minutes:
3.2
The
costs of counsel;
3.3
The
costs of the application for postponement;
3.4
The
costs of the Inspection in loco, including travelling and
accommodation expenses if any;
3.5
The
reasonable costs of the attorney, which includes reasonable
travelling costs, costs for preparing for Pre-Trial Converences
end
costs for actual attendances of all Pre-Trial Conferences, all Rule
35(9) notices, Rule 36(1) notices, ell filing notices,
Further
Particulars. Subpoena's, costs of formulating the draft order;
3.6
The
costs of the witnesses whom attended to court, including travelling
and accommodation expenses;
3.7
The
reasonable costs for preparation for trial.
4.
Should
the Defendant fall to pay the Plaintiffs Attorney and Client costs as
taxed or agreed with 30 (THIRTY) days from the date
of taxation,
alternatively date of settlement of such costs, the Defendant shall
be liable to pay Interest at a rate of 10.50 %
per annum, such costs
as from end including the date of taxation, alliteratively the date
of settlement of such costs up to and
Including the date of final
payment thereof.
5.
The
plaintiff shall, in the event that the parties are not In agreement
as to the costs referred to In paragraph 4 above, serve
the notice of
taxation on the Defendant's attorneys end shell allow the Defendant
seven court days to make payment of the taxed
costs.
6.
The
taxed or agreed costs. as referred to above, shall be paid Into the
trust account of Gildenhuys Malatji Incorporated. ABSA Bank,
Brooklyn
Branch, Account Number [….], Branch Code 335345 under
Reference: T VLOK/ 01781880 .
7.
Attorneys
M Theron and M Sithole and the firm Lekhu Pilson Attorneys, Pretoria
are not entitled to receive fees from the defendant
for the conduct
of this case from inception of instructions until date hereof. Any
fees received to date must be refunded to the
defendant within 6
weeks hereof.
8.
The
registrar is requested to send a copy of this judgment, the trial
bundles of documents and the postponement application to the
Law
Society of the Northern Provinces or its successor In title for
investigation of attorneys M Theron and M Sithole and the firm
Lekhu
Pilson Attorneys, Pretoria for professional misconduct arising from
this judgment and to investigate compliance with order
in paragraph
7
above. In the event of
non-compliance to report same to the registrar of this court as soon
after 6 weeks hereof as possible.
L.
NOWOSENETZ
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: 66640/16
HEARD
ON: 8 March 2018
FOR
THE PLAINTIFF: ADV.
G. EDWARDS
INSTRUCTED
BY: Gildenhuys Malatji Inc
FOR
THE DEFENDANT: ADV. M.J. MATLHANYA
INSTRUCTED
BY: Lekhu PIison Attorneys
DATE
OF JUDGMENT: 9 March 2018