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[2018] ZANCHC 27
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Road Accident Fund v Isaacs (1552/14) [2018] ZANCHC 27 (11 May 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: 1552/14
Heard on: 23/03/2018
Delivered
on: 11/05/2018
In
the matter between:
ROAD ACCIDENT FUND
APPELLANT
And
JACQUELINE ISAACS
RESPONDENT
Summary: Full Bench
Appeal- two issues – order by the court a quo awarding costs on
the High Court scale – alleged criticism
of the conduct of the
appellant’s attorneys.
Coram: Pakati ADJP
et Mamosebo J et Vuma AJ
JUDGMENT ON APPEAL
MAMOSEBO J
[1]
This appeal is against the findings of my sister Erasmus AJ with her
leave. Two crisp issues were argued: first, that the trial
court
erred in awarding costs on the High Court scale whereas the damages
claimed fall within the Magistrates Court jurisdiction;
and,
secondly, the trial court’s criticism levelled against the
defendant’s attorney.
[2]
In the Notice of Appeal the appellant listed ten grounds upon which
it relied for its appeal against the trial court’s
entire
judgment and order delivered on 18 November 2016. Adv Salie SC
appeared for the appellant and argued only the mentioned
two grounds
which in his submission show a misdirection on the part of the trial
Judge. On 15 March 2018 the respondent filed a
notice of intention to
abide this Court’s ruling. The appeal was heard unopposed. For
convenience I will refer to the appellant
as the RAF (the Road
Accident Fund) and the respondent as Ms Isaacs or the plaintiff.
The salient facts underpinning
this case
[3]
Ms Jacqueline Isaacs, born [...] 1997, was ten years old when her
father was involved in a motor vehicle collision which claimed
his
life on 28 June 2007. This claim is against the RAF for loss of
support for the minor child.
[4]
On 27 August 2014 the plaintiff issued summons out of this Court
against the RAF. The initial claim was an amount of R50 089.00.
In her amended particulars of claim, and after an actuarial report
dated 05 May 2016 by Munro Forensic Actuaries, the amount was
amended
to R224 400.00.
[5]
The hearing in respect of the merits was set down for 01 March 2016.
The parties stood the matter down to the following day.
On 02 March
2016 an order by agreement was taken before Erasmus AJ. The RAF
conceded 100% liability on the still to be proven damages
by the
plaintiff. Costs, particularly wasted costs of 01 March 2016, were
reserved.
[6]
The hearing in respect of quantum was set down for 08 November 2016.
On 03 November 2016 and in terms of the Rule 34 notice
the RAF
tendered an amount of R
201
960.00 payable within 120 days after it would have received the
notice of acceptance by the plaintiff.
RAF
further tendered Ms Isaacs’ taxed or agreed party and party
costs on the Magistrates Court scale. The parties could
not,
however, settle the issue of costs. The RAF took the view that the
agreed damages fell within the jurisdiction of the Magistrates
Courts
whereas it was contended on behalf of Ms Isaacs for costs on the High
Court scale despite the settlement amount. An order
by agreement was
taken by the parties on 08 November 2016 which recorded that:
“
Judgment
is reserved with regard to the costs of the action, including the
wasted costs of the court attendances on the 1
st
of March 2016 and the 8
th
of November 2016, Counsel’s fees, [and] costs relating to the
experts and travelling costs.”
Whether
the trial Court should have awarded costs on the High Court scale or
not
[7]
Ms Sieberhagen argued before Erasmus AJ that because the RAF had
tendered R120 000.00 and costs on the High Court scale
in the
matter of Human and the RAF and two other matters related to the same
accident, the RAF cannot now argue that Ms Isaacs
is not entitled to
the same scale despite her amount also being within range. On appeal
Mr Salie submitted that there were no objective
facts placed before
the trial court upon which to base the argument comparing the
settlements in the Isaacs and Human issues.
[8]
By 09 December 2014 the defendant filed its plea to the plaintiff’s
particulars of claim. The defendant even denied that
a collision
occurred or was caused by the negligence of the insured driver and
placed everything in dispute.
[9]
Dr Everd Jacobs, the plaintiff’s Industrial Psychologist, filed
his loss of earnings report on 30 September 2015.
[10]
Ms Sieberhagen impressed on the Court that even though the defendant
had vigorously denied the collision it ultimately conceded
the merits
100% on the morning of the trial date. Counsel argued that
calculations for the quantum could not be finalised until
the report
was received from the industrial psychologist. Upon the question by
Erasmus AJ why calculations were not done before
the summons was
issued Ms Sieberhagen’s response was that the plaintiff was a
minor when the collision occurred. This response
did not answer the
question because the claim was initially instituted by the minor’s
guardian until she became of age and
was substituted by the minor as
the plaintiff.
[11]
It must be borne in mind that in an e-mail by the plaintiff’s
attorneys to the appellant’s attorneys an amount
of R201 600.00
and High Court costs was proposed. It was in this communication
wherein the three other linked cases relating
to the earlier claims
and costs on a High Court scale were settled. The amount in the
attached matter of Human versus RAF
was also within the jurisdiction
of the Magistrates Court but settled on the High Court scale.
[12]
The trial court did not find the plaintiff blameless. It also did not
consider the amount involved or the fact that parties
conceded that
the issues were not complex and necessitated the attention of the
High Court nor the late filing of the actuarial
report. Had the
issues been limited to the aforementioned issues, Erasmus AJ
remarked, it would have been justifiable for her to
grant costs on
the Magistrates Court scale. However, the trial court went further
and considered the role of the RAF and highlighted
what it perceived
to be the compelling reasons that tilted the scale towards granting
costs on the High Court scale.
[13]
The court was alive to the considerations akin to the case at hand as
succinctly expressed in the unreported judgment of
Vermaak
v Road Accident Fund
[1]
where Jones J said
that:
“
The
High Court frequently restricts costs to the magistrates’
courts scale on the ground that the plaintiff could and should
have
proceeded in the magistrates’ court where litigation is less
expensive. In doing so, it applies the basic principle
of costs that
the court has a discretion which it must exercise judicially upon a
consideration of all the facts of each case,
and that the underlying
consideration is fairness to both sides. The amount of the judgment
or settlement is always a significant
factor in balancing fairness.
The courts discourage litigants from choosing a more expensive forum
where relief can be obtained
in a less expensive one. The defendant
should not have to pay more [by way of] costs because he has been
brought to a more expensive
court unnecessarily. While the amount of
a judgment is always important, it is, however, not the only
consideration. Various other
circumstances - for example, the
complexity of the factual issues, the difficulty of the legal issues,
the seriousness of
an imputation against reputation, the honesty of
officials, the general importance of the issue to the parties or the
public –
might induce a court to award costs on the high court
scale although the amount involved is small. 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 courts will have to satisfy the high court that
there are good and sufficient reasons for the exercise
of a
discretion to award high court costs in his or her favour.”
[14]
It is discernible from the record of proceedings that the court has
considered and repeatedly demanded justification from the
plaintiff’s
counsel why the matter could not have been proceeded with in the
Magistrates’ Court. Considerations of
fairness played a role.
The court even went to an extent of considering and engaging the
parties on the presence of factors or
circumstances that would
necessitate the matter being heard in the High Court, namely, the
complexity of the factual or legal issues,
the seriousness of the
imputation against reputation, the honesty of officials and the
general importance of the issue to the parties
or the public.
[15]
Regard being had to the absence of the aforementioned circumstances,
the trial court, in the exercise of its discretion, considered
the
following: 15.1 That the plaintiff’s
claim appeared not to have been properly or timeously
investigated
whereas the causation of liability was ascertained and investigated;
15.2
Some of the matters emanating from the same collision were settled in
amounts falling under the magistrates’
jurisdiction but on a
High Court scale;
15.3
The RAF did not request that the matter be transferred to the lower
court at any stage of the proceedings including
at pre-trial
conference stage;
15.4
The RAF on both the merits and quantum waited for the matter to be
set down for trial and offers were tendered
on the day of trial.
These aspects informed the decision to award the costs on a High
Court scale.
[16]
Smalberger JA’s pronouncements on costs are instructive. In
Intercontinental
Exports (Pty) Ltd v Fowles
[2]
the Judge stated:
“
[25]
The basic rule is that, statutory limitations apart, all costs awards
are in the discretion of the court
(Kruger Bros & Wasserman v
Ruskin
1918 AD 63
at 69, a decision which has consistently been
followed). The court’s discretion is a wide, unfettered
and equitable
one. It is a facet of the court’s control
over the proceedings before it. It is to be exercised
judicially with
due regard to all relevant considerations.
These would include the nature of the litigation being conducted
before it and
the conduct of the parties (or their representatives).
A court may wish, in certain circumstances, to deprive a party of
costs, or a portion thereof, or order lesser costs than it might
otherwise have done, as a mark of its displeasure at such party’s
conduct in relation to the litigation. Is it to be precluded by
agreement from doing so? A court should not be obliged to
give its
imprimatur to an order of costs which, in the circumstances, it
considers entirely inappropriate or undeserved.
In my view, as
a matter of policy and principle, a court should not, and must not,
permit the ouster of its discretion because
of agreement between the
parties with regard to costs.”
[17]
I share the sentiment as expressed by Jones J in
Brawns
v Shoprite Checkers (Pty) Ltd
[3]
.
In actual fact the
parties were
ad idem
to go on trial on the merits in the High Court. At no stage did the
RAF protest or insist that the summons should have been instituted
in
the Magistrates Court.
[18]
Had the RAF used Rule 37
[4]
to its advantage, it ought to have, in the mandatory pre-trial
conference which is aimed at narrowing down issues and reaching
agreement on matters which may expedite the proceedings, suggested or
reserved its rights to have the matter resolved on the magistrates’
court scale from the onset. Costs already incurred should follow the
event on the scale of the court in which they were heard.
Each
decision by the court is informed mainly by the court’s
discretion in light of its own facts and circumstances. See
Gelb
v Hawkins
[5]
.
I could not discern
any misdirection on the part of the trial court in respect of
granting costs on the High Court scale. The Court
exercised its
discretion properly which, in my view, does not necessitate
tampering. This ground of appeal must therefore fail.
The statements by Erasmus AJ
[19]
On 08 November 2016 Erasmus AJ uttered a statement to this effect:
“
No I fully,
fully, fully agree with you that the conduct of the defendant in not
settling this matter at an early stage is unacceptable.”
[20]
The Court also made this intimation at para 31 of the judgment:
“
I
find the conduct of the legal representatives of the plaintiff and
the defendant to be both unacceptable and difficult to comprehend.
The plaintiff had lost her father in a motor vehicle collision at the
tender age of 10. She has only now, being almost 20 years
old, been
compensated for the loss of support. The best interests of the minor
had not been served, as provided for in terms of
section 28(2) of the
Constitution of the Republic of South Africa.”
[21]
Mr Salie submitted that the statement by the trial court is damning
for the RAF attorneys who still aspire to grow and to be
on the
panels for the RAF. I do not agree. The pronouncements are directed
at the delay in having the matter brought to court and
finalised. I
have not read into the remarks anything demeaning or career limiting.
I also have not detected or recognised any remarks
that impugn the
dignity of the legal representatives as argued by Mr Salie.
[22]
Counsel was further unsure whether the pronouncements by the Court
were aimed at a specific attorney or firms or whether they
were aimed
at the current attorneys or to all the attorneys who had dealings on
this matter. As a result, submitted counsel, the
Court ought to have
afforded the attorneys the opportunity to explain themselves in
court. Mr Salie argued that there is no basis
for the criticisms
labelled against the attorneys. I disagree. The two statements are
mainly directed at the appellant, the Road
Accident
Fund and the plaintiff’s attorneys for not having settled the
matter earlier. Sight must not be lost of the
fact that the
accident happened on 28 June 2007 and this matter was only settled or
concluded in 2016.
[23]
The appellant has a duty and responsibility to compensate. Sec 17(1)
of the Road Accident Fund Act
[6]
stipulates:
“
17 Liability of Fund and agents
(1)
The Fund or an agent shall-
(a)
subject to this Act, in the case of acclaim
for compensation under this section arising from the driving of a
motor vehicle where
the identity of the owner or the driver thereof
has been established;
(b)
subject to any regulation made under
section 26, in the case of a claim for compensation under this
section arising from the driving
of a motor vehicle where the
identity of neither the owner nor the driver thereof has been
established,
be
obliged to compensate any person (the third party) for any loss or
damage which the third party has suffered as a result of any
bodily
injury to himself or herself or the death of or any bodily
injury to any other person, caused by or arising from the
driving of
a motor vehicle by any person at any place within the Republic,
if the injury or death is due to the negligence
or other wrongful act
of the driver or of the owner of the motor vehicle or of his or her
employee in the performance of the employee’s
duties as
employee: Provided that the obligation of the Fund to compensate a
third party for non-pecuniary loss shall be limited
to compensation
for a serious injury as contemplated in subsection (1A) and shall be
by way of a lump sum.”
[24]
Nowhere in the judgment does the name of a specific firm get
mentioned. I could not establish a direct link between
the
aforementioned obiter remarks at paras 19 and 20 (above) by the Court
to the firm that Mr Salie seeks to be absolved from the
said remarks.
Counsel argued that the dignity of the firm was impaired and
that the attorneys’ rights in terms of
s 10 (the right to
dignity) and s 22 (freedom of trade, occupation and profession) of
the Constitution
[7]
were not observed. I disagree. The ten year delay before the matter
could be finalised is indeed inordinate and regrettable. Irrespective
of whether an attorney represents the plaintiff or the defendant it
is always expected of them to execute their duties with the
necessary
diligence, skill and care required of a reasonable attorney.
[25]
In my estimation Mr Salie has not only blown the obiter remarks of
the trial Judge out of proportion but has distorted them
as well.
More fundamentally, the remarks had no bearing or impact on the
outcome of the case. This second ground of appeal,
which is
without substance, must also fail.
[26]
In the result, the following order is made:
1.
The appeal is
dismissed with costs where applicable.
2.
The appellant is
ordered to pay the costs of suit, including the wasted costs of the
court attendances on the 1st of March 2016
and the 8th of November
2016, counsel’s fees, and the costs relating to the experts and
travelling costs on the High Court
scale.
_____________________
MAMOSEBO J
NORTHERN CAPE DIVISION
I concur
_______________________________
Pakati ADJP
NORTHERN CAPE DIVISION
I concur
______________________________
Vuma
AJ
NORTHERN
CAPE DIVISION
For
the appellant:
Adv M Salie SC
Instructed
by:
Robert Charles Attorneys & Conveyancers
For the respondent:
P Joubert
Inc
(Not opposed)
[1]
[2006] ZAECHC 10
at para 5 (ECJ No 020/2006 delivered on 03
March 2006)
[2]
1999 (2) SA 1045
at 1055F - I
[3]
2004 (6) SA 211
(ECD) at 221B -222C
[4]
Rule 37 of the Uniform Rules of Court
[5]
1960 (3) SA 687
(A) at 694A.
[6]
Act 56 of 1996
[7]
The Constitution of the Republic of South Africa, Act 108 of 1996 as
amended.