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[2017] ZANCHC 37
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Road Accident Fund v Isaacs (1552/2014) [2017] ZANCHC 37 (21 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number :
1552
I
2014
Datum
aangehoor / Date Heard:
06
I
03
I
2011
Datum
gelewer/Date delivered:
21/04/2017
In
the application of:
THE
ROAD ACCIDENT FUND
Applicant
and
JACQUELINE
ISAACS
Respondent
Coram:
Erasmus, AJ
JUDGMENT
ERASMUS,
AJ
[1]
The respondent had instituted action against
the applicant in this Court after which
the merits
and quantum were settled in terms of two separate court
orders. No evidence had been led.
By agreement between
the parties the costs were argued before me on
8 November
2016. The only issue
was whether the applicant (defendant in the action)
should
pay costs on the scale applicable in High
Court or that in the lower courts, and if lower court,
on what scale.
[2]
During argument on the costs, Adv Sieberhagen, on behalf of the
plaintiff, handed up a bundle of documents. This was done by
agreement between the parties. Ms Sieberhagen based her arguments on
this bundle and the pleadings. No evidence had been presented
on
behalf of the defendant and Adv Stanton proceeded to argue the issues
pertaining to the scale of the costs.
[3]
On 18 November 2016 I ordered the applicant to pay the respondent's
taxed or agreed party and party costs of the action on the
scale
applicable in the High Court. My reasons for awarding costs to
the plaintiff on the High Court scale
appear
from my judgment.
[4]
The applicant thereafter applied for leave to appeal to the Supreme
Court of Appeal, alternatively the Full Court of the Northern
Cape
Division of the High Court against the whole of my judgment delivered
on 18 November 2016. The respondent did not oppose the
application
for leave to appeal. I shall hereinafter refer to the
parties as in the action.
[5]
The grounds of appeal appear from the notice of application for leave
to appeal dated 7 December 2016. I do not deem it necessary
to repeat
these grounds herein. In essence these grounds are based on certain
of the findings made in respect of the conduct of
the attorneys of
the defendant, without having invited them to address me on these
issues. The other grounds are based thereupon
that I had exercised my
discretion to award costs on the scale applicable in the High Court,
based on a misinterpretation of the
facts and law relevant to the
issue of costs and that I had not exercised my discretion judicially.
[6]
During argument in the application for leave to appeal, Adv Salie SC,
on behalf of the defendant, handed up the transcribed
record of the
arguments which had been presented before me on 8 November 2016. He
pointed out that from this record it appears
that I had raised
several issues with counsel of the plaintiff and that I had done so
to a much lesser extent in respect of counsel
for the defendant.
[7]
Mr Salie submitted,
inter alia,
that the issues on which I had
based my findings against the defendant had not specifically been
raised and canvassed with counsel
of the defendant. He submitted that
I had misdirected myself and erred
in
finding the
conduct of the defendant's attorneys
unacceptable and difficult
to comprehend, without evidence to that
effect and without having considered the consequences of such a
finding on the said attorneys.
[8]
In
terms of s 21A(3) of the Supreme Court Act, No. 59 of 1959, an
applicant for leave to appeal against a costs
order
had to satisfy the court from
which
leave
was
sought that exceptional circumstances existed that would justify
interference with its costs order.
The
mere fact that a Court of appeal might give a different order
did not constitute exceptional
circumstances.
[1]
[9]
The Supreme Court Act has been repealed and replaced by the
Superior
Courts Act, No. 10 of 2013
. In terms of
section 17(1)
of this act,
leave to appeal may only be given where the judge concerned is of
the opinion that the appeal would have
a reasonable prospect of
success or if there is some other compelling reason why the appeal
should be heard, including conflicting
judgments on the matter under
consideration. It does not contain a section similar to section
21A(3) of the Supreme Court Act.
[10]
In
Erasmus:
Superior Court Practice
[2]
the learned author submitted that, where the only issue remaining was
one of costs, the principles set out in
Tsosane
v Minister of Prisons
[3]
continue to apply in the context of the question whether compelling
reasons why the appeal should be heard, do exist. These relevant
principles entail that leave should not lightly be given,
because costs are ordinarily a matter of judicial discretion and
also
because it is desirable that finality should be reached where the
merits of a matter have been determined.
Where
a matter of principle is involved though, leave would more readily be
granted. The final requirement remains
that an
applicant for leave to appeal should have a reasonable prospect of
success on appeal. I agree with the opinion expressed
above.
[11]
In
Motswai
v Road Accident Fund
[4]
the court
a
quo
had
made an adverse cost order and a finding of fraud
against
the attorney of the plaintiff, based on the court papers and informal
discussions in chambers which had taken place in the
absence of the
said attorney. The cost order entailed,
inter
alia,
that
the plaintiff 's attorney be prohibited from recovering any fee or
disbursement from the plaintiff or the Fund (defendant)
and further,
that the costs of the experts had to
be met by the
plaintiff's
attorneys
de
bonis propriis.
In
the
appeal against the cost order (and the finding of
fraud) it was held that the circumstances of the
case
had required
the
presiding
judge to hold a public hearing to afford the interested
parties an opportunity to deal with
the
issues.
In
not
doing so, the learned judge had not
exercised
the
discretion bestowed on the court
a
quo
judicially
and
within the parameters prescribed by law.
The
cost order was set aside and replaced by an appropriate cost
order.
[12]
Although it is trite that an award of costs lies in the discretion of
the court, such discretion must be exercised judicially
upon a
consideration of the facts of each case, and that, in
essence, it is a matter of fairness to
both
sides.
[13]
It appears from a proper reading of paragraph 31 of my judgment that
I have found the conduct of the legal representatives
of both the plaintiff
and defendant ' unacceptable and difficult to
comprehend'. I disapproved of the practice of instituting action in
the High Court where a lower court would also have jurisdiction
in the matter and the case could have been dealt with in that court
at less expense to the litigants. I have expressed criticism,
not
only against the defendant and its legal representatives, but also
the plaintiff's legal representatives. I
had
not only taken into account the conduct of the
parties, but also the circumstances of the plaintiff
in an attempt to
balance the interests of both parties in deciding the issue of costs.
It was not only the conduct of the defendant
and its legal
representatives, but also that of the plaintiff that had contributed
to my conclusion that the best interest of the
minor had not
been served and that this had led me to awarding costs on the scale
applicable in the High Court.
[14]
The facts of this matter differ substantially from those in the
Motswai
matter. I have neither made any finding of dishonesty
in respect of any of the legal representatives, nor have I made an
adverse
cost order affecting the legal representatives. I have made
certain findings though pertaining to the defendant and the legal
representatives
of both parties that, as was submitted by Mr Salie,
could adversely affect the defendant's current legal representatives.
The matter
is further not only of importance to the defendant and its
attorneys, but finds wider application in matters of similar nature
in this Division.
[15]
Given further my findings contained in paragraph [32] of my judgment,
namely that the plaintiff had not shown
why the
action could not have been instituted in the lower
court, I am satisfied that another court could
come to a
different conclusion in respect of the awarding of costs on the
scale applicable in the High
Court. This being so, it
follows that there is a reasonable prospect of success on appeal and
therefore, leave to appeal
should be granted in
this instance.
[16]
During argument before me, Mr Salie indicated that, should I grant
leave to appeal, it should be to the Full Court of this
Division. I
agree that this would be the appropriate forum.
Wherefore
I make the following order:
THE
APP
L
ICANT IS GRANTED LEAVE TO APPEA
L T
O
THE
FULL COURT OF THE NORTHERN CAPE DIVISION OF THE
HIGH COURT AGAINST THE JUDGMENT AND COST ORDER MADE ON 18
NOVEMBER
2016.
___________________
ERASMUS,
SL
ACTING JUDGE
On
behalf of the Applicant:
Adv.
Salie SC (oio Robert Charles Attorneys)
On
behalf of the Respodent:
No appearance
[1]
LOGISTIC
TECHNOLOGIES (PTY) LTD v COETZEE AND OTHERS
1998
(3) SA 1071
(W) at 10751- J
[2]
JUTA 2016, RS 3 2016, A2-56-57
[3]
1982 (3) SA 1075
(C) at 1076E- 1077B
[4]
2014(6) SA 104