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[2016] ZANCHC 91
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Isaacs v Road Accident Fund (1552 / 2014) [2016] ZANCHC 91 (18 November 2016)
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IN THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case number:
1552 / 2014
Datum aangehoor / Date Heard:
08/11/2016
Datum gelewer/ Date delivered:
18/11/2016
In
the application of:
JACQUELINE
ISAACS
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
Coram:
Erasmus, AJ
JUDGMENT
ERASMUS,
AJ
Introduction
[1]
The merits and quantum in this matter
were settled on 2 March 2016 and 8 November 2016, respectively . The
only issue argued before
me on 8 November 2016 was whether the
defendant was liable for the plaintiff's costs on the scale
applicable in the High Court
or the lower court.
[2]
It is trite that an
award of costs is in the discretion of the Court and that 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.
[1]
Several principles relevant to this matter have been laid down in
respect of the adjudication of the award of costs.
[3]
A party is liable to pay costs incurred
unnecessarily through his or her failure to take proper steps or
because he or she took
wholly unnecessary steps.
[2]
In
Jele
v
Ngcango
[3]
it was held that, in the absence
of special circumstances, a successful plaintiff must himself pay for
the luxury of having resorted
to a more expensive form of litigation.
Innes CJ in the well -known case of
Scheepers
and Nolte v Pate
[4]
held that it is the duty of a
litigant to avoid any course which unduly protracts a lawsuit, or
unduly increases its expense.
[4]
The choice of forum has a direct impact
on the costs of litigation. Litigants should guard against adopting a
reckless attitude
in their choice of forum merely because costs have,
in other instances in the exercise of a Court's discretion, been
awarded on
the scale applicable in the High Court. The practice of
instituting action in the High Court should be discouraged where a
lower
court also has jurisdiction and can be dealt with in that court
at a lesser expense to the litigants. This practice can be
discouraged
by making costs orders on the scale applicable in the
lower court which could have adjudicated the matter.
[5]
[5]
It is for the party who could have
chosen to proceed in the lower court to satisfy the Judge of the High
Court that there are good
and sufficient grounds for the exercise of
its discretion in its favour. Some of the factors to be taken into
account are not only
the amount of the judgment, but also the
complexity of the matter (factual or legal) and the importance of the
issues to the parties
or the public at large.
[6]
[6]
The conduct of the parties is also a
relevant factor, especially so when one of the parties is an organ of
state. As stated by Plasket
J in
Mlatsheni
v Road Accident Fund
[7]
:
"It is expected of organs
of state that they behave honourably
-
that they treat
the members of the public with whom they deal with dignity, honestly,
openly and fairly. This is particularly so
in the case of the
defendant : it is mandated to compensate with public funds those who
have suffered violations of their fundamental
rights to dignity,
freedom and security of the person, and bodily integrity as a result
of road accidents. The very mission of
the defendant is to rectify
those violations, to the extent that monetary compensation and
compensation in kind is able to. That
places the defendant in a
position of great responsibility: its control of the purse-strings
places it in a position of immense
power in relation to the victims
of road accidents, many of whom, it is well known, are poor and
'lacking in protective and
assertive armour'."
(Footnotes
omitted)
[7]
In
Ketsekele
v Road Accident Fund
[8]
the plaintiff's claim was
settled for an amount falling well within the jurisdiction of the
Magistrate's Court. The parties agreed
to costs on the High Court
scale and they were required to advance reasons why the claim had not
been instituted in the lower court
in the first instance and on what
basis the costs agreed upon were justifiable. It was held that the
defendant's approach to litigation
constituted a serious dereliction
of its duties to road accident victims, the public and the courts.
The Court ordered that neither
party's legal representatives were
entitled to any fees or disbursements in respect of any work or
service performed in respect
of that matter. This decision is
indicative that Courts will not tolerate behaviour of officials and
litigants where unnecessary
expenses are incurred.
[8]
In certain matters, and in suitable
circumstances, the courts have regarded it as legitimate to take into
account the circumstances
of the plaintiff and to make a cost order
other than that which it would ordinarily have made.
[9]
In
Resnick v Government of the
Republic of South Africa and Another,
[10]
although the plaintiff's appeal was dismissed, no order as to costs
was made particularly, as the court put it, "given the
position
of appellant". In another matter
[11]
the plaintiff, in her capacity as natural guardian of two minors who
had been dependants of a person killed in a car accident,
brought a
loss of support claim against the fund. Although the claim was
ultimately unsuccessful, the court made no order as to
costs, in
recognition of the fact that the dependants of the deceased had
suffered loss of support and had been minors at the time.
[9]
Against this legal framework it is to be
decided what, in the circumstances of this case, would be fair to
both parties. When doing
so, it is necessary to set out the
background and facts of this case.
[10]
Rachel Isaacs, suing in her capacity as
mother and guardian of Jacqueline Isaacs ('the minor') instituted
action in this court against
the defendant during August 2014. The
claim initially was for payment in the amount of R50,089-00, interest
thereon and costs,
in respect of loss of maintenance and support from
the minor's father who, as a passenger, had died in a motor vehicle
collision
on 28 June 2007. At the time of the collision the minor was
only 10 years old. During October 2015, after having reached
majority,
the guardian was substituted by Jacqueline Isaacs.
[11]
It was explicitly averred in the
original Particulars of Claim that an actuarial report would be
obtained and delivered in due course
and that the plaintiff had
reserved her right to amend the estimated claims in future.
[12]
There was no delay in the exchange of
pleadings. In its plea the defendant denied all allegations set out
in the Particulars of
Claim.
[13]
From the reply to a pre-trial
questionnaire, dated 23 March 2015, it appears that both the merits
and quantum were still in dispute
at that stage, that the merits and
quantum would not be separated and that the parties would continue to
engage each other in order
to attempt to settle the merits and the
quantum . The issue whether the case should be transferred to another
court, as envisaged
in Rule 37(6)(e), had not been raised.
[14]
On 21 April 2015 the plaintiff filed a
notice in terms of Rule 36(9)(a) indicating that Munro Consulting
Actuaries would be called
to give evidence in this matter. No report
was filed at that stage.
[15]
Although the plaintiff's attorneys gave
notice in terms of Rule 37(2) to the defendant's attorneys to attend
a pre trial conference
on Tuesday 5 May 2015, it does not appear
from the papers whether this conference had indeed been held.
[16]
From the minutes of the pre-trial
conference held on 16 October 2015 it appears that the merits had
still been in dispute. It was
noted that neither the plaintiff nor
the defendant intended appointing experts for purposes of the merits.
Both parties agreed
that the matter was trial ready in respect of the
merits. It was specifically noted that the parties agreed that
"There
was no basis upon which the case should be transferred to another
court."
[17]
Plaintiff's attorneys applied for a
trial date during October 2015 and the trial in respect of the merits
was set down to be heard
on 1 March 2016. It was indicated that one
day would be required for adjudication thereof.
[18]
On 24 February 2016,
a week before the trial, plaintiff served a notice in terms of Rules
36(9)(a) and (b) notifying the defendant
that the plaintiff intended
calling an industrial psychologist and that his report dated 30
September 2015 had been annexed to
the notice. A report of Munro
Consulting Actuaries dated 23 November 2015 was also filed. It
appears from this report, as contained
in the plaintiff's expert
bundle, that the total loss of support amounted to R294, 000- 00. It
does not appear from the papers
if that report had been made
available to the defendant at an earlier stage.
[19]
On 1 March 2016, by agreement between
the parties, the matter stood down until 2 March 2016.
[20]
From the bundle of correspondence,
handed up during argument, it appears that plaintiff's attorneys
directed an e-mail to the defendant's
attorneys at 09:43 on 2 March
2016 in which:
20.1
the plaintiff's attorneys expressed
their discontent with the manner in which the plaintiff's claim had
been handled, and
20.2
attached a draft order, indicating that
the plaintiff wished to argue costs.
[21]
On 2 March 2016 the attorneys of both
parties appeared and, by agreement, an order in terms of which the
defendant had conceded
the merits and agreed to pay 100% of the
plaintiff's yet to be proven damages, was made. The costs of suit and
specifically the
wasted costs of the court attendance on 1 March 2016
were reserved.
[22]
On 12 May 2016 plaintiff's attorneys
again dispatched an e-mail to defendant's attorneys, and from its
contents the following appeared:
22.1
It had now been ascertained that the
deceased had had two children and had attached three affidavits in
support of this assertion;
22.2
Further information had been obtained by
the industrial psychologist of the plaintiff in respect of the income
of the deceased;
22.3
The actuary, as reflected in his report
filed on 18 May 2016 and dated 5 May 2016, calculated the plaintiff's
loss of support at
R201,960-00, such amount being the total claim of
R224,400-00 less 10% contingencies;
22.4
The plaintiff raised several issues with
regard to the conduct of the defendant pertaining to the causation of
liability and the
manner in which the defendant had handled the claim
of plaintiff, who had been a minor. The defendant was specifically
referred
to the fact that three other matters, which had been linked
to and had arisen from the same accident, had been finalized;
22.5
The plaintiff requested payment of the
capital amount above and costs on high court scale.
[23]
It appears from the bundle of documents
that offers in terms of Rule 34 had been made in respect of claims of
other plaintiffs injured
in the same collision.
23.1
On
21 October 2013 the plaintiff in case 1423/11 was offered the amount
of R120,000-00 and an undertaking in terms of section 17(4)
of Act 56
of 1996, plus costs on the scale applicable in the High Court;
23.2
On
25 November 2015 the plaintiff in case 977 /12 was offered the amount
of R300,000-00 and an undertaking in terms of section 17(
4) of Act
56 of 1996, plus costs on the scale applicable in the High Court;
[24]
Further to the report of Munro
Consulting Actuaries dated 5 May 2016, it appears that the loss of
support in respect of the plaintiff
had been calculated to be
R224,400-00 and in respect of the second dependant to be R294,200-
00.
[25]
On 1 June 2016 a further pre-trial
conference was held. From the minutes it appeared that the quantum of
the plaintiff's claim remained
in dispute. It was indicated on behalf
of the plaintiff that she was intending to amend her Particulars of
Claim.
[26]
On 30 June 2016 the plaintiff amended
her Particulars of Claim by,
inter
alia,
amending the amount of her
claim for loss of support from R50,089-00 to R224,400-00.
[27]
The matter was set down for trial on the
quantum to be heard on 8 November 2016. On 3 November 2016 the
defendant submitted an offer
in terms of Rule 34 to the plaintiff's
attorneys, tendering payment of the amount of R201, 960- 00 , as well
as party and party
costs on the Magistrate Court scale.
[28]
In a letter also dated 3 November 2016,
the plaintiffs attorneys were invited to indicate, should they
persist with costs being
paid on High Court scale, on what basis such
relief was sought.
[29]
On 7 November 2016 plaintiff's attorneys
responded and indicated the acceptance of the settlement amount, but
continued to insist
on costs on the High Court scale. The defendant
was again referred to the case law contained in the e-mail
correspondence of 2
March 2016 and 12 May 2016 as authority for their
insistence.
[30]
Both parties instructed counsel to argue
the issue of costs before me on 8 November 2016.
[31]
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.
[32]
The plaintiff has not shown why action
had not been instituted in the lower courts.
32.1
The
initial amount claimed falls well below the civil jurisdiction of the
Magistrates Court. The amount of the settlement is less
than
R2,000-00 above the threshold of the jurisdiction of the Magistrate
Court and falls well within the civil jurisdiction of
the Regional
Court.
32.2
Neither
the legal nor the factual issues were so complicated that they
warranted the attention of the High Court.
32.3
The
report of the actuary, although dated 23 November 2015, appears to
have been filed on 24 February 2016. The particulars of claim
had not
been amended and the amount claimed remained the initial amount.
[33]
Had
the factors above been the only considerations, the defendant would
have been fully entitled to tender costs on the scale applicable
in
the Magistrates Court. I would then, as in the matter of
Daniels
v Road Accident Fund
supra,
have awarded costs on the scale
applicable in that court.
[34]
Although
the plaintiff is not without blame for the manner in which this trial
progressed, the defendant did not execute its statutory
mandate in a
reasonable and proper manner and did not act in the best interest of
the plaintiff, who had been a minor for most
of the period under
consideration.
34.1
It
appears as if the claim had not been investigated timeously and/or
properly. It appears that the causation of liability had long
been
investigated and ascertained. The merits and quantum of other claims
arising out of the same collision had been settled for
amounts
falling within civil jurisdiction of the lower courts and their costs
were tendered on the scale applicable in the High
Court.
34.2
There
is no indication on the papers before me that the defendant, at any
stage before the trial date of 1 March 2016, had requested
the matter
be transferred to the lower court. The defendant could and should
have requested, at least as far back as 23 March 2015
when it replied
to the pre trial questionnaire, that the matter be transferred
to the lower court. It also failed to direct
such a request later
during the pre-trial conference held on 16 October 2015 and agreed
that
"There was no basis upon
which the case should be transferred to another court".
At
that stage the merits still seemed to be in dispute. It thus appeared
that the parties had accepted that they would be going
to trial in
the High Court .
[12]
The conduct of the defendant could have brought the plaintiff's
attorneys under the impression that the scale of the costs would
not
be an issue.
34.3
As
in so many matters before the courts, the defendant did nothing until
the very last moment; both in respect of the merits and
the quantum.
This resulted in the matter having to be set down for trial, both in
respect of the merits and then later in respect
of the quantum. On
both occasions offers were only forthcoming on the day of the trial
or very shortly before.
[35]
The conduct of the
defendant often results, as in this instance, in a plaintiff having
to wait for many years to have his/her claims
finalised. Matters that
could have been settled for a fraction of the costs proceed to a date
set for trial and then the matter
is almost routinely settled. As
stated many times before, this results in the court system being
overcrowded, often with cases
that could and should have been dealt
with by a lower court.
[36]
Had the defendant taken the necessary
steps to prevent this matter from progressing to where it had, both
in respect of the merits
and the quantum, I would have been inclined
to deny the plaintiff her costs on the scale applicable in the high
court. The fact
that compensation for the loss of support payable to
the plaintiff had been delayed for so long, tips the scale of
fairness in
favour of the plaintiff. The specific circumstances of
this case require that the defendant should pay the costs on the
scale applicable
in the High Court.
Wherefore
I make the following order:
THE
DEFENDANT IS ORDERED TO PAY THE PLAINTIFF'S TAXED OR AGREED PARTY AND
PARTY COSTS OF THE ACTION, INCLUDING THE WASTED COSTS
OF 1 MARCH
2016, ON THESCALE APPLICABLE IN THE HIGH COURT.
ERASMUS,
SL
ACTING
JUDGE
On
behalf of the Plaintiff:
Adv.
N. Sieberhagen (oio P Joubert Inc.)
On
behalf of Defendant:
Adv.
A. Stanton (oio Robert Charles Attorneys)
[1]
Fripp v Gibbon
&
Co
1913 AD 354
[2]
Ntuli v Baloyi
1962 (1) SA 834
(D) 836;
Bennett v Minister
of Police
1980 (3) SA 24 (C)
[3]
1951
(2) SA 157
(T) at par 2.24
[4]
1909 TS 353
at 356
[5]
Vermaak v Road Accident Fund
(2006) JOL 16934
(SE) at par [5]
- [6];
Ierse Trog CC v Sulra Trading CC
1997 (4) SA 131
(C) 135G-
H; Standard Credit Corporation Ltd v Bester 1987 (1) SA 812 (W) 819D
[6]
Vermaak
supra
at para (SJ and the cases referred to in foot
note 1 there of 7
[7]
2009(2) SA 40 1 (E) at para (17) Se e also
Daniels and others v
Road Accident Fund
(8853/ 2010) (2011) ZAWCHC (28 April 2011)
[8]
2015 (4) SA 178
(GP) at para (28) - (39)
[9]
Seria v Minister of Safety and Security
2005 (5) SA 130
(C)
151;
Van Rensburg v City of Johannesburg
2009 (2) SA 101
(W)
at 111
[10]
Resnick v Government of the Republic of South Africa and Another
2014 (2) SA 337 (WCC)
[11]
Peverett obo Smith and Another v Road Accident Fund, Johannesburg
(13/13626) [2014] ZAGPJHC 355 (28 October 2014) at para [32]
[12]
See Standard Bank of SA Ltd v Mbewu 2003(4) SE at 4211 - 422B