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[2016] ZAGPPHC 89
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Mokakale v Road Accident Fund (A1055/2013) [2016] ZAGPPHC 89 (11 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: A1055/2013
Date:
A1055/2013
In
the matter between:
MOGOMOTSI
SHADRACK
MOKAKALE
Appellant
and
THE
ROAD ACCIDENT
FUND
Respondent
Heard:
4 November 2015
Delivered:
11 February 2016
JUDGMENT
A.A.LOUW
J:
[1]
I have had the pleasure of reading the judgment and
opinion of Mabuse J. I however do not find myself
in
agreement with the reasoning of his judgment and the conclusion
reached.
[2]
In order to save time, I have adopted with some amendments the facts
set out by my learned colleague in his judgment. I gratefully
acknowledge - that input.
[3]
This matter came before us as an appeal directed against a costs
order made by Kubushi J sitting as the court
a
quo.
Leave to appeal was granted by her on 29 November 2013.
[4]
The appellant instituted an action against the respondent in which he
claimed damages and ancillary relief. The appellant's
claim arose
from a motor collision that took place on 14 April 2006.
[5]
The hearing was on 7 June 2013 before Kubushi J. The appellant was
represented in the court
a
quo
by Mr. M S
Mphahlele while the respondent, the defendant in the court
a quo,
was represented by Ms. J Liebel.
[6]
At a previous hearing before Ismail J the issue regarding the merits
of the matter was settled on 60% in favour of the appellant.
This
was confirmed by the order of Court granted by Ismail J on 1 November
2012. That in effect meant that the respondent
would be liable for
60% of the appellant's proven or agreed damages. Furthermore
the court was informed that the parties'
battlefield was
quantum. In respect of quantum, the
appellant claimed separately
certain amounts in respect
of:
(a)
future medical expenses;
(b)
.loss of income; and,
(c)
general damages.
[7]
With regard to the appellant's claim for future medical expenses, the
parties informed the court that they had agreed that the
respondent
would furnish the appellant with an undertaking in terms of s17(4)(a)
of the Road Accident Fund Act, 56 of 1996 ("the
Act").
With regard to the appellant's claim for loss of income, the
court a
quo
was informed that the appellant would use, in
support of such a claim, the following documents:
7.1
the joint minutes of the orthopaedic surgeons;
7.2
the joint minutes of the industrial psychologists;
7.3
an actuarial calculation based on the joint
minutes of the
industrial psychologists.
[8]
The parties placed on record furthermore that the actuarial report
had · been prepared at the instance of the
appellant's legal team and that the respondent had
accepted unreservedly the actuarial calculations;
that
the parties were
ad
idem
with regard to
the contingencies to be applied both in respect of pre-morbid
calculations which was agreed at 7% and the post- morbid
contingency
which was agreed at 20%.
[9]
It was agreed by the parties and placed by them on record that the
nett amount due and payable by the respondent to the appellant
in
respect of loss of income after the deductions of the contingencies
was R1,106,897.39, which amount the parties agreed was fair
and
reasonable in the circumstances of the case.
[10]
There was disagreement with regard to the manner in which the amount
of R1,106,897.39, should be paid, with the respondent's
counsel
arguing that it should be paid in instalments while the
appellant's counsel strongly argued for one lump
sum payment in
terms of s17(4)(b) of the Act. The amount to be awarded for general
damages was also in dispute.
[11]
After counsel had ventilated the issues and made their submissions,
in some respects with reference to relevant authorities,
the court
reserved judgment.
[12]
On 12 June 2013 the court a
quo
handed down its written
judgment. The order reads as follows:
"(a)
General damages are awarded to the plaintiff in the amount of R1,
100,000.00;
(b)
Loss of income damages are awarded to the plaintiff
in
the amount of
R1,
106,897.39;
(c)
It
is
recorded
that
the
defendant
shall provide
the plaintiff
with
an undertaking
for 60% future medical expenses in terms of
s17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
, as amended;
(d)
The
defendant is ordered to pay the plaintiff
the costs of this suit;
(e)
All the amounts awarded are subject to 60% apportionment."
[13]
According to the appellant's application for leave to appeal,
this appeal was triggered by the following circumstances.
Following
the said court order, the respondents duly paid the applicant 60% of
the damages awarded. On 12 September
2013, the appellant's
bills of costs were taxed and allowed in the sum of R14,827.29 in
respect of the appellant's local correspondent
attorneys and
R429,926.48 in respect of the instructing attorneys. Copies of
these bills of costs were forwarded to the respondents
for payment
but the respondent neglected or failed or delayed to effect payment
in respect of the bills as a result of which on
23 September 2013,
the appellant caused to be issued a writ of execution to recover the
costs taxed and allowed.
[14]
After the sheriff of the court had served a copy of the writ of
execution on the respondent, the respondent, it is not clear
who
precisely did so,
contacted
the appellant's attorneys of record and informed him that the
respondent had to pay only 60% of the total costs. The respondent
contended that the costs awarded were apportioned on a 60 to 40 %
scale and they would comply with the order as set out.
[15]
The matter is before us because during subsequent negotiations
between the parties to get clarity of the court order the parties
could not reach any agreement. As a result of their failure to
resolve the dispute the respondent paid the sum of R266,852.26 being
60% of the total costs taxed and allowed.
[16]
The question on appeal before us is a simple one. The order
quoted in para 12 above states in the last paragraph that
"all
the amounts awarded are subject to 60% apportionment". An
award of costs is not an amount until it has been
taxed or agreed
upon, but that is just a question of time.
[17]
I therefore do not agree with my colleague that the order is crystal
clear. I find that the order is at least ambiguous. What
is crucial
to me is that the trial judge by granting leave to appeal, in fact
found that her order may have been wrong i.e. that
there was a
reasonable possibility that another court may come to another
conclusion on this specific issue.
[18]
If she realised, during the hearing of the application for leave to
appeal, that she had made a simple mistake, I have no doubt
that she
would there and then have rectified it and therefore have saved all
the parties and this court the time and expense of
hearing an
appeal. This she did not do.
[19]
Thus, the order being at most ambiguous, I find the ambiguity to have
been resolved by the trial judge in granting leave to
appeal.
[20]
A successful party is
obviously
entitled
to
his
costs.
In
Merber
v
Merber
[1]
Greenberg JA stated:
"[111/]hen
a
successful party has been deprived of his costs in the
trial
court,
an
appeal
court
will enquire
whether
there
were any grounds
for this
departure
from
the general
rule
and if there are no such grounds,
then
ordinarily it will interfere".
[21]
There was no reason, and none was argued before us on appeal, for
depriving the appellant of any part of the costs he is entitled
to.
The appeal has to succeed.
[22]
I therefore do not agree that the appeal should be dismissed.
[23]
I propose the following order:
1.
The appeal is upheld with costs.
2.
Paragraph 28 e of the order of the court a quo is set aside and
substituted with the following:
"The
defendant is ordered to pay the costs of the action"
_____________________
A.A.
LOUW
Judge
of the High Court
I
agree
_____________________
N.P.
MNGQIBA-THUSI
Judge
of the High Court
MABUSE
J:
[1]
I have read the judgment by my brother Louw J and sister
Mngqibisa-Thusi J. Their judgment calls for comments and I do so in
the later part of this judgment. Even then I will only comment on the
two aspects which, in my view, constitute the core aspects
of their
judgment. These aspects appear in paragraphs 17 and 19 of their
judgment. This matter came before us as an appeal directed
against a
costs order made by Kubushi J sitting as the court
a quo.
Leave to appeal was granted by the court
a quo
on
29 November 2013.
[2]
From the records placed before us, the appellant had
instituted an action against the respondent in which he had
claimed
payment of an amount of money and further ancillary relief. The
appellant's claim had arisen from a motor collision that
took place
on 14 April 2006.
[3]
The said matter came before court for hearing on 7 June 2013 before
Kubushi J. The appellant, as it is in this appeal, was represented
in
the court
a
quo
by Adv. MS Mphahlele while the
respondent, the defendant in the court
a quo,
was represented
by Adv. J Libel.
[4]
Right at the inception of the trial the parties, through their
counsel, informed the court that the issues regarding the merits
of
the matter had been settled and that the respondent had conceded 60%
of the merits in favour of the plaintiff. This was confirmed
by the
order of Court granted by Ishmael J. on 1 November 2012. That in
effect meant that the respondent would be liable for 60%
of the
plaintiff's proven or agreed damages. Furthermore the court was
informed that the parties' battlefield was quantum. In respect
of
quantum, the appellant had claimed separately certain amounts in
respect of:
(a)
future medical expenses;
(b)
loss of income; and,
(c)
general damages.
[5]
With regard to the appellant's claim for further medical expenses,
the parties informed the court that they had agreed that
the
respondent would furnish the appellant with an undertaking in terms
of s. 17(4) of the Road Accident Fund Act No. 56 of 1996
("the
Act"). With regard to appellant's claim for loss of income, the
court
a quo
was informed that the appellant would use, in
support of such a claim, the following documents:
5.1
the Joint Minutes of the orthopaedic surgeons;
5.2
the Joint Minutes of the Industrial Psychologists; and,
5.3
an actuarial calculation based on the Joint
Minutes of the industrial Psychologists.
[6]
The parties placed on record furthermore that the actuarial report
had been prepared at the instance of the appellant's legal
team and
that the respondent had accepted unreservedly the actuarial
calculations; that the parties were
ad
i
dem
with regard to the contingencies to be applied both in respect of
pre-
morbid
calculation which was agreed at 7% and the post-morbid contingency
which was agreed at 20%.
[7]
It was agreed by the parties and placed by them on record that the
nett amount due and payable by the respondent to the appellant
in
respect of loss of income after the deductions of the contingencies
was R1,106,897.39, which amount the parties agreed was fair
and
reasonable in the circumstances of the case.
[8]
There was a disagreement with regard to the manner in which the
amount of R1,106,897.39, should be paid, with the respondent's
counsel arguing that it should be paid in instalments while the
appellant's counsel strongly argued for one lump sum payment in
terms
of s 17(4) (b) of the Act.
[9]
After counsel had ventilated the issues and made their submissions,
in some respects with reference to relevant authorities,
the court
reserved judgment and promised to inform the parties when such was
ready.
[10]
On 12 June 2013 the court
a quo
handed down its written
judgment. The order of the said court read as follows:
"(a)
General damages are awarded to the
plaintiff in the amount of R1, 100,000.00;
(b)
Loss of income
d
a
m
a
ges
a
re
awarded to the pl
a
intiff in the amount of
R
1,
106,897.
3
9
;
(c)
It is recorded that the defendant shall
provide
the
plaintiff
with an
undertaking
for
6
0%
future medical
e
x
penses in
t
e
rms
of s. 1
7
(4
)
(a) of the Road
Accid
e
nt Fund
Act
5
6
of
1
9
9
6
, as amended;
(d)
T
he defendant is ord
e
red
t
o
p
a
y the
plaintiff the costs of
this suit
,
·
(e)
All the amounts awarded
a
re
su
b
ject
to
6
0%
a
pportionment."
[11]
According to the appellant's application for condonation for the late
filing of the record of appeal, this appeal was triggered
by
the following circumstances. Following the said court order, the
respondents duly paid the applicant 60% of the general damages
awarded. On 12 September 2013, the appellant's bills of costs were
taxed and allowed in the sum of R14,827.29, in respect of the
appellant's local correspondent attorneys and, R429,926.48, in
respect of the instructing attorneys. Copies of these bills of costs
were forwarded to the respondents for payment but the respondent
neglected or failed or delayed to effect payment in respect of
the
bills as a result of which on 23 September 2013, the appellant caused
to be issued a writ of execution to recover the costs
taxed and
allowed.
[12]
After the sheriff of the court had served a copy of the writ of
execution on it, the respondent, it is not clear who precisely
did
so, contacted the appellant's attorneys of record and duly
informed him that the respondent had intended to pay only
60% of the
total taxed costs. The respondent contended that the costs awarded
were apportioned on a 60% to 40 % scale and they
would comply with
the order as set out.
[13]
The matter is before us because during subsequent negotiations
between the parties to get clarity of the court order the parties
could not reach any agreement. As a result of their failure to
resolve the dispute the respondent paid the sum of R266,852.26 being
60% of the total costs taxed and allowed.
[14]
According to Mr Mphahlele's heads of argument the issue before us
concerns the proper interpretation of the order of the court
a
quo.
According to him this court is required, in its
interpretation of the said court order, to decide whether the costs
payable to the
appellant should, according to such order, be
apportioned; or secondly, whether the costs should be apportioned on
the 60% to 40%
scale.
[15]
In the first place, there is no doubt in our mind that the
order of the court
a quo
is clear an unambiguous. The
order in (d) in paragraph 10 supra, stands alone and is clear that
the respondent was ordered to pay
the plaintiff's costs of the
action. It will be noted that in respect of the orders in (a) and (b)
of paragraph 10 supra the awards
were mentioned and these were
R1,100,000.00 in respect of the order in (a) and R1,106,897.29 in
respect of the order in (b). It
is also clear that in respect of the
order in (c) paragraph 10 supra the court expressly stated 60% of the
future medical expenses.
[16]
In respect of the order in (d), no award was made or amount referred
to. If the court a quo had intended ordering the costs
of the action
to be apportioned it would have expressly stated it so in (d).
Accordingly it is as clear as crystal that the court
a quo
never
had intended that the order costs be apportioned in any manner
whatsoever. Iam fortified, in my view, that it never was the
intention of the court
a
quo
to order an
apportionment of the costs by the fact that neither of the counsel
raised this issue in their arguments and submissions
and secondly by
the fact that in its judgment the court
a
quo
never referred to it nor hinted in any way that it would deprive
the appellant of part of his costs. The general rule with regards
to
costs is that costs should follow the event, which means that the
successful party is entitled to the costs. A successful party
may
only be deprived of his costs in the trial only when some recognised
principle or rule in the award of costs has been violated.
Even if
the Court
a
quo
did not refer to it I
have found no reason in the proceedings or the reasoning of the court
a quo
that would have justified such an order. There must be
sufficient legal grounds for doing so. The Court
a
quo
has not referred to any such grounds.
[17]
Secondly, assuming for a moment that the order was ambiguous, with
which I do not agree, the appellant should have dealt with
this
matter in accordance with the provisions of Rule 42(1) (b) of the
Uniform Rules of Court. Generally speaking and specifically
where the
matter is covered by Rule 42 the application procedure after notice
to all the parties whose interests may be affected
is the appropriate
one. The said Rule provides as follows:
''
T
he
court m
a
y
in a
d
d
ition
to
a
n
y powers
it m
a
y
have mero motu or upon application
of
a
n
y
par
t
y
a
ffected,
r
e
sc
i
nd
or
v
a
ry
-
(b)
an order orjudgment in which there is ambiguity; or a patent
error or omission, but only to the extent of such ambiguity,
error or
omission."
[18]
There is no doubt in my mind that had the appellant approached the
matter in accordance with the aforementioned Rule, the court
a
quo
would
mero
motu
have
resolved the issue if the order did not reflect the true intention of
Kubushi J or she would have done so on application by
either of the
parties. Under the provisions of Rule 42(1) (b) a court possesses the
power to
mero motu
or on application by any party affected, to
vary or rescind its order or judgment if such order or judgment does
not reflect its
true intention. Accordingly a pronouncement by a
Judge of a final order does not render him or her
functus
officio
in a matter which is accessory to or consequential
on such an order and which the Judge might have overlooked when he or
she pronounced
the order.
[19]
During argument Mr Mphahlele submitted that the appellant understood
the order and that it was clear and not confusing. Under
these
circumstances I see no reason why the appellants noted and appeal
against the order of the court
a
quo.
He argued that despite the fact that the order was
clear it was the respondent who interpreted it
differently
by insisting that the court had ordered that it was only
responsible for 60% of the appellant's costs of the action. The
respondent
followed this interpretation up by paying only 60% of the
costs and refusing, on its own interpretation of the court order, to
pay the balance. This is precisely what triggered this
appeal. Accordingly this
appeal
is, strictly speaking, aimed not at the court order but
instead at the respondent's interpretation of
the court order. That
that is so is clear from the following factors. After the written
judgment that contained the relevant order
was handed down on 12 June
2013, the appellant did not note any appeal against the order of
costs, a clear indication that the
appellant was satisfied with the
order of costs. The decision to note an appeal was only taken,
according to the affidavit of attorney
Abel Mokgehle Mammile in the
application for condonation for the late filing of the appeal record,
on 15 October 2015 after they
had understood the interpretation of
the said costs order by the respondent. Paragraphs 5.10 to 5.13 of
the said affidavit, in
my view, encapsulate the way in which the
appellant understood the respondent's interpretation of the costs
order. It states
as follows:
"5.
10 The respondent failed to pay the bill and
on 23 September 2013 a Writ of Execution on costs
was issued and
served on the Respondent.
5.11
Su
b
sequent
to
servi
n
g
the Writ
of
E
xecution the
Respondent contacted me and informed
me
that they intend
to p
a
y
the
costs as apportioned in
terms of
the
judgment of
the Honourable Madam
Justice
Kubushi.
5.12
The i
m
plication
of the dec
i
sion
is
that th
e
y
intend
to p
a
y
the applicant 40% of
the taxed bill
of costs.
5.13
On 7
October 20
1
3 I
phoned
Mr
M
olepo of
T
sebane Mola
b
a
Attorneys,
the Respond
e
nt's attorn
e
y
of record,
inquiring if the Respondent will be amenable
to
payment of the
Applicant's taxed
bill
of costs
o
r
w
hether I
should
a
ppeal
a
gainst the
judgment
of the
Honourable
Madam Justice
Kubushi.
(my own
underlining).
[20]
If the appellant was unhappy with the costs order of the court
a
quo
the unhappiness should have arisen as soon as
the appellant's legal team had perused the judgment of the court
a
quo.
They would and should certainly have taken
steps immediately thereafter to express their discontent with the
order of the court
a
quo
by noting an
appeal. This was quite clearly the fundamental reason the said appeal
was brought only in November 2014.
[21]
The appellant's first ground of appeal was that the learned Judge
erred in law and in fact in finding that the applicant was
entitled
to costs of the suit equal to the apportionment agreed upon or that
the costs awarded are subject to 60% apportionment.
For the following
two reasons, this ground is flawed. The Court
a quo
never made
a finding on costs. I already have pointed out in paragraph 16
supra
the court
a quo
never considered the issue of costs in the
judgment. Secondly, the court
a quo
never stated that the
costs awarded were subject to apportionment.
[22]
In paragraph 17 of the judgment by Louw J and Mngqibisa-Thu'si J, it
is stated that:
''l
therefore do not
a
gree with
m
y
colle
a
gue that the order is crystal clear.
"
Even
Mr. Mphahlele conceded during argument that as far as the appellant
was concerned the order was clear and unambiguous.
[23]
Still in paragraph 17 they had the following to say:
'l
find that the order is at l
e
a
st
a
mb
i
guous.
"
They
repeat the same view in paragraph 19 where they state that:
"Thus,
the order being at most ambiguous, I find the ambiguity to have been
resolved by the trial judge in granting leave to
appeal."
Now
it is not the purpose of an appeal to correct ambiguities in the
court orders, especially the cost order of a judgment. Ambiguities
in
court orders are dealt with in terms of Rule 42(1) of the Uniform
Rules of Court. The said rule provides as follows:
"The
Court may, in addition to any other power it may have mero motu or
upon the application of any party, rescind or vary
-
(b)
an order o
r
judgment in which there is ambiguity
...
but only to the
extent
of
such
ambiguity ...
"
Section
42(1) prescribes two methods by which an ambiguous order maybe
corrected. Firstly, the party who is affected by such an
order may
approach the presiding judge, point out what purports to be the
ambiguity in the order to the Judge and give Judge an
opportunity to
clarify the order. This, in my view, is cost effective. Secondly, the
party concerned may apply to Court to vary
the order so as to obtain
clarity. See in this regard the following paragraph from Estate
Garlick v Commissioner for Inland Revenue
1934 AD 499
, 502:
"T
h
is
point
is
that
b
y
Roman Dutch
Law
the
order
of
Court,
once
it
has
been pronounced
by
the
word of mouth
of the Judge,
cannot
as a rule be
thereafter
altered or
amended
b
y that Ju
d
ge. Th
e
re
can be no doubt that the rule
was as stated
Thus
Vamhou
d
er
(
P
ractyck
in Civ
i
le
Z
aken,
C
h.
2
1
9
and
2
2
0
)
l
a
ys down
that
all
final judgments
must
be
pronounced by word
of
mouth
of
the
Ju
d
ge, or
of
one
Ju
d
ge
on
beh
a
lf
of
the
m
a
jority
of
the
C
ourt
and
that
such judgment
must be pronounced properly,
in the
d
a
y-time,
and in
the presence
of the parties or
at
a
n
y
rate after
due
notice
to
the parties,
and
that
the Ju
d
ge, once
having
so
altered
a
definitive
judgment, is
there
u
pon
functus
officio, so
that he cannot
thereafter
alter, su
p
plement,
a
mend
or
correct
th
e
judgment
...
To
this
general rule
there
a
re c
e
rtain exc
e
ptions,
which
are
stated
b
y
the writers referred
to; for instance, an order after
having been pronounced
may
be
amended or added to where through some mistake it does not
express
the true
intention
and
decision
of
the
C
our
t
;
or
where
it
is
amb
i
guous;
or
where
the Court through an
oversight has omitted to
include
in its
order
something
which
is accessory
to the
principle, such as interest,
fruits,
or
costs.
"
[24]
Finally the fact that the court a quo granted leave to appeal where
such was unnecessary does not take away the powers of this
Court to
decide whether on the facts of this matter then Court should treat it
as such. This court must have regard to the manner
in which this
matter came before it; the reasons for bringing the matter before it
as an appeal; the views of the parties before
the provenance of the
dispute and finally the nature of the order appealed against. If this
court treats the matter as an appeal
brought on proper grounds, in my
view, it is tantamount to an emphasis by it that 'two wrongs make a
right." Secondly it will
create a bad precedence that
where an order of Court is ambiguous the proper step, in order
to obtain clarity, is to
note an appeal against it. I have already
stated somewhere supra that this is not the purpose of an appeal.
[25]
In my view, the appellant in this matter should have approached this
matter by way of s. 42(1) and not an appeal.
[26]
I would have found the appeal to be unnecessary and would have
dismissed it.
__________________________
P.
M. MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for
the
a
p
plica
nt:
Adv. MS
M
phahlele
Instructed
b
y:
AM Mammile
Attorneys
Counsel
for
the
respond
e
nts:
Adv.
N
Moses
Instructed
b
y:
T
se
b
ane
Molaba Inc.
Date
Heard:
4 November 2015
Date
of Judgment:
February 2016
[1]
1948( I ) SA 446 (A) at 4530-H