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[2012] ZAGPPHC 331
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Bothma v Road Accident Fund (20991/10) [2012] ZAGPPHC 331 (7 December 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRIC
A
(NORTH GAUTENG, PRETORIA)
CASE
NO: 20991/10
DATE:07/12/2012
In
the matter between:
BOTHMA
GERHARDUS
JOHANNES
................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
....................................................................
Defendant
JUDGMENT
MAKGOKA.
J:
[1]
This is an action in terms of the
Road Accident Fund Act, 56 of 1996
.
The plaintiff issued summons against the defendant, the Road Accident
Fund pursuant to certain bodily injuries he sustained on
13 December
2006, when he was involved in a motor vehicle collision.
[1]
The matter was set down for trial on 30 October 2012, on which
occasion the defendant applied for a postponement, which was
opposed
by the plaintiff. After full argument, I granted the postponement and
ordered the defendant to pay the costs occasioned
by the
postponement. I reserved the scale of such costs, and the question as
to whether such costs should be paid de bonis propriis
by the
defendant’s claims handler or its attorney. For that part of
the order, I directed the attorney and/or the claims
handler to
furnish reasons why I should not make a punitive costs order referred
to above.
[2]
The reason why I made the directive is that I had gained an
impression that the defendant’s attorney and/or claims handler
did not pay sufficient attention to the matter, in particular to the
trial preparations. It appeared that the defendant had decided
at a
very late stage to apply for a postponement. In fact, the substantive
application for a postponement is dated 30 October 2012,
the day on
which the trial was supposed to commence.
[3]
Mr David Matome Mogale of Sekati Monyane Attorneys Inc, the
defendant’s attorneys of record, has deposed to an affidavit
furnishing the reasons why he or the claims handler should not be
visited with a costs order de bonis propriis. In light of the
conclusion I arrive at in this judgment, I did not deem it necessary
for counsel to address me further on this aspect.
[4]
In a nutshell, Mr Mogale explains that the report of the plaintiff’s
orthopaedic surgeon was served on him on 31 August
2012. Upon perusal
of the report, it came to his attention, for the first time, that the
plaintiff had been involved in a subsequent
accident in September
2011. This would have a major impact on the quantum of the
plaintiff’s damages. As a result, he was
of the view that the
defendant should instruct its own expert to examine the plaintiff, in
order to determine the impact of the
injury on the assessment of
damages. He was not able to secure an appointment with any expert as
they had all been fully booked
for the year. On 26 October 2012 he
prepared an executive summary containing settlement recommendations,
for the defendant. The
defendant did not agree with his
recommendations without the benefit of a second opinion on the impact
of the subsequent injury
on the assessment of the plaintiff’s
damages. On 14 September 2012 the plaintiff delivered an amendment to
his particulars
of claim, in terms of which the plaintiff increased
the total claim amount from the initial R300 000 to R3 180 000.
[5]
Having regard to the above, I am satisfied that Mr. Mogale was not
lackadaisical in his preparations for trial. He was faced
with two
difficult situations - the sudden knowledge of the plaintiff’s
subsequent injury and the plaintiffs far-reaching
amendment of his
claim amount. Both these developments necessitated the defendant to
reconsider its position with regard to the
assessment of the
plaintiffs damages. Mr. Mogale was not in a position to secure the
relevant experts in time to examine the plaintiff
and compile expert
reports.
[6]
Mr. Mogale’s explanation is therefore accepted. As a result,
there is no need for any costs order de bonis propriis against
him or
the defendant’s claim handler.
[7]
In the result the costs order made on 30 October 2012 ordering the
defendant to pay the wasted costs, stands.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 30 OCTOBER 2012
JUDGMENT
DELIVERED : 7 DECEMBER 2012
FOR
THE PLAINTIFF : ADV T C MAPHELELA
INSTRUCTED
BY : DREYER & DREYER ATTORNEYS, PRETORIA
FOR
THE DEFENDANT : ADV R STRYDOM
INSTRUCTED
BY: SEKATIMONYANE ATTORNEYS, PRETORIA