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[2011] ZAGPPHC 216
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Nkasha v Road Accident Fund, Sanderson and Another v Road Accident Fund (1395/2008, 44114/07) [2011] ZAGPPHC 216 (12 December 2011)
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 1395/2008
DATE:12/12/2011
In
the matter between:
NKASHA
ZENOBIA
TSAKANI
.........................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
...........................................................................................
Defendant
CASE
NO: 44114/07
SANDERSON
MUMSY ROSE
Obo
HLULANI MAGALELA WILSON
BALOYI
.........................................................
First
Plaintiff
SANDERSON
ROSE MUMSY N.O
Obo
N L
B
...........................................................................................................
Second
Plaintiff
and
ROAD
ACCIDENT
FUND
...........................................................................................
Defendant
JUDGMENT
MAKGOKA,
J:
[1]
In these matters the only issue in dispute is costs. The cause of
action arose from the same incident and the defendant is the
same,
hence a combined judgment. The plaintiffs in both matters have
withdrawn their claims against the defendant. They had claimed
from
the defendant in terms of the provisions of the
Road Accident Fund
Act 56 of 1996
. The plaintiff in case number 1395/08 (Nkasha) sued in
her personal capacity as well as her representative capacity as
mother and
natural guardian of three minor children. The plaintiff in
case number 44114/07 (Sanderson) sued in her capacity as mother and
natural guardian of a minor child.
[2]
The claims arose from the death of Mr. Mavhaza Wilson Baloyi ("the
deceased) who died as a result of a motor vehicle collision
on 31
August 2004. The plaintiffs alleged in her particulars of claim that
they were married to the deceased during his lifetime
and that they
had minor children with the deceased.
[3]
The plaintiffs withdrew their claims as the actuarial calculation
showed that they were not entitled to any payment from the
defendant
(Nkasha both in her representative and personal capacities, and
Sanderson in her representative capacity). The actuarial
report,
dated 26 July 2011 was obtained at the request of the defendant
following an agreement by the parties in a pre-trial conference
on 6
June 2011 to obtain an actuarial calculation from one actuary.
[4]
The plaintiff's claims were formally withdrawn shortly after the
actuarial report was made available to them and on the eve
of the
trial date, on the basis that the actuarial calculation had
extinguished their respective at claims.
[5]
It appears that the plaintiff's claims were extinguished by their
inheritances in terms of the final liquidation and distribution
account, which, when taken into account in actuarial calculations
resulted in them not being entitled to any amount of damages.
[6]
The defendant contends that the plaintiffs should be ordered to pay
the costs of the action. This, Mr.
Tisani
for the defendant
argued, is premised on two bases: first that the plaintiffs' as the
dominas litis, failed to obtain the actuarial
calculation well in
time, which would have indicated that they did not have a claim. The
information necessary to assess the quantum
of their loss, was at ail
times available to the them and the plaintiffs did nothing about that
until the defendant took the initiative
to do so. The plaintiff were
also in the process of finalizing the Liquidation and Distribution
account. Had they taken diligent
steps when the claim was instituted,
they would have immediately been aware that they did not have a claim
against the defendant.
Second, in respect of Nkasha, it was
eventually established that the minor children were in fact not her
biological children, but
of Sanderson and a Mrs Ellen Peters,
respectively.
[7]
Ms Erasmus and Ms Schreuder appeared for the plaintiffs, and opposed
the costs relief sought by the defendant. Ms Erasmus contended
that
each party should pay its own costs as all the parties were at all
relevant stages up until 27 July 2011, believed that Nkasha
had a
claim. Therefore it came as a surprise to everyone that the actuarial
calculation demonstrated that she did not have a claim.
On receipt of
the actuarial report, the plaintiff reconsidered her position and not
pursued her claim further. Ms Erasmus also
pointed out that Nkasha's
previous attorneys of record withdrew in June 2011 and the present
attorney had only been only on record
since then. The defendant
itself, so was the argument, did not do much to move the matter
forward in terms of obtaining the actuarial
calculations. The
defendant only requested the necessary documentation in this regard,
only in mid July. The previous attorneys,
submitted Ms Erasmus, did
not properly advise the plaintiff.
[8]
With regard to the children, Ms Erasmus handed up an affidavit
deposed to by the plaintiff wherein she explains that it was
due to a
misunderstanding between herself and her previous attorneys that a
claim was instituted in her representative capacity
on behalf of the
children. Ms Erasmus submitted therefore that there was no intention
on behalf of the plaintiff to mislead the
court in that respect.
[9]
Ms. Schreuder, for Sanderson made common ground with Ms. Erasmus and
argued that the defendant should pay the costs of Sanderson,
at least
on a magistrate court scale. (It is not clear on what basis counsel
contended for this).
[10]
The issue of costs is generally a matter pre-eminently within the
discretion of a court, taking into consideration the circumstances
of
each case, carefully weighing the various issues in the case, the
conduct of the parties and any other circumstance which may
have a
bearing upon the question of costs, as to be fair and just between
the parties. The general rule is that costs follow the
event. The
court can, for good reason, deprive a successful party of costs.
[11]
In the present case, it is clear that the plaintiffs are the
unsuccessful parties in the sense of having withdrawn their action
against the defendant on the basis of an actuarial report having
shown that she did not have a claim against the defendant. I agree
with Mr. Tisani, for the defendant, that the plaintiffs' lack of
diligence led to the withdrawal of the action at the proverbial
eleventh hour. I appreciate that in the case of Nkasha the previous
attorneys might have been lax in the prosecution of her case.
I also
accept her explanation with regard to the minor children (that there
was a misunderstanding resulting in her claim been
formulated also in
her representative capacity). However, none of these points to any
fault or reprehensible conduct on the part
of the defendant to
justify me to deprive it of costs. Ms Erasmus argument that the
defendant itself did nothing about actuarial
calculation suffers one
major flaw: the plaintiff is the dominus litis. It is not upon the
defendant to gather evidence for the
plaintiff's case. Under normal
circumstances the defendant would obtain counter expert opinion to
that obtained by the plaintiff.
[12]
I therefore find no basis to deprive the defendant of costs. If
Nkasha's attorneys are indeed responsible for the state of
affairs
resulting in the costs order I am about to make, the plaintiff can
have recourse against the attorneys.
[13]
In the result I make the following orders:
1.
In case number 1395/2008, the plaintiff is ordered to pay the
defendant's costs.
2.
In case number 44114/2007, the draft order marked "X" is
made an order of court.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD : 28 JULY 2011
JUDGMENT
DELIVERED : 12 DECEMBER 2011
FOR THE PLAINTIFF IN
CASE
NO: 44114/07 : ADV L SCHREUDER
INSTRUCTED
BY : VAN NIEKERK ATTORNEYS,
PRETORIA
FOR
THE PLAINTIFF IN
CASE
NO: 1395/08 : ADV N ERASMUS
INSTRUCTED
BY : LUBISI ATTORNEYS, TZANEEN AND
HOFFMAN
LESHILO ATTORNEYS, PRETORIA
FOR
THE DEFENDANT : ADV SM TISANI
INSTRUCTED
BY : GELDENHUYS LESSING MALATJI
INC,
PRETORIA