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[2010] ZAFSHC 37
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Hobe tbv Nkone v Padongelukkefonds (6176/2008) [2010] ZAFSHC 37 (8 April 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 6176/2008
In
the case between:
MAMIKI MERIE HOBE
tbv N NKONE
Plaintiff
and
PADONGELUKKEFONDS
Defendant
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
23 FEBRUARY 2010
_____________________________________________________
DELIVERED ON:
8 APRIL 2010
_____________________________________________________
[1] The matter came
before me by way of action proceedings. It was enrolled on 31 March
2009 for hearing over three days from Tuesday
23 February 2010 to
Friday 26 February 2010 excluding the Thursday 25 February 2010. The
plaintiff acts herein in her representative
capacity as mother and
natural guardian of a minor child, N N, a boy born on 21 Mei. The
child’s father, Mr Thabo Samuel
Nkone, sustained fatal bodily
injuries in a road accident which took place at Wesselsbron on 4 July
2006. The scene of the accident
was on the main road to Bothaville.
[2] The plaintiff sues
the defendant for the payment of the amount of R936 946,00 as
compensation for loss of support her child
has and will suffer as a
result of the death of his father. She alleged, in her summons, that
the death of the victim was occasioned
by the sole negligence of a
certain Mr Vorster in the driving of a motor vehicle with
registration number DSS003NW.
[3] The action is
defended. In its plea, the defendant denied the allegation that such
an accident ever happened and required proof
thereof. In the event
of the court finding that such an accident did occur, then in that
event, the defendant pleaded, in the
alternative, that it was not
occasioned by the alleged negligence of the insured driver.
[4] The parties, through
their attorneys, held a pre-trial conference on 3 December 2009. The
minutes thereof were filed on 14
January 2010. There were no
meaningful proposals made for the settlement of the dispute. The
respective stances of the parties
as pleaded remained unchanged. The
plaintiff maintained that the insured driver was exclusively to blame
for the accident. The
defendant persisted denying the assertion that
its insured driver was to blame as alleged or in any other manner
whatsoever.
[5] On Monday 22 February
2010, a day before the hearing was due to begin, the plaintiff served
and filed a formal action for the
separation of the two main phases
of a civil trial, viz. the merits and quantum. The plaintiff seeks
the following relief according
to the notice of motion:
“
1. Dat gelas word dat die
geskilpunte uiteengesit in paragrawe 1 tot 5 van die Eiseres se
Besonderhede van Vordering gelees met
paragraaf 1 tot 4 van die
Verweerder se Verweerskrif, geskei word kragtens die bepalings van
Hofreël 33(4) sodat die meriete
eerstens aangehoor word;
Die geskilpunt rakende die omvang van
die quantum van die Eiseres se vordering staan oor vir latere
beregting indien die geskilpunt
met betrekking tot meriete ten
gunste van Eiseres besleg word;
Dat die Respondent gelas word om die
koste van die aansoek te betaal, alternatiewelik dat die koste van
die aansoek koste in die
aksie sal wees;
Verdere en/of alternatiewe regshulp.”
The application was also
set down for hearing on 23 February 2010.
[6] The defendant did not
file any opposing papers. It seems to me that the defendant simply
had no time to do so. On Tuesday
the 23 February 2010 I obviously
had to hear the interlocutory application first. Mr Zietsman,
counsel for the plaintiff, asked
me to partially adjudicate the
dispute by determining the merits first; by deferring the quantum for
later adjudication if I should
adjudge the merits in favour of the
plaintiff and by directing the defendant to pay the costs of the
application or by ruling such
costs to be costs in the action.
[7] Mr Fourie, counsel
for the defendant, informed me that, firstly, the defendant did not
oppose the relief sought in terms of
prayers 1 – 3 of the
plaintiff’s notice of motion, secondly, that the defendant
conceded the merits in favour of the
plaintiff. Thirdly, that since
the dispute was, by virtue of the defendant’s concession
narrowed down to quantum only, the
defendant insisted that the
plaintiff should immediately present her case to prove the amount of
her claim.
[8] Mr Zietsman, in his
reply, argued that once the court makes an order for the separate
adjudication of issues of merits on the
one hand and issues of
quantum on the other, the plaintiff was entitled to a break, if on
the merits, the decision goes against
the defendant but in favour of
the plaintiff.
[9] The plaintiff did not
have her quantum witnesses lined up and in attendance together with
her merits witnesses. The defendant
was well aware of their absence.
Therefore the first issue is whether or not the plaintiff has shown
good cause for the postponement
of the action for the adjudication of
the quantum issues some time in the future. The second issue is
which of the parties should
be held liable for the costs relating to
such a postponement. The dominant impression created by the
defendant’s argument
was that the second issue was really what
the dispute was all about on Tuesday the 23 February 2010.
[9] As regards the motion
proceedings, the plaintiff’s application was unopposed. About
ten weeks before the trial, the plaintiff
requested the defendant to
make proposals for the settlement of the action (vide par 3, rule 37
minutes) and to consent to the
separation of issues (vide par 6 same
minutes). The defendant’s attorney undertook to obtain
instructions and to revert
to the plaintiff’s attorney by no
later than 11 December 2009. The undertaking was never honoured.
[10] At par 6 of the rule
37 minutes the following is recorded:
“
Eiseres het verweerder versoek
om toe te stem daartoe dat ‘n versoek tot die Agbare Hof gerig
word ingevolge hofreël
33(4) om die geskilpunte rondom die
meriete en kwantum te skei en gevolglik dat die geskilpunte
betreffende paragrawe 3 en 4 van
die besonderhede daarmee saamgelees
paragrawe 3 en 4 van die verweerskrif allereers bereg word, terwyl al
die ander geskilpunte
oorstaan vir latere beregte.
Verweerder het verneem om instruksies
te bekom voor of op 11 Desember 2009. Die eiseres het die verweerder
meegedeel indien hy
sou versuim om te antwoord voor of op 11 Desember
2009 die eiseres ‘n formele aansoek om skeiding van kwantum en
meriete
sal rig aan die Agbare Hof.”
This then completes the
prelude to the plaintiff’s interlocutory application. It came
as no surprise when the defendant
chose not to oppose it.
Accordingly the application had to be granted as unopposed in
accordance with prayers 1 – 3 of the
notice of motion.
[11] As regards action
proceedings, Mr Fourie contended that the action was enrolled for the
full hearing of the entire dispute,
as that since the merits were no
longer in dispute the plaintiff had no choice but to present her case
on quantum with immediate
effect.
He referred me to a
certain unreported decision of the Free State High Court by my sister
Van Zyl J. My efforts to find such a
decision were fruitless. So
were my efforts to reach counsel for precise and accurate details of
the decision.
[12] Mr Zietsman
contented that the defendant was precluded by the grant of the order
in terms of rule 33(4) from calling upon the
plaintiff to immediately
prove her quantum because the defendant had conceded the merits of
her claim. He referred me to the case
of
BAPTISTA
v DIE STADSRAAD VAN WELKOM
1996 (3) SA 517
(O) AT 520I – 521C and to that of
GROOTBOOM
v GRAAF-REINET
2001 (3) SA 373
(E) at 381H – 382B.
[13] I deem it necessary
to quote rule 33(4):
“
4. If, in any pending action,
it appears to the court
mero
motu
that there is a
question of law or fact which may conveniently be decided either
before any evidence is led or separately from
any other question, the
court may make an order directing the disposal of such question in
such manner as it may deem fit and may
order that all further
proceedings be stayed until such question has been disposed of, and
the court shall on the application of
any party make such order
unless it appears that the questions cannot conveniently be decided
separately.”
[14] I now proceed to
examine the undisputed facts or factual allegations. On 3 December
2009 the plaintiff sought the consent
of the defendant to the
separation of issues. The plaintiff made the request because both
the merits and the quantum were still
in dispute at that stage. The
defendant’s attorney apparently did not have instructions to
instantly respond to the request.
He made an undertaking to obtain
specific instructions from the defendant and to advise the
plaintiff’s attorneys of the
defendant’s attitude towards
the separation in terms of rule 33. The plaintiff’s attorney
waited in vain for almost
ten weeks. It seems to me the pre-trial
conference achieved practically nothing of any value save to inflate
the high legal costs.
In many instances, one gets an impression,
that practitioners seldom use the procedure in a meaningful manner.
[15] Quite often the real
purpose for which the procedure was designed is undermined with
impunity. This case is a typical example
of that regrettable state
of affairs. The conduct of attorneys in general as regards this
procedure is lamentable. There are
four core items of a conference
in terms of rule 37 agenda: settlement proposals, material
admissions, discovery of documents,
and separation of issues. All
these matters are intended to narrow the ambit of the dispute. The
ultimate purpose of the whole
exercise is to speed up the litigation
process. None of these important matters were really addressed at
the conference in question.
[16] It seems to me that
if serious consultations between the practitioners and their clients
were held before the conference, significant
strides could have been
made long before the trial towards the resolution of the dispute.
The defendant would probably have conceded
the merits and consented
to the separation of the issues at the conference and there would
have been no need for a formal application,
and the present debate
about the costs of the postponement would also probably not have
arisen.
[17] The defendant
defaulted on 11 December 2009. By the 12 December 2009 the plaintiff
became aware that the required consent
for the defendant to the
separation of issues was still outstanding. The plaintiff’s
attorney had no reason to believe,
and did not claim to, that the
required consent would soon be given before the trial. In her
supporting affidavit, the plaintiff’s
attorney gave no
explanation as to why the application to have the issues separately
adjudicated was delayed for nine weeks and
only served and filed a
day before the trial was due to start. I am inclined to think that
the eleven hour launching of the application
was done on purpose. It
seems to have been a deliberate ploy to hit back at the defendant for
its failure to consent to the separation
of issues. That did not go
down well.
[18] I have a serious
suspicion and it is a very strong suspicion, that the defendant did
not take kindly to the late launching
by the plaintiff of the
application for the separation of issues. It seems to me that the
defendant’s intolerant attitude
towards the issue of quantum
was precipitated by an undercurrent desire to retaliate. By the look
of things, the parties were
out to ambush each other by way of
procedural posturing. The swords were drawn when they appeared
before me.
[19] Had the defendant
not conceded delictual liability, the plaintiff would first have
presented her case in respect of the merits
after an order in terms
of rule 33(4) had been made. The practical effect of the defendant’s
concession was that it greatly
curtailed the proceedings,
substantially reduced costs and saved valuable public time. But if
the separation of issues meant what
the defendant contended it meant
then it would not have been necessary for the plaintiff to even seek
the defendant’s consent.
The continuous flow of the
proceedings without fragmenting interruption follows as a matter of
course unless the court intervenes
in terms of rule 33(4). The
adjudication of the merits in a civil trial is usually a cumbersome,
protracted an expensive exercise.
[20] The defendant’s
concession has obviated the need to embark on that first phase of the
civil hearing. Regrettably, the
concession was not made in the
earliest possible time within which it could have been made. The
proposition that such concession
accelerates the proceedings and
anticipates the quantum phase of the trial seems to me to be a thin
argument.
[21] Since the issues had
been separated and the merits conceded, only the quantum remained an
issue. Seeing that the plaintiff
was not ready to present her case
on quantum in the same day immediately following the defendant’s
admission of liability,
the hearing obviously had to be postponed.
The crux of the argument was which party should be held liable for
the costs of such
postponement. Mr Zietsman contended that such
costs should be costs in the action but Mr Fourie contended that the
plaintiff must
be held responsible for the payment of the defendant’s
costs.
[22] In the instant case
proof of quantum will entail presentation of various sorts of
evidence in respect of the victim’s
legal duty to maintain the
aforesaid minor child, the victim’s remuneration details at the
time of the fatal road accident,
the compensation awarded to
aforesaid dependant by the compensation commissioner if the victim
was injured during the course and
scope of his employment, the
dependant’s past loss of support, and the defendant’s
future loss of support calculated
and presented by an actuary.
[23] The compilation of
an actuarial assessment report, the reservation of an actuary
intended to be called as an expert witness,
the actuary’s mode
of travelling, the actuary’s hotel accommodation, the duration
of the actuary’s court attendance,
the actuary professional
status, standing or profile and the actuary’s length of absence
away from his office – all
these have huge financial
implications for the plaintiff. It is often unwise to make such
elaborate practical arrangements to
secure the attendance of an
actuary or any quantum witness before a court has ruled in favour of
the plaintiff on the merits.
Very strong practical and financial
considerations almost invariably dictate that such elaborate
arrangements and consultations
be held back pending the midway
decision by the court on the merits. Here and everywhere it is an
accepted practice, in third
party claims, to have the merits and
quantum separated in terms of rule 33(4) in order to deal with the
issues pertaining to the
merits first and to let the issues
pertaining to quantum to stand over for later adjudication. See the
obiter dictum by Lombard
J in
BAPTISTA
v DIE STADSRAAD VAN WELKOM
supra
at 520C – E.
[24] Ms J M A
Engelbrecht, the plaintiff’s attorney, in her motivation for
the separation of issues, alluded to practical
problems which often
plaque the simultaneous bringing to court of all the witnesses, in
other words, quantum witnesses together
with the merit witnesses.
At par 11 of the
supporting affidavit she stated:
“
Dit is met eerbied onbillik om
van die Eiseres
in casu
in haar verteenwoordigende hoedanigheid te verwag om daardie
finansiële uitgawes aan te gaan ten einde al hierdie getuies
na
die Hof te bring onderwyl die aangeleentheid slegs vir drie dae
geplaas is en daardie getuies letterlik in die hofgang sal moet
rondstaan terwyl die dispuut met betrekking tot die meriete
uitgepluis word. Die getuies se koste is substansieel, welke koste
aangegaan moet word sonder dat die Verweerder se aanspreeklikheid
gefinaliseer is.”
It certainly makes no
sound economic proposition to assemble expensive expert witness
prematurely.
[25] The contention of
the defendant meant that once a court had decided the dispute on the
merits in favour of the plaintiff, the
plaintiff was obliged to
present her case on quantum at once. In developing that argument
further Mr Fourie contended that the
case as a whole was enrolled for
adjudication over the aforesaid three day period. Since the
separation order was made on the
very first day and the merits
conceded immediately thereafter, he contended that the allocated time
had to be promptly used to
deal with the still disputed issues of
quantum.
[26] In my view the
contention is untenable. If it were so, it would defeat the very
basic purpose of rule 33. At the very heart
of the rule, is the
intention not only to curtail civil hearing proceedings but also to
minimise the costs of our civil justice
system. To uphold the
contention would render the separation order practically ineffective
and inoperative. The costs of litigation
would unnecessarily
escalate. In a case where quantum expert witnesses are prematurely
subpoenaed, but the plaintiff becomes unsuccessful
on the merits, the
quantum phase of the hearing automatically falls away. All the costs
incurred relative to the quantum would
become wasted costs. Such
waste costs can be avoided. It makes perfect sense for a plaintiff
to ask for a separation order and
for the court to stay the hearing,
let such plaintiff go home and afford him or her ample opportunity to
prepare for the next round
– the quantum phase of adjudication.
[27] In the matter
between
FAIGA
v BODY CORPORATE: DUMBARTON OAKS AND ANOTHER
1997 (2) SA 651
(W) at 669H – I, A P Joubert AJ had this to say
about a separation order:
“
A separation of issues in terms
of the provisions of Rule 33(4), by its very nature, fragments a
hearing. This undesirable feature
is counterbalanced by the
prospective advantage of a saving in costs. One of the great
advantages of the Rule is that in matters
of delict, depending on the
outcome of the hearing on the merits, the issue of quantum might
never arise. Also, in those instances
where the plaintiff succeeds on
the merits, the matter of quantum is often settled.”
I am in agreement.
[28] In
GROOTBOOM
v GRAAFF-REINET MUNICIPALITY
2001 (3) SA 373
ECD at 382B Ponnan AJ, as he then was, expressed
similar sentiments and quoted, with approval, the aforegoing passage
by Joubert
J. This is how he expressed himself:
“
Whilst I am in respectful
agreement with those sentiments, I am also acutely aware of the
onerous burden that litigation on this
scale must place on the
plaintiff's meagre financial resources.”
Once again, I am in
respectful agreement with the learned Judge. Financial
considerations often inform the separation order as
envisaged in the
sub-rule.
[29] I hasten to point
out that in both the
Faiga’s
case and the
Grootboom’s
case the debate was about the plaintiff’s costs incurred in
determining the issue of liability. On behalf of the legal
representatives of the plaintiffs the courts were urged that, if the
courts, on the merits, came to respective decisions favourable
to the
respective plaintiffs, they should also immediately make awards of
costs, in favour of the plaintiffs then and there. However,
on
behalf of the respective defendants the courts were urged to make no
awards of costs at that juncture but rather to reserve
decisions
pertinent to the costs for later adjudication.
[30] In
casu
the debate is not precisely the same. It is somewhat different. It
is about the costs involved in postponing the case in order
to hear
the issues of quantum later rather than instantly as Mr Fourie would
have it. He had no problem against the awarding of
costs incurred in
adjudicating the issues relative to the merits. I am of the firm
view that no case has been made out to justify
sanctioning the
plaintiff for her perceived failure to immediately proceed with the
presentation of her case with regard to quantum.
A separation order
necessarily fragments the hearing into two distinct phases. The
transition from the first phase to the second
phase entails a break
and not a trivial pause.
[31] Where, as in the
instant case, the claim is not liquid or liquidated, but rather based
on delictual damages which cannot be
readily ascertained by a simple
mathematical calculation, the interval or the transition between the
primary phase of merits and
the secondary phase of quantum often
endures for long periods of time. It is extremely difficult if not
simply impossible in a
case like this for the plaintiff to cross such
a bridge within only a few weeks or months. Any attempt to
drastically narrow the
separation interval as the defendant contended
would render the separation order meaningless for all intents and
practical purposes.
Such frustration of the rule, the law will not
countenance.
[32] It follows from the
aforegoing that the plain could not be said to have been in default
on account of her alleged unreadiness
to present any evidence to
prove the quantum of her damages on the very same day soon after the
defendant had conceded the merits.
Because she was not in default,
no sound reason existed for her to be penalised. The mere grant of
the separation order warranted
the postponement of the proceedings.
Upon the making of such an order the items on the court agenda, in
other words, the notice
of setdown, were restricted to the issues
concerning the merits. Upon the defendants making of the concession
on the merits in
favour of the plaintiff the agenda was exhausted.
The business I was called upon to do for the day in respect of the
case was
done. Therefore the case had to be postponed. The
plaintiff was not to blame for the postponement. The proceedings are
now in
suspense. In due course the plaintiff will break the
transition phase by way of another notice of setdown. When such
interval
is over, I shall return to the bench to deal with the second
phase of the proceeding. There will be new items on the second
agenda.
All of them will be about quantum issues.
[33] Mr Zietsman urged me
to reserve the costs concerning the inevitable postponement for later
adjudication. The postponement
is inextricably linked to the
determination of the quantum of damages. If the plaintiff wins the
second round as well, she will
be entitled to be awarded costs
incurred in determining the quantum including the costs of the
postponement in dispute. On the
other hand, if the plaintiff loses
the second round, which though unlikely is nonetheless possible, then
in that event the defendant
will be entitled to be awarded costs
incurred in determining the quantum including the costs of this very
same postponement which
is in dispute. A matter of costs involves
the exercise of judicial discretion, requires consideration of all
the relevant facts
and a decision relative hereto should be fair and
reasonable to all parties concerned.
BABTISTA
v STADSRAAD VAN WELKOM
1996 (3) SA 517
at 520E – F, per Lombard J.
[34] In the
circumstances, I order as follows:
a. The defendant is held
liable for the damages, if any, that the plaintiff’s minor son
N N has suffered and might suffer
as a consequence of the fatal
bodily injuries sustained by the minor’s father Thabo Samuel
Nkone in a road accident which
happened at Wesselsbron on 4 July
2006.
b. The defendant is
directed to pay the plaintiff’s costs occasioned by this
hearing in order to determine liability;
c. The matter is
postponed
sine
die
;
d. The awarding of the
costs of the postponement is reserved for later adjudication.
______________
M. H. RAMPAI, J
On behalf of
plaintiff: Adv. T. A. Zietsman
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of
defendant: Adv. J. A. Fourie
Instructed by:
Vermaak &
Dennis
BLOEMFONTEIN
/em