About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2010
>>
[2010] ZAFSHC 47
|
|
Kanono v Road Accident Fund (7072/08) [2010] ZAFSHC 47 (13 May 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : 7072/08
In
the matter between:-
TSELE
REGINALD KANONO
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
___________________________
__________________________
JUDGEMENT
BY
:
BOONZAAIER,
AJ
___________________________
__________________________
HEARD
ON
:
5
MAY 2010
_____________________________________________________
DELIVERED
ON
:
13
MAY 2010
Boonzaaier
,
AJ
[1]
The
Plaintiff instituted action in the High Court against the Defendant
for payment in the amount of R124 919, 24 as and for damages
sustained by her as a consequence of injuries suffered in a motor
vehicle accident.
[2]
The
Plaintiff has chosen the High Court as appropriate forum to institute
proceedings.
[
3] The
merits and quantum of damages were settled in the amount of R24
919,24 being special damages. The Defendant tendered party
and party
costs on Magistrates Court scale and increased advocates fees. The
whole amount of R100 000 for special damages was abandoned
by
Plaintiff.
[4]
Counsel
for Plaintiff argued that the Defendant never objected to the High
Court’s jurisdiction before trial even when Defendant
had ample
opportunity to do so during the R37 conference.
[5]
It
was also argued that Defendant had sufficient time to settle the
matter before the trial date and all the costs could have been
prevented.
[
6] Counsel
for Defendant argued that proper investigation had to be done by
Defendant to consider the claim and that Defendant had
indeed tried
to settle the claim. In fact, fellow passengers’ claims were
finalised with the same firm of attorneys who
instituted action on
behalf of the Plaintiff.
From
the beginning it was clear that Plaintiff’s claim would be
limited.
[
7]
Even the general rule,
viz
that
costs follows the event as argued by Adv Coetzer, is subject to the
overriding principle that the court has a judicial discretion
in
awarding costs as it was indicated in the case of
JONKER
v SCHULTZ
2002 (2) SA 360.
[
8]
The fact that the Plaintiff claimed more than she succeeded in
recovering is indeed not sufficient ground for refusing her
costs or
to justify the court in depriving her of costs. The claim must be
excessive, or grossly disproportionate to the amount
found to be due,
before that would be done.
[9] The injuries were
however described in the indictment as
“
plaintiff suffered minor bodily
injuries to the head as well as fairly severe injuries to the chest
which include laceration of
the left side of the face and fracture of
the left ‘scapula’”.
[10] The purpose of an
award of cost to a successful party/litigant is to indemnify him for
the expense to which he has been put
by having unjustly been
compelled to initiate or defend litigation, as the case may be.
[11] The
cost order is not intended to be compensation for a risk to which a
litigant has been exposed, but a refund of expenses
actually
incurred
PAYEN
COMPONENTS SA LTD v BOVIC GASKETS CC
1999 (2) SA 409
(W) 417. The award of costs is a matter wholly within
the discretion of the court, but this is a judicial discretion and
must be
exercise on grounds upon which a reasonable person could have
come to the conclusion arrived at.
[12]
After due consideration of the facts I also came to the conclusion
that this matter did not “present considerable difficulties
in
fact or law” as was indicated in the
BARNARD
v SA MUTUAL FIRE & GENERAL INSURANCE CO LTD
1979
(2) SA 1012
( SE)
case.
The Plaintiff had been over optimistic in regard to the amount she
claimed as damages.
[13]
Having
regard to these factors and bearing in mind the principles I have set
out above and the submissions been made by counsel
it would be
unfair to burden the Defendant with costs on the High Court scale.
[14]
Order
The
costs to be taxed on
scale
applicable in the Magistrate’s Court.
__
__________________
A.
S. BOONZAAIER, AJ
On
behalf
of plaintiff: Adv J C Coetzer
Instructed
by:
Honey & Partners
BLOEMFONTEIN
On
behalf of defendant: Mr. Phaleng
A.
P. Ledwaba Incorporated:
c/o
Israel & Sackstein
(Matsepes)