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[2010] ZAFSHC 130
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Sehlabaka v Road Accident Fund (4820/2008) [2010] ZAFSHC 130 (30 September 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 4820/2008
In
matter between:-
MR THIBILE ELVIS
SEHLABAKA
…........................................
Applicant
And
ROAD ACCIDENT FUND
…..................................................
Respondent
HEARD ON:
23 SEPTEMBER 2010
JUDGMENT BY:
K.J. MOLOI, J
_____________________________________________________
DELIVERED ON:
30 SEPTEMBER 2010
JUDGMENT
_____________________________________________________
MOLOI, J
[1] This is an
application for a costs order against the respondent necesitated by
having to compel the respondent to supply certain
particulars
required by the applicant for purpose of trial. The particulars
having been supplied, only the order as to cost of
the application
formed the basis of the dispute between the parties.
[2] The applicant is the
plaintiff against the Road Accident Fund, the respondent, wherein he
claimed compensation for injuries
sustained in a motor vehicle
collision in terms of the provisions of the
Road Accident Fund Act
No: 56 of 1996
. The main action is set down for hearing on 09
November 2010.
[3] The trajectory of the
events leading to this application is as follows:
3.1 On 27 July 2009 the
applicant served a notice in terms of Rule 21 of the Uniform Rules of
Court requesting the respondent to
supply certain particulars
required for trial purposes;
3.2 On 19 August 2010,
more than a year later, the applicant sent a reminder to the
respondent to supply the particulars requested
on 27 July 2009 by no
later than 26 August 2010 and threatened to take further steps should
the respondent fail so to supply the
requested particulars;
3.3 On 03 September 2010
the applicant filed an application to compel the respondent to supply
the particulars requested as well
as an order of costs in terms of
Rule 21(4) of the Uniform Rules;
3.4 On 14 September 2010
the respondent filed a notice to oppose the application and delivered
the requested particulars, nonetheless.
As a consequence the
registrar placed the application on the roll of opposed applications
to be heard on 23 September 2010.
3.5 On 14 September 2010
together with the filing of the notice to oppose and the particulars
requested, the respondent sent a letter
dated 13 September to
applicant’s attorney reading -
“
Therefore,
we request that you attend to, remove this matter from the roll, and
please note the defendant
will
tender
the
wasted costs herein
”
(my emphasis).
On 19 September 2010 a
letter from the applicant’s attorneys dated 15 September 2010
was faxed to the respondent’s
attorneys and read -
“
Ons
neem kennis van u korrespondent se versoek om die aansoek om te
verplig van die rol te verwyder, maar verneem ons graag
wanner
ons die gemelde tender ten aansein van die versplilde koste te wagte
kan
wees
alvorens
ons
die ansoek van die rol verwyder”(
my
emphasis).
On 17 September 2010
the respondent’s attorney faxed a letter to the applicant’s
attorney reading -
“
We
confirm that it is our correspondent’s instruction to oppose
the costs for attending to remove the matter from the roll
on
Thursday, 23 of September 2010, (sic) due to the fact that they
provided your offices with a letter on 13 September 2010 stating
that
the defendant
will
be
l
iable
for the wasted costs and that the matter should be removed
accordingly.
We confirm that our
offices have not yet received a notice of removal and seeing that
today, being Friday 17 September 2010 was
the last day to file same,
our instructions are to oppose the costs order and that the defendant
will only be liable for the wasted
costs up and until 13 September
2010”.
On 20 September 2010
the applicant’s attorneys wrote to the respondent’s
attorneys stating -
“
Ons
ontvang graag ‘n afskrif van die korrespondent se brief waarin
hul die verpilde koste ten ansien van die aansoek tender
aangasein
die brief wat ons van die korrespondent ontvang het, meld dat hul die
koste
sal
tender
aangesein
die betrokke sin as volg lees: “Please note that the
defendant’s
will
tender
the
wasted costs herein” (
my
emphasis
).
On 20 September 2010,
it is common course that certain e-mails were exchanged between the
Bloemfontein attorneys involved as
correspondents in this matter
and a telephonic communication was had after which a letter from
the respondent’s Bloemfontein
correspondent was forwarded to
the applicant’s Bloemfontein attorneys reading -
“
Ons
bevestig die telefoniese gesprek tussen skryfster hiervan en u Mnr
Davis waarin hy skryfster meegedeel het dat die Eiser van
voorneme is
om heirdie aangeleentheid te beveg en is u tans besig om opdrag te
gee aan ‘n advokaat om die nodige voorbereiding
(hoofde van
betoog) op te stel.
On bevestig dat ons
reeds u kostes tot
en met13 September
2010
getender
het
(soos per skrywe
gedateer 13 September
2010) en dus is daar
geen verdere regs
kostes tot vandag toe
nie (
my emphasis
) .
Skryfster begryp nie
waarom nog ekstra
kostes in hierdie
verband opgeloop moet
word nie en verneem
ons graag of u nog
steeds van voorneme is
om hierdie
aangeleenheid te
bestry en indien wel,
ontvang ons graag
skriftelik bevestiging
daarvan voor die sluit
van besigheid.
Ons bevestig
verdermeer dat ons instruksies,
Is, dat
indien u
voortgaan met die bestrede
aansoek, ons geen
ander keuse sal hè om ‘n
bestraffende
konstebevel teen die Eiser se
prokureurs te
versoek nie”
(
my emphasis
).
[4] The following are
common course:
(a) The applicant was
entitled to launch an application to compel on 3 September 2010
taking into account how long the respondent
failed to respond to the
request for further particulars for trial purposes and the reminder
sent to its attorneys;
(b) The particulars were
necessary for the purpose of trial there being no objection raised
against the request and, in fact, the
particulars having being
supplied; the date of hearing is closing in.
(c) The application
became opposed on the basis of the filing of the notice to oppose by
the respondent, which had not been withdrawn.
The respondent failed to
file an opposing affidavit
but counsel for
respondent, Adv Els, filed the heads of argument wherein he correctly
summed up the crux of the dispute between
the parties as follows:
“
From
the e-mails it appears that the words “Please note that the
defendant
will
tender
the
wasted cost herein” is the cause of concern to the applicant.
The applicant avers that they are still awaiting the tender,
whilst
the respondent avers that it is
evident
that
the respondent tenders the wasted costs” (
my
emphasis
).
(e) Where the request for
further particulars have already been supplied subsequent to a formal
application being heard and
if
the costs were tendered, in our
case on 13 September 2010, the respondent cannot be held liable for
further costs occasioned by
the applicant’s insistence to
proceed with the application.
[5] The issue to be
decided by the court is and remains whether there was, in fact, a
tender for wasted costs made by the respondent
in its letter dated 13
September 2010. The disputed phrase in the respondent letter dated 13
September 2010 is “
will tender
”
. The
word
‘
wil
l’
is defined as
follows in
The New Shorter Oxford English Dictionary (The New
Authority on the English Language)
edited by Lesley Brown, Volume
2, Clarendon Press, Oxford, 1993 edition “
desire, wish,
longing (a) liking or disposition (to do) …that which one
desires; the expression of a wish and the word‘
‘
tender’
means “formally offer or advance (a plea, an averment,
evidence); offer (money etc)
to discharge a debt or liability;
present (anything) for approval or acceptance; offer, or proffer”.
[6] From the onset the
applicant indicated that he was not satisfied with the expressed
desire or intent of the respondent to tender
and expected a solid
unequivocal tender from the respondent. There was no indication of
when the tender would be made by the respondent.
The respondent
willed to make a tender, it had more than sufficient opportunity to
do so than to engage in extensive exchange of
correspondence, faxes
and telephonic communications with the applicant’s attorneys.
[7] Rule 34(5) of the
Uniform Rule of Court prescribe in clear terms how an offer or tender
should be made and that provision is
peremptory. A simple one
sentence notice of a tender could have been filed other than the
insistence on writing several letters
and telefaxes arguing that it
is obvious the respondent would make a tender. What was required was
a clear tender on notice to
eliminate any factual dispute that might
arise;
Reilly vs Seligson and Clare vs Ltd
1976 (2) SA 847
(W). A tender just like an offer must be clear and firm and must not
be open to other interpretation. It must be firm and state
what it
is.
[8] Based on a clear
tender the applicant would simply proceed to tax his bill of costs at
the end of the day. If the tender was
still envisaged or desired to
be made, the applicant would have to apply to the court to compel the
respondent to make a tender
based on his expressed intention or
desire to make it. This is so because how would one enforce an
intention or desire to do something
even if accepted in good faith?
Would the respondent be barred from raising a defence that a tender,
much as it was intended, had
not yet been made came taxation time?
Would what was intended to be tendered be what the applicant would
accept?
[9] The applicant was
represented by Schoeman Kellerman & Kotze Inc. of Welkom and had
Rossouw Attorneys as its Bloemfontein
correspondents. The respondent
was represented by Maponya Attorneys of Pretoria who had Honey
Attorneys as its Bloemfontein correspondents.
It is generally
accepted that a correspondent attorney acts on instructions of an
instructing attorney strictly unless he/she wants
the perils of going
outside his/her mandate visited upon him /her. During the hearing the
court asked both Advocate Zietzman for
the applicant and Advocate Els
for the respondent whether this matter was not a case of befitting
punitive costs order to be paid
de bonis
propriis
by the respondent’s instructing attorney for two reasons: (a)
it could be accepted that the respondent had agreed and instructed
it’s attorney to tender wasted costs of the application as at
13 September 2010 according to his letter of even date and
(b) from
the onset the applicant clearly would not accept the “
will
tender”
offer and required a solid, finite and
unequivocally tender as correctly pointed out by Advocate Els when he
correctly summed up
the real dispute between the parties in his heads
of argument as pointed out above in paragraph 4(d).
[10] Instead of making
the tender the instructing attorney simply insisted it was “
evident”
from his letter dated 13 September 2010 that it was “
abundantly
clear”
that the respondent “
will tender the costs”
and “
will be liable for the wasted costs”
in his
lengthy letter of 17 September 2010. This being contrary to the clear
instructions of his client to tender the wasted costs
which would
really read something like: “
Take notice that the respondent
hereby tenders the wasted costs of the application to date”
,
and whether this attitude would not be “
frowned upon”
by the court (
Erasmus Superior Court Practice
B1-428A); and “
I
think it is the duty of a litigant to avoid any cause which unduly
protracts a law suit or unduly increase its expenses”.
(Scheepers & Nolte vs Pete
,
1909 TS 353
at 356”
quoted by advocate Els in his heads of argument which must be
disapproved by the court as unauthorised conduct: I
ntercontinental
Finance and Leasing Corporation (Pty) Ltd v Stands 56 and 57
Industrial Ltd
1979(3) SA 740(W) at 754C-E; or a departure from
responsibility of office:
Blou v Lampert and Chipkin
,
1973(1) SA 1(A) at 14A-F; or unreasonable action:
Visser v
Cryopreservation technology CC
2003(6) 607(t) at 609 or even
improper conduct:
Moeca v Addissionel Kommissaris Bleomfontein
1981(2) SA 357(o) at 366 B-C on the part of the respondent’s
Pretoria attorneys.
[11] Expressions such as
“
Ons bevestig verdermeer dat ons instruksies is, dat u
indien voortgaan met die bestrede aansoek, ons geen ander keuse sal
hè
om ‘n bestraffende kostebevel teen die Eiser se
prokureurs te versoek nie”
(letter of the respondent’s
Bloemfontein correspondent to applicant’s Bloemfontein
correspondent dated 20 September
2010 above. This when respondent’s
attorney knew or at least ought to have known that he/she still
intended to tender the
wasted costs there being no firm tender on the
table.
[12] I was not provided
with clear cut- out answer to my question but from both counsels
submissions were made that they were not
of the view that the
seriousness of the attitude of the respondent’s attorney
warranted such drastic action by the court.
I do not agree. The court
cannot tolerate such frivolous, unreasonable and argumentative
conduct having as a consequence protracted,
unnecessary and expensive
litigation instead of simply carrying out client’s instructions
to tender the wasted costs.
[13] In the result, the
following order is made:
The respondent is
ordered to pay the wasted costs of the application up to and
including 13 September 2010.
The respondent’s
instructing attorney is ordered to pay the costs of the application
from 14 September up to and including
23 September 2010
de
bonis
propriis
.
_____________
MOLOI, J
To:
Honey Attorneys
Attorney for Defendant
Honey Chambers
Northridge Mall
Eeufees Road
BLOEMFONTEIN
(Ref:
S VD Walt /cs/i16009)
And
to: Rossouw attorneys
Attorneys
for Applicant
President
Reitzlaan 119
Westdene
BLOEMFONTEIN
9300
(Ref:
SCH41/0373 (JHC/OVZ)