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[2010] ZAFSHC 144
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Charlie v Road Accident Fund (4465/2007) [2010] ZAFSHC 144 (18 November 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. 4465/2007
In the matter between:-
FEZILE MVANO
CHARLIE
….......................................................
Plaintiff
and
ROAD ACCIDENT FUND
…....................................................
Defendant
_____________________________________________________
HEARD ON:
2
NOVEMBER 2010
_____________________________________________________
DELIVERED ON:
18 NOVEMBER 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
RADEBE AJ:
[1] This matter was set
down for trial on 2, 3 and 5 November 2010. The plaintiff was
represented by Mr. Ian Dutton from the Durban
Bar and the defendant
was represented by Mr. Christol Coetzer from the Bloemfontein Bar.
During the course of the morning of the
first trial day, the parties
engaged in protracted settlement negotiations, culminating in a
consent order being granted. Settlement
was reached in respect of all
issues except the reserved costs of 3 August 2010.
[2] The issue of the
aforesaid reserved costs was re-opened for argument. Reference was
made to the record of the transcript of
the proceedings before the
Honourable Mr Justice Van der Merwe J when on 3 August 2010 the
plaintiff sought to amend his particulars
of claim. The court granted
an order in plaintiff’s favour in respect of the amendment.
Thereafter the defendant sought and
was granted adjournment with
costs reserved. The plaintiff duly amended his particulars of claim
by adding sub-paragraph 5.5 which
read:
“a head injury”
.
In due course plaintiff filed his amended pages.
[3] The defendant’s
application for a postponement was based on the ground that: until 3
August 2010 the particulars of claim
and the pleadings as they stood,
only dealt with orthopaedic injuries; that the amendment basically
affected the general damages
and the past and future loss of income
by increasing the quantum thereof. Up till then the amendments sought
and effected by the
plaintiff concerned the quantum of damages and no
amendment notice had been filed regarding head injuries. Paragraph 5
of the original
particulars of claim reads as follows:
“
5. In and as
a result of the accident the Plaintiff sustained the following
injuries:
left open femur fracture;
left humerus fracture with radial
nerve paralysis;
wrist drip; and
left ulner fracture tibia and
fibula.”
The amended paragraph 5
adds:
“
5.5 head
injury.”
[4] Counsel for the
plaintiff argued that the defendant had known for quite some time
before 3 August 2010 that the plaintiff had
intended to amend his
particulars of claim by the addition of sub-paragraph 5.5. Therefore
the defendant ought to have prepared
its case against the backdrop of
that knowledge. The basis of this contention, so argued the
plaintiff, is that prior to 3 August
2010, the plaintiff had filed
expert reports by Mr. Gideon de Kock, an Industrial Psychologist,
whose report had been compiled
during February 2009, Ms Zanele
Khumalo, a Clinical Psychologist, whose report had been compiled
during May 2009, Dr. S. Nadvi,
a neurosurgeon, whose report had been
compiled during July 2010. All three experts had referred to same
kind of cognitive impairment
which pointed to head injury. Further,
the defendant had also filed an expert report by Dr. Gian Marus, a
neurosurgeon, whose report
was complied during November 2009 and had
by implication acknowledged that the plaintiff would be claiming for
head injury as well.
According to plaintiff, the defendant ought to
have prepared for trial on this item (head injury) as well. It is on
this basis
that the defendant has to be ordered to pay wasted costs
for the adjournment of trial on 3 August 2010.
[5] Counsel for the
defendant argued that the plaintiff’s late amendment of his
particulars of claim necessitated that the
defendant had to prepare
its case to meet the claim for head injury as well; that plaintiff’s
case was never based on head
injuries; that it would be unfair to
expect the defendant to speculate what plaintiff’s case could
be in relation to the
said head injury; that reserving experts
attracts additional costs for the defendant; that had defendant
subpoenaed its expert
(Dr. Marus) and then later finds that plaintiff
was not amending his particulars of claim for the aforesaid head
injury, then defendant
would not have been able to claim the
qualifying and reservation costs for such expert even if judgment was
given in its favour.
This would be on the ground that defendant would
have called a witness whose evidence would have been unnecessary.
Therefore, plaintiff
has to be ordered to pay the wasted costs.
[6] It is common cause
that there had been other amendments in terms of Rule 28 of the
Uniform Rules, but that such amendments pertained
only to the quantum
of damages, increasing the amount claimed from R2 152 000 to an
amount of R2 702 000 in respect of both special
and general damages.
It is also common cause that in all the Rule 37(4) deliberations the
issue of possible or actual amendment
in respect of the claim for
head injuries was never raised. Even after the filing of Dr. S.
Nadvi’s report, dated 7 July
2010, specifying the head injury,
the plaintiff did nothing to further amend his particulars of claim
to include such a major aspect
of his claim. In my view, this injury
contributed to the severity of plaintiff’s injury and to his
hardships. Counsel for
the plaintiff argued that the defendant is not
entitled to take advantage of what is manifestly an oversight on the
part of the
plaintiff and that defendant ought to have foreseen that
the plaintiff would seek an amendment (on 3 August 2010) and
therefore
ought to have prepared sufficiently for trial on this
aspect as well. I do not agree with such basis as it presupposes that
defendant
should speculate what plaintiff’s intentions are.
[7] The defendant’s
application for postponement was not an unreasonable one in the
circumstances. It arose from the plaintiff’s
application to
amend his particulars of claim. Plaintiff submitted that it was as a
result of oversight on his part that the amendment
has not been
sought timeously resulting in the application to amend being brought
before court on the day of trial.
[8] Wasted costs of the
day are in general paid by the party seeking an adjournment unless
good cause is shown why such party should
not pay the costs. However,
that is not a general rule. The court has discretion, which
discretion has to be exercised judicially.
A party seeking a
postponement is not necessarily the party responsible for the
postponement and the consequent waste of the day.
Wasted costs were
defined in the case of
MBEKENI v JIKA
1995 (1) SA 423
(TK) at 424 F – G as follows:
“
'Wasted
costs' are additional costs incurred by a party through the fault of
his opponent or costs previously incurred which have
become useless
by reason of his opponent's fault.”.
Plaintiff’s
admitted oversight points to his fault which resulted in the
defendant seeking the adjournment.
[9] The adjournment was
occasioned by the late application to amend particulars of claim.
Counsel for the plaintiff argued that
defence counsel submitted
before the Honourable Mr Justice Van der Merwe J that defendant would
suffer no prejudice through the
amendment. However, it is clear from
the record of the transcript of the proceedings of 3 August 2010 that
such prejudice referred
to prejudice in terms of the amendment and
not prejudice in regard to proceeding with the trial on 3 August
2010. I refer also
to the decision in
PROTEA LIFE CO LTD v MICH
QUENET FINANCIAL BROKERS EN ANDERE
2001 (2) SA 636
(O) at 647
B – D where the court held the following:
“
Uit die
stukke blyk dit dat die uitstel genoodsaak was as gevolg van die laat
beskikbaarstelling van die dokumente wat nie aanvanklik
blootgelê
is nie. Vir hierdie rede het die eiser aanspreeklikheid aanvaar vir
die verkwiste koste op die terme soos hierbo
uiteengesit.”
The plaintiff correctly
admits his oversight and should recognise that such oversight has
caused the wasted costs to be incurred.
[10] Prejudice, although
ordinarily the dominant component to be considered, is not the only
factor when the issue of costs for
postponement is to be determined.
Other factors, as listed in Rule 41(3), are to be considered as well,
notably the factor of whether
the application for postponement was
bona fide
and not simply used as a tactical manoeuvre for the
purpose of obtaining an advantage to which the defendant is not
legitimately
entitled. The defendant’s reason for applying for
a postponement was to prepare for the “new case” of the
head
injury claim and to secure the attendance of the relevant
expert. It cannot be said that such application lacked the necessary
bona fides
, regard being had to the circumstances of this case
as a whole.
[11] From the analysis of
all the evidence and submissions before me it is undoubtedly the
plaintiff’s oversight that resulted
in the late amendment. The
plaintiff is the party responsible for the postponement and the
consequent waste of the day.
[12] In the
circumstances, it is ordered that:
12.1 the reserved costs
of 3 August 2010 are hereby unreserved;
12.2 the plaintiff is
ordered to pay the wasted costs occasioned by the adjournment on 3
August 2010.
________________________________
MADAME JUSTICE N.H.
RADEBE, AJ
On behalf of the
plaintiff: Adv. Ian Dutton
Instructed by:
Nonxuba Inc.
23 Elizabeth Street
BLOEMFONTEIN
On behalf of the
defendant: Adv. Christol Coetzer
Instructed by:
Messrs Honey Attorneys
Northridge Mall
BLOEMFONTEIN
/sp