Adams N.O v Road Accident Fund (1406/04) [2006] ZANCHC 23 (21 April 2006)

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[2006] ZANCHC 23
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Adams N.O v Road Accident Fund (1406/04) [2006] ZANCHC 23 (21 April 2006)

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aan Regters: Ja /Nee
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IN
THE HIGH COURT OF SOUTH-AFRICA
(NORTHERN
CAPE DIVISION)
KIMBERLEY
CASE
NO.: 1406/04
DATE
HEARD:18-04-2006
DATE OF
JUDGMENT:21-04-2006
In
the matter between:
JOHANNA
ADAMS N.O
PLAINTIFF
and
THE ROAD ACCIDENT FUND
DEFENDANT
CORAM:
C.C WILLIAMS J:
J U D G M E N T
WILLIAMS
J:
1. The plaintiff in this
matter instituted an action against the defendant, in her personal
capacity as well as in her representative
capacity as mother and
guardian of her minor son who was injured in a motor vehicle
collision, for the damages sustained as a result
of his injuries.
2. The trial was set to
commence on 18 April 2006, it having been agreed between the parties
at the Rule 37 conference held on 2 March
2006 that the Court only
decide upon the issue of the merits, the issue of quantum to be
determined later.
3. On Thursday 13 April
2006, the day before the Easter long weekend, thus effectively one
court day before the trial was set to commence,
the defendant’s
correspondent attorneys locally, Haarhoffs Inc, received a telefax
from the defendant’s Bloemfontein attorneys,
Honey Attorneys, that
they had just received instructions from their client, the defendant,
to concede the merits of the matter and
to tender the costs of the
merits trial. Hereto a draft order was attached and instructions
were given that arrangements be made
with the plaintiff’s attorneys
that an order be taken in terms of the draft on 18 April 2006, the
day of the hearing.
4. The
draft order reads as follows:
“
By agreement
between the parties the following order is made:
1.) Defendant is
liable for payment of the plaintiff’s full (100%) proven or agreed
damages.
2.) Defendant
is liable for payment of the plaintiffs taxed or agreed party and
party costs, on High Court scale, pertaining to the
merits trial.”
These
documents, under cover of a letter from defendants local attorneys,
which states;
“
We
refer to the above matter and annexed hereto the letter received from
our instructing attorney together with draft order.
We
trust you find same in order.”,
were faxed to the
plaintiff’s local attorneys at 12:13 on 13 April 2006.
6. What seems to have
happened though, is that plaintiff’s local attorneys closed early
for the long weekend and only received the
fax on the Tuesday morning
after the long weekend, which was also the day the trial was due to
commence.
7. In the meantime
plaintiff’s attorney in Cape Town, also unaware of the
developments, had proceeded with counsel to fly to Kimberley
on
Monday 17 April, at the same time busing witnesses from Upington
where the motor vehicle accident occurred, with the necessary
overnight accommodation arranged in Kimberley.
8. On 18 April 2006 the
plaintiff agreed to the offer made by the defendant, the only
remaining issue related to costs incurred after
13 April 2006. Mr.
Nortier, who appeared for the plaintiff, argued that plaintiff was
entitled to her costs up to 18 April 2006
while Ms. Lloyd who
appeared for the defendant was of the view that the matter be left to
the Taxing Master to determine.
9. I
see no reason why this issue should be left for the Taxing Master to
decide when the facts are before me. In the normal course
of events
where costs have been settled by agreement between the parties the
trial Court would have no discretion to award the plaintiff
any costs
other than what defendant has undertook to pay. See
Erasmus
v Santam Insurance Ltd and Another
1992(1) SA 893(W) at 898B-C where Flemming DJP states the following:
“
On
the basic principles of conclusion of a contract, the plaintiff could
indeed accept only what is offered. Nothing else was available
to be
accepted. It is not possible to have an acceptance which succeeds in
creating a contract of settlement, but which operates,
despite the
defendant's intention, as if it also contained a further clause to
the effect that the plaintiff retains the right to
ask the Court to
award something in addition to what is offered”.
10. However,
unlike in the Erasmus case
supra
,
where the offer to pay the plaintiff’s costs was made
“to
date of this tender”
,
which was only accepted by the plaintiff therein a week later, after
unnecessary and avoidable expenses had been incurred, no cut-off
date
is attached to the tender to pay the plaintiff’s costs in the
present matter.
11. Of course this does
not mean that the plaintiff has now acquired the luxury to deliberate
the offer at her own leisure, meanwhile
incurring avoidable expenses.
What must be determined in the present situation is whether the
plaintiff acted reasonably in the
circumstances. To this extent it is
necessary to examine the actions of the defendant.
12. It
is clear from the letter from the defendant’s Bloemfontein
attorneys that
“arrangements”
had to be made with the plaintiff’s attorneys that an order be
taken in terms of the draft submitted. However, despite being made
aware of the fact that plaintiff’s local attorney, Mr. Haddad of
Elliot, Marris, Wilmans & Hay would not be in office on 13
April
2006, it appears as if, besides the fax being sent to plaintiff’s
local attorneys offices on 13 April, no further effort
was made
concerning any arrangements with either plaintiff’s local or Cape
Town attorneys in this regard on that date. Considering
the very
late stage at which the offer was made as well as the particular
timing thereof (just before the Easter weekend), the defendant
should
have been well aware of the danger that certain expences relating to
the period after the offer was made would be unavoidable.
13. Even if the
defendant’s offer had stipulated that costs were tendered up to the
date of the offer, in these circumstances I
would be hesitant to
disallow the costs incurred by the plaintiff after 13 April 2006.
14. The defendant took
the risk upon itself, not only in the form that the offer was made,
but also in spite thereof not to take any
steps to ensure that it
came to the notice of the plaintiff’s attorneys. In my opinion the
plaintiff is entitled to her costs
up to 18 April 2006, which is in
any event nothing more than what was offered by the Defendant.
The following order is
made:
a) Defendant is liable
for payment of the plaintiff’s full (100%) proven or agreed
damages.
b) Defendant
is liable for payment of the plaintiff’s taxed or agreed party and
party costs, on High Court scale, pertaining to
the merits trial up
to and including 18 April 2006.
___________________________
C.C
WILLIAMS
JUDGE
For
Plaintiff: Adv. Nortier
Elliot,
Marris, Wilmans & Hay
For
Defendant: MS. Lloyd
Haarhoffs