Fox v Cango Wildlife Centre (PTY) Ltd t/a Cango Wildlife Ranch (6010/01) [2004] ZAWCHC 32 (1 November 2004)

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[2004] ZAWCHC 32
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Fox v Cango Wildlife Centre (PTY) Ltd t/a Cango Wildlife Ranch (6010/01) [2004] ZAWCHC 32 (1 November 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case No: 6010/01
In the
matter between:
MARGARET
JOANNE HOYLE FOX
Plaintiff
and
CANGO
WILDLIFE CENTRE (PTY) LTD
t/a
CANGO WILDLIFE RANCH
Defendant
JUDGMENT ON COSTS AND INTEREST: 1 NOVEMBER 2004
VAN ZYL
J:
[1] In my judgment handed down on 2 August 2004, I granted an order
in terms of which the defendant was required to pay the plaintiff
past medical expenses in the amount of ₤4 404,85, past loss of
income in the amount of ₤1 461,00 and general damages in the amount
of R100 000,00. The defendant was further required, in terms of
paragraph 4 of the order, to pay interest on the past medical
expenses
and past loss of income at the prescribed statutory rate
from date of issue of summons to date of payment. In addition the
defendant
was required, in terms of paragraph 6 of the order, to pay
the plaintiff’s costs of suit, including the reasonable qualifying
fees
and expenses of Drs G A Versfeld and H J Edeling.
[2] The
defendant subsequently (on 3 August 2004) gave notice to the
plaintiff, in terms of rule 34 (12), of three prior offers of
settlement made by it. The first was an offer of R260 000,00 on 12
July 2002, the second an offer of R400 000,00 on 16 August 2002
and
the third an offer of R600 000,00 on 10 March 2004. In the event the
defendant requested the court to reconsider its judgment
on the
question of costs.
[3] On the
same day (3 August 2004) the defendant applied for variation and/or
correction of the order relating to interest on past
medical expenses
and past loss of income, on the basis that interest should run from
the date of judgment (2 August 2004) to date
of payment. In his
supporting affidavit the defendant’s attorney, Mr Nigel Everingham,
relied on
section 2A(4)
of the
Prescribed Rate of Interest Act
55
of 1975
, which reads:
Where a debtor offers to settle a debt by making a payment into court
or a tender and the creditor accepts the payment or tender,
or a
court of law awards an amount not exceeding such payment or tender,
the running of interest shall be interrupted from the date
of the
payment into court or the tender until the date of the said
acceptance or award.
[4] Inasmuch as the award made by this court on 2 August 2004 did not
exceed any of the offers or tenders and did not specify the
applicable exchange rate, the award became payable on 2 August 2004
at the exchange rate obtaining on that day, namely R11,37 to
one
pound sterling. The sums of ₤1 461,00 and ₤4 404,85 aforesaid
hence translated into a total of R66 694,71. Interest on these
sums
could run only from the date of judgment, being 2 August 2004.
[5] In
response to the defendant’s application the plaintiff’s attorney,
Mr Tzvi Brivik, submitted that the defendant’s respective
tenders
should be reviewed in the light of what their values were in pounds
sterling at the date of the tender in question. In this
regard he
pointed out that, in terms of
rule 34
(6), the plaintiff had fifteen
days within which to accept such tender. On the date of each tender
the exchange rate was, respectively,
R15,7364, R16,3615 and R11,9982.
After deduction of the past loss of income and general damages, the
respective tenders in respect
of past medical expenses, which should
be regarded as a separate debt for purposes of the tenders, would be
the equivalent of ₤4
893,66, ₤16 874,72 and ₤40 211,92.
Interest on these amounts, Mr Brivik submitted, should be granted
from the date of issue of
summons to the date of tender and
thereafter from the date of the award. This would make allowance for
the interruption of interest
from the date of the tender to the date
of the award.
[6] In
reply to this response Mr Everingham submitted that, even accepting
the different exchange rates applicable at the time of
each tender,
Mr Brivik’s calculations were wrong. He illustrated this with
reference to tables containing various calculations
and persisted in
his contention that the tenders exceeded the award made by this
court, regardless of what approach was adopted.
In this regard he
rejected, quite correctly in my view, Mr Brivik’s submission that
the claim for past medical expenses should
be regarded as a separate
debt to which the tenders would not apply. The defendant, he averred,
had, in making the respective tenders,
acted reasonably and
approached the litigation in a sensible and responsible manner. Its
offers of settlement, which were generous
in the circumstances, had
been made some time before the enormous costs that were later
incurred had been run up. Because of the
misleading information
concerning her medical condition the plaintiff had given her South
African experts, however, her amended claim
was “grossly inflated”.
[7] The
parties were in agreement that the running of interest on past
medical expenses and loss of income would be interrupted by
the
tender, in which event it should run from the date of service of
summons until 12 July 2002, and then again from the date of
judgment
(2 August 2004) until date of payment. In regard to the costs of suit
Mr Everingham submitted that the defendant should
pay the plaintiff’s
costs until 14 July 2002 (allowing a
spatium deliberandi
of
two days), whereas the plaintiff should pay the defendant’s costs
incurred after that date. Such latter costs should include
the costs
of two counsel, where two counsel have been employed, and the
reasonable qualifying expenses of Dr Sagor (orthopaedic surgeon),
Dr
Badenhorst (neurologist), Dr Le Fevre (psychiatrist), Mr van Wyk
(psychologist), Mr Fritz (industrial psychologist), Mrs Andrews
(occupational therapist) and Mr Koch (actuary).
[8] In
his argument on behalf of the plaintiff Mr Trengove concentrated on
the costs issue, submitting that, if this court had applied
the
prevailing law regarding lost wages as set forth in the case of
Zysset and Others v Santam Ltd
1996 (1) SA 273
(C), the
plaintiff’s claim for lost income would have been considerably
higher than the amount awarded and the total damages would
have been
in excess of the first two tenders. Interesting as this argument may
be, the present application is not one for leave to
appeal, but for
an amendment of the order relating to interest and costs.
[9] Mr
Butler, for the defendant, submitted that Mr Everingham’s
calculations should be accepted as demonstrating unequivocally
that
the tender of 12 July 2002 already exceeded the award of this court.
He suggested that a
spatium deliberandi
of two days, namely up
to and including 14 July 2002, would have been reasonable for the
plaintiff to consider accepting or rejecting
such tender.
[10] In
exercising its discretion as to costs, Mr Butler suggested, this
court should award the plaintiff only those costs incurred
prior to
12 July 2002, such costs not to include any expenses relating to the
experts who were consulted by the plaintiff but were
never called to
testify. The plaintiff, however, should be ordered to pay the
defendant’s costs incurred after 14 July 2002, such
being the usual
order under the circumstances. Had the plaintiff not decided to
abandon her British experts and “cast her bread
upon the water”
by seeking support from South African experts for a massive increase
of her claim, she would have avoided the risk
of herself being
mulcted in costs should she not be successful. There was no sound
reason, Mr Butler argued, for this court to deprive
the defendant of
costs it would not have incurred had the plaintiff not decided,
unjustifiably, to increase her initial claim many
times over.
[11] In regard to interest, Mr Butler relied on the provisions of
section 2A(4)
of Act 55 of 1975 cited above. He likewise relied on
this court’s power to vary or rectify its judgment in terms of rule
42, the
common law and the court’s inherent jurisdiction to do
justice between the parties. It was a procedural matter which
required the
court to revisit its original order, particularly in
exceptional circumstances such as the present.
[12] Rule
34 (12) provides:
If the court has given judgment on the question of costs in ignorance
of the offer or tender and it is brought to the notice of the
registrar, in writing, within five days after the date of judgment,
the question of costs shall be considered afresh in the light
of the
offer or tender: Provided that nothing in this subrule contained
shall affect the court’s discretion as to an award of costs.
The purpose of this sub-rule, as I understand it, is to give the
court the opportunity to consider the effect of the plaintiff’s
refusal to accept an offer of settlement, which could have put an end
to the matter. Since the court could not have known of the
circumstances existing at the time the tender was made, it is now
enabled, and required, to give all such circumstances full
consideration
and to decide afresh, in the exercise of its
discretion, what an appropriate order as to costs would be. See
Bloom
v General Accident and Life Assurance Corporation Ltd and Another
1967 (2) SA 116
(D) at 118H-119A;
Minister van Landboukrediet
en Grondbesit v McDonald
1969 (2) SA 473
(A) at 481A;
Tinta v
AA Mutual Insurance Association Ltd
1979 (4) SA 203
(E) at 205F;
Hassett v Santam Insurance Co Ltd
2000 (1) SA 403
(C) at
406E-F.
[13] In
this regard the court must bear in mind that the very purpose of rule
34 is to limit costs and avoid unnecessary litigation.
The procedure
envisaged is less cumbersome than that provided in the previous rule
relating to payment into court, thereby rendering
it relatively easy
for a court to consider whether the plaintiff's rejection of a tender
was reasonable under the circumstances.
See
Turbo Prop Service
Centre CC v Croock t/a Honest Air
1997 (4) SA 758
(W) at 764G.
[14] In
considering an amended costs order the court will usually allow
itself to be led by considerations of justice, fairness and
reasonableness subject, however, to its overriding and unfettered
discretion in this regard. See
Omega Africa Plastics (Pty) Ltd v
Swisstool Manufacturing Co (Pty) Ltd
1978 (4) SA 675
(A) at 678H;
Griffiths v Mutual & Federal Insurance Co Ltd
[1993] ZASCA 121
;
1994 (1) SA
535
(A) at 549A-B. Should the tender exceed the amount of the
judgment, the usual order would be that the defendant pay the
plaintiff's
costs up to the date of the tender and that the plaintiff
pay the defendant's costs incurred thereafter. This is not, however,
a
rule of thumb and the court can make a different apportionment if
it should deem it appropriate under the circumstances. See the
Omega
Africa Plastics
case (
supra
) at 677H-678A.
[15] In
this regard provision should be made for a reasonable period within
which the plaintiff may consider accepting or rejecting
the offer or
tender. This "period of deliberation" (
spatium
deliberandi
) is pre-eminently a matter falling within the court's
discretion. See
Hassett v Santam Insurance Co Ltd
2000 (1) SA
403
(C) at 406J-407E.
[16] In my
judgment of 2 August 2004, I gave substantial consideration (par
110-115) to the aspect of costs, particularly bearing
in mind that
the defendant had been substantially successful. Despite my
credibility findings against the plaintiff I decided to
make her a
substantial award on costs on the basis that she had probably acted
on the advice of her lawyers and medical experts.
Had I been aware of
the various tenders, however, I would certainly not have treated her
so generously. Although she doubtless allowed
herself to be advised
by her lawyers and South African medical experts, her motivation in
increasing her claim more than six-fold
appears to have been
mercenary rather than rational. This motivation in fact prompted her
to feign
sequelae
of the cheetah bite in an attempt to bolster
the new case. She persisted with this even when confronted with
generous offers of settlement,
the last being as recent as 10 March
2004.
[17] On
reconsideration of all the relevant facts and circumstances, and
accepting, as I do, that the first tender of 12 July 2002
exceeded
the award of damages to the plaintiff, I believe that there is no
reason why the usual order as to costs should not be made.
In all the
circumstances I deem it just, fair and reasonable that the plaintiff
be awarded her costs up to and including 14 July
2002, provision
being made for a reasonable
spatium deliberandi
of two days
from the date of tender. Such costs would not, however, include the
costs of those of her experts whom she consulted
but deliberately
chose not to call as witnesses at the trial. The defendant, in
turn, is fully entitled to its costs after 14 July
2002, including
those of two counsel where such were employed, and likewise including
the reasonable qualifying expenses of its various
experts (referred
to in par 7 above). In this regard I do not believe that a case has
been made out for the qualifying fees of the
defendant’s actuary,
Mr Koch, whose contribution to the resolution of the various issues
was, as I recall, negligible. Paragraph
6 of my order will
nevertheless have to be amended substantially. Mr Butler voiced no
objection to the existing paragraphs 7 and
8, which can hence remain
as they are.
[18] On
the issue of interest it is clear that the terms of
section 2A(4)
of
the
Prescribed Rate of Interest Act
55 of 1975
are applicable.
This means that interest on the past medical expenses and loss of
income fall to be interrupted from the date of
the first tender,
namely 12 July 2002, until the date of my award on 2 August 2004,
from which date it will continue to run. In view
of my ignorance of
the various tenders, I was unable to consider the said statutory
provisions in formulating my award on interest.
I fully agree with Mr
Butler that it is in the interests of justice for my order to be
corrected in this regard. This court clearly
has the inherent power
to do so in terms of the provisions of section 173 of the
Constitution, Act 108 of 1996, and in terms of the
provisions of rule
42. In any event courts have an inherent jurisdiction to revisit
their orders on the basis of the relevant common
law. See
West
Rand Estates Ltd v New Zealand Insurance Co Ltd
1926 AD 173
passim
;
Ex Parte Barclays Bank
1936 AD 481
at 485-486;
Firestone South Africa (Pty) Ltd v Gentiruco AG
1977 (4) SA
298
(A) at 306F-H.
[19] In
this regard it should be pointed out that the usual order as to
interest is that it is payable from the date of service of
summons
rather than the date of issue of summons, as appears from paragraph 4
of my order. This rectification is of a trivial nature
in that it
will not have a substantial effect on the amount of interest payable
to the plaintiff. It should nevertheless, in my view,
be effected.
[20] Inasmuch
as the defendant has been successful in the applications for
variation of the order as to interest and costs, the plaintiff
must
be ordered to pay the costs of such applications.
[21] In
the event:
1. The applications for variation of the order dated 2 August 2004 in
respect of interest and costs are granted with costs.
2. Paragraphs
4 and 6 of the order dated 2 August 2004 are amended to read as
follows:
4. Interest on the past medical expenses and past loss of income
shall accrue at the prescribed statutory rate:
4.1 from
the date of service of summons until 12 July 2002; and 4.2 from the
date of this judgment until date of payment.
No interest shall accrue during the period from 13 July 2002
until date of judgment.
6.
6.1 The defendant is directed to pay the plaintiff’s costs of
suit until 14 July 2002, excluding the costs of experts whose
evidence
was not led at the trial.
6.2 The plaintiff is directed to pay the defendant’s costs of
suit from 14 July 2002 to date, including:
6.2.1 the costs of two counsel where two counsel were employed;
6.2.2 the
reasonable qualifying expenses of the defendant’s experts, namely
Dr S J Sagor (orthopaedic surgeon), Dr F H Badenhorst
(neurologist),
Dr K Le Fevre (psychiatrist), Mr G van Wyk (clinical psychologist),
Mr G Fritz (industrial psychologist) and Ms J
Andrews (occupational
therapist).
D H VAN
ZYL
Judge of the High Court