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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 26025/20
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________
Date Signature
In the matter between:
IRANA SINGH N.O. PLAINTIFF
obo TLAPU: STOFFEL
AND
ROAD ACCIDENT FUND DEFENDANT
JUDGMENT
THIS JUDGEMENT HAS BEEN HANDED DOWN REMOTELY/ELECTRONICALLY
AND SHALL BE CIRCULATED TO THE PARTIES BY WAY OF E- MAIL/
UPLOADING ON CASELINES AND/OR COURT ONLINE. ITS DATE OF HAND
DOWN SHALL BE DEEMED TO BE DECEMBER 3, 2024
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NTANGA AJ:
Introduction
[1] Plaintiff instituted an action against the Road Accident Fund (“the Defendant ”)
for damages suffered as a result of injuries he sustained in a motor vehicle accident
which occurred on August 2, 2019, a long Hebron Road near Soshanguvhe, Pretoria.
At the time of the accident, P laintiff was a passenger in a motor vehicle bearing
registration number 0 […] which collided with motor vehicle bearing registration
number H[…].
[2] During the trial , no evidence was adduced regarding merits as Plaintiff and
Defendant advised the court that parties have reached a settlement regarding P ast
and Future Loss of I ncome as well as G eneral Damages in respect of plaintiff’s
claim. A draft order which incorporates the parties’ agreement was presented to the
court. The court is satisfied with the terms of the draft order regarding the Plaintiff’s
claim for Past and Future Loss of Income as well as General Damages.
Issues in dispute
[3] The court was called upon to determine the issue of costs. The essence of the
dispute between the parties is the scale on which costs should be awarded.
[4] Plaintiff seeks costs against D efendant on an attorney and own client scale.
The costs requested are in respect of November 13, 2024, November 14, 2024,
November 15, 2024, November 18, 2024, and November 19, 2024.
[5] Defendant tendered costs on a party-to-party scale in respect of November
13, 2024, November 14, 2024, and November 15, 2024. No costs were tendered for
November 18, 2024, and November 19, 2024.
Submissions
[6] Plaintiff’s Counsel provided a brief background as a basis for the claim of
costs on an attorney and own client scale. He argued that the costs should be for
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five days. He submitted that the matter was allocated for hearing on November 13,
2024. He attended Court on the day and was advised that the matter would not
proceed as Defendant’s legal representative was booked off sick.
[7] After making enquiries at the Defendant’s offices a claims handler replied in
an email expressing surprise that the matter was set down for hearing on that day. In
the email the claims handler indicated that she had just realized that the matter was
set down for hearing on the date of trial.
[8] The matter was allocated the following day on November 14, 2024 before a
different judge. Again, there was no appearance on behalf of the Defendant as its
legal representative was still booked off sick.
[9] On November 15, 2024 the matter was allocated for hearing before a third
Judge. On the day there was no appearance on behalf of Defendant. He then looked
for the Defendant’s legal representative and found him running a full three- day trial
for a different matter. He argued that this justifies punitive costs. The matter was
then returned for further allocation.
[10] Ms Ameersingh made herself available to take over the matter on November
15, 2024. The Defendant made an offer for Past and Future Loss of Income of
November 15, 2024. There was no offer or rejection of general damages on
November 15, 2024. Plaintiff’s Counsel argued that Defendant’s failure to reject or
admit General Damages kept the matter alive. According to him, Plaintiff was
justified to attend Court to prove his case for General Damages. Defendant seeks
costs on an attorney and own client scale as a punitive costs order against
Defendant.
[11] The basis of Plaintiff’s argument was that the legal representatives who
represent the Defendant are employees of the Defendant, and their salaries are paid
by the Defendant. He argued that the Defendant should take responsibility for its
employees’ failure to appear in Court on trial day. Hence his argument for punitive
costs against Defendant.
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[12] On November 18, 2024 there was no allocation for the matter and there were
no appearances by either of the parties.
[13] The matter was then allocated for hearing before me on November 19, 2024.
[14] Defendant submitted that the claim was lodged in 2020 and in 2021 there was
a widespread COVID-19 pandemic. This affected the speed that the Defendant could
process the claim. The Road Accident Fund Act
1 requires that supplementary
documents must be submitted to enable Defendant to make an assessment of the
claim that has been lodged.
[15] Defendant called Mr Ngomane as a witness who was initially appointed as its
legal presentative. Mr Ngomane confirmed that he was allocated the matter as
Defendant’s legal representative. Unfortunately, he fell sick on November 13, 2024.
When Plaintiff’s attorney contacted him to enquire about his whereabouts, he
indicated that he was at a medical facility. He sent an email to alert the Judge that he
was unable to attend Court as he was at a medical facility. 2 He also communicated
with Plaintiff’s Counsel about his situation.
[16] He testified that he was made aware of the allocation of the matter to another
Judge on November 15, 2024. At that stage there was only one outstanding issue
and that being the General Damages. He then sent a message indicating that he
was in another Court. He received a message from Plaintiff’s attorney enquiring
about General Damages. He requested a ballpark figure and Plaintiff’s attorney
indicated R2 Million. In his reply he asked if the Loss of Earnings was accepted,
what was the reason for proceeding with the matter as there was no acceptance or
rejection of General Damages. In his view the Court had no jurisdiction to determine
General Damages.
[17] Under cross-examination he testified that the standard procedure is that they
get allocated matters a week before the hearing date. They do not deal with claims
handlers, instead, there is a person who liaises with Court officials to obtain a court
1 Road Accident Fund Act 56 of 1996.
2 See Caselines on 076-1
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roll, thereafter, matters are allocated to State Attorneys. This person has an office at
the State Attorney’s offices. When he experienced health difficulties, he informed the
person allocating the matters to them.
[18] He was summoned to come to Court on November 13, 2024, and he advised
the Judge that he was heavily medicated and could not proceed with the trial. After
the offer for settlement of the matter for Loss of Earnings he was allocated another
matter, hence his appearance in Court for a different matter on November 15, 2024.
[19] Defendant’s Counsel argued that the matter stood down to Monday at the
instance of Plaintiff’s Counsel. She attended at the offices of the Deputy Judge
President on November 18, 2024 and was advised that the matter was not allocated
to a Judge. She argued that according to Road Accident Fund v Duma
3 the Supreme
Court of Appeal stated that the Court does not have jurisdiction until the Fund has
either accepted or rejected General Damages. If the Fund has accepted or rejected
General Damages, the issue must be submitted to Health Professions Council of
South Africa (“HPCSA”).
[20] Defendant’s Counsel further argued that notwithstanding her submission that
the court has no jurisdiction to determine General Damages, Plaintiff is not without
remedy. Plaintiff can exhaust remedies available in terms of the Promotion of
Administrative Justice Act No. 3 of 2000 (“PAJA”).
[21] What the Supreme Court of Appeal said in Road Accident Fund v Duma is the
following:
“…
[19] … In accordance with the model that the legislature chose to adopt, the
decision whether or not the injury of a third party is serious enough to meet
the threshold requirement for an award of general damages was conferred on
the Fund and not the court. That much appears from the stipulation in
regulation 3(3)(c) that the Fund shall only be obliged to pay general damages
3 Road Accident Fund v Duma 2013 (6) SA 9 SCA
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if the Fund – and not the court – is satisfied that the injury has correctly been
assessed in accordance with the RAF 4 form as serious. Unless the Fund is
so satisfied the plaintiff simply has no claim for general damages. This means
that unless the plaintiff can establish the jurisdictional fact that the Fund is so
satisfied, the court has no jurisdiction to entertain the claim for general
damages against the Fund. Stated somewhat differently, in order for the court
to consider a claim for general damages, the third party must satisfy the Fund,
not the court, that his or her injury was serious. Appreciation of this basic
principle, I think, leads one to the following conclusions:
(a) Since the Fund is an organ of State as defined in s 239 of the
Constitution and is performing a public function in terms of legislation, its
decision in terms of regulations 3(3)(c)(d), whether or not the RAF 4 form
correctly assessed the claimant’s injury as ‘serious’, constitutes
‘administrative action’ as contemplated by the Promotion of Administrative
Justice Act 3 of 2000 (PAJA). (A ‘decision’ is defined in PAJA to include the
making of a determination.) The position is therefore governed by the
provisions of PAJA.
(b) If the Fund should fail to make a decision within reasonable time, the
plaintiff’s remedy is under PAJA.
(c) If the Fund should take a decision against the plaintiff, that decision
cannot be ignored simply because it was not taken within a reasonable time
or because no legal or medical basis is provided for the decision or because
the court does not agree with the reasons given.
(d) A decision by the Fund is subject to an internal administrative appeal to
an appeal tribunal.
(e) Neither the decision of the Fund nor the decision of the appeal tribunal
is subject to an appeal to the court. The court’s control over these decisions is
by means of the review proceedings under PAJA.
…
[20] To recapitulate; if the Fund rejects the RAF 4 form – with or without
proper reasons – it means that the requirement that the Fund must be
satisfied that the injury is serious has not been met. The court simply has no
jurisdiction to entertain the claim. The plaintiff’s remedy is to take the rejection
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on appeal in terms of regulation 3(4). It follows that the rejection cannot be
ignored merely because it was not raised within a reasonable time. This does
not mean, as was suggested, for instance in Louw v Road Accident Fund…
that the Fund can avoid and frustrate every claim against it indefinitely by
simply not taking a decision either way. The solution is to be found in s 6(2)(g)
read with s 6(3) of PAJA. These sections provide that if an administrative
authority unreasonably delays to take a decision in circumstances where
there is no period prescribed for that decision, an application can be brought
for judicial review of the failure to take the decision”.
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[22] To further substantiate her argument Defendant’s Counsel relied o n the
Supreme Court of Appeal judgment of Road Accident Fund v Faria 5 which followed
the RAF V Duma 6 decision on the procedure and the law that obtains regarding
General Damages claims. She argued that the case ended on November 15, 2024
when the offer for Loss of Income was made and accepted. The matter should have
been removed from the trial court roll.
[23] Upon reading the papers that were filed, I noted that an email from
Defendant’s Counsel indicates an offer for settlement of Loss of Earnings and
concludes by stating that “GENERAL DAMAGES to follow”.
[24] On acceptance of this offer by the Plaintiff what then remained to be resolved
was the issue of General Damages. Plaintiff’s Counsel argued that the RAF V
Duma
7 decision does not say that the Court does not have jurisdiction to determine
General Damages. He argued that Plaintiff was entitled to refer the matter to Court
for resolution of General Damages. I do not agree with this submission. As indicated
above, the Supreme Court of Appeal has clearly settled this area of the law.
[25] Applying the decision of the RAF v Duma, this Court would have no
jurisdiction to determine General Damages. Once the issue of Past and Future Loss
of Income was settled, what remained was for the parties to refer the settlement
4 See note 3 supra.
5 RAF v Faria 2014 (6) SA 19 (SCA).
6 See note 3 supra.
7 See note 3 supra.
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agreement to be made an order of the Court. Regarding General Damages , the
matter ought not to have been referred to trial Court as the Court would not have
jurisdiction to determine General Damages. Plaintiff had at his disposal the remedies
set out in the RAF v Duma decision, including PAJA remedies as well as referral to
HPCSA.
[26] This Court’s finding is that once the matter was settled on Loss of Past and
Future Income, it was not competent for Plaintiff to still refer the matter to trial court
for determination of General Damages.
[27] On the issue of costs on an attorney and own client scale, there are various
factors which guide the court on whether such a punitive costs order is justified. The
unreasonable manner in which a litigant conduct itself is one of the factors to be
considered.
8 In Boost Sports v SA Breweries the Supreme Court of Appeal stated
the following:
“…
[27] In the language of Lombard (at 877), when a company has everything to
gain and nothing to lose, it would be putting a premium upon vexatious and
speculative actions if such practice (namely compelling security) were not
adopted. In re Alluvial Creek Ltd 1929 CPD 532 at 535 Gardiner J said in the
context of punitive costs order:
‘Now sometimes such an order is given because of something in the conduct
of a party which the Court considers should be punished, malice, misleading
the Court and things like that, but I think the order may also be granted
without any reflection upon the party where the proceedings are vexatious,
and by vexatious I mean where they have the effect of being vexatious,
although the intent may not have been that they should be vexatious. There
are people who enter into litigation with the most upright purpose and a most
firm belief in the justice of their cause, and yet whose proceedings may be
8 See Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd 2015 (5) SA 38 (SCA) .
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regarded as vexatious when they put the other side to unnecessary trouble
and expense which the other side ought not to bear’.9
[28] Regarding the grounds upon which the punitive costs order on an attorney
and own client scale may be awarded the court in Machett v Pretorious and Others
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stated that:
“…
[8] Costs on an attorney and client scale is not to be awarded lightly and
should be considered in the light that a person who exercised a right to obtain
a judicial decision not be penalized for doing so. The grounds upon which
such an order may be granted is where a party has been guilty of dishonesty
or fraud or was vexatious or malicious or for frivolous motives brought the said
application or action”.
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[29] In Public Protector v South African Reserve Bank
12 the Constitutional Court
stated the following:
“… Costs on an attorney and client scale are to be awarded where there is
fraudulent, dishonest, vexatious conduct and conduct that amounts to an
abuse of court process. As correctly stated by the Labour Appeal Court-
‘(t)he scale of attorney and client is an extraordinary one which should be
reserved for cases where it can be found that a litigant conducted itself in a
clear and indubitably vexatious and reprehensible [manner]. Such an award is
exceptional and is intended to be very punitive and indicative of extreme
opprobrium’.
…”.
[30] In Mkhatshwa and Others v Mkhatshwa
13 the Constitutional Court stated that:
“Generally speaking, punitive costs are not frequently made, and exceptional
circumstances must exist before they are warranted”.14
9 See note 8 supra.
10 Matchett v Pretorious and Others (3119/2022) [2022] ZAKZPHC 60 (12 October 2022).
11 See note 10 supra.
12 Public Protector v South African Reserve Bank 2019 (6) SA 253 CC.
13 Mkhatshwa and Others v Mkhatshwa and Others [2021] (10) BCLR 1191 (CC).
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[31] Before concluding this issue, it is important to summarize the basis upon
which Plaintiff claims for punitive costs on an attorney and own client scale. Plaintiff’s
argument is based on non-appearance by Defendant’s Counsel on the dates that the
matter was scheduled for hearing. Plaintiff argues that Defendant should have found
a substitute legal representative upon being made aware of unavailability of the
allocated legal representative. He argued that the Defendant is the employer of the
legal representatives not the State Attorney. This argument was not sustained by
any evidence. On the contrary, Mr Ngomane testified that they are allocated matters
by someone employed by the State Attorney.
[32] As indicated above, the matter was settled between the parties on November
15, 2024 in respect of Loss of Past and Future Income. Defendant tendered costs on
a party-to-party scale. Later, and before the matter appeared before me, parties had
also settled on General Damages.
[33] There is no tender for costs for November 18, 2024, and November 19, 2024.
It is common cause that the matter was not allocated for hearing on November 18,
2024.
[34] When the matter appeared before me on November 19, 2024, parties had
settled on Loss of Past and Future Loss of Income and General Damages. What
remained was to make the draft order arising from the settlement agreement an
order of court and a determination on whether Plaintiff is entitled to costs on an
attorney and client scale.
[35] It is trite that the award of costs is within the court’s discretion. This discretion
is exercised judiciously upon consideration of all relevant factors. The purpose of the
cost award is to mitigate against successful litigants being out of pocket because of
litigation process that they should not have been involved in but for the opponent ’s
conduct in such litigation.
15 Punitive costs are awarded to alleviate the successful
14 See note 13 supra.
15Vehicle Delivery Services a division of Onelogix (Pty) Ltd v Key Group and Another (4655/2021)
[2023] ZAFSHC 141 (11 May 2023).
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litigant’s financial hardship endured because of the litigation. Exceptional
circumstances must exist before punitive costs are awarded.16
[36] I am not persuaded that Defendant conducted itself in an unreasonable
manner that justifies a punitive costs order. Defendant took steps to appoint a legal
representative who fell sick on the date of hearing. This is clearly beyond control of
the Defendant; I do not believe that Defendant should be mulcted with punitive costs
arising from non- appearance occasioned by the ill health of its legal representative.
Also, the matter was not allocated for hearing on November 18, 2024, there is
therefore no party entitled to costs for November 18, 2024.
[37] What then remains is appearance before me on November 19, 2024. I have
already stated that this matter was not legally competent for hearing at trial court on
November 19, 2024 as the trial court has no jurisdiction to determine General
Damages. At the very least, parties could appear in the settlement court to seek an
order making the settlement agreement an order of the court. This is because when
parties appeared before me the matter was already settled for Loss of Past and
Future Income and General Damages. I see no reason for a punitive cost order in
this regard.
[38] In the result I make the following order:
1. In respect of Plaintiff’s claim for Past and Future Loss of Income and
General Damages an order is made in terms of the amended draft order
marked “X”.
2. The Defendant shall pay the Plaintiff’s party and party legal costs on
the applicable High Court scale to date hereof, including the costs of
Plaintiff’s counsel for November 13, 2024, November 14, 2024, November 15,
2024 on a Party and Party Scale C, and the preparation and qualifying fees of
the Plaintiff’s experts, if any. The said costs shall be payable within 14 days of
16 See note 14 supra.
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the date of taxation or agreed settlement of the party and party Bill of Costs,
whereafter interest shall be payable at the rate of 7,75% p.a.
3. The Defendant shall pay the Plaintiff’s party and party legal costs,
including the costs of Plaintiff’s counsel for November 19, 2024 on a Party
and Party costs on the High Court scale. The said costs shall be payable
within 14 days of the date of taxation or agreed settlement of the party and
party Bill of Costs, whereafter interest shall be payable at the rate of 7,75%
p.a.
M NTANGA
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG LOCAL DIVISION
Date of Hearing: 19 November 2024
Date of Judgement: 3 December 2024
Appearances:
Plaintiff’s Counsel: Adv Khan
Instructed by: RA Seedat Attorneys
Defendant’s Counsel: Ms Ameersingh
Instructed by: State Attorney - Johannesburg