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WRIGHT J
1. In this , mostly settled action in which Ms Maep a, as plaintiff seeks damages from
the defendant Fund I am, by agreement to decide only one narrow issue, relating
to counsel’s cost s.
2. The matter was set down for trial on 22 April 2025. Due to a shortage of Judges,
the parties’ legal practitioners were informed only late on 24 April 2025 that the
matter was allocated to me . I was informed of the allocation only during the late
morning of 25 April 2025. The matter proceeded over Teams, a few minutes later,
at 12 noon on 25 April 2025 .
3. Each side has prepared a draft order, recording the settlement and its terms and
reflecting the two different points of view relating to counsel’s costs. Mr Raikane
for Ms Maepa and Mr Klaas for the Fund present ed oral argument over Teams.
4. The parties have agreed that costs , to be paid by the Fund, should be on the party
and party B scale .
5. Mr Raika ne, for Ms Maepa asked for costs of counsel for 22 -25 April 2025, both
days included.
6. Mr Klaas tendered Ms Maepa’s counsel’s costs for 24 and 25 April 2025.
7. Mr Raikane sa id that he has held himself available since 22 April 2025 . He also
said that he spent some time , since then, dealing with the matter, for example
checking settlement proposals. I accept Mr Raikane’s word without hesitation.
8. Mr Klaas ask ed rhetorically, what if no Judge is available for ten days? In my view,
the question is valid.
9. Neither side can be blamed for the delay in the start of the hearing.
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10. By way of comparison, i t was long the practice at the Johannesburg Bar that
counsel did not charge waiting time even though they were obliged to remain
available and were not allowed to dou ble brief . This ha d the advantage , to litigants ,
and irrespective of whether or not a costs award was in favour of or against a
litigant , that a litigant did not have to pay for unused time.
11. I do not make the finding that counsel generally may not charge for waiting time.
That question is not before me. Nor do I make the finding that Mr Raikane may not
charge his client , Ms Maepa a trial fee for 22 and 23 April 2025. That question too,
is not be fore me. What is before me is a separate question, namely whether the
Fund should be liable for the costs of Ms Maepa’s counsel for 22 and 23 April 2025.
In my view, the Fund should not be saddled with such costs.
12. In cases such as the present, a balance needs to be drawn between compensating
adequately a litigant in whose favour a costs award is made and not over burdening
the other party who has to pay the costs. In my view, on present facts, counsel’s
trial fee for two days rather than four days is fair , at least insofar as the taxation of
these costs against the Fund is concerned.
13. The question of what may apply where punitive costs are awarded does not arise
here. Nor does t he question of collapse fees arise. I refrain from dealing with these
question s.
ORDER
1. An order is made ito the draft order at 17 -6 to 17 -10 of caselines.
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Instructed by Road Accident Fund
State Attorney