2
damages in relation of future medical expenses and the amount of general damages
to be awarded to Mr Waleng. Prior to the trial proceeding, the parties settled:
a) the merits: PRASA conceded liability in toto;
b) future loss of earning in respect of which PRASA would pay Mr Waleng
R585 000.
2] After hearing the evidence of Mr Waleng and several other experts, the
following quantum was awarded in addition to the settled amount of R585 000:
a) general damages: R80 000
b) future medical expenses: R57 667
3] As he had been successful, PRASA was ordered to pay Mr Waleng’s costs of
suit, which were to be taxed in accordance with Scale B.
4] On 22 July 20252 PRASA uploaded to CaseLines a Notice in terms of Rule 34
(11) and (12) (the reconsideration application). The basis upon which it seeks a
reconsideration of the costs order is the following:
a) on 19 May 2025, PRASA made a without prejudice offer3 to Waleng in
the sum of 1,2 million plus party and party costs;
b) the offer was rejected by Mr Waleng on 20 May 2025, by way of a formal
notice to that effect;
2 The notice is dated 21 May 2025 but that is clearly a mistake as judgment was only handed down on 15 July
2025
3 “34(1)In any action in which a sum of money is claimed, either alone or with any other relief, the defendant may
at any time unconditionally or without prejudice make a written offer to settle the plaintiff’s claim. Such offer
shall be signed either by the defendant himself or by his attorney if the latter has been authorised thereto in writing.
3
c) on 21 May 2025 PRASA again made a without prejudice offer. This time
the offer was in the amount of R 1,4 million plus party and party costs;
d) on the same date, a formal notice of rejection of this offer was filed.
5] Thus, it is clear from the facts that both of PRASA’S tenders exceeded the
quantum eventually granted. The question thus is whether the court should grant the
reconsideration application. That application was set down for hearing on 8 August
2025. At the hearing I raised the following issue: does the fact that PRASA made a
third settlement offer on the first date of trial, which led to settlement of a head of
damages, mean that the offer of 21 May 2025 lapsed?
6] As neither counsel had had the opportunity to consider this, I afforded them
each time to file further heads of argument on this issue. Those have been filed.
7] As stated supra, the issue is whether, by settling the plaintiff’s future loss of
earnings on 2 June 2025, PRASA’s offer of 1,4 million lapsed.
8] In Mdlalose v Road Accident Fund4 (Madlose) the court stated:
“I am of the view that it is correct that, if a defendant makes a second offer of
settlement, whether it is higher or lower than the first offer, the first offer falls away in
the sense that it is no longer open to acceptance by the plaintiff, save with the consent
of the parties or possibly pursuant to an order of court in terms of Rule 34(6). Obviously
the plaintiff would have no interest in the first offer if the second offer was higher. It
could never have been the intention of a defendant, if the second offer was lower, to
keep the first offer open for acceptance by the plaintiff.”
4 2000 (4) SA 876 (N) at 882 A - C
4
9] But the issue here is that the offer made on the first day of trial was not in
settlement of the total quantum - it settled but one of the three heads of damages. Also
at issue is the fact that the court was not told how the amount of R585 000 was
calculated and what facts and factors informed the offer and the acceptance.
Did the offer of R 1,4 million lapse?
10] Rules 34 (10), (11) and (12) state:
“(10) No offer or tender in terms of this rule made without prejudice shall be disclosed
to the court at any time before judgment has been given. No reference to such
offer or tender shall appear on any file in the office of the registrar containing
the papers in the said case.
(11) The fact that an offer or tender referred to in this rule has been made may be
brought to the notice of the court after judgment has been given as being
relevant to the question of costs.
(12) 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.“
11] In Naylor and Another v Jansen5 the purpose of Rule 34 was stated as follows
“[13] The purpose behind the rule is clear. It is designed to enable a defendant to avoid
further litigation and failing that to avoid liability for the costs of such litigation. The rule
is there not only to benefit a particular defendant, but for the public good generally as
Denning LJ made clear in Findlay v Railway Executive:-
5 2007 (1) SA 16 (SCA) paras 13 and 14
5
‘The hardship on the plaintiff in the instant case has to be weighed against the
disadvantages which would ensure if plaintiffs generally who have been offered
reasonable compensation were allowed to go to trial and run up costs with impunity.
The public good is better secured by allowing plaintiffs to go on to trial at their own risk
generally as to costs’
12] It is also clear that the general approach to a reconsideration of costs is that, if
the plaintiff’s award is less at the end of a trial than the offer of settlement, he or she
would be entitled to costs up to date of the offer plus a reasonable period in relation to
a spatium deliberendi. After that period expired, the plaintiff would be liable for the
defendant’s costs.
13] Rule 34(6) provides that a plaintiff or any party to an action may within 15 days
after the receipt of the offer “or thereafter with the written consent of the defendant or third
party or order of court, on such considerations as may be considered to be fair, accept any
offer or tender”.
14] Thus, Rule 34(6) provides for a spatium deliberendi period of 15 days. Of
course, where a tender is made less than 15 days before trial, that spatium deliberendi
period will be reduced or it renders the purpose thereof nugatory. In my view, spatium
deliberendi period will then be influenced by the type of claim, the evidence obtained,
who the plaintiff would need to consult in order to make an informed decision6 and the
interests of all parties involved.
6 Eg in a claim for damages, it may be prudent to consult the experts especially an actuary to recalculate
damages based on different scenarios
6
15] In Griffiths v Mutual and Federal Insurance Co Ltd 7 (Griffiths) the plaintiff’s
claim for damages stemmed from injuries suffered as a result of a motor vehicle
accident. By commencement of trial, the parties had settled general damages and past
hospital and related expenses8. The trial proceeded on the issue of loss of income.
Approximately two days before the trial, the defendant made an offer of settlement. As
it turned out, the offer substantially exceeded the sum eventually awarded to the
plaintiff.
16] In the main judgment of the court a quo, no order for costs was made. It was
subsequently brought to the trial Court’s notice that two days before trail commenced,
the defendant had made an offer to settle the plaintiff’s claim in an amount substantially
in excess of the sum awarded and that the offer was not accepted by the plaintiff. After
hearing argument on costs, the court a quo ordered the defendant to pay the plaintiff’s
costs up to a period which allowed a spatium deliberendi of seven court days and
ordered plaintiff to pay defendant’s costs thereafter.
17] The SCA on appeal, the court followed the decision in Omega African Plastics
(Pty) Ltd v Swisstool Manufacturing (Pty)Ltd9 in which Trollip JA stated:
“Rule 34 (7), in so far as it is relevant here, comprises two elements: (a) it affords the
plaintiff 10 days after receiving the notice of the defendant's payment into Court within
which to decide whether or not to accept it in settlement of his claim; and (b), if he does
accept it within that period, it obliges the Registrar to pay the money out to him. If he
does not accept it within that period, he cannot thereafter accept it and uplift the money
without the consent of the defendant or a Judge. Contrary to the contention for Omega
7 1994 (1) SA 535 (A)
8 It is not stated in the judgment precisely how long before trial this settlement occurred
9 1978 (4) SA 675 (A) at 678F - 679E
7
I think that element (a) does clearly embody a spatium deliberandi in the sense
referred to in the above -quoted extract from the judgment… It would indeed be
remarkable if the Rule did not afford some time or opportunity to enable a plaintiff,
faced with a payment into Court, to decide whether or not to accept it in settlement of
his claim. In regard to its effect on costs, the spatium deliberandi is, of course, subject
to the overriding discretion of the Court under the Rule on costs. No problem arises
where, after the payment into Court, no further costs are incurred during the spatium
deliberandi. In such cases the ordinary rule of apportio ning the costs between the
parties as at the date of the payment into Court will usually be applied. The problem
arises where, as here, the plaintiff incurs further costs during that period. That not
infrequently happens where a payment into Court is made just before or at the
commencement of the trial and the plaintiff has to continue with his preparations or
with the trial itself while he considers the offer in settlement. In that situation it may be
inequitable to apportion the costs as at the date of the payment into Court. On the other
hand, it does not follow that the Court, in apportioning the costs, must necessarily
accord the benefit of the full period of the spatium deliberandi to the plaintiff. The extent
to which it should be taken into account depends upon the particular circumstances of
each case, especially the stage of the proceedings when the money is paid into Court
and the reasonableness of the plaintiff's conduct thereafter and of any delay in making
his decision in accepting or rejecting the offer of settlement. But that the spatium
deliberandi must be taken into consideration in appropriate circumstances admits of
no doubt in my view...”10
18] PRASA argues that whilst the facts are similar in Griffiths, in casu Mr Waleng
rejected the offer on the day it was made and therefore the spatium deliberendi issue
rejected the offer on the day it was made and therefore the spatium deliberendi issue
does not arise. It argues that as a result, PRASA should be liable for Mr Waleng’s
10 Case references excluded
8
taxed costs up to and including the date of service of the Rule 34 tender (ie 21 May
2025) and that he should be liable for PRASA’s costs from 22 May 2025 to date of
finalization of the matter.
19] But in my view there are three glaring differences between the Griffiths case
and this one:
a) in Griffiths it appears that the settlement of some of the issues took place
prior to the Rule 34 tender. In casu, that was not the case: here the Rule
34 tender was made and rejected 3 days prior to trial and on the first day
of trial the parties settled loss of earnings;
b) furthermore, the Rule 34 tender was made in a globular amount – it does
not separate the heads of damages and the offer in relation to each as
was the case in Griffiths;
c) Griffiths proceeded on one issue only – here two heads of damages fall
to be decided.
20] Mr Hlongwane argues that the settlement of loss of earnings is a novus actus
interveniens, but I am not persuaded that this is the correct approach. A novus actus
interveniens is defined as “an independent, unconnected and extraneous factor which is not
foreseeable to the occurrence of harm after the defendant’s original conduct has occurred.”11
21] This is not that: this is an offer that is wholly connected to the action and issues
to be decided and that is intended to place plaintiff a risk for the pursuance of his cause
of action and in relation of the costs of the action.
11 The law of Delict in South Africa par 7.5 pg 134
10
For the plaintiff : Adv J Hlongwane
Instructed by : Nkuna Rose Attorneys
For the defendant : Adv FF Opperman
Instructed by : Norton Rose Fulbright Attorneys
Matter heard on : 08 August 2025
Heads of argument provided : 18 August 2025 and 25 August 2025
Judgment date : 5 September 2025