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REPUBLIC OF SOUTH AFRICA

NORTH GAUTENG HIGH COURT,

PRETORIA

Case No: 64411/2010

Date: 2 December 2013

Not reportable

Not of interest to other judges

In the matter between:

VAN NIEKERK, FRANCIS MARIA…………………………………………..PLAINTIFF

AND

ROAD ACCIDENT FUND…………………………………………………DEFENDANT

DATE OF HEARING: 29^th NOVEMBER 2013

DATE OF JUDGMENT: 02^nd DECEMBER 2013

JUDGMENT

MANAMELA AJ

[1] This is a third party compensation matter in which I granted an order for the separation of the questions or issues relating to the merits of the matter from questions or issues relating to quantum, on application by the plaintiff on Friday, 29^th November 2013. The trial thereafter proceeded exclusively on questions or issues relating to the merits of the matter and the questions or issues on quantum were postponed sine die. I eventually reserved judgment to decide on the outcome of the trial over the merits issues. This was impacted by the application or prayer by counsel acting for the plaintiff that a punitive costs order ought to be made against the defendant’s attorneys in respect of their conduct in this matter. I deal with the costs issue towards the end of this judgment.

[2] The merits of this matter are to be decided on the basis of the testimony of the plaintiff. No other witnesses testified at the trial and the defendant did not put forward its version either in the plea delivered or when the matter was argued before me last Friday.

[3] According to the plaintiff, it was raining around 21h30 on the 05^th June 2007 along the Olifantsnek Road in the Rustenburg area and the road was slippery as a result. This road is a double carriageway with two lanes on each side delineated by a barrier tine. She was driving in her six months old Hyundai Atos motor vehicle from Rustenburg heading to her place in Olifantsnek. In the winter night and the rural setting of this road, there was no other lighting and it was therefore dark and visibility relatively affected by those conditions. She was maintaining a speed of about 70 kilometres per hour, although when she approached the hill where the accident would happen she reduced speed. As she came up the hill driving in the outer lane of the double carriageway she noticed a truck which was standstill in a perpendicular line to the road. The truck blocked the lane she was using and partially the second lane closer to the other part of the road for vehicles heading the opposite direction. She avoided colliding with this truck by swerving towards the emergency lane and with this she ended up colliding with the railings on the edge of the road. Her vehicle was airborne and crashed. She doesn’t really remember what happened, from there onwards except that her friends who came to the scene helped her out of her vehicle. She also testified that, although she applied the brakes slightly, she avoided hitting heavy brakes. This is how she was taught and she thinks she did the best she could under the circumstances.

[4] Under cross-examination by counsel for the defendant, she was persistent with her version of events. When it was put to her that she could have avoided the accident by evading the truck into the second partially blocked [by the truck] lane instead of using the emergency lane, she stated that in her opinion the emergency lane was the safer lane to use as going on to the partially blocked lane may have resulted in her colliding with on-coming vehicles. She insisted that, she did what she could under the circumstances and did not have much time in taking evasive action as the truck was very close to her vehicle. She does not remember the speed limit at that portion of the road, but denied that, she was driving at a speed higher than around 70 kilometres per hour, when this was put to her. She punctuated, so to speak, her testimony by stating that she did what she could under the circumstances, including when it was put to her that she contributed to the causation of the accident.

[5] As stated above, the plaintiff was the only witness to testify and the plaintiff’s case was closed after her testimony. The defendant’s case was closed without any witness being called, including the driver of the insured vehicle.

[6] So it was quite expected when counsel for the plaintiff argued in closing that, there is nothing to gainsay the evidence of the plaintiff. The road she was on was partially and perpendicularly obstructed by the truck and she took reasonable evasive action by opting for the emergency lane. He argued further that, the defendant had not put forward a version of how the accident occurred and the attempt by its counsel to suggest that there was a better option than what the plaintiff did at the scene of the accident is only supposititious. After all the emergency lane is meant for situations like the one in which the plaintiff found herself, he argued. He concluded that, the plaintiff had acquitted herself on the onus and proved her case on a balance of probabilities.

[7] On behalf of the defendant, counsel argued that, bearing in mind the testimony of the plaintiff, there is an indication of sole negligence on her part or at least contributory negligence which justifies an apportionment on a ratio of 80:20 in favour of the plaintiff. This was rejected in reply, by counsel for the plaintiff. He retorted that there was no basis or justification for an apportionment on the basis argued by the defendant’s counsel or at all. For the plaintiff has succeeded in absolving herself of any possible negligence, he summed up. Then he [plaintiff’s counsel that is] redirected his argument towards the applicable costs order for the trial on the merits only. Again, this would enjoy my attention towards the end of this judgment

[8] For the plaintiff to succeed in her claim against the defendant, she has to meet the requirement in terms of section 17(1) of the Road Accident Fund Act 56 of 1996 of proving negligence for the statutory liability of the defendant [Goode v SA Mutual Fire and GeneraI insurance 1979 (4) SA 301 (W) and Klopper, H.B The Law of Third Party Compensation, (3ed), 2012 at page 75], It should be remembered that even a slightest degree of negligence on the part of the driver of the insured vehicle is sufficient to satisfy that requirement of negligence. Any negligence on her part which is relevant for the causation of the accident would suggest contributory negligence and justify apportionment of damages awarded by this court.

[9] The plaintiff appeared very relaxed when she testified before the court and was very impressive too. She answered all questions eloquently and didn’t yield even under inherent pressure of cross-examination. Her prevalent statement was that, I did the best I could under the circumstances and I agree with her on this. I do not think that, evading the blocking truck on the right side instead of the left side would have been the better option. I therefore accept her testimony as credible and that the probabilities favour her version than any other [Miller v Minister of Pensions 1947 2 All ER 372 and Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A)]. Further, I do not find any negligence on her side which contributed to causing the accident.

[10] Consequently, I find that the plaintiff succeeded in proving that, the negligence of the driver of the insured vehicle caused the accident and therefore the defendant is liable for the damages suffered and still to be proved by the plaintiff, when issues or questions relating to quantum are considered.

[11] Now, to the issue of the costs herein! Should this be on a punitive or normal scale? Counsel for the plaintiff submitted that, the conduct of the defendant’s attorneys herein warrants a punitive or special order as to costs. He submitted that, there was no response by the defendant’s attorneys to pre-trial questions despite an undertaking to do so and there was also general nonchalance by the defendant’s attorneys to the conduct of the proceedings in this matter. Joint minutes of experts were outstanding and the defendant had also failed to put up a version of how the accident occurred as required by the rules and the law. Counsel for the plaintiff submitted that, all these led to the postponement of the issues or a question relating to quantum as the plaintiff was ready to proceed with the matter on both quantum and merits. He submitted that, the plaintiffs two experts were ready to testify, including the expert that was present in court and excused by the court. It was also submitted that earlier that morning the defendant’s attorney was dismissive of the plaintiff’s attorney’s enquiry whether the defendant’s attorney would be attending court or not. The conduct of the defendant’s attorneys was in clear flagrant disregard of the practice manual, rules of this court, any sense of collegiality and constituted disrespect to the court, it was submitted. This (it was submitted) justified a de bonis proriis costs order against the defendant’s attorneys.

[12] In response, counsel for the defendant submitted that, there was no merit for a request for a punitive costs order, particularly a de bonis proriis costs order against the defendant’s attorneys. He submitted that the issues raised in support of this request by counsel for the plaintiff were relating to quantum and therefore out of place, as quantum issues were already postponed. He further, submitted that a request for a de bonis proriis costs order should be preceded by a notice and without such notice, this court could not entertain it, as the defendant’s attorneys were absent from the court. He later requested that, the issue or the matter be rather stood down to allow the defendant’s attorneys, either by affidavit or an appearance in court to defend or respond to the submissions made on behalf of the plaintiff in respect of the punitive costs order. He repeatedly stated that, the defendant’s attorneys’ conduct was due to lack of instructions from the defendant and was not due to wilful disregard on their part.

[13] In reply counsel for the plaintiff seemed to slightly gravitate from a de bonis proriis costs order towards one on attorney and own client scale against the defendant. The costs issue contributed to the standing down of this matter to the next court day, as I indicated above.

[14] The courts have entertained and granted de bonis propriis orders at all levels, including at the highest level. The Constitutional Court through the Honourable Moseneke DCJ stated the following in De Lacy v SA Post Office, CCT24/10; [2011] ZACC 17 at paragraph 121:

“...I nonetheless decline the invitation to make the costs order de bonis propriis against these legal representatives. An order of this nature would be justified where the conduct of a legal representative, that is not attributable to a litigant, calls for the court to express its displeasure. 'This would be the case, for instance, where there is nothing to suggest that the litigant has actively associated herself or himself with the conduct of the legal representative."

[footnotes are omitted]

[15] The same court had earlier on expressed this view in South African Liquor Traders’ Association and Others v Chairperson, Gauteng Liqour Board, and Others [2006] ZACC 7; 2009 (1) SA 565 (CC); 2006 (8) BCLR 901 (CC) at paragraph 54:

“...An order of costs dc bonis propriis is made against attorneys w'here a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the court’s displeasure. An attorney is an officer of the court and owes a court an appropriate level of professionalism and courtesy. Filing correspondence from the Constitutional Court without first reading it constitutes negligence of a severe degree. Nothing more need be added to the sorry tale already related to establish that this is an appropriate case for an order of costs de bonis propriis on the scale as between attorney and client. The order is made against the office of the State Attorney, not personally against the attorney concerned. This Court’s displeasure is primarily directed against the office of the State Attorney in Pretoria whose systems of training and supervision appear to be woefully inadequate.” [footnotes are omitted]

[16] Now on to what seemed a tentative request for a costs on attorney and own client scale, which I acknowledge may have been precipitated by my propositions to counsel for the defendant when the issue was argued. Let me point out here at the outset [on this issue] that I would not get entangled in the continuing discourse in our courts around whether there is a difference between costs on the scales of attorney and client, and attorney and own client. I actually accept the conclusion by the Flonourable Stegmann J [in Aircraft Completions Centre (Pty) Ltd v Rossouw [2003] 3 All SA 617 (W) at 677, 2004 (1) SA 123 (W)] that there is no difference between the two when a court order is to the effect that, costs on the latter scale are as taxed [see further Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa (5 ed), 2009, Juta at page 975]. However an order for an attorney and client costs invariably has to be preceded by a special prayer for it or notice has to be given that the order would be asked for [Sopher v Sopher 1957 (1) SA 598 (W) at 600D-E], although there are exceptions which I do not consider necessary to go into. There was no notice to the defendant or defendant’s attorneys that, a special costs order or punitive costs order would be asked for, as I do not consider a morning telephone call between attorneys to qualify as notice. However, nothing really turns on this, due to the order I am to make in this regard.

[17] The conduct of the defendant’s attorneys may have not been the best expected under the circumstances, but in my opinion do not warrant a de bonis propriis costs order. The attorneys are creatures of instructions and without instructions from clients there isn’t much that they can do, although the communication lines from the side of the defendant’s attorneys could have been worked a bit harder. Further, I did not find anything on the side of the defendant per se or due to the conduct of its attorneys that warrants departure from a normal costs order. Lastly on the issue, I did not understand the basis for separation of the merits from quantum issues to have been based on the conduct of the defendant or its attorneys.

[18] I therefore make an order that also reflect the sine die postponement of the quantum issues in the following terms:

(a) that, the issues relating to merits and the issues relating to quantum are separated and the issues relating to quantum be and are hereby postponed sine die;

(b) that, the defendant is ordered to pay to the plaintiff her proven or agreed damages.

(c) that, the defendant is ordered to pay the costs of this part of the trial on party and party scale

K MANAMELA

ACTING JUDGE OF THE HIGH COURT

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