Brand v Road Accident Fund (CA170/09) [2009] ZAECGHC 85 (30 November 2009)

Brand v Road Accident Fund (CA170/09) [2009] ZAECGHC 85 (30 November 2009)

The magistrate materially misdirected himself by limiting counsel's fees to the tariff and by adopting an unacceptable attitude towards the engagement of counsel. The complexity of the matter justified higher fees, and the restriction of counsel's engagement to 'special cases' is unfounded. The appellant's abandonment of part of her claim to bring it within the magistrate's court jurisdiction does not entitle her to a higher scale of costs, but the actual award was within the jurisdictional limit. The costs reserved on 8 August 2008 should have been awarded to the appellant, and the magistrate was not entitled to supplement his judgment with further orders. Fairness dictates that...

Citation
[2009] ZAECGHC 85
Parties
Appellant: Alice Mildred Brand; Respondent: Road Accident Fund
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
30 November 2009
Case Number
CA170/09
Procedural Posture
Civil Appeal / Appeal Against Costs Order in Trial Action
Outcome
Appeal upheld. Magistrate's costs order set aside and substituted.
Judges
Kroon, Plasket
Legal Topics
Costs Awards, Magistrates Court Tariff, Party and Party Costs, Discretion in Costs, Abandonment of Claim
Civil Procedure Costs Awards Magistrates Court Tariff Party and Party Costs Discretion in Costs Abandonment of Claim

Case Brief

Summary, issues, holding and outcome

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Parties

Alice Mildred Brand

Appellant

Road Accident Fund

Respondent

Procedural Posture

Civil Appeal / Appeal Against Costs Order in Trial Action

Legal Issues

  1. 1 Whether the magistrate erred in limiting counsel's fees to the tariff set out in the magistrates' court rules.
  2. 2 Whether the costs reserved on 8 August 2008 should have been awarded to the appellant.
  3. 3 Whether the magistrate's approach to the engagement of counsel and the abandonment of part of the claim was correct.

Ratio Decidendi

The magistrate materially misdirected himself by limiting counsel's fees to the tariff and by adopting an unacceptable attitude towards the engagement of counsel. The complexity of the matter justified higher fees, and the restriction of counsel's engagement to 'special cases' is unfounded. The appellant's abandonment of part of her claim to bring it within the magistrate's court jurisdiction does not entitle her to a higher scale of costs, but the actual award was within the jurisdictional limit. The costs reserved on 8 August 2008 should have been awarded to the appellant, and the magistrate was not entitled to supplement his judgment with further orders. Fairness dictates that...

Court Disposition

Appeal upheld. Magistrate's costs order set aside and substituted.

Orders

  • The defendant will pay the plaintiff's taxed party and party costs, including the costs of the hearing on 6 August 2008.
  • Counsel's fees are allowed in amounts not exceeding double the amounts set out in the relevant tariff contained in Part IV of Annexure 2 to the Rules.