Du Toit N.O obo Nkuna v Road Accident Fund (Leave to Appeal) (545/2010) [2022] ZANCHC 76 (16 November 2022)

Du Toit N.O obo Nkuna v Road Accident Fund (Leave to Appeal) (545/2010) [2022] ZANCHC 76 (16 November 2022)

The court found that the applicant's first ground for leave to appeal was based on a misinterpretation of the judgment, as the mechanism of a Calderbank offer was not found to be unavailable in principle. However, the court held that the applicant's offer was inadmissible for costs purposes due to its wording, which did not properly qualify as a Calderbank offer. The court acknowledged that only two South African cases have considered Calderbank offers, and the precise requirements for their formulation remain unsettled. The court determined that reasonable prospects of success exist on the third to ninth grounds for leave to appeal, particularly regarding the formulation and...

Citation
[2022] ZANCHC 76
Parties
Applicant: Advocate Albertus Johannes Du Toit N.O. obo Mawethu Maxwell Nkuna; Respondent: Road Accident Fund
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
16 November 2022
Case Number
545/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Costs Judgment
Outcome
Leave to appeal granted to the Full Bench of the Northern Cape High Court in respect of the judgment and order of 17 December 2021.
Judges
Eillert
Legal Topics
Costs Orders, Calderbank Offer, Rule 34, Leave to Appeal, Punitive Costs
Civil Procedure Costs Orders Calderbank Offer Rule 34 Leave to Appeal Punitive Costs

Case Brief

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Parties

Advocate Albertus Johannes Du Toit N.O. obo Mawethu Maxwell Nkuna

Applicant

Road Accident Fund

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Costs Judgment

Legal Issues

  1. 1 Whether the applicant's Calderbank offer was admissible and properly formulated for consideration of costs.
  2. 2 Whether the respondent acted unreasonably in failing to accept the Calderbank offer, justifying a punitive costs order.
  3. 3 Whether the applicant's uncontested application and allegations of fact warranted a special costs order.

Ratio Decidendi

The court found that the applicant's first ground for leave to appeal was based on a misinterpretation of the judgment, as the mechanism of a Calderbank offer was not found to be unavailable in principle. However, the court held that the applicant's offer was inadmissible for costs purposes due to its wording, which did not properly qualify as a Calderbank offer. The court acknowledged that only two South African cases have considered Calderbank offers, and the precise requirements for their formulation remain unsettled. The court determined that reasonable prospects of success exist on the third to ninth grounds for leave to appeal, particularly regarding the formulation and...

Court Disposition

Leave to appeal granted to the Full Bench of the Northern Cape High Court in respect of the judgment and order of 17 December 2021.

Orders

  • The applicant is granted leave to appeal to the Full Bench of this Court in respect of the judgment and order of 17 December 2021.