du Toit obo Nkuna v Road Accident Fund (454/2010) [2021] ZANCHC 66 (17 December 2021)

du Toit obo Nkuna v Road Accident Fund (454/2010) [2021] ZANCHC 66 (17 December 2021)

The court found that Rule 34 does not apply to a plaintiff's offer unless the plaintiff is a defendant in reconvention. The plaintiff's offer of 14 October 2020 did not employ the necessary wording to qualify as a proper Calderbank offer, nor did it sufficiently alert the defendant to the risk of a punitive costs order. Even if the offer were admissible, the minimal difference between the offer and the amount awarded did not constitute a fair discount, and the defendant's failure to respond, while unreasonable, did not justify a special costs order. The application for a special costs order was therefore dismissed.

Citation
[2021] ZANCHC 66
Parties
Applicant: Adv AJ du Toit N.O. on behalf of Mawethu Maxwell Nkuna; Respondent: Road Accident Fund
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
17 December 2021
Case Number
454/2010
Procedural Posture
Special Costs Application / Post Judgment Costs Application
Outcome
Plaintiff's application for a special costs order is dismissed.
Judges
A Eillert
Legal Topics
Costs Orders, Calderbank Offer, Rule 34, Attorney and Client Costs
Civil Procedure Costs Orders Calderbank Offer Rule 34 Attorney and Client Costs

Case Brief

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Parties

Adv AJ du Toit N.O. on behalf of Mawethu Maxwell Nkuna

Applicant

Road Accident Fund

Respondent

Procedural Posture

Special Costs Application / Post Judgment Costs Application

Legal Issues

  1. 1 Whether the plaintiff's offer of 14 October 2020 qualifies as a proper Calderbank offer admissible for a special costs order.
  2. 2 Whether Rule 34 applies to a plaintiff's Calderbank offer in these circumstances.
  3. 3 Whether the defendant's conduct warrants a punitive costs order on the attorney and client scale.

Ratio Decidendi

The court found that Rule 34 does not apply to a plaintiff's offer unless the plaintiff is a defendant in reconvention. The plaintiff's offer of 14 October 2020 did not employ the necessary wording to qualify as a proper Calderbank offer, nor did it sufficiently alert the defendant to the risk of a punitive costs order. Even if the offer were admissible, the minimal difference between the offer and the amount awarded did not constitute a fair discount, and the defendant's failure to respond, while unreasonable, did not justify a special costs order. The application for a special costs order was therefore dismissed.

Court Disposition

Plaintiff's application for a special costs order is dismissed.

Orders

  • The plaintiff's application dated 22 February 2021 for a special costs order against the defendant is hereby dismissed.