Kanono v Road Accident Fund (7072/08) [2010] ZAFSHC 47 (13 May 2010)

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC

OF SOUTH AFRICA

Case No. : 7072/08

In the matter between:-

TSELE REGINALD KANONO Plaintiff

and

THE ROAD ACCIDENT FUND Defendant

_____________

JUDGEMENT BY: BOONZAAIER,

AJ

HEARD ON: 5 MAY 2010

DELIVERED ON: 13 MAY 2010

Boonzaaier, AJ

[1] The Plaintiff instituted action in the High Court against the Defendant for payment in the amount of R124 919, 24 as and for damages

sustained by her as a consequence of injuries suffered in a motor vehicle accident.

[2] The Plaintiff has chosen the High Court as appropriate forum to institute proceedings.

[3] The merits and quantum of damages were settled in the amount of R24 919,24 being special damages. The Defendant tendered party and party costs on Magistrates Court scale and increased advocates fees. The whole amount of R100 000 for special damages was abandoned by Plaintiff.

[4] Counsel for Plaintiff argued that the Defendant never objected to the High Court’s jurisdiction before trial even when Defendant had ample opportunity to do so during the R37 conference.

[5] It was also argued that Defendant had sufficient time to settle the matter before the trial date and all the costs could have been

prevented.

[6] Counsel for Defendant argued that proper investigation had to be done by Defendant to consider the claim and that Defendant had indeed tried to settle the claim. In fact, fellow passengers’ claims were finalised with the same firm of attorneys who instituted action on behalf of the Plaintiff.

From the beginning it was clear that Plaintiff’s claim would be

limited.

[7] Even the general rule, viz that costs follows the event as argued by Adv Coetzer, is subject to the overriding principle that the court has a judicial discretion in awarding costs as it was indicated in the case of JONKER v SCHULTZ 2002 (2) SA 360.

[8] The fact that the Plaintiff claimed more than she succeeded in recovering is indeed not sufficient ground for refusing her costs or to justify the court in depriving her of costs. The claim must be excessive, or grossly disproportionate to the amount found to be due, before that would be done.

[9] The injuries were however described in the indictment as

“plaintiff suffered minor bodily injuries to the head as well as fairly severe injuries to the chest which include laceration of the left side of the face and fracture of the left ‘scapula’”.

[10] The purpose of an award of cost to a successful party/litigant is to indemnify him for the expense to which he has been put by having unjustly been compelled to initiate or defend litigation, as the case may be.

[11] The cost order is not intended to be compensation for a risk to which a litigant has been exposed, but a refund of expenses actually incurred PAYEN COMPONENTS SA LTD v BOVIC GASKETS CC 1999 (2) SA 409 (W) 417. The award of costs is a matter wholly within the discretion of the court, but this is a judicial discretion and must be exercise on grounds upon which a reasonable person could have come to the conclusion arrived at.

[12] After due consideration of the facts I also came to the conclusion that this matter did not “present considerable difficulties in fact or law” as was indicated in the BARNARD v SA MUTUAL FIRE & GENERAL INSURANCE CO LTD 1979 (2) SA 1012 ( SE) case. The Plaintiff had been over optimistic in regard to the amount she claimed as damages.

[13] Having regard to these factors and bearing in mind the principles I have set out above and the submissions been made by counsel it would be unfair to burden the Defendant with costs on the High Court scale.

[14] Order

The costs to be taxed on scale applicable in the Magistrate’s Court.

____

A. S. BOONZAAIER, AJ

On behalf of plaintiff: Adv J C Coetzer

Instructed by:

Honey & Partners

BLOEMFONTEIN

On behalf of defendant: Mr. Phaleng

A. P. Ledwaba Incorporated:

c/o Israel & Sackstein

(Matsepes)