Letlape v Road Accident Fund (207/06) [2007] ZANWHC 44 (23 August 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: 207/2006

In the matter between:

GABAIPHIWI BEATRICE LETLAPE

and

THE ROAD ACCIDENT FUND

CIVIL MATTER

DATE OF HEARING : 20 AUGUST 2007

DATE OF JUDGMENT : 23 AUGUST 2007

COUNSEL FOR THE PLAINTIFF : ADV

A ROSSOUW

COUNSEL FOR THE RESPONDENT: ADV

N GUTTA

JUDGMENT

SWART AJ:

[1] Plaintiff claimed inter alia for loss of maintenance, on behalf of her minor child, being damages suffered as a result of a motor vehicle collision that caused the death of her husband, and father of the minor child.

[2] The merits were settled at a previous occasion and the matter was set down for the trial on quantum only.

[3] On the morning of the first day of trial, the parties settled the quantum on the basis that Defendant is to pay Plaintiff an amount of R33 750-00 (thirty three thousand seven hundred and fifty rand) in full and final settlement together with costs on the Magistrates Court scale.

[4] The only issue remaining is the costs which Plaintiff incurred towards an expert report compiled by Dr I E Walters, an Educational Psychologist.

[5] The report sets out the purpose under the heading “Goals of the Report” and it reads as follows:-

“To determine the level of functioning regarding her reading, spelling, emotional, and language.

To determine whether psychological support would be necessary in future.

To determine the scope of psychological support.

To determine her cognitive potential in order to recommend career paths for study purposes.

To determine the impact of the accident on the family life.

To sketch a picture of the families’ careers and qualifications.

[6] During argument counsel on behalf of Plaintiff argued that the report would have been of definite assistance to the Court in coming to the conclusion that the minor child would be a probable candidate for a post-matric qualification.

[7] From the report it is clear that the focus was indeed to establish just that. A considerable part of the report refer to background information, work history of the family, evaluation of the minor child’s intellectual capacity, scholastic evaluation, evaluation of facets related to her learning, intent and recommendation for study purposes.

[8] This is also clear from the conclusion that Dr Walters arrives at in paragraph 6 of the report when the following is stated:-

“As already stated Tsholofelo would be able to receive matric exemption and study at either a Technicon or a University. Therefore it can be stated that Tsholofelo would also be able and would be interested in obtaining qualifications after her matriculation (such as a degree).

It is clear that especially the women in her family and her mother’s family all persevered and completed their studies after they matriculated. Some of the family members are currently studying abroad and others have achieved the highest sport in their careers (started their own businesses).”

[9] From the report it is quite clear that the information the expert relied on was to a large extent based on the background information, and work history of the family and the child’s scholastic achievements.

[10] The Plaintiff is currently a geography teacher at Rauwane Sepeng High School. The minor child attended a crèche called Wendy house in Safari Gardens. She did her primary schooling at Fields Primary in Rustenburg. The secondary school that she attends is a convent called Sally Park Secondary in Rustenburg. She has never failed and has always achieved average or above average marks for most of her subjects. According to Plaintiff and her current teachers she is a well adjusted child who socialise easily with others. She displays a pristine attitude towards life.

[11] The aunts and uncle of the minor child are well educated. Her sister Ida obtained a Wits Technicon diploma in fashion design and was awarded a bursary to study in Germany on export trade. Her brother Edward is an Entrepreneur in IT who attended Oxford College for one year in IT studies.

[12] Counsel on behalf of Defendant argued that such a lengthy report to establish whether the minor child may be a suitable candidate for tertiary education was unnecessary as such evidence could readily have been led through the mother, schoolteachers and the minor child herself. I agree.

[13] I can see no reason why such information should have been led through a report as it clearly has it’s origin from the Plaintiff.

[14] Only one aspect arising from the report may have been of some assistance to the Court and that is the goal to determine the scope of psychological support. In this regard not much can be obtained from the report itself, suffice to refer to the paragraph under the heading “Therapy”, which reads as follows:-

“Tsholofelo has a fear of failure. As well as a fear that other family members will be taken from her because of unforeseen circumstances. This will be dealt with.

12 sessions (an hour each) @ R42-00 per hour should cover this.”

[15] This aspect of the report was not challenged by counsel on behalf of the Defendant and I must therefore accept that it played some role in arriving at the settlement, alternatively it could have been of assistance to the Court.

[16] I would respectfully associate myself with the approach adopted by Price J in Jenkins v J A Boiler Makers, Iron and Steel Workers vs Ship Builders Soceity 1946 WLD 15 at 18 where the learned Judge states:-

“When a case has been disposed of by a offer which concedes the main claim and the costs of the whole case have still to be decided, I think the Court must do its best with the material at its disposal to make a fair allocation of costs, employing said legal principles as are applicable to the situation. This is much to be preferred to laying down a principle which requires court to investigate dead issues to see who would have won on such issues …”

[17] In Fripp vs Gibbon and Co 1913 AD 354, an appeal only on costs, De Villiers JP at 363 dealt with the matter as follows:-

“I agree that as a rule it is fair and just that the costs should follow the event, whether of claim or counterclaim. But I cannot agree with the view that the unsuccessful party should bear the burden of all the costs simply on the ground that in the final result he is the unsuccessful party. To me it seems more in accordance with the principles of equity and justice that costs incurred in the course of litigation which judge by the event or events, prove to have been unnecessarily or ineffectively incurred should, as a rule, be borne by the party responsible for such costs.”

[18] After due consideration I think it would be fair to the parties to apportion the costs incurred in obtaining the report, by ordering the Defendant to pay half of the costs thereof.

[19] Due to the fact that the matter was on trial and counsel were already briefed and further as costs for the trial was settled, I deem it unnecessary to make an order for the arguing of this point.

[20] Consequently, the following order is made:-

Defendant is ordered to pay half of the qualifying- and preparation fees of the Educational Psychologist.

No order as to costs is made for the arguing of this point.

A J SWART

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE PLAINTIFF: TLHAPI & WESSELS INC