Mnembe v Road Accident Fund (6129/2015) [2017] ZAECGHC 72 (9 June 2017)

Mnembe v Road Accident Fund (6129/2015) [2017] ZAECGHC 72 (9 June 2017)

The court found that the defendant's conduct did not amount to grave misconduct or warrant a punitive costs order. The defendant had taken steps to resolve the claim, including making a tender and appointing experts. The possibility that counsel's fee for the first day of trial might be taxed off under the guidelines does not constitute special grounds for a punitive costs order. The court held that the appropriate remedy for dissatisfaction with taxation is a review under Uniform Rule 48. The order for costs should not encroach on the Taxing Master's function, and a simple order for costs of the first day of trial on a party and party scale was appropriate.

Citation
[2017] ZAECGHC 72
Parties
Plaintiff: Masixole Mnembe; Defendant: Road Accident Fund
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
9 June 2017
Case Number
6129/2015
Procedural Posture
Civil Trial / Costs and Merits Order After Removal From Trial Roll
Outcome
Merits conceded by defendant; plaintiff to succeed with 100% of proven damages. Costs awarded on party and party scale, including costs of first day of trial. Action removed from trial roll; new trial date to be allocated.
Judges
J M Roberson
Legal Topics
Road Accident Fund Act, Costs Award, Party and Party Costs, Punitive Costs, Expert Witness Expenses
Civil Procedure Delict Road Accident Fund Act Costs Award Party and Party Costs Punitive Costs Expert Witness Expenses

Case Brief

Summary, issues, holding and outcome

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Parties

Masixole Mnembe

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Costs and Merits Order After Removal From Trial Roll

Legal Issues

  1. 1 Whether the costs of the first day of trial should be awarded on a party and party or attorney and client scale.
  2. 2 Whether the defendant's conduct warrants a punitive costs order.
  3. 3 Whether the plaintiff is entitled to recover counsel's fees for the first day of trial despite the Taxing Master's guidelines.

Ratio Decidendi

The court found that the defendant's conduct did not amount to grave misconduct or warrant a punitive costs order. The defendant had taken steps to resolve the claim, including making a tender and appointing experts. The possibility that counsel's fee for the first day of trial might be taxed off under the guidelines does not constitute special grounds for a punitive costs order. The court held that the appropriate remedy for dissatisfaction with taxation is a review under Uniform Rule 48. The order for costs should not encroach on the Taxing Master's function, and a simple order for costs of the first day of trial on a party and party scale was appropriate.

Court Disposition

Merits conceded by defendant; plaintiff to succeed with 100% of proven damages. Costs awarded on party and party scale, including costs of first day of trial. Action removed from trial roll; new trial date to be allocated.

Orders

  • Defendant concedes the merits and plaintiff must succeed with one hundred percent of proven damages.
  • The action is removed from the roll of trial actions set down for 1 June 2017.