Nongwe v Road Accident Fund (EL48/2013, ECD348/2013) [2017] ZAECELLC 19 (8 December 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

EAST

LONDON CIRCUIT LOCAL DIVISION

CASE NO: EL 48/2013

ECD 348/2013

In the matter between:

SANDILE

NONGWE

Plaintiff

and

ROAD

ACCIDENT FUND

Defendant

JUDGMENT

STRETCH J:

[1] For all intents and purposes this action has been settled. The only remaining issue between the parties relates to the costs incurred with respect to consultation with the experts.

[2] The plaintiff contends for an order directing the defendant to pay the travelling, consultation and accommodation costs of the plaintiff’s

attorneys and counsel, with respect to their consultations with the experts in preparation for trial.

[3] The respondent argues that it would be inappropriate for this court to make orders with respect to costs which would amount to usurping the functions or unduly interfering with the discretion of the taxing master.

[4] The crisp issue then is whether the order which the plaintiff seeks amounts to usurping the taxing master’s functions or undue interference with his discretion.[1]

[5] The issue of liability was settled in June 2016 with a 70 per cent apportionment in the plaintiff’s favour.

[6] On 29 June 2017 the plaintiff’s attorney applied for a trial date on quantum, simultaneously withdrawing the plaintiff’s claim for general damages. By that time the plaintiff had delivered expert reports compiled by Dr Olivier, Dr de Kock, Ms Ndzungu and Mr Munro, which reports purported to quantify the plaintiff’s loss of earnings and the contents of which the defendant was requested to admit.

[7] On 25 July 2017 the parties were notified that a trial date had been allocated for 24 October 2017. On that day the matter was postponed to 1 November 2017 when this costs issue was argued before me.

[8] It is common cause that the issue of quantum was only settled on the day the trial was due to commence.

[9] The purpose of an award of costs is to indemnify a successful party who has incurred expenses in instituting or defending an action.[2]

[10] The parties have agreed that the defendant is liable for the costs of the action as between party and party on the High Court scale.

[11] The object of an award of party and party costs has been stated as follows:[3]

‘As uitgangspunt is dit nodig om in gedagte te hou dat ons te doen het met ’n kosterekening tussen party en party en dat in die algemeen gesproke die breë opset van so ’n kosterekening is om die party aan wie koste toegestaan is ten volle te vergoed vir kostes en uitgawes redelikerwys deur hom aangegaan en volgens die oordeel van die Takseermeester nodig en gepas was (my emphasis) om reg te laat geskied of om die regte van die party te beskerm.’

[12] Indeed, it has been held that where the merits of a matter have been disposed of, for example, by an offer which concedes the claim, and only the costs of the whole case remain to be decided, the issue of costs must be decided on broad general lines and not on lines which would necessitate a full hearing on the merits.[4]

[13] I do not see why the same principle should not apply to the matter before me. It has been submitted on the plaintiff’s behalf that, in preparation for the trial on quantum with respect to future loss of earnings, the plaintiff’s attorneys and counsel were constrained to consult with Dr Olivier, Dr Van Daalen, Dr De Kock and Ms Ndzungu, particularly in that the defendant had not admitted the facts, findings and opinions reflected in their reports. I am inclined to agree with the plaintiff with respect to Drs Olivier and De Kock and Ms Ndzungu. However the plaintiff has not delivered an expert report with respect to Dr Van Daalen in the absence of which the plaintiff would not have been entitled to call this witness had the trial proceeded on the question of loss of earnings.

[14] Having said that, I am also inclined to agree with the submissions made on the defendant’s behalf. It is indeed so that the plaintiff’s legal representatives practice from East London and that the plaintiff resides in Mdantsane which is really an extension of East London. On the other hand, Ms Ndzungu is an occupational therapist who practises in Mthatha and Dr de Kock practices as an industrial psychologist in Kloof to the North of Durban in Kwa-Zulu Natal. Kloof is some 620km away from East London. The distance between Mthatha and East London is 230km. The defendant contends that one of the considerations relating to the taxation of fees and expenses is whether the plaintiff could not have made use of local experts; alternatively, whether the plaintiff’s attorneys and counsel could not have made use of alternative information technology to consult instead of incurring travelling and accommodation expenses. In principle, I am inclined to agree with this submission. Having said that however, I only have before me submissions from the bar in that regard.

[15] The plaintiff relies, inter alia, on a similar order made by Plasket J in this division in Mlalandle v RAF.[5]

[16] In that matter the ruling incorporated an order directing the defendant to pay the plaintiff’s costs of suit, such costs to include the travelling and accommodation costs, if any, of the plaintiff’s legal representatives in respect of attending court and their consultation with witnesses. The relevant portion of the judgment reads as follows:

[41] It is not in dispute that the defendant should pay the plaintiff’s costs and that the plaintiff is entitled to the costs of two counsel. The only issue that I must decide is whether the costs order should include that the plaintiff is entitled to the costs of travelling, preparation and consultation with the expert witness.

[42] This is occasioned by the fact that it was, in the submission of Mr Schoeman, necessary for counsel and the legal representatives of the plaintiff to consult with their expert witnesses in preparation for trial on quantum because not all of the reports of the expert witnesses had been admitted, and for counsel to travel from Grahamstown and Port Elizabeth to Cape Town to do so. Mr van der Linde argued that this issue should be left in the hands of the taxing master and to make such an order would, in fact, usurp the discretion of the taxing master.

[43] In my view, I can and should make the order that Mr Schoeman seeks. I say this because I am in a position to decide that these costs, in general terms, are reasonable and necessary and that the travelling to Cape Town was prudent in the sense that it would have been less cost effective for the expert witnesses and the plaintiff’s attorney to have travelled from Cape Town to Grahamstown to consult with counsel. It still lies within the discretion of the taxing master to determine the reasonableness of the quantum claimed in costs.

[17] Mlalandle must however be distinguished from the matter before me. In that matter the order followed after a trial in respect of quantum.

Evidence was led. The learned judge was placed in a position where he was able to make a finding that it was simply more cost effective for counsel to travel from Grahamstown to Cape Town to consult than for the plaintiff’s attorney and the experts (and there appear to have been a number of them) to have travelled from Cape Town to Grahamstown for the same purpose.

[18] In this regard courts have from time to time recognised the principle that the trial court “can and should” make an appropriate order in those classes of cases where it is able to form as good an opinion as the Taxing Master and perhaps even a better one.[6] I am not in that position. In the matter before me I am invited to rely solely on submissions from the bar. I am not inclined to do so. This is particularly so when I have nothing before me as to the nature, the necessity, the length and the extent of the consultations, where they were held and whether they were merely to inform the experts of their mandate and the issues on which they would be required to testify.

[19] The Master however, in the exercise of his duties, has a duty to ascertain if work has been done and is in the position to demand proof to his satisfaction that the services for which payment is demanded are reasonable, necessary and have actually been rendered.[7] In particular, where there is also a specified claim for counsel’s fees, the quantum thereof is pre-eminently left to the discretionary decision of the Taxing Master.[8] It has in any event been held in this division that counsel’s travelling and accommodation expenses are not allowed on a party and party basis.[9]

[20] I am inclined to agree with the view expressed by Roberson J in the matter of Mnembe v the Road Accident Fund[10]. In that matter the plaintiff’s attorneys had prepared a draft order which included the costs of the first day of trial. The

defendant’s attorneys were of the view that this term of the draft should read “costs of trial in accordance with the

tariffs allowed by the Taxing Master”.

[21] Paragraph [5] of the judgment reads as follows:

‘In my view the proposal by the defendant would not be appropriate. A simple order for the costs of 1 June 2017 would suffice. The additional words would be an encroachment by the court on the function of the Taxing Master. By the same token, the plaintiff’s dilemma cannot be resolved by, for example, the court making an order allowing counsel’s fee for 1 June 2017. Such an order would circumvent a decision which still has to be made by the Taxing Master. The plaintiff’s remedy, should counsel’s fee for 1 June 2017 be taxed off in accordance with the guidelines, would be to utilise Uniform Rule 48 which provides for a review of taxation in the event of a party being dissatisfied with the decision of the Taxing Master.’

[22] Rule 69(5) of the Uniform Rules of this court reads as follows:

‘The taxation of advocates’ fees as between party and party shall be effected by the taxing master in accordance with this rule and, where applicable, the tariff. Where the tariff does not apply, he shall allow such fees (not necessarily in excess thereof) as he considers reasonable.’

[23] Under this subrule the taxing master has jurisdiction to determine not only the quantum of counsel’s fees but also whether, in the particular circumstances of the case, counsel’s fees should be allowed at all.[11]

[24] The role of the taxing master is specifically set out in rule 70(3). This role was traversed in depth in the matter of Blakes Maphanga Inc. v Outsurance Insurance Co. Ltd[12] where the following is stated:

‘The fees will be determined by the taxing master and not by the court. The duties of a taxing master include the duty to determine

whether costs “have been incurred or increased through over-caution, negligence or mistake, or by payment of a special fee

to an advocate, or special charges and expenses to witnesses or to other persons or by other unusual expenses”. … The question whether a debt may be capable of speedy ascertainment is “a matter left for determination to the individual discretion of the Judge.” In the case of a disputed bill of costs in litigious matters, however, the reasonableness is to be determined by the taxing master and not by the court.’

[25] I make the following order:

(a) The defendant is directed to pay to the plaintiff the sum of R210 707,00 in respect of damages arising from his injuries sustained as a result of the motor-vehicle collision which occurred on 24 August 2011 at Buffalo Park Drive, East London.

(b) In addition to the aforegoing payment, the defendant shall also provide an undertaking in terms of the provisions of section 17(4)(a) of the Road Accident Fund Act 56 of 1996, limited to 70 per cent of the future accommodation of the plaintiff in a hospital or nursing home or the treatment of or rendering of a service or the supplying of goods to him arising from the injuries caused in the aforesaid collision.

(c) The defendant is directed to pay interest on the aforesaid capital amount at the legal rate calculated from 30 days of the date of this order to date of final payment.

(d) The defendant shall pay the costs of the action on the High Court party and party scale and any costs attendant up to date upon the payment of the capital, such costs to include the reasonable costs of the qualifying expenses of the plaintiff’s expert witnesses: Dr de Kock, Dr Olivier, Ms Ndzungu and Munro Forensic Actuaries.

(e) The plaintiff shall, in the event of costs not having been agreed upon, serve a notice of taxation on the defendant’s attorneys of record.

(f) The defendant shall pay interest to the plaintiff on the taxed party and party costs calculated at the legal rate from a date 14 days from taxation to the date of final payment.

(g) The plaintiff’s attorneys are directed to comply with the provisions of section 4(1) and (2) of the Contingency Fees Act 66 of 1997.

(h) The plaintiff is directed to pay the defendant’s costs for 1 November 2017.

______

I

T STRETCH

8 December 2017

JUDGE

OF THE HIGH COURT

Date heard:

9 November 2017

Counsel for the plaintiff: Mr T M Jikwana

Instructed by:

WT Mnqandi & Associates

East London

Counsel for the defendant: Ms K L Watt

Instructed by:

Bate Chubb & Dickson Inc

[1] See Marshall v Minister of Police 1970 (1) SA 251 (E) at 252; Page and Another v Rondalia Assurance Corporation of South Africa Ltd and Another 1974 (3) SA 66 (E) at 70

[2] Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at 488

[3] Die Voorsitter van die Dorpsraad van Schweizer-Reneke v Van Zyl 1968(1) SA 344 (T) at 345; Murray v AA Mutual Insurance Association Ltd 1984 (3) SA 496 (E) at 498

[3] Die Voorsitter van die Dorpsraad van Schweizer-Reneke v Van Zyl 1968(1) SA 344 (T) at 345;

Murray v AA Mutual Insurance Association Ltd 1984 (3) SA 496 (E) at 498

[4] Jenkins v SA Boilermakers, Iron & Steel Workers & Ship Building Society 1946 WLD 15 at 17-18

[5] Mlalandle v Road Accident Fund 2011 (6J2) QOD 90 (ECP) at [44]

[6] See Wellworths Bazaars Ltd v Chandlers Ltd & Others 1937 NPD 418 at 425; Sonny & Another v the Premier of the Province of KwaZulu-Natal & Another (unreported judgment of Mbatha J handed down on 12 December 2016 under KZP case no. 33185/2015 (4026/2003) at pars 10 and 11)

[6] See Wellworths Bazaars Ltd v Chandlers Ltd & Others 1937 NPD 418 at 425;

Sonny & Another v the Premier of the Province of KwaZulu-Natal & Another (unreported judgment of Mbatha J handed down on 12 December 2016 under KZP case no. 33185/2015 (4026/2003) at pars 10 and 11)

[7] Gluckman v Winter & Another 1931 AD 449 at 450; Knipe v Venter 1965 (4) SA 1 (C)

[8] City of Cape Town v Arun Property Development (Pty) Ltd & Another 2009 (5) SA 227 (C)

[9] Minister of Water Affairs v Meyburg 1966 (4) SA 51 (E)

[10] Unreported judgment under ECG case number 6129/2015 handed down on 9 June 2017

[11] Rosenberg v Prima Toy Holders (Pty) Ltd 1972 (3) SA 791 (C) at 794B

[12] 2010 (4) SA 232 (SCA) at [18]