Tag Archive | Plaintiff

Big Quantum Does Not = Senior Counsel – IAC Newsletter 39/2014, (March 2014)

RAC image

Dear Reader,

Welcome to the 39th edition of Independent Actuaries & Consultant’s (IAC’s) MVA newsletter.

Big Quantum does not = Senior Counsel – Smit v RAF, Eastern Cape High Court (PE), case no: 448/2013

Both the merits of the plaintiff’s claim and the quantum of his damages had been agreed between the parties. The court ordered that the defendant pay the plaintiff the sum of R3,050,612-16 (Three Million Fifty Thousand Six Hundred and Twelve Rand and Sixteen Cents) in full and final settlement of his damages.

The parties were unable to reach agreement in respect of the costs order to be made. The defendant tendered the plaintiff’s costs including the qualifying expenses of expert witnesses on a party and party scale. The plaintiff seeked an order that the defendant pay the costs of two counsel. This was the only issue in dispute.

Summons was originally issued in February 2013 claiming the amount of R6 082 652.00 and the Particulars of Claim were prepared and signed by junior counsel. A subsequent amendment inflated the figures, notably those in respect of loss of earning capacity and general damages, so as to claim the amount of R8 144 578.52.

On 1 October 2013 the plaintiff’s attorney of record instructed a second counsel to lead the junior counsel who had drafted the pleadings and to conduct the trial.

The bulk of the claim related to loss of earning capacity and general damages.

The court noted that generally, the computation and proof of a claim for loss of earning capacity does usually involve complex issues of fact and law. Where the claim is large, then it is usually a reasonable and prudent precaution for a plaintiff to engage the services of two counsel.

The accident in the present case, however, occurred on 8 October 2008 after the amendment act came into force that has the effect of “capping” loss of income claims.

The plaintiff’s claim in respect of his actual loss of earning capacity amounted to R7 025 477,00 as calculated by an actuary. His loss of earning capacity computed and capped in accordance with section 17(4)(c) of the Act as calculated by the same actuary, amounted to R2 583 000,00.

The court held that where it is a foregone conclusion that the plaintiff’s actual loss of earning capacity will far exceed the limit set by section17 of the Act, the calculation and proof of the plaintiff’s entitlement will not involve any significant factual or legal difficulty.

The court further held that the assessment of general damages is dependent primarily on the lay evidence of the plaintiff himself and, though not entirely simple, was not so complex as to justify the employment of two counsel.

In the courts view one counsel of sufficient seniority and experience could have properly handled the matter without any significant difficulty.

Now for some inspiration  –

“That old law about ‘an eye for an  eye’ leaves everybody blind. The time is always right to do the right thing.”

Martin Luther King Jr.

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Can An OT Or IP Assess A Plaintiff For Purposes Of The RAF 4?

Court of appeal

The RAF v Duma, Kubeka, Meyer & Mokoena [2012] ZASCA 169 (27 November 2012).

The Fund contended on appeal that the High Court should have held in each case that the issue whether the plaintiff had suffered ‘serious injury’ had not been determined by the method prescribed by the regulations and that the High Court should therefore not have awarded general damages.

In all four cases the RAF 4 form was signed by a psychiatrist, Dr Braude. In all four cases the Fund filed special pleas stating that the plaintiff had not complied with regulation 3 and that his or her claim for general damages was either not competent or premature. In all four cases the Fund subsequently rejected the RAF 4 by means of a letter from its attorneys. These letters were written at least one year after the RAF 4 form had been delivered to the Fund and very shortly before the commencement of trial.

In each case the RAF 4 was completed by Ms Marks an occupational therapist and signed by Dr Braude without him examining the patient, instead relying on the hospital records and other expert reports which in some cases were 7 months old.

The Fund contended in the High Court that the plaintiffs’ RAF 4 forms did not comply with regulation 3 because Dr Braude had failed to do a physical examination and Ms Marks was not a medical practitioner, the RAF 4 forms had been rejected by the Fund, and therefore the plaintiffs’ remedy was to declare a dispute with the HPCSA in terms of regulation 3(4); and that in the circumstances, the court could not entertain the claims for general damages.

The High Court did not agree and held the RAF 4 forms were in fact compliant with regulation 3 and it was apparent from the medical evidence that the plaintiffs did indeed suffer serious injuries.

Moreover, the Fund’s rejection was invalid because the Fund had failed to reject the RAF 4 forms within a reasonable time and its right to do so had therefore expired and secondly, since the Fund had given insufficient or invalid reasons for its rejection, it did not constitute a proper rejection.

The Appeal Court did not agree with the High Court’s construction that if the Fund should fail to properly or timeously reject the plaintiff’s RAF 4, such rejection can be ignored, if the medical evidence before the court then shows that the plaintiff was indeed seriously injured the court can decide the issue of general damages.

The Appeal Court held this approach to be fundamentally flawed as the legislature chose to confer the right to decide whether or not an injury is serious enough to justify an award of general damages on the Fund and not on the court.

The Appeal Court further held that any determination of the period within which the Fund should reasonably take that decision must depend on the facts of each case.

As regards the 2nd reason given namely that the the RAF 4 forms were rejected without proper reasons the Appeal Court held that the Fund’s decision to reject the RAF 4 forms constituted administrative action and until that decision was set aside by a court on review or overturned in an internal appeal, it remained valid and binding.

Additionally the court was asked to deal with the question of whether the RAF 4 forms in these cases met the requirements of regulation 3(1).

Must a medical practitioner physically examine the claimant for purposes of the assessment?

The honourable Judge found that regulation 3(1)(a) requires a medical practitioner to physically examine a claimant.

Can the assessment be done by an occupational therapist?

The short answer is no. The honourable Judge found that Ms Marks, who is an occupational therapist, did not qualify as a “medical practitioner”, within the meaning of regulation 3(1)(a), but rather as a “health practitioner”.

Can an assessment in terms of regulation narrative test be conducted without first performing the assessment in terms of regulation AMA guides?

The honourable Judge found that if one had a look at the contents of the RAF 4 form itself, which is incorporated in the regulations, it is of significance that paragraph 4, which deals with the AMA guides, contains the substance of the report. If paragraph 4 were to be left uncompleted, the report would be of little substance. The inference to be drawn from the contents of the report is that it was never intended that an assessment could bypass the AMA/WPI test.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some fun –

Who is the roundest knight at king Arthurs table?
Sir Cumfrence

How to Prove the Existence of a Customary Marriage

NTHEJANE v RAF

Rings

The plaintiff sued the defendant for maintenance on behalf of herself and her minor son, Bongani, arising out of the death of Lethusang Johannes Azor (the deceased). She alleged that she was married to the deceased in terms of a customary union.

The only issue for the court to decide was whether or not the plaintiff was married to the deceased in terms of a customary union. The plaintiff called the evidence of her grandfather, Simon Nthejane and she also testified.

Mr Nthejane’s testified that the plaintiff had a relationship with the deceased and they had a child, Bongani. After the birth of Bongani Mr Nthejane approached the deceased’s grandmother who indicated that her family would like to take the plaintiff as their daughter-in-law. They agreed to enter into lobolo negotiations, it was agreed that they would give him 10 cows. This would be done at a later date.

A traditional ceremony, in accordance with Sotho culture, was held at the house of the deceased’s family where the plaintiff was made to wear traditional bridal clothes and a sheep was slaughtered as part of the ceremony to welcome her as a daughter-in -law of the Azor family. She thereafter took up residence in the home of the deceased. It was also Mr Nthejane’s evidence that although the lobolo had not yet been paid, it was his intention to claim it from the Azor family.

The plaintiff corroborated her grandfather’s evidence in all material respects.

The plaintiff then closed her case. The defendant closed its case without leading any evidence.

The legislation regulating customary marriages is the Recognition of Customary Marriages Act 120 of 1998 (the Act). Section 3(1) of the Act provides as follows:

“For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.”

The defendant did not dispute that the lobolo negotiations had been concluded or that the traditional ceremony and celebration took place.

However, the defendant contended that the plaintiff cannot claim to have entered into a customary union as the lobolo had not been paid.

From Mr Nthejane’s evidence, it is clear that the arrangement regarding lobolo was acceptable to both families.

The court referred to the matter of FANTI v BOTO AND OTHERS 2008(5) SA 405 (C) in which the essential requirements to prove the existence of a customary marriage is set out:

“All the authorities are in agreement that a valid customary marriage only comes about when the girl…has been formally transferred or handed over to her husband or his family. Once that is done severance of ties between her and her family occurs. Her acceptance by the groom’s family and her incorporation into his family are ordinarily accompanied by well-known extensive rituals and ceremonies involving both families [para 22]… The importance of these rituals and ceremonies is that they indicate in a rather concretely visible way that a customary marriage is being contracted and that lobolo has been paid and/or the arrangements regarding the payment of lobolo have been made and that such arrangements are acceptable to the two families – particularly the bride’s family”

The court held that the evidence tendered on behalf of the plaintiff established that:

“11.1 The plaintiff and the deceased were both above the age of 18 years at the time they were married;
11.2 Both the plaintiff and the deceased consented to be married to each other by customary law;
11.3 The marriage was properly negotiated, and celebrated in accordance with customary law. Although lobolo was not paid, adequate arrangements, which were accepted by both families, were made for payment of lobolo.
11.4 The plaintiff was “handed over” to the family of the deceased and took up residence in his family home after the ceremonies were performed.”

The court held that the Plaintiff had proven a valid customary marriage existed between herself and the deceased.

Passenger Claims – Proposed Draft Legislation

Parliament has now published draft legislation to deal with passenger claims in light of the Mvumvu judgement.

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I expressed the opinion in my July newsletter (issue no.24) that if parliament does not enact some mechanism for passenger claims, where summons was issued in the Mag court and prescription has taken place, to be transferred to the High court, some claimants might not receive any benefit from a different compensation regime.

This is exactly what has transpired.

Based on the Oosthuizen judgement (again this is available under the judgement tab at the top of this page), as discussed in my July newsletter, there are two factors weighing against a claimant successfully transferring his claim where he has issued summons in the Mag court and prescription has taken place namely, “the high court can only exercise its inherent jurisdiction … when confronted with a case over which it already has jurisdiction” and “A high court may not use its inherent jurisdiction to create a right.” especially if prescription has extinguished part of a claim.

However, such a scenario would not be based on any fault or oversight on the part of the claimant or his attorney but it would be a case of “the appellant’s access to court being impeded by some lacuna in the law” and “Furthermore the appellant is … without remedy.” These two factors might convince the court that “it is a case in which it is necessary to fashion a constitutionally acceptable remedy because of the interests of justice”

What are your views on this?

Scale of costs – High court or not

Dear Reader,

Welcome to the twelfth edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims.

We will also keep you updated of IAC developments, events and training seminars and lighten up your day with a joke or inspirational quote.

Training

I am excited to announce that IAC will again be presenting training on the calculation of simple loss of income and loss of support calculations. The training is aimed at attorneys in order to equip them to give better instructions,
have a better understanding of the actuarial calculation process and to aid in settlement of matters.

Same will be taking place on the following dates:

Durban 13 July 2010
Johannesburg 15 July 2010
Pretoria 15 July 2010
Cape Town 28 July 2010
Port Elizabeth 29 July 2010

KINDLY COMPLETE YOUR CONFIRMATION OF ATTENDANCE DOCUMENTS FOR THE CAPE TOWN AND PORT ELIZABETH SESSIONS AND E-MAIL SAME TO roelf.nel@iac.co.za OR FAX TO 011 333 9663 ON/BEFORE 16 JULY 2010.

KINDLY NOTE THAT THERE ARE STILL 16 SPOTS LEFT FOR THE DURBAN SESSION AND 9 SPOTS FOR THE JOHANNESBURG SESSION,
PLEASE PHONE ME ON 083 393 8530 SHOULD YOU BE INTERESTED IN TAKING UP SAME.

Pedestrian crossing street with cars

TSELE REGINALD KANONO v THE ROAD ACCIDENT FUND – 7072/2008 [UNREPORTED] – FREE STATE HC

The Plaintiff instituted action against the Defendant for payment in the amount of R124 919, 24 for damages suffered as a result of motor vehicle accident.

The Plaintiff chose the High Court as appropriate forum to institute proceedings.

The Plaintiff abandoned the whole amount of R100 000 for general damages and subsequently 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.

Counsel for the 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. 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.

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.

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

The court held that the general rule that costs follow the event is subject to the overriding principle that the court has a judicial discretion in awarding costs.

The court further held that the fact that the Plaintiff claimed more than she succeeded in recovering is insufficient 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 awarded, before that would be done.

Plaintiff’s injuries were described as:

“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’”.

The purpose of an award of cost to a successful party is to indemnify him for the expense to which he has been put by having unjustly been compelled to initiate or defend litigation.

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 judicial discretion and must be exercise on grounds upon which a reasonable person could have come to the conclusion arrived at.

After due consideration of the facts the court held that the 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.

The court ordered that the cost’s is to be taxed on a scale applicable in the Magistrate’s Court.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Interim payment I.T.O Rule 34A of the Uniform rules of court

Dear Reader,

Welcome to the ninth edition of Independent Actuarial Consultant’s (IAC) monthly newsletter.
Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle
accidents and the quantification of damages relating to personal injury claims.

We will also keep you updated of IAC developments, events and training seminars and
lighten up your day with a joke or inspirational quote.

ANNOUNCEMENT
Please take note of our new fax number 086 616 8308.

As you might have heard the Acting Judge Fabricus dismissed the application by the LSSA,SAAPIL and others on 31 March 2010. The Applicants will be appealing directly to the Constitutional Court.

Law blocks

HARMSE v THE ROAD ACCIDENT FUND – 63149/09 [UNREPORTED] – JUDGEMENT 24 FEBRUARY 2010

The applicant approached the court on an urgent basis, for interim payment in terms of rule 34A of the Uniform Rules of Court. The respondent opposed the application.

Initially this application was brought as a normal motion, and was set down for 24 November 2009. On the said occasion, the matter was postponed sine die, and the respondent was ordered to pay the wasted costs.

Subsequent thereto, on 17 December 2009, the applicant launched an urgent application, wherein the applicant claimed interim payment from the respondent in an amount of R25 000. 00, as well as a monthly payment of R2 500. 00 from 1 January 2010 until the main action is determined.

Rule 34A of the Uniform Rules provides:

“(1) In an action for damages for personal Injuries or the death of a person, the plaintiff may, at any time after the expiry of the period for the delivery of the notice of intention to defend, apply to the court for an order requiring the defendant to make an interim payment in respect of his claim for medical costs and loss of income arising from his physical disability or the death of a person.

(4) If at the hearing of such an application, the court is satisfied that the defendant against whom the order is sought has in writing admitted liability for the plaintiff’s damages; or

the plaintiff has obtained judgment against the defendant for damages to be determined,

the court may if it thinks fit but subject to the provisions of sub-rule (5), order the defendant to make an interim payment of suchamount shall not exceed a reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff taking into account any contributory negligence, set off or counterclaim.”

From the above, it is clear that a jurisdictional requirement for an interim payment, is an admission of liability in writing by the respondent. The question arises if in the present case there was such an admission.

The applicant relied on a series of settlement negotiations, which culminated in the respondent making a written offer of settlement on a 50% merits apportionment, to prove such an admission. The pinnacle of the applicant’s case in this regard, is an e-mail transmitted on 4 September 2009 by the respondent’s claims handler, Mr. Kenneth Mkhawane which reads:

“The offer for 50% merits apportionment and pre-settlement undertaking has been approved. Upon receipt of your merits acceptance, we will sent the undertaking limited to 50% via post to yourselves.”

On 7 September 2009, the application’s attorney responded to the 50% apportionment offer as follows:

“As per the meeting I confirm that I am not happy with the 50% merits offer apportionment. I have pointed out numerous aspects indicating that the insured driver’s version is not probable.”

The same date, 7 September 2009, a senior claims handler of the respondent, replied to the above email as follows: ” ….I(f) you say that the insured driver’s version is improbable , the same argument can be applied to your client’s version. I will immediately proceed to consider the appointment of a reconstruction expert and assessor to investigate further, which is the procedure to follow when one is faced with contradictory versions.”

On 3 December 2009, at the request of the respondent’s attorney, the applicant’s settlement proposals were reduced to writing and transmitted to respondent’s attorney.

On 9 December 2009, the respondent’s attorney transmitted an e-mail to the applicant’s attorney, with
the following content:

“I have managed to speak to Adv. Bezuidenhout… He informed that we cannot settle the merits for one part of the matter only. If the plaintiff cannot accept the merits in totality we unfortunately cannot assist you in this matter”

From the correspondence three aspects emerge.

First, that the parties were clearly engaged in genuine “without prejudice” negotiations. Therefore those
communications are privileged.

Secondly, there is no consensus on the liability of the respondent for the applicant’s damages. This is confirmed by the respondent’s statement that it considered appointing an accident reconstruction expert to investigate the merits.

Thirdly, even assuming that the respondent, by its offer of a 50% apportionment, had “admitted” liability for the applicant’s damages, the said “admission” was rejected by the applicant’s attorney in the e-mail of 7 September 2009.

The learned Judge found that by rejecting the respondent’s “admission” of liability, while simultaneously seeking to base his rule 34A application on the very same rejected “admission.” The applicant is failing to make an election between the two positions.

The applicant contended that it was competent for the applicant, solely for the purpose of rule 34A interim payment, to rely on the “admitted” 50% apportionment, and claim interim payment thereon, while still at large to negotiate further on the liability and apportionment percentages, in the main action. The learned Judge did not agree with this contention as the provisions of rule 34A (4) are clear, and couched in peremptory terms: only in instances where the respondent had admitted liability for the applicant’s damages, may a court order interim payment. It clearly does not envisage a situation where, the parties being in the process of settlement negotiations, one party latches onto an offer, and seek to enforce it in terms of the rule.

If sustained, the applicant’s argument could have the effect that, once an offer is made in settlement negotiations, in these types of claims, the applicant would be entitled to an interim payment. It is common knowledge that in practice, the respondent, on a daily basis, makes offers in an attempt to settle claims. If the contents of such offers are to be used against the respondent for interim payment, it would most certainly result in the respondent been discouraged to enter into any settlement proposals at all. That would defeat the whole purpose and spirit of “without prejudice” negotiations and offers, as provided in terms of rule 34A.

The application was dismissed costs to be paid by the applicant.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

And now for some fun –
“A lawyer died and arrived at the pearly gates. To his dismay, there were thousands of people ahead of
him in line to see St. Peter. But, to his surprise, St. Peter left his desk at the gate and came down the
long line to where the lawyer was, and greeted him warmly. Then St. Peter and one of his assistants
took the lawyer by the hands and guided him up to the front of the line, and into a comfortable chair by
his desk. The lawyer said, “I don’t mind all this attention, but what makes me so special?” St. Peter
replied, “Well, I’ve added up all the hours for which you billed your clients, and by my calculation you
must be about 193 years old!”

The appropriate scale of costs to be awarded to counsel in the Magistrate’s court

Dear Reader,

Welcome to the seventh edition of Independent Actuarial Consultant’s (IAC) monthly newsletter. Via
this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents
and the quantification of damages relating to personal injury claims.

We will also keep you updated of IAC developments, events and training seminars and lighten up your
day with a joke or inspirational quote.

ANNOUNCEMENT
Please take note of our new fax to e-mail number 086 616 8308.

BRAND v THE ROAD ACCIDENT FUND (CA 170/09) [2009] ZAECGHC 85 – UNREPORTED

This is an appeal against a cost order granted by a Magistrate in a trial action.  On 4 February 2005 the appellant – plaintiff in the court a quo – sustained bodily injuries in a motor collision.  The appellant had abandoned a portion thereof to bring it within the jurisdiction of the magistrate’s court.
The matter was set down for trial on 8 August 2008 on both merits and quantum.  The appellant’s attorney, however, pursued an application for a separation of the issues and the application was granted.  The magistrate’s judgment did not, however, deal with the question of costs.  Immediately thereafter an 80/20 settlement in favor of the plaintiff was reached and the costs of the day would be
reserved for determination by the trial court adjudicating the issue of quantum.
The matter was set down again for hearing on 6 February 2009. On that day, and prior to evidence being led, the issue of quantum was settled.  General damages would be fixed at R50 000,00, an undertaking would be furnished for future medical expenses and the respondent would pay the appellant’s taxed party and party costs.

Two issues of costs were then argued by the parties before the magistrate:

(a) the liability for the costs which had been reserved on 8 August 2008;
(b) whether the fees of counsel who represented the appellant should be limited to the tariff set out in Part IV of Annexure 2 to the magistrate’s court Rules1 or whether the magistrate should allow higher fees.

After hearing argument the magistrate gave judgment granting the appellant her taxed party and party costs, but limited counsel’s fees to those stipulated in the tariff. He omitted to deal with the costs which were reserved on 8 August 2008. In his further reasons for judgment, however, the magistrate recorded an order that the “wasted costs” of 8 August 2008 be paid by the appellant.

The appellant, sought orders from this court:
(a) setting aside the magistrate’s order and substituting therefor an order allowing counsel’s fees in an amount three times the amount set out in the tariff;
(b) an order that the costs of the hearing on 8 August 2008 be paid by the respondent.

Counsel were agreed, and correctly so, that the following principles were applicable. An order for costs falls within the discretion of the trial court. An appellate tribunal will not readily interfere with the exercise by a trial court of such discretion. It will only do so where the trial court exercised its discretion, not judicially, but capriciously or upon a wrong principle or where the order is incompetent.
See eg. Cronje v Pelser 1967 (2) SA 589 (A) at 592H-593A; Merber v Merber 1948 (1) SA 446 (A) at
452-3.

In his judgment the magistrate recorded that he had been referred to two unreported decisions in this Division: Road Accident Fund v Forbes (Case No CA 197/05, 28 September 2006) and van Zyl v Road Accident Fund (Case No CA 243/07, 19 October 2008). Both decisions were given in appeals against costs orders made by a magistrate in matters of the same nature as the present.

In the first matter Jones J inter alia upheld the magistrate’s order allowing counsel’s fees at three times the amount set out on
the tariff. In the second matter Jones J set aside a magistrate’s refusal to allow counsel’s fees at a rate and ordered that the defendant pay the costs of counsel’s fees in an amount not exceeding three times the amount set out in the tariff. The magistrate, however, sought to distinguish these two decisions.

The first basis on which a distinction was drawn was that in the two earlier cases expert evidence was led on the issue of the quantum to be awarded, whereas in the present matter the quantum was settled without any evidence being led. The distinction is without merit. As recorded earlier, the settlement of the quantum was reached only on the day the matter was set down for hearing. The appellant, and her legal team, had therefore perforce to prepare themselves on the issue of quantum in order to be in a position to lead the necessary evidence.
The second basis of distinction was that in van Zyl the defendant had conceded that there was no contributory negligence on the part of the plaintiff, whereas in the instant matter the appellant had accepted that her contributory negligence be fixed at 20%. Again, the magistrate proceeded on a wrong principle: the appellant had achieved success in the action and to base the refusal to make an order in terms of Note (b) referred to above on the fact of the apportionment of liability was not a judicial exercise of the discretion.
Referring to the fact that the parties had reached agreement on the issues the magistrate again stated that no expert witnesses had been called; hence, there was nothing justifying the court finding that “this is a matter which warrants an advocate as such” in that it was a case which the court dealt with on a daily basis.
Suffice it is to say that the magistrate’s approach can clearly not be endorsed. The restriction of the engagement of counsel to “special cases” enjoys no foundation in the rules of the magistrate’s court nor in the practice followed in that court, and is clearly unacceptable.
With reference to the circumstance that the appellant abandoned a portion of her claim to bring it within the jurisdiction of the magistrate’s court the magistrate’s further reasons contain the following paragraphs:
“Though someone may argue that the matter has been brought to district court because of expenses I strongly feel that a irregardless (sic) of that argument a High Court matter deserve to be taken to High Court otherwise we will find ourselves in a situation where a Mini High Court is created by practice in the District Court.  I do not think this is the intention of our legislature.”
Suffice it to say that this reasoning is difficult to follow and that to the extent that this approach contributed to the magistrate’s coming to the conclusion reached by him, it is clear that a wrong principle was adopted. The court held that where a plaintiff is awarded an amount that falls within the jurisdiction of the magistrate’s court it does not lie within the mouth of that plaintiff, in an attempt to secure an order for costs on a higher scale, to point to the fact that it was alleged that the claim was in an amount in excess of that jurisdiction, but that the claim was reduced to the limit of that jurisdiction.
The issue of the costs of the hearing on 8 August 2008 remains. The magistrate was not entitled in his further reasons to supplement the orders made in his judgment by the addition of a further order. In any event he did not motivate his finding that the costs in question were “wasted costs” nor his ruling that same should be paid by the appellant. Neither can be supported.
The appeal succeeds. The costs order issued by the magistrate is set aside and for it is substituted with the following:
“The defendant will pay the plaintiff’s taxed party and party costs, such costs to include:
1. the costs of the hearing on 6 August 2008;
2. counsel’s fees in amounts not exceeding double the amounts set out in the relevant tariff contained in Part IV of Annexure 2 to
the Rules.”

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:
• Fax : (021) 422 4378,
• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax 2 e-mail : 086 616 8308

And to lighten up your day here’s your joke –
NASA was interviewing professionals to be sent to Mars. Only one could go — and couldn’t return to Earth.  The first applicant, an engineer, was asked how much he wanted to be paid for going. “A million dollars,” he answered, “because I want to donate it to M.I.T.”

The next applicant, a doctor, was asked the same question. He asked for $2 million. “I want to give a million to my family,” he explained, “and leave the other million for the advancement of medical research.”
The last applicant was a lawyer. When asked how much money he wanted, he whispered in the interviewer’s ear, “Three million dollars.” “Why so much more than the others?” asked the interviewer.
The lawyer replied, “If you give me $3 million, I’ll give you $1 million, I’ll keep $1 million, and we’ll send the engineer to Mars.”