JUDGMENT. [1] The sole issue for adjudication in this action concerns the question of costs.

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (EAST LONDON CIRCUIT LOCAL DIVISION) CASE NO: EL 309/01 In the matter between: PULA MVULA MATSHIKWE Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT EBRAHIM J: Introduction [1] The sole issue for adjudication in this action concerns the question of costs. The defendant has applied for an order for costs de bonis propriis against the plaintiff s attorneys, B Nduli & Co, who have opposed the application. Background [2] On 6 August 2001 the plaintiff, represented by attorneys I C Clark Inc, issued summons against the defendant pursuant to the provisions of the Road

2 2 Accident Fund Act, 56 of 1996 ( RAF Act ), for damages arising from bodily injuries he sustained on 2 June The plaintiff alleged that he had been knocked down by an unknown motor vehicle while a pedestrian in Frederick Street, Lennox Extension, Panmure, East London. [3] The defendant was served with the summons on 6 September 2001 and some eight months later, on 16 May 2002, delivered a notice of intention to defend the action. On 5 July 2002, the defendant s attorneys interrogated the plaintiff in terms of regulation 2(6) of the RAF Act. On 26 September 2002, the defendant delivered a special plea, in which the issue of non compliance with regulations 2(1)(b) and (c) (promulgated under s 26 of the RAF Act) was raised, and pleaded over on the merits. The plaintiff did not replicate and pleadings were deemed closed. [4] In terms of Rule 37A, a pre trial conference was held on 19 November 2002, and the minute signed on 22 April and 25 April 2003 by the attorneys for the plaintiff and the defendant respectively. Prior to signature of the minute, the plaintiff s attorneys had applied for a trial date and the action was set down for trial on 6 June On 14 May 2003, the plaintiff prepared a reply to the defendant s request for further particulars for trial but delivered it only on 14 February 2006, the day before the trial.

3 3 [5] On 30 May 2003, attorneys I C Clark Inc withdrew as the plaintiff s attorneys. The plaintiff therefore appeared personally on 6 June 2003 when the matter was postponed sine die. On 24 June 2003, attorneys B Nduli & Co wrote to the defendant s attorneys to advise they were acting for the plaintiff and delivered a formal notice on 8 July At the request of the defendant s attorneys, the action was then set down for trial on 28 January However, on 4 September 2003 B Nduli & Co withdrew as the plaintiff s attorneys. A week before the trial the defendant s attorneys removed the matter from the trial roll. After reappointment as the plaintiff s attorneys (in August 2005 it would appear) B Nduli & Co applied for a trial date and the action was set down for trial on 15 February [6] On 15 February 2006 the Plaintiff, instead of proceeding with his claim, consented to the defendant s special plea being upheld and his claim being dismissed with costs. The defendant thereupon applied for an order that costs de bonis propriis be awarded against B Nduli & Co in relation to the period 24 June 2003 to 15 February 2006 including the proceedings for the day. Arguments presented [7] Mr Beyers, who appeared for the defendant, submitted B Nduli & Co had been grossly negligent in the manner in which they conducted the plaintiff s

4 4 case. They had failed to apprise themselves of what had transpired in the matter. The special plea had raised the issue of the plaintiff s non compliance with the provisions of regulations 2(1)(b) and (c). They should have advised the plaintiff earlier that he had no prospect of success as he had furnished unsatisfactory and contradictory information regarding the date of the accident and the date on which he reported it to the police. This delay on the part of B Nduli & Co had resulted in costs being incurred unnecessarily. [8] The correspondence between the attorneys showed B Nduli & Co had also made life as difficult as possible for the defendant. They also failed to attend a pre trial conference scheduled for 10 February Then, the reply to the defendant s request for further particulars was delivered only the day before the trial. They should therefore be liable for the costs incurred from 26 June 2003 to the date of trial. [9] The submissions of Mr Nduli, who appeared for the plaintiff, were brief. He refuted the defendant s allegation that they had been grossly negligent. He submitted the plaintiff s erstwhile attorneys, I C Clark Inc, were negligent and had failed to ascertain the correct date of the accident and the date it was reported to the police. They, on the other hand, had made the necessary investigations in this regard. They had acted diligently and the defendant had not shown they were grossly negligent.

5 5 Evaluation [10]It is trite that the details of a plaintiff s claim are set out in the particulars of claim of the summons. The essential facts would emanate from instructions that a plaintiff has furnished to the attorneys. I have no reason to think that the position in the present case is any different. It is reasonable to assume therefore that prior to issuing the summons the plaintiff s erstwhile attorneys, I Clark Inc, verified all the essential facts upon which the plaintiff s claim is based. It is apparent this would have necessitated establishing whether or not there had been compliance with regulations 2(1)(b) and (c) (promulgated under s 26 of the RAF Act). In this regard the particulars of claim contains the averment that [t]he plaintiff has complied with all the prescribed requirements of the defendant as set out in the RAF Act. [11]The defendant, quite correctly, raised the plaintiff s non compliance with the provisions of regulation 2(1)(b) and (c) in a special plea. Subsequent thereto, in response to questions from the defendant s attorneys, the plaintiff s erstwhile attorneys stated at a pre trial conference on 19 November 2002 that the plaintiff denied that he had not complied with these provisions. [12]It must have been apparent to the parties that the issue of non compliance with regulations 2(1)(b) and (c) was one that, in terms of rule 33(4) of the

6 6 Rules of Court, should be decided separately from the merits of the plaintiff s claim. Quite clearly, it is an issue that fell to be so decided. I fail to understand therefore why neither of the parties dealt with this at the pre trial conference. In my view, both the plaintiff s and the defendant s attorneys were clearly remiss in not doing so. If proper attention had been given to this, the unhappy saga of this action dragging on for four and a half years would in all probability have been avoided. [13]Mr Beyers, inexplicably, has not sought an order for costs de bonis propriis against I Clark Inc even though they represented the plaintiff when the action was instituted. It seems illogical to direct an allegation of gross negligence against B Nduli & Co without directing a similar allegation against I Clark Inc. After all, before summons was issued it was their responsibility and not that of B Nduli & Co to verify that there had been compliance with the provisions of regulations 2(1)(b) and (c). [14]It appears that during April and May 2004 the attorneys corresponded with each other regarding the fact that certain documents reflected different dates on which the accident occurred. There is no indication what transpired thereafter and regrettably neither Mr Nduli nor Mr Beyers elucidated any further on this.

7 7 [15]In a proper case the Court will indicate its disapproval of an attorney's improper or negligent conduct by ordering him to pay a portion of the costs of the opposite side. See Nkosi v Caledonian Insurance Co 1961 (4) SA 649 (N). The crucial question is whether the failure of B Nduli & Co to advise the plaintiff at an earlier stage that the special plea was well founded amounts to conduct that warrants the sanction of a punitive costs order. [16]Lawyers are required to act in the best interests of their clients at all times. Where it is apparent that a claim has no prospect of success they should advise the client not to continue with the action. At the same time, the right of litigants to have their claims adjudicated in a court of law should not be negated and must be accorded due recognition. It must be emphasised also that matters must be concluded expeditiously and with the least possible cost to litigants. [17]I am constrained to say that B Nduli & Co could certainly have attended to this matter more expeditiously. However, tardiness in itself does not constitute gross negligence. There is no indication their actions were frivolous or vexatious or that they acted in bad faith. On the available information, I cannot conclude that their explanation that the delay was due to investigations they were conducting is spurious. I am not persuaded that this is a proper case where a punitive costs order against the plaintiff s attorneys

8 8 would be justified. In the circumstances, I do not uphold Mr Beyers submission that B Nduli & Co were grossly negligent. Conclusion and order [18]In the result, the defendant s application for an order for costs de bonis propriis against B Nduli & Co in respect of the period 26 June 2003 to date of trial including the proceedings for the day is refused. Since the plaintiff conceded that his claim be dismissed with costs, the plaintiff is ordered to pay the costs of the action. In respect of these proceedings, I consider it just that there be no order as to costs. Y EBRAHIM JUDGE OF THE HIGH COURT 15 MARCH 2006 Heard on: 15 February 2006 Judgment handed down on: 16 March 2006 Attorney representing the plaintiff: Mr B Nduli Attorneys for the plaintiff: B Nduli & Co 18 Porter Street EAST LONDON Attorney representing the defendant: Attorneys for the defendant: Mr F Beyers Hart & Beyers 6A Sansom Road Vincent EAST LONDON

9 9 FORM A FILING SHEET FOR EASTERN CAPE JUDGMENT PARTIES: PULA MVULA MATSHIKWE Plaintiff and ROAD ACCIDENT FUND Defendant

10 10 Registrar CASE NO: EL 309/01 Magistrate: Supreme Court of Appeal/Constitutional Court: EAST LONDON LOCAL DIVISION DATE HEARD: 15 February 2006 DATE DELIVERED: 16 March 2006 JUDGE(S): EBRAHIM J LEGAL REPRESENTATIVES - Appearances: for the State/Applicant(s)/Appellant(s)/Plaintiff(s): Mr B Nduli for the accused/respondent(s)/defendant(s): Mr F Beyers Instructing attorneys: Plaintiff(s)/Applicant(s)/Appellant(s): Mr B Nduli Defendant(s)/Respondent(s): Mr F Beyers CASE INFORMATION - Nature of proceedings : COSTS Topic: