Du Plessis v The MEC for the Department of Public Works, Raods & Transport

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: RD Hendricks DJP
• Judgment Date: 02 July 2020
• Docket Number: 1001/2010
• Hearing Date: 26 June 2020
• Court: North West High Court, Mafikeng
• Citation: 2021 JDR 1541 (NWM)

Hendricks DJP:

Introduction:

[1]

The applicant, as plaintiff, instituted an action for damages arising out of a motor vehicle accident that occurred on 15th July 2008, on the Afrikanermyn road. Liability and quantum were separated. The trial to determine liability was conducted from 09th March 2017. On 20th April 2017, this Court handed down judgment in which it was ordered that liability is apportioned to each of the plaintiff (appellant) and the defendant (respondent) on an equal basis (50/50). No order as to costs were made.

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[2]

On 11th May 2017, the applicant (plaintiff) filed a notice of application for leave to appeal. The grounds of appeal are the following:

"BE PLEASED TO TAKE NOTICE FURTHER that the abovementioned Applicant intends to apply for leave to appeal on the following grounds of fact and of law:

1.

His Lordship erred in not finding:

1.1

That the Applicant was entitled, in view of his successful prosecution of his claim, to his costs of the suit;

1.2

That the Applicant, in establishing a substantial right against the Respondent, namely liability for the delict committed by the Respondent against the Applicant, was entitled as the successful party to his costs of suit;

1.3

The absence on the part of the Applicant of any grounds upon which the Applicant could be deprived, as successful party, of his costs of the suit;

1.4

That the Respondent, in its conduct of the litigation:

1.4.1

Had increased costs by the joinder of a third party which costs were unnecessary and ineffectively incurred in that this resulted in postponement of the matter which joinder was ultimately abandoned and withdrawn;

1.4.2

Had allowed an attempted misleading of the Court by tendering a document in evidence which had been tampered with and changed after it had been discovered to the Applicant.

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2.

His Lordship erred in finding, if not expressly, then by necessary implication:

2.1

That the Applicant was not substantially successful in the prosecution of his claim against the Respondent; and/or

2.2

That the Applicant had misconducted himself in the conduct of the litigation; and/or

2.3

That exceptional circumstances existed (albeit that these were not expressly stated) which justified depriving the Applicant of his costs.

3.

In the circumstances, it is respectfully submitted that the Honourable Court failed to exercise its discretion judicially regarding the Applicant's costs of suit in this matter.

4.

It is respectfully submitted that another Court could reasonably come to different findings regarding the Applicant's costs of suit and the liability of the Respondent in respect thereof and that the Applicant therefore has reasonable prospects of success on appeal.

WHEREFORE the Applicant prays that it may please this Honourable Court to grant him leave to appeal to the Full Bench of the North West High Court, alternatively to the Supreme Court of Appeal."

[3]

The application for leave to appeal was set down for 26th June 2020, to be decided on the papers. It is quite apparent from the grounds of appeal that leave to appeal is sought only against the costs order.

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The applicant allege that he was substantially successful during the trial and as such, he is entitled to be awarded costs.

[4]

As far as liability and costs are concerned, the following was stated in the (main) judgment of this Court, which deserve to be repeated:

"[11]

Adv. Kriel on behalf of the Plaintiff, quite correctly in my view, conceded that there should be an apportionment of liability. This submission is based on the fact that if Mr. Mosala evidence is rejected, which the Court will do, than there is no credible evidence that there were warning signs along the Afrikanermyn road to warn a motorist about the T-junction in the road ahead. He also readily conceded that the Plaintiff, Mr. Du Plessis, did not see the stop sign that was there at the T-junction and Mr. Du Plessis did not stop at the stop sign which resulted in the accident. The apportionment, so it was submitted, should be on a 60/40 basis in favour of the Plaintiff.

[12]

Adv. Moagi on behalf of the Defendant also conceded to apportionment of liability. She submitted that it should be on a 70/30 basis in favour of the Defendant. This is based on the fact that it was not the first time that the Plaintiff travelled on that Afrikanermyn road and he knew that there was a T- junction along the road. It was contended that, even if, for argument sake, there were no warning signs along the road warning a motorist of the T-junction, the fact that the Plaintiff knew about the existence of the T-junction, he should have been extra cautious in travelling along that road because of

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the knowledge of the T-junction. Furthermore, he was travelling at night and exceeded the speed limit of 100 km/h as he travelled at 120 km/h. So too, was he not cautious enough because he was travelling at such a high speed at night whilst conversing with the other occupants inside the motor vehicle. This, so it was submitted, makes him more negligent than what the Defendant was.

[13]

I do not agree with either of the submissions by both counsel. In my view both the Plaintiff and the Defendant were equally negligent and the apportionment must be on a 50/50 basis. There is no credible evidence that there were indeed warning signs along the Afrikanermyn road warning motorists that the road will end in a T-junction. Similarly, it is clear from the evidence tendered that there was no chevron sign at the accident scene as testified by the police officer, Sgt. Mathlako. I find that it was erected after this accident occurred as testified to by the Plaintiff and Mr. Ross. On the other hand, the Plaintiff travelled at an excessive...