Du Toit v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: A Eillert AJ
• Judgment Date: 17 December 2021
• Docket Number: 454/2010
• Hearing Date: 17 December 2021
• Court: Northern Cape Division
• Citation: 2022 JDR 0334 (NCK)

Eillert AJ:

1.

This matter concerns an application by the plaintiff for a special costs order against the defendant. The plaintiff instituted a claim for damages against the defendant arising out of a motor vehicle accident that occurred on 18 May 2007. After the defendant had conceded the merits of the plaintiff's claim, the trial in respect of the quantum of the plaintiff's claim came before Mofokeng AJ on 24 November 2020.

2.

Mofokeng AJ delivered judgment on 11 December 2020. The judgment contained somewhat extensive provisions for the payment of the plaintiff's costs by the defendant. Broadly speaking, Mofokeng AJ awarded the plaintiff costs on the High Court scale as between party and party.

2022 JDR 0334 p2

Eillert AJ

3.

On 18 December 2020 the plaintiff's counsel, Mr Eia, addressed an e-mail to Mofokeng AJ's clerk, requesting that the Acting Justice's attention be draw to the fact that on 14 October 2020 the plaintiff had made a so-called Calderbank offer to the defendant. Mofokeng AJ was requested to exercise her discretion in favour of the plaintiff and to award the plaintiff costs on the attorney and client scale in view of the aforesaid Calderbank offer.

4.

On 25 January 2021 Mofokeng AJ advised the plaintiff's legal representatives through the acting court manager that, having considered the plaintiff's request, she was of the view that the order that had been granted should stand.

5.

The plaintiff persisted with his request and on 25 February 2021 launched the application that is the subject of this judgment. The plaintiff now seeks relief in the following terms:

"That the respondent/defendant is liable for the applicant/plaintiff's costs on an attorney and client scale, from the date of service of the applicant/plaintiff's Calderbank offer ...."

6.

The application was properly served upon the defendant and brought to the attention of the claims handlers of the defendant beforehand. The defendant elected not to oppose the application. A judgment-monitoring officer in the employ of the defendant, Mr. A. Rakgwale, did attend the hearing of the application, but informed the Court that he did not have any instructions in the matter. The factual averments and legal submissions made by plaintiff's legal representatives in the application are therefore undisputed.

7.

The events that led up to the plaintiff making the so-called Calderbank offer were these. The plaintiff's attorneys served the notice of set down in respect of the quantum trial on the defendant's attorneys on 20 February 2020. On 4 March 2020, the defendant's attorneys withdrew as attorneys of record. The plaintiff 's attorneys therefore sent a copy of the notice of set down and the defendant's former attorneys' notice of withdrawal to the defendant by e-mail on 29 July 2020. On 18 September 2020, a bit more than two months prior to the quantum trial, the plaintiff's attorneys sent a "without prejudice" settlement proposal to the defendant's claims handlers. One of the claims handlers, Mr. Frank, read the e-mail from the plaintiff's attorneys on 25 September 2020. No response was however forthcoming from the defendant. On 2 October 2020, the plaintiff's attorneys sent a follow-up email to the defendant's claims handlers. This e-mail was again read by Mr. Frank, and on the same day elicited a response from a Mr. Mowzer stating that Mr. Frank would attend to the matter as soon as humanly

2022 JDR 0334 p3

Eillert AJ

possible. By 14 October 2020, the plaintiff's...