Erasmus v Santam Insurance Ltd and Another

• Jurisdiction: South Africa
• Judge: Flemming DJP
• Judgment Date: 22 January 1991
• Citation: 1992 (1) SA 893 (W)
• Hearing Date: 14 November 1990
• Court: Witwatersrand Local Division

Erasmus v Santam Insurance Ltd and Another
1992 (1) SA 893 (W)

1992 (1) SA p893

Citation	1992 (1) SA 893 (W)
Court	Witwatersrand Local Division
Judge	Flemming DJP
Heard	November 14, 1990
Judgment	January 22, 1991

Flynote : Sleutelwoorde G

Tender — Application to Court in terms of Rule 34(9) of Uniform Rules of Court for order for costs — Rule 34(9) not creating substantive right to costs — Only prescribes method which party believing he is H entitled to costs should follow to bring matter before Court — Once offer of settlement accepted, rights of parties determined in accordance with intended scope of the offer.

Tender — Application to Court in terms of Rule 34(9) of Uniform Rules of Court for order for costs — Offer by defendant, without prejudice or admission of liability, to pay plaintiff a stipulated amount 'and I plaintiff's taxed or agreed party and party costs to date of this tender' — Plaintiff accepting such offer — Plaintiff claiming in application in terms of Rule 34(9) entitlement to costs of second counsel and qualifying fees of certain expert witnesses — On acceptance of offer, plaintiff not entitled to claim more than was offered — Not J possible to have acceptance of offer which has created a contract

1992 (1) SA p894

A of settlement but which operates, despite defendant's intention, as if it also contained provision for plaintiff retaining the right to ask Court for something additional to what was offered — Offer of costs to particular date not including costs incurred after such date or an item which is only included in a costs order when a rider thereto is added — Application dismissed. B

Headnote : Kopnota

Generally, the Rules of Court create no more than procedural entitlements or obligations. Rule 34(9) of the Uniform Rules of Court is no different. It does not create a substantive right to costs. It prescribes how a party who has accepted an offer in terms of Rule 34 and who believes that he is entitled to an order for costs should go about bringing his complaint before the Court. Whether such party is in fact C entitled to costs depends on something outside Rule 34(9). On analysis the Rules need not provide and do not create an entitlement to costs. They essentially leave an accepted offer (of settlement) to determine the rights of the parties after acceptance in accordance with the probably intended scope of the offer.

In an action for damages the second defendant had, about a week before the trial was due to commence, 'as an offer of settlement of plaintiff's D claim, . . . offer(ed) to pay to plaintiff an amount of R197 415 and plaintiff's taxed or agreed party and party costs to date of this tender'. Four days after the offer had been delivered to the plaintiff, the plaintiff decided to brief senior counsel in addition to the counsel already briefed. Three days later the plaintiff delivered a notice 'that the plaintiff hereby accepts second defendant's offer of tender contained in its notice dated . . .'. The plaintiff then applied in terms of Rule 34(9) for an order that it was entitled to the costs of a second counsel and to the qualifying fees of certain expert witnesses.

E Held, that the moment the plaintiff accepted the second defendant's offer, she accepted what was offered and could claim no more: on the basic principles of the conclusion of a contract, the plaintiff could accept only what was offered; nothing else was available to be accepted.

Held, further, that it was not possible to have an acceptance of an offer which succeeded in creating a contract of settlement, but which operated, despite the defendant's intention, as if it also contained a further clause to the effect that the plaintiff retained the right to F ask the Court to award something in addition to what was offered.

Modise v Standard General Insurance Co Ltd 1989 (2) SA 276 (W) approved.

Held, further, that the second defendant, in tendering costs to the date of the tender, did not offer costs incurred at a later date, nor on any special basis such as attorney and client costs, costs of two counsel or any other addition to liability for costs which, in the absence of a special addition to the order, did not attach to an order for the payment of 'costs' or an offer to pay 'costs'. G

Held, further, that an offer of 'costs' to a specific date will, upon acceptance, normally not include an item of costs which was deliberately (and avoidably) incurred on a later date (such as the fees of a second advocate in the present case), and will also not include an item which is included in the word 'costs' only when a rider is added to the order (such as the qualifying expenses of expert witnesses). Application dismissed. G

Case Information

Application in terms of Rule 34(9) of the Uniform Rules of Court for an order for costs. The facts appear from the reasons for judgment.

R L Selvan SC (with him D Unterhalter) for the applicant (plaintiff).

A B S Franklin for the respondent (second defendant).

I Cur adv vult.

Postea (22 January 1991).

Judgment

Flemming DJP:

On 31 August 1990 the attorneys of the second defendant J delivered the following notice:

1992 (1) SA p895

Flemming DJP

A 'Take notice that, without prejudice or admission of liability, and as an offer of settlement of plaintiff's claim, the second defendant hereby offers to pay to plaintiff an amount of R197 415 and plaintiff's taxed or agreed party and party costs to date of this tender.'

Plaintiff's counsel did not submit that the notice does not comply with the requirements of Rule 34(5).

B The first question is whether the offer did 'state' that it was intended to be in satisfaction of the plaintiff's entitlement, if any, to both compensation and to costs. The answer must be in the positive. That is the natural meaning of the words. It would also be rare and unnatural to find an offer to pay costs to partially compensate for C bodily injuries suffered in a motor collision. In order to 'state', there is no need to use prescribed...