Hassett v Santam Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Foxcroft J, Cooper J, Brand J
• Judgment Date: 01 August 1994
• Citation: 2000 (1) SA 403 (C)
• Docket Number: A1312/93
• Hearing Date: 01 August 1994
• Counsel: R D McDougall for the appellant. P A L Gamble for the respondent.
• Court: Cape Provincial Division

Brand J:

The appellant (plaintiff), who was injured in a motor vehicle collision, instituted action against respondent (defendant) under the J

Brand J

Multilateral Motor Vehicle Accident Fund Act 93 of 1989 for the damages A which he sustained as a result of his injuries.

On 9 August 1993 defendant served a notice on plaintiff in terms of Rule 34. It reads as follows:

'1. Without prejudice or admission of liability and by way of an offer in settlement of plaintiff's claim, the defendant hereby tenders payment of the sum of R690 000 to plaintiff. B

2. The above defendant also tenders, in the event of this offer of settlement being accepted by the plaintiff, to pay the plaintiff's taxed costs as between party and party to date of service of this notice, including any costs attendant upon the obtaining of payment of the amount referred to in para 1 above, and the qualifying expenses (the amount of such expenses to be fixed by the Taxing Master) of such C witnesses as it may consent to and, failing such consent, as may be ordered by the above honourable Court.'

On 23 August 1993 plaintiff had not as yet accepted the tender and the trial commenced before Carstens AJ. Plaintiff led the evidence of an expert witness, Dr Colin Froman. During the afternoon of that day, and while Dr Froman was still under cross-examination, the matter D was settled when plaintiff served the following notice on defendant:

'Be pleased to take notice that the plaintiff accepts the defendant's tender in terms of Rule 34(1).'

The only remaining issue related to the costs incurred after the E date of tender, ie 9 August 1993. Plaintiff contended that he was entitled to his costs up to 23 August 1993 while defendant argued that plaintiff was not entitled to any costs subsequent to the date of tender and that defendant was in fact entitled to a costs order in its favour.

After hearing argument on this issue on 24 August 1993 Carstens AJ made the following order: F

'1.

That defendant is to pay plaintiff the sum of R690 000.

2.

That defendant is to pay plaintiff's taxed costs as between party and party up to and including 9 August 1993, including the reasonable qualifying expenses of. . . .

3.

That plaintiff is to pay defendant's taxed costs as between G party and party after 11 August 1993, including the costs of Tuesday, 24 August 1993.'

It is para 3 of the order which forms the subject of this appeal. The reasoning behind that part of the order, as it appears from the judgment of the Court a quo, can be summarised as follows:

(a)

Defendant's tender does not only provide for a H settlement of plaintiff's claim, but also for a settlement of defendant's liability for costs. The plaintiff's unconditional acceptance of this tender resulted in an agreement between the parties in the nature of a contract which does not allow for any discretion by the Court to make a costs order in favour of plaintiff outside the ambit of the agreement. Plaintiff is therefore only entitled to such I costs as defendant had specifically undertaken to pay, ie until 9 August 1993.

(b)

Regarding defendant's costs subsequent to tender, the Court did have a discretion.

(c)

In the exercise of this discretion the Court decided that plaintiff J

Brand J

required some time to consider the tender, that a period of two days was A reasonable in this regard and plaintiff was therefore ordered to pay defendant's costs from a date two days...