Spartan Caselaw

RNT obo DORM v Amanfo [2024] ZANWHC 91

COSTS – Calderbank offer ­­­– Medical negligence claim

Two court days before trial, plaintiffs making secret offer for defendants to concede 85% liability – After protracted trial, court finding defendants 100% liable – Court unaware of secret offer when making costs order – Whether rejection of plaintiff’s Calderbank offer was unreasonable – Contributory negligence on part of doctor not affecting plaintiff’s claim against doctor and hospital – Expert joint minutes and hospital records indicating sub-standard management of plaintiff’s labour – Application for reconsideration of costs granted and costs order amended.

Facts: The plaintiffs claimed damages arising from the brain injury suffered by the plaintiff’s daughter during birth. Two court days before the commencement of the trial, on 11 March 2020, the plaintiff made a common-law secret offer of settlement for the defendants to concede 85% liability for plaintiff’s agreed or proven damages including agreed or party-and-party costs. The defendants did not accept the plaintiff’s offer. The joint minute of the nursing experts agreed that, based on the hospital’s own records, the management of plaintiff’s labour on the day was sub-standard. The hospital’s records exposed the poor management of plaintiff’s labour on the one hand, especially insofar as the monitoring is concerned, while on the other hand they record different and conflicting information about the plaintiff’s labour progress. After a protracted trial, the court gave judgment wherein it held the defendants 100% liable for plaintiff’s agreed or proven damages.

Application: The plaintiff brought an application for the reconsideration of the cost order granted against the defendants on the basis that when judgement was given on the costs, the court was unaware of the common-law secret offer of settlement. It is now accepted by our courts that Calderbank offers can be utilised by the plaintiffs to request costs over and above costs on the party-and-party scale and on attorney-and-client or attorney-and-own-client scale where the defendant has unreasonably rejected the plaintiff’s offer. The main aim being to reduce the plaintiff’s irrecoverable costs incurred after the defendant refused to accept the plaintiff’s reasonable secret offer. The underlying principle being that considerations of public policy encourages settlements and discourages costly litigation.

Discussion: The issues are whether the defendants’ rejection of the plaintiff’s Calderbank offer was unreasonable. Further, whether the timeframe (spatium deliderandi) of four calendar days and two court days provided to the defendants by the plaintiff to consider the offer was reasonable. For the plaintiff it was averred that the plaintiff’s Calderbank offer to the defendants to accept 85% of liability towards the plaintiff’s proven or agreed damages “beat” the 100% liability that was awarded by the court. Accordingly, the rejection of that offer by the defendants was unreasonable. Mr Joubert on behalf of the hospital disputed that the rejection of that offer by the hospital was unreasonable. He contended that from the outset, the hospital had not only denied liability in toto but had also pleaded in the alternative, contributory negligence against Dr Ofori. Mr Joubert further contended that a timeframe of two court days provided by the plaintiff for the defendants to consider the plaintiff’s offer was unreasonable.

Findings: Contributory negligence was not attributed to the plaintiff, but was between the defendants inter se and they would be jointly and severally liable. The nursing and midwifery staff of the hospital had a legal duty to see that plaintiff’s labour progressed unhindered in addition to and independently from Dr Ofori’s legal duty. The hospital had already admitted in its plea that it had such a duty. It would be a sad day in the history of healthcare that hospitals, let alone private hospitals who are paid huge sums of money to provide healthcare to patients, would disavow their responsibilities to care for their patients on the basis that the patients’ doctors are present in the hospital. In light of the information available to the defendants, they should have been alerted to the high risk of continuing with the trial especially considering the nature of the action and the level of proof that the plaintiff required to succeed. The hospital could and should have made a proper assessment of its case and the risks inherent in running a trial of this nature. Counsel for the plaintiff did not dispute the unreasonableness of the time frame provided to the defendants to consider the offer. However, the spatium deliberandi was not relevant as the defendants, particularly the hospital, never accepted and were never going to accept the plaintiff’s Calderbank offer. Therefore, the hospital has no cause to complain that the spatium deliberandi was unreasonable.

* See AD v MEC for Health, Western Cape [2017] ZAWCHC 17 from para [40] on Calderbank offers.

Order: The plaintiff’s application for reconsideration of the costs is granted. The order is amended to provide for the defendants to pay “the plaintiff’s taxed or agreed party-and-party costs on the High Court’s scale up to and including 11 March 2020, and from 12 March 2020, the plaintiff’s taxed or agreed attorney-and-own-client costs on the High Court’s scale, such costs to include: . . .”

NOBANDA AJ

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Andeon Housing Portfolio v Shadung [2024] ZAGPJHC 330

EVICTION – Urgency – Student accommodation – Alleged hijacking of property

Respondent placing students in occupation of applicant’s property – Unable to regain control of property – Real and imminent danger of damage to property – Hardship to applicant and bona fide occupiers far exceeding potential harm to respondents who do not have any right to occupation – Respondents have overseen invasion of applicant’s property – Ordered to vacate within 48 hours – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 5(1).

Facts: The applicant is a property-owning company and is the owner of the property related to this case. The respondent was employed by the applicant as a caretaker of the property and was permitted to occupy the property to carry out his duties. The employment relationship has been terminated. The respondent purporting to act on behalf of the applicant concluded an accreditation agreement with a third party for the applicant’s property to be accredited as private student accommodation. The applicant obtained an order interdicting the respondent from leasing out units or rooms. The applicant obtained a further order interdicting the respondent from leasing out rooms, collecting rental, permitting people who are not in occupation of the property to enter the property and take up occupation, and purporting to act on behalf of the applicant for any purpose. The respondent continued to place students in occupation of the property and the numbers rose from about 17 to about 50. By the end of February there were approximately 108 and by early March 2024 there were approximately 200 students.

Application: The applicant sought orders in two parts. In part A it sought an order that pending the finalisation of the proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 contemplated in part B, the respondents be evicted from the property in terms of section 5(1) of the Act, and related relief. The applicant therefore seeks the interim eviction of the respondents in terms of section 5(1) of the Act.

Discussion: The applicant refers to the continued occupation of the property and the chaotic situation created by the respondent and that if he remains in occupation the applicant will not be able to regain control of the property. The applicant submits that unless the respondent and his brother (second respondent) who occupies the property through him are evicted on an urgent basis the hijacking of the property will continue. The applicant informed the students of the pending dispute and confirmed that the application to court would not be aimed at registered students nor would it affect their occupation of the property. The university has been furnished with a copy of the court order and the applicant would seek accreditation with the university once the fraudulent accreditation granted to the first respondent had been cancelled. Leases would then be normalised. Students were advised that they should not make any payments to the respondent or any of his representatives and to alert the applicant of any attempt to extort money from them by threats. However, the respondent physically prevented delivery of letters to the property.

Findings: The requirements in section 5(1) of the Act have been met. There is a real and imminent danger of damage to the property and harm to the bona fide students who are at the property to pursue their studies, and the hardship to the applicant and the bona fide occupiers by far exceeds the potential harm to the respondents who do not have any right to occupation. The respondents have overseen an invasion of the applicant’s property and the applicant is in danger of losing the use of his own property to the detriment of its lawful business and to the detriment of university students. The property is also undergoing maintenance that has not yet been completed and incomplete construction work may possibly pose a danger to students. The right to occupation initially granted to the respondent was a limited right and was linked to his employment as a caretaker. He did not have permission to rent out rooms or to use the property for business purposes on his own behalf of on behalf of anybody else. The applicant has, if not a clear right to the use and enjoyment of its building, then at least a prima facie right and that the balance of convenience favours the applicant. It needs to protect its property from damage and to regularize its relationship with the university and then to use the property to earn income by providing legitimate accommodation to legitimate students.

Order: Pending the finalization of the proceedings contemplated in part B of the notice of motion, the first and second respondents are evicted in terms of section 5(1) of PIE from the property. The first and second respondents are ordered to vacate the property within 48 hours of service of the order.

MOORCROFT AJ

Ackerman v City of Johannesburg [2024] ZAGPJHC 334

MUNICIPALITY – Billing – Dispute – Applicant contending that water and electricity charges excessive

Queries and demands made by her attorney constituting “dispute” for section 102(2) of the Systems Act – Applicant paying on monthly basis what she contends is reasonable – After several years of engaging with City, applicant left with no alternative but to institute action – City interdicted from disconnecting services to applicant’s property and ordered to furnish applicant with detailed explanation to queries raised – Punitive costs awarded – Local Government: Municipal Systems Act 32 of 2000, s 102(2).

Facts: The applicant resides at her home in Johannesburg and is entirely dependent on the City of Johannesburg for the supply of electricity and water. In total, three adults and one child occupy a house on the property. According to statistics relied on by the applicant (and which were not placed in dispute by the City) the average water consumption in residential households similar to that of the applicant is 300 litres per person per day. The average rate of consumption for which she is being billed by the City is 3,303 litres per day. In relation to her electricity charges, she has had a long and turbulent history of interaction with the City since March 2017, when she first brought the issue of excessive charges to the attention of the City.

Application: According to figures put up by the applicant, she has paid an amount of R844,717.52 between January 2019 and August 2022 in respect of what she contends is the reasonable costs for electricity and water utilised on her property. She continues to pay on average R12,000 per month, which she also believes is in excess of her deemed usage, all the while trying to resolve an ongoing dispute with the City for the past five years over what she contends is inaccurate billing, based on estimates, double charges and inexplicable, nonsensical invoices furnished by the City. The applicant seeks to interdict disconnection and an order to compel the City to correct her municipal account, following the threatened termination of her water and electricity supply by the City on the basis that her account was in arrears.

Discussion: From the outset, the applicant began lodging disputes with the City based on the monthly charges invoiced to her account. In response to the queries, the applicant received a “screen dump” from Mr Nkosi of the City. The applicant contends that this document was impossible to understand, containing terms such as “IS-U Invoicing”; “Reset cleared items”; “IS-U inv. Reversal” and “Payment Lot”. The applicant engaged the services of an attorney, Mr Luke Mouyis, who had prior experience in interacting with the City in similar matters. In the course of his engagement with the City, Mr Mouyis established that there was an error in the billing system used by the City. To make matters worse, the applicant then ascertained that the City was billing her based on meter readings from an incorrect water meter. Despite bringing this to the attention of the City through Mr Mouyis, the City continued to demand from the applicant the amounts contained in its statements. With no end in sight after several years of engaging in correspondence with the City, the applicant was left with no alternative but to institute action against the City.

Findings: The litany of queries lodged by the applicant in respect of her municipal services account held with the City, as well as the formal demands made by her attorney, are sufficient to meet the burden of proof for the injunctive relief sought by the applicant, and that such queries and demands constitute a “dispute” within the meaning of section 102(2) of the Local Government: Municipal Systems Act 32 of 2000. The City’s approach towards the applicant was as if it were dealing with a delinquent consumer. She is not. Her evidence under oath is that she continues to pay on a monthly basis what she contends is a fair and reasonable amount based on what she consumes. Her conduct is not that of someone seeking to avoid paying for services. The approach of the City has been anything but one which fosters a spirit of co-operation. The applicant has been treated in a manner at variance with the standards which the City is obliged to treat its residents. It cannot be accepted that a resident should have to complain for years regarding a proper explanation for the exorbitant costs levied against her account, all the while being under threat of disconnection. In the circumstances, the applicant was compelled to approach the court after her pleas for intervention fell on deaf ears. The City’s conduct should be sanctioned with a punitive costs order.

Order: The City is interdicted from disconnecting the applicant’s property pending the final determination of the application and the final resolution of all disputes in respect of the account for electrical and water services actually consumed. The City is directed to furnish the applicant with a detailed explanation to the queries raised by the applicant. Pending the final resolution of the dispute, the applicant is directed to pay R12,000 per month to the City in respect of the deemed usage of water and electricity. The City is directed to pay the applicant’s costs on an attorney and client scale.

CHETTY J

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ABOUT SPARTAN CASE LAW

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law

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