NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
 (WITWATERSRAND LOCAL DIVISION)
JOHANNESBURG
CASE NO:16265/03
DATE:2005-05-16

In the matter between
CHARMAINE MAY VAN ROOYEN..................................................................................Plaintiff
and
ROAD ACCIDENT FUND............................................................................................Defendant

ORDER

WILLIS, J: The issue before me is purely concerned with the appropriate order as to costs.
The plaintiff instituted action in this matter on 30 July 2003 following an accident which occurred on 30 November 2002, during the course of which she sustained cerurvical whiplash and a lower back sprain. The plaintiff has been treated at hospital and clinical examination has revealed a narrowing L5-S1 disk space.

The plaintiff has claimed future medical expenses and damages for pain and suffering and also loss of earnings. The quantum of the plaintiff's claim exceeds R100 000,00.
At the pretrial conference which was held on 21 April 2005 the parties agreed that the issues of quantum and merits be separated in terms of Rule 33(4), the former to be postponed sine die. During that same conference it is pertinently minuted in the pretrial minute that:-
"It was agreed that the case should not be transferred to another court."

On 5 May 2005, a mere six court days before the trial which had been set down concerning the merits, the defendant conceded the merits in full. The defendant has made no tender with regard to the plaintiff's claim on quantum of which I have been made aware. Furthermore the defendant at no stage in the pleadings took issue with the fact that the plaintiff had instituted a claim in the High Court.

The plaintiff now wishes that costs be ordered in respect of the merits of the claim on a High Court scale. The defendant has submitted that costs should be reserved. Both parties have submitted that as very much a second prize for each of them, I should award costs on a High Court scale on condition that should the quantum be settled or determined by the court at an amount short of R1 00 000,00 the plaintiff should reimburse the defendant in respect of the excess of the costs on a High Court scale in comparison with those on a Magistrate's Court scale.

On the pleadings before me it is not obvious that the quantum ultimately will be determined above R100000,00, neither is it obvious that the quantum will be determined or settled at less than R100 000,00.

It seems to me that to reserve costs, although there may be certain theoretical advantages in this, would needlessly complicate matters between the parties. Furthermore the alternative choice of both parties would in my view be a clumsy one, especially in the circumstances of this particular case.

Taking a broad perspective of the matter and the manner in which the litigation has been conducted, it is in my view relevant and significant that the defendant at no stage prior to 5 May 2005 took issue with the plaintiff for instituting the action in the High Court. Furthermore at a pretrial conference that was held only recently it was agreed that the matter should not be transferred to another court. Furthermore when the merits were conceded, they were conceded without any qualification with regard to costs.

In the circumstances of this particular case I do not Think that the plaintiff can be criticised in any way for having instituted the action in the High Court and it would, in my view, be unfair and not the most equitable solution were I to fail to award the costs of the merits of the action on a High Court scale.
The following order is made:
The defendant is to pay the plaintiff's costs with respect to the merits of this particular claim on the High Court Scale.