SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE GAUTENG DIVISION HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)

Case Number: 39335/2007
NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED

In the matter between:

DR HF MOSTERT 	1st PLAINTIFF
(Personally and o.b.o M and E) 
S MOSTERT 	2nd PLAINTIFF
N MOSTERT 	3rd PLAINTIFF

AND

THE EXECUTIVE COMMITTEE FOR THE 
DEPARTMENT OF PUBLIC TRANSPORT 	1st DEFENDANT
GAUTRAINS 	2nd DEFENDANT
BOITSHOKO ROAD SURFACING CONTRACTORS 
(PTY) LTD 	3rd DEFENDANT
JEFFARES AND GREEN CONSULTING ENGINEERS 
(PTY) LTD 	4th DEFENDANT

JUDGMENT

MOLEFE J

[1] The First, Second and Third Plaintiffs, the First Plaintiff in his personal and representative capacity on behalf of his two minor children, claim damages from the First, Second, Third and Fourth Defendants arising from an accident which occurred on or about 8 November 2005, when a motor vehicle with registration numbers […], being driven by the First Plaintiff, collided with road works on the public provincial road P2/5 (R513) near Kameeldrift, Gauteng Province.

[2] The matter is settled and the full and final settlement of all the claims (including claims against third parties) and the apportionment thereof were settled inter alia in the following terms:
2.1.	The Plaintiffs and the Third and Fourth Defendants withdraw their actions and third party joinders against the First and Second Defendants, each party to pay their own costs;
2.2.	The First Plaintiff's claim, in his personal capacity, against the Third and Fourth Defendants is withdrawn, each party to pay their own costs;
2.3.	The First Plaintiff's claim in his representative capacities as the father of the two minor children, E and M Mostert is settled on the basis of payment of R150 000, 00 in respect of each minor child;
2.4.	The Second Plaintiff's claim is settled on the basis of payment of a single sum of R250 000, 00;
2.5.	The Third Plaintiff's claim is settled on the basis of the Fourth Defendant accepting liability for 70% of the Third Plaintiff's proved and agreed damages. It is noted that the agreed acceptance of liability includes the determination of any contributory negligence with regard to the issue of wearing a seatbelt.
2.6.	The Third and Fourth Defendants are liable to the First Plaintiff (in his representative capacity) and to the Second and Third Plaintiffs to pay the taxed or agreed High Court party and party costs. The costs are to include the reasonable costs of two counsel in respect of only the Second and Third Plaintiff.

[3] The Third and Fourth Defendants disavow liability for the costs of two counsel for First Plaintiff in his representative capacity. The issue to be determined by this Court is whether the First Plaintiff in his representative capacity is also entitled to reasonable costs of two counsel.

[4] Counsel for First Plaintiff in his representative capacity submitted that the principles applicable on this issue are trite: If it is wise and reasonable precaution for a party to engage two counsel to fight the case, it cannot be said that such party was indulging in a luxury. (See Henry v AA Mutual Ins Association Ltd 1979 (1) SA 105 (C) at 106 - 7)

Counsel further argued that all the plaintiffs in this case employed two counsel and the Third and Fourth Defendants have agreed to pay costs of two counsel for the Second and Third Plaintiffs. The costs disputed are not even for the First Plaintiff personally, but are for the minor children he was representing.

[5] It was further submitted on behalf of First Plaintiff that the case is complex and the documents voluminous and the trial was set down for a long hearing of ten days. It would have involved skilled cross-examination of expert witnesses as well as intense legal argument. These circumstances it was argued justifies the appointment of two counsel.

[6] Counsel for Third and Fourth Defendants argued that although the issues were the same, First Plaintiff in his representative capacity, decided during the proceedings of this matter, for personal reasons, to appoint his own legal representative and two counsel rather, than using the Second and Third Plaintiffs' counsel. Accordingly this is luxurious litigation and does not justify payment of costs for a total of four counsel by the Third and Fourth Defendants.

[7]  The purpose of the cost order is to indemnify a party for the expense to which he has been put through having to institute or defend an action. The fundamental rules are that the award of costs is a matter within the judicial discretion of the Court. The Court also has a discretion whether or not to allow the fees of two counsel.

[8] I agree with Advocate Geach's submission that in deciding whether or not fees of a second advocate should be allowed, the Court has regard to whether it was " wise and reasonable precaution to employ" two counsel. (See Steenkamp v Steenkamp 1966 (3) SA 294 (T) at 297 (G). However, the Court should also have regard to the amount involved and the nature of the issues in dispute. The circumstances of each case should guide the Court in order to determine whether it was reasonable owing to the complicated nature of the action to employ the considerations which might impel a prudent and reasonable attorney to decide on the number of Counsel to be employed.

[9] I am of the view that the present case is of such a complex nature that two counsel were necessary and that it was reasonable, prudent and responsible of the First Plaintiff in his representative capacity to have briefed two counsel to protect the interest of the minor children.  The other relevant consideration is the fact that the Third and Fourth Defendants felt that it was wise and reasonable for the Second and Third Plaintiffs to have two counsel in the same case but not for the First Plaintiff in his personal capacity.

[10] I have considered the circumstances in this case and am satisfied that the appointment of two counsel by First Plaintiff in his representative capacity was necessary, wise and reasonable and was not merely a luxury. In the circumstances, I order that the costs of the First Plaintiff in his representative capacity must include the costs of two counsel.

[11] The amended draft order marked "X" is hereby made an order of Court.

D S MOLEFE
JUDGE OF THE HIGH COURT

APPEARANCES

Counsel on behalf of 1st Plaintiff: Adv. B Geach SC and Adv. N Potgieter

Counsel on behalf of 2nd and 3rd Plaintiffs: Adv. G Naude and Adv. S Maritz

Counsel on behalf of 1st and 2nd Defendant: Adv. D Mills SC

Counsel on behalf of 3rd and 4th Defendant: Adv. Nel

Date heard: 16 November 2015
Date handed down: 17 November 2015