Modistach v Human (No 2) No. DCCIV-98-1307

[2001] SADC 35

MODISTACH V HUMAN (NO 2)
(EX TEMPORE)

[2001] SADC 35

1................ JUDGE BURLEY......... In this matter judgment has been entered in favour of the plaintiff in the sum of $77028.13. The reasons in respect to the plaintiff’s claim were published on 23 February 2001. There then followed argument on the question of interest, which has been the subject of my determination this morning.

1. As a result of interest being calculated the parties have been able to determine that a sum in excess of $75000 has been awarded to the plaintiff. The sum of $75000 is important, because it is agreed that by offer received by the defendant’s solicitors on 31 October 2000 the plaintiff, pursuant to Rule 41.01(1), offered to accept the offer of $75000 plus costs, in settlement of his claim for damages.

2. The plaintiff relies upon District Court Rule 41.04 to seek solicitor/client costs of action for the whole of the action, in accordance with the terms of that rule. The rule imposes a penalty upon a defendant who goes ahead with the trial notwithstanding an offer made by the plaintiff if the plaintiff is able to better the offer that was made prior to trial. DCR 41.04 provides that the court, unless it thinks proper to order otherwise, shall order the defendant to pay the whole of the plaintiff’s costs of action to be taxed as between solicitor and client. There is, therefore, a discretion conferred upon the court as to whether or not costs should be awarded on a solicitor and client basis.

3. It was contended by the defendant that the discretion should not be exercised in favour of the plaintiff, but it was only faintly argued that there were factors applicable to an adverse exercise of the discretion. Subject to the defendant’s second ground of opposition I would exercise it in favour of the plaintiff.

4. The second basis of opposition by the defendant was that the offer was not filed in accordance with DCR 41.01(1), in that, it was asserted, the offer was not filed and served within the 21 day period referred to in the rule.

5. It is common ground that the offer was received by the defendant on 31 October 2000 and that the trial commenced on 21 November 2000.

6. It seems to me that there are a number of reasons why the rule should take effect. First, I think the de minimis rule would apply if any provision of the Rules of Court or provision of the Acts Interpretation Act did not come to the aid of the plaintiff in the circumstances before me. In other words, I consider that even if, technically, the plaintiff is just outside the 21 day period, the court would not take account of that technical failure to comply strictly with the provision of the Rules.

7. Secondly, again, putting to one side the operation of the Rules and provisions of the Acts Interpretation Act, it seems to me that under Rule 3, it is open to the court to vary the period of 21 days referred to in DCR 41.01(1), and to the extent that it is necessary, I do so.

8. Argument was advanced as to the applicability of s 27(1) of the Acts Interpretation Act by virtue of the provisions of DCR 6.02(2). The sub-section provides:

   “27(1) The time prescribed or allowed by any Act for any proceeding, or for the doing of any thing, or for suffering any thing, will be taken not to include the day of the act or event from or after which the time is to be calculated, but to include the day on which the proceeding is to be taken or the thing is to be done or suffered.”

9. It seems to me that s 27 of the Acts Interpretation Act does not apply to the calculation of the 21 day period in this case, because it deals with an act or event from or after which time is to be calculated. In this case the rule provides for a 21 day period which operates prior to the given event, namely, the commencement of trial. Consequently, I do not think that the provisions of that section assist the plaintiff, or the defendant for that matter, in relation to the calculation of the 21 day period.

10. Having said that, I need to determine whether or not, as a matter of proper construction, the 21 day period has been complied with by the plaintiff by giving the notice on 31 October 2000 and the trial commencing on 21 November 2000. In my view, the ordinary interpretation of the provisions of DCR 41.01(1) permit the reading that the day of the act constitutes one of the days of the relevant 21 day period, and if that is the case, and I think it is, then the plaintiff has in any event complied with the provisions of DCR 41.01.

11. There is, in my view, no basis for exercising the discretion to award costs on the solicitor and client basis against the plaintiff. Accordingly, for the above reasons, I order that the defendant pay the plaintiff’s costs of action to be taxed or agreed on a solicitor and client basis.