1 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 HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO.: 36786/06 Not reportable Not of interest to other judges Revised. Date: 28/11/2017 In the matter between: JACQUELINE MADELEIN GROVE PLAINTIFF and ROAD ACCIDENT FUND LENNARD KOOPMAN FIRST DEFENDANT SECOND DEFENDANT Heard: 10 October 2017 Delivered: 28 November 2017 JUDGMENT VAN DER SCHYFF AJ [1] This matter came before me as a stated case. The main issue that needs to be decided is whether the Plaintiff's claim was finally determined by judgment
2 before the Road Accident Fund (Transitional Provisions) Act, No. 15 of 2012, commenced. [1.1] If it is found that Plaintiff's claim was not finally determined by judgment before the Road Accident Fund (Transitional Provisions) Act, No. 15 of 2012, commenced, First Defendant's special plea of res judicata will fail and Plaintiff's claim will fall to be dealt with as a claim for compensation envisaged in section 2 of the Road Accident Fund (Transitional Provisions) Act, 15 of 2012. (Since First Defendant abandoned the special plea of prescription, there is no need to address the issue of prescription.) [2] The agreed facts provide context for the issues that serve to be adjudicated. The following facts are relevant: [2.1] Plaintiff sustained serious bodily injuries in an accident that occurred on 4 November 2005, whilst being a passenger in a motor vehicle driven by Second Defendant. The accident occurred as a result of Second Defendant losing control of his motor vehicle and colliding with a wall on the side of the road at the intersection of Duncan Street and Duxbury Road. It was Plaintiffs main contention that the accident was caused cue to the negligence of a certain Potgieter who drove another vehicle and allegedly enticed Second Defendant to race him. It was contended in the alternative that the accident was caused by the joint negligence of Potgieter and Second Defendant, and in the further alternative that the accident was caused by Second Defendant s sole negligence. [2.2] First Defendant admitted that the accident was caused as a result of the sole negligence of Second Defendant, and pleaded that the provisions of section 18(1)(b) of the Road Accident Fund Act, No. 56 of 1996 applied to the Plaintiffs claim. In terms of this section First Defendant pleaded that its liability was limited to R25 000.00, and tendered an undertaking in terms of section 17(4)(a) of the old Act for certain future expenses to a maximum of R 25 000. First Defendant issued a third party notice in terms of which it joined the Second Defendant as third party in terms of rule 13. (It is important to note that the Act was amended by the Road Accident Fund Amendment Act, No. 19 of 2005. The amendments became
3 operational on 1 August 2008. Where reference is made to the Act before its amendment the term "old Act" will forthwith be used. When reference is made to the Act as amended, the acronym RAFA will be used.) [2.3] The matter proceeded to trial before Ledwaba J (as he then was) on 3 March 2009. By agreement between the parties an order for a separation of issues was made. The issue of liability was to be decided first and separate from the remainder of the issues. The issues which stood over for adjudication at a later stage related, inter alia, to the nature and extent of the Plaintiff's alleged injuries, the sequelae thereof, and the extent and computation of the alleged damages suffered by the Plaintiff. Subsequently, the evidence adduced during the trial before Ledwaba J related solely to factual evidence pertaining to the negligence of the respective drivers. [2.4] Due to the fact that the accident occurred in 2005, the claim was not affected by the amendments to the Road Accident Fund Act that became operational on 1 August 2008, when it was instituted. The claim was timeously instituted in accordance with the prescribed procedure. Judgment was delivered on 11 June 2009. The order that lies at the heart of the current dispute reads as follows: "The First Defendant (RAF) is ordered to pay Plaintiff's special damages (section 17(4)(a) undertaking) subject to a limit of R25 000." [2.5] An appeal to the Supreme Court of Appeal was ultimately dismissed. Was it not for the Constitutional Court's judgment in Mvumvu and Others v The Minister of Transport and Another 2011 (2) SA 473 (CC) and the subsequent promulgation of the Road Accident Fund (Transitional Provision) Act, No. 15 of 2012 [RAFTPA], the dismissal of the appeal would have been the end of the matter. [2.6] Subsequent to the appeal being dismissed, and RAFTPA commencing, Plaintiff amended her particulars of claim. She contended in the amended particulars of claim that that since Ledwaba J's judgment of 11 June 2009 only related to the separated issue of liability, her claim was not finally determined by judgment. Therefore she was a third party as
4 defined in section 1 of RAFTPA. She did not indicate in the prescribed manner and unconditionally to First Defendant to have her claim adjudicated in terms of the old Act. Hence her claim became by operation of law, through the working of section 2 of RAFTPA, subject to the provisions of RAFA. As a consequence, Second Defendant is absolved from liability to the Plaintiff in terms of section 2(1)(g) of RAFTPA. [3] In order to determine whether Plaintiff is indeed a third party as contemplated in RAFTPA, it is necessary to interpret the phrase "third party". In section 1 of RAFTPA "third party" is defined to mean "a person who has a right to claim compensation from the Fund in terms of section 17 of the old Act, whose claim is subject to the limitations imposed by section 18 (1)... of that Act, and whose claim has, upon this Act taking effect, not... been finally determined by settlement or judgment". [4] It is trite that the 'realisation of statute law depends decisively on juridical interpretation' (LM du Plessis 'Statute law and interpretation' in WA Joubert, JA Faris & LTC Harms (eds) The Law of South Africa vol 25 2 ed (2001) para 291). The Road Accident (Transitional Provisions) Act, No. 15 of 2012, [RAFTPA] is no exception. [5] The Supreme Court of Appeal held in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18 that: '[t]he inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.' At para 24 of the said judgment it is stated that 'the proper approach... is from the outset to read words used in the context of the document as a whole and in the light of all relevant circumstances.' In the process of interpretation, the interpreter of any provision of the Act must strive to answer the question: 'In this statute, in this context, relating to the subject matter, what is the meaning of that word (or provision or phrase)?'- Jaga v Donges and Another, Bhana v Donges NO and Another 1950 (4) SA 653 (A) 663H-664A. This approach was confirmed in Bato Star Fishing (Pty) Ltd v Minister of
5 Environmental Affairs and Others 2004 (4) SA 490 (CC) para 90 where the Constitutional Court supported the 'emerging trend in statutory construction to have regard to the context in which the words occur, even where the words to be construed are clear and unambiguous.' (also see Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) para 53). [6] In pursuit of interpreting the definition of the phrase 'third party', meaning must be attributed to the phrase in light of its purpose in the context of RAFTPA. When the context of RAFTPA is determined, it is imperative to note that RAFTPA is intrinsically linked to the Road Accident Fund Act, No. 56 of 1996 [RAFA] as amended by the Road Accident Fund Amendment Act, No 19 of 2005 [2005- Amendment Act]. The aim and objects of RAFA thus inform the aim and objects of RAFTPA. It is equally important to note that the decision of the Constitutional Court in Mvumvu and Others v The Minister of Transport and Another 2011 (2) SA 473 (CC) provides valuable guidelines as to the interpretation of RAFTPA, since the need to promulgate RAFTPA was essentially occasioned by the Constitutional Court's judgment in this case. [7] It is trite that RAFA is considered to be social security legislation (Law Society of SA v Minister for Transport 2011 (1) SA 400 (CC) para 17). The object of RAFA as stated in section 3 thereof is 'the payment of compensation in accordance with this Act for loss or damage wrongfully caused by the driving of motor vehicles.' The courts have held through the years that the primary objective of road accident compensation is to provide 'the greatest possible protection,..., to persons who have suffered loss through a negligent or unlawful act on the part of the driver or owner of a motor vehicle' (Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A) 285E-F, Engelbrecht v Road Accident Fund 2007 (6) SA 96 (CC) para 23, Mvumvu and Others v The Minister of Transport and Another 2011 (2) SA 473 (CC) para 20). In the majority of case law dealing with RAFA and its predecessors, courts have followed an extensive interpretational approach to widen the ambit of the impact of RAFA. (See inter alia Berry and Another v SPE Security Patrol Experts and Another 2011 (4) SA 520 (GNP), and Jeffrey v Road Accident Fund 2012 (4) SA 475 (GSJ)).
6 [8] It is within this context that phrases used in RAFTPA must be interpreted. The promulgation of RAFTPA was necessitated by the Constitutional Court's decision in Mvumvu above. The Mvumvu judgment in turn followed an amendment of the old Act. It is trite that the old Act stringently limited the claims of certain categories of passengers to an amount not exceeding R25 000. Different subsections of section 18 linked the amount of R 25 000 to specific categories of damages as well, but that aspect need not be addressed for purposes of this case. For purpose of this judgment the focus will only fall on the limitation captured in section 18(1) of the old Act. [9] Section 18(1) of the old Act provided that: "The liability of the Fund or an agent to compensate a third party for any loss or damage contemplated in section 17 which is the result of any bodily injury to or the death of any person who, at the time of the occurrence which caused that injury or death, was being conveyed in or on the motor vehicle concerned, shall, in connection with any one occurrence, be limited, excluding the cost of recovering the said compensation, and except where the person concerned was conveyed in or on a motor vehicle other than a motor vehicle owned by the South African National Defence Force during a period in which he or she rendered military service or underwent military training in terms of the Defence Act, 1957 (Act No. 44 of 1957), or another Act of Parliament governing the said Force, but subject to subsection (2)- (a)to the sum of R25 000 in respect of any bodily injury or death of any one such person who at the time of the occurrence which caused that injury or death was being conveyed in or on the motor vehicle concerned- (i) for reward; or; (ii) in the course of the lawful business of the owner of that motor vehicle; or (iii) in the case of an employee of the driver or owner of that motor vehicle, in respect of whom subsection (2) does not
7 apply, in the course of his or her employment; or (iv) for the purposes of a lift club where that motor vehicle is a motor car; or (b) in the case of a person who was being conveyed in or on the motor vehicle concerned under circumstances other than those referred to in paragraph (a), to the sum of R25 000 in respect of loss of income or of support and the costs of accommodation in a hospital or nursing home, treatment, the rendering of a service and the supplying of goods resulting from bodily injury to or the death of any one such person, excluding the payment of compensation in respect of any other loss or damage." [10] The 2005-Amendment Act repealed, inter alia, section 18(1)(a) and (b) of the old Act. A new compensatory scheme was implemented. The limitation of claims solely on the basis that the claimant was a passenger in the vehicle whose driver was 100% to blame for the accident, was discarded. This amendment of RAFA lead to the Mvumvu decision by the Constitutional Court. At para 20 of the Mvumvu decision the Court held that by placing a cap of R25 000 on certain claims, the purpose of RAFA to provide the greatest possible protection to persons who have suffered loss through a negligent or unlawful act on the part of the driver or owner of a motor vehicle, was undermined. The Constitutional Court held that a disparate impact emerged from this section since it mainly affected 'workers of the class of people who use public transport such as taxis and buses' (para 21). The Court continued to explain that the provisions discriminated on a practical level against black people in a manner disproportionate to other races (para 29). On another level the provisions discriminated between passengers, who were all innocent victims, solely on the basis of whether the drivers of the vehicles in which they were transported were exclusively responsible for the accident or whether 1% of the blame could be attributed to another driver (para 34). The Court held this to be 'manifestly unfair' and declared sections 18(1)(a)(i), 18(1)(b) and 18(2) of the old Act, as they read before 1 August 2008, to be inconsistent with the Constitution and invalid. The declaration of invalidity was however suspended for 18 months to enable Parliament to cure the defect (para
8 57) The Court's order additionally provided that in the event of the declaration of invalidity coming into force without Parliament having cured the defect, the order of invalidity will not apply to claims in respect of which a final settlement has been reached or a final judgment has been granted, before the date of this order. This qualification was incorporated in light of the fact that the Court held that an unlimited retrospective order of invalidity could have a crippling effect on the Fund's operation since it would substantially increase the Fund's financial liability (paras 50 and 51). [11] In response to the Constitutional Court's order, RAFTPA was promulgated and commenced on 13 February 2013. The object of RAFTPA is spelled out in a pre ambulatory statement: "To provide for transitional measures in respect of certain categories of third parties whose claims were limited under the Road Accident Fund Act, 1996 (Act No. 56 of 1996), prior to 1 August 2008; and to provide for matters connected therewith." RAFTPA essentially provides for passengers who had limited claims in terms of section 18 of the old Act to access a more beneficial compensatory regime subject to the provisions of RAFTPA. [12] The legislature followed the Constitutional Court's lead in limiting the retrospective application of RAFPTA by excluding claims of victims whose claims had prescribed or been finally determined by settlement of judgment. It is however important to note that where the Constitutional Court held in Mvumvu that 'the order of invalidity will not apply to claims in respect of which a final... judgment has been granted', RAFTPA defines a third party as 'a person who has a right to claim compensation from the Fund... whose claim has, upon this Act taking effect, not... been finally determined by settlement or judgment' (my emphasis). The aim of this judgment is to determine whether, on the facts before the Court, the Plaintiffs claim has been finally determined by judgment. [13] It is informative to refer to aspects of the parties' arguments in this regard. [13.1] Plaintiffs counsel contended that the claim was not finally determined by judgment. He submitted that final determination of the claim by judgment, in the context of RAFTPA and the Mvumvu judgment could
9 only mean, that all the essential elements of liability and the quantum have been pronounced upon by a court. With reference to, amongst other, Consolidated News Agencies (Pty) Ltd (In Liquidation) v Mobile Telephone Networks (Pty) Ltd and Another 201O (3) SA 382 (SCA), David Hersch Organisation (Pty) Ltd and Another v ABSA Insurance Brokers (Pty) Ltd 1998 (4) SA 783 (T) and Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D), the argument was advanced that the separation order granted by Ledwaba J, as he then was, dealt with the issue of liability alone, and not the quantum of the claim. Since a significant part of the Plaintiff's claim (the quantum part) remained unresolved, the claim against First Defendant was not finally determined. First Defendant would not be able to obtain a writ of execution on the order as it stood. [13.2] It was argued on behalf of First Defendant that the claim was finally determined by judgment. The argument was that the Road Accident Fund's liability for payment of general damages was finally determined in that it was dismissed. First Defendant's argument was that the separation of issues, and the ruling that paragraphs 7 to 12 of the particulars of claim should stand over for adjudication at a later stage, is of no consequence. The practical effect of the separation was that the extent of general damages had to be determined against the Second Defendant. The refrain throughout First Defendant s argument is that although certain issues were separated, the extent of the Road Accident Fund's liability was finally adjudicated upon and the Plaintiff's right to claim general damages from the RAF was finally determined. Counsel contended in addition that there is a presumption against retrospectivity and referred to section 12(2)(b) and (c) of the Interpretation Act and appropriate case law to substantiate the argument that despite the repeal of section 18(1)(b) of RAFA, the Plaintiffs right to claim remained subject to a limitation, 'to wit a claimant's whose cause of action would have arisen prior to 1 August 2008.' Counsel argued that a final judgment pertaining to the extent of the RAF's liability was handed down on 11 June 2009. The absurdity that may follow, according to First Defendant, 'is that should the plaintiff's claim for general damages be allowed, it would: contra the provisions of s12(2)(c) of the
10 Interpretation Act, apply law that simply did not exist to a final judgment cause for an automatic appeal and setting aside of the judgment by Ledwaba J, notwithstanding that the court is functus officio in relation to considering the liability of the parties to the March 2009 trial; allow for an appeal and setting aside of the judgment by Ledwaba J, notwithstanding the fact that the plaintiff lodged no appeal in respect of the declaration of liability, and alter the legal acquirement (sic) of a right to claim as intended in' RAFA. It was additionally argued that the Plaintiffs right to claim had its origins in delict. In terms of section 17 of RAFA the Road Accident Fund had an obligation to compensate the plaintiff. Plaintiff subsequently had a right to claim against the Fund. This right to claim was statutorily restricted and the plaintiffs right to claim and the corresponding obligation to compensate was finally adjudicated upon by virtue of the judgment of 11 June 2009. First Defendant contended that RAFTPA, read in context, applied to claims that were lodged, but in which no settlement or judgment 'was yet delivered'. [13.3] It was, amongst others, argued on Plaintiffs behalf in reply, that RAFTPA explicitly provides that it has retrospective effect. The legislature had to be aware that there were cases that were not finally determined in that merits and quantum were separated when RAFTPA was promulgated, and still chose to exclude only claims that were finally determined by settlement or judgment from the ambit of RAFTPA. [14] The First Defendant's contention that insofar as the extent of the Road Accident Fund's liability is concerned, a final judgment was granted, is correct. First Defendant is also correct in the contention that the determination of liability is appealable. The question is however whether final judgment on the liability component of a claim against the Fund, which has as its legal consequence the annihilation of a claimant's claim for general damages, finally determined the Plaintiff's claim. [15] It has been held in Manukha v Road Accident Fund (285/2016) [2017] ZASCA 21 (24 March 2017) that a claim for compensation against the Fund is a
11 unitary and indivisible claim. (See also Nonkwali v Road Accident Fund 2009 (4) SA 333 (SCA) para 8). [16] Claims against the Fund is grounded in the law of delict. Section 19(a) of RAFA excludes the Fund's liability for any loss or damage for which neither the owner of the motor vehicle concerned, nor the owner would have been liable but for section 21 of RAFA. [17] The foundational facta probanda of delictual claims (except for claims based on strict liability) are conduct, wrongfulness, fault, causality, and damage. These may in specific cases be expanded e.g. additional facta probanda must be proved to substantiate a dependant's claim based on the death of a breadwinner. These facta probanda are interwoven. The factum probandum damage, pertains to both the nature of the damage suffered, and the quantum of a claim. If a plaintiff cannot succeed in proving the quantum of his damages, a court has no alternative but to absolve the claim from the instance - Stolte v Tietze 1928 SWA 51 at 52. If a claim cannot be quantified it cannot succeed - Odendaalsrus Gold General Investments and Extensions Ltd v Naude, NO 1958 (1) SA 381 (T) at 384E-F; Lazarus v Rand Steam Laundries (1946) (Pty) Ltd 1952 (3) SA 49 (T) at 52G; Erasmus v Davis 1969 (2) SA 1 (A) at 58-C. A claim is therefore not finalised until the damages has properly been quantified. [18] Section 17(1) of the RAFA provides the facta probanda for a claim against the Road Accident Fund. Although based on delict, the facta probanda are very specific to meet the object of RAFA. Section 17(1) provides as follows: '17. (1) The Fund or an agent shall- (a) subject to this Act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established; (b) subject to any regulation made under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established, be obliged to compensate any person
12 (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee's duties as employee: Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum.' [19] By way of analysis section 17(1) of RAFA meets, and expands, the facta probanda of a delictual claim in the following aspects: (See in general HB Klopper The Law of Third Party Compensation 3rd ed LexisNexis) [19.1] Conduct: conduct must be of a specific nature being either the driving of a motor vehicle, or other wrongful act as committed by certain persons; [19.2] Wrongfulness: when dealing with loss resulting from injury to person or property, wrongfulness is presumed (Cape Empowerment Trust Ltd v Fisher Hoffman Sithole (200/11) [2013] ZASCA 16 (20 March 2013) para 21); [19.3] Fault: a specific minimum degree of fault is required, namely negligence. It follows that if negligence suffices as a form of fault, that intent will also give rise to liability (Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC)); [19.4] Causality: the requirement that there must be a causal link between the conduct, the resulting injury or death and consequent damage is expressed by the phrase "caused by or arising from" as it is found in section 17 of RAFA (Grove v Road Accident Fund (74/10) [2011] ZASCA 55 (31 March 2011)); [19.5] Damage: not all damage caused by the wrongful and negligent driving of a motor vehicle can be recovered from the Road Accident Fund. Only damage for bodily injury or loss of maintenance are recoverable
13 subject to the inherent limitations of section 17 of RAFA; [19.6] The damage must occur at any place within the Republic of South Africa. [20] A claim that was properly instituted must meet the full extent of facta probanda as set out in section 17. If a claimant cannot quantify and prove his damages, the claim will fail. A claim can therefore not be finalised until each factum probandum is proved. Where there is a separation of issues and liability on the merits are determined without damages being quantified, the determination of liability on the merits is a final order pertaining to liability, but it does not finally determine the entire dispute. It only determines the separate issue finally. [21] In order not to open the floodgates and protect the ability of the Road Accident Fund to compensate victims of road accidents, but simultaneously provide the "greatest possible protection" to passenger-victims of road accidents who found themselves in the scenario provided for by the now repealed section 18, the legislature limited the retrospective application of RAFTPA to claims that were not finally determined when RAFPTA commenced. To finally determine a 'claim' the full extent of the facta probanda must be proved. This includes the quantification and proof of damages, even if a Plaintiff will only be able to claim R25 000 of the proven damages, since the converse is also true - if a plaintiff cannot succeed in quantifying his damages, he/she will not be able to obtain even R25 000 from the Road Accident Fund, despite a favourable order being made pertaining to liability on the merits. The court might be functus officio in relation to the determination of liability on the merits, but the claim in its totality was not finally determined by the judgment of 11 June 2009. The fact that the court confirmed the First Defendant's liability as it existed at the time that the separated issue was adjudicated, does not pose any bar to proceedings in terms of RAFTPA. To succeed with a claim in terms of RAFTPA a plaintiff is still bound to prove that the Road Accident Fund is liable to pay the claim. Where the merits and quantum were separated and the Fund's liability on the merits confirmed, a claimant has one less hurdle to overcome to succeed with a claim.
14 [22] I accordingly find that the judgment of 11 June 2009 confirmed the First Defendant's liability against the Plaintiff in terms of section 18(1) as it existed at the time. First Defendant's liability was restricted to R25 000 should Plaintiff in future successfully prove damages equal to or exceeding R25 000. In the absence of such damages being established and quantified, the claim was not finally determined by settlement or judgment and falls within the ambit of RAFTPA. It should in addition be noted that the undertaking in terms of section 17(4)(a) provides for future loss while section 18 did not limit passenger's claims to future loss only. An argument that the extent of the Plaintiff's damage therefor need not be to be proved since payments would be made in terms of the undertaking as they are incurred and proof thereof submitted until the statutory limitation of R25 000 are reached, is not sufficient to convince that the claim has been finally determined. In coming to this decision I am not setting aside a previous judgment or allowing an automatic appeal. The result that is brought about flows from the application of the appropriate substantive law. The consequences brought about by this decision falls squarely within the expressed object of RAFTPA. [23] Since it is found that the claim was not finally determined by judgment, the First Defendant's plea of res judicata cannot succeed. Although the issue of the First Respondent's liability has been established and need not be dealt with again, the issue of quantum still needs to be decided upon. [24] It was stated during oral argument that the defence of prescription relied upon by the First Defendant, will not be taken further. (This decision was properly made in view of the recently reported decision of the Supreme Court of Appeal in Manukha v Road Accident Fund (285/2016) [2017] ZASCA 21 (24 March 2017). Order: [25] In view of the aforesaid, it is ordered that 1. First Defendant's first and second special pleas are dismissed.
15 2. It is declared that Plaintiff's claim falls to be dealt with as a claim for compensation envisaged in section 2 of the Road Accident Fund (Transitional Provisions) Act, No. 15 of 2012. 3. First Defendant is ordered to pay Plaintiff's reasonable taxed or agreed party and party costs relating to the issue of adjudication of the stated case on the High Court scale, such costs to include (but not necessarily limited to) 3.1 The full days fees of senior council for 10 October 2017; 3.2 The costs for preparing heads of argument 4. The costs payable by the defendant shall bear statutory mora interest at 10.5% per annum calculated from date of agreement in respect of costs or date of affixing the taxing master's allocator, to date of payment. 5. The defendant shall pay the taxed or agreed party and party costs and any interest thereon into the trust account of the Plaintiff's attorney of record, Adams & Adams, the details of which are as follows: Account holder: Adams & Adams Bank: Nedbank, Pretoria Branch Account: trust Account Branch code: 198765 Account number: [ ] Reference: DBS/MD/ems/S473/06 E VAN DER SCHYFF Acting Judge of the High Court