Man wins road fund legal battle after wife’s death

THE state has been ordered to pay the legal fees of an unemployed Port Elizabeth man who took the Road Accident Fund (RAF) to court after his domestic worker wife was hit and killed by a motorist last year.

While the RAF conceded to the claim for damages and offered to compensate the man R79 000 for his wife’s death, it refused to foot his legal fees, meaning he would have had to use the payout to cover the exorbitant court costs.

The state institution insisted that because the payout was less than R100 000, the matter should have been set down in a district court, and not the high court, where litigation costs were much higher.

Mandla Goodman Xakaxa slapped the RAF with a R333 000 civil claim in December last year, shortly after the death of his wife – also the only breadwinner in the family. He was claiming R13 659 for past loss of support, about R314 000 for future loss of support, and R5 246 for funeral expenses.

Xakaxa said his wife had earned R760 a month, excluding bonuses and fringe benefits. It was assumed she would have worked until the age of 65 and receive an annual increase of 10%.

The matter was set down for trial in the Port Elizabeth High Court, to commence on October 26 this year. But the RAF suggested that the case be transferred to the Port Elizabeth Magistrate’s Court to curtail costs.

There was little indication at that stage that it intended to make a settlement offer.

Then, just two days before the matter was set down for trial, the RAF made an out-of-court offer of R79 000.

Xakaxa accepted the offer and on October 26 the agreement was made an order of court.

But the RAF said it was op- posed to paying the plaintiff’s legal fees because the matter had proceeded in the high court despite its submissions that it be transferred to a lower court.

Referring to the exorbitant legal fees charged, the RAF argued that proceeding with the case in the more expensive forum was an injustice.

But Judge Judith Roberson said had the matter proceeded to trial, as initially expected, there was no certainty the award would have been less than R100 000.

“The defendant had sufficient details to make an offer, yet only did so two days before trial.”

Roberson said before this, Xakaxa had no choice but to expect the matter to proceed to trial. “. . . I am of the view it was neither reckless nor an abuse of the legal process to have chosen the high court.” She ordered that in addition to the R79 000 settlement agreement, the RAF also pay all Xakaxa’s legal fees.