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[2011] ZAGPJHC 186
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Du Plessis v City of Johannesburg (2010/00255) [2011] ZAGPJHC 186 (20 April 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 2010/00255
NOT REPORTABLE
DATE:20/04/2011
In the matter between:
LEON
PHILLIP DU PLESSIS
Plaintiff
and
CITY
OF JOHANNESBURG
Defendant
J U D G M E N T: REVIEW OF TAXATION
TSOKA, J:
[1] This is a review of taxation in terms of Rule 48 of the Uniform
Rules of Court.
[2] Attorneys Nathanson, Bowman & Nathan, the applicant’s
attorneys of record, drew a Bill of Costs on the scale
as between
party and party, which Bill of Costs was duly taxed on 14 September
2010. The Taxing Master only allowed pro-rata
cost of items 20,
23, 27, 29, 30 and 31 of the Bill of costs, his reasoning being that
in terms of the High Court Tariff contained
in the Amendment of Rule
70, he has a wide discretion to do so.
[3] The items referred to above relate to telephone calls made,
with the exception of item 27 which relates to a letter written
by
applicant’s attorneys to respondent’s attorneys. It
must be mentioned that it is common cause that the Taxing
Master does
not contend that the telephone calls were not made or that the letter
was not written. The cost of these items
is in terms of the
tariff.
[4]
In terms of Part D paragraph 3 of the tariff, the cost of necessary
telephone calls, which is the cost of making the call plus
the call
itself, an attorney is entitled to charge R 177.50 per quarter of an
hour or part thereof. The disallowed items
are in terms of
paragraph 3. This is common cause. The Taxing Master, however,
contends that he exercised the discretion
vested in him in terms of
Rule 69(5) of the Uniform Rules of Court and on the basis of a
practice that has developed at the South
Gauteng High Court in
allowing telephone calls on a pro rata basis.
[5] On receipt of the review I arranged with the parties to
make representations in my chambers regarding the disallowed
items.
On 3 March 2011, the parties attended the review. The plaintiff
was represented by DW Phillips while the defendant
was represented by
Mr Fasser and Mr Mohammed. There was no representation for the
Taxing Master. The defendant made
no representations and
indicated that it will abide the decision made in this matter.
[6] From the Taxing Master’s stated case, it transpires
that his contention is that the charge of R 177.50 is for a
quarter
of an hour telephone call which translates into R 11.83 per minute on
a pro-rata basis for such a telephone call.
The applicant
contends that the cost of necessary telephone calls that last a
quarter of an hour or part of that quarter of an
hour, is the amount
of R177.50.
[7] The issue in this matter is the meaning of ‘per
quarter of an hour or part thereof’.
[8] In my view, the cost of necessary telephone calls, plus the
actual cost thereof, i.e. the disbursements related to the
making of
the calls, is R 177.50 for a telephone call that lasts a quarter of
an hour. Any necessary calls that do not last
for quarter of an
hour, but last less than that, the cost remains R177.50. This,
in my view, constitutes the maximum amount
for a quarter of an hour
necessary telephone call. Put differently, for every telephone
call that is necessary whether
it is for a minute or for
fifteen minutes, the cost thereof is limited to the amount of R
177.50.
[9] My view is fortified by the golden rule of interpretation.
Where the ordinary and grammatical meaning of words
is clear and
unambiguous, such words must be given their ordinary and grammatical
meaning. The words “per quarter of
an hour or part
thereof” are clear and unambiguous. They ought to
be given their ordinary grammatical meaning.
Furthermore, the
expression of one is the exclusion of the other. Had the
Legislature intended to mean that necessary telephone
calls shall be
charged at R 11.83 per minute, it should have said so. It did
not. It elected to say that attorneys
are, in terms of Part D
paragraph 3 of the tariffs entitled to charge a fee of R177.50 for
every fifteen minute necessary telephone
call or for any telephone
call lasting less than fifteen minutes.
[10] Does the Taxing Master have a discretion in terms of Rule 69(5)
to disallow the cost of necessary telephone calls lasting
less than a
quarter of an hour and only allow R 11.83 per minute for such
telephone calls? The Taxing Master has no such
discretion.
[11] In terms of Rule 70(5)(a) the Taxing Master has the discretion
to depart from any of the provisions of the tariff in extraordinary
or exceptional circumstances where strict adherence to the provisions
of the tariff would be inequitable
[12] The Master relies on the decision of
Aloes Executive Cars (Pty) Ltd v
Motorland (Pty) Ltd and Another
1990
(4) SA 587
(T) as his authority for his discretion in this matter.
[13]
In
Aloes Executive
,
where the Court was dealing, amongst other things, with the
reasonableness of Counsel’s fees on consultations and the
drafting
of affidavits, the Court stated that the Taxing Master has a
wide discretion in determining which costs are reasonable. The
facts in the present matter differ with the facts in
Aloes
Executive
. In the present matter
the Court is dealing with interpretation of a fixed fee in terms of
the tariff. In
Aloes Executive
,
the Taxing Master’s wide discretion, as I understand the
judgement, was qualified in that the determination as to whether
Counsel’s fees are reasonable or not should be left to the
Judge to determine because of his long experience as an advocate.
In any other respect, such costs shall be left to the Taxing Master,
because of his experience, to determine which costs are reasonable
or
not.
[14] In my view the Taxing Master in the present matter has no
discretion particularly where the amount claimed is stated in the
tariff. If there is proof that the cost was incurred or the fee was
earned, the Taxing Master has no discretion but to allow such
costs.
[15] The Taxing Master’s further
reliance on the decision in
Scott v
Poupard
1972 (1) SA 686
(A) is
misplaced. In that matter, again, the Court dealt with the
reasonableness of Counsel’s fees in the preparation of
an
appeal. So was the decision in
Weber
Stephen Products Co. v Alrite Engineering (Pty) Ltd
1990
(3) SA 962
(T).
[16] The Taxing Master contends that in the present matter to allow
the plaintiff’s attorney’s to recover from the
defendant
the costs of the necessary telephone calls, lasting for less than
fifteen minutes would be prejudicial to the defendant.
The
Taxing Master gives an example of an attorney who makes five
telephone calls lasting three minutes per telephone call which
would
result in the attorney charging R 887.50 more than the R 177.50
recoverable for an hour’s consultations, court attendance
and
conferences.
[17] The Taxing Master appears uncertain about the duration of the
telephone calls the plaintiff seeks to recover from the defendant.
This uncertainty is baffling as the Taxing Master had or ought to
have had plaintiff’s file at the time of the taxation.
His contention that the duration of the telephone calls were of short
duration are not borne by facts. In any event plaintiff’s
attorneys seek to recover the maximum allowed for a fifteen minutes
telephone call.
[18] The Taxing Master further relies on a ‘practice’ in
the South Gauteng High Court that allows attorneys to charge
R 11.83
per minute pro rata for a fifteen minute telephone call. The
practice seems to be unknown to plaintiff’s attorneys
who
practice in the South Gauteng High Court. The practice Manual
of this Division states no such practice. The
probabilities are that there is no such practice.
[19] In the result I find that the Taxing Master had no discretion
but to allow the items claimed by the applicant. There
were
neither extraordinary nor exceptional circumstances in the present
matter that entitled the Taxing Master to disallow items
20,23,27,29,30 and 31 on plaintiff’s Bill of Costs.
[20] In the result the following order is made –
20.1 The application for review succeeds in respect of all the items
raised. The Taxing Master’s taxation in regard
thereto is
set aside and the full amounts claimed are allowed.
20.2
No
order is made as to the costs of review.
M TSOKA
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR APPLICANT:
MR DW PHILLIPS
INSTRUCTED BY:
NATHANSON BOWMAN & NATHAN
COUNSEL FOR RESPONDENT
MR FASSER
INSTRUCTED BY
BHAM & DAYA ATTORNEYS