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2012
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[2012] ZAGPJHC 225
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Rosser v Uvalente Africa (Pty) Ltd (20546/2005, 11151/2007) [2012] ZAGPJHC 225 (7 September 2012)
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO: 20546/2005
& RELATED THERETO CASE NO. 11151/2007
DATE: 2012-09-07
In the matter between
VALENTE EVAN
ROSSER
............................................................
Applicant
and
UVALENTE AFRICA (PTY)
LIMITED
.............................................
Respondent
J U D G M E N T
WILLIS J:
[1] The applicant has set down an application in terms of which he
seeks the following relief:
1. That the respondent's taxed bill of costs under case number
01/011151 and its allocator be set aside.
2. That the warrant of execution issued under case number 07/011151
on 7 September 2009 be set aside.
3. That the respondent be ordered to return the applicant all assets
or funds attached by the respondent in terms of the warrant
of
execution issued under case number 07/011151 on 7 September 2009.
4. That the costs of the application on a scale as between attorney
and clients be paid by the respondent.
[2] The taxation in question took place on 26 August 2009. The
notice of this particular application was dated 26 May 2010, although
it seems to have been served on 1 June 2010. The applicant has
appeared in court in person. I have had an exasperating week
attempting to address his concerns.
[3] I have advised the applicant to ensure that he is represented by
counsel. We stood the matter down in order to enable him
to have
counsel today. That has not happened. In essence, despite protest by
the applicant that he is not seeking to review the
Taxing Master's
bill of costs, that is precisely what is in fact happening, because
the first prayer is that his taxed bill of
costs be set aside.
[4] The applicant claims that he did not receive notice proper of the
proposed taxation. I shall assume in his favour that, that
is
correct. What is common cause, and indeed abundantly clear from the
papers is that once taxation had taken place he became aware
of it,
very shortly thereafter. No review was brought within the time
periods provided for in terms of Rule 48 of the Rules of
the High
Court and, furthermore, in terms of the common law. I refer to the
cases of Ormonde v Buirski, Herbstein and Jacobson
1933 CPD 413
and
Visser and du Toit v Union Government
1943 CPD 297
, in which
respectively delays of three months and six months were held to be
fatal. See, also Kingsborough Town Council v Thirwell
and Another
1957 (4) SA 533
(N) at 535D, Greenblatt v Barends
1960 (4) SA 825
(C)
at 826C-H and Motivation Resources v Momentum Life Assurers Limited
1977 (2) SA 1030
(T) at 1032G-H.
[5] In this particular case, before me now, it appears clearly that
the applicant brought the application for review more than
nine
months after he had become aware of that taxation. Furthermore, there
is another defect in the application namely that the
Taxing Master
whose audit it is sought to set aside has not been given proper
notice.
[6] My hands are tied, as a matter of law. I have sympathy for the
applicant. It seems clear that this whole matter relates to
a family
dispute. It seems he has been taxed heavily for the costs in the
matter, but at the end of the day a Judge can only make
a decision
according to law and not out of considerations of sympathy for the
misfortune that has beset the applicant.
[7] There was an application lodged simultaneously with the hearing
of this matter for that to be security for costs. I do not
consider
that I need to deal with that matter. Counsel for the respondents
had indicated that the application for security for
costs in any
event falls away once, if I am to dismiss the application.
[8] Accordingly, the following is the order of the court:
The application is dismissed with costs.
[9] Mr Valente, if you wish to bring an application for leave to
appeal against my judgment you may do so. I shall ask Mr Seape,
as
an officer of the court, to let you know you the time frames within
which you must bring the application.
.
Applicant in person.
Counsel for the respondents: Adv Mmusi Seape.
Attorneys for the respondents: G B Arieblieebmann Behrmann and
Company.
COURT ADJOURNS