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[2014] ZAGPJHC 347
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Perumal and Others v Dunnewels Body Corporation and Others (22733/2012) [2014] ZAGPJHC 347 (25 March 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 22733/2012
DATE:
25 MARCH 2014
In the matter
between:
IRVIN
PERUMAL
............................................................
First
Applicant
SHIRLEY
PERUMAL
..................................................
Second
Applicant
KERSHIA
PERUMAL
....................................................
Third
Applicant
And
DUNNEWELS BODY
CORPORATE
............................
First
Respondent
GERRIT
GENIS
.......................................................
Second
Respondent
LAILA
SARANG
.......................................................
Third
Respondent
SANNETTE
ERASMUS
...........................................
Fourth
Respondent
JANINE
TARGETT
....................................................
Fifth
Respondent
OLIETE
PERESTRELO
............................................
Sixth
Respondent
VHUMBANAI
PROPERTY SOLUTIONS
.............
Seventh
Respondent
J U
D G M E N T
REVIEW OF
TAXATION AND RULE 30(1) APPLICATION
MAKUME, J:
[1] On the 28th June
2012 my brother Spilg J sitting in the Urgent Court made an order to
the effect that the applicant in that
matter pay the taxed costs of
the first, fourth, fifth, sixth and seventh respondents.
[2] Pursuant to that
order the Taxing Master taxed and allowed costs in favour of the
above named respondents on the 30th October
2012 in the amount of R23
812,37.
[3] On the 24th
April 2013 the first applicant launched this application in which
application he seeks the following order:
3.1 Condoning the
late filing of the application for review.
3.2 That the Bill of
Costs which was taxed and allowed on the 30th October 2012 by the
Taxing Master be reviewed and set aside.
3.3 Ordering that
the first, fourth, fifth, sixth and seventh respondents pay the costs
of this application in the event that they
oppose same.
[4] On receipt of
the application the respondents delivered a notice in terms of Rule
30(1) on the 18th June 2013. In the notice
the respondents informed
the applicant that his notice of motion is defective in that it does
not comply with the requirements
set out in Rule 48 of the Rules.
The applicant was afforded a period of ten days within which to
remove the cause of complaint.
[5] Having failed to
remove the cause of complaint as required by Rule 30(1) the
respondents delivered the application in terms
of Rule 30(2) on the
23rd July 2013 in which application they seek an order setting aside
the applicant’s notice of motion
to review taxation
[6] The applicant
filed an answering affidavit in opposition to the Rule 30(1) notice
on the 14th August 2013. The answering affidavit
spans some 34 pages
whilst the founding affidavit is two pages long divided into 9
paragraphs. The crux of the founding affidavit
is paragraph 4
wherein the respondents say the following:
“As a result
of the fact that the applicants intended to review and set aside the
bill of costs taxed under the above case
number on the 30th October
2012 as is evident from Annexure ‘LM1’, the applicants
were required to comply with the
requirements of Rule 48 of the Rules
of the above Honourable Court which they have failed to do so.”
[7] In his answering
affidavit the applicant (now the respondent in the Rule 30(1)
application) went on a tangent tracing the history
of a conglomerate
of actions and disputes between him, his family and the Body
Corporate Dunnewels as well as its trustees. He
does not deal with
his failure to remove the cause of the complaint which is simply that
his application to review or set aside
the Bill of Costs does not
comply with the requirements of Rule 48.
[8] At ad paragraph
4 on page 136 of the paginated papers which paragraph is presumed to
deal with the respondent’s averment
of irregularity he says the
following:
“As stated in
para 3, there was only one applicant in my application. Therefore
the averment that ‘applicants’
served a notice of motion
becomes an absurdity and a deliberate attempt to unnecessarily join
other people in these proceedings,
and can only be inferred to be
malicious, for reasons stated hereinafter.”
And at ad paragraph
5 he continues as follows:
“It is denied
that the respondents served a notice in terms of Rule 30 on me on the
18th June 2013. As stated hereinabove,
I received this notice on the
14th June 2013. As stated hereinabove, the notice of service is
defective as it was not signed by
the deponent. This Honourable
Court is especially referred to Annexure ‘LM3’, where it
is evident that the deponent
has failed to append her signature on
the affidavit.”
[9] The appellant
says nothing about his non-compliance with the provisions of Rule 48.
Somewhere in his longwinded and cumbersome
affidavit he says that the
respondent have failed to indicate any prejudice in thier founding
affidavit in order to justify the
Rule 30(1) application then at some
stage he says that the Rule 30(1) application itself is defective and
irregular because it
was served out of time, then he places reliance
on a judgment of Ranchod J dated the 12th June 2013 which he says set
aside the
order that led to the taxing of the Bill of Costs.
[10] There is
nowhere where he deals with Rule 48. He relies on vague
technicalities which have no bearing on the application.
The
affidavit does not demonstrate any real or substantial challenge to
the affidavit deposed to by Mr Luke Mouyis for the respondent.
He
fails to deal with the evidence placed before him instead he chose to
deal with a version completely far from Rule 48.
[11] Rule 48 of the
Uniform Rules of Court deals specifically with Review of Taxation and
reads as follows:
(i) Any party
dissatisfied with the ruling of the Taxing Master as to any item or
part of an item which was objected to or disallowed
mero motu by the
Taxing Master may within 15 days after the allocatur by notice
requiring the Taxing Master to state a case for
the decision of a
judge.
(ii) The notice
referred to in subrule (1) must –
(a) Identify each
item or part of an item in respect of which the decision of the
Taxing Master is sought to be reviewed.
(b) Contain the
allegations that each such item or part thereof was objected to at
the taxation by the dissatisfied party or that
it was disallowed mero
motu by the Taxing Master.
(c) Contain the
grounds of objection relied upon by the dissatisfied party at the
taxation but not argument in support thereof.
(d) Contain any
finding of fact which the dissatisfied party contends the Taxing
Master has made and which the dissatisfied party
intends to challenge
stating the ground of such challenge but not argument in support
thereof.
[12] I have waded
through the 23 pages of the founding affidavit by the applicant in
which he seeks to set aside the Bill of Costs.
I could only find the
reason for his application in two paragraphs namely paragraphs 23 and
24 on pages 21 and 22. The rest of
the 32 paragraphs which span over
23 pages have nothing to do with the application. Once more like in
this application the applicant
has gone on to restate the history of
his dispute with the respondent as it unfolded since he and his
family took up residence
at the Dunnewels Units. I am still trying
to find out why the applicant thought it was necessary for him to
tell the court that
all of them in his family have driver’s
licences and hat each one of them has his or her own motor vehicle.
He went on to
describe how he was violently assaulted by the third
respondent which aspects have got nothing to do with the taxation
itself.
[13] What seems to
be relevant in that application is what he says at paragraph 23 page
21 wherein he says the following:
“Not being an
attorney I approached a friend who is an attorney in order that I may
familiarise myself with the proceedings
at the taxation. I enquired
about various costs and sought information pertaining to the
unopposed costs and opposed costs.
I also enquired as
to who had the right to costs, whether it was the corresponding
attorney or the consulting attorney. I was further
informed that a
Rule 70 certificate ought to accompany the notice of taxation
together with the order of court and that this was
a specific
prerequisite for the taxation process.”
[14] At paragraph 14
the applicant continues to say that he attended the taxation on the
30th October 2012 and filed notice of objection
to the Bill of Costs.
He says that the respondents’ attorneys namely S Bhyat refused
to answer any question that he put at
the taxation including his
question as to why there was no Rule 70 certificate. He says that S
Bhyat enjoyed an extremely cordial
relationship with the Taxing
Master and that despite his protestation the Taxing Master proceeded
to tax the Bill of Costs.
[15] In paragraph 24
he says that the Taxing Master taxed and allowed items in respect of
respondents who were not entitled to fees
in terms of the judgment of
Spilg J.
[16] Reference to
Rule 70 certificate was made without elaboration. The applicant does
not say in terms of what subsection a litigant
is required to submit
a certificate and what the contents of such a certificate should be.
He does not say whether it is compulsory
to file such a certificate
or whether the Taxing Master does have a discretion to condone
failure to submit such a certificate.
[17] In Erasmus –
Superior Court Practice the learned writer in dealing with the powers
of the Taxing Master in terms of Rule
70 writes as follows at page
B1-429:
“The function
of the taxing master is therefore to decide whether the services have
been performed, whether the charges are
reasonable or according to
tariff, and whether disbursements properly allowed as between party
and party have been made, his function
is to determine the amount of
liability, assuming that the liability exists, and the fact that he
requires to be satisfied that
liability exists before he will tax
does not show that there is any liability. The question of liability
is one for the court.”
[18] The applicant
tells the court that he received legal advice prior to attending the
taxation as to the objection that he should
raise. If It is correct
as he says that he indeed raised the objection and was overruled then
he should likewise have gone back
to his attorney friend to seek
advice about the next step. This it appears he did not do for I do
not think that he would have
proceeded with this application instead
of using the mechanism prescribed in Rule 48 to seek redress about a
dissatisfaction concerning
a Bill of Costs.
[19] Rule 48 is a
simplified and detailed step by step direction to be utilised by any
litigant who is dissatisfied with a taxed
Bill of Costs. Subsection
2(c) of Rule 48 reads as follows:
“(2c) The
notice referred to in subrule (1) must contain the grounds of
objection relied upon by the dissatisfied party at
the taxation but
not argument in support thereof.”
[20] In the matter
of Century Trading Co (Pty) Ltd v The Taxing Master and Another
1958(1) SA 78 (W) at 84C-E William J said the
following:
“The bringing
of a bill of costs which has been taxed before a court in terms of
that Rule for ‘revision’ is not
strictly a review in the
sense of the court only interfering with the exercise of an improper
discretion. In my view the revision
of a bill which an aggrieved
party to a bill of costs is entitled to claim does not confine the
court only to interfering when
the exercise of the discretion was
improper. I think that at least the position must be that the court
can interfere when in its
view the taxing master has been clearly
wrong in regard to some item.”
[21] In the current
application the notice of review was never brought to the attention
of the Taxing Master to enable him to supply
a stated case to each of
the parties and eventually to a judge as stipulated in Rule 48(3).
The applicant proceeded to this Court
to achieve a result in an
irregular manner.
[22] The applicant
was afforded an opportunity to rectify the irregular proceedings. He
did not avail himself of the opportunity
and instead proceeded to
file lengthy affidavits which contained nothing relating to the Rule
30 notice.
[23] The applicant’s
argument in support of his contention are so far-fetched and legally
untenable that they require no further
consideration. It is for
these reasons that I have come to the conclusion that his application
was misconceived right from the
outset and is doomed to failure.
[24] In the result I
have come to the conclusion that the application is an irregular
proceeding as contemplated in Rule 30(1) of
the Rules I accordingly
order as follows:
24.1 The application
in terms of Rule 30(1) is granted.
24.2 The applicant’s
application to review the respondents’ taxed Bill of Costs
dated 30th October 2012 is set aside.
24.3 The applicant
is ordered to pay the respondents’ costs on an attorney and
client scale.
M A MAKUME
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPLICANT: IN
PERSON
21 DUNNEWELS
COMPLEX
7 MAIDEN STREET
ROBINDALE
RANDBURG
RESPONDENT: ADV
G STEYN
INSTRUCTED
BY: BICCARI,BOLLO&MARIANO ATTORNEYS
Tel: (011)
628-9300
Fax:
(011)788-1736
Ref: M
Hinz/rv/RD1873
DATE OF HEARING:
3RD MARCH 2014
DATE OF JUDGMENT:
25TH MARCH 2014