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[2014] ZAGPJHC 289
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Raisun v Petersen Hertog & Associates; InRe: Raisun v Attorneys Fidelity Fund; InRe: Raisun v Stanland and Another (40207/2013) [2014] ZAGPJHC 289 (2 September 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NUMBER:
40207/2013
DATE:
02 SEPTEMBER 2014
In
the matter between: -
MARK
ANTHONY RAISUN
..........................................
Applicant
And
PETERSEN
HERTOG & ASSOCIATES
.....................
Respondent
In re: -
MARK
ANTHONY RAISUN
..........................................
Plaintiff
And
ATTORNEYS
FIDELITY FUND
.................................
Defendant
And in re: -
MARK
ANTHONY RAISUN
......................................
Claimant
And
ALEXANDER
PETER STANILAND
..............
First
Respondent
LLEWELLYN
MICHAEL TAYLOR
...........
Second
Respondent
J
U D G M E N T
Georgiades
AJ: -
[1]
This is an application for rescission of a
taxation of two bills of cost by the Taxing Master of this Court. The
bills were taxed
in the applicant’s absence. The disputants are
an attorney and his client. A brief history is necessary.
[2]
On 1 June 2012 the applicant instructed the
respondent, an attorneys firm, to assist him with a claim against the
Attorneys Fidelity
Fund. The applicant’s funds had been
misappropriated from an attorney’s trust account.
[3]
The respondent was to settle affidavits in
pursuance of the applicant’s claim against the Fidelity Fund.
The respondent
charged a fee for this service. The applicant
contested these charges.
[4]
On the same date the applicant also
instructed the respondent to assist him with a dispute against his
co-members in a close corporation.
The dispute was to proceed
to arbitration. A pre-arbitration conference was arranged where
the respondent represented the
applicant. The arbitration did
not proceed. No ruling was made by the arbitrator as to costs.
As expected, the
respondent invoiced the applicant for its services.
Again, the applicant took issue with the fees charged by the
respondent.
[5]
It appears that in both instances there was
no written fee agreement between the parties. What followed was
a series of correspondence
between the applicant’s present
attorneys and the respondent pertaining to the fees charged in both
invoices. It is
not necessary for me to detail the content of
this correspondence. This on going dispute culminated in
the applicant
requesting that the costs be taxed. The
respondent agreed and undertook to set the matters down for
taxation.
[6]
The respondent served a notice of intention
to tax a bill of costs on the applicant’s attorney’s
Docex address in Johannesburg
on 31 July 2013. There
was no agreement that service could be effected on Docex.
[7]
Later, in August 2013, the applicant’s
attorney received an e mail from Cyril Muller Attorneys
with the attached
notice of taxation.
[8]
On 5 September 2013 a Mr Graham Fourie
of the respondent enquired from the applicant’s attorney
whether they had
received the notice of taxation. The
applicant’s attorney, Mr Roets, on 5 September 2013
returned Mr Fourie’s
call and spoke with one of his staff
named Irena. He states that he requested Irena to request
Mr Fourie to return his
call. He also informed her that it
was his instruction to oppose the taxation. He did not file a
notice of intention
to oppose at this stage.
[9]
It appears that the notice of taxation did
not contain a date on which the taxation would be held. The
applicant’s attorney
was not informed of the date of taxation.
[10]
Nevertheless the taxation was set down by
the respondent on 18 September 2013 where the Taxing Master
proceeded to tax
the bills of costs submitted by the respondent in
the absence of the applicant.
[11]
Subsequently, the applicant’s
attorney made an offer of settlement and also faxed the applicant’s
objections to the
taxations to the respondent. It was too late
as the taxation had already taken place.
[12]
Thereafter, on 1 October 2013 the
applicant’s attorney received notification that the bills of
costs had already been taxed.
This led to the present
application.
[13]
There are two issues that fall to be
determined in this matter: -
[13.1]
Firstly, whether there was proper service
of the notice of taxation; and
[13.2]
Secondly, whether the Taxing Master had the
jurisdiction to tax the bills of costs.
[14]
The relevant Uniform Rules of Court
relating to taxation are the following: -
[14.1]
Rule 70(1)(a) provides: -
“
The
Taxing Master shall be competent to tax any bill of costs for
services actually rendered by an attorney in his capacity as such
in
connection with litigious work
and such bill shall be taxed subject to the provisions of
sub rule (5), in accordance with the provisions of the
appended
tariff:
Provided
that the Taxing Master shall not tax costs in instances where some
other officer is empowered to do so
.”
(my emphasis)
[14.2]
There are three issues that arise out of
this definition: -
[14.2.1]
Firstly, whether the Taxing Master can tax
a bill of costs between an attorney and his/her client;
[14.2.2]
Secondly, whether the work carried out by
the respondent can be said to be in connection with litigious work;
and
[14.2.3]
Thirdly, whether in this instance there was
some other officer who is empowered to tax the respondent’s
costs which effectively
would mean that the Taxing Master would not
have the requisite jurisdiction;
[14.3]
Rule 70(3B) provides that: -
“
Prior
to enrolling a matter for taxation, the party who has been awarded an
order for costs shall, by notice as near as may be in
accordance with
Form 26 of the First Schedule –
(a)
afford the party liable to pay costs
at the time therein stated, and for a period of ten (10) days
thereafter, by prior arrangement,
during normal business hours and on
any one or more such days, the opportunity to inspect such documents
pertaining to any item
on the bill of costs; and
(b)
require the party to whom notice is
given, to deliver to the party giving the notice within twenty (20)
days, a written notice of
opposition, specifying the items on the
bill of costs objected to, and a brief summary of the reasons for
such objection.”
[14.4]
Uniform Rule 70(4) also provides the
following: -
“
The
Taxing Master shall not proceed to the taxation of any bill of costs
unless he or she is satisfied that the party liable to
pay the same
has –
(a)
received due notice in terms of rule
(3B); and
(b)
received due notice as to the time
and place of such taxation and notice that he/she is entitled to be
present thereat: Provided
that such notice shall not be
necessary –
(i)
if the party liable to pay the costs
has consented in writing to taxation in his/her absence;
(ii)
if the party liable to pay costs
failed to give notice of intention to oppose in terms of sub rule
(3B); or
(iii)
for the taxation of writ and
post-writ bills,
provided further
that, if any party fails to appear after having given notice of
opposition in terms of sub rule (3B)(b), the
taxation may
proceed in their absence.”
[15]
Mr Marx, on behalf of the applicant
,submitted that: -
[15.1]
The Taxing Master did not have jurisdiction
to tax the bills of costs as there was no pending litigation between
the parties.
There was no cost order made against the
applicant. He argued that Rule 70(3B) required notice of taxation be
given by the party
awarded costs. This implied that the Taxing Master
could only tax a bill pursuant to a court awarding costs to a party
and not
as between an attorney and his/her client;
[15.2]
The work performed by the respondent was
not of a litigious nature;
[15.3]
The bill of costs should have been taxed by
another officer, namely the Law Society of the Northern Provinces,
who is a body empowered
to do so due to the non-litigious nature of
the work performed. This would take place in terms of rule 80
of the Attorneys
Act, 53 of 1975;
[15.4]
The second bill of costs in relation to the
arbitration matter could be taxed in terms of the Rules of the
Arbitration Foundation
of South Africa;
[15.5]
There was no proper service of the notice
of taxation on the applicant’s attorney in terms of Uniform
Rule 4(1)(a).
[16]
I shall analyse each of these submissions
in turn.
[17]
The
question of the Taxing Master’s jurisdiction to tax a bill of
costs between an attorney and his client is within the jurisdiction
of the Taxing Master. In
Malcolm
Lyons and Munro v Abro and Another
[1]
this Court dealt with a review of taxation of former attorneys and
their erstwhile clients in a bill of costs drawn as between
attorney
and their own client. The Taxing Master, it was held, was
empowered to satisfy himself that the fees claimed related
to work
specifically authorised by the client and that the fees charged were
reasonable.
[2]
[18]
Rule 70(1)(a) clearly states that the
Taxing Master is empowered to tax a bill as between an attorney and
his/her client.
[19]
However, there are two jurisdictional
requirements that need to be present in order for the Taxing Master
to have jurisdiction: -
[19.1]
Firstly, the bill of costs must be for
services rendered by an attorney in connection with litigious work;
[19.2]
Secondly, there is a proviso that the
Taxing Master shall not tax costs in instances where some other
officer is empowered to do
so.
[20]
The
question as to what constitutes litigious work was analysed by
Van Dijkhorst J in
In
re Isaacs v Bloch.
[3]
[21]
The judgment dealt with the meaning of
litigious within the context of the Rules of Taxation. The pertinent
passage of His Lordship’s
judgment bears repetition: -
“
It
is clear that the word ‘litigious’ has to bear the same
meaning in the Supreme Court Rules as in the TLS Rules as
the latter
is intended to catch the fish that slipped the net of the former.
It seems to me
that between what undoubtedly will be viewed as a litigious work and
what will with equal certainty be regarded as
non-litigious work lies
a grey area which may contract or expand according to the definition
applied. There springs to mind
the work of an attorney in
matters pertaining to the Water Court, the Income Tax Court, the
Court of the Commissioner of Patents,
the Industrial Court,
Arbitration, the
Valuation Court, the Rent Control Board, the Liquor Licencing Board
and numerous licensing and zoning tribunals.
In all these cases
there may be heavily contested issues, resolved by evidence, tested
by cross examination, and decided according
to law after proper
adjudication. Which are litigious matters and which are not?
The word
‘litigious’ has a wide meaning. The Oxford English
Dictionary defines it as: ‘(1) Of persons,
their actions,
dispositions and utterances (a) fond of disputes, contentious (now
rare) (b) fond of litigation; eager to
go to law (c) engaged in
litigation or contention; litigant (obs). (2) Open to
dispute or question; disputable, questionable;
productive of
litigation or contention (obs) (b) disputable at law; that is
or is liable to become the subject of a law suit,
especially of a
benefice. (3) Of or pertaining to law suits or litigation.’
The word
‘litigate’ is defined in that work as: ‘(1) To be a
party to, or carry on, a suited law; to go to law.
(2) To make
the subject of a law suit; to contest at law; to plead for or
against. (b) generally to dispute, contest
(a point etc).’
‘
Litigation’
is therein defined as: ‘(1) The action or process of carrying
on a suit in law or equity; legal proceedings;
in litigation:
in process of investigation before a court of law (b) the practice of
going to law. (2) Disputation (now rare).’
The concept
‘hofwerk’ used in the Afrikaans version of the Rules is
in my view narrower than ‘litigious work’.
The term
‘hofwerk’ is unknown to the leading Afrikaans dictionary,
Die Afrikaanse Woordeboek. It states ‘hof’
is an
abbreviation for ‘geregshof’ (court of law) but also
gives ‘hof van arbitrasie’ (arbitration court)
as an
example. ‘Hofwerk’ is also not defined in other
standard Afrikaans dictionaries like HAT and Bosman, Van
der Merwe
and Hiemstra. The trilingual dictionary of Hiemstra and Gonin
renders it as ‘court work’. (One
has to fall back
to some extent on one’s own feeling which is that ‘hofwerk’
does not encumber licencing and
valuation tribunals but does include,
apart from the courts of law in the strict sense (like the Supreme
Court and Magistrate’s
Court), other bodies which bear the name
‘Court’ and function as if there were courts of law
applying legal principles
and not administrative discretion in the
settlement of disputes.
Thus defined,
‘hofwerk’ has a more constricted meaning than ‘litigious
work’. The latter term is therefore
to be interpreted
according to the common denominator and bears the meaning I have
ascribed to the former.”
[22]
In light of the definition of “
litigious
work”
or “
hofwerk”
,
I am of the view that the work done by the respondent on behalf of
the applicant in relation to settling affidavits for his claim
against the Fidelity Fund was not litigious work or in connection
with litigation. There was nothing contentious in the claim
against the Fidelity Fund for the money stolen from the said
attorney’s trust account. There was no evidence that any
law suit ensued or that any work was carried on in connection with
such law suit. There was no contest at law so to speak.
[23]
In the circumstances, I am in agreement
with the applicant that this jurisdictional fact was absent in
relation to the first bill
of costs.
[24]
The same cannot hold in relation to the
litigation that was contemplated before the Arbitration Foundation of
South Africa.
In those circumstances it appears that there was
a dispute between members of a close corporation, which included the
applicant.
The arbitrator found that there was no dispute to
arbitrate. This does not however mean that that the work was
not carried
out in contemplation of litigation or in connection with
litigious work.
[25]
However, in relation to the second
bill of costs incurred in the arbitration matter, the proviso that
the Taxing Master shall not
tax costs in instances where some other
officer is empowered to do so, is applicable. These costs can
competently be taxed under
the auspices of AFSA.
[26]
The Taxing Master accordingly did not have
jurisdiction, in my view, to tax each of the bill of costs for these
reasons.
[27]
In relation to the question of service of
the notice of taxation, I am also of the view that the service by way
of Docex was irregular.
The parties did not agree to such
service. The respondent should have served the application on
the applicant in terms of
one of the recognised forms of service
referred to in Uniform Rule 4. There was also no agreement
between the parties
that any notice or pleadings would be served by
way of e mail. The applicant’s attorney may be
criticised for
not having filed his notice of objection sooner.
However, this can be countered by the fact that no date was
stipulated on
the notice of taxation and he was unaware that the
matter had been set down before the Taxing Master. There is no
doubt that
having hotly disputed the items in the bill of costs and
the fee structure, the applicant would have appeared at the taxation
had
he or his legal representatives been aware of the date.
[28]
The
respondent’s counsel, Mr Bishop, contended that a
rescission of the Taxing Master’s bill is not a final judgment
or order and cannot be rescinded. The relief sought is
therefore incompetent. I do not agree with this submission.
Taxation in the absence of notice of taxation may be declared invalid
by a court. In
Brenner’s
Service Station and Garage (Pty) Ltd v Milne
[4]
Leveson AJ, as he then was, granted an application to set aside the
taxation of a bill of costs as an irregular proceeding within
the
meaning of Rule 30(1) of the Uniform Rules of Court. The taxation was
set aside on the basis that it was held on a later date
than the one
stipulated in the notice of taxation.
[29]
In
Vegas
Engineering (Pty) Ltd v Cranco
[5]
the applicant had not received notice of the taxation and
successfully had it set aside in an application for review.
[30]
Mr Bishop submitted that an application for
review was the proper procedure to have the bills set aside. He
submitted that the Taxing
Master should have been joined to these
proceedings. I disagree. It is not the taxation of items in the bills
as taxed by the Taxing
Master that are being challenged in these
proceedings, but rather the fact that they were so taxed in the
absence of the applicant
and in circumstances where he lacked
jurisdiction. Rule 48 provides that any party dissatisfied with the
ruling of the Taxing Master
as to any item objected to or disallowed
may be reviewed. It is not the Taxing Master’s discretion in
allowing or disallowing
items that is being challenged but rather the
invalid act of taxing in these circumstances.
[31]
I
am guided by the decision of
Grunder
v Grunder
[6]
in which it was held that
the common law principles applicable to the setting aside of default
judgments apply also to the setting
aside of the Taxing Master’s
allocator
.
[32]
In
the present context, apart from the irregularity in the proceedings,
I am also satisfied that the applicant has set out sufficient
cause
for the rescission of the
allocatur
. In other words the application is a bona fide. The applicant has
explained his default and set out a bona fide defence.
[7]
[33]
In the result, I find that the taxation of
the bill of costs by the Taxing Master in the absence of the
applicant was irregular
and invalid. I also find that it is so
because in relation to the first bill of costs where services were
rendered in pursuance
of a claim that was not connected to litigious
work. In relation to the second bills of costs concerning the
arbitration, I find
that these could be disposed of in terms of
AFSA’s Rules.
Accordingly,
I make the following order: -
[1]
The taxations granted in the absence of the
applicant on 18 September 2013 by the Taxing Master are hereby
rescinded and set aside;
[2]
The respondent is ordered to pay the costs
of this application.
CHRISTOS
GEORGIADES
ACTING
JUDGE OF THE HIGH COURT
DATE OF HEARING:
13 JUNE 2014
DATE OF
JUDGMENT: 2 SEPTEMBER 2014
FOR
THE APPLICANT
:
ADV HEIN MARX
INSTRUCTED BY: -
ROETS
& DU PLESSIS ATTORNEYS
FOR
THE RESPONDENT
:
ADV ANTHONY
BISHOP
INSTRUCTED BY: -
PETERSEN,
HERTOG & ASSOCIATES
[1]
1991(3)
SA 464 (W).
[2]
Supra
at 469E.
[3]
1990(4)
SA 597 (T).
[4]
1983(4)
SA 233 (W).
[5]
1963(3)
SA 337 (D) at 339B – 340B.
[6]
1990(4)
SA 680 (C)
[7]
Grant
v Plumbers (Pty)Ltd
1949 (2) SA 470
(O); and
Barnard
v Taxing Master of the High Court of SA (TPD) and others
[2005] 2 All SA 485(T)