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[2023] ZAGPJHC 647
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Pillay v Body Corporate of Dumbarton Oaks (2021/11082) [2023] ZAGPJHC 647 (6 June 2023)
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
2021/11082
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
06.06.23
In the matter between:
ISHANA
PILLAY
Applicant
and
THE
BODY CORPORATE OF DUMBARTON OAKS
Respondent
Neutral Citation:
Ishana Pillay v The Body Corporate of Dumbarton Oaks (Case no.
11082/2021) [2023] ZAGPJHC 647 (6 June 2023)
REVIEW JUDGMENT IN
TERMS OF RULE 48(1)
CRUTCHFIELD J:
[1] The respondent
reviews the decision of the Taxing Master in respect of certain costs
rulings in terms of Rule 48(1) of the Rules
of this Court.
[2]
A court
seized with the review of a decision by the taxing master in terms of
rule 48(1) will be slow to interfere with the decision/s
of the
taxing master. A review court will interfere only if the taxing
master failed to exercise his / her discretion judicially.
Furthermore, the review court will interfere only when it holds the
view that the taxing master was clearly wrong but the court
must be
in at least as good a position as the taxing master was, to determine
the matter in issue.
[1]
[3] The relevant costs
rulings of the taxing master with which the respondent is
dissatisfied are items 57, 69 and 70 of the applicant’s
bill of
costs, taxed and allowed on 9 July 2021 (“the items”).
The items relate to costs incurred by the applicant
on 16 March
2021, and taxed against the respondent by the taxing master.
[4] The applicant
launched an urgent application set down for hearing on 16 March 2021.
The respondent on the latter date,
brought an application
viva
voce
and without papers, for condonation of the late filing of
its answering affidavit in the main application.
[5] The urgent court
granted the respondent condonation. The respondent did not tender the
costs of the condonation application
and the urgent court did not
make an order in respect of those costs.
[6] The main application,
being the applicant’s urgent application, was set down for
hearing on 16 March 2021 in terms
of the notice of motion but
could not proceed due to the late delivery of the respondent’s
answering affidavit. The urgent
application proceeded instead on 18
March 2021.
[7] The urgent court
heard the main application on 18 March 2021 and granted the relief
sought by the applicant. The order included
that the respondent pay
the applicant’s costs of the application on a punitive scale
together with the costs of two counsel
where two counsel were
utilised.
[8] The respondent
objected to the items at the taxation. The respondent reviews the
taxing master’s decision that the respondent
pay the items,
(albeit in reduced amounts than claimed by the applicant), which
relate to the applicant’s two counsel’s
costs incurred on
16 March 2021.
[9] It is not apparent
whether the applicant opposed the respondent’s application for
condonation or not.
[10] The court’s
reasons for the judgment make no mention of the costs of the
application for condonation.
[11] The respondent
called upon the Taxing Master to state a case in terms of Rule 48(1)
of the Uniform Rules of Court. The
Taxing Master refers to that
office being vested with the power to exercise a wide degree of
supervision and that it is only where
a review court considers the
taxing master to be clearly wrong that it will interfere with the
ruling of the taxing master.
[12] The various factual
errors in the taxing master’s stated case are not material.
[13] The respondent
contends that its application for condonation was a distinct
interlocutory application separate from the main
application and that
the costs incurred on 16 March 2021 in respect of the condonation
application were not for the respondent’s
account absent a
tender thereof or an order by the court, neither of which were made.
[14] Whilst the
condonation application was interlocutory, it was ancillary to the
urgent application and would not have been necessary
absent the
urgent application. The costs incurred on 16 March 2021 can
justifiably be included as costs incurred in respect
of the urgent
application on 18 March 2021, notwithstanding that the court was
silent on the costs of 16 March 2021.
[15] In the result,
I cannot find fault with the taxing master’s decision in
respect of items 57, 69 and 70 of the applicant’s
bill of costs
taxed on 9 July 2021.
[16] Accordingly, the
outcome of the taxation is upheld and the review is dismissed.
A A CRUTCHFIELD
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION
JOHANNESBURG
DATED on this the 6
TH
day of JUNE 2023.
APPLICANT’S
ATTORNEYS: SMIT SEWGOOLAN INCORPORATED.
RESPONDENT’S
ATTORNEYS: JOSELOWITZ & ANDREWS ATTORNEYS.
[1]
Van
Pletzen v Taxing Master of the High Court
(unreported, FS case no 4992/2014 15 January 2021 paras 17 –
20.