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[2010] ZAWCHC 660
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Van Der Berg v Taxing Master, Western Cape High, Cape Town and Another (1345/10) [2010] ZAWCHC 660 (14 June 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE HIGH
COURT, CAPE TOWN
CASE NO: 1345/10
DATE: 14 JUNE 2010
In the matter between:
JOHAN VAN DER
BERG
........................................................................................................
Applicant
And
THE TAXING
MASTER,
............................................................................................
First
Respondent
WESTERN CAPE HIGH COURT, CAPE TOWN
THE GENERAL COUNCIL
OF THE BAR OF SOUTH
AFRICA
......................................................................
Second
Respondent
JUDGMENT: 14 JUNE 2010
Rilev, AJ:
[1] This is an application for a review
of the first respondent's taxation of a bill of costs of the second
respondent on the 14th
December 2009 under case number 2419/2005.
[2] The applicant, who instituted the
proceedings on the 25th January 2010 sought an order directing the
first respondent to show
cause why his taxation of the second
respondent's bill of costs should not be reviewed and corrected or
set aside in terms of
[3] It is common cause that on the 8th
of February 2010 the First Respondent filed a notice of intention to
abide and Second Respondent
filed a notice of non-opposition and
consent to order on 9 February 2010, in the following terms:-
(1) That the allocator of the First
Respondent of 14 September 2009 in case number 2419/2005 ("the
allocator") is set
aside.
(2) That the bill of costs in case
number 2419/2005 presented by the Second Respondent on 14 December
2009 is referred back to a
different taxing master of this Court, for
taxation on a date and at a time to be fixed by such taxing master
after consultation
with the Applicant and Second Respondent.
(3) That there be no order as to costs.
[4] On 23 April 2010 and after having
heard argument from Applicant and Second Respondent, the following
order was made by agreement
between the parties:-
(1) That the allocator of the First
Respondent of 14 December 2009 in case number 2419/2005 ("the
allocator") is set aside;
(2) That the bill of costs in case
number 2419/2005 presented by Second Respondent on 14 December 2009
is referred back to a different
taxing master of this court for
taxation on a date and at a time to be fixed by such taxing master
after consultation with the
Applicant and Second Respondent.
[5] The only issues left for
determination are:-
(1) Whether the deponent to the Second
Respondent's answering affidavit, who is the chairperson of the Cape
Bar Council Adv. Jeremy
Muller SC ("Muller") was duly
authorised to depose to the affidavit on behalf of the General
Council of the Bar of South
Africa, and
(2) Whether Applicant's application for
leave to amend its notice of motion in order to include an additional
prayer "directing
the respondents to pay the Applicant's costs
on a scale as between attorney and client" should be granted and
whether Applicant
was entitled to costs in the event of any of the
Respondents opposing the application.
[6] The Second Respondent objects to
the proposed amendment.
[7] For the sake of convenience, I deal
firstly with the preliminary issue as to whether Muller, the deponent
to the Second Respondent's
answering affidavit was duly authorised to
depose to the affidavit on behalf of the Second Respondent. Mr. H.C.
Schreuder contended
on behalf of the Applicant that even though
Muller had authority to depose to affidavits on behalf of the Second
Respondent that:-
(1) Muller had made himself guilty of
inappropriate conduct in the matter when he persisted with the
opposition to the amendment
in the name of the Second Respondent for
which, so he alleged, Muller had no authority;
(2) Second Respondent had failed to
show that it had considered the matter and in particular that it had
given consideration to
the opposition of Applicant's application to
amend its notice of motion in order to claim costs;
(3) Second Respondent had filed no
extracts of minutes of any meeting to show that it considered and
authorised the approach to
be followed by Muller.
[8] Mr. D. Irish SC assisted by Ms. K
Pillay for the Second Respondent, contended that the attack on
Muller's authority to have
deposed to affidavits on behalf of the
Second Respondent is both belated and opportunistic.
[9] It is apparent from the papers that
the lack of Muller's authority is raised for the first time in the
supplementary affidavit
filed on behalf of the Applicant.
[10] In response to Applicant's
founding affidavit on 8 February 2010, Muller deposed to an affidavit
in which he records the following
"I am the chair of the Cape Bar
Council and am duly authorised to depose to this affidavit on behalf
of the above-named second
respondent; General Council of the Bar of
South Africa, of which the Cape Bar Council is a constituent"
[11] In the affidavit in support of his
notice of application to amend, Applicant does not dispute or
challenge Muller's authority
to depose to an affidavit on behalf of
the Second Respondent at all. He accepts Muller's authority as
appears from the fact that
he states
"I am amenable to the order
suggested by him in paragraph 4 of his affidavit, provided an order
for costs as applied for in
the accompanying Notice of Motion, is
included therein."
[12] On a simple reading of the
paragraph Applicant acknowledges that Muller had made his affidavit
on behalf of the Second Respondent
when he states that:—
"I refer to the affidavit of Idris
Jeremy Muller (Muller) on behalf of he (sic) second respondent dated
8 February 2010."
[13] In Second Respondent's answering
affidavit Muller states as follows:-
"In response to paragraph 5.2,1
note that the applicant for the first time disputes my authority to
depose to an affidavit
on behalf of the second respondent. This
challenge is misconceived and without foundation. A challenge of this
nature can only
competently be brought in respect of the attorneys
handling this matter. I attach hereto a copy of a Special Power of
Attorney
marked "IJM1", which I respectfully submit confers
the requisite authority to Bisset Boehmke Mcblain Attorneys in
respect
of these proceedings. I respectfully submit that the second
respondent has indeed properly applied its mind to the issues that
are the subject of these proceedings. Any allegation to the contrary
is plainly without foundation."
[14] It is common cause that"IMJl"
is a special power of attorney granted by the General Council of the
Bar to Bisset
Boehmke Mcblain Attorneys. It is unnecessary to repeat
the wording thereof as the content speaks for itself. Suffice to say
that
it importantly makes provision for the ratification of any
action by the attorneys.
[15] Iri my view Mr. Irish is correct
in his contention that in the present matter the crisp answer to
Applicant's challenge to
Muller's authority is to be found in Rule 7
of the Uniform Rules of Court.
[16] Rule 7(1) provides that:—
"Subject to the pro visions of
subrules (2) and (3) a power of attorney to act need not be filed,
but the authority of anyone
acting on behalf of a party may, within
10 days after it has come to the notice of a party that such person
is so acting, or with
the leave of the court on good cause shown at
any time before judgment be disputed, whereafter such person may no
longer act unless
he satisfied the court that he is authorised so to
act, and to enable him to do so the court may postpone the hearing of
the action
or application."
[17] Apart From the fact that there has
been no challenge to the authority of Second Respondents' attorneys,
Applicant has failed
and neglected to comply with the prescripts of
Rule 7 of the Uniform Rules of Court.
[18] In Eskom v Soweto City Council
1992 (2) SA 703
(W) at 705 F-H the following was held:-
"The developed view, adopted in
Court Rule 7(1), is that the risk is adequately managed on a
different level. If the attorney
is authorised to bring the
application on behalf of the applicant the application necessarily is
that of the applicant. There is
no need that any other person,
whether he be a witness or someone who becomes involved especially in
the context of authority,
should additionally be authorised. It is
therefore sufficient to know whether or not the attorney acts with
authority.
As to when and how the attorney's
authority should be proved, the Rule-maker made a policy decision.
Perhaps because the risk is
minimal that an attorney will act for a
person without authority to do so, proof is dispensed with except
only if the other party
challenges the authority. See Rule 7(1)."
[19] This, in my view, is a sound
approach and is applicable in casu. In this regard, see also Ganes
and Another v Telecom Namibia
Ltd
2004 (3) SA 615
(SCA) at paragraph
19.
[20] Accordingly I find that the
challenge to Muller's authority is indeed misconceived, and without
merit. It follows that the
Applicant's challenge to Muller's
authority cannot succeed.
[21] It is not necessary to go into too
much detail about the background and the events leading up to the
taxation of Second Respondent's
bill of costs on 14 December 2009.
What is however clear and undisputed is that there existed severe
tension and acrimony between
Applicant and Second Respondent's
attorneys of record from the time that Applicant received the notice
of taxation in August 2009.
The tension and animosity is further
illustrated and highlighted with reference to the serious accusations
levelled by Applicant
against Koen, Second Respondent's attorney of
record. Applicant inter alia accused Koen of the following:-
(1) filing a false certificate in terms
of Rule 70;
(2) having been made aware of the
falsity thereof persisting on having the bill taxed on the scale as
between attorney and client,
and
(3) claiming for costs of three counsel
well knowing Second Respondent was only entitled to costs for two
counsel.
[22] Even though Applicant further
alleged that he had personally delivered a copy of his letter
requesting a postponement of the
taxation, on Second Respondent's
attorney, his counsel was unable to provide us with a copy of such
letter nor was such letter
attached to any of the affidavits filed on
his behalf in this matter.
[23] The fact of the matter is that at
the time that Applicant brought his application for the review of the
taxation he was fully
aware about all the trouble and frustration
that Second Respondent's attorneys had caused him up until then. The
correspondence
reeks of acrimony and tension.
[24] Mr. Schreuder contended that it
was necessary for the Applicant to launch the review application as a
direct result of the
approach and conduct of the Second Respondent
which led to the taxation of the bill of costs on 14 December 2009 in
the Applicant's
absence. It was also contended that the taxing master
would not have taxed the bill in Applicant's absence were it not for
this
approach and conduct. I cannot find anything in the record of
the proceedings before the taxing master that Second Respondent's
attorneys of record made themselves guilty of any particular conduct
apart from the taxing master's recording that he intended
to proceed
with the taxation.
[25] Mr. Schreuder also argued that the
fact that Second Respondent had elected to oppose the Applicant's
application to amend its
notice of motion (before the granting of the
review and setting aside of the taxing master's taxation of the bill
of costs) led
to the bulk of the costs being incurred in this matter
up to the date of hearing and that the Second Respondent should not
have
opposed the Applicant's application, and have consented to costs
on ari unopposed basis.
[26] I pause to mention that even
though the taxation took place on 14 December 2009 and Applicant
launched his review application
on 25 January 2010, he made no
attempt whatsoever to address correspondence to Second Respondent's
attorneys to advise them of
their error in proceeding with the
taxation in his absence, nor did Applicant request them to agree to
have the taxation set aside.
This in my view would certainly have
resulted in costs being drastically curtailed. Based on the facts and
circumstances of this
matter I find that the bulk of the costs
incurred in this matter is in fact as a result of Applicant and his
legal team's own doing.
[27] On the papers before me it is
evident that it was the First Respondent who proceeded with the
taxation even though he was in
possession of the letter in which
Applicant requested a postponement.
[28] I find it strange that after
service on Applicant of the notice of taxation for 14 December 2009,
that Applicant did not address
any correspondence to them by fax,
email or otherwise to Second Respondent's attorneys of record, or at
the least, telephoned them
to complain that the date did not suit him
or his cost consultant. It seems logical that the Second Respondent's
attorneys would
be the first to be notified about the problems he had
with the date if one considers the prior correspondence between the
Applicant
and Second Respondent's attorneys. Applicant failed to do
this, even though the issue relating to the taxation of the bill had
consumed his time and effort for almost a year.
[29] The following facts need to be
highlighted
(1) Applicant's affidavit in support of
the review of the taxation was signed on 18 January 2010;
(2) The notice of motion was signed by
Applicant's attorneys on 25 January 2010.
(3) Applicant had at least a week to
reflect and consider the contents of his founding affidavit.
(4) On 25 January 2010 the notice of
motion with supporting documents were issued out of this court. The
notice provides that should
no notice of opposition be given in the
stipulated time that application will be made for the relief sought
on 12 February 2010.
(5) On 25 January 2010 at llh06 the
notice of motion with supporting documents were served on Second
Respondent's attorneys and
presumably also on the First Respondent.
(6) On 8 February 2010 First Respondent
served a notice of intention to abide on Applicant's attorneys at
14hl5.
(7) The notice of intention to abide
was also served on Second Respondent's attorneys on 8 February 2010.
(8) At 14hl5 on 8 February 2010 First
Respondent served a notice in terms of Uniform Rule 53 on Applicant's
attorneys in terms of
which he gave notice to the Applicant that he
has despatched the record of the proceedings in the taxation under
case no. 2419/2005
to the registrar and that he did not intend
supplementing the reasons for his decision contained in the record of
the proceedings.
The relevant part of the record of the taxation
proceedings on 14 December 2009 is as follows:-
"On the 7th October I declined to
tax the bill for being improperly presented for taxation.
The bill was redrafted and a new date
was obtained for taxation and service of the notice of taxation was
effected on 12 November
2009 by the Sheriff. I advised the parties
including the respondent, who was present that I will allocate an
early date on account
of the past delays on 27 November 2009. I
received a letter from the respondent, in which he asked for the
postponement of the
taxation and a date next year to enable him to
consult with his cost consultant.
It is apparent from the respondent's
letter that he has already consulted Mr. Lourens about the bill and
do not consider the basis
for postponement of application is good. I
therefore conclude that I should tax the bill in his absence.
(my underlining)
T. Yalezo
Taxing Master - 14 December 2009"
(9) At 14h25 on 9 February 2010 the
attorneys for Second Respondent served a Notice of Non-Opposition and
Consent to order in the
following terms:-
"1. the allocator of the first
respondent of 14 December 2009 in case number 2419/2005 is set aside;
2. the bill of costs in case number
2419/2005 presented by the second respondent on 14 December 2009 is
referred back to a different
taxing master of this court, for
taxation on a date and time to be fixed by such
taxing master after consultation with
the applicant and the second respondent; and
3. there is no order as to costs."
(10) On 9 February 2010 Applicant's
attorney of record served and filed a notice of set down, setting the
matter down for hearing
on Friday, 12 February 2010 at lOhOO, on the
Second Respondent.
(11) On 10 February 2010 and at Loxton
S.A. Police Services, Applicant deposed to his affidavit in support
of the notice of application
to amend (which appears to have been
sent to his attorney of record per telefax at llh55).
(12) On 10 February 2010 the notice of
application to amend which is set down for hearing on 12 February
2010 was issued and served
on the First Respondent.
According to the notice of application
to amend Applicant sought an order that:—
"1. The following prayer be added
after prayers 1 and 2 of the notice of motion dated 25* January 2010:
"3. Directing the respondent to
pay the applicant's costs on the scale as between attorney and
client."
2. Costs of this application in the
event of the respondents opposing the application."
[30] It is common cause that Applicant
did not seek a cost order in his original notice of motion, nor does
Applicant make out a
case in his founding affidavit for costs against
either First or Second Respondents. Mr. Schreuder was adamant that it
was always
the Applicant's intention to seek a cost order against
First and Second Respondent. He was unable to provide us with a note,
instruction
or mandate from Applicant to his attorney or to counsel
to this effect.
[31] It is necessary to note that at
the time of launching these proceedings Applicant was an experienced
senior counsel for many
years. His attorneys of record and counsel
who allegedly drafted the notice of motion and his attorneys of
record are equally experienced
and well established in practice.
[32] In his affidavit dated 10 February
2010 in support of the notice of application to amend, the Applicant
states that the reason
why costs were not referred to in the original
notice of motion was due to an oversight on the part of his attorneys
for which
he sincerely apologized.
[33] In a further affidavit dated 11
February 2010 the Applicant states that:-
"2. I refer to paragraph 6.1
thereof and apologize for the error contained therein.
2.1 I was under the impression that the
original notice of motion was in fact drawn up by my attorneys but it
has now been pointed
out to me that in fact the notice of motion was
drawn up on my behalf by my counsel.
2.2 I did not have sight into the
notice of motion prior to the filing thereof."
[34] In my view it is inconceivable and
illogical for Applicant to suggest, that as very seasoned
practitioners in the law, he and
his legal team would have omitted to
include a prayer for costs if that is what his original intention
was.
[35] It is further highly unlikely and
improbable that bearing in mind the history of the matter and the
extreme acrimony between
the parties that he would have forgotten to
include any reference to costs in his founding affidavit to the
notice of motion. I
am therefore not persuaded by the argument that
it was his original intention to claim costs. If one looks at the
correspondence
between Applicant and particularly Second Respondents'
attorneys his chief complaint relates to the unnecessary costs
incurred
by him seemingly as a result of the Second Respondent's
unreasonable attitude. The issue of costs would therefore have been
alive
in his mind at the time when the affidavit was prepared. He had
the affidavit with him for at least a week before the application
was
brought. It is also strange that he would not or did not have sight
of the notice of motion prior to the application being
launched.
Applicant's first explanation as to why costs were not referred to in
the original notice of motion does not make sense
either. In the
first place this explanation is on his own admission factually
incorrect. It is once again unlikely and improbable
that having
practiced law for many years as an advocate and senior advocate that
he would go on oath and state as a fact that:-
:...is due to an oversight on behalf of
my attorneys..."
Surely he would have determined and at
the least ought to have made sure about the factual correctness of
the averment that he makes.
It is obvious that he faxed the founding
affidavit to his attorneys. It can reasonably be accepted that the
affidavit when received,
was read.
[36] On this version the attorneys
would certainly have conducted themselves in a grossly negligent
mariner by the service and filing
of an affidavit which contained
factually incorrect information.
[37] We have no affidavit from
Applicant's attorney of record explaining why they filed the
affidavit well knowing that it was factually
incorrect.
[38] As stated the Applicant changed
his version and avers that he was "under the impression"
that the original notice
of motion was drawn up by his attorney, but
that it had been "pointed out to" him that it was in fact
drawn up by counsel.
He gives no explanation whatsoever why he,
having been in practice as an advocate for many years, could have
gained that impression.
[39] Neither Applicant's attorney of
record, nor counsel have supported the averments made by him as
aforesaid, nor have they made
affidavits to explain why no reference
is made in either the founding affidavit or the notice of motion in
regard to the cost issue,
if that was originally the instruction by
the Applicant.
[40] It is trite law that an amendment
will not be allowed if it is mala fide. In this regard, see Moolman v
Estate Moolman and
another
1927 CPD 27
at 29 and Holdenstedt Farming
v Cederbera Organic Buchu Growers fPtv) Ltd
2008 (2) SA 177
(C) at
par 26.
[41] The Second Respondent has disputed
that there was an "oversight" in the drafting of
Applicant's notice of motion,
particularly when regard is had to the
founding affidavit. Mr. Irish contended that the founding affidavit
follows the relief sought
in the original notice of motion. However
he contended that the facts of the case on the whole demonstrate that
the proposed amendment
is mala fide. It is common cause that the
review application was directed at the taxing master.
[42] I agree with Mr. Irish, on a
simple ordinary reading of the Applicant's founding affidavit there
is not a single reference
to the Second Respondent, save for the
prejudice to be suffered should the relief not be granted.
[43] Based on the events that occurred
after the service and filing by Second Respondent's attorneys, of the
notice of non-opposition
and consent to judgment and the conduct of
the Applicant's attorneys in setting the matter down on an unopposed
basis, it seems
that Applicant's attorney was satisfied that the
matter is being resolved on the basis as set out in Second
Respondent's Notice
of non-opposition and consent to order.
[44] Mr. Irish contended that this
action by Applicant's attorney, in setting the matter down on an
unopposed basis, was a clear
indication to the Second Respondent that
the matter had been settled between the parties and that there was no
longer any dispute
between them. Accordingly he argued that by
bringing the application to amend the prayers for costs, the
Applicant had introduced
a new claim for costs on an attorney and
client scale, as well as costs on that scale in the event that the
Second Respondent opposed
the application for amendment. Based on the
facts of this matter I find that the Second Respondent had no
alternative but to oppose
the application for amendment and the
relief sought therein.
[45] In J.R. Janisch fPtv) Ltd v W.M.
Spilhaus and Co (\NP) (Ptv) Ltd 1992 m SA 167 (C) at 169 I, it was
held that:—
"The tendency of our courts is not
to be over-formalistic and to grant an amendment whenever it will
facilitate the proper
ventilation of a dispute between the parties.
In Whittaker vRoos and Another; Morant vRoos and Another 1911 TPD1092
at 1102-3 this
tendency was descried as follows:
'This court has the greatest latitude
in granting amendments, and it is very necessary that it should have.
The object of the court
is to do justice between the parties. It is
not a game we are playing, in which, if some mistake is made, the
forfeit is claimed.
We are here for the purpose of seeing that we
have a true account of what actually took place and we are not going
to give a decision
upon what we know to be wrong facts. It is
presumed that when a defendant pleads to a declaration he knows what
he is doing and
that, when there is a certain allegation in the
declaration, he knows that he ought to deny it, and that if he does
not do so,
he is taken to admit it. But we all know, at the same
time, that mistakes are made in pleadings, and it would be a grave
injustice,
if for a slip of the pen or error of judgment, or the
misreading of the paragraph in pleadings by counsel, litigants were
to be
mulcted in hea vy costs. That would be a gross scandal.
Therefore the Court will not look to technicalities, but will see
what
the real position is between the parties.
[46] I agree with this approach.
[47] On the facts of this matter the
Applicant gave two contradictory versions for why costs were not
asked for originally. I have
already expressed my reservations in
this regard. In my view the affidavits filed by the Applicant are
severely lacking in detail
and particularity in regard to the absence
of any reference to costs being sought against either First or Second
Respondent. In
addition I have mentioned that both Applicant's
attorneys of record as well as counsel have failed to go on affidavit
to explain
how it came about that they failed and neglected to deal
with the important issue of costs in the papers.
[48] Applicant has not given a
satisfactory explanation for having omitted the most important issue
relating to costs, from his
founding affidavit or the original notice
of motion.
[49] The real position it would seem is
that there was never any intention to ask for costs in the first
place. This in my view
was the real position between the parties. I
am therefore not persuaded that applicant is bona fide in the relief
sought.
[50] In the result the following order
is proposed
(1) The Applicant's application for
leave to amend his notice of motion to include an additional prayer -
"Directing the Respondents to pay
the Applicant's costs on a scale as between attorney and client"
is dismissed with costs.
(2) Costs to include the costs
occasioned by the employment of two counsel.
I agree. It is so ordered.
A.LE GRANGE, J