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[2023] ZAFSHC 418
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Havenga v Havenga and Others - Review of Taxation (3327/2021) [2023] ZAFSHC 418 (23 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number 3327/2021
In
the matter of:
WESSEL
JOHANNES JACOBUS HAVENGA
Applicant
and
HELEN
MARGRET HAVENGA
First
Respondent
ADRIE
VAN WYK
Second
Respondent
ELSA
HENDREHETTA OOSTHUIZEN
Third
Respondent,
JOHN
BOTHA HAVENGA
Fourth
Respondent
RUBEN
CLAASSEN
Fifth
Respondent
THE
MASTER OF THE FREE STATE HIGH
Sixth
Respondent
COURT
BLOEMFONTEIN
CORAM:
NAIDOO, J
DELIVERED
ON: 23 O
CTOBER
2023
JUDGMENT
- REVIEW OF TAXATION
[1]
This is an application in terms of Uniform Rule 48 for the review of
the taxation,
in respect of a Bill of Costs that was taxed by the
Taxing Mistress of this Division. The first to fourth respondents are
the mother
and siblings, respectively, of the applicant. The deceased
estate implicated in this matter is that of the applicant’s
father,
the late Adrian De Necker Havenga. The dispute in respect of
this matter centres around the Smithsdrift Trust (the Trust) which
owns immovable property, which property was the subject matter of an
urgent application heard by this court on 20 July 2021. It
appears
that certain settlement negotiations took place pursuant to the
enrolment of the urgent applicant, resulting in a Resolution
(the
Resolution) being taken on 27 July 2021 by the trustees of the Trust,
the applicant and his mother, the first respondent,
as capital
beneficiaries of the Trust, that the property owned by the Trust be
sold by public auction. Provision was also made
for the payment of
certain debts from the proceeds of the sale and for the investment of
the balance. Attorneys Hendré Conradie
Inc are on record for
the applicant, while Attorneys Jac N Coetzer are on record for the
respondents.
[2]
I mention that the Resolution attached to the Notice of Review of
Taxation was signed
only by the applicant. The tenor of the papers
filed by the parties suggests that there may have been a properly
signed Resolution
in existence, and the applicant confirmed that the
Resolution settled the matter between the parties. It appears that
the parties
considered themselves bound by the Resolution. A Bill of
Costs was enrolled for taxation by Jac N Coetzer Inc. The applicant
objected
to certain items, and the Taxing Mistress proceeded to tax
the Bill, and append her
allocatur
thereto. It is this Bill of
Costs that is the subject of the Rule 48 review in this matter.
[3]
The Trust owed First National Bank (FNB) money, and it appears that
FNB instituted
execution steps against the Trust. This prompted the
sale of the property in order to repay the debt owed to FNB, as well
as other
costs and amounts owed by the Trust. The Resolution details
which creditors would be paid. There are other entities which
ostensibly
were sureties and co-principal debtors with the Trust for
repayment of the debt to FNB, hence they were involved in the
negotiations
and interactions between the parties. Those mentioned in
the papers are Tevredenheid Investment CC and Leliesvlei Trust. The
applicant
alleges that Jac N Coetzer Inc, in acting for these latter
mentioned entities as well as the Trust, was faced with a conflict of
interest but continued nonetheless. The applicant further alleges
that this was drawn to the attention of the Taxing Mistress during
the taxation, as it is an issue that was always raised throughout the
dispute by the applicant.
[4]
The grounds for the review in this matter are, essentially, that the
Taxing Mistress
erred in allowing costs for clients of the attorney,
who were not mentioned in the Resolution. The latter settled the
matter between
the parties, who are the Trust, the applicant and the
first respondent, Helen Margaret Havenga. The Trust did not agree to
pay
the costs of the other entities (which I mentioned earlier), and
the Resolution could never be interpreted to mean that the costs
of
the attorney’s other clients were included in the Resolution.
Those clients were not beneficiaries of the Trust. In any
event such
a resolution would have fallen outside the powers of the Trustees and
would have been invalid. The applicant lodged
a general objection to
items 11, 12, 14-16. 22-23, 28, 29, 36, 46, 59, 60, 69-75, 93,
140-142, 158, 177, 187, 188, 190, 193, 196,
200, 202-208, 211, 212
and 227. The applicant also objected to the
Taxing
Mistress allowing items 54, 91. 171 and 210, on the basis that these
items relate to time spent on preparing for consultation
or making
notes in respect of documents already received and perused.
[5]
The Taxing Mistress dealt with each
item that the applicant objected to (as I’ve listed
above) and
provided explanations in respect of each. Both the applicant and the
respondents were legally represented at the taxation,
and it is
evident from the stated case, by the Taxing Mistress, in terms of
Uniform Rule 48, that file notes, relevant documentation
and
explanations in respect thereof were furnished to the Taxing
Mistress, based on which she exercised the discretion accorded
to her
by Rule 48, in taxing the Bill of Costs. What is also evident from
the stated case is that the Taxing Mistress accepted
that the
entities known as Tevredenheid Investment CC and Leliesvlei Trust
were intrinsically connected to the Trust and that it
was not
possible to deal with, discuss or settle the matter, without
considering information pertaining to these two entities,
and also
without involving the representatives of the two entities in the
various discussions and interactions which were necessary
to resolve
this matter.
[6]
I revert to the Resolution, which contained provisions based on the
agreement reached
by the relevant parties, whom I mentioned earlier.
This much is stated by the applicant. The manner in which the
proceeds of the
sale of the property were to be utilised are set out,
some provisions being in general terms, for example para 2.1 provides
for
the payment of the loan of the Trust in an amount of R351 406.58,
without any further details being furnished. Para 2.3 of
the
Resolution is at the centre of the dispute in this matter.
I
mention that none of the correspondence in respect of the dispute,
which the applicant alleges was furnished to the Taxing Mistress,
have been made available to the court.
[7]
Para 2.3 of the Resolution provides as follows:
“
Betaling van die
getakseerde regskostes van die prokureurs
Symington & De Kok,
Jac N Coetzer Ingelyf
en
Hendre Conradie Ingelyf
op die
skaal soos tussen prokureur en kliënt. Hierdie koste sal die
getakseerde koste van die Applikant en die Trust onder
aansoek
3327/2021 op ‘n party en party skaal insluit”.
Loosely translated, it
reads:
“
Payment of the
taxed legal costs of attorneys Symington & De Kok, Jac N Coetzer
Incorporated and Hendre Conradie Incorporated
on the scale as between
attorney and client. These costs shall include the taxed costs of the
Applicant and the Trust under application
3327/2021 on a party and
party scale”
[8]
The applicant was a party and signatory to the terms as agreed and
reflected in the Resolution,
and considered himself bound by the
terms of the Resolution. If, as the applicant contends for, clause
2.3 is given its ordinary
meaning, then the meaning contended for by
the applicant cannot be sustained. It is clear that the legal costs
of Symington &
De Kok, Jac N Coetzer Inc and Hendre Conradie Inc
were to be paid on an attorney and client scale. Such costs would
include the
applicant’s and Trust’s costs of this
application, but on a party and party scale. There is no detail or
background
provided to this court as to what the legal costs of
Symington & De Kok, Jac N Coetzer and Hendre Conradie, on an
attorney
and client scale, relate to. What is clear is that the costs
of the applicant and the Trust, in respect of this application (which
would include the costs of the initial urgent application), were to
be taxed on a party and party scale. Therefore, provision is
made for
other legal costs to be taxed on an attorney and client scale. The
representative of Jac N Coetzer clearly provided the
background and
history of this matter to the Taxing Mistress in order to
contextualise and justify the costs which were to be taxed
on an
attorney and client scale. This much is evident from the stated case
by the Taxing Mistress.
[9]
The respondents confirm the Taxing Mistress’ views and
conclusions as expressed
in the stated case and deny that she erred
in any way. An important aspect pointed out by the Taxing Mistress is
contained in her
response to the applicant’s objection to item
227. For the sake of completeness, I quote it in full:
“
This lengthy
consultation was also justified by consultation notes which were more
specific and covered important aspects of the
deliberations. The
discussions were about the settlement negotiations between the
parties with the clients. I wish to submit that
prior to this bill of
costs being taxed, Roussows Attorneys (acting for the applicant)
taxed their bill on the same basis and time
line which was indicated
in their bill of costs for thie (sic) same consultation was from
08am-19:44pm. All of the objected consultations
by Roussouw were
actually allowed in their bill of costs (that bill of costs was
presented to me during this taxation)”.
This was confirmed by the
respondents in their response to the applicant’s Notice of
Review in terms of Rule 48. They added
that the bill of costs of
Hendre Conradie Inc included fees for attending matters not only of
the Smithsdrift Trust, but also the
Leliesvlei Trust, Tevredenheid
Beleggings CC and the Insolvent Estate Late ADN Havenga.
[10]
The legal principles relating to a court’s power and discretion
to deal with a review of taxation have
been well established in our
law from as early as 1916 to present times and has been succinctly
summarised by the learned author
Erasmus
in his work
Superior
Court Practice at
RS 21, 2023,
D1-654 and DI-655
:
The
taxing master has a discretion to allow, reduce or reject items in a
bill of costs. This discretion must be exercised judicially
in the
sense that the taxing master must act reasonably, justly and on the
basis of sound principles with due regard to all the
circumstances of
the case. The court is reluctant to interfere with the decisions of
the taxing master upon matters in respect
of which he is required to
exercise a discretion entrusted to him. The general principles
governing interference with the
exercise of a taxing master’s
discretion have been stated as follows:
‘
The
court will not interfere with the exercise of such discretion unless
it appears that the taxing master has not exercised his
discretion
judicially and has exercised it improperly, for example, by
disregarding factors which he should properly have considered,
or
considering matters which it was improper for him to have considered;
or he has failed to bring his mind to bear on the question
in issue;
or he has acted on a wrong principle. The court will also interfere
where it is of opinion that the taxing master was
clearly wrong but
will only do so if it is in the same position as, or a better
position than, the taxing master to determine the
point in issue. . .
. The court must be of the view that the taxing master was clearly
wrong, i e its conviction on a review that
he was wrong must be
considerably more pronounced than would have sufficed had there been
an ordinary right of appeal.
’
[Refer
to the numerous authorities cited in
Erasmus
]
[11]
In this matter, the applicant was a party to, and signed the
Resolution relevant to this matter. He was legally
represented and
there were clearly extensive and intensive settlement negotiations,
resulting in the Resolution being drawn. It
appears that it was the
applicant’s legal representative who, in fact, drafted the
Resolution, so this court is constrained
to find that the applicant
was unaware of the intention of all the parties or that he could have
intended something other than
what is recorded in the Resolution. The
explanations tendered by the Taxing Mistress in the stated case, are
indicative of her
having considered the inputs, representations of
the legal representatives present and the objections raised by the
applicant,
together with the documentary proof provided to her.
[12]
I am unable to find that she misdirected herself or erred in
the manner in which she taxed the Bill of Costs in this matter. A
perusal
of the Bill of costs bears this out, for example, in items 11
and 12, which were objected to, she considered that such cost be
allowed but in a lower amount, so that she taxed off what she deemed
to be a fair amount. Similarly, she taxed off all amounts in
items 20
to 25. The applicant’s objection to items 22 and 23 is
therefore misplaced. There are also numerous items, which
have been
objected to, where the Taxing Mistress taxed off sizeable amounts in
respect of such amounts (see for example items 46,
70, 72, 141, 158
and many more). There are numerous items to which the applicant did
not object, but where the Taxing Mistress
taxed off significant
amounts (See, for example items 94 – 98 and 113 –
120).
[13]
In view of what I have said, I am satisfied that the Taxing Mistress
properly, reasonably and
justly considered all the relevant
circumstances of the matter. This court is not in the same or better
position as the Taxing
Mistress to find that she was wrong. In fact,
the Taxing Mistress was in a much better position than the court as
she was privy
to information and documentation which have not been
placed before this court, and was in a better position to exercise
the discretion
accorded to her in terms of Rule 48.
[14]
I
n the circumstances I make the
following order:
The application for
Review of Taxation in terms of Rule 48 is dismissed with costs
S
NAIDOO J
On
Behalf of the Applicant:
M
Olivier
Obo
Hendre Conradie Inc
119
Pres Reitz Avenue
Westdene
Bloemfontein
(Ref:HAV20/0001)
On
Behalf of the Respondents:
IM
Scheepers (MSK)
Obo
Jac N Coetzer Inc
35
Markgraaff Street
Westdene
Bloemfontein
(email:
ester-lana@phinc.co.za) )