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[2023] ZAFSHC 455
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Waterkloof Holdings (Pty) Ltd and Another v Van Tonder N.O. and Others (4975/2020) [2023] ZAFSHC 455 (16 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
number: 4975/2020
In
the matter between:
WATERKLOOF
HOLDINGS (PTY) LTD
1
st
Applicant
DF
PRINSLOO
2
nd
Applicant
and
DANIEL
FRANCOIS VAN TONDER N.O.
1
st
Respondent
JOHAN
DIEDERICK VAN WYK N.O
.
2
nd
Respondent
PAULINE
VAN TONDER N.O
3
rd
Respondent
KALINKA
JANSEN VAN VUUREN N.O
4
th
Respondent
DANIEL
FRANCOIS VAN TONDER
5
th
Respondent
JUDGMENT:
REVIEW OF TAXATION
JUDGMENT
BY:
LEKHOABA,
AJ
DELIVERED
ON:
16 NOVEMBER 2023
[1]
This is a review in terms of Rule 48 (of the
Uniform Rules of Court. The taxation of the bill was set
down on the
11
th
of July 2023 at 09:00am.
[2]
The applicant is Waterkloop Holdings (Pty) Ltd, [Registration number:
2017/501988/07], a company
duly registered in terms of the Company
Laws of South Africa with registered address at 33 Loraine Street,
Bayswater, Bloemfontein,
Free State Province.
APPLICANT
[3]
The Applicant seeks the review of the taxing master’s decision
in respect of
the respondent’s bill of costs pertaining to
Advocate Neil Snellenburg SC’s account. The bill of costs
followed the
applicants’ withdrawal of their application for
exception that was set down on 12 May 2023 in which the
applicants
tendered to pay the respondents’ wasted costs on a
party and party scale until the 19
th
of April 2023.
[4]
The Bill was opposed by the
Applicant who was represented by Mr. van Biljon during taxation.
The
taxing Master reduced 7 hours of perusal and considering the
applicants ‘exception to 5 on the basis that the matter
was not
so complicated that it required 7 hours.
[5]
The applicants, further, contend
that it was not necessary to engage the services of a
Senior Counsel
as the respondent had throughout the matter made use of a junior
Counsel in Advocate Van Aswegen who had thorough
knowledge of the
matter.
[6]
The applicants submit that a further R4800. 00 amounting to 1 hour 30
minutes of perusal
should have been deducted from the bill. They
submit, further, that had the respondents not used Senior Counsel in
the matter,
the total amount of Adv. Willem Aswegen would have
amounted to R10 000.00 on the day that exception was withdrawn.
RESPONDENTS
[7]
The respondents support the decision of the taxing master. They
submit that respondents’
bill of costs was taxed in terms of
the applicants’ notice of withdrawal of the exception in terms
of which the applicants
tendered costs on a party and party scale up
until the 19
th
April 2023.
[8]
They contend that Advocate Snellenburg SC was briefed owing to the
nature and complexity of the
matter. It is on this basis that he
requested an involvement of a junior Counsel. Hence the
appointment of Advocate van Aswegen.
The applicants were informed of
Advocate Snellenburg SC’s brief in correspondence exchanged
between legal representatives
before the withdrawal of exception was
filed. The applicants did not object to Senior Counsel being on
brief, nor did applicants
object to Counsel’s seniority during
taxation.
[9]
The notice of withdrawal was filed on 19 April 2023,8 court days
before hearing. The applicants
tendered the respondents’
party and party costs until 19 April 2023. According to
“
Taxation of Costs in the High and Lower Courts, A
Practical Guide” A Kruger and W Mostert page 76:
“
As advocates
are usually booked well in advance for trials, should the matter be
settled or postponed close to the trial date counsel
may well be
unable to obtain a brief for another trial. He or she could end up
idle for the period reserved for the trial and unable
to generate
fees. Therefore, counsel must be able to claim some compensation. The
following guidelines are normally used; if a
matter is settled or
postponed:
-
21 to 8 court days before the trial date, counsel may charge a fee
equal to half of his or her first-day fee”
[10]
Mr. Schuurman brought the above
quotation
to the
attention of the applicants in an email before the withdrawal was
filed and confirmed that at that stage their client was
liable for
50% of Adv. Snellenburg Senior Counsel’s day fee. Counsel did
indeed charge only 50% of his day fee for 12 May
2023. Perusal and
preparation were allowed separately as specified on counsel’s
bill but reduced to 5 hours. This work was
actually done by counsel.
He received his brief from his instructing attorney on 17 April 2023
consisting of 149 pages. Perusal
and preparations are included in
party and party cost.
[11]
It is the respondents’ submission that the taxing master
considered both arguments and used her discretion
properly before
correctly deciding on the amount for counsel, and subsequently the
applicants’ review should fail.
[12]
The taxing master stated that the bill was set on the 11
th
of July 2023 at 09:00am. Mrs Olivier from Zyl’s Legal Costs
presented the bill of costs on behalf of Hill Mchardy & Herbst
who acted for the Respondents while Mr. Van Biljon from Cloete
opposed the bill of costs on instructions of the Applicants.
[13]
During the taxation Mr. Van Biljon noted his objection to the fact
that the taxing master allowed counsel’s
day fee plus, perusal
and preparation. Mr. Van Biljon argued that what tie the applicant
consented to was 50% of counsel’s
entire account.
[14]
Mrs. Olivier in support of the respondents handed
in emails exchanged between Mr. van Biljon on behalf of
the
applicants and Mr. Schuurman on behalf of the respondents. In
those emails Mr. Van Biljon tendered to withdraw the application
and
to pay the Respondents party and party costs up until 19
th
of April 2023. Mr. Schuurman (for the Respondent) then replied with
the question if the tender included 50% of counsel’s
account up
to date as well.
[15]
Mr. Van Biljon then said that the Applicants tender one third of the
counsel’s account. Mr. Schuurman
then replied for the second
time explaining the rules applied in determining counsel’s fees
and then indicated that at that
stage of proceedings the Applicants
would be liable for 50% of counsel’s day fee.
[16]
Mr. Van Biljon indicated that in order for the Applicants to make a
final decision he needs to know what
50% of counsel’s fee is.
Mr.Schuurman then replied for the third time that he is unsure
as to what 50% of the total
of counsel’s fee would be but
indicated that respondents’ counsel charges R32 000 per
day plus VAT. .
[17]
Mr. Schuurman’s last reply is that the Respondents are amenable
to consent to a withdrawal of the Applicants
exception. That the
Applicants are jointly and severally liable to pay the Respondents
taxed party and party costs which will include
Adv. Snellenburg
Senior Counsel’s account up to date plus R16 000 in
respect of the 50% of his day fee.
[18]
There was no objection advanced during taxation to item 21 with
regards to the seniority of counsel.
[19]
Taxing master proceeded to explain reasonableness of counsel’s
account as follows:
12.1
Item 1 on counsel’s account was taxed
of in totality, which amounts R1 840, as these costs
forms part
of attorney and client costs;
12.2
Item 2 which is the consultation and was
sustained;
12.3
Item 3 perusal was reduced to five hours
being allowed and amount of R6 400 was taxed off;
12.4
Item 4 is collapse fee / retainer fee and
only 50% was charged thus this item was sustained;
12.5
The account was a no VAT allowed account so the total of VAT of R
6120 also came off counsels’
account
12.6
In totality R14 120 was taxed off add item 21.
[20]
The Taxing master is of the view that the matter
was complex in nature, which is further confirmed by the
fact that
the applicants themselves employed the services of senior counsel in
Adv. Jannie Lubbe SC.
ISSUES
ON REVIEW
[21]
The issue between the parties is whether or not the Senior Counsel
was entitled to 50% of day fee or 50 %
of the entire bill. It is
important to note that the applicants also contend that it was
unnecessary to make use of Senior Counsel
in the matter since the
application for exception is not complex.
[22]
Interference on review is justified where a reviewing court
finds that the taxing master has not exercised his discretion
properly,
for example, when he has been actuated by some improper
motive or has not applied his mind to the matter or has disregarded
factors
on principles which were proper for him to consider or acted
upon wrong principles or wrongly interpreted rules of law, or gave
a
ruling which no reasonable person would have given. (See
Preller v Jordaan
1957 (3) SA 201
(O) at 203).
See also Ocean
Commodities Inc and Others v Standard Bank of SA
Ltd and Others
1984 (3) SA 15
(A) ([2002]
4 ALL SA 723)
18 F-G it
[23]
The purpose of Rule 70 (3) is to ensure that a
successful litigant should be reimbursed of his costs while the
interests of the
winner should also be protected from having to pay
an excessive amount of costs.
The
purpose of taxation was stated in
Mouton
v Martine
1968 (4) SA 738
(T) at 742
:
“
In
the former it was the function of the court, or one of the judges, to
tax the costs of a case. The purpose of the taxation was
really two
fold; firstly, to fix the costs at a certain amount so that execution
could be levied on the judgement and, secondly,
to ensure that party
who is condemned to pay the costs does not excessive and the
successful party does not receive insufficient
costs in respect of
the litigation which resulted in the order for costs”
[24]
The approach to be followed in matters of this kind has been
repeatedly stated in various decisions.
The approach is summarised in
the decision in
City of Cape Town v Arun Property Development
(PTY) LTD and other 2009 SA (CPD) at page 232, paragraph [17]
as
follows:
“
The
taxing master has discretion to allow, reduce or reject items in the
bill of costs. She must exercise this discretion judicially
in the
sense that she must act reasonably, justly and on the basis of sound
principles with due regard to all circumstances of
the case. Where
the discretion is not exercised, her decision will be subject to
review. In addition, even where she has exercised
her discretion
properly, a court on review will be entitled to interfere where her
decision is based on a misrepresentation of
the law or on a
misconception of the law or on a misconception as to the facts and
circumstances, or as to the practice of the
court.”
[25]
In
Daywine Properties (Pty)Ltd v Murphy & Another
1991 (3)
SA 216
(D)
Broome J strongly expressed his view that a party
who is present at taxation and fails to object when the matter is
before a taxing
master should be denied the opportunity to have the
taxing master’s decision reviewed in a ‘belated attempt
to attack
items’.
[26]
In
Kruger v Secretary for Inland Revenue
1972 (1) SA 749
(C) at
750 F-G Van
Winsen J held as follows in a similar matter:
“
I
do not deal with the belated objection to item 16 since no objection
was made to the Taxing Master’s allowance of this at
the time
of the taxation. It is accordingly not subject to review. (Rule 48
(1)”
[27]
In
Kloot v Interplan Inc. and Another
1994 (3) SA 236
(SE),
the court held that if counsel’s
fees are reasonable, they should be allowed in full without any
deductions. The court held
that taxing masters making deductions for
the purpose of reducing the fee, such approach was deemed improper in
the light of Rule
70 (30) of the Uniform Rules. It was further held
that taxing master should strive a successful party full indemnity in
respect
of costs reasonably incurred.
CONCLUSION
[28]
It is apparent from the above that the
applicant did not raise the issue with the taxing master.
The applicants gave no cogent reasons
why the decision of the taxing master must be interfered with. The
view expressed by the applicants
is not supported by applicable legal
principles.
I am unable to find that the Taxing Master
did not exercise her discretion properly or that she applied the
wrong principles
in the taxing of this bill.
The
grounds for review are without merit and legal substance. Therefore,
the review must fail.
[29]
In the premises I made the Following order:
ORDER
1.
The review of the taxation is dismissed.
2.
There is no order in respect of costs.
LEKHOABA,
AJ
APPEARANCES:
On
behalf of the Applicant:
S.J.
VAN BILJON
J.G
KRIEK & CLOETE ATTORNEYS
BLOEMFONTEIN
The
taxing Master:
FREE
STATE HIGH COURT
BLOEMFONTEIN
On
behalf of the Respondent:
M
OLIVIER
HILL
MCHARDY & HERBST ATT
BLOEMFONTEIN