About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 140
|
|
OSHO AGRI INVESTMENTS (PTY) LTD v HONEY ATTORNEYS and ANOTHER (3088/2021) [2022] ZAFSHC 140 (6 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
3088/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
OSHO
AGRI INVESTMENTS (PTY)
LTD
Applicant
and
HONEY
ATTORNEYS
1
st
Respondent
TAXING
MASTER OF THE HIGH COURT
2
nd
Respondent
CORAM
:
JP
DAFFUE J
DELIVERED
ON
:
06
JUNE 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be 15h00 on 06 JUNE
2022.
I
INTRODUCTION
[1]
The ways of a client and its attorney parted acrimoniously. The
former client
was so dissatisfied with the services rendered to it
that it even lodged a claim with the Legal Practice Council. It
also
refused to pay the invoice initially rendered to it whereupon a
bill of costs was drawn which was eventually taxed by the taxing
master. Being dissatisfied with the rulings of the taxing
master, the former client filed a notice of review of taxation
in
terms of rule 48. This application was filed outside the time
limit prescribed in rule 48. An application for condonation
was
brought, but aborted. A second application for condonation was
brought and on 31 March 2022 I granted condonation, but
ordered the
former client to pay the firm of attorneys’ taxed or agreed
party and party costs consequent upon the unopposed
application for
condonation.
II
THE PARTIES
[2]
The applicant in the application for review is Osho Agri Investments
(Pty) Ltd.
It was represented during taxation by Ms Joshna
Govender, who refers to herself as a project professional of the
applicant.
She also deposed to the founding affidavit in the
application for condonation. Ms Koller of Webbers Attorneys Inc
is the
applicant’s attorney of record in the review
application. I doubt whether Ms Govender could act for the
applicant in
opposing the taxation
.
Ex facie
the papers she is not an admitted legal practitioner or a director of
the applicant. However, this is not the issue before
me as
there was no objection to her appearance. The applicant filed a
written response in respect of sub-rule 48(5)(a).
[1]
[3]
Mr Buchner acted for Honey Attorneys, cited as the first respondent,
on instructions
of the applicant until the parties parted ways.
Ms Hanlie van Zyl received instructions to draw the bill of costs and
she
appeared before the taxing master during the taxation thereof.
She provided the written response to the taxing master’s
stated
case in terms of rule 48(5)(a).
[2]
[4]
The taxing master is cited as the second respondent. He
prepared a stated case
in terms rule 48(3)(a)
[3]
and also filed a report on receipt of the parties submissions.
[4]
III
BRIEF HISTORY OF THE FACTS LEADING TO THE INSTRUCTIONS TO HONEY
ATTORNEYS
[5]
The applicant purchased a farm in the Bethlehem district which was
registered in its
name on 9 June 2020. On the farm was a
non-operational, but well-established existing apple orchard as well
as a large and
complete infrastructure. Seven days after
registration of transfer of the farm in the applicant’s name
the orchard
and improvements on the farm were gutted by fire,
apparently emanating from a controlled fire by the fire department of
the Dihlabeng
Municipality, which spread to the applicant’s
farm. When the farm was purchased, its directors and
stakeholders believed
that they would be able to export the fruit to
various markets in Brittain. By then the orchard had received
numerous awards
for the quality of the fruit produced.
[5]
This background is important in considering the review of the taxing
master’s taxation.
[6]
Mr Buchner was instructed to assess the matter and file a claim in
relation to the
damage sustained due to fire to the orchard. It
is apparent from the record that experts were appointed and that
numerous
pre-litigation steps had been taken by the first
respondent.
[7]
On 10 June 2020 -
ex facie
items 104 - 111 of the bill of
costs - the peremptory statutory notices were drafted and sent to
Dihlabeng Local Municipality and
Thabo Mofutsanyana District
Municipality. These notice had to be sent and delivered to the
particular organs of state within
a period of six months. It
appears from the bill of costs that by the time that the parties
parted ways, summons had not
been issued. This is not
surprising, bearing in mind the nature of the claim and the apparent
extent of the damages which
would surely include an enormous claim
for loss of income. This case is not the run-of-the-mill case,
but surely extremely
intricate. Experience has taught us that
it is not so easy to detect the origin of a fire and even if that is
detected, to
prove who or what caused the fire, why did it spread and
what possible grounds of negligence might be applicable. In
order
to prove liability and damages
in casu
many and detailed
investigations are required and the exercise cannot be equated with
the claim of a motor vehicle owner whose
stationary vehicle has been
damaged in a collision by another person.
IV
LEGAL PRINCIPLES PERTAINING TO COSTS AND TAXATION
[8]
There is a distinction between party and party costs and attorney and
client costs.
In
casu
the first respondent was entitled to prepare an attorney and client
bill of costs as it was entitled to claim costs from its former
client. These include fees in respect of professional services
rendered by it as well as disbursements made by it on behalf
of the
client. Such costs are payable by the client whatever the
outcome of the matter in which the attorney’s services
had been
engaged and are not dependent upon any award of costs by the court.
It includes all the costs that the attorney
is entitled to recover
against the client on taxation of his bill of costs.
[6]
[9]
Attorney and client costs differ from party and party costs in that
the former costs
may include items for charges made by the attorney,
but which the client cannot recover from the other party, as well as
the difference
between certain amounts debited by the attorney and
the amounts allowed for those items by the taxing master as being an
expenditure
recoverable from the other party.
[7]
[10]
In
Magwill
Carriers (Pty) Ltd v National Transport Commission
[8]
it was confirmed that the test to be applied in respect of attorney
and client costs is that all work done and disbursements made
which
are usual in the conduct of the client’s affairs dealt with by
the attorney may be debited against the client unless
the content of
the attorney’s mandate indicates the contrary. Having
said this, an attorney is not entitled to recover
from his client
fees or disbursements in respect of unnecessary work done by him.
[11]
There are different principles of taxation applicable between various
attorney and client bills
of costs, but it is clear that where the
costs are payable by the client to his attorney, a more generous
approach is followed.
[9]
[12]
It is not necessary to provide particular examples
of attorney and client costs, but to name one example
applicable and
queried
in casu,
an attorney is entitled to charge for copies
of letters to be kept as well as for the costs of copies of documents
not necessary
for the conduct of the case or which were made at the
client’s request for his own use.
[13]
The taxing master has specialised knowledge of the technical details
of taxation and a court
should be reluctant to interfere with his/her
discretion. This will only be done when compelling grounds have
been proven.
A full bench of the Cape Provincial Division consisting
of eminent judges, such as, Herbstein, Van Winsen and Beyers, stated
that
a court cannot substitute its opinion for that of the taxing
master and that it “will not interfere merely where it
concludes
that had it been seized of the enquiry to determine the
amount to be allowed it would have been allowed more or less than
that
did the Taxing Officer.”
[10]
[14]
According to Kruger and Mostert
[11]
courts defer to specialised officials like taxing masters, but they
are able to consider the reasons for decisions. The authors
continued
as follows: “Judges can assess whether the bill and supporting
documents and the facts were properly weighed by
the taxing master.
They can also check the process of justification. In doing so
judges do not reconsider the substantive
question but assess the
decision-making process. They will ask whether the taxing
master’s decision is reasonably supportable
on the facts.”
In the same vein, the
quantum
of fees is a matter primarily for the discretion of the taxing master
and a judge will interfere only in extreme cases and then
reluctantly
too. The experience of the co–author, Justice Kruger, a
former judge and before that an advocate at the
bar for many years,
cannot be doubted. With reference to
Aloes
Executive Cars (Pty) Ltd v Motorland (Pty) Ltd and another
[12]
the authors proceeded: “However, a judge who worked as
counsel for many years may be in a better position than the
taxing
master to assess the need for and reasonableness of counsel’s
consultations and drafting or settling of affidavits.
Similarly, a judge who worked as an attorney for many years may be in
a better position than the taxing master to assess the reasonableness
or necessity of work done.”
[15]
Finally, it is apposite to quote the following
dictum
of the court in
Visser
v Gubb
[13]
which principles have been stated and restated in numerous judgments,
inter
alia
President
of the Republic of South Africa v Gauteng Lions Rugby Union
[14]
:
“
The
Court will not interfere with the exercise of such discretion (that
of the taxing master) 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, ie 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.”
V
EVALUATION OF THE DIFFERENT VIEW POINTS
[16]
In its notice of review of taxation, which was filed late, the
applicant requested the second
respondent to state a case for
rescission by a judge. This notice of the applicant dealt in 29
paragraphs over 10 pages with
the reasons why the taxing master’s
taxation should be reviewed and set aside. Attached to this
notice are numerous
other documents explaining the history of the
matter as well as the complaint of misconduct filed with the Legal
Practice Council.
[17]
On 13 December 2021 the taxing master filed his stated case in terms
of rule 48(3). The
taxing master referred to the numerous items
queried by the applicant and although he did not set out any finding
of fact in the
stated case as provided for in sub-rule 48(3)(b), he
mentioned the following:
[15]
“
I
took it upon myself to explain the taxation process to Mrs Govender
as a lay person and this may be evidence by the fact that
the
taxation of a bill consisting of 141 items took longer than 2 hours
to finalise as
I had to consider
objections raised in respect of each item
.”
Ms
Govender’s allegations against the taxing master and Ms Van Zyl
were denied. The application for review of taxation
was filed
late, a point raised by the taxing master. Consequently, the
applicant was obliged to apply to the court for condonation
for the
late filing of the application. After the granting of
condonation, no further submissions were made by the applicant
and
second respondent. The taxing master served his report in
accordance with the provisions of sub-rule 48(5)(b).
[16]
No further written submissions were made by the parties in terms of
sub-rule 48(5)(c).
[18]
The applicant raised objections to about all the fees and
disbursements claimed for work done
and expenses incurred over a
period of about a year. The taxing master taxed off R3 095.50
from the total fees claimed by
the first respondent, being
R53 434.01. The expenses amounted to R67 101.15.
These included the costs of
SANSA (the South African National Space
Agency), the South African Weather Service, Mr David White, a
chartered valuation surveyor
and Mr Danckwerts, a well-known expert
in these kind of cases. The last two experts physically
inspected the applicant’s
property, conducted interviews, wrote
reports and also claimed for their travelling and accommodation
expenses as they were obviously
from out of town.
[17]
I will return to this later.
[19]
The taxing master did not strictly in terms of sub-rule 48(3)(b) set
out any finding of fact.
I do not intend to deal with each and
every complaint pertaining to the various items on the bill of costs
as this will unnecessarily
increase the length of this judgment.
[20]
The conduct of Ms Govender and her attitude as a lay person to the
taxation of the bill of costs
is significant. She complained
about the way she was treated, responded to and disrespected by both
the taxing master as
well as Ms Van Zyl and made the following
observation:
[18]
“
6
General complaint:
Ms
Government (on behalf of the plaintiff/applicant) requested the
taxing master that they go through bill item by item and as per
the
notice to oppose, this was not done. The taxing master deprived
a lay person from the opportunity to raise objections
in respect of
each and every issue that they had with the bill. Objections
were raised on 131 items of the 141 items as per
the notice to
oppose. The taxing master did not investigate most of the
objections as raised by the plaintiff.”
Never
in my life, during my experience at the side bar and the bar over a
period of more than 30 years, did I come across a party
that objected
to almost all the items of the opposition’s bill of costs.
This is unheard of. In this case, we
are not even dealing with
a party and party bill of costs, but with an attorney and client bill
of costs; in fact, the most generous
of the different attorney and
client bills of costs.
[21]
On the applicant’s version the first respondent should
basically have worked for free and
as I have explained, this case is
not the normal run-of-the-mill case. Although summons was not
issued yet, it is important
for an attorney to properly evaluate a
client’s case before summons is issued. The particulars
of claim must comply
with rule 18 and if not, a defendant may utilise
rule 30 procedure, or even file an exception in accordance with the
provisions
of rule 32.
[22]
Ms Govender’s version that she was not treated with respect and
that her objections were
not properly considered, is contradicted if
the time spent on the taxation of the account is considered.
[19]
The taxation started at 11h30 and continued until 13h30 or 13h40.
Very seldom, speaking from experience, does the taxation
of a bill of
costs, especially based on an attorney and client scale, take in
excess of 2 hours. Although Ms Govender mentioned
that she had
to take a flight back home which would be departing at 14h00, it
appeared that after the short luncheon adjournment,
she was still
sitting outside the taxing master’s office at about 14h00.
I know there is a dispute in this regard,
but fact of the matter is
that a similar taxation conducted by objective and reasonable legal
practitioners on both sides would
have been finalised in a much
shorter time.
[23]
In response to the taxing master’s stated case, Ms Govender
mentioned that she did raise
an objection to the manner in which she
was treated and ignored, but again, bearing in mind the time taken to
tax the account,
her version appears to be improbable.
[24]
Ms Van Zyl on behalf of first respondent confirmed that the taxing
master exercised his discretion
properly in considering each item in
the bill presented for taxation.
[20]
[25]
Ms Van Zyl also confirmed that each item in the bill of costs was
considered and that the taxing
master even requested that certain
documents be produced for inspection. She continued to say that
the taxing master considered
that the work charged for by Honey
Attorneys was actually done and that the fees charged were
reasonable.”
[21]
[26]
The issue of printing of colour copies may be considered briefly.
The taxing master disregarded
the applicant’s objection.
Colour photos were sent by email to first respondent. Surely,
and bearing in mind
the present manner in which litigation is still
conducted in the Free State where case lines are not operative, hard
copies had
to be made, not only for the applicant’s attorney,
but eventually for perusal by experts, counsel and service on the
opposition.
The objection pertaining to the sending of emails
and the charging for accompanying letters does not hold water.
This form
of communication is in line with standard practice.
[27]
The objection pertaining to fees and expenses relating to Mr Odendaal
is also meaningless.
It appears from the papers that he
consulted and interviewed neighbours which in my view was necessary
in order to obtain statements
from possible witnesses.
[28]
The complaint about the fee for the perusal of the apple orchard
business plan in the amount
of R3 990.00 is again baseless. I
have indicated above that the claim
in casu
is intricate and
it was necessary to establish for example future losses of income.
These calculations and cash flow projections
are often dealt with in
business plans in order to obtain finance from a financial
institution. Clearly, the information
contained in the
business plan was relevant.
[29]
The fees and expenses of the experts were objected to. These
fees and expenses appear to
be more than reasonable and were
reasonably required to prepare for institution of an action.
There is a dispute as to whether
quotations had to be obtained from
the experts and pre-approved by the client. The “say-so”
of Ms Govender and
the terms of the attorney’s mandate were not
accepted by the taxing master who allowed all the fees and expenses.
It
also appears as if these issues were raised only after taxation.
I refer to the taxing master’s stated case where he
inter
alia
mentioned the following with which I agree:
“
I
must hasten to mention that no fee agreement or mandate was presented
to me by either party during taxation. I ruled that
it was not
my duty (as taxing master) to determine the client’s liability
to pay the fees to his attorney and that such a
question must be
determined by the court especially….”
[22]
In
my view, and unless the taxing master could have been placed in
possession of proper proof to confirm Ms Govender’s version,
he
was entitled to allow the fees and disbursements which appeared to be
reasonable in the circumstances. I also confirm
that, from my
experience as legal practitioner in private practice over more than
three decades and based on the comments in Kruger
and Mostert, the
work done by the first respondent was necessary, reasonable and in
the applicant’s best interest in order
to ensure that a proper
case is instituted against the correct wrongdoer(s).
[30]
I am satisfied that, although the taxing master could have been more
careful in providing reasons
as required by s 48, there is no reason
to interfere with the exercise of his discretion. I am
satisfied that no case has
been made out to show that he was clearly
wrong. Consequently, the application stands to be dismissed.
VI
CONCLUSION
[31]
A judge may also decide to hear the parties or their legal
practitioners in chambers or refer
the case for decision to the
court. In my view this would merely cause further delay and
unnecessary extra costs. The
applicant explained in detail why
it believed the taxing master had exercised his discretion
improperly. There is no uncertainty
about the applicant’s
submissions and/or the taxing master’s reasons. I
considered them and was able to come
to an informed decision.
[32]
Also, although there was not strict compliance with rule 48 as
indicated above, I am satisfied
that, instead of referring the matter
back in order to comply with the rule, the matter can be adjudicated
upon the merits of the
case and the submissions made.
[33]
In fairness to the parties and although the first respondent as the
successful party would in
principle be entitled to its costs, I have
decided in the exercise of my discretion not to award it its costs.
Each party
shall be responsible for the payment of its own costs.
VII
ORDERS
[34]
The following orders are granted:
1.
the application for review of the taxing
master’s taxation of 30 August 2021 is dismissed;
2.
each party shall be responsible for its
own costs.
JP
DAFFUE J
On
behalf of the applicant Ms
Koller
mp@webberslaw.com
Instructed
by: Webbers
Attorneys Inc
BLOEMFONTEIN
On
behalf of the first respondent: Ms
H Van Zyl
hanli@vzyls.co.za
Instructed
by: Legal
Costs Attorneys
c/o
Honey Attorneys
BLOEMFONTEIN
[1]
Record: pp 75 – 79
[2]
Record: pp 82 - 86
[3]
Record:
pp 69 - 74
[4]
Record: pp 108/9
[5]
Record:
p 47
[6]
See
Herbstein and Van Winsen: The Civil Practice of the High Courts and
the Supreme Court of Appeal of South Africa, 5
th
ed by Cilliers
et
al
,
vol 2 at pp 953 - 954
[7]
Hawkins
v Gelb
1959
(1) SA 703
(W) at 705
[8]
1982
(1) SA 166
(T) at 169
[9]
See
Cilliers, Law of Costs: loose-leave ed, para 4.07
[10]
Bertish
v Standard Bank of SA Ltd
1956 (4) SA 9
(C) 13 D - E
[11]
Taxation
of Costs in the Higher and Lower Courts: A Practical Guide
at pp 109 & 110
[12]
1990 (4) SA 587
(T) at p 589B - C
[13]
1981
(3) SA 753
(C) at 754 H – 755
[14]
2002
(2) SA 64
(CC) at 73 C - D
[15]
Record: p
70
[16]
Record: pp 108/9
[17]
Record: pp 19 - 22
[18]
Record:
p 3
[19]
Record:
pp 70 & 71
[20]
Record:
p 85, para 7
[21]
Record:
p 83, para 4 & 5
[22]
Record: p 71