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[2022] ZAFSHC 334
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Life Rosepark Hospital v Taxing Master of The High Court and Another (3088/2021) [2022] ZAFSHC 334 (28 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No
: 3088/2021
A
Quo
: 2302/2014
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
LIFE
ROSEPARK HOSPITAL
Applicant
[1]
and
TAXING
MASTER OF THE HIGH COURT
First
Respondent
[2]
I.E.
VAN REENEN
Second
Respondent
[3]
CORAM:
OPPERMAN,
J
HEARD
ON:
21
October 2022
DELIVERED
ON:
28
November 2022. The judgment was handed down electronically by
circulation to the parties’ legal representatives
by email and
release to SAFLII on 28 November 2022. The date and time for
hand-down is deemed to be 28 November 2022 at 15h00
JUDGMENT
BY:
OPPERMAN, J
SUMMARY:
Rule
48 – Review – taxation – process
–
irregularities
JUDGMENT
[1]
Taxation is a
judicial
process
that must be honoured and
applied in line with the Constitution of the Republic of South
Africa, 1996. It is not a process in our
justice system that may be
revered less than any other and it is to be executed with the utmost
commitment and professionalism.
Taxation is a judicial hearing like
any other.
Taxation
has always been regarded as an integral part of the judicial process.
The rights and obligations of the parties to a suit
are not finally
determined until the costs ordered by the court have been taxed. The
only persons who can appear before a taxing
master in a high court
are accordingly persons who are permitted to practise in such
courts.
[4]
[2]
Francis
- Subbiah
[5]
stated that:
While
certainty about law is conducive to justice, judicial discretion
plays a significant role in costs and taxation. However,
it is not an
unfettered discretion but one that is flexible within a guided
structure. Irrespective of the court in which the taxation
takes
place, the function of taxing bills of costs requires the exercise of
discretion in differing degrees, depending on the circumstances
of
the individual.
[3]
Justice
Yvonne Mokgoro, former Justice of the Constitutional Court
[6]
wrote that:
[7]
Legal
costs remain a contentious subject. In a number of ways, they
determine a litigant’s right of access to justice.
For
that reason, the courts have regularly cautioned against high legal
costs. The Bill of Rights in the Constitution enshrines
the
right of all people to equality and all implicated rights. In
addition, it affirms the basic democratic values of human
dignity,
equality, transparency, and protection and benefit of the law,
anticipating the creation of a culture of human rights
on which all
legal relations will be based. Further, section 34 of the
Constitution provides each person with the right to
have any dispute
resolved in a fair hearing before a court of law, impartial tribunal
or forum. Notwithstanding this right,
it will not materialise
if legal costs remain unaffordable, thus placing legal services
beyond the reach of most litigants and
potential litigants.
Needless
to say, based on the vast wealth gap that characterises South African
society, the constitutional rights of equality and
access to justice
will forever elude the majority of litigants unless high legal costs,
which courts have frequently warned against,
are interrogated and
rectified. That is the responsibility not only of the legal
profession, but of the legal community as
a whole. For that
reason, reliable, accurate and shared information, published widely,
is essential to stimulate discussion
and debate, with a view to
resolving the challenges and negative implications of high legal
costs...
In
South Africa, however, taxation of legal costs is a mechanism that
may bridge the disparity between high costs and reasonable
costs.
Taxation is about the quantification of legal costs, which is at the
heart of any costs issue.
Much
of the knowledge and skills on taxation have been passed on by word
of mouth and practice in courts. A good record of
all aspects
of the law of taxation essentially assists in eliminating uncertainty
and ambiguity. Certainty of the law is
preferred. Since
hundreds of bills of costs are taxed every day in courts and numerous
settlements are negotiated, awareness
and knowledge will provide for
informed application of discretion, which is essential for
discussion, debate and solutions.
The
presentation and opposing of a bill of costs is regularly done by
persons other that the litigation practitioners themselves.
Accordingly, a significant lack of knowledge of civil procedure is
evident in the taxation proceedings. Therefore, emphasis
has
been placed on civil procedure for the benefit of those who may find
it challenging.
[4]
This is an opposed application for review of a
taxed bill of costs. The matter was referred to open court in terms
of Rule 48(6)(iv).
Mrs. van Reenen was the plaintiff in a claim
against Life Rosepark and another
a
quo
. The merits were finalized by
way of a settlement agreement. It was agreed that Life Rosepark will
be liable for 100% of the plaintiff’s
claims. The merits’
bill of costs was previously taxed and paid.
[5]
The
costs relevant here are in regard to the
quantum
hearing and the court order of Boonzaaier, AJ dated 10 May 2021. The
amount in issue is R385 850.68 (R198 594.05 and R185 065.13
in
respect of Adams & Adams’ bill of costs and R2 191.50 in
respect of the bill of costs of Spangenberg Zietsman and
Bloem.)
[8]
[6]
The total
allocatur
of 4 November 2021 as per the disputed taxed bill of costs amounts to
R 1 363 305.34. Life Rosepark, in an alleged effort to curb
interest
and further costs and under protest, paid the besieged amount in
total on 25 November 2021. Mrs. van Reenen opposes
the
application for review and maintains that the taxing mistress
correctly taxed the bill of costs and the
allocatur
of R 1 363 305.34 should stand.
[7]
The judicially unconventional processes that
have been and is at the order of the day in some taxation hearings
must seize. The
least to be expected is that a proper and good record
is kept of the proceedings and not notes made here and there. In many
a Rule
48 - review the court is confronted with no record at all or
one that is of little value. The versions of the parties that
attended
the taxation becomes the often-disputed tone of the review.
This is the case here.
[8]
The
scene is set in the Notice of Intention to Tax the Bill of Costs,
[9]
the Bill of Costs,
[10]
the
Notice of Intention to Oppose Taxation,
[11]
Annexures to the Notice of Intention to Oppose Taxation served and
filed on 28 October 2021,
[12]
the Taxed Bill of Costs,
[13]
the Notice of Review of Taxation in terms of Rule 48,
[14]
the Taxing Master’s Stated Case in terms of Rule 48(3),
[15]
Applicant’s (Second Defendant’s) Submissions in terms of
Rule 48(5)(a),
[16]
Annexures
to the Applicant’s (Second Defendant’s) Submissions in
terms of Rule 48(5)(a),
[17]
Plaintiff’s Response to Defendant’s Notice of Review in
terms of Rule 48 and the Taxing Master’s further Stated
Case in
terms of Rule 48(3),
[18]
the
Taxing Master’s Report in terms of Rule 48(5)(b),
[19]
Applicant’s (Second Defendant’s) Reply to the Taxing
Master’s Submissions in terms of Rule 48(5)(b),
[20]
Plaintiff’s Response to the Taxing Master’s Report in
terms of Rule 48(5)(c),
[21]
the documents contained in the Bundle indexed on 5 October 2022:
“INDEX: AFFIDAVIT (sic) (FILED IN PURSUANCE OF DIRECTIVE
DATED
26 AUGUST 2022), Heads of Argument by the applicant in the review and
the Heads of Argument by the second respondent in the
review and oral
arguments on 21 October 2022. The lack of a proper record of the
taxation hearing itself causes the evidentiary
value of the documents
filed to be considered with caution and for what it is.
[9]
Allegations were swung around and unfortunate
remarks made. I immediately stopped the mudslinging and denigration
and identified
issues to be addressed before the specific items
objected to may be addressed. A Directive dated 26 August 2022 was
issued:
Having
considered the Notice of Review of Taxation in Terms of Rule 48
[22]
and the other documents filed of record and having heard the legal
practitioners for the applicant, the respondent and the Taxing
Master
in chambers on 15 August 2022;
IT
IS ORDERED THAT:
1.
The
matter is referred to open court in terms of Rule 48(6)(iv) for
hearing and adjudication on 14 October 2022 at 9h30.
[23]
2.
The applicant in the Review must ensure
that the court documents are properly bound and indexed.
3.
The items listed from page 2 to page 15
of the Notice of Review of Taxation will be addressed after the
issues
in limine
were disposed of.
4.
The following issues
in
limine
to be specifically addressed
at this sitting:
i.“The
Notice of Intention to tax a bill of costs obo Adams & Adams
(Unsigned Notice) was dated 1 October 2021. The bill
of costs was not
accompanied by a signed certificate by the attorney of record in
terms of Rule 70. The notice was not signed by
the instructing
attorney.”
[24]
ii.“In
terms of Rule 70 the process is, to serve the bill of costs, the
defendant shall have 10 days to inspect the file and
then a further
10 days to serve the notice of intention to oppose. No further 10
days was given for taxation date.”
[25]
iii.“The
Taxing Mistress informed the parties before the taxation formally
commenced that she had seek the assistance of two
Judges, namely
Judge Daffue & Mavimbela. Judge Daffue agreed to assist the
Taxing Mistress and they worked through the bill
of costs and
opposition together discussing their point of views in regard the
matter. During the taxation process the Taxing Mistress
throughout
her rulings made mention of Judge Daffue’s opinions regarding
the certain item and that she agreed thereto.”
[26]
Is
it the allegation that Judge Daffue’s conduct was irregular and
unethical and that the taxation rulings were those of the
Judge and
not the Taxing Mistress?
iv.The
alleged personal attacks against each other during and after the
taxation and conflict of interest in general, must be addressed.
The
allegations against Mr. Morne Scheepers of a conflict of interest
must be addressed. What exactly are the allegations, wherein
lies the
conflict of interest and what are the consequence thereof?
v.
The issue of hearsay as to the
allegation of irregular handling of the taxation must be addressed.
vi.The
case on review is allegedly different than the case during taxation.
“
As
per submission by the Taxing Master in Paragraph 16 Rule 48 makes it
clear that a party can only take a ruling, that they are
dissatisfied
with, on review. Therefore, we agree with the submissions made by the
Taxing Master pertaining to the items objected
to. Items not ruled on
can therefore not be taken on review.”
[27]
“
It
is the Plaintiff’s submission that the review does not indicate
the reasons why the Defendant is dissatisfied with the
rulings made
by the taxing master, but is merely attempting to have the account
retaxed be (sic) another person in an attempt to
get a different
outcome.”
vii.The
issue of the
dies non
and the late filing of papers must be addressed.
viii.The
allegation of misinterpretation of the court order
a
quo
must be explained.
ix.The
issue of applicable Directives and Practise of this division
vis-a-vis
that of other divisions caused apparent confusion and allegations.
What was this in relation to and how did this affect the taxation?
x.
What is the total in the difference of
the amount claimed after review and that allocated by the Taxing
Master?
5.
The parties must address the court on
the costs aspect of this Review on the issues
in
limine
.
6.
The
matter has been ongoing since November 2021 and unreasonable delays
will not be tolerated. I requested the allocation of two
days for
this hearing but only one was forthcoming. The matter must thus be
dealt with, with due diligence and care to maximise
the use of time
on the 14
th
of October 2022.
7.
The parties must file their Heads of
Argument on 5 and 7 October 2022 respectively before 12h00.
8.
If any of the parties intent to adduce
oral evidence the affidavits of said witnesses; properly
commissioned, must be served on
all the parties and the court not
less than twenty (20) days after the date of this order.
[10]
It
must be reminded that: “The legal profession is a
'distinguished and venerable profession' and its members are officers
of the court. As a result, 'absolute personal integrity and
scrupulous honesty' are expected of them.”
[28]
It
followed that a taxing officer was entitled to take counsel's fee
list at face value as constituting a record of the work that
has been
done. The honesty and professional ethics of counsel ought not to be
lightly questioned.
[11]
The allegations:
1.
At
paragraph 169 of the affidavit of the costs consultant for Life
Rosepark that attended the taxation proceedings; she highlighted
the
fact that Rule 70
[29]
of the
Uniform Rules of the court allows for a signed certificate to be
presented as proof of work done. She does indeed acknowledge
that the
taxing mistress has a discretion on this issue in terms of the Rules
and they apparently did not object thereto during
the taxation.
Counsel for Mrs. van Reenen attached a certificate dated 14 October
2022 to their heads of argument. It was pointed
out that other
divisions demand this certificate in their directives. The applicant
in the instance complained that the issue was
not even attended to;
it was not considered.
This
was declared as symptomatic of the fact that the taxing mistress did
not apply her mind to the discretion and execute her duty
to ensure
that the costs claimed carry veracity. The certificate was crucial in
the instance because the costs consultant that
attended on behalf of
Mrs. van Reenen was not the attorney of record.
2.
Although Life Rosepark did not take the
issue further during this hearing of the review, they maintained in
their critique of the
taxing mistress that the notice of intention to
tax was served on 1 October 2021 with the intended taxation date of 1
November
2021. It is alleged that the period that was to be provided
was firstly, 10 days to inspect in terms of Rule 70(3B)(a)(i) and a
further 10-day period thereafter to compile a written notice of
objection as per Rule 70(3B)(a)(ii). In addition, had the taxing
mistress the obligation to ascertain that the Rule70(4)(a) –
notice in terms of Rule 70(3B) was provided. This was apparently
not
done;
legislatively prescribed
processes were not adhered to.
Counsel
for Mrs. van Reenen indicated that the applicant was provided with
the necessary opportunity as is the practice in the Free
State
Division of the High Court.
3.
The
taxation was set down for 1 November 2021 but as result of the
belated voting day, rescheduled to 4 November 2021. During the
taxation the representative of Life Rosepark highlighted the notice
of intention to oppose the taxation and that it contained all
of the
noted objections to the items of the intended bill of costs. She
continued to read out the content of the notice to oppose
but the
taxing mistress directed her to stop. The justification for this was
explained to be that the notice of intention to oppose
was placed
before the taxing mistress and she could identify the objected items.
From the affidavit filed by the costs consultant
it seems as if she
took offence hereto in that
she
was not granted the opportunity to state her case.
[30]
The
audi alteram partem rule was negated.
4.
It is the case for the applicant that
during engagement in the taxation the taxing mistress notified the
parties that she attended
to judge(s) of the Bloemfontein division to
assist her with the approach to the taxation. She specifically
referred to a certain
judge by name and his remarks on the items of
the bill of costs and the objections registered thereto during the
course of the
taxation. At paragraphs 23 to 25 of her statement the
costs consultant made it clear that she does not have difficulty with
the
notion that the bill of costs and the opposition was discussed
with the judge(s) since it forms part of the public record. The
conundrum lies in the conduct of the taxing mistress in that it
became apparent to the parties that “she did not individually
and with her own discretion arrive at the rulings to the various
objections presented by the applicant in writing and orally.”
This aspect was cemented by the repeated recordals by the taxing
mistress and before her ruling that an item will be allowed resultant
to the “opinion of the judge.” The objection is not
against the judge but the fact that the taxing mistress relied
on a
presiding judge to arrive at a conclusion. This skews the entire
decision-making power of the taxing mistress and brings into
question
whether her discretion was applied judicially.
It
was the decisions of a judge that was merely transplanted onto the
proceedings
.
This,
without him having heard the arguments of the parties and attending
the proceedings.
5.
The issue of a conflict of interest does
not lie as a ground for review but was apparently a “discussion”
during taxation
of the information possessed by Morne Scheepers Costs
Consultants, insofar as Mrs. Meyer is a representative of his office
and
attended the consultation. Mr. Scheeper’s office also acted
for the first respondent in the matter at some stage. The issue
is
important and it does not make sense why it would be raised if Life
Rosepark does not want to rely on the aspect in the review.
This is
however suggestive of the
recalcitrant
atmosphere that apparently prevailed during the taxation hearing.
6.
The
taxing mistress alleged that the grounds for review are based on
hearsay. Again, the
unbecoming
bickering of the participants to the taxation
comes to the fore. Life Rosepark maintains that this “manifest
in the form of further grounds of objections to the items
and other
aspects that impacts on the alleged irregular outcome of the
taxation.”
[31]
This is
the allegation stated by the taxing mistress:
[32]
3.
It
is important to note that Mrs Koen who brings this Application of
review in terms of Rule 48 on instruction of Whalley van der
Lith
Attorneys was not present during the taxation. She drafted the Notice
to Oppose the Taxation and schooled Mrs Hattingh in
what she wanted
Mrs Hattingh to present during taxation. Mrs Hattingh on her turn
then conveyed the instructions of Mrs Koen to
Mrs Van Greunen as to
what they want her to present during the taxation.
Mrs
Koen bears no direct knowledge or evidence on what arguments were
before me during taxation as well as how I made my rulings.
Mrs Koen
bases her Review of Taxation on hearsay information from Mrs Hattingh
who found her information from Mrs van Greunen.
I was informed by
both Mrs Hattingh and van Greunen that they advised Mrs Koen, in
their view, not to take this matter on review.
(Accentuation
added) The last remark shows that irregular discussions took place
between the taxing mistress and others. It also
shows that a proper
record of the proceedings to which could have been referred before
the review was launched, would have rescued
the case from many of the
issues.
7.
The parties during the hearing of the
review wanted for the issues of the case on review that differs from
the case during taxation
to stand over. The point is taken but the
costs consultant of Life Rosepark maintained that: “174.3…
I accept that
certain of the earlier objections have been adapted.
From the body of case law, I understand that this is allowed.”
At 174.4
she declared that: “Where there are any items that
have not been objected to, I accept that such item, if ruled upon by
the
taxing mistress, cannot form part of the review.” This
shows fault to be attributed to Life Rosepark.
8.
On
the issue of the
dies
non
and
late filing of papers by the taxing mistress the costs consultant
accepts the explanation of the taxing mistress but points
out that:
“175.2 From the facts of the matter, it is evident that the
taxing mistress filed her stated case only in January
2022. This
whilst the rules direct that such stated case was to be filed within
a prescribed time period.” Rules 48 and 70
do not allow for the
suspension of
dies
for
the exchange process.
Again,
the allegation to non-compliance to the Rules of Court.
Counsel for Mrs. van Reenen pointed to the fact that
dies
non
is applicable.
[33]
9.
Life Rosepark maintains the
misinterpretation of the court order is a crucial mistake by the
taxing mistress. The issue was appropriately
addressed in the heads
of argument for Mrs. van Reenen at paragraphs 75 to 82; for now. It
might become relevant when the items
are taxed or reviewed. The
parties agreed during the hearing to have this issue stand over for
when the items are specifically
dealt with.
10.
Paragraph 4 of the stated case of the
taxing mistress poured fuel on the fire of irregularities. The Free
State Division does not
have relevant Practice Directives. Life
Rosepark maintained that it speaks to the issue of the certificate
and that it creates
legal uncertainty. Practise Directives do not
overrule any statute, common law or Uniform Rules of the Court. By
stating that the
Free State “bangs their own drum” the
taxing mistress emphasised the
legislatively
rogue manner in which taxations are
apparently approached in the Free State by her
.
4.
Furthermore,
it is important to note with regards to Mrs Koen’s general
notes and introduction of the Application for the
Review of taxation,
that each court has their own practice directives specially in terms
of taxations.
The Free State High Court bangs their own drum and
is by no means bound by the practice directives of the Gauteng High
Court
.
[12]
Justice must be seen to be done.
[34]
Presiding officers and legal practitioners must conduct themselves
with the utmost honour and not swing allegations around just
to later
not, in some instances, rely upon it. All the participants to the
taxation in the instance overstepped the boundaries
of the proper
administration of justice with their inuendo’s and allegations.
This scenario is not novel and tempers do flare
up in taxation
hearings
[35]
but it is crucial
that professionalism and respect for the administration of justice
should prevail. The parties have gone too
far and the matter does not
epitomize and represent just process. Taxation proceedings must be
honoured for what it is.
[13]
I cannot put it better than what was stated by Plasket, J (Smith, J
and Lowe, J concurring) in
Trollip v Taxing Mistress, High Court
and Others
2018 (6) SA 292
(ECG):
The
test on a review of taxation is:
[13]
AC Cilliers in
Law of Costs
states that taxation of
costs 'has always been regarded as an integral part of the judicial
process' and that the rights and
obligations of parties to litigation
'are not finally determined until the costs ordered by the court have
been taxed'. Apart from
this, taxation also ensures that 'the party
who is condemned to pay the costs does not pay excessive, and
the successful party
does not receive insufficient, costs in respect
of the litigation which resulted in the order for costs'.
[14]
These purposes are captured in rule 70(3) which reads as
follows: 'With a view to affording the party who has been
awarded
an order for costs a full indemnity for all costs reasonably
incurred by him in relation to his claim or defence and to ensure
that all such costs shall be borne by the party against whom such
order has been awarded, the taxing master shall, on every taxation,
allow all such costs, charges and expenses as appear to him to have
been necessary or proper for the attainment of justice or for
defending the rights of any party, but save as against the party who
incurred the same, no costs shall be allowed which appear
to the
taxing master to have been incurred or increased through
over-caution, negligence or mistake, or by payment of a special
fee
to an advocate, or special charges and expenses to witnesses or to
other persons or by other unusual expenses.'
[15]
The intention of rule 70(3) is to ensure that the ultimate winner of
a suit should not have the fruits of victory reduced by
having to pay
too high a proportion of his or her costs by way of an attorney and
client bill. It has also been recognised, on
the other hand, that the
interests of the loser must be protected and that party should not be
oppressed by having to pay
an excessive amount of costs.
In
Thusi v Minister of Home Affairs and Another and 71 Other
Cases
Wallis J held that the indemnity principle is of
general application in the field of costs, and that it has not become
outdated. We
agree. The touchstone is for expenditure to be
allowed which has been reasonably and properly incurred.
[16]
In
Ocean Commodities Inc and Others v Standard Bank of SA Ltd
and Others
the court restated the test applicable when
dealing with a review of taxation as follows:
'This
case indicates, I think, that the Court was of the view that the test
as formulated by POTGIETER JA in the
Legal and General
Assurance Society
case
supra
and the
statement that the Court will interfere with a ruling of a Taxing
Master only if it is satisfied that he was clearly
wrong, are merely
two ways of saying the same thing. I think, with respect, that it is
better to state the test to be that the
Court must be satisfied that
the Taxing Master was clearly wrong before it will interfere with a
ruling made by him, since it indicates
somewhat more clearly than
does the formulation of the test by POTGIETER JA what the test
actually involves,
viz
that the Court will not
interfere with a ruling made by the Taxing Master in every case where
its view of the matter in dispute
differs from that of the Taxing
Master, but only when it is satisfied that the Taxing Master's view
of the matter differs so materially
from its own that it should be
held to vitiate his ruling.'
The
discretion of the taxing master is:
[17]
Cilliers in
Law of Costs
said the following of the
discretion vested in a taxing master:
'The
discretion vested in the taxing master is to allow (all) costs,
charges and expenses as appear to him to have been necessary
or
proper, not those which may objectively attain such qualities. His
opinion must
relate to all
costs reasonably incurred by the litigant, which imports a value
judgment as to what is reasonable. Moreover, the
words reasonable and
in the opinion of the taxing master
that occurred in the
tariff appended to rule 70 imported a judgment not referable to
objectively ascertainable qualities in the
items of a bill in
question.
The discretion to decide what costs have been
necessarily or properly incurred is given to the taxing master and
not to the court.
It is now a well-established rule that in
regard to
quantum
, both as to the qualifying fees for
medical expert witnesses, other expert witnesses, and counsel's fees,
the decision of the taxing
master is a discretionary one.
(Accentuation added)
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 he or she must act reasonably, justly and on the basis
of sound principles
with due regard to all the circumstances of the
case. Where the discretion is not so exercised, the decision will be
subject to
review.
(
City of Cape Town v Arun Property
Development (Pty) Ltd
2009 (5) SA 226
(C) [at] 232.) In
addition, even where the discretion has been exercised properly,
a court on review will be entitled to interfere
where the decision is
based on a misinterpretation of the law or on a misconception as to
the facts and circumstances, or as to
the practice of the court.
The
taxing master's discretion is wide, but not unfettered
.
In exercising it the taxing master must properly consider and assess
all the relevant facts and circumstances relating to the
particular
item concerned. The discretion is not properly exercised if such
facts or circumstances are ignored or misconstrued.'
(Accentuation
added)
[18]
A taxing master is required to approach the task of taxing a
bill of costs with an open mind.
In
Botha v
Themistocleous
the court held that a taxing master's
function is not limited to merely fixing fees on the assumption that
work that has been
charged for has in fact been done: he or she
should not 'close his [or her] eyes and ears to evidence' that may
show that work
alleged to have been done had not been done. We
would add, however, that this would normally only arise if a
dispute is squarely
raised in a taxation or where good reason exists
to suspect that the services claimed for have not been performed. In
circumstances
such as these, the taxing master is under a duty to
afford the affected party an opportunity to deal with any disputed
questions
of fact. (Accentuation added)
[19]
As a taxing master must have a full picture before him or her,
in order to determine just remuneration for work done,
he or she
may have to determine disputes of fact. In
Brener NO v
Sonnenberg, Murphy, Leo Burnett (Pty) Ltd (formerly D'Arcy Masins
Benton & Bowless SA (Pty) Ltd)
the following was said of
this function:
'In
the light of this discussion of the authorities, I am of the opinion
that the Taxing Master has the power, and in some
instances
(rare though they may be) the duty, to hear oral evidence on disputed
questions of fact arising out of the taxation before
him. It follows,
in my view, that in the occasional instance in which the Taxing
Master hears oral evidence,
it must be taken to be his duty to
keep a record of that evidence, and of his findings of fact
based upon the evidence.
Therefore, when the Taxing Master is
required in terms of Rule 48(1) to state a case in respect of a
matter in which he has heard
evidence, he will not be expected to
rely entirely on his memory, and the record kept by him will assist
him in drawing up the
stated case.' (Accentuation added)
[21]
It is the duty of the taxing master to ensure that the expenditure
claimed was reasonably incurred and is a reasonable fee.
It is
in this context that his or her discretion is to be
exercised with due regard to the purpose for which taxation
is
intended.
(Accentuation added)
[14]
The inappropriate remarks and conduct of the parties contaminated the
administration of justice.
The irregularities committed and alleged
are just too grave and material to let it slide. The whole of the
taxation hearing and
the findings of the taxing mistress must be set
aside. No order will be made as to costs as it is not clear without a
record what
and who exactly caused the proceedings to derail.
[15]
ORDER
1.
The whole of the
taxation hearing and the
allocatur
of costs of 4
November 2021 are reviewed and set aside.
2.
The matter is
referred back to the Taxing Master of the High Court: Free State,
Bloemfontein for taxation anew and before a different
taxing
master/taxing mistress than the taxing mistress that presided in the
4 November 2021 taxation.
3.
There is no
order as to costs.
M
OPPERMAN, J
APPEARANCES
The
applicant in the review:
ADVOCATE I.L.
POSTHUMUS
Chambers,
Sandton
Whalley
& Van der Lith INC
Applicants
Attorney
Darrenwood,
Randburg
011
440 3473
Electronic
service by email:
roland@wvl.co.za
audrey@wvl.co.za
rolandbottin@gmail.com
reinettkoen@gmail.com
c/o
Letitia van Greunen
McIntyre
& van der Post
c/o
Wessels & Smith Inc
1A
York Road
Waverley
Bloemfontein
Ref:
R Bottin/LIF2/57
The
second respondent in the review:
ADVOCATE
C.D. PIENAAR
Society
of Advocates, Bloemfontein
082
378 1381
tpienaar@law.co.za
A.C.
Meyer o.b.o
Jean-Louis
La Grange
Attorney
for the second respondent
Adams
& Adams
Lynnwood
Bridge
4
Daventry Street
Lynnwood
Manor
Pretoria
Jean-Louis.lagrange@adams.africa
Ref:
DBS/JLLG/atk/P1651
c/o
Spangenberg Zietsman & Bloem Attorneys
Fal
manor
No
5 Seventh Street
Arboretum
Bloemfontein
Ref:
WAS Spangenberg
Morne
Scheepers Costs Consultants
alet@phinc.co.za
Phatshoane
Henney Attorneys
35
Markgraaff Street
Westdene,
Bloemfontein
The
Registrar of the High Court
Free
State Provincial Division, Bloemfontein
JaDeWet@judiciary.org.za
[1]
Hereafter
referred to as “Life Rosepark”.
[2]
“
Taxing
mistress”. “Taxing master” is also used in the
papers but will be regarded as reference to the “Taxing
mistress”.
[3]
Hereafter
referred to as “Mrs. van Reenen”.
[4]
Cilliers, AC,
Law of
Costs
,
https://www.mylexisnexis.co.za/Index.aspx,
Last Updated: October 2022 - SI 46 at 13.10.
[5]
Taxation
of Legal Costs in South Africa,
Juta
& Company (Pty) Ltd, First Edition 2014, Corrected reprint 2015,
ISBN: 978 0 70219 997 4 at “Preface” on
page v.
[6]
Taxation
of Legal Costs in South Africa, supra
at
“Foreword” on pages vii to viii.
[7]
The
quote is lengthy but it is worth every word.
[8]
Paragraphs
88 and 89 of the Heads of Argument of Counsel for Mrs. van Reenen.
[9]
SUPPLEMENTARY
INDEX: TAXATION BUNDLE at pages 1-3.
[10]
SUPPLEMENTARY
INDEX: TAXATION BUNDLE at pages 4-55.
[11]
SUPPLEMENTARY
INDEX: TAXATION BUNDLE at pages 56-99.
[12]
SUPPLEMENTARY
INDEX: TAXATION BUNDLE at pages a-x.
[13]
SUPPLEMENTARY
INDEX: TAXATION BUNDLE at pages 100-131.
[14]
SUPPLEMENTARY
INDEX: REVIEW OF TAXATION IN TERMS OF RULE 48 BUNDLE at pages 1-16.
[15]
SUPPLEMENTARY
INDEX: REVIEW OF TAXATION IN TERMS OF RULE 48 BUNDLE at pages 17-31.
[16]
SUPPLEMENTARY
INDEX: REVIEW OF TAXATION IN TERMS OF RULE 48 BUNDLE at pages 32-65.
[17]
SUPPLEMENTARY
INDEX: REVIEW OF TAXATION IN TERMS OF RULE 48 BUNDLE at pages a-aa.
[18]
SUPPLEMENTARY
INDEX: REVIEW OF TAXATION IN TERMS OF RULE 48 BUNDLE at pages 66-87.
[19]
SUPPLEMENTARY
INDEX: REVIEW OF TAXATION IN TERMS OF RULE 48 BUNDLE at pages
88-102.
[20]
SUPPLEMENTARY
INDEX: REVIEW OF TAXATION IN TERMS OF RULE 48 BUNDLE at pages
103-114.
[21]
SUPPLEMENTARY
INDEX: REVIEW OF TAXATION IN TERMS OF RULE 48 BUNDLE at pages
115-117.
[22]
RULE 48 OF THE
UNIFORM RULES OF COURT
(1)
Any party dissatisfied with the ruling of the taxing master as to
any item or part of an item which was objected to
or disallowed
mero motu
by the taxing master, may within 15 days
after the allocatur by notice require the taxing master to state a
case for the decision
of a judge.
(2)
The notice referred to in sub-rule (1) must—
(a)
identify each item or part of an item in respect of which the
decision of the taxing master is sought to be reviewed;
(b)
contain the allegation that each such item or part thereof was
objected to at the taxation by the dissatisfied party, or that it
was disallowed
mero motu
by the taxing master;
(c)
contain the grounds of objection relied upon by the dissatisfied
party at the taxation, but not argument in support thereof; and
(d)
contain any finding of fact which the dissatisfied party contends
the taxing master has made and which the dissatisfied party intends
to challenge, stating ground of such challenge, but not argument
in
support thereof.1
(3)
The taxing master must—
(a)
supply his or her stated case to each of the parties within 20 days
after he or she has received a notice referred to in sub-rule (1);
and
(b)
set out any finding of fact in the stated case.2
(4)
Save with the consent of the taxing master, no case shall be stated
where the amount, or the total of the amounts, which the taxing
master has disallowed or allowed, as the case may be, and which
the
dissatisfied party seeks to have allowed or disallowed respectively,
is less than R100.
(5)
(a) The parties to whom a copy
of the stated case has been supplied, may within 15 days after
receipt thereof make submissions in writing thereon including
grounds of objection not raised at the taxation, in respect of any
item or part of any item which was objected to before the
taxing
master or disallowed,
mero motu
, by the taxing master.
(b)
The taxing master must within 20 days after receipt of the
submissions referred to in
paragraph (a, supply his or her report to
each of the parties.
(c)
The parties may within 10 days after receipt of the report by the
taxing master, make
further written submissions thereon to the
taxing master, who shall forthwith lay the case together with the
submissions before
a judge.
(6)
(a) The judge may—
(i)
decide the matter upon the merits of the case and submissions so
submitted;
(ii) require
any further information from the taxing master;
(iii) if he or she deems
it fit, hear the parties or their advocates or attorneys in his or
her chambers; or
(iv) refer the
case for decision to the court.
(b) Any further
information to be supplied by the taxing master to the judge must
also be supplied to the parties who may within
10 days after receipt
thereof, make written submissions thereon to the taxing master, who
shall forthwith lay such information
together with any submissions
of the parties thereon before the judge.
(7)
The judge or court deciding the matter may make such order as to
costs of the case
as he or she or it may deem fit, including an
order that the unsuccessful party pay to the successful party the
costs of review
in a sum fixed by the judge or court.
[R. 48 substituted by GN
R849 of 2000.]
[23]
The
date was moved to 21 October 2022 to suit all the parties.
[24]
Notice
of Review of Taxation.
[25]
Notice
of Review of Taxation.
[26]
Notice
of Review of Taxation.
[27]
Plaintiff’s
Response to Taxing Master’s Report at paragraphs 2 and 4.
[28]
General
Council of the Bar of South Africa v Geach and Others
2013
(2) SA 52
(SCA) ([2012] ZASCA 175) at paragraph 87 and as quoted in
Trollip
v Taxing Mistress, High Court and Others
2018 (6) SA 292
(ECG) at [18] – [20] and [29].
[29]
RULE 70 OF THE
UNIFORM RULES OF COURT
(1)
(a) The taxing master shall be
competent to
tax any bill of costs for services actually rendered by
an attorney in his capacity as such in connection with litigious
work
and such bill shall be taxed subject to the provisions of
sub-rule (5), in accordance with the provisions of the appended
tariff:
Provided that the taxing master shall not tax costs in
instances where some other officer is empowered so to do.
(b)
The provisions relating to taxation existing prior to the
promulgation of this sub-rule
shall continue to apply to any work
done or to be done pursuant to a mandate accepted by a practitioner
prior to such date.
(2)
At the taxation of any bill of costs the taxing master may call for
such books, documents,
papers or accounts as in his opinion are
necessary to enable him properly to determine any matter arising
from such taxation.
(3)
With a view to affording the party who has been awarded an order for
costs a full indemnity
for all costs reasonably incurred by him in
relation to his claim or defence and to ensure that all such costs
shall be borne
by the party against whom such order has been
awarded, the taxing master shall, on every taxation, allow all such
costs, charges
and expenses as appear to him to have been necessary
or proper for the attainment of justice or for defending the rights
of any
party, but save as against the party who incurred the same,
no costs shall be allowed which appear to the taxing master to have
been incurred or increased through over-caution, negligence or
mistake, or by payment of a special fee to an advocate, or special
charges and expenses to witnesses or to other persons or by other
unusual expenses.
(3A)
Value added tax may be added to all costs, fees, disbursements and
tariffs in respect of which value
added tax is chargeable.
[Inserted by GNR.406 of
1992 and substituted by GNR.798 of 1997.]
(3B)
(a) Prior to enrolling a matter
for taxation, the party
who has been awarded an order for costs
shall, by notice as near as may be in accordance with Form 26 of the
First Schedule—
(i)
afford the party liable to pay costs at the time therein stated, and
for a period
often (10) days thereafter, by prior arrangement,
during normal business hours and on any one or more such days, the
opportunity
to inspect such documents or notes pertaining to any
item on the bill of costs; and
(ii)
require the party to whom notice is given, to deliver to the party
giving the notice
within ten (10) days after the expiry of the
period in subparagraph (i), a written notice of opposition,
specifying the items
on the bill of costs objected to, and a brief
summary of the reason for such objection.
(b)
For the purposes of this sub-rule, the days from 16 December to 15
January, both inclusive,
must not be counted in the time allowed for
inspecting documents or notes pertaining to any item on a bill of
costs or the giving
of a written notice to oppose.
[Sub-r. (3B) inserted by
r. 2(a) of GNR.90 of 12 February 2010 and substituted by GNR.107 of
7 February 2020.]
(3C)
No taxation shall be set down in the days from 16 December to 15
January, both inclusive, except—
(a)
where the period for delivery of the notice to oppose has expired,
before the commencement
of the period 16 December and 15 January,
both dates inclusive, and no notice of intention to oppose has been
delivered;
(b)
where the party liable to pay the costs, has consented in writing to
the taxation in
his or her absence; or
(c)
for the taxation of writ and post-writ bills.
[Sub-r. (3C) inserted by
GNR.107 of 7 February 2020.]
(4)
The
taxing master shall not proceed
with the taxation of any
bill of costs unless he or she is satisfied that the party liable to
pay the costs has received—
(a)
due notice in terms of sub-rule (3B); and
(b)
not less than 10 days’ notice of the date, time and place of
such taxation and
that he or she is entitled to be present thereat:
Provided that such notice shall not be necessary—
(i)
if the party liable to pay the costs has consented in writing to
taxation in his
or her absence;
(ii)
if the party liable to pay the costs failed to give notice of
intention to oppose in
terms of sub-rule (3B); or
(iii)
for the taxation of writ and post-writ bills:
Provided further that,
if any party fails to appear after having given the notice to oppose
in terms of sub-rule (3B)(a)(ii),
the taxation may proceed in their
absence.
[Sub-r. (4) substituted
by r. 2(b) of GNR.90 of 12 February 2010, by GNR.1055 of 29
September 2017 and by GNR.107 of 7 February
2020.]
(5)
(a) The taxing master shall be
entitled, in
his discretion, at any time to depart from any of the
provisions of this tariff in extraordinary or exceptional cases,
where
strict adherence to such provisions would be inequitable.
(b)
In computing the fee to be allowed in respect of items 1, 2, 3, 6, 7
and 8 of Section
A; 1, 2 and 6 of Section B and 2, 3, 4 and 7 of
Section C, the taxing master shall take into account the time
necessarily taken,
the complexity of the matter, the nature of the
subject matter in dispute, the amount in dispute and any other
factors which
he considers relevant.
(5A)
(a) The taxing master may grant
a party wasted costs occasioned
by the failure of the taxing party
or his or her attorney or both to appear at a taxation or by the
withdrawal by the taxing
party of his or her bill of costs.
(b)
The taxing master may order in appropriate circumstances that the
wasted costs be paid
de bonis propriis
by the attorney.
(c)
In the making of an order in terms of paragraphs (a) or (b), the
taxing master shall
have regard to all the appropriate facts and
circumstances.
(d)
Where a party or his or her attorney or both misbehave at a
taxation, the taxing master
may—
(i)
expel the party or attorney or both from the taxation and proceed
with and complete
the taxation in the absence of such party or
attorney or both; or
(ii)
adjourn the taxation and refer it to a judge in chambers for
directions with regard
to the finalisation of the taxation; or
(iii)
adjourn the taxation and submit a written report to a judge in
chambers on the misbehaviour
of the party or attorney or both with a
view to obtaining directions from the judge as to whether contempt
of court proceedings
would be appropriate.
(e)
Contempt of court proceedings as contemplated in paragraph (d) (iii)
shall be held by
a judge in chambers at his or her discretion.
[Inserted by GN 1723 of
1998]
(6)
(a) In order to diminish as far
as possible,
the costs arising from the copying of documents to
accompany the briefs of advocates, the taxing master shall not allow
the costs
of any unnecessary duplication in briefs.
(b)
Fees may be allowed by the taxing master in his discretion as
between party and party
for the copying of any document which, in
his view, was reasonably required for any proceedings.
(7)
Fees for copying shall be disallowed to the extent by which such
fees could reasonably
have been reduced by the use of printed forms
in respect of bonds, credit agreements or other documents.
(8)
Where, in the opinion of the taxing master, more than one attorney
has necessarily been
engaged in the performance of any of the
services covered by the tariff, each such attorney shall be entitled
to be remunerated
on the basis set out in the tariff for the work
necessarily done by him.
(9)
Save for the forms set out in the First Schedule to these Rules, a
page shall contain
at least 250 words and four figures shall be
counted as a word.
[Substituted by GNR.1557
of 1996.]
(10)
The costs taxed and allowed in terms of the tariff for acts
performed after the date of commencement
of the rules published by
Government Notice R.210 of 10 February 1989 shall be increased by an
amount equal to 70 per cent of
the total amount of such costs, for
acts performed after the date of commencement of the rules published
by Government Notice
R.2410 of 30 September 1991 shall be increased
by an amount equal to 100 per cent of the total amount of such costs
and for acts
performed after 1 July 1993 only the Tariff of fees of
attorneys in rule 70, published by Government Notice R.974 of 1 June
1993,
shall apply.
[Substituted by GNR.210
of 1989, by GNR.2410 of 1991, by GNR.974 of 1993 and by GNR.1557 of
1996.]
[30]
Paragraph 15.3 of
her affidavit.
[31]
Paragraph
173.2 of the affidavit of the costs consultant for Life Rosepark.
[32]
Paragraph
3 of the Stated Case in terms of Rule 48(3).
[33]
Paragraphs
67 to 74 of their Heads of Argument.
[34]
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at paragraph
[48]
:
“
It follows from
the foregoing that the correct approach to this application for the
recusal of members of this Court is objective
and the onus of
establishing it rests upon the applicant. The question is whether a
reasonable, objective and informed person
would on the correct facts
reasonably apprehend that the Judge has not or will not bring an
impartial mind to bear on the adjudication
of the case, that is a
mind open to persuasion by the evidence and submissions of counsel.
The reasonableness of the apprehension
must be assessed in the light
of the oath of office taken by the Judges to administer justice
without fear or favour; and the
ability to carry out that oath by
reason of their training and experience. It must be assumed that
they can disabuse their minds
of any relevant personal beliefs or
predispositions. They must take into account the fact that they have
a duty to sit in any
case in which they are not obliged to recuse
themselves. At the same time, it must never be forgotten that an
impartial Judge
is a fundamental prerequisite for a fair trial and a
judicial officer should not hesitate to recuse herself or himself if
there
are reasonable grounds on the part of a litigant for
apprehending that the judicial officer, for whatever reason, was not
or
will not be impartial.”
[35]
Smith
v MEC for Health, Mpumalanga
2021
(6) SA 53
(ML).