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[2022] ZAFSHC 335
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Murray N.O and Another v Van der Walt (A56/2021) [2022] ZAFSHC 335 (30 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:
A56/2021
Reportable
No
Of
Interest to other Judges No
Circulate
to
Magistrates
:
No
In
the matter between:
CLOETE
MURRAY
N.O.
First Appellant
RUWAYNE
SMITH
N.O.
Second Appellant
and
SAREL
JACOBUS VAN DER WALT
Respondent
CORAM:
S
CHESIWE, J et L OPPERMAN, J et N SNELLENBURG,
AJ
HEARD:
13
JUNE 2022
JUDGMENT
BY:
N
SNELLENBURG, AJ
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 30 November 2022 at 15h30
[1]
This appeal, with leave of the Court a
quo, concerns the order on review of a taxation in terms of Uniform
rule 48(1) in terms whereof
the Court reviewed and set aside the
allocator(s) of the taxing master of 11 February 2020, and referred
the bills of costs back
to the taxing master to be ‘taxed
afresh in light of the judgment’.
[2]
The taxation followed an order by Naidoo
J on 10 September 2019 which provides as follows:
“
An
order for costs de bonis propriis is made against attorney, Mr FJ Mr
Senekal, who is directed to pay the [appellants’]
costs of this
matter, including all reserved costs, on the scale as between
attorney and own client.”
[3]
The reasons informing Naidoo J’s
order appear lucidly from the judgment. Considering the nature of
this appeal it is, unfortunately,
necessary to consider the judgment
in some detail.
3.1
The respondent is an unrehabilitated
insolvent. His estate was finally sequestrated by an order granted in
this Division.
3.2
The appellants are the duly appointed
trustees of the insolvent estate.
3.3
The respondent issued an urgent
application [the main application] on 6 June 2019 to be heard on 11
June 2019 in terms whereof the
respondent sought a rule nisi with
immediate legal effect pending the return date, to interdict and
restrain the appellants from
proceeding with the administration of
the insolvent estate as well as that the second meeting of creditors
be postponed for a period
of 3 months pending the decision of the
Master of the High Court in respect of the request to remove the
appellants as trustees
of the estate [prayer 2.1], alternatively
insofar as the Master decides not to remove the appellants as
trustees, then an application
to Court for the removal of the
appellants as trustees [prayer 2.2]. The respondent also sought costs
against the appellants on
the scale as between attorney and own
client in their personal capacities.
3.4
The main application was opposed by the
appellants on the basis that the notice of motion was defective in
several respects as well
as on the merits. The record shows that an
extensive answering affidavit was filed.
3.5
In the late evening of 10 June 2019, the
respondent agreed that the order sought in the main application could
be varied. The court
was presented the following day with a draft
order which was made an order of court. The court order in summation
records that
the respondent does not persist with the relief in
prayer 2.1 insofar as it relates to the second meeting of creditors
to be held
on 12 July 2019 and that the relief sought in prayer 2.1,
insofar as it relates to the administration of the insolvent estate,
would proceed in the ordinary course. The respondent would file his
replying affidavit in accordance with the Uniform rules whilst
the
appellants reserved the right to supplement the answering affidavit
of 10 June 2019.
3.6
The respondent failed to file a replying
affidavit. It later transpired that the respondent in fact wished to
interrogate the appellants,
amongst others, in terms of the
provisions of the
Insolvency Act 24 of 1936
.
3.7
A request by the respondent that the
main application be postponed on 22 August 2019 pending finalisation
of the insolvency enquiry
was refused by the appellants who requested
the respondent to make a formal application for postponement by 12
August 2019 to afford
them an opportunity to file an answering
affidavit thereto by 15 August 2019. The respondent did not file a
substantial application
for the postponement of the main application
by 12 August 2019. On 16 August 2019, the appellants, in anticipation
of an application
for postponement proceeded to file an ‘answering
affidavit’ wherein they dealt with the history of the matter
and correspondence
that passed between the parties.
3.8
The respondent’s application for
postponement of the main application was only made on 19 August 2019.
The respondent also
proceeded to file a supplementary affidavit to
the founding affidavit, deposed to by the respondent’s
attorney, in the postponement
application on 21 August 2019. This
affidavit was filed without leave of the court.
3.9
When the main application was called on
22 August 2019, the court file was not indexed and paginated as
required by the relevant
Practice Directives of this Division. The
application for postponement was not filed in the court file and the
founding papers
were not in the court file, and despite the Registrar
searching for the same, it could not be found.
3.10
The respondent’s counsel requested
an opportunity to investigate the matter and when the matter was
later called, the respondent’s
counsel informed the court that
his instructions were to withdraw both the main application and the
application for postponement
with a tender that the respondent pays
the appellants’ costs on the scale as between party and party.
The appellants rejected
the offer and informed the court that they
sought a cost order against the respondent’s attorney (de bonis
propriis) on the
scale as between attorney and own client.
3.11
Although the application for
postponement was located by the Registrar, both parties declined the
court’s invitation to make
further submissions before the court
made a ruling on the issue of costs.
3.12
The
court was called upon to determine whether the respondent should pay
the costs on a party and party scale or whether the respondent’s
attorney should be ordered to pay the costs on the scale as between
attorney and own client.
3.13
The
Court proceeded to consider the legal principles applicable to
punitive orders for costs as well as the standard of conduct
that is
expected of an attorney.
3.14
The court, being astutely aware that it
was ultimately called upon to determine a just and equitable costs
order, critically analysed
the relevant history of the matter, the
conduct of the parties and specifically the respondent’s
attorney as well as the
merits of the matter. To this end the court
had the benefit of ‘a great deal of correspondence’ that
were exchanged
between the legal representatives.
3.15
The events during the evening on 10 June
2019 and the morning of 11 June 2019 leading up to the draft order
being made an order
of court, are especially relevant. Those are the
following. Based on an agreement reached with the respondent’s
attorney
the appellants as well as their instructing attorney and
counsel would not travel from Johannesburg, Gauteng to Bloemfontein.
It
was agreed that the respondent’s counsel would prepare a
draft order that would be presented to court. The respondent’s
attorney however failed to draw and present the draft order to the
appellants’ attorney. Attempts during the morning of 11
June
2019 to obtain a copy of the draft order were unsuccessful.
Discussions with another attorney from the same firm that represented
the respondent were also unsuccessful as the first mentioned alleged
that he did not have any instructions in that regard.
3.16
The appellants were constrained to brief
local counsel to appear in court at the scheduled time of 14h00. At
that juncture the attorney
who had earlier indicated that he did not
have instructions however appeared in court without counsel. The
attorney, after the
matter stood down, was able to take instructions
and eventually the draft order was granted. The appellants’
attorney eventually
drew the draft order that was consented to and
made an order of court.
3.17
In summary the court held that:
3.17.1
the only consequence of the litigation
of this nature and extent was to incur unnecessary costs, which the
insolvent estate would
have to bear to the prejudice of creditors;
3.17.2
the respondent’s attorney failed
to conduct himself with the requisite degree of care and diligence
expected of him;
3.17.3
the
respondent’s attorney’s conduct by casting aspersions,
abusing the court process and disrespecting the court had
to be
deprecated;
3.17.4
the respondent never responded to say
that he was in fact acting under instructions;
3.17.5
the tone of the respondent’s
attorney’s correspondence showed a lack of respect for his
colleagues, a disregard for
the Rules of Court and for the court
itself.
[4]
The judgment leaves no doubt that the
manifest purpose of the cost order on the scale as between attorney
and own client was to
ensure, as far as possible, that the insolvent
estate not be burdened, to the prejudice of creditors, with
unnecessary costs and
expenses brought about by an abortive
application which in fact constituted an abuse of process. The order
that the attorney pay
the aforesaid costs de bonis propriis was a
mark of the court’s displeasure with the attorney’s
conduct.
[5]
In
Nel
v Waterberg Landbouwers Ko-operatiewe Vereeniging
1946 AD 597
at 608
the court said the following with regards to costs on an attorney and
client scale:
‘
The
true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be that, by reason of special
considerations arising either from the circumstances which give rise
to the action or from the conduct of the losing party, the
court in a
particular case considers it just, by means of such an order, to
ensure more effectually than it can do by means of
a judgment for
party and party costs that the successful party will not be out of
pocket in respect of the expense caused to him
by the litigation.
Theoretically, a party and party bill taxed in accordance with the
tariff will be reasonably sufficient for
that purpose. But in fact a
party may have incurred expense which is reasonably necessary but is
not chargeable in the party and
party bill. See Hearle & McEwan v
Mitchell's Executor
(1922 TPD 192).
Therefore in a particular case
the Court will try to ensure, as far as it can, that the successful
party is recouped. I say as
far as it can because there may be a
considerable difference between the amount of the attorney and client
bill which a successful
party is bound to pay to his own attorney and
the amount of an attorney and client bill which has been taxed
against the losing
party.’
[6]
Eksteen
JA explained in
Sentrachem
Ltd v Prinsloo
1997
(2) SA 1
(A) at 22B-D
that an order that an unsuccessful party pay the costs on the scale
as between attorney and own client must be seen
as
an attempt by the Court to go a step further than the ordinary order
of costs on the scale as between attorney and client to
ensure that
the successful party is indemnified of all reasonable costs of
litigation
.
[1]
Taxation
will occur on a more liberal scale, whilst not sanctioning
unreasonable costs
.
[2]
[Emphasis
added]
[7]
In
Mouton
and Another v Martine
1968
(4) SA 738
(T) at 742A–B
the Court held that taxation 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'.
[3]
[8]
In
Legal
and General Assurance Society Ltd v Lieberum NO and Another
1968 (1) SA 473
(A) at 478H
,
Potgieter JA articulated the applicable test when the Court reviews a
taxation as follows: that the court has the power to correct
the
taxing master’s ruling not only if he acted mala fide or from
ulterior and improper motives, or if he did not apply his
mind to the
matter or failed to exercise his discretion, or if he disregarded the
express provisions of a statute, but also when
the Court ‘is
clearly satisfied that he was wrong’. Of course, the Court will
interfere on this ground only when it
is in the same or in a better
position than the Taxing Master to determine the point in issue.
[9]
The test applicable when a court is
called upon to review a taxation as established in
Legal
and General Assurance Society Ltd v Lieberum NO and Another
1968 (1) SA 473
(A) at 478H
was
refined and articulated as follows in
Ocean
Commodities Inc and Others v Standard Bank of SA Ltd and Others
1984
(3) SA 15
(A) at 18E–G
:
'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 sayng 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.'
[10]
It bears mentioning that Potgieter JA
also issued an injunction in
Legal
and General Assurance Society Ltd v Lieberum NO and Another
1968 (1) SA 473
(A) at 478H
,
namely
that
the Court will interfere on the ground that the taxing master is
clearly wrong only when it is in the same or in a better position
than the taxing master to determine the point in issue.
[11]
The test is not whether the reviewing
court would have allowed an item or have allowed a different amount
for an item.
[12]
With
regards to the discretion vesting in the taxing master the Court in
Trollip
v Taxing Misstress, High Court
[4]
referred to Cilliers, Law of Costs at para 13– 03 where the
following is stated:
'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.
[5]
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.
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.'
[13]
In
similar vein the Court confirmed in
Preller
v Jordaan and another
[6]
that the taxing master is vested with a discretion to award such
costs as appear to him/her to have been necessary and proper.
As to
the Court’s power to interfere with the discretion vested in
the taxing master, Smit AJP said:
‘
Since
the discretion is vested in the Taxing Master, the reviewing Court
will not interfere with his decisions unless it is found
that he has
not exercised his discretion properly, as for example, when he has
been actuated by some improper motive, or has not
applied his mind to
the matter, or has disregarded factors or principles which were
proper for him to consider, or considered others
which it was
improper for him to consider, or acted upon wrong principles or
wrongly interpreted rules of law, or gave a ruling
which no
reasonable man would have given.’
[14]
Uniform
rule 70(5)(a)
provides that the
taxing master shall be entitled, in his/her discretion, at any time
to depart from any of the provisions of the
prescribed tariff in
extraordinary or exceptional cases, where strict adherence to such
provisions would be inequitable.
[15]
In
Coetzee
v Taxing Master, South Gauteng High Court
2013 (1) SA 74
(GSJ)
para 25
,
Sutherland J held that the tariff in
rule 70
is designed for and
intended for the taxation of party and party costs and the tariff in
rule 70
is not binding on any taxation of costs other than party and
party costs. The tariff in
rule 70
must therefore “be used as a
guide in the taxation of penal costs ordered by a court to be paid by
the defeated adversary,
called 'costs on the attorney and client
scale'” and, “costs in a bill presented by an attorney to
that attorney's
own client, called 'attorney and own client'
costs”.
[16]
The taxing master’s stated case
establishes that he was acutely aware of the legal precedent relating
to the legal principles
that governs taxation in general and
especially penal orders as to costs during the exercise of his
discretion. The taxing master’s
stated case also shows that he
approached the taxation with an open mind. In considering the
reasonableness of the fees, the taxing
master took into consideration
the nature of the matter and its complexity; the difficulty and
urgency; the time and effort expended
on the matter and the results
achieved, the skill and competence required as well as the client’s
expectations and the client’s
ability to pay. I will revert,
insofar as necessary to certain items when the Court a quo’s
judgment is considered.
[17]
Although the appeal lies against the
order (
Absa Bank Ltd v Mkhize and
Two Similar Cases
2014
(5) SA 16
(SCA) at para 64
), a court
order, as in the case of any other document, must be read in the
context of the judgment as a whole and particularly
in the light of
the court's reasons for the order.
Newlands
Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd
2015 (4) SA 34
(SCA) para 10
and
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977
(4) SA 298
(A) at 304D – F
.
[18]
The court below identified the issues to
be determined as follows in para 6 of the judgment:
‘
It
is common cause that the taxing master departed from the tariffs and
exercised his discretion. The only issue the court needs
to ascertain
and establish is whether that discretion was properly exercised. The
court has to establish if there are any grounds
which necessitate
interference with the exercise of that discretion. Such interference
will only occur if the court is satisfied
that the taxing master was
clearly wrong.’
[19]
The court a quo’s conclusion was
informed by the following reasoning:
‘
[21]
The taxation as alluded to above flows from an urgent application
that was abandoned, and no trial took place. No extensive
exchange of
documentation occurred here. There is nothing before court to show
that the taxing master took into consideration all
the factors he
enumerated above when quantifying the costs and the fees were
genuinely weighed other than tripling the tariff.
[22]
There is nothing further to show that there are any extraordinary or
exceptional circumstances established in this
matter and that a
failure to depart from the tariff will be inequitable.
[23]
In the result, I find that the taxing master has not adduced facts
upon which I could find that he properly exercised
his discretion in
this matter. He was clearly wrong, and this warrants interference by
this court.’
[20]
It is readily apparent from the synopsis
of the judgment by Naidoo J, in para 3 above, that the Court a quo
committed a material
misdirection with regards to the nature and
extent of the proceedings as well as the conduct of the respondent
and his attorney
that gave rise to the cost order.
[21]
In my view the extraordinary or
exceptional circumstances present itself clearly when the judgment of
Naidoo J is considered. The
aforesaid is just as apparent when the
record of proceedings, that served before the review court, is
considered.
[22]
To my mind the stated case establishes
that the taxing master exercised his discretion judicially in the
sense that he acted reasonably,
justly and on the basis of sound
principles with due regard to all the circumstances of the case.
[23]
The Court a quo did not interrogate the
separate items forming the subject matter of the review. It merely
identified broad categories
of objections raised by the respondent
and proceeded to discuss 3 identifiable issues. I will address these
issues below.
[24]
Fixing the same hourly tariff for both
instructing and correspondent attorney:
24.1
The Court a quo states that the taxing
master ‘submits that he aligned himself’ with submissions
in
Taute NO v Heymans
(6032/2008) [2009]
and that, in the circumstances, ‘nothing
prevents him from allowing a higher fee by adding a surcharge to the
prescribed fee
of 100%’. The Court states that ‘this’,
which I assume is the taxing master’s alignment with the
submissions in
Taute
,
is ‘in contrast’ with
Aircraft
Completions Centre (Pty) Ltd v Rossouw
2004 (1) SA 123
(W) at 116-187A-B
where the court held that there is no
difference between an attorney and client scale and attorney and own
client scale. The Court
a quo also relied on
Absa
Bank v Robb
2013
(3) SA 619
(GSJ) at 22-25,
which
it held, determined that the rote doubling or tripling of the tariff
to arrive at an attorney and own client rates does not
amount to a
proper exercise of the taxing master’s discretion.
24.2
The Court also observed that a
correspondent ‘is a “post box” with a function to
deliver documents on behalf of
a colleague who is seized with a
matter in a court where his practice is outside the 15 km radius of
that court. Practice has it
that a certain percentage allowance is
paid for such a purpose depending on the arrangements between the
attorneys.’
24.3
Lastly under this rubric the Court held
that ‘the taxing master allowed fees due to the attorneys
against the backdrop of
conceding that he has no knowledge of their
experience save
ipse dixit
of the respondent’s representative about the seniority of the
instructing attorney’.
24.4
For his part the respondent takes issue
in these proceedings with the taxing master’s decision to allow
an increased tariff
of 50% in respect of the correspondent attorney’s
attorney and client bill. The respondent argues that the taxing
master
merely applied a rule of thumb as result of the principles
enunciated in
Taute NO v Heymans
(6032/2008) [2009] without making an ad
hoc determination. Relying on
Coetzee
v Taxing Master, South Gauteng High Court and Another
supra
,
the respondent contends that the taxing master therefore failed to
exercise his discretion properly with regards to items 9, 12
& 14
of correspondent attorney’s attorney and client bill.
24.5
It should not be contentious that the
mere application of a rule of thumb to create a default informal
attorney and own client scale
would not constitute a proper exercise
of a discretion. The appellants do not take issue with the general
principle, but do point
out that
Absa
Bank v Robb
is
support for the proposition as that matter concerned a cost order
granted by a magistrate applying the incorrect test when granting
costs.
24.6
In
Coetzee
v Taxing Master, South Gauteng High Court and Another
supra
,
Sutherland also went on to say that:
‘
[35]
In my view a departure from the tariff in any given case must be ad
hoc and fact-specific. This is not to say generic factors
ought not
to be considered.
[36]
It cannot be objectionable to strive for a degree of uniformity in
the taxation of bills of costs, but the uniformity ought
to be
informed by a method, or an approach, and based upon some principle,
rather than a randomly selected figure or multiple of
the tariff,
bereft of a convincing justification for that particular selection.
It
would not, however, in my view be objectionable to settle on a higher
rate per se as a point of departure to tax attorney and
own client
bills. But, in such event, any higher rate, qua point of departure,
must be informed by:
[37.1]
A rational factual basis, which may address facts common to all or
most matters.
[37.2]
A rational policy basis, which may identify generic factors that are
considered relevant, and might include comparators about
professional
fees, overhead expenses, regional variables, and the like —
there can be no closed list.
[38]
A higher rate which is informed by no more than the notion that such
rate ought to be higher and be the 'most generous rate'
(as alluded
to in Aircraft Completions para 103) is not the product of a proper
exercise of the taxing master's discretion.’
24.7
The taxing master did not merely apply a
rule thumb to make the determination. The taxing master was amongst
other matters informed
by the nature and extent of the matter; the
fact that the Court attempted to go a step further than the ordinary
order of costs
on the scale as between attorney and client to ensure
that the successful party is indemnified of all reasonable costs of
litigation;
the urgency of the matter and its complexity; the time
and effort expended on the matter and the results achieved, the skill
and
competence required as well as the client’s expectations
and the client’s ability to pay.
24.8
It is also not sound, as point of
departure without any reference to the specific facts of the matter
to rely on a general proposition
that a correspondent is a ‘post-box’
that merely needs to deliver papers on behalf of the instructing
attorney. It
was certainly not the case in this matter. It is not
necessary to labour the point.
24.9
The fact that a practice may or may not
exist that some instructing attorneys and their correspondent
attorneys enter into agreements
regarding the sharing of fees is not
relevant to this matter.
24.10
Lastly with regards to the Court’s
finding that allowance of fees was done against the backdrop of the
taxing master having
no knowledge of the experience of the attorneys,
save for what was communicated to him by Ms Meyer, the following. In
the submissions
in response to the notice of review, Ms Meyer dealt
with the fact that she had conceded that in this Division, an hourly
rate of
R4 100.00 per hour would not be allowed. She argued that
based on the principles enunciated in
Taute
supra
,
the taxing master could allow the
prescribed
tariff
plus 100% on an attorney and
own client basis. In respect of the Werksmans fee Ms Meyer informed
the taxing master that Mr van
Tonder has been a director at Werksmans
since 2008 and was an admitted attorney since 2004. Nothing to
contrary was put before
the taxing master.
24.11
The taxing master was astute to the fact
that the successful party is indemnified of all reasonable costs of
litigation by the specific
order, but that unreasonable costs were
not sanctioned. What the taxing master
did
not do
was to allow a higher rate
which was informed by no more than the notion that such rate ought to
be higher and be the 'most generous
rate'.
[25]
The issue of the drafting of the answering affidavit. The matter was
clarified in the appellant’s
response to the notice of review.
Counsel drafted the affidavit, not the attorney. The fees allowed
were only for 11.5 hours as
opposed to the 13.5 hours spent on
drafting. The total of 11.5 hours accords with the 45 pages of
answering affidavit, and the
general approach of 4-5 pages per hour
allowed for drafting. It appears that the Court did not consider the
response to the review.
This specific item on the attorney’s
bill of costs was conceded at the start, namely that the affidavit
was prepared
by Mr Smit.
[26]
The Court lastly referred to the fact that a new counsel from
Bloemfontein appeared whilst the
counsel that was on brief did not
travel to Bloemfontein and did not appear. The respondent also
persisted with its objection in
this regard. The Court alludes to the
fact that the fees of both counsels were allowed whilst, according to
the Court, no reason
for his unavailability is ‘discernible’
from the documentation. The finding by the Court is clearly wrong.
The reason
why counsel did not travel to Bloemfontein appears lucidly
from Naidoo J’s judgment and the papers. The need to appoint a
local counsel was the result of the respondent’s attorney’s
conduct which is equally well documented. The taxing master
fully
understood what happened on 11 June 2019. The taxing master deemed
counsel’s day fee (at the reduced rate) to be reasonable.
[27]
In the respondent’s heads of argument reference is made to
allowance of copies which were
not made. To my mind the taxing master
properly addressed these issues. The same applies to the respondent’s
reliance on
the travel time and counsel fees in respect of the
opposed [main] application and postponement application in August
2019. The
facts with regards to these issues speak for themselves.
There is no merit in the respondent’s objection to these items.
[28]
I am satisfied that the taxing master exercised his discretion
judiciously and that the review
should have been dismissed with
costs. No grounds exist justifying the conclusion that the taxing
master was clearly wrong regarding
the items that formed the subject
matter of the review.
[29]
It follows that the appeal must succeed.
[30]
The appellants requested that this Court mark its displeasure with
the respondent’s attorney’s
conduct in the review
proceedings by means of a punitive cost order. The appeal was
necessitated as result of the fact that the
Court of review concluded
that the taxing master was clearly wrong. The appeal must succeed, as
stated, but I am not inclined to
grant a penal order as to costs.
[31]
In the premises I would make the following order:
1.
The appeal succeeds with costs,
including the cost occasioned by the employment of two counsel where
so employed.
2.
The order of the Court a quo is set
aside and replaced with the following order:
“
1.
The review of the taxation in terms of rule 48 of the Uniform Rules
of Court, dated 3 March 2020, is dismissed with costs.”
N
SNELLENBURG AJ
I
concur and it is so ordered
S
CHESIWE J
I
concur
L
OPPERMAN J
Appearances:
On
behalf of the appellants: Advv
F H Terblanche SC with J E Smit
G
Gerdener,
McIntyre
& Van der Post Attorneys,
Bloemfontein
[Instructed
by Werkmans
Attorneys]
On
behalf of the respondent: Adv
C Snyman
FJ
Senekal, FJ Senekal Inc.
Bloemfontein
[1]
Also see
Delfante
and Another v Delta Electrical Industries Ltd and Another
1992
(2) SA 221
(C) at 233B; In re Alluvial Creek Ltd
1929 CPD 532
at
535.
[2]
Cambridge
Plan AG v Cambridge Diet (Pty) Ltd and Others
1990
(2) SA 574
(T) op 589D-G;
Malcolm
Lyons & Munro v Abro and Another
1991
(3) SA 464
(W) op 469D-E.
[3]
Also see
Trollip
v Taxing Mistress, High Court
2018
(6) SA 292
(ECG)
para 13.
[4]
Fn 3 above
.
[5]
Also see
Preller
v Jordaan and another
1957 (3) SA 201
(O) at 203, a Full Court judgment of this Division.
[6]
Fn 5 above.