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[2022] ZAKZPHC 78
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Findlater t/a Findlater Attorneys v M B Morton Estates (Pty) Ltd (6994/2022P) [2022] ZAKZPHC 78 (29 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: 6994/2022P
In
the matter between:
AMY
CLAIR KATE FINDLATER t/a FINDLATER ATTORNEYS
APPLICANT
and
M
B MORTON ESTATES (PTY) LTD
RESPONDENT
(Registration
No: 1974/001038/07)
ORDER
Delivered
on: 29 November 2022
The
following order shall issue:
1.
The review is upheld in respect of the following items:
(a)
WhatsApp messages;
(b)
Travelling costs relating to item 67 in case number 7410/2019P and
item 203 in case number 8527/2016P;
and
(c)
Correspondent’s account.
2.
The taxing master (Pietermaritzburg) is directed to reconsider the
above items
in light of the findings and principles set out herein as
well as any other information that the parties may wish to place
before
her.
3.
The review fails in respect of the following items:
(a)
Value Added Tax (VAT);
(b)
Attendance at court;
(c)
Sheriff’s fees;
(d)
Pound master’s fees and
(e)
The balance of the travelling costs under case numbers 7410/2019P and
8527/2016P.
4.
There shall be no order as to costs.
REVIEW
OF TAXATION
Seegobin
J:
Introduction
[1]
This is a review of two bills of cost that were taxed on the scale as
between attorney
and own client. The applicant is Amy Clair Kate
Findlater t/a Findlater Attorneys. The respondent is MB Morton
Estates (Pty) Ltd
which at all times material hereto was a client of
the applicant.
[2]
The bills of cost were taxed by the taxing master of the
KwaZulu-Natal Division of
the High Court, Pietermaritzburg on 23 May
2022. On 1 June 2022, the applicant, aggrieved at the taxing master’s
decision,
invoked the provisions of Uniform rule 48(1) by noting a
review of the taxation. In response thereto the taxing master filed
her
stated case on 20 July 2022.
[3]
The taxed bills of cost concern two matters under case numbers
7410/2019P and 8527/2016P
dealt with by the applicant on behalf of
her client. The disputes surrounding the bill under case number
7410/2019 relate to (a)
WhatsApp messages, (b) applicant’s
travel claim, and (c) value added tax (VAT). Under case number
8527/2016P the disputes
concern (a) WhatsApp messages, (b)
applicant’s travel claim, (c) sheriff’s fees, (d)
applicant’s correspondent’s
costs under item 138, (e) the
pound master’s invoice under item 333, and (f) VAT.
Legal
principle governing the taxation of attorney and own client costs
[4]
The applicant contends that the bills were drawn in accordance with a
written mandate
signed by her client. The taxing master on the other
hand has averred that no such mandate was presented to her when the
taxations
were being finalized. The applicant states that she is
unsure why the written mandate was not presented to the taxing
master, despite
her engaging the services of a cost consultant to
assist in the taxation process.
[5]
It is apposite at this juncture to set out the legal principles that
govern the taxation
of attorney and own client bills.
Ben McDonald
Inc and another v Rudolph
and another
set out the
following principles:
‘
Attorney
and own client costs, whether in the sense of 2.1 above or where they
are to be paid by the losing party to the successful
party, means all
costs incurred except where unreasonable. Agreed items or
amounts are presumed to be reasonable. . . This
presumption of
reasonableness cannot be irrebuttable as this would open the door to
clients agreeing to exorbitant fees with attorneys
or counsel in
the knowledge that the opponent will foot the bill. . .It follows
that even when faced with a written agreement between
attorney and
client as to the work to be done or the fees to be charged therefor
the Taxing Master is still empowered to enquire
into the
reasonableness of such agreement.
The
principles set out above have to be applied to the facts of this
review. I emphasise that there is no evidence or suggestion
of
improper conduct on the part of the attorney concerned.
The
Taxing Master was obliged to have regard to the terms of the mandate
but was entitled to determine whether it exceeded the bounds
of
reasonableness. This she did. I cannot fault her conclusion
.’
[1]
[6]
In
Malcolm Lyons & Munro v Abro and another
the following
was stated:
‘
All
in all, therefore, the Taxing Master in my opinion rightly did not
regard the client nor, of course, himself, to be bound by
an
agreement to the effect that the attorneys would be entitled to
payment at the rate of R220 per hour for all the work they did
in
connection with the action, necessary or unnecessary, prudent or
prodigal. Although it is true that a bill of costs as
between an
attorney and his own client is taxed on a basis different from that
on which a party and party bill is taxed - or even
different from
that upon which an attorney and client bill is taxed when it is to be
paid by the opposing litigant, the Taxing
Master was empowered - and
indeed in duty bound - to satisfy himself that the fees claimed
related to work specifically authorised
by the client and that the
fees charged were reasonable
.’
[2]
[7]
The principles were also recently confirmed by the Supreme Court of
Appeal in
R H Christie Incorporated v Taxing Master –
Supreme Court of Appeal
:
‘
In
relation to an attorney and own client bill the law is settled. As
far as expenses are concerned, that which has been specifically
agreed, expressly and impliedly, may be recovered. That too, is
qualified. A taxing master has a discretion to disallow
certain expenses
where an attorney has overreached his client or
has been negligent or mala fide. Overreaching means, in the
context of an
attorney and client relationship, inter alia, the
extraction of a fee that is unconscionable or excessive. As
stated in
Aircraft
Completions Centre (Pty) Ltd v Rossouw and Others
, our
legal system does not allow a taxing master to draw, tax and
allow a bill of costs that will impose an unjust liability on
a
costs debtor. It is against the principles referred to in this
and the preceding paragraphs that the present review must
be
adjudicated.’
[3]
(Footnotes omitted.)
[8]
In
Cambridge
Plan AG v Cambridge Diet (Pty) Ltd and others
[4]
it
was held that the mandate signed between the attorney and the client
plays a primary role:
‘
Thus
the Taxing Master, in the proper exercise of a discretion to
establish what is reasonable, may feel that fees in certain
cases should be allowed as structured in the tariff (say Rx per folio
for drafting), or that the expert's time is not as valuable
in
perusing as it would be in consulting and taking witnesses'
statements. All these would in my opinion be valid methods
of
ascertaining what is reasonable, without detracting from the avowed
purpose of the costs order. Moreover, the Taxing Master
would then
not be merely a rubber stamp on the agreement between the attorney
and the client and the principle of fairness
and equity in
taxation would not be cast overboard. The prime indicator must,
however, be the agreement and not the tariff
.’
[9]
However, in
Coetzee
v Taxing Master, South Gauteng High Court and another
[5]
it was stated that the tariff is still to be used as a guide in the
taxation of attorney and own client bills.
[10]
Accordingly, in my view, irrespective of whether a written mandate
was presented or not, the
taxing master was empowered and indeed duty
bound to satisfy herself that the fees claimed were reasonable in the
circumstances.
Principles
applicable to the review of taxations
[11]
A taxing master is required to exercise his or her discretion when
taxing a bill. The circumstances
under which a court will interfere
with the discretion of the taxing master have been stated as follows
in
City
of Cape Town v Arun Property Development (Pty) Ltd and
another
:
‘
The
taxing master has discretion to allow, reduce or reject items in a
bill of costs. She must exercise this discretion judicially
in the
sense that she must act reasonably, justly and on the basis of sound
principles with due regard to all the circumstances
of the case.
Where the discretion is not so exercised, her decision will be
subject to review. In addition, even where she has
exercised her
discretion properly, a court on review will be entitled to
interfere where her decision is based on a misinterpretation
of the
law or on a misconception as to the facts and circumstances, or as to
the practice of the court .
.
.
In the
Price
Waterhouse
case
(at para 25) the court considered the fact that the taxing master had
used the fee charged by the defendant's leading
senior counsel as the
yardstick by which to determine the fee allowable in respect of the
plaintiff's senior counsel as “enough
reason for
interference”
.’
[6]
[12]
In
Preller
v Jordaan and another
[7]
the court stated as follows:
‘
It
is clear that a discretion is given to the Taxing Master to award
such costs etc., “. . . as appear to him to have been
necessary
and proper . . .” and that the discretion also applies to the
limitations contained in the proviso to the effect
that no costs
shall be awarded “which appear to the Taxing Master” to
have been incurred through overcaution,
etc. 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
.’
[13]
Accordingly, a court will only interfere with a taxing master’s
decision if it was ‘
mala
fide; or from ulterior purpose or improper motives; or has not
applied his mind to the matter or exercised his discretion at
all; or
if he disregarded regulatory prescripts’.
[8]
A court must be satisfied that the taxing master’s decision was
‘clearly wrong’.
[9]
Further
information provided by the applicant
[14]
As mentioned already, the applicant was represented by a cost
consultant at the taxation. The
applicant’s submissions to the
taxing master’s stated case in some instances contains
information and/or submissions
which appear not to have been
presented at the taxation.
[15]
In this regard it has been held that ‘[i]f no effort is made to
do so or if when an item
is challenged a party fails to make
available the information at his disposal to support his contention,
he cannot blame a taxing
officer who disallows the item’.
[10]
[16]
Whether such information is then to be allowed at the review is up to
the judge. See in this
regard
Van der Westhuizen v Gibbon and
another
:
‘
For
the purposes of this matter I will assume, without deciding the
question, that it is permissible for the reviewing Judge or
Court,
acting by virtue of the powers conferred by Rule 48, to hear further
evidence on the merits of an item in issue. No authority
is to be
found, however, for the view that a party who has failed to lay any
evidence or facts before a Taxing Master to support
an item to which
objection has been taken can as of right lay further evidence before
the reviewing Judge or Court. That the reviewing
Judge or Court has a
discretion as to whether further evidence will be allowed appears to
have been the view of GALGUT J - as he
then was - in
City
Deep Ltd v Johannesburg City Council (supra
at 120) where
the learned Judge states that
"...
if the item is still disputed on review by the opponent or the taxing
officer then the applicant cannot expect that the reviewing
Court will, in the absence of any amendment or rectification, go out
of its way to allow facts to be placed before it which could
and
should have been placed before the taxing officer. There must be an
end to all litigation including taxation. I have not overlooked
Rule
48 (2), which provides that a party can 'submit contentions in
writing... including grounds of objection not advanced at the
taxation'. This does not absolve a party from his duty to draw a bill
of costs properly and correctly; nor does it absolve him
from
his duty to satisfy the Taxing Master that the work was done and
was necessary. Hence, if he fails to do what is required
of him,
then, despite the above Rule, he must not expect the reviewing Court
to be too solicitous on his behalf. Each case will
depend on its own
facts. The reviewing Court in the exercise of its discretion will
have regard to all the factors. It will not
lightly reverse a taxing
officer's ruling on an objection raised for the first time on
review."’
[11]
[17]
The fairness in the introduction of further information which was not
provided at taxation has
also been raised by the respondent, who
described it as a ‘proverbial second bite at the cherry’.
It will thus need
to be determined in each instance whether or not
such further evidence is to be allowed in the determination of the
review.
Disallowance
of some WhatsApp messages
[18]
The taxing master disallowed various WhatsApp messages. The
respondent provided some further
insight into what had happened at
the taxation with regard to the WhatsApp messages, and it appears
that the primary reason why
the WhatsApp messages were taxed off
relate to the fact that they were less than 250 words.
[19]
The prescribed tariff set out in item B3 of rule 70 only refers to
‘letters, facsimiles
and electronic mail’. WhatsApp
messages have been stated to be a ‘form of communication by
text message’.
[12]
It has been suggested that ‘it would be appropriate to include
correspondence sent by electronic media, such as electronic
mail and
SMS’ under the tariff for correspondence.
[13]
There accordingly appears to be no reason why in principle a WhatsApp
message should not be treated similarly to any other form
of
correspondence.
[20]
Correspondence is charged on a per page basis – this is in
terms of the mandate and the
prescribed tariff. The mandate does not
define what a page means, but rule 70(9) defines a page as consisting
of at least 250 words.
[21]
The practical effect of the definition for a page was discussed in
Ndzamela v Eastern Cape Development Corporation Ltd and
another
as follows:
‘
[19]
The contents of Rule 70(9) are clear and peremptory and are thus not
merely a guide but have been worded in this manner to
prevent abuse.
[20]
The question then arises what is to be done by Taxing Masters under
the circumstances where there are less than 250 words on
a
page.
[21]
According to the practice in the Transvaal Provincial Division a page
is taken as 250 words in compliance with Rule
70(9). In
practice the Taxing Master counts the number of words on a few
pages selected at random, say four pages, to determine
how many
words there are on average on a page and having arrived at an average
then multiplies the average figure with the number
of pages and then
divides the sum total with 250 resulting in the number of 'pages'
there are for taxing purposes. Practice has
proven that the end
result may be a percentage point or two out but nobody
apparently is interested in or upset by the said
few percentage
points. Computer technology nowadays has in any case resolved the
problem as the number of words in a particular
document produced by
the computer are automatically counted and the result can be printed
at the foot of the document if so desired.
It also seems to be the
practice in the Transvaal Division that the Taxing Master
requires the attorneys or costs consultants
involved in a taxing
matter before him to in advance determine amongst themselves the
number of pages thus releasing the Taxing
Master from the duty to
count the words.
[22]
The practical approach adopted by the Taxing Masters in the Transvaal
Provincial Division adequately deals with the matter
and results in a
logical and pragmatic resolution . . .’
[14]
[22]
In
Cary
v Cary Cape
[15]
it was held that the taxing master was correct in allowing
correspondence which contained less than 250 words:
‘
The
tariff does not provide for part of a page. This leads to an
anomaly. What happens when a letter is sent or received
which
is less than 250 words? Is the plaintiff denied the costs of
either drafting or perusing such a letter? Surely
it could not
have been the intention of the legislature. The general rule is
that a party who has been awarded costs, is
afforded a full indemnity
for all costs reasonably incurred in the pursuit of justice.
The taxing master has a discretion
to depart from any provisions of
the tariff in extraordinary or exceptional cases, where strict
adherence to such provisions would
result in an inequitable
disposition. This is a case in point. In my opinion the
taxing master correctly exercised
her discretion in allowing an item
which comprised less than 250 words, as a page
.’
[23]
It needs to be determined whether or not the taxing master exercised
her discretion incorrectly
in disallowing the relevant WhatsApp
messages, taking into account that attorney and own client costs
‘means all costs incurred
except where unreasonable’.
[16]
[24]
It is difficult to determine whether the taxing master was correct,
as the taxing master does
not explain why these specific items were
taxed off by her, save to state that she determined what was
reasonable. The brevity
of the stated case can often cause problems
on review. The functions of the stated case were set out in
Brener NO
v Sonnenberg, Murphy, Leo Burnett (Pty) Ltd (formerly D'Arcy Masins
Benton & Bowless SA (Pty) (Ltd)
:
‘
As
was pointed out by Schutz J in
Nedperm
Bank Ltd v Desbie (Pty) Ltd
1995
(2) SA 711
(W) at 713A-C, when the Taxing Master initially
states a case in terms of Rule 48, he is not required to “write
an essay”.
All he must do is, as required by the Rule, to “set
out each item or part of an item together with the grounds
of objection
advanced at the taxation and . . . any finding of
facts by the Taxing Master”. After that the parties are to
deliver to him
their contentions in writing. It is only at that stage
that the Taxing Master is called upon to prepare a “report”.
It is his “report”, to be made in the light of the
parties' written contentions, which is “the occasion to give
his reasons in full”. After that the parties have the last word
in further contentions dealing with the Taxing Master's report.
Despite
the fact that Rule 48 makes provision for these exchanges after the
Taxing Master has stated a case, it is important to
bear in mind that
the stated case remains the foundation of the parties' initial
contentions, of the Taxing Master's report and
of the parties'
further contentions that are to follow in terms of the Rule. The
stated case, if not initially prepared with
due care, is likely to
create problems that complicate, or even frustrate, the steps in the
review proceeding that have still to
follow. The importance of proper
compliance with the requirement that the stated case “shall
embody any finding of facts
by the Taxing Master” was
emphasised in
Cordingley
NO v BP Southern Africa (Pty) Ltd
1971
(3) SA 118
(O) at 122B-C
.’
[17]
[25]
In the absence of an explanation by the taxing master, and the fact
that in
Cary
correspondence which comprised less than 250
words was allowed or that
Ndzamela
called for a few pages to
be counted and then averaged, it seems logical to conclude that the
taxing master was incorrect in her
approach to the WhatsApp messages.
In my view, all of these items should not have been taxed off.
Travelling
costs
[26]
The taxing master disallowed some fees which were charged by the
applicant for travelling to
Pietermaritzburg from Howick (the
applicant is based in Howick).
[27]
Item A11 of rule 70 allows an attorney to claim for such amounts:
‘
The
rates of remuneration in items 1 to 9 do not include time spent
travelling or waiting and the taxing officer may, in respect
of time
necessarily so spent, allow such additional remuneration as he or she
in his or her discretion considers fair and reasonable,
but not
exceeding R357,00 per quarter of an hour or part thereof in the case
of an attorney and R111,00 per quarter of an hour
or part thereof in
the case of a candidate attorney plus a reasonable amount for
necessary conveyance
.’
[28]
The mandate also provided for travelling fees and expenses. The
taxing master is however still
required to determine whether or not
the fees were reasonable.
[29]
The taxing master was of the opinion that the fees and expenses were
unnecessary as a local correspondent
could have been used to reduce
the expenses, and accordingly allowed half of the fees and expenses
claimed. Items 54, 134, 153
and 193 (for case number 7410/2019P) and
items 4, 38, 116, 183, 188, 283, and 324 (for case number 8527/2016P)
all relate to travelling
from Howick to Pietermaritzburg for purely
administrative duties such as filing of documents at court and
delivering documents
to counsel. In this regard, the taxing master
was correct as a correspondent attorney could have attended to these
functions, and
it seems unreasonable to charge a client for doing
this. Item 67 (for case number 7410/2019P) and item 203 (for case
number 8527/2016P)
are for travelling fees to attend a consultation
at counsel’s chambers with her client. It is not known why the
taxing master
halved the travelling fees, taking into account that
such a consultation is reasonable. In my view, item 67 in case number
7410/2019P
and item 203 in case number 8527/2016P, ought to have been
allowed.
VAT
[30]
Item 3A of rule 70 allows for VAT to be charged:
‘
(3A)
Value
added tax may be added to all costs, fees, disbursements and tariffs
in respect of which value added tax is chargeable
.’
[31]
The issue of whether or not VAT can be claimed was dealt with in
Price
Waterhouse Meyernel v Thoroughbred Breeders’ Association of
South Africa.
[18]
The court set out the procedure for determining whether VAT can be
claimed as follows:
‘
When
the answer to that enquiry has been established it is then that the
question arises whether such VAT may be included in
the bill.
Certainly, that offers a choice but only a choice for the party whose
bill it is. Once that party decides to include
the VAT, the Taxing
Master has to decide whether such inclusion is proper. That is not a
matter of discretion. A costs order -
it is trite to say - is
intended to indemnify the winner (subject to the limitations of the
party and party costs scale) to
the extent that it is out of
pocket as a result of pursuing the litigation to a successful
conclusion. It follows that what the
winner has to show - and the
Taxing Master has to be satisfied about - is that the items in the
bill are costs in the true sense,
that is to say, expenses which
actually leave the winner out of pocket. The subrule is consequently
an empowering provision.
It enables the party concerned to claim
reimbursement of the items referred to but obliges the Taxing Master
to allow or disallow
them depending on whether they are expenses of
the nature I have described
.’
[19]
[32]
It then held that a plaintiff who is entitled to claim input VAT,
will not necessarily be out
of pocket:
‘
Consequently,
if plaintiff is entitled to claim from the Revenue, as an input tax,
the VAT which it is required to pay to its attorney,
it does not, in
respect of such input tax, incur an out of pocket expense
.’
[20]
[33]
Thus, the taxing master is required to determine whether or not the
VAT is in fact an expense.
The taxing master states that the cost
consultant confirmed that the applicant was registered for VAT, and
could not prove that
the applicant would be out of pocket.
[34]
The taxing master conducted an enquiry into whether or not the
applicant will be out of pocket,
in line with what was required in
Price Waterhouse.
In my view, the taxing master’s
approach in this regard cannot be criticised and must prevail.
Attendance
at court
[35]
Although stated in respect of party and party costs, it has been held
that
‘
Fees
for attendance in court at a trial are usually allowed only for one
set of attorneys acting for a party, that is either for
the attorney
at the place where the litigant resides (or carries on business) or
for the attorney practising at the seat of the
court
.’
[21]
[36]
In determining whether the fees were reasonable, the taxing master
held that the local correspondent
had already attended court, and it
was not reasonable to allow the applicant to also charge an
attendance fee. Based on the information
before the taxing master, it
cannot be said that the taxing master committed an error.
[37]
However, the applicant in its submissions provided further evidence
on why it was necessary to
incur these costs – evidence which
was not provided at taxation. In my view, this information should
have served before the
taxing master from the outset and as such
should not be allowed now on review.
[22]
Sheriff’s
fees
[38]
As the sheriff’s fee is an expense,
‘[a]
taxing master has a discretion to disallow certain expenses
where an attorney has overreached his client or has
been negligent or
mala fide’.
[23]
[39]
If the attorney was at fault for having to have the warrant of
execution reissued, then the client
cannot be expected to have to pay
for such negligence. In terms of the taxing master’s stated
case, no submissions were made
by the cost consultant who appeared on
behalf of the applicant as to why the warrant was reissued.
Accordingly, there appears to
be no reason for interfering with the
taxing master’s decision.
[40]
However, the applicant again in its submissions provided the
necessary information as to why
the warrant was reissued –
which should have been done at the taxation. In my view, such
information
should not be allowed
now on review
and the taxing master’s decision in this regard stands.
Applicant’s
correspondent’s account
[41]
Rule 70(8) allows for the two sets of attorneys to be remunerated
under certain circumstances:
‘
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
.’
As
this is also a taxation on the scale of attorney and own client, such
expenses as ‘which has been specifically agreed,
expressly and
impliedly, may be recovered’.
[24]
[42]
The taxing master is required to ensure that there is no duplication
of costs when there are
two sets of attorneys:
‘
As
I read Rule 70 (8) it is the function of the Taxing Master, not the
Court, to decide whether more than one attorney has been
necessarily
engaged in the performance of any particular service. That relates to
services or work, and in deciding whether Deneys
Reitz was
necessarily engaged to perform any or all of the services
reflected in the second bill of costs the Taxing Master
may have
regard to the practice for which Mr.
Schreiner
contends.
If he does so I think that he should also bear in mind that even if
such practice is of general application it is
not inflexible, and
that the apparent reason for it is to avoid unnecessary duplication
of costs. (See
Trethewey
v Reinhold, supra
at
p. 9;
Silber
v Silber
,
1964
(3) SA 473
(T) at p. 476). In exercising his discretion on this
question the Taxing Master should consider whether there has been
any
unnecessary duplication of costs and take into account all relevant
facts and circumstances, including the facts that costs
were awarded
on the attorney and client scale and Johannesburg counsel and experts
were employed
.’
[25]
[43]
The taxing master’s reason for taxing off the correspondent’s
account was that no
bill of costs was presented in respect of the
correspondent’s account.
[44]
The author of
Law of Costs
states that
‘
It has
been held that where more than one attorney is necessarily
engaged, each such attorney may draw up and have taxed
a bill of
costs and may charge, in addition to the fees allowed or included in
such bill, a fee for drawing up the bill and a fee
for having it
taxed, based on the percentages (or the minimum) referred to. It may
well be that in many cases the town attorney
will actually draw both
bills and may also attend on the taxation of both but in each case,
apparently, a separate fee will be
allowable.’
[26]
(Footnote omitted.)
[45]
It was also stated in
Upfold v
Maingard and another
[27]
that both firms of attorneys are entitled to draw up a bill of costs.
[46]
It has however been held that it is not always necessary for the
correspondent attorney to draw
up a bill of costs, and that it may be
sufficient to merely attach the attorney’s account. See
Groenewald v Selford Motors (Edms) Bpk
:
‘
As
to the first, while the Port Elizabeth attorney was entitled to
submit his own bill of costs (see
Upfold's
case,
supra
,
p. 565A), it does not follow that he was bound to do so. He submitted
a fully specified account to the Bloemfontein attorneys
and it
appears to be as detailed as any formal bill of costs might be
.’
[28]
[47]
What is required is that a detailed account be submitted. It is
however not apparent from the
documents or any of the parties’
submissions whether or not the account was detailed enough to fall
within the ambit of what
was stated in
Groenewald
. In the
circumstances, I direct that the correspondent’s bill be placed
before the taxing master to allow her to consider
whether the fees
claimed were necessarily incurred and reasonable in the
circumstances. This will also allow her to ensure that
there are no
duplications in both bills.
Pound
master’s fees
[48]
The inclusion of an expense in a bill of costs does not automatically
mean that it is reasonable,
and that it should be allowed at
taxation. Some expenses are indeed taxed off by a taxing master when
it was deemed not to be reasonable.
See for instance in
R H
Christie Incorporated
where the costs of flying to Bloemfontein
for the filing of documents was disallowed.
[49]
Expenses can be disallowed where ‘
an
attorney has overreached his client or has been negligent or
mala fide’.
[29]
[50]
A taxing master is entitled to demand proof that the services for
which payment is being demanded
have in fact been rendered. See
Maasdorp and Smit v Sullivan
:
‘
In
my opinion the Assistant Taxing Master has not taken a right view of
the matter. While it is true that he is not concerned with
the
question of any possible defences that could be brought against a
claim for payment of a bill of costs - see, for example,
Lubbe
v Borman
,
1938 CPD 211
- his duty is 'to demand proof to his satisfaction that
the services for which payment is demanded have actually
been rendered'
- see
Gluckman
v Winter and Another
,
1931 AD 449
at p. 450
.’
[30]
[51]
With regard to the principles in allowing expenses,
Cambridge
Plan AG v Cambridge Diet (Pty) Ltd and others
[31]
stated
as follows:
‘
As
far as
expenses
are
concerned, that which has specifically been authorised (expressly or
impliedly) may be recovered. This may have to be
qualified in that
the Court may exercise an inherent power to control the activities of
officers of the Court and reverse an agreement
or authorisation, or
the Taxing Master may exercise a discretion to disallow certain
expenses, where the attorney has overreached
his client or has been
clearly negligent or
mala
fide
.
(See
Jacobs
and Ehlers (op cit
para
38(vi) at 52 - 3) and authorities cited there.) As far as other
expenses are concerned, those which are
necessary
should
be recoverable However, necessity in the strict sense of the word is
not the only test. It often happens that an item
is established to
have been unnecessary only after a certain line of action has been
concluded. Consequently, expenses should be allowed,
where there
is no limitation in the mandate, which the attorney
bona
fide
and
reasonably considered necessary in managing his client's affairs. An
objective test for the same thing would be to inquire
whether the
work can be considered normal or usual in the case of an attorney of
reasonable competence in the same position
.’
[52]
The taxing master stated that no proof was provided that this amount
was in fact paid by the
applicant or that the applicant was out of
pocket. Further issues were raised by the taxing master regarding the
fact that the
account was a pro forma account and not addressed to
the applicant, but in fact to the sheriff which was also not included
in a
sheriff’s return of service. It does not appear as if
there was any error committed by the taxing master which entitles the
court to interfere in the decision. In the result, the taxing
master’s decision stands.
Order
[53]
In the result, the following order shall issue:
1.
The review is upheld in respect of the following items:
(a)
WhatsApp messages;
(b)
Travelling costs relating to item 67 in case number 7410/2019P and
item 203 in case number 8527/2016P;
and
(c)
Correspondent’s account.
2.
The taxing master (Pietermaritzburg) is directed to reconsider the
above items
in light of the findings and principles set out herein as
well as any other information that the parties may wish to place
before
her.
3.
The review fails in respect of the following items:
(a)
Value Added Tax (VAT);
(b)
Attendance at court;
(c)
Sheriff’s fees;
(d)
Pound master’s fees; and
(e)
The balance of the travelling costs under case numbers 7410/2019P and
8527/2016P.
4.
There shall be no order as to costs.
Seegobin
J
Applicant’s
Attorneys: FINDLATER
ATTORNEY
18 Park Road
Howick
Pietermaritzburg
Respondent’s
Attorneys: WHA
COMPTON ATTORNEYS
527 Town Bush Road
Montrose
Pietermaritzburg
[1]
Ben
McDonald Inc and another v Rudolph and another
1997 (4) SA 252
(T) at 258A-I.
[2]
Malcolm
Lyons & Munro v Abro and another
1991 (3) SA 464
(W) a
t
469C-E.
[3]
R
H Christie Incorporated v Taxing Master – Supreme Court of
Appeal
[2021] ZASCA 152
para 56.
[4]
Cambridge
Plan AG v Cambridge Diet (Pty) Ltd and others
1990 (2) SA 574 (T) at
602G-I.
[5]
Coetzee
v Taxing Master, South Gauteng High Court and another
2013 (1) SA 74
(GSJ) para 25.3.
[6]
City
of Cape Town v Arun Property Development (Pty) Ltd and
another
2009 (5) SA 227
(C) para 17.
[7]
Preller
v Jordaan and another
1957
(3) SA 201
(O) at 203B-D.
[8]
R
H Christie Incorporated
v
Taxing Master – Supreme Court of Appeal
[2021] ZASCA 152
para 55.
[9]
Ibid.
[10]
City Deep Ltd
v Johannesburg City Council
1973 (2) SA 109
(W) at 119H.
[11]
Van
der Westhuizen v Gibbon and another
1983 (1) SA 95
(O) at 99H-100C.
[12]
Johnstone
v Shebab
2022 (1) SACR 250
(GJ) fn 1.
[13]
R
Francis-Subbiah
Taxation
of Legal Costs in South Africa
(2013)
at
291.
[14]
Ndzamela v
Eastern Cape Development Corporation Ltd and another
2004 (6) SA 378
(TkH) paras 19-22.
[15]
Cary
v Cary Cape
2001 JDR 0864 (C) at 22.
[16]
Ben
McDonald Inc and another v Rudolph and another
1997 (4) SA 252
(T) at 258B
.
[17]
Brener NO
v Sonnenberg, Murphy, Leo Burnett (Pty) Ltd (formerly D'Arcy Masins
Benton & Bowless SA (Pty) (Ltd)
1999 (4) SA 503
(W) at 508B-F.
[18]
Price
Waterhouse Meyernel v Thoroughbred Breeders’ Association of
South Africa
2003 (3) SA 54 (SCA).
[19]
Ibid
para 18.
[20]
Ibid
para 21.
[21]
DE
van Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
(RS 9, 2019) at D1-789.
[22]
City Deep Ltd
v Johannesburg City Council
1973 (2) SA 109
(W) and
Van
der Westhuizen v Gibbon and another
1983 (1) SA 95 (O).
[23]
R
H Christie Incorporated
v
Taxing Master – Supreme Court of Appeal
[2021] ZASCA 152
para
56.
[24]
Ibid.
[25]
Hills and
others v Taxing Master and another
1975 (1) SA 856
(D) at 865A-B.
[26]
AC
Cilliers
Law
of Costs
(October 2022 - SI 46) para 13.17.
[27]
Upfold v
Maingard and another
1960 (1) SA 561 (N).
[28]
Groenewald
v Selford Motors (Edms) Bpk
1971 (3) SA 677
(C) at 682H-683A.
[29]
R
H Christie Incorporated
v
Taxing Master – Supreme Court of Appeal
[2021]
ZASCA 152
para
56.
[30]
Maasdorp
and Smit v Sullivan
1964 (4) SA 2
(E) at 2H-3A.
[31]
Cambridge
Plan AG v Cambridge Diet (Pty) Ltd and others
1990 (2) SA 574 (T) at
600A-E.