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[2022] ZALMPPHC 33
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Matsaung v Mathedimosa and Others (1101/2019) [2022] ZALMPPHC 33 (27 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 1101/2019
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED.
In
the matter between:
LESIBA
EZEKIEL MATSAUNG
APPLICANT
And
MERRIAM
NGAOKO MATHEDIMOSA
FIRST
RESPONDENT
MPOKILE
LESETJA SAMUEL MAELE
SECOND
RESPONDENT
KAREL
VENTER
THIRD
RESPONDENT
ANDRE
KOTZE
FOURTH
RESPONDENT
JOSHUA
VAN DER MERWE
FIFTH
RESPONDENT
THE
SEMOMANO COMMUNITY ASSOCIATION
(AND
ALL THE MEMBERS AND/OR AFFILIATES
UNDER
ITS AUTHORITY)
SIXTH
RESPONDENT
VICTORY
MOKUMO
SEVENTH
RESPONDENT
MINISTER
OF POLICE
EIGTH
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant, the second and seventh respondents are dissatisfied
with the rulings made by the Taxing
Master in relation to the
respondents’ bill of costs presented before the Taxing Master
for taxation on 29
th
April 2021. The applicant is seeking
a review of the Taxing Master’s rulings on items 8 to 10, 12
and 13. According to the
applicant these items relates to an
application in terms of Rule 41(1)(c), and that these items were
allowed despite there being
no order for costs.
[2]
The respondents are seeking a review of the Taxing Master’s
rulings on items 2, 3, 5 and 6. According
to the respondent the
Taxing Master erred in disallowing the perusal of the
vouchers/annexures attached to the bill of costs in
support of the
disbursements claimed. The respondent submit that they were obliged
to peruse and consider vouchers as it forms
part of the bill that was
presented for taxation and that was withdrawn on day 10 (ten) after
service thereof. Further that the
second replacement bill was drafted
on a different scale as the first bill that was served, and that the
respondent was obliged
to again peruse the annexures as the
objections (if any) will differ because the scale on which the two
bills were drafted differs
and the rules for allowing and disallowing
items based on that fact differs. Further that if the respondents are
successful with
the review application, it should follow that the
drafting fee and VAT thereon, should also be allowed.
[3]
The Taxing Master in his stated case on the applicant’s review
on items 8 to 10, 12 and 13 has
stated that he could not find any
reasonable grounds to disallow these items. The Taxing Master has
stated that it was his understanding
that every attorney acts on
instructions and that may be obtained either by telephone call or
formal consultation, so he considered
it reasonable because if the
respondent had called for formal consultation it was going to be
expensive than telephone call. The
Taxing Master has further stated
that the Rule 41(1)(c) application was brought and set down for 26
th
January 2021, then the respondent filed her amended withdrawal on
15
th
October 2021 and tendering wasted costs. Further that
the respondent removed her Rule 41 (1) (c) on 12
th
December 2020, and as a result of that, he did not have any reason to
disallow the costs related to Rule 41(1) (c).
[4]
On the respondents’ review application, the Taxing Master in
his stated case on item 2 has stated
that the scale on which the bill
was drafted will not affect the vouchers or amounts on the vouchers,
so there was no need to charge
for re-perusal of all vouchers on full
rate. On item 3 the Taxing Master has conceded that he had erred. On
item 5, the Taxing
Master has stated that these were not abortive
costs, because they did not serve the purpose they were intended for,
otherwise
everyone may claim that they had prepared documents in
their office, and if they were served he could have allowed them.
[5]
It is trite that when a court reviews a taxation, it must be
satisfied that the Taxing Master was clearly
wrong before it will
interfere with the rulings made by him/her. 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 where it is satisfied
that the Taxing Master’s
view of the matter differs so materially from its own that it should
held to vitiate rulings. (See
President
of RSA v Gauteng Lions Rugby Union
[1]
).
[6]
The applicant in its amended notice of withdrawal of taxation dated
15
th
October 2020 withdrawing the notice of taxation and
bill of costs served on the respondents on 17
th
September
2020 had tendered costs of the withdrawal of taxation. The applicant
had earlier served the respondent with a notice
of withdrawal of
taxation without tendering costs for the withdrawal. That led to the
respondent launching an application in terms
of Rule 41 (1) (c) which
was set down for the 26
th
January 2021. The applicant in
curing the defect in his earlier notice of withdrawal, filed an
amended notice of withdrawal in
which he tendered the wasted costs of
the withdrawal of the notice of taxation.
[7]
The applicant when he tendered the wasted costs, he had limited it to
the wasted costs of the withdrawal
of the notice of taxation, and did
not include the costs of the Rule 41 (1) (c) application. There is no
court order sanctioning
the costs of the Rule 41 (1) (c). Anyhow that
application has been rendered moot by the amended notice of
withdrawal. The respondent
had accepted the amended notice of
withdrawal without raising any queries about it. Even though the
applicant was forced by the
Rule 41 (1) (c) application to file an
amended notice of withdrawal, in his notice of withdrawal he had
tendered limited costs
which the respondent had accepted. Therefore,
the respondent cannot include costs which the applicant did not make
a tender for,
and also there is no court order sanctioning that. In
my view the Taxing Master was clearly wrong in allowing costs on
items 8
to 10, 12 and 13 of the respondents’ bill of costs
since they all relate to Rule 41 (1) (c) application, and there is no
court order sanctioning that.
[8]
Turning to the respondents’ review application, on item 3 the
Taxing Master has conceded that
he had erred and I will not take it
any further. Wasted costs are costs occasioned by the postponement or
costs previously incurred
in preparing for trial and also appearing
in court, but rendered useless by reason of postponement. There was
no appearance before
the Taxing Master as the taxation was withdrawn
in advance. The applicant had withdrawn his taxation before the
respondents could
serve and file their list of objections. It can
therefore not be said with certainty that when the applicant served
his notice
of withdrawal of taxation the respondents list of
objections was ready to be served. The court will not function on
speculations.
On item 2 the respondents are charging perusal of the
6
th
March 2019 which the Taxing Master found that there
was no need to charge for re-perusal of all the vouchers at a full
rate. I
don’t find any reason to fault the Taxing Master on
that approach. He was satisfied that the respondents had prior
knowledge
of those vouchers which they have previously perused, and
they were merely refreshing their memories.
[9]
Taking into consideration the facts of this case and the submission
by all the parties involved
in this matter, I am satisfied with
regard to the applicant’s review application, the Taxing Master
was clearly wrong on
his rulings and they stand to be reviewed and
set aside. In relation to the respondents’ review application,
I am satisfied
that the Taxing Master was clearly wrong on item 3
which he had conceded. On items 2 and 5 I find that the Taxing Master
had exercised
his discretion correctly, and I don’t find any
reasons to interfere with his rulings on these items.
[10]
In the result I make the following order:
10.1 The applicant’s
review application is upheld on all the items he had brought in his
review application, whilst that of
the respondent is partially upheld
only on item 3.
10.2 The Taxing Master’s
allocation is set aside on items 3, 8 to 10, 12 and 13.
10.3 The matter is
referred back to the same Taxing Master to finalise the taxation
taking into consideration the rulings that I
have set aside.
10.4 No order as to
costs.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
For
the applicant
:
Malose Matsaung Attorneys
For
the respondents
:
Bosman Attorneys
Electronically
circulated on
:
27
th
June 2022
[1]
2002 (2) SA 64
(CC) at 73C-D