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[2021] ZALMPPHC 58
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Matsaung v Mathedimosa and Others (1101/2019) [2021] ZALMPPHC 58 (30 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1101/2019
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In
the matter between:
LESIBA
EZEKIEL MATSAUNG
APPLICANT
AND
MERRIAM
NGOAKO MATHEDIMOSA
AND
30 OTHERS
RESPONDENTS
REVIEW
JUDGMENT – TAXATION
KGANYAGO
J
[1]
The 2
nd
, 7
th
, 9
th
, 10
th
,
11
th
, 12
th
, 13
th
, 14
th
,
15
th
, 16
th
, 18
th
, 19
th
,
21
st
, 22
nd
, 23
rd
, 24
th
,
25
th
, 26
th
, 27
th
, 28
th
,
and 29
th
respondents (respondents) are dissatisfied with
the rulings of the Taxing Master relating to the items taxed off on
their bill
of costs. The respondents are seeking a review of the
Taxing Master’s rulings on items 3, 4 and 6. The respondents
have made
their submissions to the Taxing Master’s rulings in
terms of Rule 48(1) of the Uniform Rules of Court (“the
Rules”).
The Taxing Master has made her stated case in terms of
Rule 48(5)(a) and the applicant has also made his submissions in
terms of
Rule 48. Thereafter the Taxing Master replied in terms of
Rule 48 (5) (b).
[2]
The respondents’ bill of costs was as result of the wasted
costs awarded to them on party and party scale on 12
th
February 2020. The bill was presented before the Taxing Master for
taxation on 16
th
September 2020. The applicant opposed the
respondents’ bill.
[3]
On item 3, the respondents have stated that a day fee charged for
preparation was as per court order, and that to their
understanding
the Judge allowed a day fee for preparation because of the Judge’s
knowledge of the voluminous papers involved
which was 325 pages for
intervening application, and 530 pages for contempt application. That
Mr Bosman appearing as counsel for
the respondents, has charged a day
fee for preparation in the amount of R26 000.00. It is the
respondents’ contention
that if Mr Bosman was to claim for the
actual time spent for perusal and preparation, he will be entitled to
claim for 42 hours
for preparation which would be in excess of a day
fee. The respondents submit that the Taxing Master erred in
disallowing a day
fee for preparation and only allowing for 5 hours’
preparation at R2 500.00 per hour, and that resulted in her
taxing
off R13 500.00.
[4]
On item 4, the respondents have stated that it relates to a day fee
claimed for preparation by the attorney. The respondents
have
submitted that the Taxing Master has erred and acted on a wrong
principle in disallowing the 8 hours’ preparation for
Ms A
Pretorius (attorney), which was claimed in terms of Rule 70 and
strictly according to the tariff. That the opposed contempt
application together with the intervening application consisted of
855 pages and that as per their understanding of the court order,
the
respondents fixed their preparation fee to 8 hours/day fee and not
according to the actual time spent preparing.
[5]
On item 6, the respondents have stated that it relates to attorneys
fee for time spent in court and charged in terms of
Rule 70 and
according to the tariff. It is the respondents’ contention that
the Taxing Master has refused to consider their
case law on that
issue when they referred the Taxing Master to the case of
Maseka v
Law Society of Northern Provinces (443/06)
[2010] ZANWHC 13
(1
January 2010
) where it was held that an attorney who was
appointed as counsel and who is from the same firm, was not an
inflation of fees and
that the fact that they are from the same firm
does not change anything. The respondents submitted that the
appearing attorney
appeared in court as counsel and is therefore
entitled under Rule 69 to be remunerated at the same rate as counsel,
and that he
was entitled, like counsel, to also have an attorney
present in court to assist and instruct him during the proceedings,
even if
the attorney is from the same firm.
[6]
According to the respondents, Mr Bosman and Ms Pretorius from Bosman
Attorneys are representing 21 of the 31 respondents,
but according to
the Taxing Master, Mr Bosman in terms of Rule 70 is not allowed to
have an attorney present in court to assist
him during the
proceedings, whereas the applicant has appointed more one counsel to
represent him. The respondents submit that
the Taxing Master is
clearly acting on a wrong principle and clearly has not applied her
mind when she refused to listen to any
case law presented in support
of any argument.
[7]
The Taxing Master in her stated case on item 3 has submitted that
there is a common rule that preparation form part of
day fee,
especially on applications/motions as facts are argued on papers.
That the court order that awarded the respondents wasted
costs, has
allowed for preparation aside of the day fee of the attorneys. The
Taxing Master submit that according to the respondents’
understanding, the court order was allowing preparation on day fee,
which was not correct as he had to check how many documents
were
perused in order to get the hours spend on preparation. The Taxing
Master further submitted that she was surprised by the
respondents in
that in the review application they have stated the number of papers
perused, but during taxation Ms Pretorius was
not able to tell how
many documents were perused and for how long, as Ms Pretorius
argument was that the attorney must have a day
fee for preparation.
That resulted in the Taxing Master’s discretion of allocating 5
hours at R2 500.00 per hour as
reasonable looking at the papers
filed in the court file.
[8]
On item 4 the Taxing Master has stated that she disallowed the whole
amount in
toto,
the reason being that according to the court
order it did not allow costs for two attorneys or counsel to appear,
and still the
understanding was that the court order did allow a day
fee for preparation and was on party and party scale.
[9]
On item 5, the Taxing Master stated that she ruled that R2 500.00
per hour was reasonable. The Taxing Master submitted
that in terms of
Rule 69 (1), save where the court authorizes fees consequent upon the
employment of more than one advocate to
be included in a party and
party bill of costs, only such fees as are consequent upon the
employment of one advocate shall be allowed
as between party and
party. That it follows that the Taxing Master has no discretion to
allow fees of more than one counsel in
conflict with the provisions
of the Rule.
[10]
On item 6 the Taxing Master has stated that as she had already ruled
on item 4 that the court order did not allow for two sets
of
attorneys/counsel to appear, so too she did not allow the day fee of
Ms Pretorius. The Taxing Master submitted that Rule 69
allows for
attorneys with right of appearance to charge as counsel, but that it
does not say an attorney changes to be an advocate,
and that there is
still a difference as the client consult with the attorney directly
and counsel will need the attorney to be
present.
[11]
The applicant’s in his submission on item 3 agrees with the
Taxing Master’s stated case. The applicant further
confirms
that during taxation, the respondents have failed to provide any
information as to the amount of pages that Mr Bosman
prepared on, and
that the Taxing Master assessed the hours based on the papers in the
court file. On item 4 the applicant has submitted
that the costs of
preparation and attendance at court of Ms Pretorius is a duplication
of costs. On item 5 the applicant has stated
that Mr Bosman as an
attorney with right of appearance, steps into the shoes of counsel
and must then be treated as counsel. That
counsel in the same
position will not be entitled to recover more than a day fee and more
hours on top of the 10 hours allowed
for a day fee. On item 6 the
applicant has submitted that the attendance of Ms Pretorius is a
duplication of costs, and that Mr
Bosman did not need Ms Pretorius to
instruct him. That both Mr Bosman and Ms Pretorius have got right of
appearance in the High
Court and that there was no need for both of
them to attend to the matter, and that the purpose of an attorney’s
appearance
at court with counsel is to provide counsel with
instructions as counsel does not have direct contact with the client.
[12]
The proceedings set down for the 12
th
February 2020 could
not proceed at the instance of the applicant and that resulted in a
wasted costs order been awarded against
him. The said court order
read as follows:
“
1.
The rule nisi is extended to 24 June 2020.
2.
The intervention application issued out of this Honourable Court
under case number 1101/2019 is set down for hearing on 8 June
2020.
3. Applicant is
ordered to pay the wasted costs occasioned by the extension of the
rule nisi costs on party and party scale,
for a day fee preparation.
4. In the event the
intervention application is successful, the applicant in the contempt
application is ordered to do a further
index and paginated of the
contempt application file, on or before 12 June 2020.”
[13]
It is clear that the postponement of the 12
th
February 2020 was occasioned by the applicant. The general rule with
regard to postponement is that a party which is responsible
for a
case not proceeding on the day set down for hearing must ordinarily
pay wasted costs. (See
Subline
Technologies v Jonker
[1]
)
.
Wasted
costs are costs occasioned by postponement or costs previously
incurred in preparing for trial and also appearing in court,
but has
been rendered useless by reason of postponement. The costs awarded
against the applicant was on party and party scale.
Party and party
costs are costs awarded against a losing party in a litigation and
are taxed in terms of Rule 70 with a view to
full indemnity to the
successful party, but limited to costs necessary or proper for the
conduct of the litigation. (See
Ben
McDonald Inc v Rudolf ans Another
[2]
)
.
When awarding a wasted cost against the party who caused the matter
not to proceed, the purpose for that is to indemnify the innocent
party to extent that he/she not out of pocket as result of the
postponement occasioned by the other party. The Taxing Master in
taxing a wasted cost bill on party and party scale has to be
satisfied that indeed the costs claimed will not leave the innocent
party out of pocket to the extent of costs necessary or proper for
the conduct of litigation.
[14]
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
be held to vitiate his/her rulings. (See
President
of RSA v Gauteng Lions Rugby Union
[3]
).
[15]
Item 3 of the respondents’ bill relates to preparation which
the respondents have claimed a full day fee of R26 000.00
without specifying the time spend in preparing for trial. According
to the respondents they claimed the day’s fee as per
the court
order, that had they claimed the actual hours spent, it would have
amounted to 42 hours for preparation. According to
the Taxing
Master’s interpretation of the court order, it allowed
preparation separately from the day’s fee, and that
as the
attorney for the respondent was unable to tell how many documents she
had perused and time spend in preparing for trial,
she used her
discretion and allowed 5 hours’ preparation at R2 500.00
per hour as reasonable. The Taxing Master submitted
that in taking
that discretion, she was looking at the papers filed in the court
file. That resulted in the Taxing Master taxing
off R13 500.00
on item 3.
[16]
The wording of the court order state that the “costs on party
and party scale, for a day fee preparation.” The
court order
does not state that the respondents are awarded wasted costs which
will include preparation costs. The manner in which
this order has
been drafted is open to many interpretations. On the face of this
order, its literal meaning is that the respondents
wasted costs is
limited to preparation costs for a day fee without any appearance
fee. However, the general rule of interpreting
court orders is to
determine the purpose for the order, and the court’s intention
will be ascertained primarily from the
language of that order. The
order must also be read as a whole in order to ascertain the
intention of the court in making that
order.
[17]
In this case, the postponement was caused by the applicant, and the
intention of the court was to indemnify the respondents
not be out of
pocket for the work done by their attorney which was in the form of
wasted costs for that day. Normally wasted costs
for the day will be
appearance fee, but before appearance there is work normally done by
the legal practitioner in the form preparation.
For the legal
practitioner to also be entitled to that fee, there must makes an
order for that. Reading the court order of the
12
th
February 2020 as a whole and its purpose, the intention of the court
was to award wasted costs which included preparation costs
for that
day, but for poor draftsmanship of the draft order, it ended up open
to more than one interpretation.
[18]
The respondents in drafting its bill of costs was therefore supposed
to have specified the actual hours spend in preparing
for that wasted
day, in order to enable the Taxing Master to assess whether the said
costs for preparation were necessary or proper
for the attainment of
justice or for defending the rights of the respondents. It is the
Taxing Master’s duty to determine
whether the services for the
fees charged as it appears on the bill of costs have actually been
rendered. In order to discharge
that duty, the Taxing Master is also
entitled to demand proof that the services were actually rendered. In
my view, the Taxing
Master’s approach in taxing off item 3 in
the manner in which she did cannot be faulted.
[19]
On item 4 the respondents ground of review is that the Taxing Master
has applied a wrong principle in disallowing 8 hours’
preparation for Ms Pretorius. The Taxing Master has submitted that
she disallowed the whole fee for Ms Pretorius as the court order
did
not allow fee for two attorneys or counsel.
[20]
Mr Bosman and Ms Pretorius are from the same law firm. According to
the respondents’ bill, both attorneys have charged
a globular
preparation fee for the 11
th
February 2020 which they both
refer it as a day fee. They are both representing the same
respondents, and Ms Pretorius status was
that of an instructing
attorney to Mr Bosman who was the attorney presenting the matter on
behalf of the respondents. It is normal
for more than one advocate to
appear for the same party in court. However, it is not given that
both advocates will be awarded
costs in their favour. For all of them
to be able to recover the costs from the unsuccessful party, the
court must specifically
make that order. Without that order, the
Taxing Master will be entitled to allow the costs of one counsel.
This approach will also
apply in a situation where more than one
attorney appeared for a party in court. Therefore, on this issue, the
Taxing Master cannot
be faulted on her approach in disallowing the
fee of Ms Pretorius.
[21]
Item 6 relates to the appearance fee of Ms Pretorius which the Taxing
Master has taxed off in whole as the court order did
not allow fees
for two set of attorneys/counsel. The respondents have submitted that
Mr Bosman and Ms Pretorius are representing
21 of the 31 respondents,
but that according to the Taxing Master, Mr Bosman is not allowed in
terms of Rule 70 to have an attorney
present in court to assist him
during proceedings, whilst at the same time the applicant has
appointed more than one counsel to
represent him. It is the
respondents’ contention that Mr Bosman appeared in court as
counsel and that he is entitled to be
remunerated as counsel, whilst
Ms Pretorius appeared as an attorney who assist and instruct Mr
Bosman during the proceedings. Both
Mr Bosman and Ms Pretorius have
got right of appearance in the High Court.
[22]
The right of appearance of attorneys in the High Court was introduced
by the
Right
of Appearance In Courts Act
[4]
,
and is now been regulated by section 25 of the
Legal
Practice Act
[5]
(LPA
).
The LPA makes provisions for three types of legal practitioners,
namely, attorney, advocate and an advocate with a fidelity fund
certificate. In terms of
Regulation
33 of Rules and Regulations in Terms of The Legal
Practice
Act 28 of 2014 (Regulations
),
an advocate with a fidelity fund certificate may render all those
legal services which advocates were entitled to render before
the
commencement of the LPA, and may perform such functions ancillary to
his or her instructions as are necessary to enable him
or her
properly to represent a client. An advocate with a fidelity fund
certificate is in the same position as an attorney as he/she
is
allowed to keep a trust account and take instructions directly from
clients. An advocate without a fidelity fund certificate
is not
permitted to keep a trust account or to take instructions directly
from clients, he/she must be briefed by an attorney.
[23]
According to the respondents’ submissions, the status of Ms
Pretorius during court proceedings was that of an instructing
attorney, whilst that of Mr Bosman was that of an advocate. Both Mr
Bosman and Ms Pretorius have enrolled with the Legal Practice
Council
(LPC) as attorneys and have direct access to their clients. They are
able to take instructions directly from their clients
and they don’t
need a go-between. The same will apply to apply to an advocate with a
fidelity fund certificate. For both
attorney and advocate with
fidelity fund certificate does not need anyone to instruct them
regarding the matter as they are able
to take instructions directly
from their client. There is nothing preventing more one attorney
assisting each other in representing
one client. However, it is not
given that both attorneys will be able to recover costs on party and
party scale from the losing
party. They will have to make application
before court why the costs of more one attorney was justified in that
matter, and the
court must specifically make that order.
[24]
The court order of the 12
th
February 2020 did not make
provision for a fee of more than one legal practitioner. The Taxing
Master has no discretion to allow
a fee of more than one legal
practitioner without an order of court. The Taxing Master in this
matter can therefore not be faulted
in the approach that she followed
in disallowing the appearance fee of Ms Pretorius. I am therefore
satisfied that the Taxing Masters
rulings in this matter were not
wrong, and I don’t find any reason to interfere with them.
[25]
In the result I make the following order
25.1 The respondents
review application is dismissed.
25.2 No order as to
the costs.
MF
KGANYAGO
JUDGE
OF
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
FOR
THE PARTIES
1.
For the Applicant
Malose
Matsaung Attorneys
2.
For the 2
nd
,
7
th
,
9
th
,
10
th
,
11
th
,
12
th
,
13
th
,
14
th
,
15
th
, 16
th
, 18
th
-22
nd
Respondents
Bosman
Attorneys
3.
Delivered electronically on
30
th
August 2021
[1]
2010 (2) SA 522 (SCA)
[2]
1997 (4) SA 252
(T)
[3]
2002 (2) SA 64
(CC) at 73D-C
[4]
62 of 1995
[5]
28 of 2014