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[2021] ZALMPPHC 60
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De Jager and Another v Robynne Zevenster NO and Another (4114/2016) [2021] ZALMPPHC 60 (13 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE NO: 4114/2016
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED
In
the matter between:
CAREL
FREDERIK DE JAGER
FIRST
APPLICANT
JOHANNES
JACOBUS FREDERIK PEYPER
SECOND
APPLICANT
And
ROBYNNE
ZEVENSTER NO
FIRST
RESPONDENT
THE
TAXING MASTER POLOKWANE
SECOND
RESPONDENT
JUDGEMENT
KGANYAGO J
[1]
On 22
nd
May 2017, the first respondent served the
applicants with a Rule 35(1), (6), (8) and (10) notice. On 11
th
August 2017 the first respondent served the applicants with an
application to compel further discovery in terms of Rule 35(1) and
the said application was set down to be heard on 24
th
October 2017. The applicants complied with the first respondent’s
Rule 35(1) notice before the date of hearing. On 24
th
October 2017 the first respondent withdrew his application to compel
and the matter was removed from the roll with the applicants
been
ordered to pay the costs of the application.
[2]
The first respondent proceeded to draft his bill of costs to be taxed
by the second respondent.
The first respondent’s bill was duly
served on the applicants’ attorneys. In terms of the notice of
taxation served
on the applicants’ attorneys, the applicants
were supposed to notify the first respondent within 20 days of
receipt of the
notice should they wish to oppose the first
respondent’s bill of costs failing which the first respondent
would set the matter
down for taxation without further notice on the
applicants. The applicants did not notify the first respondents of
their intention
to oppose and the first respondent proceeded to set
the matter for taxation before the second respondent without further
notice
on the applicants.
[3]
The applicants have submitted that on receipt of the first
respondent’s bill, due to an
oversight they referred the first
respondent’s bill of costs to their correspondent in Pretoria.
The applicants further submit
that the confusion was as a
result of the fact that there was also a litigation between the
parties in the High Court in
Pretoria. It is the applicants’
contention that their intention was to oppose the first respondent’s
bill of costs.
[4]
The applicants have submitted that the first respondent in his bill
of costs has stated “that
the bill of costs was for fees and
expenses payable by the plaintiff as per settlement agreement signed
by the defendant on 1
st
August 2017.” It is the
applicants’ contention that the first respondent had falsely
created an impression to the second
respondent that the parties have
agreed to the items as set out in the bill of costs. The applicants
submit that should the second
respondent not have laboured under the
wrong impression, he would have perused the court file more
carefully, and would have noted
that a large number of the items in
the bill of costs were for costs for which an order had not been
granted.
[5]
According to the applicants, items 1 to 22 of the first respondent’s
bill of costs are not
covered by the court order of the 24
th
October 2017. Further the applicants’ dispute that the alleged
unsigned document allegedly attached to the first respondent’s
bill of costs purportedly made by the applicants’ attorney of
record Mr van Staden consenting to the bill in the amount of
R16
115.66 was drafted and signed by Mr van Staden. It is the applicants’
contention that the first respondent had deliberately
misled the
second respondent to have allowed the bill of costs based upon a
material misrepresentation.
[6]
The applicants submit that during October/November 2018 the sheriff
of court visited the applicants
with a writ of execution for the
collection of the amount of the taxed costs. That led to the
applicants attorneys on 5
th
November 2018 addressing a
letter to the first respondent’s attorneys requesting the first
respondent to abandon and/or withdraw
the bill of costs and led the
bill be presented to the second respondent for re-taxation, failing
which they held instructions
to institute an application and have the
taxation set aside. The parties could not agree on a solution to the
matter, and during
May/June 2019 the sheriff of court again visited
the applicants and made an attachment.
[7]
Again the applicants’ attorneys addressed a letter to the first
respondent’s attorneys
requesting them to abandon or withdraw
the taxed bill of costs and present the correct bill of costs for
taxation, and again threatening
the first respondent with a court
application. The first respondent’s attorneys in reply informed
the applicants’ attorneys
that it was abandoning items 1 to 22
and that the remainder of the items have been correctly taxed, and
further that the writ was
issued for the correct items, and that the
applicants should pay the costs in which case the attachment will be
uplifted. It is
the applicants’ contention that the first
respondent cannot unilaterally decide that, although admitting that
the bill was
erroneously taxed, and proceed to issue a writ for items
he regards to be correctly taxed. That led to applicants instituting
the
current application seeking orders that the taxation presented
before the Taxing Master for the Limpopo Division of the High Court
of South Africa Polokwane be set aside, and that the allocator’s
dated 3
rd
September 2018 be set aside.
[8]
The first respondent is opposing the applicants’ application.
The first respondent in his
answering affidavit has submitted that
reference to settlement agreement in their bill of costs was a bona
fide oversight by the
costs consultant who prepared the account. The
first respondent avers that the reference to settlement agreement in
their bill
of costs did not influence the Taxing Master’s
discretion as that did not determine the nature and scale of the
fees. The
first respondent further submitted that he had already
abandoned the amounts which he is not entitled to, and that the
remaining
items have not been questioned individually by the
applicants. The first respondent denies that it had presented to the
Taxing
Master an alleged unsigned document purportedly made by the
applicants’ attorneys consenting to the bill in the amount of
R16 115.66.
[9]
It is the first respondent’s contention that of 21
st
January 2019 his attorneys wrote a letter to the applicants’
attorneys notifying them that he had abandoned the part of the
costs
that he was not entitled to, and that his claim was only limited to
the costs of the application to compel which costs amounted
to R16
115.65. The first respondent submitted that on 1
st
July
2019 the applicants’ attorneys responded stating that they
reject the proposal and that the whole of the taxation should
be
withdrawn. The first respondent denies that he has unilaterally
decided on which amount is correct on his bill, but that The
Taxing
Master has already considered each and every item and have determined
them to be due and payable. It is the first respondent’s
contention that the review application could have been avoided and
curtailed had the applicants been willing to provide an offer
in
respects of the costs.
[10]
This court is called upon to determine whether the taxation of costs
by the second respondent should
be set aside, and also whether the
allocator’s dated 3
rd
September
2018 be set aside. The first respondent’s taxation was taxed in
the absence of the applicants. In
Grunder
v Grunder
[1]
it was held that common law principles applicable to the setting
aside of default judgment apply also to the setting aside of the
Taxing Master’s allocator.
[11]
In
Colyn
v Tiger Food Industries LTD t/a Meadow Feed Mills (Cape)
[2]
Jones AJA said:
“
I
turn now to the relief under the common law. In order to succeed an
applicant for rescission of judgment taken against him by
default
must show good cause…With that as the underlying approach the
Courts generally expect an applicant to show good
cause (a) by giving
a reasonable explanation of his default; by showing that his
application is made bona fide; and (c) by showing
that he has a bona
fide defence to the plaintiff’s claim which prima facie has
some prospects of success.”
[12]
The applicants’ explanation for the default to attend taxation
is that on receipt of the first respondent’s
notice of
intention to attend taxation, they by oversight send that
notification to their correspondent in Pretoria where the parties
were having another pending matter. The applicants have also attached
a letter addressed to their correspondent in Pretoria giving
them
instructions to oppose the taxation. That in my view, shows that from
the beginning it was the applicants’ intention
to oppose the
first respondent’s bill of costs. I am therefore satisfied that
the applicants’ explanation for their
default is reasonable.
[13]
Turning to the second requirement, whether the applicants’
application is bona fide, the applicants
became aware of the default
taxation during November 2018. That prompted their attorneys to
address a letter to the first respondent’s
attorneys on 5
th
November 2018. In that letter their attorneys requested the first
respondent to either withdraw or abandon the taxed bill failing
which
they held instructions to bring an application to set aside the bill
of costs. On 21
st
January 2019 the first respondent’s
attorneys responded to the applicants attorneys conceding to items 1
to 22 and stating
that those items were included in the first
respondent bill of costs by oversight by their costs consultant and
they apologised
for the unintentional bona fide error that has
occurred. The first respondent’s attorneys proposed that the
matter be settled
on the basis that items 1 to 22 be taxed off and it
be deferred until the whole matter was finalised. The first
respondent’s
attorneys even attached a redrafted bill of costs
which excluded items 1 to 22.
[14]
The applicants’ attorneys did not respond to the first
respondent’s settlement proposal and that
led to the first
respondent’s attorneys re-issuing the writ of execution during
April 2019 on the revised bill of costs.
The writ of execution was
executed on 17
th
May 2019, and that led to the applicants’
attorneys addressing a letter to the first respondent’s
attorneys on 5
th
June 2019 still repeating what they have
already stated in their letter of 5
th
November 2018. This
time the applicants’ attorneys gave the first respondent an
ultimatum until 12h00 on Thursday 6
th
June 2019 failing
which they threatened to approach court to have the taxation set
aside. The first respondent’s attorneys
responded on 6
th
June 2019 still suggesting that the matter be settled on the basis of
the revised bill of costs and further informed the applicants’
attorneys that they were ready for the intended court application by
the applicants. The applicants only instituted their application
on
7
th
August 2019.
[15]
The applicants instituted their application seven months after their
initial threat to do that. There is
no reasonable explanation given
as to why it took them seven months to institute their application if
they were indeed serious
about setting aside the taxation of the
first respondent’s bill of costs. They only acted when they
realised that the first
respondent had re-issued the writ of
execution. In my view, the applicants’ application is not
genuine and bona fide, but
is meant to frustrate the first respondent
from recovering his costs. The applicants have therefore failed to
satisfy the second
requirement for the setting aside of a default
taxation.
[16]
Turning to the third requirement, that the applicants must show that
they are having a bona fide defence
to first respondent’s claim
which prima facie has a prospects of success. The applicants in their
application are complaining
about items 1 to 22 which they have
stated that they were not covered by the court order. The first
respondent has conceded to
that, has abandoned those items in dispute
in full and even submitted a revised bill of costs that exclude the
items disputed.
The applicants did not state what was the problem
with the remainder of the other items on the first respondent’s
bill of
costs. It was incumbent upon the applicants to have clearly
stated what was the issue with the remainder of the items on the
first
respondent’s bill of costs since when the applicants
instituted this application, they were already aware that the first
respondent has abandoned items 1 to 22 which they complained about.
[17]
It is trite that the court must be satisfied that the Taxing Master
was clearly wrong before it will interfere
with the ruling made by
him/her and not that the court differs with the approach of the
Taxing Master in taxing the bill, unless
the Taxing Master’s
view of the matter differs so materially from its own that it should
be held to vitiate his own. (
See
President of RSA v Gauteng Lions Rugby Union
[3]
).
As I have already pointed out in paragraph 16 above, the applicants
have failed to state what was the problem with the remainder
of the
first respondent’s bill of costs as taxed by the second
respondent to enable this court to determine whether the second
respondent was clearly wrong in his approach of taxing the bill.
[18]
Even though the heading of the first respondent’s bill of costs
has stated as per “settlement
agreement”, the second
respondent would not have merely rubber stamped that. He is duty
bound to ensure that the bill is
in accordance with the required
tariff. Therefore, it was upon the applicants to have shown which
items on the remainder of the
bill was disputed and on what basis,
but they have failed to do so.
[18] The
applicants in their founding affidavit have also stated that the
first respondent had attached an unsigned
document purportedly made
by the applicants’ attorneys of record Mr van Staden. The
impression created is that the first
respondent had obtained taxation
by default through fraud. However, that document was not attached to
their application to substantiate
their claim. Therefore, that
submission will be treated as hearsay without any probative value.
This court is satisfied that the
applicants have failed to meet the
requirements for setting aside of a default taxation. The applicants’
application therefore
stand to fail.
[19]
In the result I make the following order
19.1
The applicants’ application is dismissed with costs
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the applicants
Adv
IA Van Den Ende
Instructed
by
Espag
Magwai Attorneys
Counsel
for the first respondent
Adv
M Bresler
Instructed
by
Le
Roux Inc
Date
heard
18
th
August 2018
Electronically
delivered on
13
th
September 2021
[1]
1990
(4) SA 680
(C)
[2]
2003
(6) SA 1
(SCA) at para 11
[3]
2002
(2) SA 64
(CC) at 73C-D)