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[2021] ZALMPPHC 80
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Bothma v Bothma (4182/2020) [2021] ZALMPPHC 80 (8 November 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
8/11/21
CASE
NO: 4182/2020
In
the matter between:
CHARLES
BOTHMA
PLAINTIFF
And
LINDY
BOTHMA
DEFENDANT
REVIEW
JUDGEMENT
KGANYAGO
J
[1]
On 24
th
March 2021 the plaintiff had presented his bill of
costs before the Taxing Master for taxation. The plaintiff’s
bill consisted
of two bills of two local attorneys drafted on an
attorney and own client scale. The local attorneys are Thomas Grobler
Attorneys
and Niland and Pretorius Attorneys. Thomas Grobler’s
Attorneys appears to be the attorney for the plaintiff, whilst it is
not clear what was the role of Niland and Pretorius Attorneys in this
matter. Both the plaintiff and the defendant are dissatisfied
with
the rulings of the Taxing Master on certain items, and are seeking to
review the rulings of the Taxing Master. Their review
is brought in
terms of Rule 48 of the Uniform Rules of Court (Rules).
[2]
On item 1 Thomas Grobler’s Attorneys (herein referred to as
plaintiff’s attorneys)
has claimed 2 hours for preparation and
the Taxing Master had allowed 1 hour. The plaintiff has submitted
that the matter was set
down in the unopposed roll, and the defendant
opted to file opposing papers on the date of the hearing at 8h35, and
that the plaintiff
was therefore ambushed by opposing papers filed 1½
hours before appearing in court in the unopposed roll. The plaintiff
further submit that it had to peruse the defendant’s papers and
prepare on that, and therefore the plaintiff cannot be limited
to
only preparation on the opposing papers. In his stated case, the
Taxing Master has submitted that it is not every cost which
will `be
recovered by the plaintiff under wasted costs, and that in his
assessment the matter was on the unopposed roll, and that
the
plaintiff can only claim preparation on opposing papers when the
matter is heard in the opposed roll.
[3]
On item 2 the plaintiff has claimed a full day’s fee, whilst
the Taxing Master had allowed
1½ hours for time spent at
court. The plaintiff submitted that the issue of the wasted costs was
argued before the presiding
Judge who awarded the plaintiff wasted
costs of the day as opposed to only wasted costs. The plaintiff has
also attached the transcript
of the record of the proceedings which
shows that the order of the court was that the plaintiff was ordered
to pay the wasted costs
for day of 18
th
August 2020. The
Taxing Master has submitted that the transcribed record shows that
the matter started at 11h00 and ended 11h09,
and he had considered
the time the parties might have spent waiting for the matter to be
called. The Taxing Master has further
stated that from the
transcribed record he did not see the order that had awarded a day
fee against the defendant, but only saw
discussions about the
defendant been ordered to pay wasted costs of 18
th
August
2020.
[4]
The defendant had submitted that the Taxing Master had failed to
exercise a proper discretion,
alternatively to apply his mind
properly in that the Taxing Master had taxed the plaintiff’s
bill on a scale as between attorney
and own client despite the court
order stating party and party. On item 1 the defendant has submitted
that the perusal of the opposing
affidavit is not wasted costs, and
further that there cannot be preparation on an unopposed application
of which the attorney had
drafted the papers himself, and at the same
time ask for a full day fee for the same day on item 2. On item 1 of
the bill of costs
for Niland and Pretorius, the defendant had
submitted that the drafting of an index is not wasted costs, and
further questioned
why the second bill of costs for another attorney
in Polokwane was allowed in the same application.
[5]
The Taxing Master in his stated case for the defendant’s
attorneys on item 1 relating to
plaintiff’s attorneys had
submitted that it would have been unfair to rule that there cannot be
preparation for unopposed
application, and he had used his discretion
to determine what is reasonable time claimed. With regard to the
Niland and Pretorius
bill of costs on item 1, the Taxing Master had
conceded that he had erred.
[6]
On item 2 of plaintiff’s attorneys bill of costs, the defendant
had submitted that the Taxing
Master must give reasons for allowing
an amount of R3500.00 for attendance at court on the unopposed roll
whilst the transcript
shows that the matter was argued in court from
11h00 to 11h09. On item 2 of Niland and Pretorius bill of costs the
defendant had
submitted that necessary copies does not amount to
wasted costs, and further questioned why the Taxing Master allowed
the second
bill of costs for another attorney in Polokwane for the
same application. On item 2 of plaintiff’s attorneys bill the
Taxing
Master has stated that he allowed the amount of R3500.00 as he
had considered the time the parties may have spent waiting for the
matter to be called, and in his view, it would have been unfair to
consider 9 minutes of actual time the parties spent addressing
the
court. On the Nilland and Pretorius bill, the Taxing Master conceded
that he had erred.
[7]
On item 4 of plaintiff’s attorneys bill of costs, the defendant
had asked the Taxing Master
to give reasons for allowing costs of
uplifting the court order, which she alleges that it is the duty
normally performed by a
messenger. The Taxing Master in his stated
case has stated that he believes that it is in the interest of the
client and responsibility
of his attorney to have a copy of the court
order, so he allowed R119.00 for that as he considered it to be fair
and necessary.
[8]
It is trite that a costs order is intended to indemnify the
successful party to the extent that
he/she is not out of pocket as a
result of pursuing the litigation to its successful conclusion. In
President
of RSA v Gauteng Lions Rugby Union
[1]
Kriegler J said:
“
It
is settled law that when a court reviews taxation it is vested with
the power to exercise the wider degree of supervision identified
in
the time-honoured classification of Innes CJ case. This means:
‘…
that
the court must be satisfied that the Taxing Master was clearly wrong
before it will interfere with the ruling made by him…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 rulings’”.
[9]
The plaintiff had set down his matter on the unopposed roll of the
18
th
August 2020. The defendant did not file opposing
papers on time, but only did so in the morning of the 18
th
August 2020. All along the plaintiff was under the impression that
the matter was unopposed. On 18
th
August 2020 the matter
was postponed to the opposed roll of the 10
th
February
2021. That postponement was occasioned by the defendant’s late
filing of the opposing papers.
[10] The
general rule with regard to postponement is that the party which is
responsible for the case not proceeding on the
day set down for
hearing must ordinarily pay wasted costs. ( See
Sublime
Technologies (Pty) Ltd v Jonker and
Another
[2]
).
In the case at hand the defendant was ordered to pay the wasted costs
for the day of 18
th
August 2020. The
court did not specify whether it was on party and party scale or
punitive scale. However, when the plaintiff’s
attorneys drafted
their bill of costs, they drafted it of an attorney and own client
scale. The Taxing Master taxed the bill on
a scale as between
attorney and own client.
[11]
An attorney and own client scale is a punitive costs order which is
generally granted in exceptional cases
by court showing displeasure
in the manner in which the party against whom a costs order was
awarded had conducted himself/herself.
That punitive costs order must
specifically be granted by the court and the court must further
specify on which scale is the punitive
costs order granted. If the
court merely makes an order that the party at fault is to pay wasted
costs without specifically indicating
whether it is a punitive costs
order and at what scale, the general rule is that it is on a party
and party scale.
[12]
The order of 18
th
August 2020 in relation to costs read as
follows:
“
The
respondent is ordered to pay wasted costs for the day, 18
th
August 2020”.
It is clear that the
court did not order the defendant to pay the plaintiff’s costs
on a punitive scale, and therefore the
plaintiff was not entitled to
have drafted its bill costs on an attorney and own client scale. The
Taxing Master was therefore
wrong to have taxed the plaintiff’s
bill on attorney and own client scale whilst there was no specific
order for that. On
that point alone the Taxing Master’s
allocator stand to be set aside. However, there are other issues in
this matter which
need some comments.
[13]
Cilliers Law of Costs (service issue 25, para 8.08) defines wasted
costs as follows:
“
wasted
costs, amounting to either costs resulting from a postponement caused
by an amendment, if these costs would not otherwise
have been
incurred, or costs previously incurred which have become useless by
reason of the amendment.”
[14]
The plaintiff’s attorneys on item 1 of its bill of costs is
seeking 2 hours’ for preparation
which they allege is for
perusal and preparation after receiving the defendant’s
opposing papers. On receipt of the defendant’s
opposing papers,
it was clear to the plaintiff that if the court was to accept them
even at that late hour, the matter had become
opposed and had to be
transferred to the opposed roll. Had the court not accepted the
defendant’s opposing papers, the matter
would have been dealt
with as unopposed. The court had accepted the defendant’s
papers even though it was filed out of time,
and therefore, perusal
and preparation in that regard should left to be dealt with at the
finalisation of the opposed application
as the matter has become
opposed. The plaintiff’s costs that had been rendered useless
is that of the unopposed application
as the matter did not proceed as
unopposed as previously planned. Any preparation should therefore be
limited to the unopposed
application and not on the opposed basis, or
costs which the plaintiff would not have incurred, but for the
postponement.
[15]
The endorsement of the order of 18
th
August 2020 and the
typed court order are different from the order from the transcribed
record. The file has been endorsed that
the respondent to pay wasted
costs and that led to the typist typing the order of such. It is
clear that the Judge’s Registrar
who had endorsed the court
file did not correctly capture the order as pronounced by the Judge
in court, as the order of the transcribed
record clearly state that
the respondent is ordered to pay wasted costs for the day, 18
th
August 2020.
[16]
The plaintiff’s attorneys have submitted that on the day of
taxation, they have referred the Taxing
Master to the transcribed
record. The Taxing Master has submitted that the transcribed record
show that the matter started at 11h00
and ended at 11h09, and that he
did not see the court order but merely discussions about it, and that
the order as it appears on
paragraph 2 state that the respondent is
ordered to pay the wasted costs of 18 August 2020. It is clear that
the Taxing Master
had read the transcribed record and did not rely on
incorrect order typed by the typist. The order from the transcribed
record
had two paragraphs numbered 1 and 2. Paragraph 2 which the
Taxing Master had referred, refers to the “costs for day”,
and does have costs “of” 18 August 2020. It seems the
Taxing Master is deliberately trying to mislead this court by
stating
what will suit him, in that he refers to paragraph 2 of the order and
later in his stated case refers to deliberations
in court. What is
mind boggling is that the Taxing Master in his stated case has stated
that he had considered the deliberations
in court as an order of
court.
[17]
According to the Taxing Master, during the deliberations by the
parties in court, the court indicated that
it will exercise its
discretion over the costs issue and the court ordered wasted costs
against defendant, and that is the order
which as the Taxing Master
he had considered. I fail to understand the logic in the Taxing
Master’s submission. It will therefore
prudent to quote the
order as it appears from the transcribed record, which read as
follows:
“
__________________________________________________________
ORDER
“
___________________________________________________________
PHATUDI
J:
Well
this matter has become opposed, I am informed, therefore that the
parties having agreed that the matter be transferred to the
opposed
roll, the order is as follows:
1.
The matter is postponed/ transferred to the opposed roll
to be heard on the 10
th
of
February 2021.
2.
The respondent is ordered to pay the wasted costs for
the day, 18
th
August
2020.”
[18]
There is nothing confusing about this order, it is clear and straight
forward. If the Taxing Master
had misread this order on the
date of Taxation, after reading the plaintiff’s review papers
and in preparation of his stated
case, he would have had a
reflection on the transcribed record and not try to justify the
unjustifiable and also by adding
words which does not appear on the
order. It is either that the Taxing Master is deliberately trying to
mislead this court after
realising his errors, or he does not
understand his role as the Taxing Master.
[19]
In this case it did not matter how many minutes they have argued the
matter, or time spent in
court, the court has made an
order that the plaintiff was entitled to wasted costs for the
day. This order has taken away
the Taxing Master’s discretion,
and the Taxing Master is bound to allocate this cost as per the court
order.
Therefore, the Taxing Master was wrong for taxing
this item on the basis of what he considered as time spent by
parties
waiting for the matter to be called in court. With regard to
the bill of Niland and Pretorius, the Taxing Master has conceded that
he had erred in allowing that bill and I will not take it any
further.
[20]
In my view, the Taxing Master did not exercise his discretion
properly, and was therefore clearly wrong in
his rulings, and
therefore his rulings need to be interfered with. Both parties have
successfully challenged the rulings made by
the Taxing Master which
affect the entire bill. It will therefore, be fair to both parties if
the entire allocation by the Taxing
Master is set aside.
[21]
In the result I make the following order:
21.1 The review by
both plaintiff and defendant is upheld.
21.2 The Taxing
Master’s allocation is set aside in its entirety.
21.3 The matter is
referred back to be taxed afresh before another Taxing Master.
21.4 There is no
order for costs.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
For
the plaintiff
: Thomas Grobler Attorneys
For
the defendant
: Oosthuizen & Stein Attorneys
Electronically
circulated on
: 8
th
November 2021
[1]
2002 (2) SA
64
(CC) at 73C-D
[2]
2010 (2) SA
522
(SCA) at para 3