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[2021] ZAGPPHC 18
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Molefe v Taxing Master and Another (81552/2015) [2021] ZAGPPHC 18 (25 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
DATE:
25-01- 2021
Case
Number
: 81552/2015
In
the matter between:
V.
MOLEFE
Applicant
and
THE
TAXING MASTER
First
Respondent
M.M.
MOLEFE
Second Respondent
JUDGMENT
KUBUSHI
J,
This
judgement is handed down electronically by circulating to the
parties’ representatives by email.
[1]
This is a review application in terms of uniform rule 48. The rule
provides that any
party dissatisfied with the ruling of the Taxing
Master as to any item or part of an item which was objected to or
disallowed
mero motu
by the Taxing Master, may by notice
require the Taxing Master to state a case for the decision of the
Judge.
[2]
For ease of reference, and due to the number of applications referred
to herein, I
intend to refer to the parties in their names. I shall
refer to the applicant, in this review application, as Mr Molefe and
to
the second respondent herein as Mrs Molefe. Mr Molefe, is
the first defendant in the action that was brought by Mrs Molefe
against him and the Government Employees Pension Fund (“the
GEPF”), as the second defendant, for the claim of the amount
of
R1 361 762, 92,
being half of the pension benefits due to Mr Molefe from
the GEPF
(“the main action”). Mr Molefe is, also, the first
respondent in an interlocutory application that ensued
from the main
action (“the application to compel”) that has now become
the subject matter of this review application.
The GEPF is not
participating in these proceedings.
[3]
The review application, itself, pertains to a Bill of Costs taxed by
the Taxing Master
on 20 February 2020 in relation to an order of
costs granted on 15 May 2018, against Mr Molefe in the application to
compel.
[4]
The application to compel pertains to the notice in terms of uniform
rule 35 (3),
which had previously been served on Mr Molefe’s
attorneys and was not responded to. The application to compel was
served
on Mr Molefe’s attorney by Mrs Molefe’s attorneys
on 11 February 2018, and enrolled for hearing on 15 May 2018.
[5]
Although the application to compel is referred to in the papers
before me, it does
not form part of the record. However, from the
perusal of the other documents, it appears that two prayers were
sought in the application
to compel, namely, prayer 1, which sought
to compel the respondents’ therein (Mr Molefe and the GEPF) to
comply with the
prayers demanded by Mrs Molefe in terms of the
uniform rule 35 (3) notice, which prayers required the said
respondents to discover
certain documents; and prayer 2 being for the
payment of costs.
[6]
It is common cause that Mr Molefe’s attorneys, complied with
prayer 1 of the
application to compel by delivering the reply to the
notice in terms of uniform rule 35 (3) to Mrs Molefe’s
attorneys on
7 March 2018, that is, before the hearing of the
application to compel. On 15 May 2018, when the parties appeared in
court, an
order to remove the matter from the roll and that the
respondents, in that application, pay the costs jointly and
severally, was
granted.
[7]
The Order in question was written as follows:
“
IT IS ORDERED THAT
1.
The matter be and is hereby removed from the
roll.
2.
First and Second respondents to pay the costs
jointly and severally.”
[8]
On 6 May 2019 Mrs Molefe’s attorneys served Mr Molefe’s
attorneys with
a notice of intention to tax the Bill of Costs
relating to the said Court Order of 15 May 2018. Mr Molefe opposed
the application,
objecting to all the items in the Bill of Costs
including that the matter was not yet finalised and that there was no
order against
him to pay the said costs immediately.
[9]
At the taxation of the Bill of Costs, on 20 February 2020, Mr
Molefe’s attorneys
argued on the same basis as that objected to
in his notice to oppose the Bill of Costs.
[10]
Mrs Molefe’s attorneys, on the other hand, argued that the Bill
of Costs was due for taxation
as the application to compel was
concluded when Mr
Molefe’s attorneys complied with the notice in terms of uniform
rule 35 (3) and argued further that it was not necessary
that it be
specifically stated in the Court Order that payment of the costs
should be made immediately.
[11]
The Taxing Master concurred with the argument of Mrs Molefe’s
attorneys that the application
to compel was concluded when Mr Molefe
finally complied with the notice in terms of uniform rule 35 (3), and
that the Bill of Costs
was, thus, due to be taxed. The Bill of Cost
was accordingly taxed in favour of Mrs Molefe.
[12]
On 12 March 2020, Mr Molefe’s attorneys served the review
application on the Taxing Master
which review application sought to
review the taxation of the Bill of Costs she taxed on 20 February
2020. Two grounds of review
are raised in the review application,
namely, that
“
4.
The Taxing Master’s discretion to award costs for the entire
application, which
application is still before court by reason of the
fact that the defendant complied with prayer 1 of the application, is
unreasonable,
incorrect and improperly made and, it is also contrary
to the Court Order issued hereto;
5.
Under the circumstances the Taxing Master was clearly wrong and the
court has
to interfere in his ruling, as he has vitiate (
sic!
)
from the Court Order dated 15 May 2018.”
[13]
In terms of uniform rule 48 (1), the Taxing Master is called upon to
prepare a stated case for
the decision of a Judge in chambers. The
Taxing Master, in this instance, prepared the stated case and served
it on both Mr
Molefe and Mrs Molefe’s respective attorneys. Mrs Molefe’s
attorneys submitted written submissions as required in terms
of
uniform rule 48 (5) to the Taxing Master’s stated case on 4
November 2020 and the submission by Mr
Molefe’s attorneys was done on 13 November 2020. The Taxing
Master in her report in terms of uniform rule 48 (5) had nothing
further to submit, consequently, the matter was placed before me in
chambers for adjudication.
[15]
In her stated case the Taxing Master submits, correctly so, that she
will not address point 1
to 3 of the Notice of Taxation since these
points relate to the merits of the court application which are
outside the ambit of
the taxation.
[16]
The Taxing Master further submits that items (1) to (14) of the Bill
of Costs were not specifically
objected to as the attached notice of
intention to object indicated that the main objection is the
contention that the matter has
not been finalised. As a result, the
Taxing Master’s conclusion was that the review application does
not pertain to those
items.
[17]
In his response to the Taxing Master’s stated case, Mr Molefe
argues for the granting of
the review application on the following
basis:
“
OBJECTION
TO TAXATION BY THE TAXING MASTER
3.1
. . .
3.3
The applicant herein objected to items 1 to 4 as set out in the
second respondent’s
Bill of Costs. The applicant’s
grounds of objection of the second respondent’s Bill of Costs
included (but not limited)
to the following, that:
3.3.1
The costs awarded as
per
court order dated 15
th
June 2018 (
sic!
) were wasted costs, thus of appearance on that
particular day, since the matter has been removed from the unopposed
to opposed
motion court roll;
3.3.2
From the aforesaid matter, there is a material dispute of facts on
which the above Honourable Court
need to adjudicate on, failing which
the applicant will be severally (
sic!)
prejudiced;
3.3.3
The Master’s discretion to award costs on the entire matter was
misconstrued. As was made contrary
to the order of the court;
3.3.4
There is double charges levied on each item, in that the charges of
the second respondent’s
attorneys combines charges for Pretoria
North as well as that of Pretoria Central of the same firm of
attorneys;
3.3.5
The correspondence charges levied were between the office Hack,
Stupel and Ross situated in Pretoria
North as well as that in
Pretoria Central, leading to excessive charges levied against the
applicant hereto;
3.3.6
Charges from item 1 to 14 (or certain costs) being unjustified due to
being for the main application
which was not concluded.
4.
IN CONCLUSION
THEREOF
4.1
Regard to aforesaid herein above, it is evident that the Taxing
Master did not exercise
his/her discretion properly, did not apply
his/her mind to the matter, disregarded factors or principles which
were proper for
him/her to consider, or considered others which it
was improper to consider;
4.2
As a result he/she acted upon wrong principle or wrongly interpreted
rules of law
or has given a ruling which no reasonable person would
have given, because same is clearly wrong and interference on review
is
justified.”
[18]
The question for determination is whether the Taxing Master, when
taxing Mrs Molefe’s Bill
of Costs on 20 February 2020,
exercised here discretion unreasonably, incorrectly, improperly and
contrary to the Court Order issued.
[19]
Underlying this question are two further questions:
19.1.
Firstly, whether the Taxing Master’s
discretion to award costs for the entire application to compel, which
application according
to Mr Molefe, is still before court by reason
of the fact that the applicant complied with prayer 1 of the
application was clearly
wrong and this court has to interfere in her
ruling.
19.2.
Secondly, whether a cost order in an
interlocutory application, in this instance the application to
compel, is immediately payable
without the court having made an order
for immediate payment of those costs.
[20]
I deal hereunder with the said issues in turn.
Whether
the Taxing Master incorrectly exercised her discretion to award costs
for the entire application to compel
[21]
There is a dispute as to the reason why the application to compel was
removed from the roll on
15 May 2018. According to Mr Molefe, the
application to compel served on the unopposed court roll and was
removed from that roll
to the opposed court roll because he had filed
a notice to oppose the application to compel. The said notice to
oppose forms part
of the papers filed in the review application as
Annexure “VVM3”. From the perusal of Annexure “VVM3”
it
appears that it was served on Mrs Molefe’s attorneys of
record on 13 June 2018 and delivered to the Registrar of the court
on
15 June 2018. However, the Court Order that is at issue in this
review application was granted on 15 May 2018. There is no
explanation on the papers why the said notice to oppose was filed
after the hearing of the notice to compel on 15 May 2018.
[22]
It is also common cause between the parties that Mr Molefe complied
with the request in terms
of the notice in terms of uniform rule 35
(3) on 7 March 2018. There seem to be no reason why, none was
proffered, that if Mr Molefe
had complied with rule 35 (3) the matter
was still opposed. I am also of the view that if the notice to compel
was removed from
the unopposed roll to the opposed roll, the order
granted would reflect as such, but this is not the case. Mr Molefe
does not provide
a reason, if any, why the order was granted as
stated in paragraph [7] of this judgment.
[23]
Therefore, the contention by Mrs Molefe that the matter was removed
from the roll because Mr
Molefe had complied with the request in the
notice in terms of uniform rule 35 (3) on 7 March 2018, is plausible
and more probable
than the explanation given by Mr Molefe. According
to Mrs Molefe, on 15 May 2018, the application to compel served in
court merely
for purposes of costs, which order of costs was granted
jointly and severally against Mr Molefe and the GEPF.
[24]
Having come to such a conclusion, the complaint of Mr Molefe that the
Taxing Master awarded costs
in respect of the whole application
instead of the wasted costs of the appearance of that day, is without
substance.
[25]
It is worth noting that Mr Molefe in his papers, filed of record,
keeps referring to an order
granted on 15 June 2018 whilst the Court
Order pertaining to the taxation which is the subject matter of this
review application
was granted on 15 May 2018.
[26]
In terms of uniform rule 30A, where a party fails to comply with the
rules of court or with a
request made or notice given pursuant
thereto, any other party may notify the defaulting party that she or
he intends, after the
lapse of ten (10) days, to apply for an order
that such rule, notice or request be complied with or that the claim
or defence be
struck out. Failing compliance within ten (10) days,
application may on notice be made to the court and the court may make
such
order thereon as to it seems meet.
[27]
Uniform rule 6 (1) provides that every application must be brought on
notice of motion supported
by an affidavit as to the facts upon which
the applicant relies for relief.
[28]
The application to compel would thus consist of a notice of motion
supported by an affidavit,
as well. It is thus my finding that the
Taxing Master exercised her discretion correctly when she taxed the
whole application and
not only the costs incurred by the appearance
of the parties on that day, as suggested by Mr Molefe.
[29]
The issue that remains for adjudication is whether costs awarded in
respect of an interlocutory
application, where the main case has not
been finalised, are payable immediately before the whole matter has
been finalised.
Whether
a cost order in an interlocutory application is immediately payable
without the court having made an order for immediate
payment of those
costs.
[30]
Mr Molefe’s argument is that the Taxing Master in taxing Mrs
Molefe’s Bill of Costs
exercised her discretion contrary to the
Court Order issued, as the Court Order does not provide for the
immediate payment of the
costs.
[31]
At the taxation of the Bill of Costs, Mr Molefe’s attorneys
argued that such costs should
wait the finalisation of the main
action before they can be paid unless the court granting such costs
indicated that they should
be paid immediately. Whereas Mrs Molefe’s
attorneys submitted that such costs are payable immediately on
demand. The Taxing
Master in taxing the Bill of Costs concurred with
Mrs Molefe’s attorneys and ruled that there was no reason not
to proceed
with the taxation as the matter was concluded when Mr
Molefe finally complied with the notice in terms of uniform rule 35
(3).
[32]
Conversely, Mrs Molefe in her response to the Taxing Master’s
stated case moved for the
dismissal of Mr Molefe’s review
application, on the ground that costs orders in the High Court are
immediately payable, unlike
costs awarded in the Magistrates’
Court which are not payable until the conclusion of a matter.
[33]
When the matter finally served before me, I sent a request to the
Taxing Master to provide me
with the basis on which she concurred
with Mrs Molefe’s attorneys that the matter had been concluded
when the applicant complied
with the notice in terms of uniform rule
35 (3). The Taxing Master’s response was that Mr Molefe’s
compliance with
the application to compel before the hearing,
effectively rendered the notice to compel obsolete, and once the cost
order was granted
it was her duty to give effect to such an order.
[34]
I also sent a request to Mrs Molefe’s attorneys requesting to
be provided with authority
that the costs in the High Court are
payable immediately unlike the costs awarded in the Magistrate’s
Court. The response
I received was that Rule 33 (3) of the
Magistrates’ Court Act No 32 of 1944 specifically provides that
“
unless the court shall for good cause otherwise order,
costs of interim orders shall not be taxed until the conclusion of
the action,
and a party may present only one bill for taxation up to
and including the judgment or other conclusion of the action
”
whereas uniform rule 70 has no such provision.
[35]
Subsequently, I referred the answers I received respectively from the
Taxing Master and Mrs Molefe’s
attorneys to Mr Molefe’s
attorneys for comment. The response received was to the effect that
the cost order granted in respect
of the notice to compel was
erroneously granted since the matter was still to be heard in the
opposed motion court. The contention
is that even though Mr Molefe
had provided a reply to the notice in terms of uniform rule 35
(3) on 7 March 2018
there was still an outstanding letter of 5
December 2017. It is also contended that the court never dealt with
the merits of the
application since Mr Molefe had filed an answering
affidavit, hence the costs order was granted in error.
[36]
On the issue of the immediate payment of cost I seem to be in
agreement with the Taxing Master
that once the matter was finalised,
as it was in this instance, there was nothing prohibiting her from
giving effect thereto. The
prayer sought in the notice to compel was
for compliance with the notice in terms of uniform rule 35 (3),
therefore, the application
to compel was finalised once Mr Molefe
complied with the request in terms of that notice.
[37]
Furthermore, I have stated earlier in this judgment that the notice
to oppose on record was served
on Mrs Molefe’s attorneys on 13
June 2018, which is a date way after the court order that is in
question herein. The other
documents, like the letter of 5 December
2017 and the answering affidavit that are referred to by Mr Molefe’s
attorneys do
not form part of the record before me. I can, therefore,
not decipher when same were either served on Mrs Molefe’s
attorneys
or delivered to the registrar.
[38]
From what I can gather from his submission, Mr Molefe’s
complaint is that the cost order
was erroneously granted. The proper
procedure to follow where an order has been granted erroneously is to
have such order rescinded.
It is trite that an order of court should
be given effect to, even if it is thought to be wrong, until set
aside by a competent
court of law. Since the cost order has not been
set aside the Taxing Master was correct to have given effect thereto
by proceeding
with the taxation.
[39]
I have ruled, as well, that the Taxing Master was entitled to give
effect to the court order
as granted on 15 May 2018 because the
application had been finalised. Similarly, I see no reason why the
costs order could not
be paid immediately as that part of the
proceedings, the application to compel, has been finalised. There
appears to be no reason
to wait for the finalisation of the main
action before payment of such costs could be made.
Objection to item
(1) to (14) of the Bill of Costs
[40]
It needs to be stated that the Taxing Master’s finding that
items (1) to (14) of the Bill
of Costs were not objected to is not
entirely correct.
[41]
Mr Molefe in his notice of intention to oppose the Bill of Costs
states that he objects to all
items hereto, including that this
matter is not yet finalised. In his submission in terms of uniform
rule 48 (5) he states that
item 1 to 14 (or certain costs) are
unjustified due to being for the main application which was not
concluded. In this sense it
can be said that Mr Molefe has
specifically objected to these costs.
[42]
Nevertheless, what is clear is that Mr Molefe’s attorneys did
not, during the taxation,
specifically object to each individual item
as he now seeks to do in his submission in terms of uniform rule 48
(5).
[43]
It is evident from the notice to oppose the taxation that Mr Molefe
is objecting to the items
in general terms, that is, because the
matter has not been finalised. He does not specifically set out
reasons for the objection
of the individual items like he does in his
uniform rule 48 (5) submissions. Therefore, the reasons stated by Mr
Molefe in his
submissions in terms of uniform rule 48
(5) appears so for the first time. It is does not even appear as
if
they were specifically raised at the taxation.
[44]
From the perusal of the Taxing Master’s stated case it seems
that the taxation was argued
only on two
in limine
points that
the taxation should not be proceeded with because the matter has not
been concluded, as the application to compel will
still proceed; and
that the Court Order does not provide for the immediate payment by
the applicant. The reasons Mr Molefe seeks
to bring forward in the
uniform rule 48 (5) submission were not mentioned. In that sense, the
reasons do not form part of the review.
[45]
It is my finding that the Taxing Master exercised her discretion
judicially and correctly. For
that reason, I have to conclude that Mr
Molefe’s review application ought to be dismissed.
[46]
Therefore, the review application is dismissed with costs.
E.M
KUBUSHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
Applicant’s
Attorneys
:
Leshilo Inc. Attorneys
Respondent’s
Attorneys
:
Hack, Stupel & Ross Attorneys.
Date
of hearing
: 20 February 2020
Date
of judgment
: 25 January 2021