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[2020] ZALMPPHC 48
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Lemao v Minister of Police and Others (423/2015) [2020] ZALMPPHC 48 (7 July 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION POLOKWANE
Case No: 423/2015
In
the matter between
STEPHEN
RAMONYENYI LEMAO
APPLICANT
AND
MINISTER
OF POLICE
FIRST RESPONDENT
TAXING
MASTER OF THE HIGH COURT
LIMPOPO
DIVISION
SECOND RESPONDENT
REVIEW
JUDGMENT-TAXATION
Kganyago
J
[1]
Three separate actions were instituted against the first respondent
by the same firm of attorneys on instructions from its clients.
The
three matters were consolidated and allocated a special trial date
which was supposed to run for the whole week from 7
th
May
2018 to 11
th
May 2018. Due to the unavailability of the
first respondent’s witnesses, the trial could not proceed as
scheduled for the
entire week and it was postponed
sine die.
The first respondent was ordered to pay the applicant’s wasted
costs of 7
th
May 2018 on party and party scale, and that
of 8
th
to 11
th
May 2018 on attorney and client
scale. The costs included costs of two counsel.
[2]
The applicant prepared a bill of costs and submitted it to the Taxing
Master for taxation. The first respondent opposed the
applicant’s
taxation. The parties appeared before the Taxing Master on 16
th
August 2018. During taxation the applicant was represented by a legal
costs consultant, whilst the first respondent was represented
by a
practising attorney. Since the legal costs consultant was not a legal
practitioner, could therefore not appear before the
Taxing Master to
argue the matter. The consultant and attorney for the first
respondent settled the disputed items on their own,
and thereafter
presented a settled bill before the Taxing Master for allocation.
[3]
It seems that the applicant’s attorney was dissatisfied in the
manner in which the legal costs consultant had settled
the bill with
the first respondent’s attorney and that resulted in him
bringing the review application. In his stated case
the applicant’s
attorney is dissatisfied with item 9, 31, 33 and 34. In respect to
item 9 he has stated that both fee and
disbursements were objected to
during taxation on the ground that it should have been allowed in
full, as the attorney HLM Mamabolo
was briefed by the plaintiff to
attend a judicial pre-trial conference on 27
th
November
2017, and after so appearing in court, is thus entitled to a fee as
stipulated in item 10 of the tariff.
[4]
With regard to item 31, the applicant’s attorney has stated
that it was objected to during taxation on the ground that
paragraph
3 of the court order dated 8
th
May 2018 clearly stipulates
that the defendant is ordered to pay wasted costs of 8
th
to 11
th
May 2018 on an attorney and client scale. However,
the Taxing Master decided to allow a fee of attendance for only one
hour on
8
th
May 2018, and taxed off the wasted costs of
four hours as well as of five hours each on 9
th
, 10
th
and 11
th
May 2018 respectively.
[5]
On item 33, the applicant’s attorney has stated that both in
respect of the fee and disbursements, which was objected
to on
taxation on the ground that paragraph 3 of the court order dated 8
th
May 2018 clearly stipulates that the defendant is ordered to pay
wasted costs of 8
th
to 11
th
May 2018 on
attorney and client scale. However, the Taxing Master decided to tax
off the counsel’s reserved fees of 9
th
, 10
th
,
and 11
th
May 2018, insisting that counsel is only entitled
to his fees for the work done only.
[6]
On item 34, the applicant’s attorney has stated that both in
respect of the fee and the disbursements, which was also
objected to
on taxation on the ground that paragraph 3 of the court order dated
8
th
May 2018 clearly stipulates that the defendant is
ordered to pay wasted costs of 8
th
May 2018 on attorney
and client scale. However, the Taxing Master decided to tax off the
counsel’s reserved fees of 9
th
, 10
th
and
11
th
May 2018, insisting that the counsel is only entitled
to his fees for the work done only.
[7]
The taxing Master in her stated case has stated that there is no
stated case to be done as the matter was settled and not taxed,
and
further that there were no items that were objected to before her.
The first respondent in reply to the Taxing Master’s
stated
case has corroborated the Taxing Master’s version. The
applicant’s attorney did not reply to the Taxing Master’s
stated case.
[8]
It is settled law that when a court reviews a taxation it must be
satisfied that the Taxing Master was clearly wrong before
it will
interfere with a ruling 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 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/her ruling. ( See
President
of RSA v Gauteng Rugby Union
[1]
)
[9]
The Taxing Master in her stated case has stated that she did not make
any rulings in relation the bill presented before her
as the parties
have settled the disputed items on their own, and that what was
submitted before her was a settled bill. This version
was
corroborated by the first respondent in its reply to the Taxing
Master’s stated case. The applicant’s legal
representative
did not reply to the Taxing Master’s stated case
to refute these allegations. Since the Taxing Master’s
allegations
are corroborated by the first respondent, I will accept
that when the bill was presented before the Taxing Master, there were
no
items that were objected to, but was a settled bill of costs.
[10]
On the date of taxation, the applicant was represented by a legal
costs consultant. The applicant’s attorney in his founding
affidavit for condonation for late filing of the review application
has stated that he had instructed the legal costs consultant
to draft
the bill of costs and also to attend taxation. The legal costs
consultant whom the applicant’s attorney has instructed
to
attend taxation was not a practising legal practitioner and was
therefore not permitted to appear before the Taxing Master and
argue
the objected items if any. ( See
Bills
of Costs (Pty) Ltd v The Registrar, Cape Town, NO
[2]
).
When attending taxation in his capacity as legal costs consultant who
was not permitted to appear before the Taxing Master, his
role was
limited to negotiating with the first respondent’s attorney as
to what might be reasonable fees until they reach
a settlement. If
they were unable to agree, he would not have argued the matter before
the Taxing Master as he was not permitted
to do so.
[11]
The legal costs consultant and the first respondent’s attorney
after reaching a settlement of the disputed items on their
own,
presented the Taxing Master with a settled bill of costs. The settled
bill of costs submitted to the Taxing Master, in my
view, had the
same status to a consent judgment. The Taxing Master could only give
a consent allocation of a bill of costs if the
parties have consented
to her doing so. Therefore, the principles that are applicable in
setting aside a consent judgment will
also be applicable in setting
aside a consent allocation of a bill of costs.
[12]
In
Moraitis
Investment (Pty) Ltd and Others v Montic Diary (Pty) Ltd and
Others
[3]
it was held that a consent judgment may be rescinded at the instance
of the innocent party if it was induced by fraud on the part
of the
successful litigant, or fraud to whom the successful litigant was a
party. The applicant’s attorney has not alleged
any fraud in
his papers and is also not challenging the authority of the legal
costs consultant to represent the applicant during
taxation. The
legal costs consultant had therefore the full mandate from the
applicant’s attorney to attend taxation up its
finality well
knowing that he was not permitted to argue any disputed items before
the Taxing Master. The applicant’s attorney
might have felt
that he might have achieved better results than his legal costs
consultant. However, his review application is
based on the wrong
facts.
[13]
The mere fact that the legal costs consultant did not achieve what
the applicant’s attorney might have achieved, is not
sufficient
to set aside the Taxing Master’s allocation. There must be
sufficient grounds advanced by the applicant which
justify the
setting aside of the settled allocation. The applicant has failed to
advance those grounds and therefore, his review
application stands to
fail.
[14]
In the result I make this order
14.1 The applicant’s
review application is dismissed.
14.2 There is no order as
to costs
MF
KGANYAGO
JUDGE OF THE HIGH COURT
SOUTH AFRICA LIMPOPO
DIVISION POLOKWANE
FOR
THE APPLICANT
: MAKWELA MABOTJA ATTORNEYS
FOR
THE FIRST RESPONDENT : OFFICE OF
STATE ATTORNEY POLOKWANE
FOR
THE SECOND RESPONDENT : THE TAXING MASTER POLOKWANE
DATE
JUDGMENT DELIVERED : 7
TH
JULY 2020
[1]
2002 (2) SA 64
(CC) at 73C-D
[2]
1979 (3) SA 923 (A)
[3]
ZASCA 54;
[2017] 3 All SA 485
(SCA);
2017 (5) SA 508
(SCA) (18 May
2017)