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[2019] ZALMPPHC 50
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Maja v Absa Bank Limited and Another (968/2012) [2019] ZALMPPHC 50 (29 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO PROVINCIAL DIVISION,
POLOKWANE
CASE NO: 968/2012
29/10/2019
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
In
the matter between:
BETTY
KGOMOTLOKOA MAJA
PLAINTIFF
AND
ABSA
BANK
LIMITED
1
ST
DEFENDANT
NTJATJA
APHANE
2
ND
DEFENDANT
JUDGMENT
MF
KGANYAGO
J
[1]
This is the second review application brought by the defendants,
regarding the same
bill off costs. Regarding the first review
application, myself and Semenya J have set aside the Taxing Master’s
allocatur
and referred the matter back for taxation before another
Taxing Master. It was further ordered that items which the parties
have
settled upon will remain settled. The basis for setting aside
the Taxing Master’s allocatur was that it was found that
the costs and expenses incurred by the defendant were necessary costs
and expenses incurred in attaining a successful litigation.
The
Taxing Master in her stated case has also conceded that costs of the
counsel were not supposed to have been taxed off on the
4
th
of February 2016. In the first review judgment it was held that it
will be up to the Taxing Master to determine whether the costs
or
expenses incurred were reasonable or not.
[2]
The second bill of costs was presented before the second Taxing
Master Kekana M for
taxation afresh on the disputed items. The
taxation was set down for the 2
nd
August 2018 and the plaintiff was still opposing the defendants’
bill of costs. The second Taxing Master again disallowed
all the
disputed items.
[3]
Dissatisfied by the second Taxing Master’s rulings on the items
taxed off on
their bill of costs, the defendants brought the second
review application. It is the defendant’s contention that the
second
Taxing Master has overridden the first review judgment, and
that the question was not whether the items should be allowed or not
as that question has already been answered in the affirmative by the
first review judgment, and what was left for the second Taxing
Master
was to determine only the reasonableness of the expenses incurred.
[4]
The second Taxing Master in her stated case criticized the first
Taxing Master by
stating that the first Taxing Master did not go
through the settled items. According to the second Taxing Master, the
rule is that
a litigant must instruct an attorney and advocate at the
seat of the court, and that if they brief one outside the seat of the
court, they should not burden the losing party with costs. The second
Taxing Master submitted that in party and party costs, counsel’s
travelling and accommodation costs are not allowed, and normally in
all matters the Taxing Master does not allow those costs and
expenses
unless specifically ordered.
[5]
The general rule is that the court will not interfere with the ruling
of the Taxing
Master unless it is satisfied that the Taxing Master
was clearly wrong. This court has already found that the costs and
expenses
which the first Taxing Master has taxed off were necessary
costs and expenses incurred in attaining a successful litigation.
What
was left for the second Taxing Master was to determine whether
the costs and expenses incurred were reasonable or not. It was not
for her to second guess the judgment. The first Taxing Master has
already conceded that she was wrong in taxing off the disputed
items
from the defendants’ bill of costs. The court has further made
an order that the settled items will remain settled.
The second
Taxing Master is now criticizing the approach of the first Taxing
Master. The approach of the second Taxing Master is
wrong as it was
not competent for her or empowered for her to revisit issues which
the first review judgment has already settled.
[6]
It is trite that an order of a court of law stand until set aside by
a court of competent
jurisdiction. Until that is done, the court
order must be obeyed even if you dislike it.
In
Gauteng Province Driving School Association and Others v Amaryllis
Investments (Pty) Ltd and Others
[2011] ZA SCA 237
;
[2012] 1 All SA
290
(SCA) (1December 2011)
it was held that respect for the authority of the courts is
foundational to the rule of law.
[7]
It is of paramount importance that orders of the courts are respected
and complied
with. As a support staff of the court, the second Taxing
Master is regarded as an officer of the court and should therefore be
an exemplary. Disobedience of the court orders by officers of the
court will make a mockery of the courts. As an experienced Taxing
Master, in my view, she is expected to know what procedure to follow
if she is of the view that the order made is not capable of
been
enforced, rather than a blatant disregard of the order. A wrong
judgment is capable of producing legally valid consequences
for so
long as it has not been set aside.
[8]
In my view, the second Taxing Master is acting as if she is a court
of competent jurisdiction
empowered to set aside the first review
judgment. She is exercising powers which she does not have. She is
compelled to comply
with the first review judgment until set aside by
a court of competent jurisdiction. It is not her terrain to determine
whether
the judgment and order is wrong or not, and thereafter out of
her own and without following the correct procedures to disregard
it.
[9]
Under the circumstances, the ruling of the second Taxing Master in
disregarding the
first review judgment was wrong and stand to be
interfered with.
[10]
In the results I make the following order:
10.1. The
defendants review application is upheld
10.2
The second Taxing Master allocatur is set aside and the matter is
referred back to her to determine the reasonableness
of the items 88,
149,165,170, 171, 172,176,177,178,183,184,185,186,189,191,192,193,194
and drawing fee.
10.3 The items that
the parties have settled in the first taxation before the first
Taxing Master will remain settled.
10.4 No order as to
costs.
MF KGANYAGO
JUDGE OF THE
HIGH COURT: LIMPOPO
DIVISION, POLOKWANE
I
agree
MV SEMENYA J
JUDGE OF THE
HIGH COURT OF SOUTH
AFRICA:
LIMPOPO PROVINCIAL DIVISION,
POLOKWANE
: