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[2019] ZAGPPHC 305
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Road Accident Fund v Taxing Master and Another (10977/2013) [2019] ZAGPPHC 305 (15 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
Case Number:
10977/2013
15/7/2019
ROAD
ACCIDENT FUND
Applicant
And
THE
TAXING MASTER
1
st
Respondent
SEHLOHO
TD
2
nd
Respondent
REVIEW
OF TAXATION
Delivered
:
15
th
July
2019
Erasmus
AJ
INTRODUCTION
[1]
The
matter came before me in terms of Rule 48 of the Uniform Rules of
Court for the review of the Taxing Master's decision. The
taxation
pertained to an attorney's bill of costs and disbursements on the
scale as between party and party. Certain items regarding
the costs
were specifically mentioned and listed in the Court Order.
[2]
The
applicant (the defendant in the action under the aforementioned case
number) was dissatisfied with the ruling of the Taxing
Master and
requested the Taxing Master to state a case for a decision of a judge
in chambers in terms of Rule 48 (1). The Taxing
Master duly stated a
case in terms of Rule 48 (2) in which she justified her decisions.
[3]
As
a starting point, attorneys' bill of costs in the High Court are
taxed in accordance with the provisions of rule 70.
3.1
Uniform Rule 70 (1) provides that: -
"The Taxing Master shall
be competent to tax any bill of costs for services actually rendered'
by an attorney in his capacity
as such in connection with litigious
work' and such bill shall be taxed subject to the provisions of
subrule (5), in accordance
with the provisions of the appended tariff
... "
3.2
Uniform Rule 70 (3) provides as follows:
"With
a
view to affording
the party who has been awarded an order for costs
a
full indemnity
for all costs reasonably incurred by him in relation to his claim or
defence and to ensure that all such costs shall
be borne by the party
against whom such order has been awarded, the taxing master shall, on
every taxation allow all such costs,
charges and expenses as appear
to him to have been necessary or proper for the attainment of justice
or for defending the rights
of any party, but save as against the
party who incurred the same, no costs shall be allowed which appear
to the taxing master
to have been or incurred or increased through
over-caution, negligence or mistake, by payment of
a
special fee to an
advocate, or special charges and expenses to witnesses or to other
persons by other unusual expenses."
3.3
Rule 70 (5) (a) stipulates that:
"The taxing master shall
be entitled, in his discretion, at any time to depart from any of the
provisions of this tariff in
extraordinary or exceptional cases,
where strict adherence to such provisions would be inequitable."
[4]
The
intention of Rule 70 (3) is to afford the successful litigant
indemnity for costs reasonably incurred without burdening the
unsuccessful litigant with unreasonable expenses incurred.
[5]
The
Taxing Master is enjoined with the taxing of bills of costs. He / she
has a discretion, to allow, to reduce and to disallow
any item in the
bill of costs. The Taxing Master must exercise such a discretion
judicially, fairly and reasonably having due regard
to the complexity
of the case, the time spent, and the reasonableness of the costs
incurred.
[6]
Where
the Taxing Master failed to properly exercise the discretion or
failed to apply her / his mind properly or at all her / his
decision
will be subject to review. The court may, however, still interfere
with the exercise of the Taxing Master's discretion
even when such a
discretion was exercised properly where the decision of the Taxing
Master is based on a misrepresentation of the
law or misconception as
to the facts or circumstances or as to the practice of the court.
i
[7]
Rule
48 (1) of the Uniform Rules of Court 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 within 15 days after the allocator by notice require the
taxing master to state
a
case for the
decision judge."
[8]
According
to
Erasmus: Superior Court Practice
81 - 351,
the purpose of this
provision is to give the reviewing Judge a brief record of the
proceedings in which the issues between the parties
are clearly
defined and the finding of fact by the taxing master are set out.
[9]
The
quasi-judicial decision before me on review arose from an
opposed taxation, and more specifically a ruling made on the
15
th
of January 2019, and stamped on the 21
st
day of January 2019.
COSTS ORDER GRANTED BY THE
HONOURABLE DEPUTY JUDGE PRESIDENT LEDWABA ON 13 MARCH 2018
[10] On 13
March 2018 the Honourable Justice Ledwaba, and by agreement between
the parties, made the following
order pertaining to the costs which
is the subject matter of this review (I will only refer to the
relevant paragraph in the judgment):
"5.
8
The costs for preparation of Plaintiff's bundles of documents for
trial purposes,
as
well
as
the travelling costs and the
time spent to deliver these bundles.
"
ii
SPECIFIC
GROUNDS RAISED ON SPECIFIC ITEMS IN RESEPCT OF THE BILL OF COSTS
[11] I
will now turn to deal with the specific items listed by the Applicant
on the bill of costs under
discussion. I will deal with the items
together as the same principle applies to both the issues raised. The
first line of items
deals with the costs in relation to the deliver
of the bundles to the relevant experts, and the second set of items
relates to
the costs in relation to the delivery of the bundles to
the Defendant's Attorney Offices.
Items
118, 251, 256, 261, 264, 269, 274 and 279
Items
182, 234, 391, 419 and 461
[12]
According to the stated case before me, the applicant's submissions
at the taxation was that the aforementioned
items should not be
allowed as they relate to the travelling time and disbursement for
delivering of the bundles. The basis for
the argument was that these
items should not be allowed as they are attorney and client items and
the cost order was on a party
and party scale.
[13] The
second Respondent (The Plaintiff in the action) submitted that the
items were specifically provided
for in the draft order and that the
defendant was quite aware of the contents of the draft before such
was made an order of court.
The second Respondent further submitted
that the taxing master's discretion is not so wide as to vary the
court order and thus
the items should be allowed for in the court
order.
[14] The
Taxing Master indicates that the travelling time and the costs for
the delivering of the bundle
was provided for in the Court Order that
was made an order of Court by the Honourable Mr Justice Ledwaba. The
Taxing Master proceeds
by submitting that there is a duty on the
Taxing Master to adhere to the Court Order, even though she may not
agree with the terms
of the Court order. The Taxing Master is not
empowered to deviate from the Court Order.
[15]
Reference was made to the judgment by the Honourable Judge Prinsloo.
I had due regard to the contents
of the judgment and I whole
heartedly agrees with Prinsloo J. I even want to go so far to state
that both the counsel who appears
before the Judge should point out
any possible contentious issue. But in this instance there was an
agreement between the parties
as to the costs for which the Applicant
will be responsible for.
[16]
There is nothing before me to suggest
that this issue of attorney and client items on the draft order was
brought to the attention
of the presiding judge. If the Applicant was
not happy with the wording of the order, then it should have raised
it at trial court.
If the Applicant was not happy with the insertion
of this costs it either had to be removed or argue whether it should
form part
of the cost order or not. In the event that the cost order
was argue and a ruling was made then the Applicant had to file and
application
for leave to appeal. On the papers there is not
indication that this was done. The only other avenue to have this
amended is to
bring an application for the amendment of this order.
But it should be kept in mind that this order was by agreement and if
such
an application is brought it is unclear on what grounds such an
application will be based.
[17]
This Court does not sit as a court of
appeal, and this court also is not ceased with an application for the
rescission of the order.
The applicant should not be allowed to amend
a court order and the working of a court order by way of the review
of the Taxing
Master's decision.
[18]
I therefore wholeheartedly agree with
the Taxing Master - she should follow the court order, which she did.
CONCLUSION
[19]
I am therefore satisfied that in respect
of these items the taxing master exercised her discretion properly.
ORDER
[20]
I accordingly make the following order:
20.1 The
application for review is dismissed.
i
Cash Wholesalers ltd
v Natal Pharmaceutica ls Society and the Taxing Moster
1937
NPD 418
at
425
;
City
Deep v Johannesburg City Council and Others
1973
(2) SA 109
(W)
at
113E
ii
See
Court Order by The Honourable Mr Justice Ledwaba dated 13 March 2018,
page SO - 53