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[2019] ZAFSHC 56
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Jonker and Others v Taxing Master of the High Court and Another (2769/2017) [2019] ZAFSHC 56 (17 May 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 2769/2017
In
the matter between:
HANNES
MARTHINUS JONKER AO
[1]
Applicants
and
TAXING MASTER OF THE
HIGH COURT
[2]
1
ST
Respondent
LAMBONS (PTY)
LTD
[3]
2
nd
Respondent
CORAM:
OPPERMAN, J
DELIVERED
ON:
17 MAY 2019
REVIEW OF TAXATION
[1]
The file
in casu
was placed before me in January 2019 for a
review in chambers in terms of Rule 48. The file was in shambles. The
documents were
not indexed and not all relevant to review. I invited
the parties to address me in chambers on the situation and it was
decided
that the matter will be heard and finalised on formal record
in court. Heads of Argument would also be submitted. The matter was
argued on 27 February 2019. By this time the papers were still not
organised but I allowed the matter to proceed in order for further
delay and costs to be prevented. In the end the documents as per the
“Index to the Rule 48 Review Application” were
placed
before me. The Heads of Argument of the applicants and second
respondent were also submitted.
[2]
Mr. G Ebersöhn from Gerrie Ebersöhn Attorneys appeared on
behalf of the applicants.
Mr. CF Botes from Gouws Vertue &
Associates Inc. appeared on behalf of second respondent. Webbers
Attorneys acted as corresponding
attorneys for Ebersöhn during
the time of the taxation hearing on 15 February 2018 in Bloemfontein.
They did not partake in
the review hearing on 27 February 2019.
[3]
During the taxation on 15 February 2018 Mr. Ebersöhn did not
attend. At the said taxation
Mr. Franco Truter from Webbers Attorneys
represented the applicants and Me. Sandra van Wyck from Gous Vertue &
Associates Inc.
represented the respondents.
[4]
The applicants’ Bill of Costs was drafted and taxed whereby the
applicants’
attorney only objected to items 28, 33, 34, 35, 36,
40 and 41 on the Bill of Costs of Gerrie Ebersöhn.
[4]
No objections were noted on the Bill of Costs of Webbers
Attorneys.
[5]
It stands
undisputed that the applicants’ local attorney did not have
their file with them during the taxation.
[6]
[5]
The purpose of taxation
[7]
was
stated in
Mouton
v Martine
1968 (4) SA 738 (T) at 742:
“
In former times it
was the function of the court, or one of the judges, to tax the costs
of a case. The purpose of the taxation
was really twofold; firstly,
to fix the costs at a certain amount so that execution could be
levied on the judgment and, secondly,
to ensure that the party who is
condemned to pay the costs does not pay excessive and the successful
party does not receive insufficient
costs in respect of the
litigation which resulted in the order for costs.”
[6]
High Court 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
incurred or increased
through over-caution, negligence or
mistake, or by payment of a special fee to an advocate, or
special charges and expenses
to witnesses or to other persons or by
other unusual expenses.”
[7]
Rule 70(3) expresses the clear intention that, granted that
litigation is expensive,
“the ultimate winner should not have
the fruits of his victory bitten into by the necessity of paying too
high a proportion
of his costs”. On the other hand, the
interests of the loser should also be protected: it is true that a
successful
party should have a full indemnity in respect of costs
reasonably incurred, but it is equally important to litigants who are
unsuccessful
that they should not be oppressed by having to pay an
excessive amount of costs.
[8]
[8]
Rule 70(3) requires that an expenditure of a type which it was
reasonable to incur
must be allowed.
[9]
Rule 48
“
(1)
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
of a
judge.
(2)
The notice referred to in sub-rule (1) must—
(a)
identify each item or part of an item in respect of which the
decision of the Taxing Master is sought
to be reviewed;
(b)
contain the allegation that each such item or part thereof was
objected to at the taxation by the dissatisfied
party, or that it was
disallowed
mero motu
by the Taxing Master;
(c)
contain the grounds of objection relied upon by the dissatisfied
party at the taxation, but not argument
in support thereof; and
(d)
contain any finding of fact which the dissatisfied party contends the
Taxing Master has made and which
the dissatisfied party intends to
challenge, stating ground of such challenge, but not argument in
support thereof.
(6)
(a) The judge may-
decide
the matter upon the merits of the case and submissions so submitted;
(ii)
require any further information from the Taxing Master;
(iii) if he
or she deems it fit, hear the parties or their advocates or attorneys
in his or her chambers; or
(iv) refer
the case for decision to the court.”
[10]
The subject of the Bill of Costs is the second respondent that
launched a Rule 30-application to set aside
the applicants’
application for a default judgement as an irregular step. The
applicants’ opposed the said application.
The applicants’
attorney appeared on behalf of the applicants at the hearing thereof
on 23 November 2017 and the respondent
was represented by an
advocate.
[11]
The court, per Daffue J, dismissed the Rule 30-application and
ordered the respondent to pay the applicants’
costs on the
party and party scale.
[12]
Pursuant to the above, the applicants served and filed Notice of
Intent to Tax to which two Bills of
Costs were attached, namely (1)
the Bill of Costs of their instructing attorney in Johannesburg and
(2) the Bill of Costs of their
correspondent attorney in
Bloemfontein. The respondent served a notice of objection in respect
of certain items in the said Bill
of Costs.
[13]
On 15 February 2018 the Taxing Master taxed applicants’ Bill of
Costs. The Taxing Master taxed
down and/or disallowed certain items
in the applicants’ Bill of Costs.
[14]
Perturbed by this the applicants delivered a Rule 48-notice. The
second respondent and the Taxing Master
opposed the review
application. The applicants filed the Notice of Review on 8 March
2018.
[15]
The respondent pointed out; correctly so, that the applicants’
local attorney only noted objections
to items 28, 33, 34, 35, 36, 40
and 41 of the Bill of Costs of Gerrie Ebersöhn.
[16]
It is apposite to rule from the onset that I will only entertain and
deal with items 28, 33, 34, 35,
36, 40 and 41 of the Bill of Costs of
Gerrie Ebersöhn in terms of the law as stated, amongst others,
in
Rodgers
v Rodgers
103/2010
(2012) ZANWHC 46
(14 Dec 2012):
“
The conclusion
that I reach is that both the main objection and its alternative as
contained in the notice of review by the defendant
is belated, since
no objection was made about them to the Taxing Master at the time of
taxation, they are accordingly not subjected
to review.”
[17]
In
Daywine Properties (Pty) Ltd v Murphy and Another
1991 (3)
SA 216
(D) it was correctly stated that:
“
I
confirm the Taxing Master's decision for the simple reason that these
matters were not objected to at the time of the taxation.
Rule 48(1)
is perfectly clear, in my judgment, commencing as it does with the
words:
“
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...”
“
Similarly,
Rule 48(2) envisages that only the matters objected to before the
Taxing Master may be the subject of review because
it entitles the
parties to submit contentions 'including grounds of objection not
advanced at the taxation in respect of any item
or part of an
item
which
was objected to before the Taxing Master
or
disallowed
mero
motu
by
the Taxing Master.”
[18]
In
Kruger v Secretary for Inland Revenue
1972
(1) SA 749 (C) at 750F - G, Van Winsen J made short shrift
of a similar matter by saying succinctly:
“
I
do not deal with the belated objection to item 16 since no objection
was made to the Taxing Master's allowance of this at the
time of the
taxation. It is accordingly not subject to review. (Rule 48(1))”
[19]
Further; as stated by the authors in
Law
of Costs
:
[9]
“
The discretion
vested in a Taxing Master is to allow (all) costs, charges and
expenses as appear to him to have been necessary or
proper, not those
which may objectively attain such qualities. His opinion must relate
to all costs reasonably incurred by the
litigant, which imports a
value judgment as to what is reasonable. Moreover, the words
‘reasonable’ and ‘in the
opinion of the Taxing
Master’ that occurred in the tariff appended to rule 70
imported a judgment not referable to objectively
ascertainable
qualities in the items of a bill in question. The discretion to
decide what costs have been necessarily or properly
incurred is given
to the Taxing Master and not to the court.”
[20]
The Taxing Master has therefore correctly pointed out that she has a
discretion to award such costs
“as appears (to her) to have
been necessary or proper for the attainment of justice or defending
the rights of another party”.
[10]
[21]
Interference
on review is justified where a reviewing court finds that the Taxing
Master has not exercised his discretion properly,
as for example,
when he has been actuated by some improper motive, or has not applied
his mind to the matter, or has disregarded
factors or principles
which were proper for him to consider, or considered others which it
was improper for him to consider, or
acted upon wrong principles or
wrongly interpreted rules of law, or gave a ruling which no
reasonable person would have given.
[11]
[22]
The Taxing Master must be clearly wrong.
In
Ocean
Commodities Inc & Others v Standard Bank of SA Ltd & Others
1984
(3) SA 15
(A)
at
page 18F-G
Rabie
CJ re-stated the test to be 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 ruling.
[23]
The detail of the items is the following:
[12]
a)
Item 28
:
Perusing filing notice and applicants’ practice note and
concise heads of argument, perusing relevant case law and drafting
respondent’s practise note and heads of arguments 4hrs 36min.
R8280.00 Taxed: R3542.00
taxed down, R4734.00 allowed.
Second Respondent’s
Submission
:
[13]
The second responded
objected to:
6.1.1 item 28 on the
ground that the applicants’ attorney is “familiar”
with the contents of the file and that
only a perusal fee of the
second respondent’s heads of argument and an hour for the
drafting of the applicants’ heads
of argument should be
allowed;
Applicants’
Submission
[14]
6.3.1 When the
applicants’ instructing attorney was reading the second
respondent’s heads of argument and practice note
and when he
was drafting the applicants’ heads of argument and practise
note, he was acting as counsel (an attorney with
right of appearance)
who would be appearing on behalf of the applicants’ at the
application.
Stated case: Taxing
Master:
[15]
6.1.1 It is my submission
there is no basis for this argument since the item was rectified,
nothing was taxed off. The whole time
spend charged is allowed in
toto. The calculation is as follows: R263x4 units = R1052.00 so
R1052.00x4 = R4208.00 plus R526.00
of the remainder of 36 minutes. A
total of R4734.00 was allowed. I then rectified the tariff by saying
R8280.00 – R4734.00
= R3546.00 which was correctly taxed off.
It is further my humble submission that applicants’ attorney
Webbers should familiarise
themselves with the tariff from time to
time.
Finding
I take cognisance of the
arguments of the applicants in paragraph 6.3 of the Notice of Review
as a whole. The arguments might be
correct but are belated. It rather
points to a situation where the applicants have not presented their
case properly at the taxation
hearing. A review is not an extra
opportunity to a taxation hearing; it is a review of the
status
quo.
Further, in
Susanna
Maria Loedolff v Road Accident Fund,
Unreported Case no.
280/2011, Free State Provincial Division, 23 April 2015, Kruger J
pointed out that:
“
Wat die
senioriteit van die regspraktisyn betref, is die posisie by taksasie
dat dit gaan oor die ingewikkeldheid van die saak,
eerder as die
senioriteit of ervaring van die advokaat of prokureur, soos dit deur
die vroeëre Hoofregter gestel is:
“
The measure for
determining what is a reasonable fee is the value of the work that
was done, and the eminence of counsel is not
by itself a good reason
for allowing a larger fee.”
[16]
The Taxing Master did not
act
mero moto
, applied her mind and cannot be found to be
“clearly wrong.”
b)
Item
33
:
[17]
Copying the authorities for court and applicants’ counsel.
R448.00 Taxed: R448.00.
R448-00 not allowed by the Taxing Master.
Finding
This item was not
referred to in the Notice for Review.
c)
I
tems
34, 35, 40 & 41
:
Item 34:
[18]
Traveling to Bloemfontein
15h30-19h30 400 km
R3600.00 Taxed R3600.00
(R1400.00 taxed R1400.00)
Traveling expenditure not
allowed.
Item 35
:
[19]
Provision for toll fees. R120.00 Taxed R120.00. Disallowed in toto.
Item 40:
[20]
Traveling to Johannesburg
15h30-19h30 and 400km.
R3600.00 Taxed R3600.00
(R1400.00 taxed R1400.00)
Disallowed in toto.
Item
41:
[21]
Provision for toll fees. R120.00 Taxed R120.00.
Disallowed in toto.
Applicants’
Submission
:
[22]
6.3.12 by disallowing
travelling expenses and hotel accommodation for an attorney with the
right of appearance (who appears on behalf
of a party as counsel)
under the same conditions as those set out in paragraph 6.3.11 above,
the Taxing Master acted upon the wrong
principle, alternative acted
unreasonable.
Stated case: Taxing
Master
[23]
6.1.2 These items were
taxed off on the basis that there were corresponding attorneys
appointed at the seat of the court who could
have attended the
matter. If this was applied there will be no travelling expenses
incurred. Corresponding attorneys cannot be
used as a post box. This
matter was not complex and needed not an instructing attorney to
incur such expenses. It must be borne
in mind that the counsel was
briefed for this opposed application. I submit that the loosing party
cannot be penalised with costs
which could have been avoided. The
general rule on party and party cases is that cheapest way of
litigation must be followed.
Finding
The Taxing Master did not
act
mero moto
, applied her mind and cannot be found to be
“clearly wrong” in light of the law indicated above. The
same rationale
as at item 28 applies here. In addition, exceptional
circumstances must be shown before the rule that a litigant should
use an
advocate or attorney practising at the seat of the court will
be bend. It has not been shown to exist here.
Windhoek Crushers
(Pty) v Voight and another
1969 (1) SA 574
(SWA) and
Friedrich
Kling v Continental Jewellery Manufacturers
1993 (3) SA 76
(CPD)
applies.
d)
Item
36
:
[24]
Attorney without counsel preparing for the opposed application,
5h00-7h00, R3600.00, Taxed R3600.00.
Disallowed in toto.
Applicants’ case
as
stated in paragraph 6.3.
[25]
Stated case: Taxing
Master
[26]
At paragraph 6.1.3: It is
my submission that attorney has intimate knowledge of the matter and
therefor he/she could not charge
preparation fee since he or she knew
the facts of this application from the beginning.
Finding
It is indeed the case
that Mr. Ebersöhn has and had extensive knowledge of the case
and detail. Again, the Taxing Master cannot
be faulted.
[24]
There is not any substance in the Notice of Review that convinces
that it will be prudent to review
the matter or in the alternative;
to interfere with the decision of the Taxation Master.
ORDER
The application is
dismissed with costs.
M. OPPERMAN, J
On
behalf of the applicants:
Gerrie
Ebersöhn Attorneys
c/o Webbers Attorneys
96 Charles Street
BLOEMFONTEIN
On
behalf of the 2
nd
respondent:
Gouws Vertue & Ass Inc.
4 Genl. Hertzog Street
Dan Pienaar
BLOEMFONTEIN
[1]
Referred
to as “applicants” hereafter.
[2]
Referred
to as “The Taxing Master” hereafter.
[3]
Referred
to as “second respondent” hereafter.
[4]
Index
to the Rule 48 Review Application (Hereafter “Index”) at
pages 43 to 45.
[5]
Index
at pages 46 to 47.
[6]
Heads
of Argument 2
nd
Respondent – Rule 48 at paragraph 27.
[7]
AC
Cilliers,
Law of Costs,
Last Updated: April
2019, http://www.mylexisnexis.co.za/Index.aspx
on 12 May 2019 at 13.02.
[8]
AC
Cilliers,
Law of Costs,
Last Updated: April
2019, http://www.mylexisnexis.co.za/Index.aspx
on 12 May 2019 at paragraph 13.02.
[9]
AC
Cilliers,
Law of Costs,
Last Updated: April
2019, http://www.mylexisnexis.co.za/Index.aspx
on 12 May 2019 at paragraph 13.03
(Issue 28).
[10]
Visser
v Gubb
1981 (3) SA 753
(C)
at 754H-755C.
[11]
Preller
v Jordaan
1957 (3) SA 201
(O) at 203.
[12]
Index
at pages 43 to 45.
[13]
Index
at page 9 (Notice of Review of Taxation in terms of Rule 48).
[14]
Index
at page 10.
[15]
Index
at pages 99 to 100.
[16]
Ocean
Commodities Inc & Others v Standard Bank of SA Ltd & Others
1984 (3) SA 15
(A)
at 22H-I.
[17]
Index
page 44.
[18]
Index
page 44.
[19]
Index
page 44.
[20]
Index
page 45.
[21]
Index
page 45.
[22]
Index
at page 13.
[23]
Index
at page 101.
[24]
Index
at page 44.
[25]
Index
page 10 to 13.
[26]
Index
page 100.