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[2019] ZAFSHC 120
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Jacoti Construction CC v PHG Group CC (6006/2017) [2019] ZAFSHC 120 (18 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 6006/2017
In
the matter between:
JACOTI
CONSTRUCTION CC
Plaintiff
(Reg.
No. 2005/061770/23)
and
PHG
GROUP
CC
Defendant
(Reg.
No. 1993/024229/23)
CORAM:
MOROBANE,
AJ
JUDGMENT
BY:
MOROBANE,
AJ
HEARD
ON:
IN
CHAMBERS
DELIVERED
ON:
18
JULY 2019
[1]
This
is a review of taxation in terms of Rule 48 of the Uniform Rules of
Court. The plaintiff objected to certain rulings made by
the taxing
master during the taxation of a bill of costs as between party and
party scale.
[2]
The
facts of the matter are as follows. The defendant excepted to the
plaintiff’s combined summons and particulars of claim
on the
basis that they lack averments to sustain a cause of action for the
relief claimed therein. The exception was upheld and
the plaintiff
was ordered to pay the cost of that application. During the taxation,
the taxing master made rulings on certain items
of the bill of costs
to which the plaintiff objected.
[3]
In
its notice to review, the plaintiff alleged that items 1 to 15 and 23
to 31 reflect attorney and client fees. It also alleged
that item 54
was allowed by the taxing master without investigating the documents.
As prompted by the plaintiff’s notice,
the taxing master filed
a stated case in terms of the rules. However, no further written
submissions were received from the parties.
In terms of Rule 48(6),
the stated case together with the plaintiff’s notice to review
were placed before me for a determination.
[5]
Items
4, 5, 7, 26 and 30 were disallowed in toto and there is no reason why
they were included in the review. The taxing master
stated that the
objections by the plaintiff should be rejected for lack of substance
and be dismissed. She allowed items 1, 2,
3, 6, 11, 23 & 28 as
they appear to be necessary to enable the defendant to defend the
matter and to raise an exception. The
amounts of R119.00, R117.50,
R117.50, R238.00, R119.00 and R119.00 in respect of items 2, 3, 6,
11, 12, and 23 and were taxed off
in order to conform to Rule 70(9).
She also allowed items 8, 9, 10, 13, 14, 15, and 27 as party and
party costs. The value added
tax (VAT) was deducted in respect of
items 31 and 54, but the fee was regarded as reasonable.
[6]
Attorneys’
fees and disbursements in a party and party bill of costs in the High
Court, are taxed in accordance with the provisions
of Rule 70(3) of
the Uniform Rules which provides that:
‘
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]
It
is trite law that on review, a court will not interfere with the
taxing master’s ruling unless it is satisfied that the
taxing
master was clearly wrong.
[1]
The taxing master correctly considered whether fees are necessary for
the attainment of justice in light of defending the rights
of the
party whose costs are being taxed. Her approach in this matter cannot
be faulted.
[8]
In
President of the Republic of South Africa & Others v Gauteng
Lions Rugby Union & Another
[2]
the general principle was restated as follows:
When
taxing a party and party bill of costs the object of the exercise is
to ascertain how much the other side should contribute
to the
reasonable fees the winning party has paid or has to pay on her or
his side. Or, to put it differently, how much of the
client’s
disbursement in respect of her or his own counsel’s fees would
it be fair to make recoverable from the other
side?’
[15]
The
reviewing court will not interfere with the decisions of the taxing
master, unless it is found that he has not exercised his
discretion
properly, for example, has not applied his mind to the matter, or
disregarded factors or principles which were proper
for him to
consider, or acted upon wrong principle or wrongly interpreted the
rules of law.
[3]
I am satisfied that the taxing master’s ruling were justified.
The items under review are indeed on a party and party scale.
Under
the circumstance, the taxing master’s discretion cannot be
interfered with.
[16]
In
terms of Rule 48(7) the judge or the court deciding the matter may
make such order as to costs of the case as he or it may deem
fit. A
cost order would not be appropriate on the basis that no written
submissions were made by the defendant.
[17]
ORDER:
1.
The
review is denied and the application is dismissed.
2.
There
is no order in respect of costs.
V.M.
MOROBANE, AJ
On
behalf of the plaintiff:
SJ van Biljon
Instructed by:
JG
Kriek & Cloete Attorneys
BLOEMFONTEIN
On
behalf of the defendant:
HB Steyn
Instructed
by:
Neuhoff
Attorneys
BLOEMFONTEIN
[1]
Ocean Commodities Inc & Others v Standard Bank of SA Ltd &
Others
1984 (3) SA 15
(A) at 18F-G
[2]
President of the Republic of South Africa & Others v Gauteng
Lions Rugby Union & Another 2002 (SA) 64 (CC) at 85C-E para
47
[3]
Preller v Jordaan
1957 (3) SA 201
(O) at 203