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[2019] ZAFSHC 130
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Jacoti Construction CC v PHG Group CC (6006/2017) [2019] ZAFSHC 130 (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
(Reg.
No.
2005/061770/23) Plaintiff
and
PHG GROUP CC
(Reg.
No.
1993/024229/23) Defendant
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.
[4]
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.
[5]
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.'
[6]
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.
[7]
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?'
[8]
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.
[9]
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.
[10]
OR
D
ER:
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
(0) at 203