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[2019] ZAFSHC 144
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Daka v Government of the Republic of SA and Others (4053/2018) [2019] ZAFSHC 144 (29 August 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
4053/2018
In the Matter between:
STHETHO HENDRICK
DAKA
Applicant
and
THE GOVERNMENT OF THE
REPUBLIC OF SA
1
ST
Respondent
THE MINISTER OF
AGRICULTURE FORESTRY
&
FISHERIES
2
nd
Respondent
THE MINISTER OF PUBLIC
WORKS
3
RD
Respondent
CORAM:
POHL, AJ
DELIVERED ON:
29 AUGUST 2019
[1] This is an
application for the review by the third respondent of the taxation of
two bills of costs by the taxing master.
For the sake of
clarity I shall refer to the parties as in the main application.
BACKGROUND:
[2] In the main
application, the applicant, in essence, moved for an
order that the respondents be ordered to
furnish the applicant
with a summary of rentals he had already paid in respect of a farm
that he leased from the first respondent.
He then further moved that
the farm be transferred to him upon payment of R466 600.00, less
the total amount of such rentals
he had already paid.
[3] The farm in question
is situated in the Xariep District in the vicinity of the town of
Petrusburg. The applicant consulted
and instructed his
attorney, Mr. Van Der Berg of the firm
Hugo
Van Der Berg Attorneys
from Petrusburg to bring the application. Since Mr Van Der Berg
does not practice at the seat of this Court, he instructed
his
correspondent in Bloemfontein, Messrs.
Phatshoane
Henney Inc.
to do the necessary, which
inter
alia
included instructing counsel in Bloemfontein to draw the relevant
application.
[4] It appears from the
papers that served before me that an employee of the second
respondent, a Mr Kotze, who acted
as a mentor and
agricultural advisor of the applicant, handed over a whole file
containing documentation in respect of this
farm to the applicant’s
attorney Mr Van Der Berg of Petrusburg. This file is referred
to in the relevant bills of costs
as “The Blue File”. It
is also important to have regard to the fact that the applicant
himself is apparently
illiterate.
[5] Mr Van Der Berg then
made a copy of the contents of this file for his own records and
furnished the blue file to his correspondent,
Phatshoane
Henney Inc.
in
Bloemfontein, who in turn also provided Counsel with a copy of
same together with his abovementioned instructions.
[6] On 15 November 2018,
Mathebula J ordered, by agreement, that the matter be
removed from the roll and that
the third respondent must pay the
applicant’s costs on a party and party scale.
[7] Two bills of costs
were then presented for taxation on behalf of the applicant. The one
in respect of the fees and disbursements
due to
Phatshoane
Henney Inc.
and
the other in respect of the fees and disbursements due to
Hugo
Van Der Berg Attorneys.
[8] After taxation,
the third respondent filed a notice of review. This initial notice of
review in terms of Rule 48 by the
third respondent was later
amended. The third respondent now prays that the review be
upheld with costs and that items 2
and 4 of the bill of
Hugo
Van Der Berg Attorneys
be
referred back to the taxing master for reconsideration and that item
5 of that bill and items 1, 3 and 4 of the bill of
Phatshoane
Henney Inc.
be
taxed off.
[9] Item 2 of the bill of
Hugo Van
Der Berg Attorneys
reads
as follows: “Receive and peruse relevant correspondence and
instruction documents pertaining to the merits of the matter
(101p –
80f) R4 760.00.” R595.00 was taxed off this amount
at the taxation. Item 4 of the bill reads
as follows: “Receive
and peruse blue file with documents obtained from the department of
Agriculture during proceedings (674p
– 550f recovered)
R32 725.00.” R5950.00 was taxed off at
taxation. Item 5 of the bill reads as follows:
“1 x copy to
keep R2 696.00.” It apparently relates to the blue
file and nothing was taxed off this amount
at taxation.
[10] Item 1 of the bill
of
Phatshoane Henney Inc.
reads as follows: “Receive
and peruse relevant correspondence and instructing documents from
correspondent pertaining to merits
of the matter. (101p – 80f)
R4 760.00.” R595.00 was taxed off this amount at
taxation. Item 3 reads as follows:
“Receive and peruse blue
file with documents obtained from the Department of Agriculture
during proceedings. ( 674p –
550f recovered). R32 725.00.”
R 5950.00 was taxed off at taxation. Item 5 of the bill reads
as follows:
“ 1 x Copy made for brief. (674p) R2696.00”
It apparently relates to the blue file and nothing was taxed off this
amount
at taxation
THIRD RESPONDENT’S
SUBMISSIONS:
[11] It is submitted on
behalf of the third respondent that the taxing master failed to
exercise her discretion properly and that
in respect of items 2 and 4
of
Hugo Van Der Berg’s
bill, “a mere glance”
at most of the documents, would suffice to establish that same
will not take the
issue between the parties any further and the
allowance of a full perusal fee thus had an unreasonable result.
In respect
of item 5, the submission is that the instructing
attorney should have only supplied the relevant portions of the
documentation
to the Bloemfontein correspondent and not everything.
By not doing so, it led to unnecessary duplication and the
unreasonable
escalation of the costs of litigation.
Alternatively, it was the duty of the instructing attorney only
to peruse
the documentation and not both sets of attorneys.
With regards to items 1 and 3 of
Phatshoane Henney’s
bill,
the submission is that it amounts to unnecessary duplication of
work which, at best, should have been done
by the
instructing attorney alone and not both sets of attorneys. In
respect of item 4, the submission is that a copy of
all the documents
need not have been in counsel’s brief and should thus have been
disallowed.
GENERAL PRINCIPLES
APPLICABLE TO TAXATION REVIEWS:
[12] A Court reviewing a
taxation will only interfere with the ruling of the taxing master if
it is satisfied that the taxing master
was clearly wrong. It 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 differ so materially from its own that it should
be held to vitiate his/her ruling. See
Ocean
Commodities Inc. & Others v Standard Bank of SA & Others
1984
(3) SA 15
at 18F – G.
[13] If a litigant does
not reside at the seat of the Court where the litigation is being
conducted, he will be entitled to
enlist the services of one
attorney where he resides and another at the seat of the Court. If he
is successful and is awarded the
costs of the litigation, he
will be entitled to recover from the unsuccessful party the
reasonable costs of both attorneys.
THE ISSUES BEFORE
THIS COURT:
[14] Although not really
in dispute, it must be accepted that the applicant, who
resides near Petrusburg, was
entitled to instruct an attorney
in Petrusburg, namely
Hugo
Van Der Berg
and
also an attorney in Bloemfontein at the seat of the Court, namely
Phatshoane
Henney Inc.
He
was also entitled to utilise the services of counsel. In view
of the order as to costs which was in his favour, he
would thus
be entitled all reasonable costs in respect of both sets of
attorneys.
[15] The argument raised
on behalf of the third respondent that “a mere glance” at
the documentation would have revealed
that not all the documents
would take the issue further, holds no water in my view.
Firstly, the bulk of the
documentation consisted of the
so-called blue file. The source of that file was an
employee of the second respondent.
The latter clearly
considered all the documentation important enough to hand over to the
applicant. The second respondent
did not deem it necessary to
sift through these documents. It thus begs the question: Why
should the applicants attorneys
have done so? Secondly, the
applicant is illiterate and consequently his attorney had to read the
documentation so as to
establish its relevance and importance. I
align myself with the decision of
East London Municipality v
South African Railways and Harbours
1953 (1) SA 433
(E) at page 437F-G the following dicta appears:
“
It seems to me
that the attorneys of the plaintiff did have the right to discovery
and to peruse them, and to charge for that
perusal….
In the same way the
assurance that they were irrelevant cannot prevent the other party
from perusing them, A document may
not advantage the contention
of one party or be relevant to facts to be proved by that party,
but may advantage facts the
other party seeks to prove, and so
be very relevant as regards that party”
And at page 438A:
“
It seems to me
that every document relates to the matters in question in the action
which, it is reasonable to suppose,
contains information
which may – not must – either directly enable the party
requiring the affidavit either to advance
his own case or damage the
case of his adversary.”
[16] Mr Van Der Berg,
the applicant’s Petrusburg attorney had the professional duty
to properly read, as opposed
to “merely glance” at
all the documentation provided to him. It was clearly all along
the intention of Mr Van
Der Berg to utilise his correspondent in
Bloemfontein and counsel to draw the necessary papers. To that
end, he had
to provide all the documentation to his
correspondent,
Phatshoane
Henney Inc.
in
Bloemfontein. If, during the drafting of the papers he
was required to take instructions from his client in
Petrusburg,
he, at the very least, had to have all the documents available to do
so. He was therefore entitled to make
a copy of all the
documents for his file.
[17]
Phatshoane
Henney Inc.
being
the attorneys at the seat of the Court and who were the attorneys in
Bloemfontein, who physically briefed counsel to
draw the
necessary papers, not only had a duty to make a copy of all
documentation for counsel, but had a duty to appraise
themselves of the contents of all the documentation, so as to
properly provide counsel with the correct and a comprehensive set
of
instructions. They were not just a so-called “post box”
for the Petrusburg attorney. It must further be remembered
that when
a draughtsmen, such as counsel in this case, draws
papers, it is a process by which all the available
facts must
first be assimilated. Thereafter, he must then
extrapolate the relevant facts, which may
inter
alia,
be
contained in the said documentation. Those facts must then be
included in the pleading or affidavit that he is drawing,
so
that it ultimately supports the relief claimed within the legal
framework. It is impossible to do so unless both counsel and
the
attorneys are in possession of all documentation and are fully aware
of the contents thereof. If not, some important
fact may
be overlooked to the detriment of their client.
[18] In the premises,
I am of the view that none of the objections raised by the third
respondent referred to in paragraphs
[8], [9] and [10],
supra should be upheld. Having regard to the test and legal
principles that I should apply in reviews
of taxation such as the
present, I find that the taxing master cannot be faulted in the way
she exercised her discretion
in casu.
In the result,
I make the following order:
ORDER:
“
The
review of the third respondent against the bills of costs of
Hugo
Van Der Berg Attorneys
and
Phatshoane
Henney Inc,
is
dismissed.”
________________
L.
LE R. POHL, AJ
On behalf of applicant:
J
P OTTO
PHATSHOANE HENNEY INC.
BLOEMFONTEIN
On behalf of the third
respondent:
C CAWOOD
STATE ATTORNEY
BLOEMFONTEIN