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[2019] ZAFSHC 175
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Jorian Construction CC v Kopanong Local Municipality and Another (1081/2017) [2019] ZAFSHC 175 (3 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review number:
1081/2017
In
the matter between:
JORIAN
CONSTRUCTION CC
Applicant
and
KOPANONG
LOCAL MUNICIPALITY
1
st
Respondent
RANTOA
SERVICE PROVIDERS
2
nd
Respondent
CORAM:
MATHEBULA,
J
DELIVERED
ON:
03
OCTOBER 2019
Summary
Review of a taxed bill
of costs-Perusal of tender documentation of all bidders not party to
the proceedings before court deemed
unreasonable and unnecessary. –
The documents not placed before court or formed part of the bundles.
- Decision of
the taxing mistress to disallow the disputed items
confirmed.
[1]
This is a review of the taxation of the bill of costs as between
party and party in terms
of rule 48 of the Uniform Rules of Court
presented for taxation by the applicant’s attorneys on 9
September 2018.
[2]
During the taxation of the bill, the applicant was represented by
Mrs. Sandra van Wyk and Mr. Thabo
Mhlokonya appeared on behalf of the
first respondent. The applicant was dissatisfied by the ruling of the
taxing mistress to tax
off items 95 to 118. These are the items that
were referred for review and will deal with them in the following
paragraphs.
Background
[3]
The applicant, an unsuccessful tenderer, sought on an urgent basis an
interim interdict
pending the outcome of the review proceedings. On
28 March 2017 Pohl AJ granted the urgent application with costs to be
costs in
the proposed review application. On 5 June 2018 the decision
of the first respondent to exclude the applicant’s bid from
further evaluation in the assessment process to award the bid was
declared irregular, reviewed and set aside by Van Zyl and Mbhele
JJ.
The first respondent was ordered to pay the costs of the
application. In my view this means that the first respondent
is
liable for payment of costs on a party and party scale.
[4]
The documents listed hereunder were placed before me to consider in
adjudicating this matter.
They are:-
(i)
The
taxed bill of costs referred to in paragraph 1.
(ii)
Notice
of Review for Taxation in terms of rule 48(1).
(iii)
Taxing
Mistress’ Report in terms of rule 48(2).
(iv)
An
undated document titled “Important Facts To Remember”. It
is unclear who the author is of the document. Essentially
it sets out
the chronology of facts and the key issues pertaining to the dispute
between the parties.
(v)
Applicant’s
submissions in terms of rule 48(5)(a) to the Stated Case by the
Taxing Mistress.
Grounds
of Objection
[5]
The applicant was one of the twenty three (23) bidders who had
submitted a bid for the augment water
supply and increase water
pressure - Reddersburg. The gist of the review concerns the
applicant’s attorney’s perusal
fee of the tender
documentation of the other twenty two (22) bidders. The contention is
that the taxing mistress erred in disallowing
all the items.
[6]
The submission is that it was of crucial importance to peruse and
consider all documentation of other
bidders in order to consider and
select which tender documentation was necessary to argue the matter
in court. Accordingly the
perused documents were material to the
matter before court and had evidentiary and probative value. In order
to curtail unnecessary
copies were not made.
[7]
The applicant is relying on the
C.
P. Wentzel v MEC for Health - Department of Health, Free State
Province and another
case.
[1]
In that
matter Moloi J, reiterated the views espoused by Kruger J et al in
their book “
Taxation
of Costs in the Higher and Lower Courts – A Practical Guide
”
the learned authors are of the opinion that “if documents were
discovered and had to be perused, the costs of perusal
should be
allowed”. They continued that not all documents discovered are
used at the trial. Therefore the costs for perusal
should not be
disallowed.
[2]
[8]
In response to the Stated case of the taxing mistress the applicant
submitted that the issue before
the court was differential treatment
meted out by the first respondent. Therefore it was imperative that
some comparative study
is undertaken to demonstrate this aspect. The
perused documents were not irrelevant to the matter and were not
placed before the
court to avoid burdening the record.
Taxing
Mistress’ Stated Case
[9]
In her stated case the taxing mistress tabulated reasons which led
her to disallow the items under review.
She submitted that the court
awarded costs of the application which means costs on a party and
party scale. The matter was between
the cited parties without the
involvement of the other twenty two (22) bidders. Pertinently it was
her view that the tender documents
were not served by the first
respondent to the applicant and perusal of such documents was deemed
to be irrelevant to this matter.
In addition, the tender documents of
other bidders were not placed before the court nor did they form part
of the bundle of documents
for consideration. Lastly that there was
no mention of the other bidders in the opposing affidavit and the
attached Engineers Report
and Bid Adjudication Committee minutes were
adequate to explain the reasons for the selection of the successful
bidder. She reiterated
that there was no cogent reason to peruse the
tender documents of the other bidders. These are in a nutshell the
basis of disallowing
the items as she deemed them to be an irrelevant
exercise on the part of the applicant’s attorneys to peruse
them.
[10] The
issue for determination as couched by the parties is whether the
applicant is entitled to peruse the tender
documentation although
they were not served upon the applicant’s attorneys by the
respondent’s attorneys. At
the centre of the dispute is
the disallowing of the amount of R18 232.00 multiplied by twenty two
(22) totalling the sum of R401
104.00.
Legal principles and
application of the legal principles
[11] It is
settled law that the taxing mistress has a discretion to allow or
disallow any item(s) in a bill presented
to her. In the exercise of
that administrative act which is judicial in nature, she must act
reasonably, in a just and fair manner
based on sound legal
principles. It stands to reason that this court will be reluctant to
interfere with her decisions which largely
required the exercised of
a discretion.
[3]
This
being a review, this court with wider powers of supervision will
interfere with her decision if she exercise it improperly,
failed to
apply her mind or wrongly applied the principle.
[4]
[12] Both the
applicant and the taxing mistress relied on the
Waring
v Mervis and Others
case.
[5]
In that matter a distinction was highlighted between important and
material documents. Material documents include those that
carry
evidential or probative value in proving the case of either party.
Important documents are those upon which a cause of action
or defence
originate.
[13] The main
purpose of a costs order, as I understand it, is to indemnify a
successful party who has incurred expenses
in instituting an action
like in this matter. Essentially it is a refund of the costs
not indemnification of the risk that
a party took in litigating. A
costs order on a strict party and party scale is seldom a full
refund. In the same vein it has been
held that a party must not pay
the costs that are unnecessarily incurred through the failure to take
necessary steps or taking
wholly unnecessary steps.
[6]
[14] The
authors Kruger J et al describe party and party costs as “costs,
charges and expenses which appear to
the taxing master to have been
necessary or proper for the attainment of justice or for defending
the rights of any party.
[7]
It
is a well-known fact that taxing masters (mistresses) do depart from
allowing fees for perusal of documents they deem to be
unreasonable
or unjust.
[15] I have
already stated the reasons advanced by the taxing mistress to
disallow the items under review.
[16] Prior to
launching the application, the applicant’s attorneys directed a
letter to the respondent requesting
reasons as well as the Evaluation
Report, Minutes of both the Bid Evaluation and Adjudication
Committees as well as their reports
and recommendations. The letter
explicitly stated that these documents were required to consider the
prospects of success in the
event the applicant challenges the
decision to award the tender to the successful bidder. These are
usually the documents which
contain all the information relating to
the process of awarding a tender.
[17] In
preparation for launching any litigation a great deal of preparation
is embarked upon to consider the prospects
of success. Granted, it
will not be every fee or expense that will be refunded in the event
of success. In my view there was no
cogent reason(s) to peruse the
voluminous tender documents of each and every bidder. The applicant
was not in litigation with other
bidders. There are no reasons to
peruse the tender documentation of eight (8) bidders whose bids were
declared non-responsive.
These documents had no evidential or
probative value to any party’s case. It will be unreasonable
and unjust to allow a fee
for perusal when it was totally unnecessary
to do so.
[18] It was
equally unnecessary to peruse tender documents relating to others as
well. The tender evaluation methodology
is clearly defined in the
documents provided to the appellant’s attorneys. I could not
find anything in the papers over and
above what is succinctly stated
in the requested and furnished documents. The taxing mistress was
correct that these documents
were not placed before the court nor did
they form part of the bundles. The fact that other bidders were
mentioned in the opposing
affidavit is not a good enough reason to
embark on a laborious exercise to peruse unnecessary documents. The
averments by the respondent
was backed up by documents to that effect
which could be challenged without resorting to an unnecessary
expedition of perusing
tender documentation of all other bidders. The
reasons for disqualification was clearly defined in the minutes.
These being
not signing all documents, non-attendance of compulsory
briefing session or price variation. All these could be dealt
without
perusing documents even of non-responsive bids.
[19] I have
no doubt in my mind that the applicant’s attorneys are entitled
to the perusal of these documents.
That must be collected from the
applicant. The party and party scale is more restrictive in nature
and does not make provisions
for allowing fee for perusal in the
context of this court order, as the taxing mistress correctly
concluded. I conclude that
it was contrived for the applicant’s
attorneys to claim such fees when there was no basis for it.
[20] I do not
understand Kruger J et al as well as Moloi J in C. P. Wentzel supra
to mean that all documents if discovered
and had to perused should be
allowed. In any event, in this matter it was unreasonable and
unnecessary to read the documents and
seek to discover the fee for
perusal based on a party and party costs order. The discretion of the
taxing mistress is paramount
taking into consideration the context
that the costs order was made by the court. The above lead me to the
conclusion that the
taxing mistress did not act wrongly or misapplied
the principles in disallowing fees for perusal of the items under
review.
[21] It is
within my discretion to make any costs order that I deem just and
equitable after consideration of the facts
and obviously
circumstances of this matter. The norm in matters of this nature is
that nominal costs are awarded in favour of the
successful party and
I fix the amount at R1 500.00.
Order
[22] It is
ordered that:-
22.1. The review is
dismissed.
22.2. The applicant is
ordered to pay the costs of the application in the sum of R1 500.00.
M. A. MATHEBULA, J
On
behalf of applicant:
Gous Vertue & Associates Incorporated
On
behalf of respondents: Mhlokonya Attorneys
/roosthuizen
[1]
Case No 1229/2011 (8 May 2014)
[2]
Taxation of Costs in the Higher and Lower Courts – A
Practical Guide at page 44
[3]
Gentech Engineering Plastics CC v Sheldon Maurice Zimmer and 3
others (2462/2008) 2013 ZAELPEHC 16 (1 April 2013).
[4]
President of the RSA v Gauteng Lions Rugby Union 2002 (2) SA 64
(CC).
[5]
1970 (3) SA 239 (W) 243 F-H
[6]
Gamlam Investments (Pty) Ltd v Trillion Cape (Pty) Ltd
1996 (3)
SA 692
(C) at 701 (C)
[7]
Kruger J et al page 13 para 3.1