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[2018] ZAFSHC 154
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Razzmatazz Civil (Pty) Ltd v Independent Development Trust (4691/2017) [2018] ZAFSHC 154 (26 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No
:4691/2017
In
the matter between:
RAZZMATAZZ CIVIL (PTY)
LTD
and
THE
INDEPENDENT DEVELOPMENT
TRUST
THE
MINISTER: GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRICA:
DEPARMENT
OF PUBLIC WORKS
REDER
CONSTRUCTION CC
Applicant
First
Respondent
Second
Respondent
Third
Respondent
CORAM:
LOUBSER, J
JUDGMENT
BY
: LOUBSER, J
DELIVERED ON
:
26 JULY 2018
[1]
This is an application by the Applicant in terms of Rule 48 for a
review of the taxation of the Third Respondent’s bill
of costs,
which taxation was held on 27 November 2017. The bill of costs
followed upon a costs order made against the Applicant
by Jordaan,
ADJP, on 12 October 2017 in a Rule 30 application and an application
for conditional condonation. The order relating
to costs in the
two applications reads as follows as far as the Third Respondent is
concerned:
“
The Applicant
is to pay:-
(a)
the
costs of the Rule 30 application and the costs of the conditional
condonation application in respect of the 3
rd
Respondent on attorney and client scale”.
[2]
The taxation was held on an opposed basis with the legal
representatives for both parties present. When the taxing
master
made the final taxation, the Applicant filed a Notice of
Review in terms of Rule 48(1) on 18 December 2018, requiring the
taxing
master to provide a stated case in terms of Rule 48(3).
A perusal of this Notice makes it clear that the Applicant is only
dissatisfied with the taxation of items 86 and 88 of the Bill of
Costs, namely the items in relation to the senior counsel’s
fees in the Rule 30 application and the provisional condonation
application respectively. The fee of senior counsel for his
services in relation to the Rule 30 application amounted to a total
of
R68 827-50
, and his fee for the conditional
condonation application to
R52 440-00
.
[3]
In the Notice it is alleged by the Applicant that the taxing master
failed to take into consideration the extent and the complexity
of
the matters, and that the specified invoice of the counsel for
drafting papers, perusal of documents and consultations was not
properly considered. Moreover, it is alleged that it was
wrongly found that the counsel was entitled to charge “exorbitant”
time for considering the legal position and drafting of letters and
notices which an attorney could have done. Also, that
it was
wrong for the taxing master to allow an hourly tariff for counsel of
R2 600-00
out of own accord, while counsel’s own
invoice showed that he recorded an hourly tariff of
R2 300-00
.
Lastly it is alleged that the taxing master was wrong in deviating
from the general principle of taxing counsel’s
fees.
[4]
The taxing master filed a reply hereto on 9 January 2018, pointing
out that the two applications concerned did not follow the
ordinary
course. Both the applications were heard on 12 October 2017 on
an urgent basis, but the Applicant had only filed
documents in the
conditional condonation application with the Third Respondent at
16h30 on the afternoon prior to the hearings
the following morning.
As for the fee of
R68 827-50
, the legal representative of
Applicant did not dispute the
R2 600-00
per hour fee at
the taxation, but only submitted that the Applicant is not liable for
an increased fee for working after hours.
In this respect the
taxing master refers to Taxation of Costs in the Higher and Lower
Courts: A Practical Guide p.99 paragraph
19.8, where it is
proposed that additional hours and expenses must be considered for
performing functions in urgent applications.
The taxing master
taxed off an amount of
R9 677.50
to this account, on the
basis of
R2 600-00
per hour. Counsel charged
R3 450-00
per hour.
[5]
In the second account the taxing master taxed off altogether
R13 440-00
to bring the hourly fee again to
R2 600-00
.
In this second account, counsel also charged
R3 450-00
per hour. The taxing master points out that the fee allowed was
in accordance with the fees suggested in the Fee Guidelines
of the
Free State Bar.
[6]
Further submissions made by the parties and the taxing master did not
really take the arguments any further.
[7]
On a consideration of the facts of the matter and the submissions
advanced by all the respective parties, it appears that it
is not
preferable that a taxation should be conducted strictly on an hourly
fee claimed by counsel, because such an approach can
promote slow and
ineffective work. The correct approach remains a consideration
of what would be a reasonable fee, overall,
for the work done in all
the circumstances of the case. Since the hourly fee charged in
the present case became a serious
bone of contention between the
parties, I consider it nevertheless appropriate to consider all the
submissions made in that regard
and to reconsider the basis upon
which the amounts were allowed.
[8]
As regards the conditional condonation application, it is indeed
correct that counsel claimed a fee of
R3 450-00
per hour,
which was taxed off to
R2 600-00
per hour. This
amount appears to be in accordance with the fees suggested for senior
counsel by the Free State Bar.
This amount was also not
disputed as being unreasonable at the taxation, and should therefore
be accepted as reasonable in the
circumstances of the case.
[9]
What I find questionable, though, is that the taxing master decided
to break up the day fee for the appearance in court into
an hourly
fee of 5 hours. The day fee for the appearance was not claimed
by counsel in this fashion. In terms of his
account, he claimed
50% of the opposed motion fee, namely
R11 500-00
.
He followed the same route in the Rule 30 application, which resulted
in a day fee of
R23 000-00
for both applications, which
day fee I find reasonable for senior counsel in the circumstances.
It was not necessary to break
up this day fee into hourly fees.
[10]
Viewed as such, the taxing master should have calculated the hourly
fees on a basis of only 10 hours, and not 15 hours.
Therefore,
she should have allowed
R26 000-00
for the hours worked,
plus the
R11 500-00
for the day fee, to a total of
R37 500-00
. The VAT on this amount is
R5 250-00
.
All in all, the taxing master should have allowed
R42 750-00
for counsel’s fees in this application. Counsel claimed a
total of
R52 440-00
, from which amount the taxing master
should therefore have taxed off the amount of
R9 690-00
,
and not
R13 440-00
.
[11]
Turning now to counsel’s account for the Rule 30 application,
it appears that he again charged a fee of
R11 55-00
for the
appearance in court, which amount the taxing master broke up into an
hourly fee for 5 hours. Again, this was not
necessary.
There were only 17.75 hours that had to be decided, and not 22.75
hours. Of these 17.75 hours, counsel charged
R3 450-00
per hour for the 7 hours he took to draw the heads of argument on an
urgent basis. For the remaining 10.75 hours, he charged
R2 300-00
per hour, but the taxing master allowed
R2 600-00
per hour in this respect. This was
obviously wrong. For the 7 hours relating to the heads of
argument, the taxing master
was correct, in my view, to allow only
R2 600-00
per hour. The taxation for this account
should therefore have been as follows:
7 hours x 2 600-00
= 18 200
10.75 hours x 2 300-00
=
24 725
42 925
[12]
The
R42 925-00
for the hours worked plus the day fee of
R11 500-00
totals an amount of
R54 425-00
.
The VAT hereon is
R7 619-50
, resulting in a final figure of
R62 044-50
. Counsel claimed an amount of
R68 827-50
, which means that the taxing master should
have taxed off
R6 783-00
, and not
R9 677.50
.
[13]
It follows that in both the applications, specified under items 86
and 88, the taxing master taxed off too much. This
was to the
prejudice of the Third Respondent. However, the Third
Respondent in it’s papers filed in this review application,
supported the taxation as it stood, and did not urge the court to set
it aside and to allow for the payment of a higher amount
of costs.
[14]
In the premises, I am not inclined to make any order that would place
the Third Respondent in a better position. The
only remaining
question is then whether the circumstances surrounding the two urgent
applications justified a higher fee structure
than is normally
allowed. I think that it does. It is clear that counsel
had to work after hours due to the urgency
of the two matters and the
limited time available, and in such circumstances, counsel is
certainly entitled to charge a higher
fee.
[15]
The following order is therefore made:
The
application for a review in terms of Rule 48 is dismissed with costs.
_______________
P J LOUBSER, J