Summary of Judgment

1. Introduction

The matter concerned review proceedings arising from a taxation process in the High Court. The applicants (who had been plaintiffs in earlier action proceedings) sought to review and set aside a ruling by the Taxing Master that prevented their chosen legal representative—an attorney with High Court right of appearance, but enrolled in another division—from appearing at a taxation in the Free State Division.

The parties were Hannes Marthinus Jonker and six others as applicants, Lambons (Pty) Ltd as first respondent (the former defendant in the underlying action), and Oshene Morobane N.O., cited in her official capacity as Taxing Master of the High Court, as second respondent. The application was opposed by the first respondent.

Procedurally, the dispute followed upon an action for unpaid salaries brought by the applicants against the first respondent. That action was resolved by a settlement agreement concluded on 22 February 2018, which was made an order of court on the same day. The settlement included an obligation on the first respondent to pay the applicants’ claims and taxed costs. The present proceedings arose because the taxation of those costs did not proceed when set down, due to the Taxing Master’s ruling on representation, resulting in a postponement and a subsequent review application.

The general subject-matter of the dispute was therefore the lawfulness/regularity of a Taxing Master’s ruling relating to who may appear at taxation, and the proper procedural framework for challenging such a ruling.

2. Material Facts

It was common cause that the applicants had instituted action proceedings against the first respondent for unpaid salaries, and that the parties concluded a settlement agreement on 22 February 2018 in terms of which the first respondent agreed to pay the applicants the amounts due as well as taxed costs. The settlement agreement was made an order of court on 22 February 2018.

It was also not in dispute that the taxation of the costs was set down for 8 May 2018 before the Taxing Master. The applicants intended to be represented at the taxation by Ms van Deventer, an admitted attorney enrolled in the Gauteng Division who had a right of appearance in the High Court. The first respondent was represented by Ms Van Wyck at the taxation.

The taxation did not proceed because Ms van Deventer was prevented from representing the applicants on the basis that, according to the ruling, only attorneys whose names appeared on the roll of attorneys for the Free State Division were permitted to represent parties at taxation. The taxation was postponed as a result of this decision.

On the merits of the review, the applicants contended that the ruling resulted from a misinterpretation of the Free State Division practice directives. The applicants further alleged conduct by the Taxing Master that, on their version, raised concerns about objectivity, including an alleged suggestion that Ms van Deventer would be allowed to appear if she agreed to waive any right to review the Taxing Master’s rulings during the taxation.

The judgment also recorded that this was the second taxation involving the parties. A previous taxation had been set down for 15 February 2018, and dissatisfaction with rulings at that stage had led to a review application (as described in the judgment). The present application related to the later non-taxation event of 8 May 2018.

3. Legal Issues

The central legal questions were, first, whether the review application was procedurally defective due to the alleged failure to proceed under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), or under Uniform Rule 48 or Uniform Rule 53, and second, whether the application was defective for non-joinder of the Department of Justice.

The principal substantive issue concerned the regularity and correctness of the Taxing Master’s ruling barring the applicants’ attorney from appearing at taxation. This required determining whether the Taxing Master erred in law, misconstrued applicable practice directives, or improperly exercised a discretion (and whether the court should interfere on review).

The dispute thus concerned predominantly a question of law, namely the proper interpretation and application of the right of appearance regime (including statutory provisions and practice directives) to taxation proceedings, together with an evaluative question as to whether the Taxing Master’s conduct disclosed misdirection or error warranting interference.

4. Court’s Reasoning

The court first addressed the points in limine.

On the contention that the application was irregular for non-compliance with PAJA, the court held that PAJA provides a route to review of administrative action, whereas a Taxing Master performs a quasi-judicial function rather than an administrative one. On that basis, PAJA was held to be inapplicable to the type of review before the court.

Regarding Uniform Rule 48, the court explained that the rule is directed at reviews challenging rulings made by the Taxing Master on items in a bill of costs after taxation has proceeded and an allocator has been issued. On the facts, the Taxing Master did not conduct a taxation at all; the review was directed instead at the preliminary ruling excluding the applicants’ representative from appearing. The court therefore held that the case did not fall within the situation envisaged by Rule 48.

As to Uniform Rule 53, the court treated it as a facilitative mechanism aimed at access to the record and reasons, and not as a compulsory procedure in every matter falling within its scope. The court held that Rule 53 exists for the benefit of an applicant, who may employ it to the extent necessary in the circumstances. The court therefore rejected the objection that the application was irregular for not being brought under Rule 53.

On non-joinder, the first respondent argued that because the Taxing Master was a functionary of the Department of Justice, the Department should have been joined. The court rejected this, holding that the Taxing Master had the requisite locus standi to be cited in her official capacity, and that the Department’s joinder was not required in these proceedings.

Turning to the merits, the court framed the decisive question as whether the Taxing Master erred or improperly exercised her discretion in barring the applicants’ legal representative from appearing at taxation. The court applied the established principle that a court will not readily interfere with a Taxing Master’s discretion unless it is shown that the discretion was not exercised judicially, was exercised improperly or on a wrong principle, or that the Taxing Master was clearly wrong, with reference to Wellworths Bazaars Ltd v Chandler’s LTD 1947 (4) SA 453 (T).

The court considered authority on the nature of taxation proceedings, relying on Bills of Costs (Pty) Ltd and Another v The Registrar, Cape, NO and Another 1979 (3) SA 925 (A), where taxation was described as an integral part of the judicial process and (in that historical context) limited appearance before a taxing master to persons permitted to practise in the relevant court. The court then placed significant weight on the subsequent statutory change effected by the Right of Appearance in Courts Act 62 of 1995 (as amended), which extended attorneys’ rights of appearance in the High Court.

On the facts, it was common cause that Ms van Deventer was an attorney who held a High Court right of appearance certificate within the meaning of the relevant sections of the Act. The court analysed the reliance placed by the first respondent on the Free State Division practice directives and on S v Sewnandan 1999 (2) SA 1087 (O). The court held that the practice directives did not provide that only attorneys enrolled on the Free State Division roll may appear at taxation, and that the Taxing Master had misconstrued the practice of the court.

In relation to S v Sewnandan, the court noted that the decision preceded the 2005 amendment introducing section 4(4), and that Sewnandan had held that while attorneys’ right of appearance was extended, their area jurisdiction was not. The court reasoned that section 4(4) specifically grants an attorney with the requisite certificate the right to appear in all divisions of the High Court to discharge the functions of an advocate in “any proceedings”, and the court interpreted “any proceedings” as including appearance before a Taxing Master during taxation.

The court distinguished the statutory right of appearance from the question of an attorney’s right to practise outside their enrolled area, observing that the Right of Appearance in Courts Act had not replaced the Attorneys Act 53 of 1979, and that practising outside an enrolment area remained regulated by sections 20 and 21 of the Attorneys Act. Nonetheless, the decisive error identified was that the Taxing Master incorrectly treated the practice directives and division-based enrolment as a bar to appearance at taxation by an attorney with High Court right of appearance.

The court further recorded that the matter before it involved a second taxation involving the parties and described as “disturbing” the allegation that the Taxing Master had bargained that Ms van Deventer could appear if she waived the right to review. The court emphasised that the Taxing Master performs a function of a judicial nature and that independence and impartiality must be beyond reproach. This evaluative component formed part of the court’s overall assessment of the irregularity in how the exclusion ruling arose.

Finally, on costs, the court applied the ordinary principle that costs follow the result, and held that the first respondent’s legal representative was the substantive cause of the irregularity by incorrectly objecting to the applicants’ appearance, thereby causing the postponement and the wasted costs of 8 May 2018.

5. Outcome and Relief

The court set aside the Taxing Master’s ruling preventing the applicants’ attorney from appearing at taxation. It declared that an attorney who has been issued with a certificate of right of appearance in terms of section 4(2) of the Right of Appearance in Courts Act 62 of 1995 is permitted to appear before the Taxing Master during taxation.

The matter was remitted to the Taxing Master to proceed with taxation of the bill of costs, with the ordinary rules of taxation to apply. The first respondent was ordered to pay the costs of the review and the wasted costs of 8 May 2018 occasioned by the non-taxation of the bill of costs.

The Registrar was directed to forward a copy of the judgment to the Judge President pursuant to the court’s remarks concerning the Taxing Master’s conduct referenced in the judgment.

Cases Cited

Wellworths Bazaars Ltd v Chandler’s LTD 1947 (4) SA 453 (T)

Bills of Costs (Pty) Ltd and Another v The Registrar, Cape, NO and Another 1979 (3) SA 925 (A)

S v Sewnandan 1999 (2) SA 1087 (O)

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000

Right of Appearance in Courts Act 62 of 1995 (as amended)

Attorneys Act 53 of 1979

Rules of Court Cited

Uniform Rule 48

Uniform Rule 53

Held

The court held that PAJA did not govern the review because the Taxing Master performs a quasi-judicial rather than an administrative function. It held that Uniform Rule 48 was not applicable because no taxation had been conducted and no allocator issued, and that Uniform Rule 53 was not peremptory and could not found an objection to the form of the proceedings. The non-joinder point was dismissed because the Taxing Master could properly be cited in her official capacity without joining the Department of Justice.

On the merits, the court held that the Taxing Master’s ruling barring the applicants’ attorney from appearing at taxation was based on a misconstruction of the practice directives and an incorrect understanding of the applicable law. The court held that an attorney holding a right of appearance certificate under the Right of Appearance in Courts Act is entitled to appear in “any proceedings” in the High Court, which the court treated as including appearances before a Taxing Master at taxation. The ruling was therefore set aside, the matter remitted for taxation, and costs awarded against the first respondent including wasted costs.

LEGAL PRINCIPLES

A Taxing Master’s function is quasi-judicial in nature, and review of a Taxing Master’s discretionary rulings is constrained. A court will not interfere unless the discretion was not exercised judicially, was exercised improperly, was exercised on a wrong principle, or the Taxing Master was clearly wrong, including where relevant factors were ignored or irrelevant factors considered.

Taxation is an integral part of the judicial process, and the rights and obligations of litigants regarding costs are not finally determined until costs have been taxed. The entitlement to appear before a Taxing Master at taxation is therefore linked to the entitlement to practise and appear in the High Court.

In interpreting the Right of Appearance in Courts Act 62 of 1995 (as amended), the court applied the principle that an attorney holding the requisite certificate has the right to appear in all divisions of the High Court and to discharge the functions of an advocate in any proceedings, which the court held includes taxation proceedings before a Taxing Master.

Uniform Rule 48 is directed at reviews of taxation items after taxation has proceeded and an allocator has been issued; it does not govern a review aimed at an antecedent ruling that prevents taxation from proceeding. Uniform Rule 53 facilitates access to the record and reasons but is not necessarily peremptory in form for every review, and non-use of Rule 53 does not in itself render such proceedings irregular.

Impartiality and independence are essential to the quasi-judicial function of a Taxing Master, and conduct that appears to compromise impartiality may properly be noted by the court when considering the regularity of the process.