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[2018] ZAFSHC 184
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Kgato Project Management CC v Mangaung Metropolitan Municipality (924/2018) [2018] ZAFSHC 184 (29 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 924/2018
In
the matter between:
KGATO
PROJECT MANAGEMENT
CC
Applicant
and
MANGAUNG METROPOLITAN
MUNICIPALITY
Respondent
CORAM:
OPPERMAN, J
DELIVERED ON:
29 NOVEMBER 2018
REVIEW OF TAXATION
I
INTRODUCTION
[1]
This is a review in terms of Rule 48 of a taxation by the Taxing
Master in the abovementioned matter. On 28 August 2018 the
bill was
set down for taxation. The applicant was represented by Lovius Block
Attorneys and respondent by Phatshoane Henney Attorneys.
[2]
The respondent drafted the bill presented at taxation. The bill was
drafted as a result of a notice of withdrawal and tender
of costs
dated the 23
rd
of April 2018. The Notice of Withdrawal and
Tender of Costs stated as follows:
The
plaintiff hereby withdraws the action instituted against the
defendant and tenders payment of the defendant`s taxed party and
party costs.
[3]
The review is aimed at alleged error by the Taxing Master in regard
to:
Item 28: Counsel`s fees
are excessive
Item 31: Attorney and
client costs
Item 32: Attorney and
client costs
Item 33: Attorney and
client costs
II
THE DISPUTE
[4]
Imperious in this instance is the fact that the parties settled and
presented the amounts taxed off to enable the Taxing Master
to
prepare an allocator for signature. The court is called upon to
decide whether a bill settled by the parties can be taken on
review.
In the alternative; whether the Taxing Master erred.
[5]
The applicants’ submissions in terms of Rule 48(5)(a) to the
stated case by the Taxing Master implores the court for relief.
They
admit the settlement but:
2.
On closer scrutiny of Counsel`s fees being allowed in the amount of
R107 100-00, it is apparent that his fees are excessive
despite
the Plaintiff/Applicant`s having accepted the fee during settlement.
The High Court is however requested to reconsider
the figure as the
fee allowed which now in the circumstances appears to be exorbitant
for the work done. It was also unnecessary
for the
Defendant/Respondent to have briefed a senior advocate from
Johannesburg whereas the services of a local senior counsel
would
suffice.
III
THE LAW
[6]
Rule 48
(1)
Any party dissatisfied with the ruling of the taxing master as to any
item or part of an item which was objected to or disallowed
mero
motu
by the taxing master, may within 15 days after the allocatur
by notice require the taxing master to state a case for the decision
of a judge.
(2)
The notice referred to in sub-rule (1) must—
(a)
identify each item or part of an item in respect of which the
decision of the taxing master is sought to be reviewed;
(b)
contain the allegation that each such item or part thereof was
objected to at the taxation by the dissatisfied party, or that
it was
disallowed
mero motu
by the taxing master;
(c)
contain the grounds of objection relied upon by the dissatisfied
party at the taxation, but not argument in support thereof;
and
(d)
contain any finding of fact which the dissatisfied party contends the
taxing master has made and which the dissatisfied party
intends to
challenge, stating ground of such challenge, but not argument in
support thereof.
[7]
In
Daywine Properties (Pty) Ltd v Murphy and Another
1991(3)
SA 216 (D) it was correctly stated that:
I
confirm the Taxing Master's decision for the simple reason that these
matters were not objected to at the time of the taxation.
Rule 48(1)
is perfectly clear, in my judgment, commencing as it does with the
words:
“
Any
party dissatisfied with the ruling of the Taxing Master as to
any item or part of an item
which
was objected to
or
disallowed
mero
motu
by
the Taxing Master....”
Similarly,
Rule 48(2) envisages that only the matters objected to before the
Taxing Master may be the subject of review because
it entitles the
parties to submit contentions 'including grounds of objection not
advanced at the taxation in respect of any item
or part of an
item
which was objected to before the Taxing Master
or
disallowed
mero motu
by the Taxing Master”.
In
Kruger v Secretary
for Inland Revenue
1972
(1) SA 749 (C) at 750F - G, Van Winsen J made short shrift
of a similar matter by saying succinctly:
“
I
do not deal with the belated objection to item 16 since no objection
was made to the Taxing Master's allowance of this at the
time of the
taxation. It is accordingly not subject to review. (Rule 48(1).)”
[8] Further; as stated by
the authors in
Law
of Costs
:
[1]
The discretion vested in
a Taxing Master is to allow (all) costs, charges and expenses as
appear to him to have been necessary or
proper, not those which may
objectively attain such qualities. His opinion must relate to all
costs reasonably incurred by the
litigant, which imports a value
judgment as to what is reasonable. Moreover, the words ‘reasonable’
and ‘in the
opinion of
the
Taxing Master’ that occurred in the tariff appended to rule 70
imported a judgment not referable to objectively ascertainable
qualities in the items of a bill in question. The discretion to
decide what costs have been necessarily or properly incurred is
given
to the Taxing Master and not to the court.
[9]
The Taxing Master has therefore correctly pointed out that he has a
discretion to award such costs ‘as appears (to him)
to have
been necessary or proper for the attainment of justice or defending
the rights of another party’.
[2]
[10]
Interference
on review is justified where a reviewing court finds that the Taxing
Master has not exercised his discretion properly,
as for example,
when he has been actuated by some improper motive, or has not applied
his mind to the matter, or has disregarded
factors or principles
which were proper for him to consider, or considered others which it
was improper for him to consider, or
acted upon wrong principles or
wrongly interpreted rules of law, or gave a ruling which no
reasonable person would have given.
[3]
[11]
The Taxing Master must be clearly wrong.
In
Ocean
Commodities Inc & Others v Standard Bank of SA Ltd & Others
1984
(3) SA 15
(A) at page 18F-G
Rabie
CJ re-stated the test to be that
the
Court 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 differs so materially
from its own
that it should be held to vitiate his ruling.
III
FINDING
[12]
There is not any substance in the Notice of Review that convinces
that it will be prudent to review the matter or in the alternative;
to interfere with the decision of the Taxation Master.
IV
ORDER
[13]
The application is dismissed with costs
________________
M.
OPPERMAN, J
On
behalf of the applicant: PD YASBEK
Instructed
by: LOVIUS BLOCK
BLOEMFONTEIN
On
behalf of the respondent: LE COMPANIE.
Instructed
by: PHATSOANE HENNEY
BLOEMFONTEIN
[1]
AC Cilliers
:
Law of Costs 3
rd
edition 1997 paragraph 13.03 (Issue 28).
[2]
Visser v Gubb
1981 (3) SA 753
(C) at 754H-755C.
[3]
Preller v Jordaan
1957 (3) SA 201 (O)
203