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[2018] ZAKZPHC 39
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Designer Studio Investments (Pty) Ltd v Sheriff of the High Court Durban Coastal (2239/2018P) [2018] ZAKZPHC 39 (22 August 2018)
YES
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
REPORTABLE:
YES
CASE
NO: 2239/2018P
In
the matter between:
DESIGNER
STUDIO INVESTMENTS (PTY)
LTD
APPLICANT
and
THE
SHERIFF OF THE HIGH COURT DURBAN
COASTAL
RESPONDENT
ORDER
Having
considered the matter and after hearing counsel, I make the following
order:
1.
The application for condonation is struck off from the roll.
2.
The taxing master is directed to set down the sheriff’s account
which was presented by the applicant under case number
1043/2017 for
taxation and to tax it accordingly.
3.
Each party is to pay its own costs.
JUDGMENT
Date
Delivered: 22 August 2018
MASIPA
J
Introduction
[1]
This matter comes before court as an application for condonation for
non- compliance with Uniform rule 68(3)
(b)
. The applicant’s
heads of argument were also filed late. In terms of KwaZulu-Natal
Practice Directive 9.4.1, an applicant’s
heads must be filed
ten clear court days prior to the date of the hearing. For the
applicant to have complied with the practice
directive, its heads of
argument ought to have been filed by 20 July 2018 and not on 25 July
2018 as they were. This meant that
the applicant’s heads of
argument were three days late. As provided for in Practice Directive
9.4.3, the applicant applied
for condonation of the late filing of
its heads of argument which was unopposed. I granted this application
after due consideration.
The matter proceeded to be argued in respect
of the main condonation application.
The
facts
[2]
During July 2017, the respondent, a sheriff of the High Court, Durban
Coastal appointed in terms of the Sheriffs Act 90 of 1986,
received
instructions to execute two eviction orders obtained in favour of the
applicant. The evictions were scheduled for 7 July
2017. Pursuant to
evaluating the nature and extent of the work to be carried out,
the respondent furnished the applicant’s
attorneys with a
quotation dated 5 July 2018 to the value of R36 275. This amount was
payable before the execution services could
be carried out by the
respondent.
[3]
On 7 July 2017, having received the required payment, the respondent
executed his duties as instructed. On 28 July 2017 the
respondent
rendered his final account in the form of a tax invoice (the account)
to the applicant’s attorney. The total amount
for services
rendered was R47 424 and the tax invoice reflected an amount of R11
149 as the balance due, owing and payable.
[4]
On 10 August 2017, the applicant’s attorney sent an email to
the respondent taking issue with the fees charged. The respondent
provided his response on 12 September 2017, a month later, setting
out how the amount was calculated. Further correspondence was
exchanged between the parties on 19 October 2017 which related to
payment of the respondent’s account. Thereafter no
communication
was exchanged between the parties until 1 December
2017.
[5]
On 1 December 2017, the applicant’s attorneys forwarded a
letter to the respondent requesting that the account be taxed.
The
respondent’s office replied to the letter and advised that
taxing of the account should have occurred within 90 days
from the
date when the account was rendered, which was 28 July 2017. The
respondent stated that the 90 day period as contemplated
in rule
68(3)
(b)
had since lapsed. In view of this, the respondent
contended that the applicant was precluded from having the invoice
taxed and demanded
that payment of the outstanding amount be
effected. The contention relating to the 90 days was at that point
disputed by the applicant’s
attorneys.
[6]
No further steps were taken by the applicant until 12 January 2018
when it served a notice of intention to tax on the respondent.
The
respondent instructed his attorneys to oppose the taxation and a
notice to oppose taxation was filed on 15 January 2018. The
taxation
was set down for 12 February 2018.
[7]
On 12 February 2018, a point in limine was raised before the taxing
officer to the effect that the notice of taxation was delivered
outside the 90 day period as prescribed by rule 68(3)
(b)
.
After hearing both parties, the taxing officer agreed with the
respondent and directed that the applicant apply for condonation
for
its late request to tax the respondent’s account.
The
issues to be decided
[8]
The issues to be decided are whether or not the taxing officer was
correct in directing the applicant to apply for condonation
and if
so, whether good cause exists to condone the applicant’s
non-compliance with rule 68(3)
(b)
.
Contentions
by the parties and analysis
[9]
Nazeema Ismail, who deposed to the applicant’s papers conceded
that the request for taxation of the sheriff’s account
was made
outside the 90 day period prescribed in rule
68(3)
(b)
. She however contended that the onus was on the
respondent to set the bill down for taxation when he first became
aware of the
challenge to the account.
[10]
The legislature elected to leave the issue of who bears the onus to
request taxation of the sheriff’s account open. This
is unlike
in the magistrates’ courts, where Magistrates’ courts
rule 34(3)
(a)
makes provision for any party having an interest
in the sheriff’s account being taxed to set it down for
taxation. Both parties
in this matter were aware of the dispute
regarding the respondent’s fees as early as 10 August 2017.
Therefore, any one of
them could have set the matter down for
taxation. While the magistrates’ courts rules provides for
interested parties to
tax the account, rule 34(2) requires sheriffs
to state on their accounts that parties may require the account to be
taxed. This
can be construed as placing a duty on the debtor to
arrange for the taxation of the account. No such duty arises in this
court.
It would however be reasonable to adopt the same approach.
[11]
In terms of Uniform rule 68(3):
‘
(a)
Where any dispute
arises as to the validity or amount of any fees or charges, or where
necessary work is done and necessary expenditure
incurred for which
no provision is made, the matter shall be determined by the taxing
officer of the court whose process is in
question.
(b)
A request to tax an
account of a sheriff shall be done within 90 days after the date on
which the account of which the fees are
disputed has been rendered.’
[12]
Mr
Hattingh
who appeared for the applicant argued that there
was a duty on the respondent to tax his account once a dispute arose
on 10 August
2017, and further that the role of the taxing officer as
envisaged by rule 68(3)
(a)
is at this stage not to tax the
account but to rather determine the dispute.
[13]
He argues that this provision must be read separately from the
provision in rule 68(3)
(b)
which requires taxation of an
account within 90 days. If this contention is correct it would
mean that a dispute must be referred
to the taxing officer for
resolution and only if the resolution fails, should the account be
referred for taxation within 90 days.
[14]
This contention is refuted by Mr
Van der Westhuizen
who argues
that rule 68(3)
(a)
and
(b)
must be read together and
are intertwined. According to him, once a dispute arises, a request
to tax the account must be made within
90 days. This he submitted is
because the legislature would have taken cognizance of the fact that
the sheriff’s fees are
used to operate his office and would
have contemplated 90 days as being a reasonable period for him to
wait for his fees.
[15]
I agree with the respondent’s submission in this regard. It
makes no sense that the disputed account would be referred
to the
taxing officer for determination in any form other than that of
taxation. If that was the case, any other officer
could have been
appointed to resolve the dispute before the account was referred for
taxation by a taxing officer.
[16]
Once it is accepted that the resolution of the dispute envisaged in
rule 68(3)
(a)
is through taxation, it follows that rule
68(3)
(b)
sets out the procedure to be followed to initiate the
taxation process.
[17]
In terms of rule 68(3)
(b)
the time period to request a
taxation is 90 days after the date when the account was rendered. In
this case, the account was rendered
on 28 July 2017. In calculating
days referred to in the Uniform Rules, rule 1 must be taken into
account which provides that in
computing court days Saturday, Sunday
and public holidays are excluded. Taking into account the definition
of days as applicable
in the rules, the 90 day period would have
expired on 1 December 2017.
[18]
The second issue which arises in the matter is linked to whether or
not the taxing officer was correct in directing the applicant
to
apply for condonation. The issue being what the legislature
anticipated by the use of the phrase ‘a request to tax the
account’ in rule 68(3)
(b)
. Does this relate to the
normal meaning of the word ‘request’ in the
ordinary grammatical meaning? If so, then
the applicant’s
request in the form of the letter dated 1 December 2017 would suffice
and there would be no need for condonation
since the request would
have been made on the last court day of the 90 day period. The
request for taxation in the form of a letter
by the applicant
was timeously made if such letter constitutes a request as
contemplated by the rules.
[19]
In
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18 the court had the following to say about
interpretation:
‘
.
. .Interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of
the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context in which the provision
appears;
the apparent purpose to which it is directed and the material known
to those responsible for its production. Where more
than one meaning
is possible each possibility must be weighed in the light of all
these factors. The process is objective, not
subjective. A sensible
meaning is to be preferred to one that leads to insensible or
unbusiness like results or undermines the
apparent purpose of the
document.’ (Footnote omitted)
This
was followed in
Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd
2016 (1) SA 518
(SCA) at 525-527.
[20]
The word ‘request’ is defined in the Oxford South African
Concise Dictionary 2 ed (2010) as ‘an act of asking
politely or
formally for something’. In my view, it cannot be correct that
the legislature contemplated the service and filing
of a formal
notice of taxation when it used the word ‘request’
firstly, because this goes against the principles of
interpretation.
Another reason is that rule 70 dealing with taxation makes specific
reference to a notice of taxation which is
clearly distinguishable
from a request to tax.
[21]
In
Momentum Life Assurers Ltd v Thirion
[2002] 2 All SA 62
(C)
para 23 the court had opportunity to consider the use of the word
‘request’ in respect of a request for a postponement
as
used in Magistrates’ courts rule 31(1) and concluded that it
may be interpreted as referring to an informal application
which does
not require compliance with any prescribed rule. In view of
this, the court found no reason why a formal application
which did
not comply with the rules could not be treated as a request.
Conclusion
[22]
In my view, a request to tax as provided for in rule 68(3)
(b)
is
to be made prior to the formal taxation process. The purpose of this
may be to notify the other party of one’s intended
action
should the parties fail to agree on the account. The applicant’s
request was therefore timeously made and it was unnecessary
to apply
for condonation.
[23]
It is clear that the respondent calculated the 90 day period using
calendar days and not court days, hence their insistence
on lateness
and condonation. This error was perpetuated by the taxing officer who
insisted on condonation being made by the applicant.
[24]
I find in this matter that the applicant’s letter of 1 December
2017 amounted to a request as envisaged in rule 68(3)
(b)
. The
main condonation application was therefore not necessary and the
direction by the taxing master was misguided. In respect
of
costs, find it judicious that each party should bear their own costs.
__________________
Masipa
J
DETAILS
OF THE HEARING
Date
of Hearing:
3 August 2018
Judgment
delivered:
22 August 2018
APPEARANCES:
For
the applicant:
Adv C Hattingh.
Instructed
by:
Naidoo and Co Incorporated.
For
the respondent:
Adv A Van Der Westhuizen.
Instructed
by:
Kershnie Govender Attorneys, Durban North.