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[2018] ZALMPPHC 17
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Maja v Absa Bank Limited and Another (968/12) [2018] ZALMPPHC 17 (18 April 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 968/12
Not
reportable
Not
of interest to other judges
Revised.
18/4/2018
In
the matter between:
BETTY
KGOMOTLOKOA
MAJA
PLAINTIFF
AND
ABSA BANK
LIMITED
FIRST
DEFENDANT
NTJATJA
APHANE
SECOND
DEFENDANT
REVIEW
JUDGMENT – TAXATION
KGANYAGO
J
[1] The defendants are
dissatisfied with the rulings of the Taxing Master relating to the
items taxed off on their bill of costs.
The defendants have made
their submissions to the Taxing Master in terms of Rule 48(1) of the
Uniform Rules of Court (“the
Rules”). The Taxing Master
has made his stated case in terms of Rule 48(5)(a) and the plaintiff
has also made her submissions
in terms of Rule 48(5)(a).
[2] The matter has now
been laid before me for a decision. Rule 48 (6) (a) read as follows:
“
The
Judge may:
(i)
Decide
the matter upon the merits of the case and submission so submitted;
(ii)
Require
any further information from the Taxing Master;
(iii)
If
he or she deems it fit, hear the parties or their advocates, or
attorneys in his or her chambers; or
(iv)
Refer
the case for decision to the court.”
[3]
The Taxing Master in his stated case has conceded that the costs of
the counsel were not supposed to be taxed off as on the
4
th
of February 2016 it was ordered that the plaintiff’s case is
dismissed with costs. With this concession I don’t find
any
need to require further information from the
Taxing
Master, or to hear the parties or their counsels/attorneys in my
chambers. I also don’t find any need to refer the
case for
decision to the Court. I will therefore proceed to act in terms of
Rule 48 (6)(a)(i) as I am having sufficient information
at my
disposal to finalize the matter.
[4]
Both the plaintiff and the defendants’ are in agreement that
items in
the
defendants’ bill of costs except for counsel’s fees,
travelling and accommodation expenses were settled by the parties
on
the date of taxation. The issue that I am called upon to determine is
whether the Taxing Master has exercised his discretion
properly in
disallowing the counsel’s fees, travelling and accommodation
expenses.
[5] The general rule is
that costs follow the suit. A costs order is intended to indemnify
the winner to the extent that he/she
is out of pocket as a result of
pursuing the litigation to a successful conclusion. The Taxing Master
has to be satisfied that
indeed the expenses claimed will leave the
winner out of pocket.
[6]
In President of RSA v Gauteng Lions Rugby Union
2002 (2) SA
64
(CC)
at 73 C-D Kriegler
J said:
“
It
is settled law that when a court reviews a taxation it is vested with
the power to exercise the wider degree of supervision identified
in
the time-honoured classification of Innes CJ in the JC1 case. This
means:
‘…
that
the court must be satisfied that the Taxing Master was clearly wrong
before it will interfere with a ruling made by
him…
viz
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.’
[7]
The Taxing Master must allow fees and disbursements that are
reasonable and necessary to pursue a successful litigation. The
defendants’ witnesses travelled from Cape Town and Pretoria
respectively to Polokwane for the purposes of the trial, and
their
evidence was necessary to attain justice. The defendants’
counsel and attorney had to travel from Pretoria to Polokwane
in
order to represent the defendants’ in this matter. Both
defendants’ witnesses and legal representatives had to be
accommodated in Polokwane overnight. In my view, it was necessary for
the witnesses, the defendants’ counsel and attorney
to travel
from their respective places and be accommodated overnight in
Polokwane which is nearer to Court. Therefore, in my view
the
travelling and accommodation costs or expenses for defendants’
witnesses and legal representatives were necessary costs
or expenses
incurred in attaining a successful litigation. It will be up to the
Taxing Master to determine whether the costs or
expenses incurred are
reasonable or not.
[8]
The Taxing Master has already conceded in his stated case that the
costs of the counsel for the 4
th
February 2016 were not supposed to have been taxed off.
[9]
In my view there are sufficient reasons to interfere with the Taxing
Master’s decision as he had fundamentally erred in
disallowing
the defendants’ legal representatives’ appearance fee,
travelling and accommodation costs and/or expenses.
[10]
Under the circumstances the review application stands to succeeds on
the points raised by the defendants. However, on the items
which the
parties have settled, their agreement stands.
[11] In the result I
make the following order
11.1 The Taxing Master’s
allocatur is set aside and the matter is remitted back for taxation
afresh before another Taxing
Master in the light of this judgment and
also in the light of such information and argument as the parties may
present on that
occasion.
11.2 The items which the
parties have settled upon remain settled.
11.3) No order as
to the costs.
________________________
MF KGANYAGO
JUDGE
OF
THE
HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
I agree
____________________
MV
SEMENYA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
1.
For
the Plaintiff
:P E Mashola
& Company Inc
2.
For
the Defendants
:Tim du Toit Inc
3.
Date
of Judgment
: