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[2017] ZAGPPHC 235
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Tlhole v Road Accident Fund (63535/2013) [2017] ZAGPPHC 235 (10 March 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
number: 6353512013
Date:
10/03/17
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MSTLHOLE
APPLICANT
And
ROAD
ACCIDENT
FUND RESPONDENT
JUDGMENT:
REVIEW OF TAXATION
MDALANA-MAYISELA
AJ
.
(1)
The background to this taxation is that on 4 November 2015, this
court
ordered
the respondent to pay the applicant's costs of the action on the
attorney and client scale.
(2)
The applicant seeks a review in terms of rule 48(1) of the Uniform
Rules of Court, of the taxing master's decision. The review
of
taxation is addressed against only two items and I shall discuss that
under the relevant heading.
ITEM
164:
(3)
This item in the account of Adams and Adams Attorneys reads as
follows:
Date
No
Particulars
Fees
15/11/04
164
Court attendance when consulted with counsel, matter called,
matter allocated to Judge Ranched, matter argued, draft order made
on order of court (08h30 - 13h00) (Shani van der Bergh)
10 182.15
(4)
Of this amount R4 922.15 was taxed off and the taxing master made a
note "2hrs 30 min, R2 104.00 x 2.5". This annotation
is
explained in the taxing master's stated case by saying that the
respondent objected to the hours claimed in this item, and brought
its counsel who was doing the matter on 4 November 2015 to confirm
that the parties were in court for only one hour on that particular
day, and not four hours thirty minutes as claimed by the applicant.
(5)
The ruling by the taxing master was that he was not in a position to
dispute the allegation that the applicant's attorney was
in court
from 08h30 to 13h00, but that did not mean the respondent should pay
the entire time spent by applicant's attorney in
the court building
not knowing what she was doing. It was for this reason that the
taxing master allowed two hours 30 minutes instead
of one hour stated
by the respondent. The taxing master allowed more time because the
applicant was awarded costs on the attorney
and client scale.
(6)
The applicant contends that the taxing master erred in allowing two
hours 30 minutes instead of four hours 30 minutes. According
to the
applicant, Ms van der Bergh and Mr Scheepers were consulting with the
applicant's counsel from 08h30 to 09h30 in preparation
for trial. The
matter was not yet settled at the time of the consultation and there
was no indication that the trial will not proceed.
The applicant
further contends that Ms van der Bergh and Mr Scheepers were in court
from 09h30 to 11h55 when the draft order was
made an order of court.
The applicant added an extra hour on the actual time spent in court
to allow travelling time of 30 minutes
to court and 30 minutes from
court to the office.
(7)
In my view the taxing master erred in disallowing a fee for
consultation time. The matter on the 4th of November 2015 was
allocated
to Ranched J for trial. The quantum of the action was
settled after the matter had been allocated to the Judge. Therefore
the taxing
master should have allowed a fee for one hour
consultation. The taxing master should have allowed the travelling
time of one hour
as the applicant had been awarded costs on an
attorney and own client scale. The roll call started at 9h30. The
respondent's counsel
conceded to the taxing master that the matter
was finalized at 11h55. The taxing master should have allowed the two
hours 30 minutes
as actual time spent in court. Therefore, the taxing
master should have allowed four hours 30 minutes as the time spent by
the
applicant's attorney Ms van der Bergh on the matter on the 4th of
November 2015.
(8)
The applicant also seeks a review of the taxing master's decision to
reduce the hourly rate of the applicant's attorney, Shani
van der
Bergh. Ms van der Bergh claimed R2 262.70 per hour for services
rendered in 2015 in terms of the fee agreement between
the applicant
and the attorney. The taxing master found that the amount of R2
262.70 per hour was overreaching as it was more than
100% compared to
normal party and party tariffs and therefore allowed the amount of R2
104.00 per hour.
(9)
The applicant contends
that since attorney and client scale were allowed, it was entitled to
recover more than it would be entitled
to recover on a party and
party basis to ensure that it was not out of pocket and an attorney
and client costs being punitive in
nature. In Aircraft Completions
Centre (Pty) Ltd v Rossouw
1
STEGMANN
J held as a matter of law, there is no distinction between an order
to pay costs as between attorney and client and
costs taxed as
between attorney and own client. At page 5 paragraph 39 the court
held as follows:
"It allows a cost
creditor who has an order for payment by his opponent of costs taxed
as between attorney and client, to recover
from the costs debtor what
may, depending upon the circumstances of the particular case, amount
to a substantial fuller indemnity
than he could recover on a party
and party taxation. Within the bound of reasonableness in the
circumstances of the case, the taxing
master is expected to tax such
a bill generously. He should allow rates that may reasonably exceed
the tariff if the work was of
some complexity and was made unduly
burdensome by whatever conduct on the part of the costs debtor caused
the court to make an
order for attorney and client costs. On the same
basis, the taxing master should allow periods/time for consulting and
for work
ordinarily charged on a time basis that may reasonably
exceed the time that he would allow if taxing strictly as between
party
and party.
Indeed, the taxing master
should remain aware that it is the intention of the court that has
ordered a taxation as between attorney
and client that the costs
creditor should have a full indemnity for the costs to which the
litigation has put him, except for luxurious,
extravagant,
unnecessary and other types of unreasonable expense that it would be
an injustice to impose upon the costs debtor."
(10)
Attorney and client costs whether the client himself pays them, or
whether they are to be paid by the losing party to the successful
party means all costs incurred except where unreasonable. Agreed
items or amounts are presumed to be reasonable. (See Ben MacDonald
and Another v Rudolph and Another 1997(4) SA 252)
(11)
In my view, the taxing master erred in reducing an hourly rate agreed
between the applicant and Ms van der Bergh. I do not
think that the
hourly rate charged by the associate, Ms van der Bergh constitutes an
unjustifiable inflation or is overreaching.
The taxing master should
have allowed the agreed hourly rate of R2 262.70 for Ms van der
Bergh.
ITEM
165:
(12)
Item 165 reads as follows:
Date
No
Particulars
Fees
15/11/04
165
Court attendance when consulted with counsel, matter called,
matter allocated to Judge Ranched, matter argued, draft order made
an order of court (08h30 - 13h00) (David Scheepers)
17 968.50
(13)
Mr Scheepers is a partner at the applicant's attorneys Adams and
Adams. On 4 November 2015 he attended the consultation with
the
applicant's counsel and appeared in court in his professional
capacity. He was going to testify in this matter about the agreement
reached between the applicant and the respondent on 21 October 2015.
The court declared him a necessary witness. The court order
made
provision for the costs of the action on an attorney and client
scale, such costs to include the professional fees of Mr Scheepers.
(14}
The applicant contends that the taxing master erred by reducing the
hourly rate of Mr Scheepers to R1 052.00 per hour and allowing
two
hours 30 minutes as the time spent on the matter on 4 November 2015.
Mr Scheepers as a result of attending consultation and
appearing in
court on 4 November 2015, had to reschedule various consultations
scheduled for the day and forfeited the income.
The taxing master
ruled that Mr Scheepers is an attorney by profession and his
professional fee is guided by the attorneys'
tariff
which is R1 052.00 per hour and also allowed two hours thirty
minutes like in the case of Ms van der Bergh.
(15)
The hourly rate of R1
052.00 refers to Rule 70 party and party tariff rate. In the matter
of Coetzee v The Taxing Master South Gauteng
High Court
2
SUTHERLAND J remarked that the tariff in Rule 70 is designed for and
intended for the taxation of party and party costs. The tariff
is not
binding on any taxation other than party and party costs. Mr
Scheepers' hourly rate was R3 993.00 in 2015. The court had
awarded
costs including his professional fees on an attorney and own client
scale. The taxing master erred in applying a tariff
of R1 052.00 per
hour. There is no prescribed tariff in respect of attorney and own
client fees. In the circumstances his full
fees should be allowed.
(16)
Mr Scheepers attended consultation with counsel and Ms van der Bergh
from 8h30 to 9h30 on 4 November 2015. The court order
provides for
the consultation fees. His fees in respect of consultation with
counsel should have been allowed. Similarly, the two
hours 30 minutes
he spent in court and the one hour he spent travelling should have
been allowed by the taxing master. The taxing
master erred by
disallowing the four hours 30 minutes spent by Mr Scheepers on the
matter.
(17)
In the result, I make the following order:
1.
The taxing master's taxation of items 164 and 165 in the bill
of costs or Adams and Adams Attorneys is set aside.
2.
Item 164 is allowed in the amount of R10 182.15.
3.
Item 165 is allowed in the amount of R17 986.50.
4.
The taxing master is ordered to amend the allocator in the
light of the above.
Acting
Judge MP Mdalana-Mayisela
______________________
1
2004(1)
SA 123 (W)
2
2013(1)
SA 74