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South Africa: North Gauteng High Court, Pretoria
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[2017] ZAGPPHC 262
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W v W (80907/2015) [2017] ZAGPPHC 262 (27 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 80907/2015
Date:
27/3/17
Reportable:
No
Of
interest to other Judges: No
In
the matter between:
M.
W. PLAINTIFF
AND
D.
W. DEFENDANT
JUDGMENT
TOLMAY,
J:
[1]
The Plaintiff's
(Ms W.) attorneys in her divorce action (A L Maree Attorneys) brought
an application in terms of Rule 48(1) of the
Uniform Rules of Court
(the Rules) as they are dissatisfied with a ruling of the Taxing
Master. The Taxing Master ruled that their
fees that relates to the
Rule 43 application should be limited in terms of Rule 43(7) and (8)
of the Rules.
[2]
The notice of
review only deals with items 46 - 111 and 114, which is items
relating to fees of the Rule 43 application and items
62 and 114,
which is items relating to disbursements in the Rule 43 application.
In the stated case A L Maree Attorneys stated
that items 8, 9 and 16
were erroneously omitted
from the notice of review, but they do relate to the Rule 43 and
should therefore be considered as part
of the review. It is
also submitted that items 59 - 61, 82 - 85 relates to the amendment
of the particulars of claim, but
were taken as part of the Rule 43
and should consequently not be taxed as part of that application.
These items should also be
included in the review submitted as no one
will be prejudiced if it is done. Seeing that no objection was raised
pertaining to
the inclusion of these items they should form part of
the review. Although Plaintiff (Ms W.) appointed L le Grange
attorneys to
represent her in the review, they despite initially
indicating that they will oppose the review later indicated in a
letter that
they abide by the stated case of the Taxing Master.
[3]
The Taxing Master in her
stated case stated that she disallowed the higher fees on which the
parties agreed in terms of the agreement
signed by A L Maree
attorneys and Ms W., because it exceeded the limitation prescribed by
Rule 43(7) and 43(8) of the Uniform Rules
of Court. She based her
decision on the judgment of
Von
Reiche
&
Sasson
[1]
,
1
where it was decided that the prescribed
limitations
apply to both party and party
as well as attorney and client costs, unless the Court uplifts the
limitation, she questioned why
the Court did not uplift the
limitation.
[4]
The Taxing Master was however wrong in this conclusions. The
Court order did indeed dispense with the limitations prescribed by
Rule 43(7) and 43(8). The Court order in this regards reads as
follows:
"Costs
of the application shall be costs in the divorce action and the
limitations prescribed by Rule 43(7) and 43(8) are dispensed
with."
[5]
The Taxing Master consequently erred when she found that the
applicable limitations were not dispensed with. The Court order
clearly
relates to both attorney and client and party and party
costs.
[6]
The Taxing Master also
erred when she disallowed the items pertaining to the amended
particulars of claim as those do not relate
to the Rule 43. She does
not have a discretion to disallow disbursements
in
an attorney and client bill as they have to be paid by the attorney
and were not unreasonably incurred
[2]
.
[7]
As a result the review should be granted.
[8]
I make the following order:
8.1
The
determination by the
Taxing
Master
is
set
aside.
8.2
The matter is referred back to the Taxing Master for redetermination
taking into consideration that:
(a)
As far as all items relating to the Rule 43 application
is concerned
the limitations set out in Rule 43(7) and (8) should not be applied;
(b)
Items 59 - 61 and 82 - 85 do not form part of the Rule
43 application
and should not be taxed as part of that application.
________________________
R
G TOLMAY
JUDGE
OF THE HIGH COURT
[1]
1988(1)
SA 813(T)
[2]
The
Juice Boys (Pty) Ltd
t/a
The
Real Juice Co ao/WH du Preez
t/a
Take
5 (unreported TPD judgement case number: 31103/1999