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[2017] ZAGPPHC 143
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Poto obo P v Kotsokwane Attorneys and Another (58147/2015) [2017] ZAGPPHC 143 (4 May 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 58147/2015
4/5/2017
In
the matter between:
MAISHELA
DORAH POTO obo J
P
1
st
APPLICANT
And
KOTSOKWANE
ATTORNEYS
1
st
RESPONDENT
MAPUTLA
SELOANA
2
nd
RESPONDENT
JUDGMENT
MOKOENA
A.J
1.
The Applicant in this matter is a legal guardian
of a minor child J P. She was at some stage represented by the First
Respondent
in a Road Accident Fund claim. The First Respondent is a
practicing attorney.
2.
The Second Respondent is a Taxing Master who
taxed the Parties bill on 20 July 2015, which bill the Applicant
seeks an order to
set it aside. No order is sought against the Second
Respondent.
3.
The First Respondent alleges that after her
mandate was terminated by the Applicant, she prepared a bill to be
taxed and it was
duly served on the Applicant.
4.
The Applicant then instructed Strauss De Waal
attorneys to represent her during the taxing of the bill. The said
attorneys appointed
Friedland Hard Solomon & Nicolson to be their
corresponding attorneys.
5.
It is common cause between the Parties that the
taxation of the bill was opposed and as a result was placed on an
opposed taxation
roll of 05 November 2014.
6.
It is also common cause that on 05 November 2014,
the taxing of the bill was not finalised and a ruling was made by the
then taxing
master regarding the appropriate fee that the First
Respondent was entitled to charge on hourly rate items and non-hourly
rate
items.
7.
Since it was a ruling, it was binding on the
Parties and they were obliged to bring it to the attention of the
Second Respondent
during a further taxation of the bill which was set
down on an opposed taxation roll of 20 July 2015. The Notice of
Set-down of
the taxation of the bill was duly served on the
Applicant's corresponding attorneys on 23 June 2015.
8.
On the date of the taxation, the Applicant's
attorneys failed to appear to further oppose the bill and the First
Respondent proceeded
to tax the bill on an unopposed basis; and she
failed to bring to the attention of the Second Respondent the earlier
ruling of
05 November 2014. The bill was then taxed contrary to that
ruling.
9.
The Applicant now seeks an order setting aside the
allocator and to be granted costs of this application on an attorney
and Client
scale against the First Respondent.
10.
In an explanation for her failure to attend the
taxation on 20 July 2017, the deponent to the Founding Affidavit ("Ms
Naicker")
who is an attorney for the Applicant contends that
whiles on her way to Court to attend to oppose the bill, she received
a telephone
call from Ms Molapa from the Offices of Friedland Hard
Solomon & Nicolson informing her that one Adele Pretorius has
called
her Offices to inform her that she was presenting the bill for
taxation and that she had neglected to finally enrol the taxation.
11.
Ms Naicker went further to state that she thereafter called Ms
Pretorius herself about the matter. She said Ms Pretorius informed
her that she was off sick the previous week and as a result she could
not confirm the taxation scheduled for 20 July 2015. Ms Pretorius
also informed her that she will "attain" a new date and
revert with same. Based on her communication with both Ms Molapa
and
Ms Pretorius, Ms Naicker returned to her Office under the impression
that the taxation will not proceed.
12.
Pursuant to her earlier communication with Ms
Pretorius regarding obtaining a new date for taxation, Ms Naicker
contends further
that she called Ms Pretorius again to enquire about
the new date and she was informed by Ms Pretorius that she erred in
saying
that she was presenting the bill of costs for taxation on that
day and in fact the matter she referred to earlier on was actually
set down for Thursday and not Monday. According to her, she realised
that Ms Pretorius was not referring to her matter.
13.
She also contends that when the aforementioned
error came to light, she immediately contacted the Second Respondent
and the Second
Respondent informed her that the bill was taxed by the
First Respondent unopposed and the ruling of 05 November 2015 was
never
brought to his attention.
14.
Ms Naicker did not stop there, she contacted the
First Respondent and advised her that her failure to disclose the
ruling of 05
November 2014, was ma/a
fide.
The
Parties could not agree on a way forward.
15.
These allegations were not disputed by the First
Respondent. Mr Van As for the Applicant then made a submission that
they ought
to be accepted by the Court as correct. I agree with Mr
Van As on his submission as it is based on the rule set out in the
Plascon-
Evans Paints Ltd v Van Riebeeck Paints ( Pty) Ltd 1984(3) SA
362( A) (at para 634F to 635 A-B) as follows:-
"Where it is
clear that facts, though not formally admitted, cannot be denied they
must be regarded
as
admitted
(See:- Stellenbosch Farmers Winnery Ltd v Stellenrole Winevate (PTY)
Ltd 1954(4) SA(c) 235E-G), If in
such
a
case, the respondent
has not avail himself of his right to apply
for the deponents concerned to be called for
cross-
examination
under Rule 6(5) (a) of the Uniform Rules of Court..... and the Court
is satisfied
as
to the
inherent credibility of the applicant' s factual
averment, it may proceed on the basis of the correctness thereof
and
include this fact among those upon which it determines whether the
applicant is entitled to the final relief which he seeks"
.
16.
Ms Naicker is an admitted attorney and an officer
of this Court. In the absence of any evidence or facts that suggest
to me that
her inherent credibility is in question in so far as her
failure to attend taxation on 20 July 2015 is concern, I am bound to
accept
her explanation as correct.
17.
During argument, Mr Ferreira for the First
Respondent took issue for the first time with the unsigned affidavit
of Adele Pretorius
annexed to the Founding Affidavit. He argued that
since the Confirmatory Affidavit of Adele Pretorius was not signed,
the Applicant
has not made out a
prima facie
case for the relief claimed. The unsigned
Confirmatory affidavit "confirms" Ms Naicker's averments
that her failure to
attend taxation on 20 July 2015 was not wilful.
Mr Ferreira conceded, however, that the ruling of 05 November 2014
was never presented
to the Second Respondent during the taxation of
the bill on 20 July 2015. He conceded further that it was not fair
and collegial
to the Applicant and her attorneys for the First
Respondent not to disclose the ruling of 05 November 2014 to the
Second
Respondent. On that basis alone, it was a sufficient ground
for me to come to the conclusion that for justice to prevail the
allocator
has to be set aside.
18.
This brings me to the conduct of the taxing of
the bill in the absence of the Applicant's attorneys. When the First
Respondent proceeded
to tax her bill on an unopposed basis, she was
aware of the ruling of the taxing master of 05 November 2014. She did
not bring
that ruling to the attention of the Second Respondent,
instead she proceeded to Jax her bill anew. Her failure to disclose
that
earlier ruling of 05 November 2014, was to her advantage in that
she was allowed to charge fees contrary to that ruling.
19.
Mr Ferreira made a submission that the said
conduct of the First Respondent was not wilful and was not intended
to mislead the Second
Respondent. No supporting facts or submissions
were made as to why the First Respondent alleges that her said
conduct was not wilful
and was not meant to mislead the Second
Respondent.
20.
I find it difficult to accept the submissions
made by Mr Ferreira on the basis that Ms Naicker on becoming aware
that the First
Respondent had proceeded to tax her bill unopposed,
she called the First Respondent and raised her concern to her
regarding her
failure to disclose the earlier ruling to the Second
Respondent. The First Respondent did not at that stage inform Ms
Naicker that
it was a mistake and not wilful. This explanation is
also not raised in her opposing papers. It was only raised by her
Counsel
for the first time during argument.
21.
If indeed her failure to disclose the earlier
ruling of the taxing master to the Second Respondent was not wilful
and or unintended
to mislead, the prudent thinking to do was to allow
the Applicant to proceed with this application unopposed on the
understanding
that it has to be re taxed in compliance with the
earlier ruling. Instead she opposed the Applicant's application and
caused
the Applicant to incur unnecessary costs. I therefore reject
the submission made by Mr Ferreira as far-fetched and untenable.
22.
Mr Van As brought to my attention that the First
Respondent was directed by Judge Holland - Muter AJ on 09 September
2015, to file
her condonation application to her late filing of her
Answering Affidavit. She does not dispute those allegations and no
reasons
are provided as to why she disregarded the direction of the
Learned Judge. I find such a conduct as a complete disdain to this
Court and to the Learned Judge.
23.
In my view, the conduct of the First Respondent
for her failure to disclose the earlier ruling to the Second
Respondent and a display
of disdain to this Court and the Learned
Judge is very serious and has to be discouraged. Taking into account
further that the
First Respondent is an officer of this Court and she
has an ethical duty to be open and honest with it. I came to the
conclusion
that to show the displeasure of this Court a punitive
costs order is appropriate in those circumstances.
24.
For these reasons I mode on Order marked X and
Order of this Court.
Attorney
for the Applicants:
STRAUSS
DE WAAL ATIORNEYS
Ref.:JDN/TVS/327302
Tel:
012-424 0200
Counsel
for the Applicants:
Adv.
E van As Tel.: 082 634 4885
Attorneys
for the Respondents:
KOTSOKWANE
ATTORNEYS
Ref.:
MVA 0176/06
Tel.:
012 327 3663
Counsel
for the Respondents:
Adv.
I Ferreira
Tel.:
082 571 2797
IN
THE HIGH COURT OFSOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 58147/2015
BEFORE
THE HOUNRABLE JUDGE MOKOENA AJ
ION
THIS 14
TH
DAY OF FEBRUARY 2017
In
the matter between:
MAISHELA
DORAH POTO obo J
P
Applicant
And
KOTSOKWANE
ATTORNEYS
First Respondent
MAPUTLA
SELOANA
Second Respondent
DRAFT
ORDER
HAVING
HEARD
counsel for the applicant, and having
considered the documents filed of record, an order is made in the
following terms:
1.
The Allocator dated 20 July 2015 under case
number 4360/2011 is set aside;
2.
First respondent is directed to pay the costs of
this application on an attorney and client scale.
BY
ORDER
_____________________
REGISTRAR