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[2017] ZAFSHC 31
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Knipe and Others v Lotz and Others (5081/2014, 4817/2014) [2017] ZAFSHC 31 (9 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. 5081/2014
4817/2014
In
the matter between:
JDJ
KNIPE
1
ST
APPLICANT
ABJ
KNIPE
2
ND
APPLICANT
JMD
VIGNE 3
RD
APPLICANT
And
CAROL
JESSIE KATHLEEN LOTZ
1
ST
RESPONDENT
ROBERT
PETRUS JANSEN
KNIPE
2
ND
RESPONDENT
THE
COMPANY& INTELLECTUAL PROPERTY COMMISSION 3
RD
RESPONDENT
OA
NOORDMAN
N.O 4
TH
RESPONDENT
CBST
CLAIR COOPER N.O
5
TH
RESPONDENT
SM
RAMPORORO
N.O 5
TH
RESPONDENT
OA
NOORDMAN
N.O 7
TH
RESPONDENT
CB
ST CLAIR COOPER N.O
8
TH
RESPONDENT
SM
RAMPORORO
N.O 9
TH
RESPONDENT
JUDGMENT
BY: P MOLITSOANE AJ
DELIVERED
ON : 9 FEBRUARY
2017
[1]
This is a review of taxation in terms of rule 48 of the Uniform rules
of this court. The Applicant was dissatisfied with the
ruling of the
taxing master and requested the taxing master to state a case for a
decision of a judge in chambers in terms of rule
48 (1). The taxing
Master duly stated a case in terms of rule 48 (2) in which she
justified her decision.
[2]
As a starting point Uniform rule 70(3) provides as follows:
"
With
a view to affording the
party who
has been awarded
an order for costs a full
indemnity for all costs reasonably
incurred by him in
relation to his claim or defence and to ensure that all such costs
shall be borne by the
party against whom such order has
been awarded, the taxing
master shall,
on
every taxation
allow all such costs, charges and
expenses
as appear to him to have been necessary or
proper for the attainment of justice
or for
defending the
rights of any party, but save as
against the
party who
incurred the same,
no costs shall
be allowed which appear to the
taxing master to have been or incurred or increased through
over-caution, negligence or mistake,
by payment
of a special fee to an advocate, or special charges
and
expenses to witnesses
or to other
persons
by other unusual expenses."
[3]
The intention of rule 70 (3) is to afford the successful litigant
indemnity for costs reasonably incurred without burdening
the
unsuccessful litigant with unreasonable expenses incurred.
[4]
The taxing master is enjoined with the taxing of bills of costs. He
has discretion, to allow, to reduce and to disallow any
item in the
bill of costs. The taxing master must exercise such a discretion
judicially, fairly and reasonably having due regard
to the complexity
of the case, the time spent, and the reasonableness of the costs
incurred.
[5]
Where the taxing master failed to properly exercise the discretion or
failed to apply her mind properly or at all her decision
will be
subject to review. The court may, however, still interfere with the
exercise of the taxing master's discretion even when
such a
discretion was exercised properly where the decision of the master is
based on a misrepresentation of the law or misconception
as to the
facts or circumstances or as to the practise of the court. See
Cash Who
lesalers
Ltd v
Natal Pharmaceuti
cals Society
and The
Taxi
ng
Master
1937
NPD 418
at 425 See also City
Deep Ltd v Johannesburg
City Council and
Others
1973
(2) SA 109
(W) at 113 E.
[6]
Rule 48( 1) of the Uniform rules of this court provides that:
"Any
party dissatisfied with the ruling of the taxing master as to
any item or part of an
i
tem which
was
objected to or disallowed
mero
motu
by
the taxing master, may
within
15
days after the
allocatur
by notice require
taxing master to state a case
for the decision judge.
"
[7]
According to
Erasmus:
Superior
Court Practice
81-351
, the purpose of
this provision is to give the reviewing judge a brief record of the
proceedings in which the issues between the
parties are clearly
defined and the findings of fact by the taxing master are set out.
[8]
It is, therefore, incumbent on the person who is dissatisfied with
the allowance/disallowance or reduction of an item to indicate
in
what respect he objects to the item. This would allow the taxing
master to exercise her discretion.
Case
5081/2014:
Items
2.1
0;
2.15 and 3.3; 3.27 to 6.15
[9]
These items are objected to, on the basis that the time spent that
was allowed of 19 hours for preparation of a 55 page opposing
affidavit is not reasonable.
[10]
It needs to be mentioned that in respect of item 2.10, two hours was
allowed. It appears that this was a first notice of motion
·and
accompanying documents comprised 294 pages.
[11]
With the remainder of this item the taxing master indicated that she
took into account the number of pages to be traversed
in order to
prepare the opposing affidavit. Perusal of 238 annexures to the
founding affidavit, additional application considered
in response
including similar application dealing with the shareholding
percentages and comparison with this application, fact
that more than
one counsel was required to settle the affidavit. It is also
noteworthy to take into account that in items like
2.15 and 3.3 the
taxing master taxed off 7 hours in total. Contrary to the assertion
by the applicant that the time allowed herein
was not reasonable, I
do not share the same sentiments.
[12]
It is my considered view that the taxing master cannot be 71awed in
her exercise of her discretion in respect of the above
mentioned
items.
Items
4.1, 4.2,9.7 and 10.18.
[13]
The attack on these items is on the basis that counsel had already
charged for these items and that the accounts of counsel
were
unreasonable. I could find no accounts prior to these where counsel
had charged for these items. Uniform rule 69(2) restricts
the
amount recoverable in respect of junior counsel's fees where two
counsel are employed to one half of senior counsel' fees.
In this
case senior counsel charged at a rate of R3000 per hour. Fees of
Senior counsel were, however, allowed at R2 600 per hour.
Senior
counsel's fees were taxed off and allowed at R68 172,00 in total.
Senior Counsel's fees being the anchor point, junior Counsels
fee
should rightly be one half of Senior counsels fee, to wit , R34 086.
Junior Counsel, however, claimed an amount almost less
by ten
thousand rand. I find that in respect of all these items the taxing
master excised her discretion judiciously and I cannot
find any
reason to interfere.
Items
4.9 , 5.13 and 5.17
[14]
This relates to the indexing and pagination of the documents. There
were 1049 pages comprising of three bundles to be paginated
and
indexed. R1880 was taxed off which accounted for two hours being
taxed off. The documents herein were voluminous and certainly
required more time to index and to paginate. One has to note that the
first bundle comprised of 400 pages, the second one comprised
of 375
pages while the last one comprised of 274 pages. That
notwithstanding, two hours were taxed off.
Items
5.18-5.22,
11.4
and 11.8
[15]
The objection on these items is on the basis that they have not been
specified. By way of an illustration items 5.18 and 5.19
refers to
the number of letters written and received. It is indeed practise in
this division that same need not be specified. It
is within the
rights of the applicant to raise an objection to these unspecified
items in which case the taxing master may within
her discretion
"call
for such books,
documents
,papers
or
accounts
as
in
his[her]
opinion
are
necessary
to
enable
him
properly
to
determ
i
ne
any
matter
arising
from
such taxation."
-See Uniform rule 70(2) .
I
cannot find any merit in this objection
Item
6.1
[16]
This was taxed off.
Items
8.8-8.12
[17
]These items refer to senior counsel fees and they are opposed on the
basis of reasonableness. It needs to be stated that save
to say that
the expenses are unreasonable there is no indications in what respect
they are unreasonable.
[18]
In
Price
Waterhouse
Meyernel
v
Thouroughbred
Breeders
'
Associ
ation
of
South
Afri
ca
2003(3) SA 54 (SCA) at 61 E-F the court said:
"
A cost order-it is
trite
to
say-is intended
to indemnify
the
winner
(subject
to
the
l
imitations
of
the party
and party
costs scale)
to
the
extent
that
i
t
i
s
out
of pocket
as
a
result
of pursuing the
litigation
to
a
successful
conclusion.
It
follows that
the
winner
has
to
show
-and
the
taxing
master
has
to
be
satisfied
about-is
that
the
i
tems
i
n
the bill
are costs in
the
true sense,
that is
to
say, expenses
which
actually
leave
the
winner
out
of
pocket."
[19]
In order to assess reasonableness or otherwise of the costs, over and
above other considerations, the intention to indemnify
the successful
party as indicated above should be borne in mind in the taxation of
the bill of costs in accordance with Uniform
rule 70(3). In such a
case the taxing master is usually better placed to assess the
reasonableness or otherwise of the costs. This
court will only
interfere only in circumstances where the taxing master failed to
exercise her discretion judicially. Of the amount
asked, the taxing
master taxed off an amount of R130416. These costs were incurred in
the preparation of answering affidavits,
perusal of over 400 pages of
documents, settling of heads of arguments, preparation for trial,
travelling and appearance in court.
I cannot find that the amounts
allowed are unreasonable.
It
is again my considered view that the discretion exercised by the
taxing master cannot be flawed herein.
Items
9.11 and drafting of the bill
[20]
The taxing master applied the principles correctly and I cannot fault
her in any way.
CASE
NUMBER
4817/2014
Items
2.19 to 16.12
[21]
The objection to these items lies in the fact that out of the 7000
pages herein, only 357 thereof were annexed to the Court
papers and
the items should be taxed off. When a court sits in a rule 48 review
application, its duty is to sit in review of a
decision to allow or a
disallow an item(s) in a bill of costs by the taxing master. It is
not the function of the court to tax
the bill of costs again. It
appears that the Applicant also concedes that 357 of the pages were
annexed to the court papers. It
also appears that a number of items
between 2.19 and 16.12 were taxed off by the taxing master. It is
difficult to fathom the objection
of the applicant in light of the
fact that a number of items were taxed off.
According
to the applicant, all the documents were not necessary for purposes
of adjudicating the matter. I cannot find fault
on the part of
the taxing master in the exercise of her discretion.
Items
17.4,18.1 18.2 23.4.23.5.23.13.24.17 and 26.5
[22]
These items relate to counsel's fees. It appears to me that the
correct approach in determining the reasonableness or otherwise
of
counsel's fees during taxation is shortly the complexity of the
matter, the volume of the case, the level of counsel's fees,
inflation and the fact that counsel must be fairly compensated for
preparation and presentation of argument.- See
The
City
of
Cape
Town
Arun
Property
Development
and Another
2009 (5) SA 227
par [24].
[23
] Fees allowed to counsel are pre-eminently the domain of the taxing
master and it is a well-established principle that the
court will not
interfere with the exercise of the taxing master unless the taxing
master has acted upon a wrong principle or has
exercised her
discretion wrongly. Uniform rule 69(5) provides, inter alia,
".....Where
the tariff does not apply, he shall allow such fees (not necessarily
in excess thereof) as
he considers
reasonable."
[24]
The discretion enjoyed by the taxing master should not be rendered
illusory , nor should the court lightly interfere with his
assessment.- See
Majola
v
Union
and
SWA
I
nsurance
Co
Ltd
1978 (2) SA 154
(SE) 158.
[25]1
have noted that many of the objections to the taxed bills were items
which were already taxed off by the master. Rule 48 procedure
is
there for a purpose. It is unfortunate that this review was settled
with many items which were already totally taxed off by
the taxing
master yet the items already taxed off again formed the subject of
this review not by the party in whose favour costs
were granted but
sadly by the party against whom costs were granted.
[26]
I am satisfied that in respect of these items the taxing master
exercised her discretion properly.
[27]
I have further considered the remaining items objected to and I
cannot find any merit in the objections raised to warrant this
court
to interfere and I accordingly find that the taxing master exercised
her discretion judicially
[28]
I accordingly make the following order:
ORDER
The
application for review is dismissed.
____________________
P
MOLITSOANE AJ
For
the Applicants:
Hom & Van Rensburg
Westdene
BLOEMFONTEIN
For
the Respondents:
Symington and
De Kok
Nelson Mandela Drive
BLOEMFONTEIN