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[2017] ZAFSHC 99
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Myburg N.O. v Rafferty and Another (3798/2016) [2017] ZAFSHC 99 (22 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3798/2016
In
the matter between:
ALWYN
ABRAHAM MYBURG
N.O.
Applicant
(ON
BEHALF OF ALWYN MYBURG FAMILY TRUST)
and
MICHAEL
ANTHONY RAFFERTY
1st Respondent
ALISCA
RAFFERTY
2nd Respondent
TAXATION
REVIEW
JUDGMENT
BY:
MBHELE, J
DELIVERED
ON:
22 JUNE 2017
INTRODUCTION
[1]
This is taxation review 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.
Items
subjected to review
.
[2]
The applicant filed a review on the basis that the following items
were not objected to during the taxation. The grounds for
filing a
review by the applicant were the following:
-
Items 1 &
2: Rule 70(9) to be applied.
-
Items 9-12:
The payers do not constitute 250
words.
-
Item 13:
Only 3 x 41 pages to be allowed. R 142.50 to be deducted.
-
Item 19:
Counsel’s account appears to be unreasonable. Only 1 hour
to be allowed for settlement of papers. R2000.00
to be taxed
off.
-
Items
30-32: Rule 70(9) to be applied, the pages do not constitute
250 words
-
Items
33-36: The opponents cannot
recover these costs from the applicant. Duplication
of previous
instructions to counsel.
Items
37-40: A fee is recovered for an attorney to attend to the
matter. It is unclear who attended the matter as it
appears
that Mr Bloem (an Attorney at Spengenberg Zietsman and Bloem) acted
on an in house basis. The attendance and disbursements
appears
to be a duplication.
[3]
It is unclear how the disbursement for Mr Bloem is calculated.
It was clear that the matter would be settled and he still
charges a
fee as per an advocate on an opposed basis. It also appears,
that Mr Bloem was ‘briefed’ on the same
day as the
application. Only a fee for the time actually spent can be
charged”.
[4]
The applicant did not file formal opposition to taxation. The
applicant unsuccessfully applied for the postponement of taxation.
The parties agreed to the applicant presenting oral argument during
taxation. The matter stood down until 14h00 on the same day
to allow
the applicant time to prepare its argument.
[5]
The question to be decided is whether the taxing mistress exercised
her discretion properly and whether the applicant is entitled
to take
items that were not opposed during taxation on review.
BACKGROUND
[6]
The applicant attributes its failure to properly object to some items
during taxation to the sudden departure of its Candidate
Attorney,
Maritza Schoon, who was attending to the taxation under review.
[7]
The background facts are as stated below. The applicant brought an
application on urgent basis. The application was set down
for hearing
on 23 August 2016. On 22 August 2016 the parties entered into a
settlement agreement. On the morning of the hearing,
the applicant
reneged on the settlement offer. This resulted in the appointment of
Mr. Bloem, a senior Attorney at Spangenberg
Zietsman and Bloem
Attorneys to argue the matter on behalf of the respondents. The
parties settled the matter before the hearing
and the respondents
were awarded costs on attorney and client scale.
[8]
The respondents’ bill was taxed on 04 September 2016.
CONTENTIONS
FOR THE TAXING MASTER’S RULING
[9]
Ad item
1 and 2.
The
taxing mistress indicated that the first respondent’s attorneys
had already reduced the number of pages in line with rule
70(1).
She was satisfied with the number of folios asked owing to the size
of the font which, in her view, was not large.
[10]
Ad item
9, 10, 11 and 12 of the bill of
The
taxing mistress respondent that the folios were counted by the
parties and she was satisfied that the number of folios asked
were
reasonable.
[11]
Ad item
13
The
taxing mistress allowed a fee of R3.50 per page in line with rule 70
(5) for necessary photocopies.
[12]
AD item
19
The
taxing mistress indicated that she took into consideration the amount
claimed and the actual time spent to prepare the papers
by counsel.
In her view, counsel would ordinarily be entitled to claim more than
the R9000.00 allowed.
[13]
Ad items
30-32
The
taxing mistress contended that the number of copies that had to be
served on the parties justified the folios allowed.
[14]
Ad item
33- 40
The
taxing mistress indicated that the withdrawal of settlement by the
applicant occasioned these costs. The attorney handling the
matter
had to secure the services of a more experienced
practitioner within the same firm, at short notice, as
Counsel
who prepared papers was no longer available to argue the matter
because of the settlement reached the previous day.
Mr. Bloem’s
fees were allowed based on the complexity of the matter. The day fee
allowed, included preparation fee
which, in her view, was necessary
as this was an urgent application in which opposing papers were
drafted by another Counsel who
could no longer argue the
matter.
APPLICABLE
LEGAL PRINCIPLES
[15]
Rule 48(2) provides as follows:
“
The
notice referred to in subrule (1) must -
(a)
identify
each item or part of an item in respect of which the decision of the
taxing master is sought to be reviewed.
(b)
Contain the
allegation that each item or part thereof was objected to at the
taxation by the dissatisfied party, or that it was
disallowed
mero
motu
by
the taxing master.
(c)
Contain the
grounds of objection relied upon by the dissatisfied party at the
taxation, but not argument in support thereof”.
[16]
In
Daywine
Properties (Pty) Ltd v Murphy and Another
1991 (3) SA 216
(D) 218E-F the following was said:
“
In
my judgment there can be no escape from the clear meaning of
the language used in Rule 48(1) and (2). If the party opposing
the taxation fails to object when before the Taxing Master, he cannot
thereafter invoke the review of taxation procedure provided
by Rule
48 in a belated attempt to attack items which the Taxing Master
allowed.”
Rules
70(3) provides:
“
(3)
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
incurred or increased
through over-caution, negligence or mistake, or
by payment of a special fee to an advocate, or special charges and
expenses to
witnesses or to other person or by other unusual
expenses.”
Rule
70(5) confers a discretion on the taxing master to depart from any of
the provisions of the prescribed tariff in exceptional
cases, where
strict adherence to such provisions would be inequitable.
[17]
Interference on review is justified where a reviewing court finds
that the taxing master has not exercised his discretion properly,
for
example, when he has been actuated by some improper motive, or has
not applied his mind to the matter, or has disregarded factors
or
principles which were proper for him to consider or acted upon wrong
principles or wrongly interpreted rules of law, or gave
a ruling
which no reasonable person would have given. (See
Preller
v Jordaan
1957 (3) SA 201
(O) at 203
)
APPLICATION
OF THE LAW
[18]
It is apparent from the papers before me that the applicant failed to
file its opposition or properly place its objection before
the taxing
mistress. The applicant was properly notified of the taxation
and the reasons advanced for its failure to formally
object to
taxation are without merit. The applicant was represented
during taxation and argued its case orally before the
taxing master.
[19]
It is further apparent that the respondents had to brief a new
attorney in haste after the applicant reneged from its settlement
offer. I have taken into consideration that although the matter
was finalised through settlement agreement between the parties,
it
was necessary for the respondents to have counsel who had thoroughly
prepared to argue the matter. There was no guarantee when
Mr. Bloem
was instructed that the matter would be settled.
[20]
The court should be satisfied that the taxing master was clearly
wrong before it interferes with his decision. I am satisfied
that the
taxing mistress exercised her discretion properly. I cannot
find any merit in the objection raised to warrant interference
by
this court.
[21]
In view of the above, I make the following order.
ORDER
[22]
The application for review is dismissed.
_____________
NM
MBHELE, J
On
behalf of applicant:
Instructed
by:
Myburgh’s Attorneys
Bloemfontein
On
behalf of respondents:
Instructed
by:
Spangenberg
Zietsman & Bloemfontein
Bloemfontein