About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 196
|
|
Hendriks N.O. and Others v Grant (6087/2010) [2017] ZAFSHC 196 (26 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6087/2010
In
the matter between:
JC
HENDRIKS N.O
1
st
Plaintiff
BL
HENDRIKS
N.O
2
nd
Plaintiff
(IN
their capacities as trustees of the Kuilfontein Trust) &
5
Others
and
AE
GRANT
Defendant
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
26
OCTOBER 2017
[1]
This is a review in terms of Rule 48 of a taxation of bill of costs.
[2]
The plaintiffs claim payment of R1 415 000.00 together with interest
and cost
as
a
result of damages suffered due to
veld fires which started from the defendant's farm and spread to
plaintiff's farm.
[3]
The parties will be cited as they were in the main action.
[4]
On the 14 September 2016 Sibeko AJ granted an order against the
defendant, which order indicated that:
(a)
The application for postponement is granted;
(b)
The Registrar is directed to set down the trial matter on a
preferential;
(c)
The defendant pay 70 % of the application for postponement;
(d)
The defendant pay 70 % of the wasted costs of the trial occasioned
by the postponement and;
(e)
The defendant to pay 70 % of the costs of the experts including the
travelling costs.
[5]
The Plaintiff's filed its bill of cost with the Taxing Master on 30
November 2016. The bill of costs was taxed and finalised
on 05
January 2017, and the Taxing Master completed and signed on the same
day. The defendant was dissatisfied with the Taxing
Master's
discretion on a considerable number of items and filed a review in
terms of Rule 48 on 25 January 2017, whereupon the
plaintiff made
submissions in response to both the stated case and defendant's
submission on 25 January 2017.
[6]
There are in all 7 items in dispute, each of which has been dealt
with on the defendant's submission filed in terms of Rule
48(2)(a) in
which defendant identifies item 44 to 47, 50, 80 and 82 of the bill
of costs as these items incorrectly allowed by
the Taxing Master and
sought to be reviewed.
[7]
It is well-settled law that in general the discretion of the Taxing
Master will not be disturbed unless it is found that she
did not
exercise a proper discretion, for example disregarding factors which
were proper for to consider or by considering matters
which it was
improper for her to consider, or she has disregarded relevant factors
or has regarded improper factors, or by giving
a ruling which the
court can see no reasonable person would have given (see:
Wellworths
Bazaars
Ltd v Chandlers Ltd and Others
1947 (4) SA 453
(T) 457 - 458;
Groenewald v Selford Motors (EDMS) BPK
1971
(3) SA 677
(C) at 678J - 679H).
[8]
The Court recognised the principle that the court may interfere in
those classes of cases where the court is able to form a
good opinion
as the Taxing Master, and perhaps, even a better opinion (see
Wellworths
supra
458). However, the court is
mindful of the fact that the Taxing Master deals with these matters
on a daily basis and isinfact in
a better position to use her
discretion in taxing matters.
[9]
I think it is best to deal with each item in the sequence as they are
raised in the defendant's notice of review dated 25 January
2017, as
well as the plaintiffs reply to the opposed items and the taxing
master's stated case.
[10]
Item 44 to 47
These
items relate to costs for consultation held between the plaintiff's
attorneys, witness and counsel.
Defendant's
counterclaim is that these consultations should not be considered as
wasted costs occasioned by the postponement and
were incorrectly
allowed by the Taxing Master.
The
plaintiff submitted that these items where not opposed by the
defendant in the Notice to oppose taxation dated 15 December 2016
nor
during the taxation, and was thus allowed by the Taxing Master.
[11]
The Taxing Master in her stated case indicated that she allowed these
items as the party prepared in full and was ready to
proceed with the
matter. She submits that none of the parties could predict that the
matter would be postponed on the day it was
supposed to proceed.
Therefore the costs according to her were necessarily incurred. The
Taxing Master from items 45 - 47 allowed
only one hour (R1052-00)
each and taxed off half hour (526-00) on each.
[12]
It is further the Taxing Master's submission that the matter cannot
be perceived as a straight forward matter as it will take
some time
to consult with plaintiff and to discuss pertinent facts which
affects them as trustees. In the light of that she submitted
that
what was taxed off was fair and just.
[13]
To my mind, it was quite proper for the Taxing Master to allow only
one hour on each as it was pertinent that it should take
reasonably
up to an hour to consult with plaintiff, who are trustees in this
matter, with regard to facts which affect them as
trustees. In
Protea
Life Co Ltd v Mich Quenet Financial Brokers en Andere
2001
(2) SA 636
(0) 648 D - E wasted costs were explained as follows:
"Wasted
costs are either
(i)
costs previously incurred which have become useless in further
conduct of the case or
(ii)
additional costs which have been incurred as a result of the actions
of the
party
who is to blame."
[14]
Accordingly, I am unpersuaded that I should interfere in the Taxing
Master's decision.
[15]
Items
50
This
item relates to costs for the perusal of an affidavit prepared by
counsel for the plaintiff. The plaintiff submitted that Rule
70 of
the Uniform Rules provides for R53.00 per folio for the receipt,
entry perusing, considering and filling of documents. The
Plaintiff
disputes that it is a re-perusal fee and that there are no basis to
only allow half the prescribed tariff. The plaintiff
submits that the
Taxing Master considered and applied Rule 70(9) and a further folio
was taxed off. The defendant contents that
item 50 should only be
allowed at half tariff. The taxing master incorrectly taxed item 50.
The taxing master with regard to item
50 referred to defendant to the
provisions of Rule 48(4).
[16]
Rule 48(4) provides that:
"Save
with the consent of the taxing master, no case shall be stated where
the amount, or total of the amounts, which the taxing
master has
disallowed or allowed as the case may be, and which
the dissatisfied party seeks to have allowed or
disallowed
respectively, is less than R100."
[17]
The Taxing Master has a discretion to allow, reduce reject claims in
a bill of costs. This discretion must be exercised judicially
in the
sense that the taxing master must act reasonably, justly and on the
basis of sound principles with due regard to all the
circumstances of
the case. (see
City Of Cape Town v Arun Property Development
(Pty)
Ltd
And
Another
2009 (5) SA 227
(C) at
232 G-G.)
[18]
The Court is reluctant to interfere with decisions of the Taxing
Master upon matters in respect of which she is required to
exercise a
discretion entitled to her. This reluctance was expressed in several
cases; for example:
Gundelfinger v
Norwic
h
Union
F
ire
Insurance
Society Ltd
1916;
Majola v union and South West
Africa
Insurance Co Ltd
1978(2) SA 154 (SE);
Lander v O'Meara
2011 (1) SA 204
(KZD) at 209 H.
[19]
T
he general principle
governing interference with the exercise have been stated in several
cases.
Visser v
Gubb
1981
(3) SA 753
(C) at 754 H - 755 C and Lander
supra.
[20]
In my view I find myself unable to interfere with the Taxing Master's
decision. She had already taxed off a further folio on
item 50.
[21]
Item
80
This
item relates to counsel's fee. The defendant's objection is that the
Taxing Master incorrectly allowed costs for consultations
in the
amount of R6660.00. That the consultations revolved around material
aspect of the trial and did not deal with the postponement
and are
therefore not wasted costs occasioned by the postponement. The
Plaintiff submits that the taxing master exercised her discretion
reasonably and justly in considering counsel's fees to be allowed for
the consultations.
[22]
The Taxing Master in her stated case, submitted that to brief counsel
on any matter, costs will definitely be incurred whether
the matter
proceeds or not. She further submits that counsel briefed in this
matter is senior counsel and on perusing his account
as to what was
charged is far less than what his experience is. According to the
Taxing Master the consultations formed part of
the preparation of the
case. Therefore the taxed off on item 80 is almost half of what
counsel charged in such matters.
[23]
It does not seem to me to be unreasonable what the taxing master
allowed. She says this was actually the lowest and most reasonable
fees that she had ever seen. I am accordingly not prepared to
interfere with the Taxing Master's decision.
[24]
Item
82
The
item relates to costs for a witness's account Mr Dankwerts. The
witness has billed for consultation and preparation in Bloemfontein
from 12 - 14 September 2016. The defendant objects to
the bill and submit that the
consultation with Mr Dankwerts revolved around material aspect of the
trial and did not deal with the postponement. Defendant submits
that
these costs associated with the 12 September 2016 are therefore not
wasted costs occasioned by the postponement and that the
Taxing
Master incorrectly taxed item 82 and allowed it.
[25]
The plaintiff submitted that the Taxing Master exercised her
discretion correctly in allowing the experts costs. The plaintiff
however takes cognisance of the fact that the taxing master conceded
that the VAT in the amount of R4200.00 should be taxed off.
The
plaintiff objects to the taxing off and stated that the Taxing
Master's concession is incorrect. The Taxing Master submits
that the
court order for wasted costs, included the
costs of experts1 which must be seventy percent of
their actual
charge.
However,
the taxing master conceded that VAT of R4200.00 should be taxed off.
[26]
The taxing master1s decision to concede that only an amount of R3400
was taxed off and that it an amount of R4200 should have
been taxed
off. Accordingly the objection of the defendant is upheld and the
taxing master decision is accordingly set aside and
that VAT in the
amount of R4200 should be taxed off.
[27]
Costs
The
plaintiff prays that the review be dismissed and that a costs order
be made against the defendant.
[28]
I have in terms of the Rule 9 the discretion to make such an order as
to costs as I deem fit, including an order that the unsuccessful
party pay to the successful party a fixed sum as to costs. A general
practice has developed to award a nominal amount without reference
to
the costs actually incurred by the successful party
(
Madiala
v Southern Insurance Association Limited
1982 (4) SA
280
(D).
[29]
Litigants and practitioners have, however been warned that in
order to discourage reviews of taxation of costs that clearly have
no
prospects of success and merely waste the time of the Taxing Master
and Judges, the judge may award a realistic amount to cover
all the
costs of the opposing party.
Madlala
supra.
[30]
It appears from the aforegoing that the plaintiff was successful in
items 44 - 47, 50 and 80 being the items against which
the objection
was lodged, except for item 82 which was conceded by the taxing
master. I am of the opinion that the plaintiff should
at least be
granted a realistic amount to cover the costs of opposing the
application.
[31]
Having regard to the time I spent on this matter, it means both
parties must also have spent quite some time in bringing of
the
application by the defendant as well as the plaintiff opposing it.
The plaintiff ought to be awarded a reasonable amount for
preparing
to oppose the application it could not have taken more than 4 hours
to prepare, as it was not all the items that where
objected too, at
R200 per hour, plaintiff total costs could amount to R800,00.
[32]
In the result I make the following order
1.
The review is dismissed in respect of items 44 -47, 50, 80 and upheld
in respect of
items 82 the matter is referred back to the Taxing
Master to deal with matter in accordance with the decisions set out
in the judgment.
2.
The defendant is ordered to pay the plaintiff R800 of the costs
incurred in respect
of opposing this review application.
_________________
S
CHESIWE, AJ
On
behalf of plaintiff:
Mr Buchner
Instructed
by:
Honey Attorneys
Bloemfontein
On
behalf of defendant:
Lovius Block Attorneys
Instructed
by:
Ramsay Webber Attorneys
Bloemfontein