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2016
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[2016] ZAFSHC 37
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Likhojane and Another v Mabena (A75/2015) [2016] ZAFSHC 37 (25 February 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal number: A75/2015
DATE: 25 FEBRUARY 2016
In the matter between:
MANAU JAN
LIKHOJANE
...........................................................................................
First
Applicant
JOSEPHINE MALIPHOFU
LIKHOJANE
..............................................................
Second
Applicant
And
MPHO
MABENA
..................................................................................................................
Respondent
CORAM: PHALATSI, AJ
JUDGMENT BY: PHALATSI, AJ
DELIVERED ON: 25 FEBRUARY 2016
[1] This is the review of the taxing
master’s decision to tax off three items from the bill of the
applicants’ attorneys,
Messrs Lovius Block, viz items 5, 6 and
18, as well as six items of the bill of Messrs Cloete Neveling
attorneys of Harrismith,
viz: items 6, 7, 8, 9, 10 and 11.All the
said items relate to the perusal of the record of appeal and all
other costs relating
to the said record of appeal.
[2] The issue to be determined is
whether the applicants’ respective attorneys, as well as their
counsel, are entitled to
the perusal fee of the record, where such
record had never been served upon the applicants’ attorneys by
the respondent’s
attorneys.
[3] The two applicants were the
applicants in an application for eviction in the magistrates’
court for the district of Witsieshoek,
held at Phuthaditjhaba.
The Magistrate granted an eviction
order against the present respondent, Mpho Mabena on 4 July 2014.
[4] The respondent noted an appeal
against the said judgment and filed the record with the Registrar of
the High Court in terms
of Rule 50(7) (a) of the Uniform Rules of
Court. The Registrar allocated 18 May 2015 as the date of hearing
which had been applied
for in terms of Rule 50(4)(a). The copy of
the said record was never served by the Respondent’s attorneys
on the Applicants’
attorneys in terms of Rule 50(7)(d), within
the time period prescribed by the said Rule. The Applicants’
attorneys uplifted
the copy of the record from the court to prepare
for the appeal. The respondent served the notice of withdrawal of
appeal on 28
April 2015 and filed same with the registrar on 29 April
2015.
This was thirteen days before the date
of hearing of the appeal.
[5] The applicants had their costs
taxed on 15 September 2015 and the allocatur was made on 16 September
2015. The taxing master
taxed off the items referred to above and
the applicants objected to the taxing off. The applicants launched
the review application
on 8 October 2015. The taxing master gave a
stated case on 5 November 2015 and the respondent filed his
submissions in support
of the taxing off by the taxing master on 16
November 2015. The applicants filed their submissions on 19 November
2015.
[6] I decided to deal with the matter
based on the submissions by the parties as the point in dispute is
crisp and to the point.
[7] It is contended on behalf of the
Respondent that, because the record was never served on the
Applicants’ attorneys and
that the appeal was withdrawn before
it was heard, the Applicants’ attorneys and counsel are not
entitled to the fees of
perusal of the record. If the appeal had
proceeded and the record of appeal was not served on the Applicants
timeously, the applicants
would have had the right to apply for a
postponement due to non-compliance by the Respondent with the rule
regarding service of
the record of appeal, so the argument goes. The
taxing master upheld this argument and stated that if the applicants
made means
to obtain the record earlier than the time that the
respondent was obliged to file same, the costs of perusal thereof
cannot be
recovered from the other party. The point that both the
respondent’s attorneys and the taxing master seem to lose sight
of, is that the appeal was withdrawn 13 days prior to the date of
hearing, whereas the Respondent was obliged to furnish the applicants
with the record not less than 15 days prior to the hearing of the
appeal.
[8] The contention that the applicants
would have applied for a postponement should the appeal have
proceeded, is devoid of merit.
A party in litigation cannot hold the
other party to ransom and cause unnecessary delays in the
finalisation of court cases.
It is incumbent upon legal
practitioners to see to it that matters are dealt with and disposed
of expeditiously, for the benefit
of not only their clients, but for
the benefit of the public at large, in respect of both time and
costs. The finding by the taxing
master that costs of steps taken by
the applicants’ attorneys to adequately prepare for the matter
before the hearing should
be borne by said attorney’s client,
cannot be upheld. The fact that the record which was perused was not
served by the respondent’s
attorneys, does not mean that the
applicants’ attorneys could not get the record from other
sources, to avoid the delay in
the finalisation of the appeal. In
fact, the said attorneys should be commended for the manner in which
they acted, to protect
the interests of their clients. The further
contention that there were negotiations for a possible withdrawal of
the appeal does
not take the matter any further. The negotiations
could not stop the attorneys from continuing to prepare for their
clients’
case. In fact, preparation helps one to conduct
meaningful negotiations.
On the basis of the above reasons, the
decision of the taxing master stands to be set aside.
[9] I therefore make the following
order:
9.1 The taxing master’s ruling in
taxing off items 5, 6 and 18 of the bill of Messrs Lovius Block and
items 6, 7, 8, 9, 10
and 11 of Messrs Cloete Neveling’s bill,
is set aside.
9.2 All the items referred to in 9.1
above, are allowed.
N.W. PHALATSI, AJ
On behalf of applicant: J.A. Botha
Instructed by: c/o McIntyre &
Van Der Post
Bloemfontein
On behalf of 1st& 2ndrespondent:
SS Van Wyck
Instructed by: Lovius Block
Bloemfontein