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[2016] ZAFSHC 118
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Bothma v Bothma (3653/2013) [2016] ZAFSHC 118 (30 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number: 3653/2013
In
the matter between:
JACOBA
MAGARETHA ODENDAAL BOTHMA
Plaintiff
and
JOHANNES
PIETER BOTHMA
Defendant
JUDGMENT:
FISCHER,
AJ
HEARD
ON:
23
JUNE 2016
DELIVERED
ON:
30
JUNE 2016
[1]
This matter comes before me as a review of taxation in terms of Rule
48(1) of the Uniform Rules of Court on the basis that the
defendant
is dissatisfied with the ruling of the Taxing Master, notwithstanding
objection, in allowing the maximum fee of R2 130,00,
as
envisaged in Rule 43(8), to both the instructing country attorney as
well as the Bloemfontein correspondent.
[2]
The defendant was at all material times represented by two sets of
attorneys and it is common cause that the defendant instructed
the
country attorney who in turn instructed its Bloemfontein
correspondent.
[3]
Both sets of attorneys prepared party and party bills of costs
relating to the fees and disbursements alleged to be due to them
by
the defendant. The bills of costs were subsequently taxed
by the Taxing Master pursuant to which the defendant formally
recorded his dissatisfaction with the ruling of the Taxing Master in
respect of the allowing of the aforementioned maximum fee
to both
sets of attorneys.
[4]
The contention of the Taxing Master was that, on account of the large
population residing outside the seat of the court in Bloemfontein,
country attorneys, as the instructing attorneys, would be obliged to
make use of a Bloemfontein correspondent in initiating proceedings
in
terms of Rule 43, that both sets of attorneys would of necessity
deliver professional services in connection with the envisaged
Rule
43 application and would as such accordingly be entitled to fees for
work actually done, thereby justifying allowing both
sets of
attorneys the maximum fee in terms of Rule 43(8) on taxation.
[5]
The attorneys in question not only supported the approach of the
Taxing Master, but added that the Uniform Rules of Court in
fact make
provision for engaging the services of more than one set of
attorneys (see Rule 70(8)) and furthermore that it
could never have
been the object of the Rules of court to deprive one of such
set of attorneys of “all fees”.
In this regard
reliance was placed on
Van
Tonder v Meyer
1980 (4) SA 1
(T).
[6]
I am of the opinion that the above case does not serve as authority
for the proposition that in Rule 43 applications all attorneys
engaged by a party are entitled to “all fees”. What is
quite evident from a reading of both the uniform rules of court
as
well as the relevant authorities is that a clear distinction is drawn
between proceedings in terms of Rule 43 as opposed to
proceedings in
terms of any other uniform rule of court.
[7]
Rule 43 is as such a special rule governing a specific application
and the whole object thereof is to provide for an expeditious
and
inexpensive manner in which to enforce interim maintenance payments
as well as ancillary relief
pendente
lite
(see
Von
Reiche and Basson v Swart
1988 (1) SA 813
(TPA) at 815A-G).
[8]
Rule 43(8) reads as follows:
“
43(8)
No instructing attorney in cases under this rule shall charge
a fee of more than R1 491,00 if the claim is undefended
or R2 130,00
if it is defended, unless the court in an exceptional case otherwise
directs.”
[9]
In
casu
the matter was defended both in respect of the divorce proceedings as
well as the Rule 43 maintenance proceedings and what the
Taxing
Master did was to allow the fee of R2 130,00 for both sets of
attorneys for the reasons already referred to earlier
and
notwithstanding the fact that the subrule refers to an “instructing
attorney”.
[10]
At all material times there can only be one “instructing
attorney” acting on behalf of a particular party in defended
Rule 43 applications. If such an attorney was a country attorney then
the Bloemfontein attorney at the seat of the court and serving
as the
correspondent cannot be regarded as a further “instructing
attorney” for purposes of Rule 43(8). Such an ”instructing
attorney”, who would include the city correspondent , would be
entitled to no more than a maximum fee of R2130,00 which
as
such relates to all fees in connection with the defended
application as envisaged in terms of the rule.(see
Lombard
v Lombard
1986 (2) 310 (ECD) at 312 I-313B)
[11]
I will accept that in practice this might very well lead to hardship
especially if it be accepted that the country attorney,
as
instructing attorney would, of necessity, be obliged to have regard
to the contents of an application launched by the opposition
in terms
of rule 43, consult with and advise its client and thereafter arrange
for a consultation with the city correspondent and
counsel. The
practical effect of Rule 43(8) would be that the city correspondent
(who is not the “instructing attorney”)
would not be
entitled, on taxation, to any portion of the aforementioned maximum
fee (see
Lombard
case
supra
at 313A-D.)
[12]
I am of the view that this potential hardship is provided for in the
rider to Rule 43(8) in the sense that the court entertaining
the Rule
43 application may, in exceptional cases(involving complexity and
novelty) direct otherwise, thereby allowing a fee in
excess of the
maximum of R2130,00 (see
Von
Reiche
case
supra
at 817B-F).
[13]
In
casu
and in respect of the instructing country attorneys bill of costs
(item 49), the Taxing Master taxed off an amount of R837,00 from
the
amount of R2967,00 thereby allowing the maximum fee of R2130,00 in
respect of the Rule 43 application.
[14]
Simultaneously however the Taxing Master allowed the same maximum fee
of R2130,00 for the city correspondent under item
4 of such
correspondents own bill of costs, thereby doubling the maximum fee in
circumstances where no argument or facts were placed
before the
court to the effect that this was an “exceptional case.”
[15]
The latter sum of R2130,00 allowed under item 4 in respect of the
city correspondent’s bill of costs should, in the
circumstances, not have been allowed.
[16]
In the result the matter is referred back to Taxing Master for the
re-adjustment of the bill of costs in accordance with the
preceding
paragraph.
[17]
No order as to the costs of this review is, in the circumstances
justified and I accordingly make no such order.
______________
P.
FISCHER, AJ
/eb