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[2016] ZAFSHC 167
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Knipe and Others v Noordman N.O. and Others (4817/2014) [2016] ZAFSHC 167 (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4817/2014
In
the matter between:
JDJ
KNIPE
1st
Applicant
ABJ
KNIPE
2nd
Applicant
JMJ
VIGNE
3rd
Applicant
and
O
A NOORDMAN N.O.
1st
Respondent
CB
ST CLAIR COOPER
N.O.
2nd
Respondent
SM
RAMPOPORO N.O.
3rd
Respondent
(in
their capacities as provisional liquidators of
Kameelhoek
(Pty) Ltd (in liquidation)
O
A NOORDMAN N.O.
4
TH
Respondent
CB
ST CLAIR COOPER
N.O.
5
TH
Respondent
SM
RAMPOPORO N.O.
6
TH
Respondent
(in
their capacities as provisional liquidators of
Schaapplaatz
978 (Pty) Ltd)
C
J K
LOTZ
7TH Respondent
R
P J
KNIPE
8TH Respondent
THE
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION
9TH Respondent
REVIEW
OF TAXATION
JUDGMENT
BY
:
MATHEBULA, AJ
DELIVERED
ON:
22
SEPTEMBER 2016
[1]
This is a review of taxation in terms of the provisions of rule 48 of
the Uniform Rules of Court. The applicants were
dissatisfied
that the Taxing Master had allowed certain items on the taxed bills
of costs of the 4
th
,
7
th
and 8
th
Respondents. They delivered a notice of review in terms of the
rules and requested the Taxing Master to file a state case
in terms
of rule 48(3) for the decision of a judge on those items.
[2]
The items that were objected to are many on the bills of costs of
Messrs De Lange and Du Plessis Attorneys and Messrs Masepes
Incorporated. I have grouped them into categories for ease of
reference as follows:
Kimberley
matters
Item
38-39
:
deals with the receipt perusal and copies of documents relating to
application
for summary judgment under case number
2020/2010
in the Northern Cape High Court, Kimberley.
Item
40-117
:
deals with receipt, perusal and copies of documents filed of record
under case number
1568/2007
in the Northern Cape High Court, Kimberley.
Item
118-121
:
deals with receipt of perusal and copies of documents relating to
case number
76414/2010
in the Northern Gauteng High Court.
Item
122-123
:
deals with receipt, perusal and copies of documents dealing with case
number
276/2011
in the Northern Cape High Court, Kimberley.
Item
124-127
:
deals with the receipt, perusal and copies of the last will and
testament of HBLJ Knipe and the forensic
report.
Item
126-151
:
deals with the receipt, perusal and documents filed of record under
case number
1968/2010
in the Northern Cape High Court, Kimberley.
Item
152-173
:
deals with the receipt, perusal and documents filed of record on the
case number
1132/2008
in the Northern Cape High Court, Kimberley.
Item
174-175
:
deals with the receipt, perusal and copies of the judgment under case
number
304/2011
.
Item
176-179
:
deals with the receipt, perusal and copies of the judgment under case
number
37/2015
.
Item
180-181
:
deals with the receipt, perusal and copies of the judgment under case
number
A252/2011
.
Item
182-189
:
deals with the receipt, perusal, copies, research etc. of the
judgment under case number
1936/2011
and
1937/2011
.
Item
198
:
These relates to receipt and perusal of the Deeds of Incorporating,
Trust Deeds, CM Certificates and memorandum.
Item
199-250
:
These relates to receipt, perusal and copies of documents filed of
record in the application for liquidation
of Kameelhoek under case
number
1936/2011
.
Item
251-295
:
Relates to the receipt, perusal and copies of documents filed of
record in the application for liquidation
of Schaapplaatz 978 (Pty)
Ltd under case number
1937/2011
.
Drafting
fee
In
this matter the objection is that Taxing Master allowed the amount of
R26 561.15
for drafting fee despite more than 20% of the bill of costs being
taxed off.
[3]
The objections that were lodged against the bill of Messrs Matsepes
who are attorneys for the 4
th
and 7
th
respondents comprises of a number of items. I have also grouped
them into categories for ease of reference as follows:
Fee
agreement
Item
37, 325, 371 and part of 545
:
These
items relate to the fee agreement between the attorney and the client
of R1 800.00 per hour. This was allowed by
the tax Master
instead of R1 052.00 per hour allowed in terms of the Rules of Court.
Kimberley
matters
Item
76 to 324
:
deals with the receipt, perusal and copies of the documents filed of
record under various case numbers in the Northern Cape
High Court,
Kimberley.
Items
512
:
This relates to consultation with liquidators to
draw the replying affidavit
and discuss the process in depth.
It is alleged that the matter was attended to by a professional
assistant and not an attorney.
Item
545:
This
refers to the time recorded for the hearing.
Taxing
fee
The
issue in dispute is that the Taxing Master allowed an amount of
R30 048.11 despite more than 20% of the total amount being
taxed
off.
BACKGROUND
[4]
The applicants brought an application for business rescue against the
respondents. This application was dismissed by Wright
AJ which
costs on the scale as between attorney and client. The learned
judge further ordered that the costs relating to
the 7
th
respondent shall include costs occasioned by the employment of two
counsel. The application for leave to appeal was equally
dismissed with costs by the court.
GROUNDS
OF OBJECTIONS AND SUBMISSION
[5]
The items objected to related to the receipt, perusal and copies made
of the so-called Kimberley matters. These documents were
not part or
attached to the application in this matter. In essence they
were not placed before the court nor did they form
part of the
bundles. The submission is that these documents were not
material to the application before the court.
In addition, that
they did not have any evidentiary and/or probative value in
furthering the case of either party.
[6]
The documents in question were voluminous numbering 7 000 pages
covering about 6 cases in different High Courts. The
protagonists in all these matters involved members of the Applicants’
family in one capacity or the other. The issues
in dispute are
more or less the same though different in form.
[7]
The thrust of the contention regarding the drafting and taxation fee
is that the Taxing Master should not have allowed these
items because
more than 20% of the total amount of the bills was taxed off.
This aspect is conceded, and correctly so, by
the Taxing Master in
her state case. I shall not deal further with this aspect as it
is regarded as settled.
[8]
The contention regarding the fee agreement between the attorney and
client of R1 800.00 is that the applicants are not
bound by it.
In essence that the Taxing Master erred by not allowing R1 052.00 per
hour in terms of the Uniform Rules of
Court. This submission is
in relation to item 37, 325, 371 and part of 545.
[9]
The applicants contended on item 512 that the Taxing Master allowed
the correct tariff but that in this matter the Professional
Assistant
and not the attorney attended the matter. The respondents
correctly pointed out that the fee is calculated at the
rate of
R1 052.00 per hour. The professional Assistant is a
qualified attorney and as such I do not find the merit in
the
applicant’s objection. It was probably an error to
include this aspect in the review of taxation.
[10]
The last item objected to was numbered 545 which related to the
attendance in court from 9H00 to 17H25 at R1 800.00 per
hour
instead of R1 052.00 in terms of the Uniform Rules of Court.
The submission is that the court time is from 10H00
to 16H00 and the
appropriate tariff is R1 052.00 per hour.
MASTER’S
STATED CASE
[11]
The Taxing Master submitted that the court ordered costs against the
applicants on a higher scale of attorney and client not
party and
party. In her view the costs were punitive in nature. She
allowed the items relating to the “
Kimberley
matters
”
because they were inextricably linked with the applications before
the court. The application before the Northern
Cape were
similar in nature to the one before the court.
[12]
The applicants in their papers before the court referred to those
applications which were already finalised in the Northern
Cape.
The contents of their affidavit referred to certain information like
the number of shares which aspect was dealt with
in those
applications. It was only sensible and proper that the
respondents peruse the contents of this application to appraise
themselves with those applications in order to deal with the
application before the court. In order to lessen the burden
on
the applicants, she allowed the amount for perusal on time basis
instead of perusal of the document separately which could have
increased the costs tremendously.
[13]
On the issue of allowing R1 800.00 instead of R1 052.00 she
submitted that the costs were on a punitive scale as
ordered by the
court. The submission was that the amount of R1 800.00 was
fair and reasonable.
[14]
The Taxing Master stated that the bills of costs were submitted with
the file note with the time period so recorded and she
had no reason
to be disregarded. However, she conceded that she should have
excluded the time for tea and lunch breaks.
LEGAL
PRINCIPLES AND APPLICATION OF LEGAL PRINCIPLES
[15]
The Taxing Master is enjoined the with the task of taxing bills and
in doing so she must exercise her discretion. The
exercise of
such discretion is an administrative act which is judicial in
nature. The primary discretion lies with her to
allow or
disallow any item. It is trite law that the court can interfere
with the decision of the Taxing Master if she was
clearly wrong.
In essence the Taxing Master must have failed to apply her mind or
wrongly applied the principle. See
President
of the RSA v Gauteng Lions Rugby Union
2002 (2) SA 64
at para 13.
[16]
In this matter, the parties have been involved in protracted
litigation over a period of approximately ten (10) years.
It is
apparent in a number of cases that were dealt with in the Northern
Cape High Court, Kimberley. The applicants in their papers
referred
to these matters in paragraph 6.7. They raised this issue even
though they did not place the documents relating
to these matters
before the court. The respondents legal representatives had to
familiarise themselves with the documents
filed in these matters in
order to prepare their case. Any prudent legal practitioner
will do so in order to ensure that
the matter that is currently being
pursued has not been dealt with already by another court or whether
there are any inconsistences
or any other factors that might assist
in the current matter before the court. This is also the
reasoning of the Taxing Master
in allowing these items. I
cannot find any fault in her reasoning and I am of the view that she
exercised her discretion
in the appropriate manner.
[17]
The other objection related to the fee agreement of R1 800.00
per hour payable by the client to the attorney instead of
the amount
of R1 052.00 allowed in terms of the Uniform Rules of Court.
The reason of the Taxing Master was that the
court order granted was
on an attorney and client scale thus punitive in nature. The
essence of that order was that the successful
party must not be out
of pocket for the fees that were actually paid.
[18]
The court that makes such an order demonstrates its displeasure
against such a litigant. The order is meant to be punitive
but
must not be unreasonable and exorbitant. The losing party must
not be unnecessarily prejudiced by the Taxing Master by
simply
allowing everything that is claimed. It is envisaged that the
party in whose favour the costs order has been granted
must be
indemnified for his/her expenses. In matters of this nature,
the Taxing Master is better placed to assess objectively
whether the
expenses claimed where reasonable or not.
[19]
The objections raised on item 37, 325, 371, 512 and 545 was the fee
agreement of R1 800.00 per hour between the attorney
and the
client. The existence of such an agreement is not in dispute.
What is in dispute is that the applicants are
not party to that
agreement and as such cannot be bound by it.
[20]
In this matter the Taxing Master applied the principles correctly by
being more generous in allowing these items so that the
successful
party is fully indemnified and that the costs order was punitive in
nature. It cannot be argued that the amount
of R1 800.00
per hour is unreasonable nor exorbitant given the complexity of this
matter and the seniority of the legal representatives
involved in
it. I find no fault in her reasoning. See:
Law
Society of the Cape of Good Hope v Windvoel
1996 (1) SA 1171
(C) at 1180 I-J.
[21]
The last item relates to the time that was recorded for the hearing.
The court in this division starts at 9H30 and break
for tea at
11H00. The proceedings usually resume at 11H30 to 13H00.
Then the last session will be from 14H15 to 16H00.
The Taxing
Master submitted that there was a file note shown to her for the time
as per the bill of costs. I have no reason
to doubt it.
However, she conceded that she should have excluded the charges
relating to the tea and lunch breaks.
These aspects should then
be referred back to her for consideration and retax as indicated
above.
CONCLUSION
[22]
It is the function of the Taxing Master to tax the bill of costs not
the court. The function of the court is to check
the reasoning
of the Taxting Master. I am satisfied that the decision of the
Taxing Master represented a reasonable and realistic
discretionary
determination in this matter. There are no grounds existing in
the objections raised by the applicants justifying
interference.
[23]
Accordingly I make the following order:-
1.
The
taxation is set aside and referred back to the Taxing Master for
reconsideration and retaxation on the Drafting fee, taxation
fee and
item 545.
2.
The
remainder of the review is dismissed.
______________
MATHEBULA,
AJ