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[2016] ZAECMHC 49
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Standard Bank of South Africa v Gxumisa (1117/2013) [2016] ZAECMHC 49 (16 August 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION :
MTHATHA
CASE NO. 1117/2013
In the matter between:
STANDARD BANK OF SOUTH
AFRICA
Plaintiff
and
NOKWANDA PRISCILLA
GXUMISA
defendant
JUDGMENT
GRIFFITHS, J.:
[1] The plaintiff seeks an
order compelling the taxing master of this court to state a case as
contemplated in terms of Rule 48(3).
[2] The background to this
matter may be stated very shortly. The plaintiff, being dissatisfied
with the taxation of a Bill of costs
which was taxed on 22 September
2015, duly filed, pursuant to the provisions of Rule 48(1), a notice
indicating its intention to
review the taxation of the respondent's
costs. In that notice, a number of items were referred to which had
been objected to during
the course of the taxation and which were
either allowed in part or in full by the taxing master. As against
each of the items
and under a column headed "objection"
there appear fairly cryptic descriptions of the basis for the
dissatisfaction with
that particular item.
[3] In response to the
notice, the respondent filed a notice to oppose and gave as the
grounds for such opposition, in essence,
a failure to comply properly
with the provisions of Rule 48(2) (b), (c) and (d). In this regard,
it has been argued by Mr. Vutula,
who appeared on behalf of the
respondent, that because the provisions of these sub rules have not
been properly complied with,
the taxing master is not obliged to
respond thereto as he would in the normal course be required by
virtue of the provisions of
section 48(3) to do. Indeed, the taxing
master has also put up in the papers a response to the rule 40(1)
notice in which he joins
issue with the applicant on much the same
basis.
[4] Mr. Hobbs, who has
appeared for the applicant, has argued that the notice is sufficient
and complies substantially with the
sub rules of rule 48(2) referred
to. In the circumstances, he has moved the court for an order
compelling the taxing master to
proceed in terms of rule 48(3) by
providing the stated case referred to therein.
[5] The starting point in
an attempt to resolve this impasse must obviously be the provisions
of the Rule itself. In this regard,
the Rule reads thus:
“
48 Review
of taxation
(1) Any party dissatisfied with the ruling of the taxing
master as to any item or part of an item which was objected to or
disallowed
mero motu
by the taxing master, may within 15 days
after the
allocatur
by notice require the taxing master to
state a case for the decision of a judge.
(2) 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 such 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; and
(d)
contain any finding of fact
which the dissatisfied party contends the taxing master has made and
which the dissatisfied
party intends to challenge, stating the ground
of such challenge, but not argument in support thereof.
(3) The taxing master must —
(a)
supply his or her stated
case to each of the parties within 20 days after he or she has
received a notice referred
to in subrule (1); and
(b)
set out any finding of fact
in the stated case.
(4) Save with the consent of the taxing master, no case
shall be stated where the amount, or the 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.
(5)
(a)
The
parties to whom a copy of the stated case has been supplied, may
within 15 days after receipt thereof make submissions in writing
thereon, including grounds of objection not raised at the taxation,
in respect of any item or part of any item which was objected
to
before the taxing master or disallowed
mero motu
by the
taxing master.
(b)
The taxing master must within 20 days after
receipt of the submissions referred to in paragraph
(a)
,
supply his or her\ report to each of the parties.
(c) The parties may within 10 days after receipt
of the report by the taxing master, make further written submissions
thereon
to the taxing master, who shall forthwith lay the case
together with the submissions before a judge.”
[6] It seems clear from the
Rule that it has been structured in such a manner as to formulate a
set of documents which cumulatively
will inform the court ultimately
tasked with the review of the facts and circumstances relating to the
matters in issue. It seems
to me that this is a well thought out and
necessary procedure in view of the fact that taxations are generally
held in a relatively
informal atmosphere and that, save where in
exceptional circumstances evidence may be led, there is no real
record of the taxation
hearing other than the notes made on the bill
of costs by the taxing master himself. It is the parties to the
taxation, or their
legal representatives, who generally will keep a
form of record of the objections, the findings and the results
thereof.
A fortiori
, a
procedure had to be developed for the purposes of informing the court
of the background to the matter, the objections made to
each
individual item, their nature, findings of fact, the ruling by the
taxing master and the reasons therefor.
[1]
.
[7] In the Brener matter
Stegmann J commented that not only does the Rule require that the
notice should set out all those items
reflected in Rule 28 (2) (a) -
(d), but that:
"These
appear to be the minimum requirements for a proper notice in terms of
Rule 48 (1) requiring a Taxing Master to state
a case. What has to be
kept in mind is that, in this Division at least, the Taxing Master
deals with scores of bills of costs every
week, and that he cannot be
expected to carry in his memory the detail which he needs in order to
comply appropriately with his
duty to state a case whenever he
receives a notice in terms of Rule 48 (1). The notice given by the
dissatisfied party must therefore
indicate at least what that party
expects the state case to contain."
[8] It is also so that the
Taxing Master has no obligation to state a case where a dissatisfied
party has failed, without good cause,
to comply with rule 48 (2) (b)
- (d)
[2]
.
[9] The question then which
requires to be answered is whether or not the applicant has indeed,
in the Rule 48(1) notice, complied
with the relevant sub rules. In
my view, it has not. One need only look at the very first item to
find an example of this.
As against item "1.1" the
following words are found:
"@250 words per page – allow
four pgs/disallow attendance fee, included in perusal fee
."
In my view this goes nowhere towards compliance with the sub rules.
Bearing in mind the aforementioned, and in particular
the fact that
the Taxing Master is obliged to deal with a number of taxations, it
is necessary for a dissatisfied party to set
out in some detail the
actual objection and its grounds which were relied upon at the
taxation in a manner which will enable the
Taxing Master to properly
understand the nature of the objection, and to clearly set out any
finding of fact which the dissatisfied
party intends to challenge
together with the reasons for such challenge. There are a number of
similar examples peppered throughout
the notice and in my view, even
though some of these items may be, as argued by Mr. Hobbs, somewhat
more understandable, the notice
as a whole should be properly
amplified so as to comply strictly with the Rule and so as to enable
the Taxing Master to be able
to prepare therefrom an accurate stated
case for the court.
[10] Indeed, in the present
matter, the Rule 28 (1) notice put up by the plaintiff appears to be
nothing more than a regurgitation
of the original notice of
opposition to the Bill of costs. This is simply not satisfactory. One
would expect in such a notice and
as against each and every item that
the plaintiff is dissatisfied with, that the plaintiff would have
dealt seriatim with each
of the necessary requirements under Rule
48(2) so as to make it clear that there is indeed such compliance.
Where, for example
as argued by Mr. Hobbs, it is not clear as to what
finding of fact the Taxing Master might have made, this can perhaps
be stated
i.e. the statement can be made that it is not clear as to
what the finding of fact, if any, was. However, in my view, in most
instances
it will be fairly clear as to what the relevant finding of
fact was from the documents themselves and the Taxing Master's own
notes
and comments made at the time of taxation. The "minnowing
process" as referred to by Mr. Hobbs in argument which is
provided
for in the Rule by way of the Taxing Master's response to
the notice by the dissatisfied party and the subsequent procedure
provided
for in sub rules 48(3) and (5), would in all probability
have the effect of establishing the real facts.
[11] In the circumstances,
I am not satisfied that the applicant has made out a case for the
relief which it seeks. However, in
my view there would be an
injustice were the matter to end there. Accordingly, the plaintiff
must be given leave to amend its notice
in terms of Rule 48(1) so
that the matter may proceed to finality.
1.
The
interlocutory application to compel the Taxing Master to provide a
stated case is dismissed;
2.
The
plaintiff is given leave to amend its Rule 28(1) notice to comply
with the provisions of Rule 48(2);
3.
The
plaintiff is ordered to pay the costs associated with the hearing to
compel the Taxing Master to provide a stated case.
R E GRIFFITHS
JUDGE OF THE HIGH COURT
HEARD
ON
: 04 AUGUST 2016
DELIVERED
ON
: 16 AUGUST 2016
COUNSEL FOR
PLAINTIFF
: Mr Hobbs
INSTRUCTED
BY
: M/s Bornman & Hayward
COUNSEL FOR
DEFENDANT :
Mr Vutula
INSTRUCTED
BY
: S. C. Vutula & Co
[1]
See in this regard Brener v Sonnenberg, Murphy, Leo Burnett (PTY)
Limited
1999 (4) SA 503
at 512
[2]
See Aircraft Completions Centre (PTY) limited v Roussouw and others
(2004 (1) 123 (WLD) at paragraph 44