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[2016] ZAKZPHC 107
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Sonny and Another v Premier of the Province of KwaZulu-Natal and Another (33185/2015) [2016] ZAKZPHC 107 (12 December 2016)
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 33185/2015 (4026/2003)
In
the matter between:
KISHORE
SONNY FIRST
APPLICANT
JAYANTHIE
DEVI
SONNY
SECOND
APPLICANT
and
PREMIER
OF THE PROVINCE OF KWAZULU-NATAL FIRST
RESPONDENT
ETHEKWINI
MUNICIPALITY
SECOND
RESPONDENT
REVIEW OF TAXATION
MBATHA
J:
[1]
This is a review of taxation in terms of rule 48 of the Uniform Rules
of Court.
[2]
A number of items in the applicants' bill of costs were disallowed
which included a significant portion of the costs of experts
fees and
counsels’ fees.
[3]
In respect of experts and counsels’ fees the applicants state
that:
(a) Initial consultations
were limited to 1 hour;
(b) Consultations with
counsel were limited;
(c) No perusal of reports
of other experts was allowed for purposes of either drafting reports
or
preparing to testify
;
(d) Tests and assessments
prepared by experts in formulation and compilation of their reports
were disallowed;
(e) Drafting and hourly
rates were allowed at R425 (four hundred and twenty five rand) per
page for drafting in 2014 subject to
a 7.5% decrease per annum and
the hourly rate was fixed at R1000 (one thousand rand) per hour
subject to a 7.5% decrease per annum.
[4]
The applicants are challenging the Taxing Master’s decision on
the basis that she disregarded the following:
(a) the ambit of the
court order;
(b) the complexity of the
matter;
(c) the merits as such;
(d) the particular
function of each expert; and
(e) the economic reality
of funding litigation of this nature.
[5]
The first respondent’s argument at taxation was that a
significant portion of counsels’ fees were attorney and client
in nature and did not fall within the ambit of party and party costs,
which was accepted by the Taxing Master. The respondents
agree with
the Taxing Master regarding the taxation of the bill of costs.
[6]
The Taxing Master has filed a stated case and all the parties hereto
have made their submissions. Upon receipt of the stated
case, this
court referred this matter to court in terms of rule 48(6) of the
Uniform Rules of Court, where those who represented
the applicants
and the first respondent were given an opportunity to articulate and
clarify their submissions to the court.
[7]
It is of importance that I should state how the cause of action arose
in this matter so as to appreciate the issues raised by
the parties
in the stated case. The plaintiffs instituted an action for damages
in 2003 for a claim for R6 600 000 (six
million six hundred
thousand rand) against the defendants. On or about 26 June 2002, the
second plaintiff attended a clinic in
connection with her pregnancy,
whereby she expected that the defendants’ employees would take
reasonable steps to establish
if a substantial risk existed that the
foetus would suffer from any severe physical and mental
abnormalities, as this would have
afforded the plaintiffs an
opportunity to elect whether to terminate the pregnancy or not in
terms of the Choice on Termination
of Pregnancy Act.
[1]
They alleged that due to the negligence of the defendants’
employees, the second plaintiff gave birth to a baby girl, with
one
of the most severe types of “Down’s Syndrome” on 16
November 2002. The plaintiffs further allege that the
defendants’
employees performed a bilateral tubal ligation on the second
plaintiff without her consent, which rendered her
permanently
incapable of bearing children again.
[8]
The trial commenced in March 2007 and judgment on the merits was
delivered on 7 August 2009, where Levinsohn DJP found in favour
of
the plaintiffs with costs. The defendants proceeded to the Supreme
Court of Appeal, whereupon the Supreme Court of Appeal dismissed
their appeal on 4 March 2011 and upheld DJP Levinsohn’s
judgment in favour of the plaintiffs.
[9]
The claim was finally settled on 6 May 2013. A settlement for an
amount of R4 458 000 (four million four hundred and
fifty
eight thousand rand) being damages, and 66,6% of the first and second
plaintiffs’ taxed or agreed party and party costs
on the high
court scale was awarded to the plaintiffs in regard to all costs
incurred in respect of the issue of quantum, which
costs shall
include:
(a) the costs consequent
on the employment of senior and junior counsel;
(b)
the reasonable
costs for the plaintiffs’ experts, including preparation
time, consultation fees,
medico-legal examinations, drafting of
experts reports, qualifying, reservation and attendance fees and
their expenses incurred;
(c) the reasonable costs
consequent upon preparation time, consultation with the expert
witnesses referred to in the order including
travelling time and
travelling expenses as may be allowed at taxation or agreed; and
(d) the plaintiffs’
reasonable travelling and subsistence expenses to attend with the
minor child on the experts referred
to for medico-legal examinations,
and for consultations with the plaintiffs’ attorney in
preparation for the consultation
as allowed at taxation or agreed
upon.
The
Law
[10]
Uniform rule 70(3) provides as follows:
‘
With
a view to affording the party who has been awarded an order for costs
a full indemnity for all costs reasonably incurred by
him in relation
to his claim or defence and to ensure that all such costs shall be
borne by the party against whom such order has
been awarded, the
taxing master shall, on every taxation, allow all such costs, charges
and expenses as appear to him to have been
necessary or proper for
the attainment of justice or for defending the rights of any party,
but save as against the party who incurred
the same, no costs shall
be allowed which appear to the taxing master to have been incurred or
increased through over-caution,
negligence or mistake, or by payment
of a special fee to an advocate, or special charges and expenses to
witnesses or to other
persons or by other unusual expenses.’
[10.1] Rule
70(3) clearly expresses the intention of the Legislature by
protecting the interests of the successful litigant,
in that
expenditure reasonably incurred should be reimbursed to him, without
overburdening the unsuccessful litigant with unreasonably
incurred
expenditure.
[10.2] The Taxing
Master is vested with a discretion to allow costs necessarily
incurred in the litigation. However, a court
of law can still
interfere with the exercise of the Master’s discretion even
when exercised properly, a court on review will
be entitled to
interfere where her decision is based on a misrepresentation of the
law or a misconception as to the facts and circumstances
or as to the
practice of the court. (See
Cash
Wholesalers, Ltd v Natal Pharmaceutical Society and The Taxing
Master
.
[2]
)
[10.3] In a party
and party bill of costs, the Taxing Master should apply the tariff.
However, rule 70(5) provides for a departure
from the tariff in the
exercise of his discretion in extraordinary or exceptional
circumstances where adherence to the tariff would
be inequitable.
This discretion is not only limited to items on the tariff, but also
where there is a
lacuna
in the tariff.
[10.4] In general,
fees allowed to counsel are often left at the discretion of the
Master. It is trite that the court will
not interfere with such
exercise of discretion, unless the Taxing Master has acted upon a
wrong principle or exercised his discretion
in an incorrect manner.
[11]
It is trite that the discretion of the Taxing Master will generally
not be interfered with unless it is found that he or she
did not
exercise a proper discretion, for example, by disregarding factors
which were proper for him or her to consider or by considering
matters which were improper for him or her to consider, or if he or
she has disregarded relevant factors or has had regard to 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 & others.
[3]
)
The courts have also recognised the principle that the court may
interfere in those classes of cases where the court is able to
form
as good an opinion as the Taxing Master and perhaps an even a better
opinion. (See
Wellworths
above.)
[12]
Rule 69(5) states that where the tariff is not applicable, in the
taxation of advocates’ fees as between party and party,
the
Taxing Master shall allow fees in excess thereof as he or she
considers reasonable.
[13]
Certain fees fall within the discretion of the Master in the
determination of counsel’s fees, taking into account the
following:
(a) the complexity of the
matter, both as regards to facts and law. (See
Scott
& another v Poupard & another.
[4]
)
(b) the category to which
counsel belongs to;
(c) the prevailing level
of fees by counsel;
(d) the actual time spent
by counsel. This is a decisive factor as fully canvassed in
Hennie
de Beer Game Lodge CC v Waterbok Bosveld Plaas CC & another
;
[5]
and
(e) the fee allowed by
the Master must be reasonable in the circumstances. In the ultimate
result, counsel must ‘be fairly
compensated as a professional
man for his preparation, attendance at Court, presentation of
argument and all the thought, concern
and responsibility that went
into the matter. . . .’
[6]
[14]
It is my view that the matter was complex. It involved complex
medical jurisprudence and the court had to determine whether
failure
to inform of risks attendant upon the pregnancy and to ensure timeous
conclusive chromosomal testing to enable a termination
of pregnancy
in terms of the Choice of Termination of Pregnancy Act would result
in negligence on the part of the defendants and
liability for
damages. This factor was conclusively determined by the Supreme Court
of Appeal. I find the determination to be even
more complex on the
basis of the extreme nature of the Down’s Syndrome that
presented upon the child, the reliance on the
Choice on Termination
of Pregnancy Act and other legal issues that the court had to
determine as finally determined by the Supreme
Court of Appeal.
[15]
Every sort of expert had to be consulted including an Ear, Nose and
Throat Surgeon, Independent Living Expert, Consulting Psychologist
on
family earnings, Specialist Orthopaedic Surgeon, Occupational
Therapist, Ophthalmologist, Orthotist, Periodontitis, Social Worker,
Augmentative and Alternative Communicator Specialist, Specialist
Psychiatrist, Educational and Counselling Psychologist, Specialist
Paediatrician, Actuary, Speech and Language Therapist, Dietician,
Audiologist, Gynaecologist and Obstetrician, Cardiologist, Clinical
Psychologist, Orthodontist, Dentist and Dermatologist to try and
assess how the child and parents can be assisted to cope with
the
life of having a severely disabled child and to quantify damages.
Needless to say, such experts were required also in the determination
of the merits of the case.
[16]
This is not a matter which one would compare with cases of a fracture
of a femur or the like. It is therefore my view that
the
reasonableness of the fees should be measured by the time, effort and
skill required by whoever was required to perform the
tasks due to
the unknown results or unforeseen circumstances arising from having a
child with such severe disabilities. I have
taken into account the
novelty of the issues that confronted the advocates and experts
involved in this matter, the difficulties
and expertise that were
required in compiling and comprehending expert reports, to regard it
as a very complex matter.
[17]
The limitation of the fees for consultations with experts to one hour
would not be appropriate in these circumstances. Experts
consultations are involved as they involve examinations and at times
tests are carried out. The results of these tests are to be
firstly
examined by an expert who can interpret and analyse them before they
can be examined by the expert who requested them,
for example, x-ray
reports are interpreted by experts and sent with results to the
doctor who requested them. The limitation to
one hour consultation
would not be a fair measure in the circumstances. I find that the
experts should be in a position to specify
the number of hours spent
on each consultation and that this should be used as a guideline in
the determination of the hours spent
in each consultation. In the
result, they should be indemnified for the specified number of hours
as tabled before the Taxing Master,
on the basis of whether the fees
were reasonable in the circumstances.
[18]
In
Glenister
v President of the Republic of South Africa & others
[7]
the court held that it is appropriate to award qualifying fees when
qualified expert witnesses assist the Constitutional Court.
The court
referred to the function of an expert as follows:
‘
In essence, the function of an
expert is to assist
the court
to reach a conclusion on a matter on which the court itself does not
have the necessary knowledge to decide. It is not
the mere opinion of
the witness which is decisive but his ability to satisfy the court
that, because of his special skill, training
or experience, the
reasons for the opinions he expresses are acceptable. Any expert
opinion which is expressed on an issue which
the court can decide
without receiving expert opinion is in principle inadmissible because
of its irrelevance.’
[8]
[19]
The perusal of reports of experts by other expert witnesses should be
allowed and be limited to only those who referred to
those reports in
their reports. . I can accept that other experts may independently
give their reports, but those who had to refer
to other expert
reports should be entitled to a reasonable fee determined by the
Taxing Master. I make reference to an Actuary,
who may need to peruse
certain expert reports to give an informed opinion on the matter.
[20]
Rule 70(3) states that the Taxing Master shall, on every taxation,
allow all such costs, charges and expenses as appear to
him to have
been necessary or proper for the attainment of justice or for
defending the rights of any party. It also carries a
caveat in that
the Taxing Master will be allowed to tax off costs which have been
incurred or increased through over-caution, negligence
or mistake, or
by payment of any specific fee to an advocate or witness or to other
persons. In cases where there is a duplication
of experts or use of
an expert to confirm a single result, the other fee should be for
attorney and client and not form part of
a party and party bill of
costs, if the Taxing Master believes that it was done through
over-caution or negligence on the part
of the applicant. Her exercise
of discretion is limited to exceptional cases, like this one,
otherwise the tariff applies. This
case was
sui generis
in
nature and in all fairness, it must be taken into account that the
plaintiffs’ were indigent persons, and that the attorney
and
client fee will only come from the award made in favour of the child.
[21]
In general, consultations with experts by counsel or attorney are
excluded, save for costs to inform them of their mandate
and issues
on which they will be required to testify. The court may make a
special order for them to qualify as party and party
costs. In this
case I find that the order catered for these costs in prayer 2 and 3.
[22]
Though specified categories of fees have been stated in the
settlement agreement, the Master, in the exercise of her duties,
has
a duty to ascertain if work has been done and should demand
proof to his/her satisfaction that the services for which
payment is
demanded have actually been rendered.
[9]
I am referring to this aspect having considered the complexity of the
subject matter that was investigated, the arduousness of
the
investigations, the calibre and type of expert witnesses that were
used in the trial.
[23]
This is also regulated by rule 70(5)(a) which gives the Taxing Master
a discretion, at any time to depart from the provisions
of the tariff
in extraordinary or exceptional cases, where strict adherence to such
provisions would be inequitable. This should
also apply to
consultations, appearances and conferences, inspections, drafting and
drawing.
[24]
The objection raised by the defendants’ counsel that the
significant part of counsels’ fees were attorney and client
in
nature, cannot be accepted on the basis of the nature of the claim,
which required the expertise use of counsel in consultations
with the
plaintiffs. The Master in her stated case has stated that when she
taxed the bill of costs she treated it as a complex
matter. I have
had the opportunity to peruse the entire file and the judgments in
the matter, which is the subject of the taxation
and have a better
insight to the issues that presented before the court. I commend her
for having given it that status irrespective
that she did not have
the opportunity to assess the matter as I have been able to do so.
[25]
Senior counsel’s fees at item 1278 totalled R242 592 (two
hundred and forty two thousand five hundred and ninety
two rand) and
junior counsel’s fee at item 1281 totalled R95 600 (ninety
five thousand sixty hundred rand). The applicants
have tabled out in
their case regarding the amounts allowed for trial for drafting and
preparation for trial for 6 May 2013 as
follows:
(a) Senior counsel was
allowed R25 000 (twenty five thousand rand) for the first day
inclusive of preparation. Then R2 400
(two thousand four hundred
rand) per hour subject to a 10% decrease per annum.
(b) Junior counsel was
entitled to 50% of senior counsel’s rate in terms of rule 69.
In 2014 it equalled R1 200 (one
thousand two hundred rand).
(c) Drafting for senior
counsel, counsel was allowed R900 (nine hundred rand) per page in
2014 subject to a 10% decrease per annum
and junior counsel was
entitled to 50% of senior counsel’s rate in terms of rule 69.
[26]
It is common cause that the court authorised payment of the costs
consequent on the employment of senior and junior counsel.
It is also
trite that rule 69 states that where the court authorises payment of
two counsel, fees for an additional advocate shall
not exceed one
half of those allowed in respect of the first advocate. The Taxing
Master shall use the tariff in this regard as
between party and
party. She shall allow fees in excess thereof, as she considers to be
reasonable in terms of rule 69(5). However,
she must also take into
account that the norm in this division is that junior counsel of five
years’ experience or more is
often awarded two thirds of senior
counsel’s fee. The Taxing Master in this regard shall take into
account the complexity
of the matter, both as regards to law and
facts, the category to which counsel belongs, their prevailing level
of fees and the
actual time spent on the matter. The 10% reduction
applied by the Taxing Master is not in line with the aforementioned
principles.
[27]
Though counsel must be fairly compensated for his expertise in
preparation for the trial, it must be borne in mind that it
is not
the function of counsel to draft affidavits, it is only in
exceptional cases where due to the complexity of the matter it
will
be necessary to brief counsel to draft affidavits. I would say that
this principle should be extended to the particulars of
claim and
defendants’ plea or counter claim. Furthermore, in the exercise
of her discretion, the Taxing Master will have
regard to the
complexity of the matter, the amount of work required to be done and
how long before the date of trial the matter
was settled
[10]
in assessing the fees that arose as at the date of settlement of the
matter. This should be considered also in regard to preparation
fees
for counsel.
[28]
It is desirable that if a matter is capable of settlement, that it
should be settled timeously enough for it to be removed
from the
trial roll. This will alleviate the necessity of preparing for a
trial that will not take place and will also be beneficial
to the
party who has been ordered to pay the costs of the action.
[29]
The fees are to be measured against what the services would be worth
if done by any other counsel, taking into account the
time spent on
the matter, the expertise required and the complexity of the matter.
I have not seen counsels’ fee notes, which
must be made
available to the Taxing Master, so that she can determine if the
consultation fees were justified, attorney and client
or party and
party fees. She must not work on a global figure. She must consider
any such consultation fee on a basis of whether
it was reasonably
necessary or not.
[11]
Counsels’ fees have been drastically reduced to almost a third
of what was claimed. It is my view that they need to be reviewed
in
line with all the principles which I have outlined above.
[30]
Junior and senior counsel were involved because of the complexity of
the nature and I also accept that junior counsel’s
services
were extensively, as it is evident from the voluminous documents in
the court file..
[31]
Consultations with experts by counsel are excluded, save costs to
inform them of their mandate or issues where they will be
required to
testify. The court must make a special order for them to qualify. I
do not know if this formed part of counsels’
bill. If the case
is settled, qualifying expenses of a witness when the court has not
proceeded with the trial cannot be party
and party fees, unless
provided for in the court order. These were catered for in the court
order.
[32]
In motion proceedings where an opposed matter has become unopposed
the court held that the Taxing Master was wrong in regarding
the
matter as unopposed from the point of view of assessing the proper
fee which counsel was entitled to charge for the day in
question. See
Baars v
Near East Rand Darts Association & others
.
[12]
What was to be considered was what was the reasonable fee for counsel
to have charged in the circumstances, particularly in view
that
counsel reserved the day in question to argue an opposed matter.
I
see no reason why the same rule should not apply to trials.
[33]
Rule 70(3) require the Taxing Master to strive to give the successful
party a full indemnity in respect of costs ‘reasonably
incurred’. If counsel’s fee is a reasonable fee it should
be allowed in full without any form of a deduction. Be that
as it
may, the Taxing Master may consider the reasonableness of senior
counsel’s fee in a deserving case. Due to the complexity
of
this matter, which I have determined, as well as its voluminous
nature, the decisive factor should be the value of the work
done.
[13]
[34]
The Taxing Master in this case had not read the pleadings, the
judgments on the merits and had not read the enormous and complex
expert reports to be able to determine the complexity of its nature.
I had to request the entire file, transcripts of judgments
from this
court, the Supreme Court of Appeal judgment and hear submissions in
court to determine the issues that I had to adjudicate
upon. Be that
as it may I find that she acted
bona fide
, but wrongly on
issues that have been brought under review.
[35]
I am of the view that the Taxing Master failed to take into account
relevant factors in taxing the bill of costs on the issues
raised by
the applicants. The Bill of Costs and allocatur should be set aside
and the matter referred back for taxation, taking
into account the
issues referred to in this judgment.
[36]
Accordingly, I make the following order:
(a)
The
taxation of a bill of costs under case number 4026/2003 be and is
hereby set aside;
(b)
The bill of
costs is referred back to the Taxing Master who must tax the bill of
costs
de
novo
only on the issues raised in this review; and
(c) Each party to pay
its own costs.
__________________
MBATHA
J
12
December 2016
Applicants’
Attorneys:
FRANCI LEPPAN ATTORNEYS
Suite 4, The Mews
Redlands Estate
1 George McFarlane Lane
Pietermaritzburg
First
Respondent’s Attorneys:
STATE ATTORNEY (KWAZULU
NATAL)
C/O CAJEE SETSUBI CHETTY
INC.
195
Boschoff Street
Pietermaritzburg
Second
Respondent’s Attorneys: LINDA
MAZIBUKO & CO
C/O NGCOBO PAYO &
DIEDRICKS INC
3
rd
Floor, ABSA Building
240
Church Street
Pietermaritzburg
[1]
Act
92 of 1996.
[2]
1937
NPD 418
at 425.
[3]
1947
(4) SA 453
(T) at 457-458.
[4]
1972
(1) SA 686 (A).
[5]
2010
(5) SA 124
(CC) at 127C-D.
[6]
Kromoscope
(Pty) Ltd & aother v Rinoth
1991
(2) SA 250
(W) at 256E.
[7]
(CCT
28/13)
[2013] ZACC 20
;
2013 (11) BCLR 1246
(CC) (14 June 2013).
[8]
Glenister
para
7.
[9]
Gluckman
v Winter & another
1931 AD 449
at 450.
[10]
Ndlovu
v Santam Insurance Co. Ltd
1982 (2) SA 199 (T).
[11]
Knipe
v Venter
1965 (4) SA 1
(C)
[12]
1993
(3) SA 171 (W).
[13]
Ocean
Commodities Inc. & others v Standard Bank of SA Ltd & others
1984 (3) SA 15
(A) at 22.