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[2021] ZASCA 153
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Tadvest Industrial (Pty) Ltd and Another v Hanekom and Others (400/2019; 782/2019) [2021] ZASCA 153 (27 October 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 400/2019 & 782/2019
In
the Rule 17 Review of Taxation between:
TADVEST
INDUSTRIAL (PTY) LTD
Formerly
known as OLD ABLAND (PTY)
LTD APPLICANT
and
ANTHEA
HANEKOM FIRST
RESPONDENT
STUURMAN
HANEKOM
SECOND
RESPONDENT
THOSE
OCCUPYING COTTAGE NO 3,
TOPSHELL
PARK, BADEN POWELL ROAD,
LYNEDOCH,
STELLENBOSCH WITH OR UNDER
FIRST
AND SECOND RESPONDENTS’ CONSENT THIRD
RESPONDENT
STELLENBOSCH
MUNICIPALITY FOURTH
RESPONDENT
DEPARTMENT
OF RURAL DEVELOPMENT
AND
LAND
REFORM FIFTH
RESPONDENT
Neutral
citation:
Tadvest Industrial (Pty) Ltd and Another
v A Hanekom & Others
(400/2019
& 782/2019)
[2021] ZASCA 153
(27 October 2021)
Coram:
NAVSA
ADP
ORDER
The
review of taxation is dismissed with costs.
JUDGMENT
NAVSA
ADP
[1] Purportedly,
this is a review of taxation referred for decision in terms of Rules
of this Court. As will soon
become apparent it is less about taxation
than about extraneous matters.
[2] Two
bills of costs were presented to the taxing master for taxation by
the attorneys acting for first to third
respondents, based on a costs
order in their favor by this Court in relation to the dismissal of an
application for leave to appeal
and a subsequent dismissal of an
application for a reconsideration application in terms of
s 17(2)
(f)
of the
Superior Courts Act 10 of 2013
. At the commencement of the
taxation process the applicant objected to it on the basis that the
aforesaid respondents had, subsequent
to the costs orders, concluded
an agreement in terms of which they had waived their claims to costs.
The respondents objected to
the introduction of a written settlement
agreement. They also disputed the applicability of the agreement and
asserted that the
applicant had not complied with its obligations in
terms thereof.
[3] It
is for present purposes not necessary to have regard to all the
details of the extensive provisions of the
agreement on which the
applicant relied. I record only as much as is necessary to facilitate
an understanding of the parties’
respective positions. It
appears that the litigation leading up to the application for leave
to appeal involved the occupation
of land. The agreement, in terms of
which the respondents allegedly waived their rights, appears to have
provided for the applicant
to make a substantial financial
contribution to relocating the respondents to alternative
accommodation and to pay transfer costs
in respect of the land to
which they would be relocated. It also allowed for an
ex gratia
payment to the respondents. The agreement recorded that the
‘settlement agreement will be in full and final settlement of
all the disputes between the parties, and of all causes of action
between the parties including any cost orders or accrued costs
in
proceedings between the parties.’ It goes on to record that
notwithstanding that clause, the respondents ‘do not
waive
their right to claim costs of the matter in the Land Claims Court
under case number 189/20’.
[4] The
applicant alleged, before the taxing master, that it had complied
with all its obligations and that the
respondents were bound by the
waiver reflected in the settlement agreement. The applicant also
alluded to an agreement for the
respondents to set-off their costs
order against the amount the applicant would pay in relation to the
purchase of the alternative
accommodation but that this then gave way
to the agreement, in final form, to waive the costs order. Reference
was also made by
the applicant to correspondence between the parties
in relation to negotiations leading up to the settlement agreement.
[5] The
applicant, in addition, had raised a further objection, namely, that
the respondents’ legal representation
had been State funded and
that the purpose of a costs order is to indemnify a party against
litigation expenses, which in the present
case had not been incurred,
and that only the Department of Land Reform was out of pocket but
that costs had not been awarded to
it. The applicant submitted that
neither the respondents nor their legal representatives were out of
pocket. This was not an instance
where the legal representatives
rendered services for free entitling them to recover costs in terms
of the provisions of the Legal
Practice Act 28 of 2014, and that in
any event they had not complied with the statutory procedure. The
applicant also denied that
there had been a cession of rights to
claim costs. Finally, the applicant submitted that the respondents’
legal representatives
could not claim costs since costs were not
awarded to them. On the strength of all these grounds, the applicants
required the taxing
master to prepare a stated case.
[6] The
first and second respondents insisted, before the taxing master: that
they had not waived their rights
to claim costs; that the settlement
agreement was not retrospective; and that in any event, it was not a
matter for the taxing
master to decide. They were adamant that the
applicant should take legal measures available to it, beyond the
taxation process,
if it intended to dispute the validity or
enforceability of this Court’s costs order. Put differently,
the applicant was
free to take such legal measures, as advised, to
enforce the settlement agreement and the disputes in relation thereto
could then
be ventilated.
[7] The
taxing master considered that the issues raised by the applicant were
beyond his remit and proceeded to
finalise the taxation of the bill
against the applicant’s objections.
[8] In
its contentions in response to the taxing master’s stated case,
the applicant denied that it had failed
to comply with its obligation
in terms of the settlement agreement. The applicant submitted, once
again, that it was within the
taxing master’s ‘jurisdiction’
to determine whether the legal representatives who sought costs were
entitled
thereto. He was clothed with the power, so they submitted,
to consider the legitimacy of the costs order, viewed against the
settlement
agreement. The applicant sought an order that the review
be upheld and that the taxation be dismissed.
[9] The
second and third respondents in their response, raised a primary
point
in limine
. They contended that the taxing master has no
jurisdiction to entertain a review or appeal against an order of
costs by a court
and that his authority in relation to costs orders
are to be found within the four corners of the applicable rules of
court. The
function of a taxing master, so the respondents submitted,
was to give effect to a costs order not to question it. A taxing
master
addresses the reasonableness of charges and disbursements.
Rule 17(3) entitles a party aggrieved with the ruling of a taxing
master
to seek a review. A taxing master on the other hand has no
power to ignore or amend a costs order. In the present case, the
taxing
master fulfilled his purpose by taxing the bill.
[10] The
respondents raised further ‘
points in limine’
.
First, the same issue was pending in the Constitutional Court.
Second, evidence regarding an alleged waiver cannot be introduced
by
way of a notice of taxation and it cannot be adjudicated by the
taxing master. Last, the applicant failed to adopt an appropriate
remedy in relation to its assertions concerning the agreement on
which it relied.
[11] The
taxing master’s report noted that the applicants opposed
taxation on the basis referred to above
but did not dispute the
taxation in relation to any item. The taxing master pointed out that
the applicant’s insistence that
the costs order was in favour
of the successful party and not in favour of the attorneys
represented by them is without foundation,
as in the normal course of
events, it is the attorneys for successful parties who submit their
bills of costs to be taxed.
[12] The
taxing master adopted the position that it was not for him to decide
the rights of the parties in relation
to pre or post hearing
developments. He was adamant that his task was limited to giving
effect to this Court’s orders in
relation to costs. As to the
basis on which legal services were rendered to the respondents, that
would fall within the jurisdiction
of a court to consider, and the
same applied to questions concerning settlement agreements and their
enforceability. It was not
for him to decide whether there had been a
waiver of the costs order. The taxing master agreed with the
contention of the respondents
that it was open to the applicants to
have approached a court, assuming there to be sustainable grounds
therefor, to preclude the
taxation. That was not done.
[13] As
far as the taxing master was concerned there were existing court
orders which, in his taxation, he gave
effect to. He took the view
that the application should be dismissed with costs.
[14] It
is necessary to record that it appears from enquiries made of the
parties by this Court’s Registrar,
that the questions raised in
para 6 above, in relation to respondents’ attorneys’
entitlement to claim costs, is presently
an issue before the taxing
master in the Constitutional Court, but not the question of waiver.
[15]
I
turn to consider whether the taxing master was correct in proceeding
to finalise
the
taxation of the bill of costs. A taxing master does not have
jurisdiction in relation to
the issues
raised by the applicant. It is not for a taxing master to review,
reconsider or amend a costs order. Those are matter
beyond his remit.
He has no jurisdiction to decide disputed claims of payment or the
like.
[1]
[16] Rule
17(3) of this Court’s rules circumscribes the issue that may be
raised on review in the taxation
process. A party dissatisfied with a
ruling by the taxing master, in relation to an item in a bill of
costs that had been objected
to or disallowed
mero motu
by a
taxing master, is provided an opportunity to seek redress by way of
review. It does not provide an opportunity to contest the
costs order
itself or its enforceability.
[17] The
taxing master and the respondents are correct in their view that the
taxing master’s function is
limited to giving effect to the
court order. In
President of the Republic of South Africa and
Other v Gauteng Lions Rugby Union,
the Constitutional Court put
it thus:
‘
. . . [T]he
ultimate object of the exercise of taxation – and hence of a
review of taxation – is to
determine a
reasonable fee to be recovered as between party and party for the
work done…’
[2]
[18] In
Berman & Fialkov v Lumb
the court held:
‘
Whilst it may be
the duty of a Taxing Master to interpret the effect of an agreement
recording
an
undertaking to pay taxed costs…a decision regarding the
validity or otherwise of the agreement in which the obligation
to pay
the costs that are to be taxed is sourced, in my view,
falls
outside the ambit of a Taxing Master’s powers and functions: it
is an aspect that should be decided by the court.’
[3]
And
further:
‘
If the Taxing
Master in arriving at the conclusion to apply the non-litigious scale
of the law society did in fact make a decision
on the legality of the
agreement . . . he or she clearly acted
beyond his
competence.’
[4]
[19]
The
respondents also correctly point out that the applicant was free to
resort to
legal
process in relation to the alleged waiver and thus in relation to the
enforceability
of the
costs order. Whether that be by approaching this Court on the
strength of
Estate
Garlick v Commissioner for Inland Revenue
,
[5]
as suggested by the respondent, or by way of other process. It is not
for the taxing master of this Court to advise. The same applies
in
relation to the questions raised by the applicants set out in
paragraph 6 above. The aforesaid conclusions are dispositive and
there is no need for exploration
of the
other point raised by the respondents. The taxing master was correct
tto proceed
with
taxation.
[20] The
review of taxation is dismissed with costs.
M
S NAVSA
Acting
Deputy President
APPEARANCES:
For
the applicant: McIntyre
& Van der Post Attorneys, Bloemfontein
Instructed
by: Cluver
Markotter Inc, Stellenbosch
For
1st, 2nd and 3rd respondents: Webbers, Bloemfontein
Instructed
by: JD
van der Merwe Attorneys, Stellenbosch.
[1]
Lubbe v
Borman
1938
CPD 211.
[2]
President
of the Republic of South Africa and Other v Gauteng Lions Rugby
Union
and
Another
[2001]
ZACC 5
;
2002 (1) BCLR 1
(CC);
2002 (2) SA 64
(CC) para 32. In the present
case the applications to which the orders relate were decided
without oral argument.
[3]
Berman
& Fialkov v Lumb
[2002]
ZAWCHC 48
;
[2002] 4 All SA 432
(C) para 23.
[4]
Ibid para 24.
[5]
Estate
Garlick v Commissioner for Inland Revenue
1934
AD 499
, where it was held that when a court
has made
an order of costs, without having heard argument on it, the court is
not
functus
officio
.