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[2015] ZAFSHC 21
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Maluti Plant Hire CC v Manguang Metropolitan Municipality (2060/2014) [2015] ZAFSHC 21 (5 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case Nr. : 2060/2014
In the matter
between
MALUTI
PLANT HIRE CC
….............................................................................................
Plaintiff
And
MANGAUNG
METROPOLITAN
MUNICIPALITY
...................................................
Defendant
CORAM:
MOLOI,
J
DELIVERED
ON:
05
FEBRUARY 2015
REVIEW
JUDGMENT
K.J
MOLOI. J.
[1] This is a review
of taxation of a taxed bill of costs in terms of Rule 48 of the
Uniform Rules of the High Courts. The bill
was taxed by the Taxing
Master on 15 September 2014 pursuant to an order of court awarding
the costs to the respondent on a party
and party scale. The Taxing
Master had refused to allow an amount of R16500-00 claimed by the
respondents’ attorney for attendance
at court when the matter
was heard (day fee) but allowed a fee of R9400-00 instead.
[2] The issues that
are common course are that Mr Phalatsi, an attorney for the
respondent, is a vastly experienced attorney and
had the right to
appear in the High Court by virtue of a certificate issued by the
registrar in terms of the provisions of section
4(1) of the Right of
Appearance in Courts Act No. 62 of 1995, and appeared personally in
court without engaging the services of
an advocate. The hearing
lasted for two hours.
[3]
At the taxation the applicant’s attorney, Mr Noordman of
Matsepes Incorporated, argued that Mr Phalatsi was entitled to
claim
R235.00 per quarter of an hour as provided for in Rule 70 of the
Uniform Rules of Courts, which would amount to R1880.00.
The Taxing
Master seemed to agree with this stand point and refers to the
decision in the
Road
Accident
Fund
v Le Roux
2002(1)
SA 751 where it was held that an attorney appearing in the High Court
was entitled to charge fees on the same basis as an
advocate provided
it was for work actually done. The Taxing Master, nonetheless,
allowed an amount of R9400 taking into account
that the appearance in
court must have been preceeded by considerable preparation which was
not claimed in the bill of costs.
[4]
On proper reading of Rule 70 it becomes clear that the costs scale
prescribed therein refer to an attorney who was retained
counsel for
a matter in the High Court and does, therefore, not conduct the trial
himself. Where an attorney appears in the High
Court and has the
right of such appearance, his/her fees must be the same of those of
an advocate as provided for in Rule 69. See
Promine
Aqentskap en Konsultante BK v Du PLessis en ‘n Ander
[1998]
JOL3912T and
Stubbs
v Johnson Brothers Properties CC and Others
2004(1)
SA ZZ(N) where at 27D-E the following was stated with reference to
Promine
Aqentskappe
case
“
The
learned Judge accordingly concluded that the proper approach to the
taxation of the fees of an attorney with right of appearance
is to
assess those fees by reference to what would have been allowed to an
advocate under similar circumstances. I am in respectful
agreement
with the conclusion of the learned Judge. ”
See
also
Taxation
of Legal Costs in South Africa
by
Rochelle Francis Subbiah_1
st
ed.(2013).p.66 In
Ndzamela
v Eastern
Cape
Development Corporation Ltd and Another
2004(6)
SA378 (TkH) it was said
“
The
court went as far as to say an attorney (with the right of
appearance) may charge separately for work done as an attorney and
work done as advocate”
provided
there is no duplication.
[5] The distinction
between what fees an advocate may charge for work done in the High
Court and those of an attorney acting personally
without engaging an
advocate is an absurdity. If an advocate is entitled to the day fee
for two hours spent in court so will the
attorney acting as an
advocate also be entitled. The discrimination will not be
justifiable. Often it is argued that an attorney
who appears in court
for two hours can go to his/her practice and generate more fees on
other matters. But so can an advocate.
An advocate cannot be said to
be working on one case only until it is finalised. He/She can also go
back to chambers and deal with
the other matters or even do research.
[6] The following
order is made:
(a) The assessment
of R9400-00 for appearance in court is reviewed and set aside.
(b) The applicant is
allowed an amount of R16500-00 for appearance in Court.
K.J MOLOI
On behalf of the
applicant: Mr O.A Noordman
MATSEPES
INC
BLOEMFONTEIN
On behalf of the
second respondent: Mr N.W Phalatsi
N.W. PHALATSI
& PARTNERS
BLOEMFONTEIN