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[2015] ZAFSHC 255
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Pieterse N.O and Another v Botha and Others (4591/2014) [2015] ZAFSHC 255 (17 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
number: 4591/2014
DATE:
17 SEPTEMBER 2015
In
the matter of:
MICHAEL DANIEL
PIETERSE
N.O
...............................................................................
1
st
Applicant
ZOLA PIETERSE
N.O
.......................................................................................................
2
nd
Applicant
And
PIERRE
BOTHA
..............................................................................................................
1
st
Respondent
DELENE
BOTHA
...........................................................................................................
2
nd
Respondent
MANGAUNG
METROPOLITAN
MUNICIPALITY
..................................................
3
rd
Respondent
HEARD
ON:
25 JUNE 2015
DELIVERED ON:
17 SEPTEMBER 2015
REVIEW
OF TAXATION
MOCUMIE, J
[1]
Lovius
Block drafted a bill of costs in terms of an order of court that the
applicant pays the respondents’ costs on a party
and party
scale. On 23 February 2015 the bill was set down to be taxed by the
Taxing Master of the Free State High court. The applicant
was
represented by Mrs Van Wyk of Lovius Block Attorneys and the
respondent was represented by Mrs Van Blerck of Symington and
de Kok
Attorneys. The allocatur was signed on the same day. In terms of the
allocatur, the Taxing Master, disallowed part of counsel’s
fees
under item 8 and 11. Lovius Block was aggrieved and noted its
objection in terms of Rule 48 (1) of the Uniform Rules (the
Rules) to
review the decision. The matter was referred in terms of Rule 48 (6)
(a)(iv) to open court for argument.
[1]
[2]
Item 11 states ‘Betaal: Advokaat:
14 364, 00’.Whereas item 8 states ‘Kennisgewing van Mosie
en Funderende Beedigde
Verklaring met aanhangseis en artikel 4(2)
Kennisgewing (44bi): 2 068, 00.’
Directly
translated item 8 is for perusal of affidavits and iteml is for
counsel’s fees costs.
[3]
It is common cause that the taxing
master exercised her discretion to fix the rate as she did. The
enquiry is therefore whether
to interfere with the exercise of that
discretion.
[4]
The issue for determination is whether
the taxing master erred in disallowing fees for drafting of an
affidavit by counsel. Flowing
from that whether the taxing master
exercised her discretion properly, and in that enquiry, what
principles or norms permissibly
inform a taxing master in so doing.
[5]
Ordinarily
the court will not interfere with the exercise of a taxing master’s
discretion unless it appears that (s)he has
not exercised his or her
discretion judicially and has exercised it improperly, for example,
by disregarding factors which (s)he
should properly have considered,
or considering matters which it was improper for him or her to have
considered; or (s)he had failed
to bring his or her mind to bear on
the question in issue; or [s]he has acted on a wrong principle. The
court will also interfere
where it is of the opinion that the taxing
master was clearly wrong but will only do so if it is in the same
position as, or a
better position than, the taxing master to
determine the point in issue. The court must be of the view that the
taxing master was
clearly wrong, i.e. its conviction on a review that
[s]he was wrong must be considerably more pronounced than would have
sufficed
had there been an ordinary right of appeal.
[2]
[6]
The
court in Aloes Executive Cars (Pty) Ltd and Another
[3]
expressed the cardinal rule of costs with reference to counsel’s
fees as follows:
It
is not the function of counsel to draft affidavits. That work is
normally done by attorneys. Hence the rule that only in very
difficult and very complicated matters will it be reasonable to
clothe counsel with the mantle of draftsman of affidavits, it may
well be that some attorneys have through lack of skill or confidence
and more frequently because they have other pressing business,
relegated themselves to the status of carrier of briefs and that some
counsel have for pecuniary reasons cast themselves in the
role of
draftsman, laboriously sifting evidence in consultation upon
consultation and painstakingly compiling voluminous affidavits.
This
is, however, not the general practice of the professions and if some
of their members act in that way they do so at their
peril as far as
costs are concerned. It is a luxury in which they cannot indulge at
the expense of the unsuccessful litigant.
1
[7]
The
test is stated in rule 70(3)
[4]
:
having regard to the issues of fact or law involved in the case, was
it reasonable and not over cautious for the attorney to brief
counsel
to settle affidavits filed on behalf of his clients?
[5]
[8]
Rule
70(3) prescribes that the object of the defeated adversary paying the
successful litigant’s costs is to provide a ‘full
indemnity’ to the successful litigant. The tariff is deemed to
do so even if common sense reveals the contrary (Bowman NO
v
Avraamides & ano 1991 (1) SA 92 (W))
[6]
[9]
The
import of s70 is succinctly set out as follows in Coetzee, Jacobs
Albertus and The Taxing Master
[7]
:
1.
The tariff in Rule 70 is designed for
and intended for the taxation of party and party costs
.
2.
The tariff in Rule 70 is not binding on
any taxation of costs other than party and party costs.
3.
The tariff in Rule 70 must be used as a
guide in the taxation of:
25.3.1
Penal costs ordered by a court to be paid by the defeated adversary,
called ‘costs on the attorney and client scale
.
5
[10]Rule
69 provides that ‘[S]ave where the court authorises fees
consequent upon the employment of more than one advocate
to be
included in a party and party bill of costs, only fees as are
consequent upon the employment of one advocate shall be allowed
as
between party and party. ‘Under Rule 69(5) the taxing master
has jurisdiction to determine not only the quantum of counsel’s
fees but also whether in the particular circumstances of the case
counsel’s fees should be allowed at all.
[8]
[11]In
the City of Cape Town \/ Arun Property Development (Pty) Ltd and
Another
3
the court held that it would expect the taxing master, in considering
the question of counsel’s fees, to adopt an approach
along the
following lines:
‘
(a)
Consider the nature and complexity of the matter.
[9]
What did the matter involve? How voluminous were the papers? Were
there difficult areas of law involved or was the claim of particular
importance to the parties by virtue, for example, of the amount of
money involved? Did it involve an unusual amount of time spent
in
court?
(b)
Consider the work done by counsel: How
difficult or complex were the matters dealt with in the heads of
argument? How long did counsel
spend drafting heads of argument? How
long did counsel spend on his ore oral adress to court?
(c)
Consider counsel’s fees: Do they
fall within the parameters familiar to the taxing master? Is it clear
what is being charged
for? Are ali the charges covered by the costs
award made?
(d)
Consider what is reasonable: In this
regard the consideration that the litigant must not be out of pocket
in respect of party and
party fees charged by counsel must be taken
into account, together with the recognition that a reasonable rate
coupled with reasonable
time spent may not always, but certainly can,
amount to a reasonable basis for the taxation of counsels fees. If
the taxing master
is of the
opinion
that
the time taken by counsel to perform a given task is reasonable on
party and party basis and the rate at which he or she charged
is
reasonable, then the litigant should be entitled to an indemnity in
respect of such charges.
(e)
Consider the totality of the fee for the
matter :lf the fee charged for the work done prior to the hearing is
reasonable and the
work done qualifies as party and party attendance,
the fee for such attendances should be added to the fee for the ‘
refresher
fee’ charged. By way of example, if in in this matter
the taxing master determines that it was reasonable to spend 5 hours
drafting or settling heads of argument, 5 hours reading and
considering the respondent's heads of argument and authorities and
5
hours preparing for the oral argument, she would allow a fee on
exception of the equivalent of 2 days and 15 hours. If she felt
that
an excessive amount of time was spent on items of preparation, she
should disallow a fee for such excessive time.’
[12]As
a general rule charges for consultation with counsel on an
application are not allowed as between party and party unless
the
application involves complicated factual difficult legal issues.
[10]
This does not, however, mean that such charges can be allowed only
where the application is complicated and involves difficult
or legal
issues: the question is always whether the costs were reasonably
incurred and whether they were necessary or proper for
the attainment
of justice or for defeating the rights of the party whose costs are
being taxed.
[11]
In respect of heads of argument and preparation, the modern trend is
for counsel to charge a fee based on time actually expended,
irrespective of whether briefed on appeal, application or trial
[12]
.
That is why when considering a fee for counsel for drafting and
consulting; a distinction should not be drawn between application
proceedings and other proceedings.
[13]
In Baars v Near East Rand Darts Association
[14]
the court held that there was nothing in rule 70 (3) drawing such
distinction, thereby limiting consultation with counsel in
applications
to exceptional circumstances and matters.
[15]
[13]In
her stated case the taxing master averred that she allowed counsel’s
fees on party and party scale in terms of Rule
70 in terms of which
she can only allow an amount of R235 for every ten pages as per the
ordinary attorney’s scale. Not the
advocate scale. She further
allowed a fee for perusal of the affidavit; but not the drafting
thereof. She, as a result, did not
allow the full advocate fees. She
submitted that, primarily she did not view the matter to be complex
as it was a standard eviction
application comprising mostly of
annexures which would have been provided to counsel by the
instructing attorney who was familiar
with the matter. The attorney
who dealt with the matter was a senior in his profession. She also
took into consideration the fact
that the matter was subsequently
settled. These factors militated against payment of full counsel
fees. She contended that in the
exercise of her discretion, she
assessed and considered all the relevant circumstances before her.
[14]In
reply to the taxing master’s stated case, Lovius Block argued
that the application was complex. The applicants, as
Trustees in a
Trust, were their clients but now lived in the United States of
America. Although the applicants had indeed signed
a Power of
Attorney to Lovius Block, as was common cause between the parties,
that was to collect money and invest as the cessionary.
There was
however a dispute as to whether Lovius Block could institute the
eviction application on their behalf. Consequently and
despite having
studied and dealt at length with the application and the relevant
papers, Lovius Block had to bring in counsel to
give his opinion on
the matter.
When
the Taxing Master considered the taxation of the bill of costs, she
was not aware of the full facts. If she had, she would
have
considered the application to be complex which entitled counsel to
his full fees.
[15]The
respondent agreed with the taxing master and in addition submitted
that the eviction application was not complicated. It
was against
only three respondents. The defence raised by the respondents was a
standard contractual defence, ie lawful occupation.
In applications
of this nature the guideline on party and party costs is generally
based on how many pages an affidavit comprise
of; time spent by
counsel on drawing up the opinion; whether the matter was unopposed
and also as in this instance, whether the
matter became settled
before the issue raised was answered.
Determination
[17]The
test to determine whether the taxing master exercised her discretion
is an objective one. i.e. to consider what exactly
counsel did and
isolate that. Then the court, exercising its judicial discretion must
look at the documents that the taxing master
considered to determine
if this is the run of the mil! type of case? In other words, look at
the papers (in this instance, the
application for eviction and
annexures appended) and decide whether the application was indeed
simple, difficult or complex.
[18]I
have gone through the application for eviction in issue in this case
and came across the following which is relevant in this
case. One of
the parties in this case is Ms Pieterse, well known as Zola Budd, the
bare footed runner of the Free State in the
early 80’s. It is
common knowledge that the application drew a lot of public interest
as it was in the media. The family’s
home was at stake and
could be lost to them forever. The application was thus of serious
importance to the Pieterse family. Just
from this background
information, the application was not a simple run of the mill
eviction case.
[19]From
the above objective facts, although the attorneys were granted Power
of Attorney to collect money and invest as cessionary
on behalf of
the Pieterse
Family
Trust, there was a dispute as to whether they could institute the
eviction application on their behalf as they were outside
South
Africa at the particular time. Behind the scenes protracted
negotiations had failed; the only option open was to lodge an
eviction application which was clearly difficult and complex although
on the face of it, it seemed not to be the case.
[20]The
taxing master’s main contention why she disallowed part of
counsel’s fees is because, primarily, she did not
view the
matter to be complex as it was a standard eviction application
comprising mostly of annexures which would have been provided
to
counsel by the instructing attorney who was familiar with the matter.
She also took into consideration two factors: the attorney
who dealt
with the matter closely was a senior attorney in his profession; and
the matter was subsequently settled before it could
be heard or
counsel could argue.
[21]On
these reasons alone ,it is clear that she made an assumption not
based on the facts of the case but her own subjective sense
of what
usually happened in cases of this nature; her own personal view on
what is complex and not. Nowhere in her stated case
did she refer to
any circumstances peculiar to this case that she took into account.
Nowhere has she stated what she took into
consideration, i.e apart
from the three referred to already, and to what extent she took such
into consideration and why she dismissed
same as not permitting her
to allow additional costs. There are guidelines which are set by each
Bar Council for the determination
of the fees for its members
according to their seniority. These guidelines which are readily
available from the Free State Bar
Council must serve as a basis as
well.
[22]It
is important that taxing masters must always remember that factors
enumerated in City of Cape Town are not a numerus classus,
yet they
form the basis from which to proceed. There may be other factors that
the taxing master may consider such as, very relevant
in this case,
the importance of the matter to the parties. But it must be apparent
and on record what the taxing master took into
consideration and what
she did not. Importantly, that she weighed up ail the factors
properly. In that way exercised her discretion
judicially, as set out
in Rule 69 read with 70 of the Rules of Practice.
[23]Having
said that, had the taxing master gone deeper into the matter, even
called the parties before her where she was not sure
as the Rules
allow to do, she would certainly have come to the conclusion that the
attorney was not over cautious. That the intervention
of counsel of
such senior status as Advocate Reinders, at an early stage was
necessary to ensure that the matter was dealt with
in the best
interests of the family concerned.; particularly as they were not in
the country to do so themselves. The fact that
the instructing
attorney is experienced in the profession does not detract from the
fact that he .correctly so , deemed the matter
complicated enough and
in the best interests of his clients to seek the opinion of counsel
and even brief counsel to draft the
papers; contrary to normal
practice. 1 must hasten to say, although ‘It is not the
function of counsel to draft affidavits;
that work is normally done
by attorneys; there is no authority that an attorney cannot brief
counsel to draft papers in appropriate
circumstances. In this case
the seniority or experience of the attorney dealing with the matter
within the profession, as in this
case, should have rather indicated
that the matter was in actual fact complex or at least not an
ordinary application. Not the
opposite as the taxing master found. As
a matter of practice senior counsel is generally briefed to research
the matter in dispute
for his or her opinion and to prepare the
papers so as to argue effectively on behalf of the client.
[24]Having
said that, there are no allegations of any untoward conduct by either
attorney or counsel that the taxing master could
impute to both legal
representatives that could create the impression that counsel did not
do the actual work as he recorded. Neither
is there any indication
that counsel did not carry out his brief to the teeth and was thus
not entitled to his full fees. In the
absence of any suggestion to
that effect, there is no justification why counsel should not get his
full fees for work done including
drafting of the affidavits. Not on
attorney scale but on counsel scale and in line with the guidelines
of the Bar Council of this
Division. I find that the taxing master
has not adduced facts upon which I could find that she properly
exercised her discretion
in this matter. I must add not due to any
deliberate act on her part but due to lack of authoritative
guidelines on this matter.
This case qualifies as one which the court
can interfere with.
[25]What
is the proper order to make as to costs? In this case, the applicant
has succeeded on the only issue on review; however
I am satisfied
that due to lack of authoritative decisions on it, it is not just and
equitable for the respondents to bear the
costs. There will,
therefore, be no order as to costs.
[26]In
the result, the following order is granted.
ORDER
1.
The review of taxation succeeds.
2.
The taxation by the taxing master as
reflected in her allocatur regarding items 8 and
11
is set aside.
3.
The taxing master is directed to
reinstate counsel’s full fees for work done as set out in items
8 and 11 presented by Lovius
Block Attorneys.
4.
There is no order as to costs.
B.C. MOCUMIE, J
On
behalf of the applicant: Mrs SS Van Wyck
Instructed
by:
Lovius
Block BLOEMFONTEIN
On
behalf of the respondents: Mrs L Van Blerk
Instructed
by:
Symington
& De Kok BLOEMFONTEIN
[1]
Rule 48 of the Rules provides: 'Any party dissatisfied with the
ruling of the Taxing Master as to any item which
was objected to or
disallowed mero motu by the Taxing Master, may within 15 days after
the allocatur by the notice required by
the Taxing Master to state a
case for the decision of a Judge
1
[2]
Visser v Gubb
1981
(3) SA 753
(C) 754H-755C.See also
Legal
and General Assurance Society Ltd v Lieberum, NO, and Another
1968
(1) SA 473(A)
at 478G-H;
Maseka
v Law Society of the Northern Provinces
(443/06)
[2010] ZANWHC 13
(1 January 2010).
[3]
Aloes
Executive Cars (Pty) Ltd and Another
1990(1)
SA 587 (T) at 589J-590A.
[4]
Erasmus et al: Superior Court Practice, B1-421.
[5]
Solsons
Properties (Pty) Ltd v Yorkshire Clothing Industries (Pty) Ltd
1972(2)
SA 203 (D) at 294F- 205B.
[6]
Coetzee v Taxing Master, South Gauteng High Court and Another
(2010)/14197)[2012] ZAGPJHC 175;2013(1) SA 74 (GSJ)(19
September
2012 )
[7]
Footnote 3 above.
[8]
Rosenburg
v Prima Toy Holders (Pty)Ltd
1972
3 SA 791
C at 794B.
[9]
Kriek v Bayer Suid- Afrika (edms) bpk Kriek v Van Staden 1996 (1)
All SA 543 (T)
[10]
A/oes
above.
[11]
Erasmus Superior Court Practice Bl-421.
[12]
See Price Waterhouse Meyernel v Thoroughbred Breeders’
Association of South Africa
2003 (3) SA 54
(SCA) where the Supreme Court of Appeal referred with
approval to the modern trend accepted in City of Cape Town at
234F-I.
[13]
R Francis,
219 para 20.7
[14]
Baars v Near East Rand Darts Association and Others
1993
(3) SA 171 (W).
[15]
Footnote 8 above.