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[2015] ZANCHC 24
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Electronic Patient Records (Pty) Ltd v Minister of Health, Northern Cape (1115/2010) [2015] ZANCHC 24 (28 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
1115/2010
Datum
beskikbaar/Date available:
28/08/2015
In
the matter between:
ELECTRONIC
PATIENT RECORDS (PTY) LTD
Plaintiff/Applicant
and
THE
MINISTER OF HEALTH, NORTHERN CAPE
Defendant/Respondent
Coram:
Erasmus, AJ
JUDGMENT
: TAXATION ON REVIEW
ERASMUS,
AJ
[1]
This matter came before me as a review of a taxation of a bill of
costs by the taxing master, under rule 48 of the Uniform Court
Rules.
[2]
The applicant herein wasthe plaintiff in the action and the
respondent was the defendant. I shall refer to the parties
as
in the main action. The action between the plaintiff and the
defendant was settled on 6 May 2013. The defendant
was ordered
to pay the plaintiff the amount of R3,250,000.00 and ordered to pay
the taxed party and party costs of the plaintiff
up and until and
including 3 May 2013.
[3]
As the application for review had not been lodged within the
prescribed time period provided for in Rule 48(1), the plaintiff
also
applied for condonation. Adequate reasons for the
non-compliance were provided and the plaintiff’s non-compliance
is condoned. There were numerous further delays, mostly due to
administrative oversight and these were explained. I do not
deem it
necessary to deal with this aspect any further.
[4]
The plaintiff required the taxing master of this court to state a
case for the decision by a Judge in terms of the following
items
allocated on 14 April 2014:
“
1.
By disallowing the wasted travelling, accommodation and related fees
of the instructing attorney, counsel and witnesses
that were
necessarily incurred to secure their attendance at the trial in
Kimberley on 5 May 2013, and as a consequence, taxing
of the entire
fee and disbursement at item 274.
2.
By allowing only 11.5 hours out of the 54.25 hours billed by Adv van
Riet SC that pertain to his attendances
relating to the particulars
of claim, trial particulars, settling of further pleadings, advice on
evidence, trial preparation,
consultations and advice on settlement
and furthermore reducing senior counsel’s hourly rate after 19
September 2012 from
R2 600-00 p/h to R2 400-00 and, as a
consequence, taxing of R155 142-00 of the disbursement at item
291.
”
[5]
The issue now to be determined is whether the taxing master, in the
exercise of his discretion, erred in disallowing these fees
and
disbursements.
[6]
In respect of the objection to item 274, as set out in paragraph 3
supra
,
the taxing master stated:
6.1
The witnesses and attorney did not attend the hearing as
all bookings were subsequently cancelled. No cancellation
fee
was asked or produced at taxation. The taxing master further stated
that the applicant made use of a local set of attorneys
and that it
was therefore not necessary for travelling fees for the attorney.
The witnesses were furthermore not declared
necessary witnesses.
6.2
In respect of counsel’s fees, he has no
discretion to allow disbursements such as travelling expenses
incurred in the engaging of services of counsel who does not practise
locally or where a local counsel is not available. Counsel
for the
plaintiff in this instance never appeared in this court.
[7]
In respect of the objection to item 291, as set out in paragraph 3
supra
,
the taxing master stated that it was the applicant’s decision
to employ an eminent senior counsel. The cost order
was made by
agreement between the parties and no mention was made of the status
of the counsel. The losing party could not
be burdened with
these fees. The hourly fee of R2,400.00 which had been allowed
on taxation, was a large fee. Counsel’s
fees in respect
of consultations and drafting were allowed. The preparation fee
was disallowed as the high fee of counsel
of R2,400.00 per hour, is
an all-inclusive fee.
[8]
The
taxing master derives his authority to tax bills of costs from rule
70(1)(a). The duties of the taxing master are
to ensure
that the party who was condemned to pay the costs does not pay
excessive costs and that the successful party does not
receive
insufficient costs for the litigation in respect of which the cost
order was granted.
[1]
The taxing
master should allow all such fees and disbursements which appear to
have been necessary or proper and should demand
satisfactory proof
that the services for which payment is demanded have actually been
rendered.
[2]
[9]
In terms of rule 69(5) t
he
taxation of advocates' fees as between party and party shall be
effected by the taxing master in accordance with this rule and,
where
applicable, the tariff. Where the tariff does not apply, the
taxing master shall allow such fees (not necessarily in
excess
thereof) as he considers reasonable.
[3]
The taxing master is entitled, in his discretion, to depart
from any of the provisions of the tariff in extraordinary or
exceptional circumstances, where strict adherence to those provisions
would be inequitable.
[10]
It is trite law that a Court should be
very
reluctant to interfere with the exercise of the taxing master's
discretion except on certain well-known but limited grounds.
[4]
[11]
In respect of the first ground of review, i.e. the disallowance of
the wasted travelling, accommodation and related costs
of the
instructing attorney, counsel and witnesses that were necessarily
incurred to secure their attendance at the trial in Kimberley
on 5
May 2013:
11.1
It is common cause that the Cape Town attorney,
counsel and witnesses did not attend court in Kimberley.
The
taxing master stated that no cancellation fee was asked and no proof
of such disbursement was provided on taxation. In
response to
the taxing master’s stated case, computer generated invoices in
respect of air travel tickets for the Cape Town
attorney, counsel and
witnesses were attached. No proof of payment and/or
cancellation fees was submitted. I find no
grounds that the
taxing master had erred and/or exercised his discretion in an
unreasonable manner.
11.2
In respect of the disbursements of counsel, the taxing
master stated that he had no discretion to allow
disbursements such
as travelling expenses for counsel who does not practise locally.
The expenses claimed by the plaintiff
in respect of the travel
costs of counsel appear to me to be special or unusual expenses, as
envisaged in Rule 70(3), which cannot
be allowed.
[5]
I therefor find that the taxing master was correct in disallowing
this expense.
[12]
In respect of the second ground for review, i.e. the fees of counsel,
I shall deal with the issues separately.
12.1
The taxing master allowed an hourly fee of R2,400.00 per
hour, instead of the R2,600.00 per hour claimed.
The taxing
master stated that he had already allowed a very high fee. I
cannot find that the taxing master erred in the exercise
of his
discretion and/or that he exercised his discretion in an unreasonable
manner.
12.2
In respect of the disallowance of certain fees charged,
mostly in respect of preparation, it was alleged
on behalf of the
plaintiff that the taxing master exercised his discretion in an
unreasonable manner by only allowing 11.5 of the
54.24 hours claimed
to have been spent by counsel. It appears that the taxing
master, in general, disallowed preparation
fees and fees for reading
of the papers. As was stated by Magid J in
Stubbs
v Johnson Brothers Properties CC
:
[6]
“
Now,
an advocate does not charge separately for his preparation. That, it
is understood, is done before the trial starts. There
is,
accordingly, what might be termed a loading on the first day's fee
(termed the fee on brief) with reduced fees being charged
(and
allowed on taxation) as refreshers on the second and further days of
the trial. This system was described
by
I
Jansen
JA
as 'fitting in trials' (Scott and Another v Poupard and Another
1972
(1) SA 686
(A)
at 691G).
[13]
I find
no
basis to interfere with the taxing master’s exercise of his
discretion and/or his method of computation of a reasonable
fee for
counsel.
WHEREFORE
I MAKE THE FOLLOWING ORDER:
1.
THE
APPLICATION IS DISMISSED;
2.
EACH
PARTY IS TO PAY ITS OWN COSTS IN RESPECT OF THIS APPLICATION.
_________________
SL ERASMUS
ACTING JUDGE
[1]
Rule 70(3);
Köhne
v Union & National Insurance Co Ltd
1968
(2) SA 499 (N)
at 504B–C
[2]
Maasdorp
& Smit v Sullivan
1964
(4) SA 2 (E)
at 2–3B
[3]
Stubbs
v Johnson Brothers Properties CC
2004
(1) SA 22 (N)
at 27
[4]
Niceffek
(Edms) Bpk v Eastvaal Motors (Edms) Bpk
1993
(2) SA 144
(O)
at 147D–G;
Le
Chasseur Boere (Edms) Bpk v Maine Chance Farms (Pty) Ltd
1978
(3) SA 358 (C)
at 359G and
Preller
v Jordaan
1957
(3) SA 201
(O) at 203C-E
[5]
Windhoek Crushers (Pty)
Ltd v Voigts en ‘n ander
1969(1)
SA 574 (SWA) at 576E-F
[6]
2004
(1) SA 22 (N)
at 27 and 28I-J