About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 1032
|
|
Van Niekerk v President of the South African Deep Sea Angling Association (32001A/2013) [2014] ZAGPPHC 1032 (6 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 32001
A/2013
In the matter
between:
CORNELIUS
VAN
NIEKERK
................................................................................
Applicant
vs
PRESIDENT
OF THE SOUTH AFRICAN DEEP
SEA
.....................................
Respondent
ANGLING
ASSOCIATION (SADSAA)
JUDGMENT
BASSON, J:
[1] This is an
application in terms of Rule 48(1) of the Uniform Rules of the High
Court bringing under review the Taxing Master’s
decision to tax
the costs of the (main) application and not only the wasted costs of
the day.
[2] The applicant
(Mr Cornelius van Niekerk) brought an urgent application before this
Court on 19 June 2013 for an order that the
notification of the
Annual General Meeting of the South African Deep Sea Angling
Association (the Respondent), scheduled for 21
June 2013 be declared
null and void and of no legal consequence; that the Respondent
instruct its secretary to duly and correctly
implement the terms of
its Constitution dealing with nominations that are to be voted upon
at the AGM which was scheduled for 21
June 2013; and for an order
that the resolution of the Respondent’s Action Committee taken
on the 5
th
of May 2013 to suspend the Applicant with
immediate effect pending the finalization for a disciplinary enquiry
to be held on 31
June 2013, be declared null and void and of no legal
consequence.
[3] The Respondent
duly gave notice of opposition and prepared its opposing affidavit.
According to submissions filed on behalf
of the Respondent, it had to
fly two of the Respondent’s office bearers from Durban and East
London respectively on an urgent
basis in order to consult with the
Respondent’s attorney and senior counsel.
[4] On the date of
the hearing the matter was struck from the roll for lack of urgency
with costs.
[5] The Respondent’s
Bill of Costs was duly taxed by the Taxing Master on 23 October 2013.
The Applicant was represented by
a costs consultant and the
Respondent by a certain Ms Jones. The Taxing Master taxed the entire
Bill in the amount of R 130 991.57.
[6] The Applicant is
now seeking a review of the taxation on the basis that the costs
order was only for the wasted costs of the
day - which were tendered
-including a Counsel’s day fee subject to determination of the
Taxing Master.
[7]
The Taxing Master, however, ruled that, whereas the matter has not
been set down again and a period of 5 months have passed,
the costs
order should, in his opinion, cover the full costs of the
application. In essence the Applicant is objection to the taxation
of
the costs in respect of the main application because these costs are
not, according to the Applicant, covered by the cost order
granted by
the Court as the merits were never argued, heard or determined by the
Presiding Judge. The Respondent, however, contends
that the Taxing
Master was correct to tax the bill of the entire application
particularly in light of the fact that, when the Court
struck the
matter from the roll (due to the Applicant causing his own urgency)
and awarded the Respondent the wasted costs, the
remainder of the
Applicant’s application became academic
inter
alia
because
of the fact that the Respondent’s Action committee held the
disciplinary enquiry for the Applicant on 21 June 2013
which the
Applicant failed to attend. Consequently, so it is contended, the
prayers which the Applicant sought in his Notice of
Motion have
become moot as the application has been overtaken by events.
Furthermore, according to the Respondent, the merits were
in fact
argued in view of the fact that the Presiding Judge was not able to
view urgency in isolation and accordingly had to consider
the merits
of the application. The Respondent lastly submitted that the
Applicant had in any event thereafter failed to enrol the
full merits
of his application. The Respondent is accordingly in agreement with
the Taxing Master’s view that the application
in terms of Rule
48 of the Uniform rules should be dismissed and submitted that it
should be dismissed with a further costs order
on the scale of
attorney and client.
[8] In the Taxing
Master’s report it is submitted that it was entitled to rule
that the cost order would cover the full costs
of the application in
light of the fact that the prayers sought by the Applicant in its
Notice of Motion can no longer be ordered
by this Court. In this
regard the Taxing Master refers to the fact that the meeting which
the Applicant sought to interdict, took
place on 21 June 2013 which
the Applicant failed to attend.
[9] The Applicant
disputes that the prayers (more in particular prayers 2, 3 and 4) are
moot and submits that these prayers can
still be ordered. The
Applicant also recorded in his submissions that, although the Annual
General Meeting did proceed on 21 June
2013 which resulted in the
Applicant’s membership being cancelled, he had appealed the
decision. A special general meeting
was called by the Respondent and
did in fact take place and the Applicant was present. The dispute was
thereafter settled and the
Applicant was reinstated in full as an
affiliated member with immediate effect. The Applicant also submitted
that because the matter
was struck from the roll and because the
merits have not been dealt with, the application is still alive and
can be set down for
argument. Finally the Applicant submits that the
Taxing Master does not have the discretion to amplify the Court order
that was
handed down.
[10]
I am in agreement with the principle that a Court sitting on review
of a ruling by the Taxing Master will generally be reluctant
to
interfere with the exercise of the Taxing Master’s discretion.
This principle is succinctly set out as follows in the
case of
Lander
v O’Meara and Another:
1
“
Rule 48 of
the Uniform Rules of Court governs the procedure. The principles
relating to these reviews are clear and definitive.
A court is very
reluctant to interfere with the exercise of a taxing master's
discretion. The approach is that the court must be
satisfied that the
taxing master
was
clearly
wrong before it will interfere with a ruling made by him. The court
will not interfere with a ruling made by the taxing
master in every
case where its view of the matter in dispute differs from that of the
taxing master, but only when it is satisfied
that the taxing master's
view of the matter differs so materially from its own that it should
be held to vitiate his ruling. If,
accordingly, the taxing master did
not exercise his or her discretion properly, did not apply his or her
mind to the matter, disregarded
factors or principles which were
proper for him or her to consider, or considered others which it
was
improper to consider,
has acted upon wrong principles or wrongly interpreted ruies of law,
or has given a ruling which no reasonable
person would have given, or
is clearly wrong, interference on review is justified. Furthermore,
where reasonableness is the criterion
for the assessment of a fee,
the general reluctance to interfere on review with a determination
arrived at by the exercise of a
discretion is even more pronounced.
”
2
See
also
Hennie
De Beer Game Lodge CC v Waterbok Bosveld Plaas CC and Another
.
3
“
[8]
The principles guiding the review of a taxation in this court were
settled in President of the Republic of South Africa and
Others v
Gauteng Lions Rugby Union and Another:
•
Costs are
awarded to a successful party to indemnify it for the expense to
which it has been put through, having been unjustly compelled
either
to initiate or defend litigation.
•
A
moderating balance must be struck which affords the innocent party
adequate indemnification, but within reasonable bounds.
•
The taxing
master must strike this equitable balance correctly in the light of
all the circumstances of the case.
•
An overall
balance between the interests of the parties should be maintained.
•
The taxing
master should be guided by the general precept that the fees allowed
constitute reasonable remuneration for necessary
work properly done.
•
And the
court will not interfere with a ruling made by the taxing master
merely because its view differs from his or hers, but only
when it is
satisfied that the taxing master’s view differs so materially
from its own that it should be held to vitiate the
ruling."
[11]
Although the matter was struck from the roll and therefore the merits
have not been dismissed,
4
the Applicant compelled the Respondents to file answering affidavits
and should therefore, in my view, be held liable for all the
Respondent’s costs which costs include the wasted costs of 19
June 2013 and the costs for preparing the answering affidavit.
I have
perused the reasons advanced by the Taxing Master for including the
costs of the application and I can find no reason to
interfere
therewith.
5
The application therefore falls to be dismissed. Exercising my
discretion in terms of Rule 48(7) of the Rules, I am of the view
that
a special costs order is not warranted. In the event the following
order is made:
The application is
dismissed with costs.
AC BASSON
JUDGE OF THE HIGH
COURT
1
2011
(1) SA 204
(KZD).
2
Quoted from the headnote.
3
2010
(5) SA 124
(CC).
4
See
in general:
Commissioner,
South African Revenue Service v Hawker Aviation Partnership and
Others
[2006] ZASCA 51
;
2006
(4) SA 292
(SCA):
“
[9]
.....
Where
the application lacks the requisite element or degree of urgency,
the Court can, for that reason, decline to exercise its
powers under
Rule 6(12)(a). The matter is then not properly on the Court's roll,
and it declines to hear it. The appropriate
order is generally to
strike the application from the roll. This enables the applicant to
set the matter down again, on proper
notice and compliance.’’
5
For
a similar view see:
Selemela
v Premier Northern Cape and another; Selemela v Premier Northern
Cape and another
[2008]
2 All SA 684
(NC) at paragraph [36].