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[2014] ZAFSHC 60
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Wentzel v MEC For Health, Department Of Health Free State Province and Another (1229/2011) [2014] ZAFSHC 60 (8 May 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NR. : 1229/2011
In
the matter between:-
C.P
WENTZEL
Plaintiff
And
MEC
FOR HEALTH, DEPARTMENT OF HEALTH
FREE
STATE
PROVINCE
1st
Defendant
NETCARE
LIMITED
2nd
Defendant
CORAM:
MOLOI, J
DELIVERED
ON:
8
May 2014
REVIEW JUDGMENT
[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 of
costs have been taxed by the Taxing Master, Mr O.B. Masoka.
BACKGROUND
[2]
On 14 March 2011 the plaintiff issued summons against the first and
the second defendants. On 25 March 2011 the first
defendant
filed a notice of intention to defend the action. On 18 April
2011 the second defendant filed its notice of intention
to defend.
Immediately the second defendant’s attorneys pointed out to the
plaintiff’s attorneys that the second
defendant was incorrectly
sued and suggested the action against it be withdrawn. This was
not done despite several reminders.
Pleadings were exchanged,
notices served and correspondence exchanged. Only on 26 July
2012 did the plaintiff file a notice
of withdrawal of the action
against the second defendant and tendered wasted costs. Norton
Rose Fulbright of Johannesburg
was the second defendant’s
attorneys and engaged the services of Webbers attorneys of
Bloemfontein as correspondents.
[3]
The second defendant appointed costs consultants to draw up the bills
of cost for the instructing as well as the correspondent
attorneys
and presented them for payment to plaintiff’s attorneys by 28
March 2013. No payment was forthcoming.
On 2 April 2013
the second defendant gave notice of its intention to tax the bills of
costs on 3 June 2013. The plaintiff
filed a notice to oppose
the taxation on 23 May 2013. On 3 June 2013 the bills of costs
were taxed and the allocator in respect
of instructing attorneys was
the amount of R 47 308, 22 and in respect of correspondent’s
attorneys an amount of R 21 741,
90. The second defendant
presented the taxed bills of costs to the plaintiff’s attorneys
for payment on 05 June 2013.
On 14 June 2013 the plaintiff gave
notice of his intention to review the taxation in terms of Rule 48 of
the Uniform Rules of Court.
[4]
I am placed in possession of the following documents pertaining to
this matter:
(a)
The taxed bills of costs dated 3 June 2013;
(b)
Notice of intention to oppose the taxation of the bills dated 23 May
2013;
(c)
Notice of review of taxation of the bills in terms of Rule 48 dated
18 June 2013;
(d)
Second defendant’s response to the plaintiff’s notice of
review in terms of Rule 48(1);
(e)
The undated response by the Taxing Master in terms of Rule 48;
(f)
An affidavit by Second defendant’s attorney, Liesel Kok, a
director of Norton Rose Fulbright.
[5]
According to the affidavit by Ms Liesel Kok, shortly after
institution of the action, she entered an appearance to defend on
18
April 2011. She then addressed a letter to the Plaintiff’s
attorneys, Levin van Zyl on 06 May 2011, wherein she
drew the
attention of the plaintiff’s attorney to the fact that the
second defendant averred that the plaintiff was not treated
at its
private hospital but rather at a public health establishment, the
Universitas Hospital in Bloemfontein. On 11 August
2011 she
again sent a facsimile to the plaintiff’s attorney advising
that, after perusing the second defendant’s hospital
records as
provided by the plaintiff in answer to the second defendant’s
Rule 36(4) notice dated 21 April 2011, and confirmed
that the
plaintiff was not treated at the second defendant’s private
hospital but was in fact only treated at the public
Universitas
Hospital, which is a state-owned and operated hospital, which is
under the control of the MEC for Health, Free State
Province.
On the 17 October 2011 and again on 7 November 2011 further
facsimiles were sent highlighting the fact that the
Plaintiff had not
yet withdrawn its action against the Second defendant. On 9
November 2011 the plaintiff’s attorney
responded that they had
the fullest right to investigate the matter and that there was
absolutely no urgency in relation to the
issues raised in the
previous correspondence and that counsel had been briefed in the
ordinary course to provide an opinion as
to the second defendant’s
involvement in the action. Only once such opinion was received,
would a decision be made
as to whether or not to proceed with the
action against the second defendant. Numerous correspondences
were sent from the
second defendant’s attorney to the plaintiff
during the period of November 2011 up until 15 May 2012, without any
response
from the plaintiff’s attorneys.
[6]
On 31 May 2012 a facsimile was sent to the plaintiff’s
attorneys concerning an application for a trial date, as the second
defendant had not pleaded, the application for a trial date was
irregular. On 11 June 2012 the plaintiff served a notice
of
withdrawal of action against the second defendant; however this
notice required each party to pay their own costs incurred in
the
action. Again a further facsimile was sent on 15 June 2012
pointing out to the plaintiff’s attorney that their
notice of
withdrawal does not incorporate a tender of the second defendant’s
costs as required by Rule 41(1). On 26
July 2012 the
plaintiff’s attorney transmitted a further notice of withdrawal
via facsimile tendering the second defendant’s
wasted costs.
The second defendant’s attorney on instruction by second
defendant requested that the tender of costs
be made
de
bonis propriis
due to the dilatory
conduct of the plaintiff’s attorney who was directly
responsible for the second defendant incurring unnecessary
costs
having been wrongfully sued. In these circumstances it was
pointed out to the plaintiff’s attorneys that the
second notice
of withdrawal was still unacceptable. The plaintiff’s
attorneys informed the second defendant’s
attorney that they
disputed the second defendant’s entitlement to costs on the
proposed scale of attorney/ own client and
de
bonis propriis
and any application for
costs in terms of Rule 41 which is brought would be an abuse of
process. In order to finalise the
matter the second defendant’s
attorney agreed with the plaintiff’s attorney that it would be
in the interests of both
parties to resolve the matter and provide
them with an estimate of the attorney/client costs which the second
defendant had incurred
in defending the matter to date.
[7]
The second defendant’s attorney instructed Ms Alet Lubbe of the
firm Phatshoane Henney Attorneys to draw the relevant
bills of costs
and according to the costs consultant the bills of costs drawn on
party and party scale would essentially be the
same as those of an
attorney/client bill given the nature of the attendances made to
date. For this reason, the bills of
costs which were presented
on behalf of the second defendant were styled as “party and
party” bills of costs.
No payment in respect of the taxed
costs has been received on behalf of the second defendant to date.
CONSIDERATION
OF OBJECTIONS
[8]
Bill of costs of Messrs Norton Rose Johannesburg Attorney
AD
ITEM 11
Receive
and peruse the documents as listed in the Plaintiff’s reply in
terms of rule 36(4) in order to ascertain cause of
action against the
2nd Defendant (415p)
It
was argued by the plaintiff’s attorneys that these documents
(if perused at all) should have been dealt with on a time
basis, with
reference to
ROSENBERG V STANDARD
BANK OF SA LTD & THE ASSISTANT TAXINGMASTER
1940 WLD 119.
Furthermore, that these are voluminous documents
of similar nature that should be read at the reduced rate of half the
tariff.
The Taxing master did reduce this item by R 860.00 and
allowed R 16985.00 (with a time value of 19 hours and 56 minutes).
The taxing master stated in his report that the “time basis”
argument for perusal was one which at that point in time
he could not
summarily dismiss or even try to as it was true and he conceded that
he could have erred in not allowing perusal on
a time basis. The cost
consultant for the second defendant agreed with the taxing master in
this regard and stated that there was
no case law that stated that
just because documents are of a voluminous nature they should be
perused at half of the tariff.
The documents perused were
pleadings filed by the plaintiff and in terms of Rule 36(4), the
documents were meant to ascertain if
the cause of the action would
form part of the discovered documents, should the case proceed.
In
Taxation of Costs in the Higher and Lower Court: A Practical
Guide
: Judge Kruger states on page
44 that if documents were discovered and had to be perused, the costs
of perusal should be allowed.
If documents are supplied by the
opponent’s they must be material to the case and have
evidentiary and probative value in
the sense of furthering either
party’s case. (
Waring v Mervis
and Others
1970(3) SA 239 (W) 243
F-H).
[9]
I am of the view that these documents were properly perused and
compiled by the plaintiff’s attorneys, containing relevant
and
important information, resulting in the voluminous nature thereof.
The plaintiff’s attorneys would also be entitled
to their full
perusal and preparation fee and definitely not at half of the tariff.
In light of the above I can see no reason why
the second defendant’s
attorneys should only be entitled to half of the perusal fee.
Thus, I agree with the ruling
of the taxing master.
[10]
AD ITEMS 19 – 21
The
plaintiff’s attorney objected to all of these items and argued
that they related to a memorandum and research in support
of the
memorandum in substantiation of the claim that the plaintiff tender
attorney and client costs. These items pertain
to
correspondence between the second defendant’s attorney and the
plaintiff’s attorney regarding the cost that should
be tendered
because the second defendant should not have been included in the
proceedings form the onset. It was argued during
the taxation that
the costs in these items should be halved in the alternative the
taxing master contented that if those costs
were allowed as they
stood they would equal attorney and own client costs. He
consequently allowed what he deemed reasonable
on a party and party
scale viz thirty minutes. These costs are indeed attorney and
own client costs and cannot be allowed,
correspondence were written
and the second defendant will receive the costs of the letters
written.
The
following amounts should be deducted:
Item
19 – R 852.00
Item
20 - R 1118.00
Item
21 - R 52.00
[11]
AD ITEMS 1,4,8,12,13,15,19,23,25
According
to the plaintiff’s attorneys these items should not be allowed,
being perusal fees, due to the fact that Webbers
Attorneys
(correspondent for Messrs Norton Rose) acted merely as a “post
box”, they did not draw any notice and just
attended to the
serving and filing of the notices. The second defendant’s
attorney argued at the taxation that the
“post box” issue
is addressed correctly on page 66 of
Taxation
of Costs in the Higher and Lower Courts: A practical Guide
wherein
it is stated that it is the duty of the attorney of record to ensure
that time limits are complied with. It is also
the duty of the
attorney of record to make sure that all pleadings filed complied
with the rules. The taxing master did not
agree with the
plaintiff’s attorneys argument and stated that it was recently
decided in the review of case no: 1666/2010
Vasiliki
Patrinos v Chavonnes Badenhorst Inc and Two Others
by Phalatsi AJ, that it was not only
reasonable to allow full perusal fees, but also prudent and necessary
to peruse all documents
that pass through ones hands as a
correspondent or instructing attorney. In view of the above, I
can see no reason to correct
the decision of the taxing master and
the items stand as taxed.
[12]
AD ITEM 24
The
plaintiff’s attorneys objected to this item on the grounds that
attendance of the Registrar meeting was an aspect that
could be dealt
with by a candidate attorney. The second defendant’s
correspondent, Webbers Attorneys, and more specifically
Ms Conradie
attended the meeting. The second defendant’s attorney agreed
with the taxing master and confirmed that it was
practice in the Free
State High Court that 15 minutes were allowed on an attorney scale
for the Court roll irrespective of the
time actually spent to attend
the Registrar’s meeting. The taxing master conceded that
the cheapest route in litigation
should be followed, and where a
candidate attorney can attend the Registrar’s meeting it can be
done, but in this specific
matter, the candidate attorney was not
available resulting in an attorney attending meeting. I do not see
how it is unreasonable
to allow R 213.00 as minimum fee for 15
minutes spent, even though the Registrar’s meeting is usually
longer than 15 minutes.
COSTS
OF REVIEW OF TAXATION
[13]
In terms of the Uniform rule 48(7) I can allow an amount for costs
of the review of the taxation. In view of what is
stated above
I decided to allow costs that plaintiff attorney pay to second
defendant’s attorneys.
In
the premises the following orders are made:
1.
Item 11 – The item as taxed is allowed.
2.
Items 19 – The amount of R 852.00 is disallowed.
Item
20 – The amount of R 1118.00 is disallowed.
Item
21 – The amount of R 52.00 is disallowed.
3.
Item 24 – The item as taxed is allowed.
4.
The rest of the items are allowed as taxed.
5.
The Plaintiff attorneys are ordered to pay the amount of R 500.00 to
the second defendant being costs
for Review of the Taxation.
_______________
K.J
MOLOI
On
behalf of the applicant:
Ms
AC Conradie
WEBBERS
ATTORNEYS
BLOEMFONTEIN
On
behalf of the second respondent: Mr JL Weihmann
KRAMER
WEIHMANN & JOUBERT
BLOEMFONTEIN