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[2014] ZAFSHC 146
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Tanker Project Solutions CC v Matjhabeng Local Municipality (1273/2012) [2014] ZAFSHC 146 (28 August 2014)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 1273/2012
In
the matter between:
TANKER
PROJECT SOLUTIONS CC
….............................................................................
Applicant
and
MATJHABENG
LOCAL MUNICIPALITY
…...................................................................
Respondent
JUDGEMENT:
LEKALE, J
DELIVERED
ON:
28 AUGUST 2014
INTRODUCTION
AND BACKGROUND
[1]
The applicant in these proceedings seeks review of taxation of a bill
of costs presented by it, as the defendant, to the taxing
master of
this division on the 20
th
May 2014.
[2]
The taxation emanated from the postponement of the trial involving
the parties in which the respondent, as the plaintiff, claims
payment
of money allegedly owing to it for services rendered. Trial was
postponed by agreement between the parties and the
respondent was
ordered to pay wasted costs.
[3]
On the 20
th
May 2014 the taxing master of this court disallowed two items viz.
items 15 and 17, relating to traveling time and expenses of
the
applicant’s “country-attorney” (Welkom attorney) on
the basis that such costs were not necessary and proper
for the
attainment of justice. The applicant feels aggrieved thereby
and, thus, invoked rule 48 of Uniform Rules of Court
(“the
rules”) for review of the relevant taxation. The taxing master
duly stated a case for determination by the court
and the parties, on
their part, presented written submissions in terms of the rules.
STATED
CASE
[4]
The issue for determination as stated by the taxing master is whether
or not the travelling cost involving charges and expenses
incurred by
the applicant’s “country-attorney” when he
travelled with the applicant from Welkom to Bloemfontein
and back to
attend the applicant’s consultation with counsel in preparation
for trial where necessary and proper.
REASONS
FOR DECISION
[5]
The taxing master effectively feels that the facts and circumstances
of the matter did not render it necessary for the Welkom
attorney to
attend the relevant consultation regard being had to the fact that
the local attorney was familiar with the matter
as he had attended
the registrar’s roll meeting, the rule 37 conference as well as
the court on previous occasion.
In his view the Bloemfontein
attorney was not the Welkom attorney’s mere post box but was
actively involved in the matter.
There exists, in his view, no
cause for the court to interfere in the matter.
CONTENTIONS
BY THE PARTIES
[6]
Mr Schuurman for the applicant contends that the taxing master did
not consider the matter on its own merits to determine whether
or not
it was necessary and reasonable for the Welkom attorney to attend the
relevant consultation and only applied the general
rule that
“country-attorneys” are not entitled to travel to attend
consultations or trial where local attorneys are
retained and
available. In his opinion the instructing attorney had intimate
knowledge of the matter and an active role to
fulfil in preparation
for trial as he had primary instructions from the applicant. Mr
Schuurman painstakingly points out
that a sensible solicitor, in the
position of the Welkom attorney, would in the circumstances have
considered it reasonable to
attend a consultation in preparation for
trial with his client and counsel. In conclusion he contends that the
taxing master did
not exercise his discretion properly and, as such,
the court is at large to intervene.
[7]
The respondent supports the allocatur and effectively points out that
same is in accordance with the general rule that a “country-attorney”
is not entitled to the relevant costs where the local attorney has
intimate knowledge of the matter. In the respondent’s
view the Bloemfontein attorney was an experienced attorney who was
very familiar with the matter and was, further, actively involved
in
its progress and, as such, there existed no strong reasons for the
Welkom attorney to attend the relevant consultation together
with the
applicant. The taxing master correctly found, after weighing
the relevant circumstances, that the relevant costs
were unnecessary
and over-cautious according to Mr Jacobs for the respondent.
The respondent concludes that the review should
be dismissed with
costs.
APPLICABLE
LEGAL POSITION
[8]
The general principle is that the court of review will not interfere
with the taxing master’s discretion in allowing or
disallowing
certain items “…
unless the
taxing master has acted upon a wrong principle or has not really
exercised his discretion at all”
.
(See in this regard
Niceffek (Edms)
Bpk v East Vaal Motors (Edms) Bpk
1993 (2) SA 144
(O) at 147F.)
[9]
The court will, further, interfere with the exercise of the taxing
master’s discretion where it is of the opinion that
he was
clearly wrong but only if it (the court) is in the same or a better
position than the taxing master to determine the point
in issue.
(See
Ocean Commodities Incorporated &
Others v Standard Bank of South Africa Ltd and Others
1984 (3) SA 15
(AD) at 18F).
[10]
The parties are correctly and effectively in agreement that, as a
general rule, an attorney not practicing at the seat of the
court is
not ordinarily allowed to charge traveling time and expenses to
attend court in a party and party bill unless there are
exceptional
circumstances or very strong reasons which compel him to do so.
If such an attorney has special and intimate
knowledge of the facts
and local conditions of the matter which necessitate his attendance
at court his costs in that regard are
allowable (See
Friedrich
Kling v Continental Jewellery Manufacturers
1993 (3) SA 76
(CPD);
Groenewald v
Selford Motors (Edms) Bpk
1971 (3)
SA 677
(C) and
Minister of Water
Affairs v Meyburg
1966 (4) SA 51
(EC).
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
[11]
The question in the instant matter is whether or not there existed
exceptional circumstances or very strong reasons in the
form of
special and intimate knowledge of the facts and local conditions in
connection with the matter on the part of the “country-attorney”
which necessitated the attendance of the Welkom attorney at the
relevant consultation.
[12]
In support of the review the applicant relies on the primary
instructions it gave to the Welkom attorney and his role in
appointing
correspondent attorney and briefing counsel. The
respondent, on its part, contends that the local attorney had
adequate knowledge
and experience to attend the relevant
consultation. The taxing master effectively points out that he
considered,
inter alia
,
the nature of the claim involved and the role played by the
Bloemfontein attorney on previous occasions in protecting the
applicant’s
interests when he disallowed the items in
question. He further submits that he applied the subjective
test when making the
impugned decision.
[13]
In most, if not all, cases involving “country-attorneys”
such attorneys hold primary instructions from their clients
and
appoint correspondents and counsel on instructions from such
clients. The have sound knowledge of the matters in order
to
give instructions to correspondents and counsel. The general
rule, however, requires more than the aforegoing in order
to entitle
them to party and party costs for attending court or consultations at
the seat of the court.
[14]
Details of the alleged intimate knowledge which required the
attendance of the Welkom attorney at the relevant consultation
were
not disclosed to the taxing master nor are they apparent
ex
facie
the papers serving before me.
In my view, without such details it is impossible to judge the
intimacy and exceptional nature
of the alleged knowledge on the part
of the Welkom attorney in order to assess the necessity or
reasonableness of his attendance
at the consultation.
[15]
It is true, as submitted for the applicant, that the attendance of an
attorney with intimate knowledge of the matter at the
relevant
consultation is necessary because evidence and trial strategies get
discussed with counsel. If the fact that the
“country
attorney” holds primary instructions
per
se
entitles him to attend trial and
consultation at the seat of the court regardless of the availability
of the appointed local attorney
then all “country-attorneys’
are entitled to the relevant costs the rule in question serves only
to deprive deserving
litigants of legitimate and necessary costs.
I, however, do not believe that this is the case.
[16]
Without strong reasons for the attendance by the Welkom attorney of
the consultation in question being disclosed it cannot
be said that
the taxing master did not exercise his discretion properly or that he
applied the wrong principle and, as such, was
clearly wrong.
[17]
I am, however, satisfied that the applicant had reasonable cause to
believe that it had an axe to grind with the allocatur
regard being
had to the fact that the costs of the relevant consultation were
allowed.
ORDER
[18]
In the result the application for taxation review is dismissed.
[19]
No order as to costs is made.
______________
L.
J. LEKALE, J
On behalf of
applicant: Mr. P. Schuurman
Instructed
by:
Hill,
McHardy & Herbst
BLOEMFONTEIN
On
behalf of defendant: Mr. P. A. C. Jacobs
Instructed
by:
Symington
& De Kok
BLOEMFONTEIN