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[2014] ZAFSHC 181
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Van Biljon v Rautenbach (877/2014) [2014] ZAFSHC 181 (3 September 2014)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : 877/2014
DATE:
03 SEPTEMBER 2014
In matter
between:
SIEGREFRIED VAN
BILJON
................................................
Plaintiff
And
SUSARA
RAUTENBACH
.................................................
Defendant
REVIEW
JUDGMENT
JUDGMENT BY: I.
MOTLOUNG, AJ
DELIVERED ON: 3
SEPTEMBER 2014
Introduction
[1] This is a review
of an order made by the taxing master (master) on the 18 June 2014,
made in terms of Rule 48 of the Uniform
Rules of the court.
Facts briefly
[2] The court having
made a costs award in favour of the applicant, the applicant
subsequently duly served a notice of taxation
set down for the 18
June 2014 on the respondent. The respondent filed a notice to oppose
the said taxation and on the 18 June 2014
(date of set-down) both
parties were legally represented at the taxation. The respondent’s
representative, Ms Dauth, indicated
that she was ready to proceed
with the taxation whilst the applicant’s representative, Ms
Prinsloo, objected to the taxation,
alleging that the parties had
reached settlement regarding the amount of the costs awarded by the
court. The respondent’’s
Ms Dauth denied that the parties
had settled the matter, and indicated that she was ready to proceed
with the taxation.
[3] Faced with these
divergent positions, the master then asked the respondent’s Ms
Dauth whether she had proof of the fact
that the matter was not
settled, and Ms Dauth could not produce such proof.
The master then
ruled that absent such proof, she accepted that the the offer was
made by the applicant, and was not going to proceed
with the taxation
of the bill in front of her, but would only note the objection
registered by the respondent’s Ms Dauth,
to the effect that the
respondent wanted the master to proceed with the taxation. This
ruling is stated in the following terms
in the Stated Case prepared
by the Master in terms of subrule 48(3)(a):
“I accepted
the fact that an offer was made and I noted it on the bill. The
taxation did not proceed. An objection was noted
by EG Cooper Majiedt
Attorneys
EG Cooper Majiedt
Attorneys requested a stated case to be decided by a judge”.
[4] The respondent,
obviously aggrieved by the master’s ruling, filed a notice of
review of the said ruling (entitled Notice
of Review of Taxation in
Terms of Rule 48), to which the master responded by filing the
requisite Stated Case in terms of subrule
48(3).
[5] Annexed to the
respondent’s notice of review was also correspondence exchanged
between the attorneys of the parties, dated
the 28 May 2014 and 10
June 2014, and marked annexures “B” and “C”
respectively. These emails showed that
the respondent’s
attorneys did make an offer of R55 000.00 (as alleged before the
master) but that the said offer was rejected
by the applicant’s
attorney who, instead of accepting the offer, made a counter-offer
(of R60 000.00) for settlement of the
matter. As stated above, the
respondent duly served and filed the above-stated notice of review.
The applicant has
not responded anyhow to the said notice after receiving the master’s
Stated Case. This means that the review
papers herein comprise of the
respondent’s notice of review and the master’s Stated
Case only.
The issue to be
decided
[6] The issue or
question to be decided is whether the application for the “review
of the taxation” has to be granted
or not. Stated differently,
the question to be answered is whether the respondent has made out a
case for review in terms of Rule
48 or not.
The applicable
legal principles
[7] The following
are the relevant Rule 48 provisions:
7.1. Rule 48(1) –
“Any party dissatisfied with the ruling of the taxing master as
to any item or part of an item which
was objected to or disallowed
mero motu by the taxing master , may within 15 days after the
allocator by notice require the taxing
master to state a case for the
decision of a judge.
7.2. Rule 48(2) –
“The notice referred to in subrule (1) must –
(a) Identify each
item or part of an item in respect of which the decision of the
taxing master is sought to be reviewed;
(b) Contain the
allegation that each such item or part thereof was objected to at the
taxation by the dissatisfied party, or that
it was disallowed mero
motu by the taxing master;
(c) Contain the
grounds of objection relied upon by the dissatisfied party at the
taxation, but not argument in support thereof;
and
(d) Contain any
finding of fact which the dissatisfied party contends the taxing
master has made and which the dissatisfied party
intends to
challenge, stating the ground of such challenge, but not argument in
support thereof”.
[8] It is clear that
the Rule envisages a situation where a review in terms thereof is
directed at challenging a ruling or rulings
made by the taxing master
on an item by item basis, after which the master made an allocatur,
and that the notice of review must
similarly be based on an item by
item basis. The situation presenting itself on the facts of this case
is clearly not one envisaged
by the Rule, strictly speaking. On the
facts of this case, the master did not conduct any taxation but
instead refrained from doing
any taxation, and thus refrained from
making any specific rulings regarding all items in the bill to be
taxed, and consequently
ended up without any allocatur. Consequently,
even the objection noted by the respondent to the master’s
ruling is not on
an item by item basis as required by the Rule.
[9] Erasmus in
Superior Court Practice (at pg B1-350 of Service 40) states the
following in discussing the Rule:
“A review of
taxation under this rule is limited to those cases where there was an
objection and those where the taxing master
allows an item mero
motu…[and] No bill of costs , or any item thereof, can be
reviewed unless the taxing master has affixed
his allocatur to the
bill [and] The notice must contain the particulars laid down in
subrule (2)”, and refers to Pretorius
v Cohen
1953 (3) SA 639
(O) and other decisions in support of the said propositions.
[11] In a decision
of this division, in S.A. Fine Worsted (Pty) Ltd v Niemeyer
1956 (2)
SA 49
(O), the court distinguished the Pretorius decision mentioned
above and found that even though the master had not affixed his
allocatur
at the time that the notice of review was lodged, this did
not bar the court from conducting a review of the disputed taxation.
The court consequently dismissed a point-in-limine that had been
raised against the notice that had been filed prematurely before
the
master could affix his allocatur.
[12] In Brener NO v
Sonnenberg, Murphy, Leo Burnett (Pty) (Formerly D’Arcy Masins
Benton & Bowless SA (Pty) Ltd
1999 (4) SA 503
(W), the court
faced with a number of irregular steps (in the sense of not being
compliant with the strict wording of Rule 48),
even explored various
options regarding how to deal with the matter at hand, and finally
decided to get seized with the review
notwithstanding the various
non-compliances by the parties to the review. The court stated the
following amongst others at 516J
to 518E:
“It is
apparent that the parties’ respective attorneys, by simply
ignoring the terms of Rule 48, have complicated this
matter in such a
way that it is difficult to get to grips with the main disputes
arising directly out of the bill of costs, without
first trying to
resolve the procedural wrangle in which the have become enmeshed”.
The court went on to
explore what it termed the “first solution” and
thereafter what it termed the “alternative
approach to finding
a solution”, and thereafter remarked that:
“Rule 48(2)
gives me fairly wide powers discretionary powers”.
The court concluded
by stating the following:
“I consider
that the appropriate way in which to deal with the present matter is
the way that will place before me the essential
contentions of the
parties and the taxing master with the minimum further expenditure of
time and costs. In my view, the material
with which to achieve this
is at hand. The taxing master has made his position clear enough, and
it does not appear to me that
there is anything further that I should
require of him. As to the parties, instead of putting them to the
expense of briefing advocates
or attorneys to address me in my
chambers, or to argue the matter before the court, when they will in
all probability seek to repeat
the material already available to me
in written form, I should simply have regard to what the defendant
has set out in its late
“response to taxing master’s
stated case”, and to what the plaintiff has set out in his
so-called “reply
to the defendant’s response to taxing
master’s stated case”.
This approach
amounts in substance to granting each of the parties an indulgence
for certain respects in which each of them has
failed to comply with
the requirements of Rule 48 …It goes without saying that I
would not grant the defendant the indulgence
which is involved in
having regard to its contentions which were out of time, without at
the same time granting the plaintiff the
indulgenge which is involved
in having regard to his “reply to defendant’s response”
[which the learned judge
referred to as the parties’ own
“ingenious innovations” at some stage]. This disposes of
the point made in Ms
Stein’s letter dated 25 June 1997 to the
effect that Rule 48 makes no provision for the delivery of such a
document”.
The court then went
on to deal with the disputes raised, albeit irregularly raised.
Before doing so, the court expressly stated
that:
“I turn to the
disputes raised in this irregular manner”.
[13] In discussing
the powers of the review court to interfere with the rulings of the
master, Erasmus has the following to state
at B1-348 to B1-349:
“The general
principles governing interference with the exercise of a taxing
master’s discretion have been stated as
follows:
“The court
will not interfere with the exercise of such discretion unless it
appears that the taxing master has not exercised
his discretion
judicially and has exercised it improperly, for example, by
disregarding factors which he should properly have considered;
or he
has failed to bring his mind to bear on the question in issue; or he
has acted on a wrong principle. The court will also
interfere where
it is of opinion that the taxing master was clearly wrong but only do
so if it is in the same position as, or 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”,
quoting from Visser
v Gubb
1981 93) SA 753
(C) at 754H – 755C, and also stating
that these principles have been stated and restated in a wealth of
other decided cases
referred to by the learned authors.
14] Erasmus goes on
to state at B1-349 that:
“A review of
taxation is, therefore, not strictly a “review” in the
sense of the court interfering only with the
exercise of an improper
discretion; the powers of the court are wider than the known and
recognised grounds to which a power of
review is limited at common
law” (my emphasis),
and refers to the
Appelate Division decision of Legal and General Assurance Society Ltd
v Lieberum NO
1968 91) SA 473
(A) at 478G, in which he states that
the AD put this proposition beyond doubt.
[15] In the Lieberum
decision mentioned above, the court stated the following at 477E-F,
stating the approach to be followed:
“Now it is
settled law that where a matter is left to the discretion or
determination of a public officer, and where his discretion
has been
bona fide exercised or his judgment bona fide expressed, the court
will not interfere with the result. Not being a judicial
functionary
no appeal or review in the ordinary sense would lie; and if he has
duly and honestly applied himself to the question
which has been left
to his discretion, it is impossible for a court of law either to make
him change his mind or to substitute
its conclusion for his own…There
are circumstances in which interference would be possible and right.
If for instance, such
an officer had acted mala fide or from ulterior
and improper motives, if he had not applied his mind to the matter or
exercised
his discretion at all, or if he had disregarded the express
provisions of a statute – in such cases the court might grant
relief” (my emphasis).
[16] In my view, the
sum total of all the views and sentiments expressed by the
above-mentioned authorities is that a court of review
in terms of
Rule 48 has very wide powers – so wide that notwithstanding the
wording of the rule – even a situation
or circumstances not
falling under the Rule, strictly speaking, should be dealt with by a
review court, as long as the issue arises
from taxation proceedings
or a ruling made by the master. On this approach, despite the fact
that the ruling made by the master
herein was not on an item by item
basis, and that the objection was not on an item by item basis, and
that there was no allocatur
finally made by the master, this court
should be able to deal with the review against the master’s
ruling as it stems from
or arises from taxation proceedings.
[17] In the Stated
Case, the master takes the view that:
“The tests I
as taxing master used was a test of objectivity as set out in Kruger,
J in Taxation of Costs in the Higher and
Lower Courts: A Practical
Guide.
It is my humble
submission that I exercised my discretion through assessing and
considering all the relevant facts and circumstances
before I made my
decision”.
I do not agree with
the master’s view that he applied a discretion he had. None of
the provisions of the Rule conferred such
a discretion upon him.
Furthermore, even if the master had such professed discretion, which
in my view he never had, he followed
a fundamentally flawed and wrong
approach by asking the wrong question from the wrong party. It is
trite that in our law, the general
rule is that he who alleges must
prove. Therefore, I do not understand why the master did not ask the
applicant, as the party that
alleged the existence of the settlement
agreement, to produce proof of the alleged settlement, and instead
asked the respondent
to produce proof that no settlement had been
reached. This was a misdirection on the part of the master (even if
one assumed that
he had the powers or discretion to exercise in
respect of the dispute, which he did not have).
Application of
the legal principles to the facts of this case
[18] The master
clearly decided on a matter which was outside his mandate in terms of
Rule 48. He did not decide on any specific
items but decided on a
factual dispute applying generally to the whole bill, without having
to resort to the rules of taxation.
The dispute that faced the master
was not as regards the items in the bill, but as regards whether
there was an offer and acceptance
thereof, resulting in a binding
settlement agreement.
In deciding the said
issue, the master acted ultra vires and thus his action or conduct
falls to be reviewed and set aside by this
court, as having been
irregular. In my view, the master’s conduct was clearly wrong
as he applied his discretion in respect
of a dispute not falling
within his authority. He decided whether a settlement agreement had
been concluded by the parties or not,
when nothing in the Rule
confers such powers on him.
[19] The master
should have proceeded with the taxation that had been duly set down
before him, to which there had been formal opposition
noted as
required by the Rule.
[20] The master
indeed erred in not seeking to proceed with the taxation and then
deal with whatever eventuality that could arise,
like an application
for postponement etc. Subrules 70(1) and 70(4) state the
circumstances under which the master shall not proceed
to taxation,
and those circumstances are not present in this case. The applicant
was thus entitled to insist on the taxation proceeding,
and the
master should have proceeded with the taxation of the bill of costs.
Relief
[21] The applicant
seeks an order referring the taxation back to the master, so that the
master may proceed with the taxation of
the bill of costs.
[22] I am unable to
find any compelling reason as to why the review that must be made of
the master’s decision must be made
through the ordinary review
mechanisms or procedures, other than the one provided for under Rule
48, although the kind of ruling
made by the master’s does not
appear to fall within the strict wording of the Rule. To the
contrary, for expediency and other
considerations, I find it to make
for basic sense to allow such review to be made by either a judge in
chambers or by the court
in terms of Rule 48. After all, my
understanding of the authorities referred to above is that it is
desirable that any situation,
novel or not, arising from or connected
with or in connection with a ruling made by a master after a matter
has been duly set down
for taxation before him, be accommodated under
this Rule. In this respect I am in full agreement with the approach
taken by Blieden
J writing for the full bench in RAF v Le Roux
2002
(1) SA 751
W at 753 C – E, when the full bench could not find a
specific procedure provided for in section 22 of the Supreme Court
Act
59 of 1959:
“The first
question which arises is whether the words “on the hearing of
an appeal” literally mean what they say.
In other words,
whether it is only at the hearing of the appeal that the court can
“receive further evidence”or whether
such further
evidence can be tendered at any time or after the hearing of the
appeal, but before the delivery of judgment, as has
occurred in the
present case. Neither I nor my colleagues in the appeal, nor counsel,
were able to find any authority which deals
specifically with this
point. However, because of the nature of the present application it
is necessary to answer this question.
I shall deal with
the issue on the basis that the present application can be brought
even though the actual hearing of the appeal
has ended, but judgment
has as yet not been delivered. This is not to be construed to mean
that this court finds that the present
procedure is permissible. A
court of appeal will allow the leading of further evidence on appeal
only in special circumstances
because it is of public interest that
there should be finality to litigation” (my emphasis), citing
Simpson v Selfmed 1995(3)
816 (A) as authority for the said
proposition.
[23] Applying the
above-mentioned approach (taken by the court in the Le Roux decision
mentioned above) mutatis mutandis, I find
I am entitled to utilize
the Rule 48 procedure to grant the respondent the relief it seeks.
Costs of the
review
[24] There is no
reason why the ordinary rule of costs following the result should not
apply. In this case the applicant was the
substantive cause of the
irregularity, by incorrectly alleging that the respondent’s
offer had been accepted.
Annexure “C”
proves that the offer had not been accepted. Furthermore, after the
master submitted the Stated Case, the
applicant had the right to
reply thereto (by stating its case) in terms of subrule 48(5)(a), and
the respondent did not do so –
meaning that the respondent’s
case, as amplified or modified by the Stated Case, is the only case
or facts before this review.
There exists nothing
to countenance the respondent’s case as regards the
misdirection by the master, and that the applicant
incorrectly caused
it by alleging there was settlement when there was none, thus
occasioning the wasted costs of the 18 June 2014,
by effectively
postponing the taxation.
[25] Consequently, I
hereby make the following order:
25.1. The taxation
proceedings before the taxing master of the 18 June 2014 are reviewed
and set aside.
25.2. The matter is
remitted back to the taxing master to proceed with the taxation of
the bill of costs, and the ordinary rules
pertaining to taxation
shall apply.
25.3. The applicant
is ordered to pay the costs of the review, together with the wasted
costs of the 18 June 2014 occasioned by
the non-taxation of the bill
of costs.
MOTLOUNG, AJ
On behalf of the
applicant: Van der Merwe & Associates
Bloemfontein
On behalf of the
respondent: EG Cooper Majiedt Attorneys
Bloemfontein