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[2014] ZAFSHC 163
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Kampherbeek v Mellet and Another (3093/2013) [2014] ZAFSHC 163 (2 October 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No: 3093/2013
DATE:
02 OCTOBER 2014
In the matter
between:
CARL FREDERICK
KAMPHERBEEK
............................................
Applicant
Versus
BLUCHER HAUMAN
MELLET
.............................................
1st
Respondent
GRAND PALACE
TRADING 217 (PTY LTD
.........................
2nd
Respondent
CORAM:NAIDOO, J
JUDGMENT:NAIDOO,
J
DELIVERED ON:2
OCTOBER 2014
REVIEW
OF TAXATION
Naidoo J
[1] This is a review
of taxation in terms of Rule 48 of the Uniform Rules of Court. The
applicant (Kampherbeek), who was the 1st
respondent in the main
application, opposed the taxation of the (current) first respondent’s
(applicant in the main application)
bill of costs, specifically items
19, 29 and 30 of the bill. I shall refer to the 1st respondent as
“Mellet”.
[2] Kampherbeek and
Mellet are equal shareholders in the second respondent. Mellet
brought an application against Kampherbeek and
2nd respondent on 6
August 2013 containing various prayers for relief pertaining to the
business of the 2nd respondent (the main
application). A rule nisi
was obtained granting the relief sought in that application, the
pertinent order for the purposes of
this matter being that
Kampherbeek was ordered to furnish to Mellet, inter alia, all the
records, financial statements and minutes
of annual meetings and
directors’ meetings. Kampherbeek opposed the main application.
[3] When the matter
was enrolled for hearing on 31 October 2013, the Kampherbeek
brought an application for the postponement of
the matter in order to
launch a counter application (the postponement application). The
papers in the application for postponement
were on the served on
Mellet’s attorneys late in the afternoon of 30 October 2013.
That application was opposed and the Mellet
filed his opposing papers
on 31 October 2013. The application for postponement was granted, and
the Kampherbeek was ordered to
pay the wasted costs occasioned by the
postponement, such costs to include the costs attendant upon the
employment of two counsel.
[4] The bill of
costs and taxation referred to in paragraph [1] above arise from the
main application and the application for postponement.
The
Kampherbeek filed the review application with the Registrar of this
court on 2 January 2014, but it seems he served it on Mellet’s
attorneys only on 13 January 2014. Mellet opposed the application for
Review of Taxation. I mention also that the Taxing Master
prepared a
Stated Case in terms of Uniform Rule 48. Kampherbeek now applies for
condonation for the late service of the application
on respondent’s
attorneys. In my view, such prejudice as may have been suffered by
Mellet, is minimal as all procedural steps
were taken timeously by
him in spite of receiving late service of the review application.
Condonation is accordingly granted as
prayed by the applicant
[5] Before I deal
with the Kampherbeek’s objections detailed above, I pause to
note that the taxing master has a discretion
to allow, reduce or
reject items in a bill of costs. This discretion must be exercised
judicially in the sense that the taxing
master must act reasonably,
justly and on the basis of sound principles with due regard to all
the circumstances of the case. (See
City of Cape Town v Arun Property
Development (Pty) Ltd 2009(5) SA 227 (C) at 232 F-G, and Erasmus:
Superior Court Practice B1-
348 to 349). The court is reluctant to
interfere with the decisions of the taxing master upon matters in
respect of which he is
required to exercise a discretion entrusted to
him. 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 considering matters which it
was improper for him to 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 will only do so if it is in
the same position as, or a 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, i e its conviction on a
review that
he was wrong must be considerably more pronounced than
would have sufficed had there been an ordinary right of appeal.'
(Visser v Gubb
1981(3) SA 753 (C) 754H - 755C; and Erasmus above).
[6] Item 19 of the
Bill of Costs is Mellet’s attorney’s claim for attending
upon the advocates for the purpose of settling
and finalising the
opposing affidavit in respect of the Kampherbeek’s postponement
application. He claimed an amount of R2556.00
for three hours (R852
per hour). The Taxing Master taxed off R852, effectively allowing an
amount of R1704, representing two hours
of consultation. Kampherbeek
contends, in respect of this item, that it is a simple liquidation
application where the papers are
clear and that only one hour would
have been sufficient to settle the affidavit. He points out that the
application for postponement
consists of 12 pages. He completely
overlooked the fact that the opposing affidavit is 26 pages long,
that it has a confirmatory
affidavit of 2 pages and 4 pages of other
annexures. The opposing affidavit therefore comprised 32 pages in
total. The Taxing Master,
in the stated case, asserts that as two
counsel had to be consulted, he did not think 2 hours for the
settling of the opposing
affidavit was excessive. I am inclined to
agree and I am of the view that he exercised his discretion correctly
in taxing off one
hour of consultation time, taking into account the
length of the founding and opposing affidavits in this matter. The
Taxing Master
makes no mention of the length of the opposing
affidavit, but on the basis of logic and common sense, it is apparent
that more
than one hour would have been required for the settling of
that affidavit.
[7] Kampherbeek’s
objection to item 29 is that the fee of Mr Greyling is excessive,
while conceding in his papers that Mr
Greyling has twelve years’
experience. Mellet, in his opposing papers, correctly points out that
this makes Mr Greyling a
Senior Junior. This, according to the Taxing
Master, is but one factor that he took into account in allowing the
fees that he did.
In his fee note, counsel rendered a total fee, in
respect of the main application, of R44 000.00, which included fees
for drawing
Heads of Argument, preparation for court and a day fee.
The Taxing Master taxed off an amount of R8000.00, allowing a fee of
R36
000.00 for the main application, being (according to Mellet’s
notation on the fee note) R18 000.00 for the day fee, and R9
000.00
each for Preparation and Heads of Argument Kampherbeek erroneously
alleged in his Taxation Review application that counsel
did not
prepare Heads of Argument. This is clearly incorrect as Heads which
are 29 pages long, and signed by both counsel, were
filed and served
on 29 October 2013. Counsel’s fee for the postponement
application was R16 500.00, which comprised R12 000.00
for
Preparation and R4 500.00 for settling the opposing affidavit. The
Taxing Master (according to Mellet’s notation on the
fee note)
taxed an amount of R3000.00 off the fee for preparation, thus
allowing a total amount of R13 500.00 in respect of the
postponement
application. Kampherbeek proposes in his review application that the
fees allowed to counsel should be a day fee of
R18 000.00, R4000.00
for preparation and R1500. 00 for settling the opposing affidavit. He
gives no reasons for proposing these
amounts or any explanation
justifying these amounts. It is clear that he agrees with the Taxing
Master that a day fee of R18 000.00
is appropriate. Although the
Taxing Master appears to be of the view that counsel is entitled to a
preparation fee of R12 000.00,
it seems that, in exercising his
discretion, he allowed R9 000.00. Mellet agrees with this. I cannot,
in any event, fault the Taxing
Master’s exercise of his
discretion with regard to the fees allowed for Mr Greyling.
[8] Item 31 on the
Bill of Costs reflects the fees charged the by junior counsel.
Kampherbeek’s complaint against these fees
is that the junior
counsel had only six months’ experience and that it is absurd
that he should be allowed half of the senior
counsel’s fee.
Uniform Rule 69(2) provides:
“Where fees in
respect of more than one advocate are allowed in a party and party
bill of costs, the fees to be permitted
in respect of any additional
advocate shall not exceed one half of those allowed in respect of the
first advocate”.
The provisions of
this sub rule are clear. Kampherbeek submits that the junior advocate
should not be entitled to more than R10
000.00 in respect of wasted
costs, and appears to base this submission on the experience (or lack
thereof) of the junior counsel.
I am of the view that such a
submission cannot be sustained and endorse the averment of the Taxing
Master that it matters not whether
the junior counsel practised for
one day or one year. Kampherbeek complains that the junior counsel
did not specify on his fee
note what work he specifically did. The
papers filed in this matter and the fee note of the senior counsel,
are a clear indication
of the work that was done in this matter.
Mellet’s Practice Note (in the main application) was signed by
the junior counsel,
who also counter-signed the Heads of Argument in
that application. Item 19 on the Bill of Costs makes it clear that
both counsel
were consulted by Mellet’s attorney. In my view,
it is apparent that the junior counsel had done his fair share of the
work
that was required to be done. There is, therefore no merit in
Kampherbeek’s complaint regarding the lack of details in the
junior counsel’s fee note. It appears that the junior counsel
rendered his fee note on the basis of the provisions of Uniform
Rule
69(2), that he is entitled to no more than 50% of the senior’s
fee. I am of the view that the Taxing Master was correct
in taxing an
amount of R5 500.00 off the fee of the junior counsel to bring it
within the parameters of the 50% prescribed in the
sub rule.
[9] In view of what
I have said above, the application for review of the taxation cannot
succeed, and I accordingly make the following
order:
The application is
dismissed with costs.
S. NAIDOO, J
Attorney for
Applicant: Fanie Van Biljon
JG Kriek &
Cloete
66B King
Edward Road
Bloemfontein
(F Van Biljon)
Attorney for
Respondent:Eugéne Holtzhausen
Eugene
Attorneys
39 Amsterdam
Street
Bloemfontein
(E. Holthausen)