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[2012] ZAFSHC 92
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Mackonie obo Reid and Another v Premier of the Free State Provincial Government (4131/2009) [2012] ZAFSHC 92 (10 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4131/2009
In the matter between:-
ROSY MACKONIE N.O.
on behalf of
CHANEL
ROCHWEN ERIKA REID
…..................
First
Plaintiff
JOYCE BETTIE
SANDERS
….............................................
Second
Plaintiff
and
THE PREMIER OF THE
FREE STATE
PROVINCIAL
GOVERNMENT
….................................................
Defendant
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED:
10 MAY 2012
_______________________________________________________
INTRODUCTION
[1] The second plaintiff
in this consolidated action filed a notice of review of taxation in
accordance with rule 48 of the Uniform
Rules of Court on 8 February
2011.
[2] The Taxing Master
taxed the second plaintiff’s bill of costs on 20 October 2010,
but it does not appear from the records
provided to me when his
allocatur
was fixed to the bill of costs. I accept for
purposes hereof that the notice of review was filed timeously.
[3] It appears from a
note in the file that it was forwarded to Kubushi AJ to deal with the
review, but that nothing further transpired.
Eventually the file was
found in the general office without any notes or indication as to
whether the review of taxation was considered
or not.
[4] On 23 April 2012 the
file was handed to me with the instructions to deal with the review
of taxation.
THE REQUIREMENTS
PERTAINING TO REVIEW OF TAXATION
[5] Rule 48 deals with
review of taxation and can be summarised as follows:
(a) Any party
dissatisfied with a ruling of the Taxing Master may within 15 days
after the
allocatur
by notice require the Taxing Master to
state a case for decision of a judge.
(b) The notice must
comply with the requirements set out in sub-rule (2).
(c) The Taxing Master
must
supply his or her
stated case
to each of the
parties within 20 days after receipt of the notice of review of
taxation – sub-rule (3).
(d) The parties to whom
copies of the
stated case
have been supplied may within 15
days after receipt thereof, make submissions in writing.
(e) The Taxing Master
must
within 20 days after receipt of the parties’
submissions supply his or her
report
to each of the parties –
sub-rule (5)(b).
(f) The parties may
within 10 days after receipt of this report make further submissions
to the Taxing Master.
(g) The Taxing Master
shall
on receipt of the submissions forthwith lay a case
before a judge – sub-rule (5)(c).
(h) The judge may
(i) decide the matter
upon the merits of the case and submissions so submitted;
(ii) require any further
information from the Taxing Master;
if he or she deems it
fit, hear the parties or their legal representatives in his or her
chambers or
refer the case for
rescission to the court. (emphasis added)
NON-COMPLIANCE WITH
THE PEREMPTORY REQUIREMENTS OF RULE 48
[6] It is apparent from
rule 48 that the Taxing Master was duty bound to comply with the
following peremptory provisions:
(a) He had to supply his
stated case to each of the parties.
(b) On receipt of any
submissions made by the parties he had to supply his report to each
of them.
(c) He had to lay the
case together with the submissions of the parties before a judge.
[7] The Taxing Master did
not comply with sub-rules 48(3) and (5) and the matter is not ripe
for consideration.
LEGAL PRINCIPLES
[8]
Courts are reluctant to interfere with the exercise of a Taxing
Master’s discretion and will not readily do so, except
on
certain well-known grounds. In
PRELLER v JORDAAN AND
ANOTHER
1957 (3) SA 201
(O) at 203 C – E it was held
that such interference will not take place
“
unless
it is found that he [the taxing master] has not exercised his
discretion properly, as for example, when he has been actuated
by
some improper motive, or has not applied his mind to the matter, or
has disregarded factors or principles which were proper
for him to
consider, or considered others which it was improper for him to
consider, or acted upon wrong principles or wrongly
interpreted rules
of law, or gave a ruling which no reasonable man would have given.”
See
also
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND
OTHERS v GAUTENG LIONS RUGBY UNION AND ANOTHER
2002 (2) SA 64
(CC) at 73 C – G and in particular the following
dictum
appearing in par. [14]:
“
To
this there is a qualification, however. Not all decisions by the
Taxing Master are equally insulated from judicial interference.
In
some instances, for example, where the dispute relates to the
quantum
of fees allowed by the Taxing Master, the Courts are slow to
interfere with the Taxing Master's assessment. But there are other
cases
'. . . where the point in issue is a
point on which the Court is able to form as good an opinion as the
Taxing Master and perhaps,
even a better opinion'.”
CONCLUSION
[9] It would be premature
to adjudicate the matter without having been informed as to the
grounds on which the Taxing Master taxed
off the specific items
and/or which, if any, findings of fact he might have arrived at. The
failure by the Taxing Master to provide
a stated case as provided for
in sub-rule 48(3) prevented the parties and respondent (defendant in
the main action) in particular
to make submissions provided for in
sub-rule 48(5). Finally the peremptory report of the Taxing Master
which might cast further
light on his rulings could be invaluable for
a proper adjudication of this matter on review. In the interest of
justice this matter
should not be finally adjudicated at this stage,
but dealt with in the manner set out hereunder.
ORDER
[10] The following orders
do issue:
1. The Taxing Master is
directed to supply his stated case in compliance with sub-rule 48(3)
within 20 days hereof.
2. The Taxing Master
shall within 20 days after expiry of the period provided for in
sub-rule 48(5)(a), supply his report to each
of the parties and shall
after expiry of the period referred to in sub-rule 48(5)(c) forthwith
lay the case together with the submissions
of the parties before a
judge of this division.
3. No order as to costs
is made.
______________
J.P. DAFFUE, J
/sp