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[2012] ZAKZDHC 40
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Afonso NO and v Edward Nathan Sonnenbergs Inc and Others (13871/2011) [2012] ZAKZDHC 40 (29 June 2012)
1
Reportable
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO: 13871/2011
In the matter between:
GEORGE AFONSO NO
…..........................................................
First
Applicant
JUDITH SUSARA WILHEMINA AFONSO NO
…...............
Second
Applicant
and
EDWARD NATHAN SONNEBERGS INC.
…........................
First
Respondent
CHARTWELL CENTRE BODY CORPORATE
…............
Second
Respondent
KWAZULU-NATAL LAW SOCIETY
….............................
.Third
Respondent
DNCV DE FREITAS NO
…..................................................
Fourth
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
This application is for the review of a decision made
by the third respondent (the Society) in assessing fees charged. The
co-trustees
of the Afonso Family Trust (the Trustees) own six
sections under a Sectional Title Scheme governed by the
Sectional
Titles Act 95 of 1986
. The second respondent (Chartwell), which is
the Body Corporate of the Scheme, sued the Trustees. Chartwell
required the removal
of those parts of structures or buildings
erected by the Trustees which, it alleged, encroached on the common
property of the
Scheme. In the alternative, Chartwell claimed
payment of damages based on what was alleged to be the market value
of the parts
of the common property encroached upon.
That litigation gave rise to a settlement agreement
which, in essence, provided for payment by the Trustees of R1.6
million and
the extension, at the cost of the Trustees, of those
sections owned by the Trustees to incorporate the encroachments. The
first
respondent (ENS) which had hitherto represented Chartwell, was
appointed in the settlement agreement to give effect to its
provisions.
The settlement agreement made the Trustees liable to pay
certain costs. The term bearing on this is found in clause 6.3 and
reads
as follows:
‘
The Trust shall within 10 (ten) days on
written request from the Attorneys:-
pay all costs of transfer, conveyancing fees, costs incurred in
obtaining mortgagees’ consents as contemplated in clause
4.1.2 above, all other costs necessary to give effect to and
implement this Agreement, together with value-added tax in respect
of such costs….’
After having lodged the documents required for the
incorporation of the encroachments, ENS sent its account to the
Trustees. The
account was for fees of R189 609.07 and
disbursements of R1 083.00. The account was queried and, after
an exchange
of correspondence, was referred to the Society for
assessment. The Society determined that the assessment was governed
by
Rule 16(b)
of the Rules of the Society. This rule was promulgated
pursuant to s 69(h) of the Attorneys Act 53 of 1979 (the Act) which
empowers
the Society to ‘prescribe the manner of assessment of
the fees payable by any person to a practitioner in respect of the
performance of any work other than litigious work and in respect of
expenses reasonably incurred by such practitioner in connection
with
the performance of that work and,
mero motu
or at the request
of such person or practitioner, assess such fees in the prescribed
manner.’ Section 74(5) of the Act
provides that an ‘assessment
of fees in terms of a rule contemplated in section 69 (h) shall be
subject to review in all
respects as if it were a determination by
such officer of a provincial division or high court as is charged
with the taxation
of fees and charges’. The Society appointed
the fourth respondent (de Freitas) as an assessment committee to
assess the
fee. The dispute was and is between the Trustees and ENS
and I will refer to them, except where otherwise necessary, as the
parties.
Rule 16(b) lists 11 factors to take into account in
determining the reasonableness or otherwise of a fee.
1
The Society wrote to the parties on 14 June 2010
calling for their written submissions on each of the factors
referred to in the
rule. Both parties responded. ENS did so by
letter dated 16 September 2010 which ran to 20 pages and dealt in
detail with each
factor referred to in the rule. The Trustees did so
by letter dated 1 November 2010, having seen the submissions of ENS.
The
covering letter of 2 pages attached 36 pages of correspondence
exchanged between the parties after ENS claimed the fees. The
documents submitted by the Trustees did not address the factors set
out in the rule.
The assessment was set for 10 December 2010. One day
before that date, the parties agreed that de Freitas would conduct
the assessment
in two stages. He would first interpret clause 6.3
and determine from that the basis on which fees could be charged by
ENS. A
hearing took place on that day. On the first issue the
Trustees submitted that ENS was only entitled to charge on a
conveyancing
basis and was bound to the conveyancing tariff
guidelines. ENS submitted that it was entitled to charge general
fees calculated
on a time basis. The second stage was for de Freitas
to assess whether, if the basis on which ENS had charged fees was in
principle
correct, the fees were reasonable in the light of the
criteria set out in Rule 16(b). There is a dispute between the
parties
as to whether there would be two hearings; ENS contends not
while the Trustees say that it was agreed that the parties would be
given a further opportunity to debate the actual fees charged once
the basis on which they could be charged had been ruled on.
De Freitas sent the Society a report dated 14 December
2010 (the first report) setting out his ruling as to the basis of
charging
the fees. This stated that ‘Afonso Trust is liable
for costs as in the manner charged by Edward Nathan Sonnenbergs
Incorporated.’
The Council of the Society, without making a
ruling, referred the matter back to de Freitas for him ‘to
proceed with the
actual assessment of the fees’. The parties
were informed of this by letter dated 24 February 2011. Mention is
made in
that letter of the first report but neither of the parties
was given a copy. No further hearing took place and further
submissions
were called for or made. De Freitas submitted a second
report to the Society dated 15 March 2011 (the second report). The
Society
sent the second report as the final assessment to the
parties under cover of a letter dated 31 August 2011. This was
received
by the Trustees on 12 September 2011. The assessment found
that the fees charged by ENS were reasonable in the light of the
factors
set out in Rule 16(b). The parties had already by then been
attempting to obtain a copy of the first report from the Society
without success. This was finally received by the Trustees on 5
October 2011.
The present application is based on the contention of
the Trustees that the decision as to the basis of charging fees was
wrong
and that, before the Society made the determination referred
to in the second report, the parties should have been given the
opportunity to make further submissions. The application is clearly
brought on the basis of Rule 48 of the Uniform Rules of Court
but
does not follow the procedure prescribed in the rule. I say that it
is brought under the rule for at least the following
reasons. First,
paragraph 24(d) of the founding affidavit says that the ‘review
of taxation is dealt with in Rule 48…which
lays down the
procedure to be followed’ including that notice to the taxing
master be given within 15 days after the decision.
2
Secondly, the founding affidavit attempts to make out a
case for condonation for the Trustees’ failure to comply with
that
time limit. Thirdly, the amended notice of motion contains a
prayer for condonation for ‘failure to launch this application
timeously’ based on those averments in the founding affidavit.
The amendment was brought about as a result of ENS taking
the point
in the answering affidavit that no prayer for condonation was
included in the relief sought, despite the reliance on
Rule 48.
Fourthly, in the founding affidavit the Trustees attempt to explain
their non-compliance with a different aspect of
the rule by saying
that ‘it would be artificial to require the Fourth Respondent
3
to state a case in terms of Rule 48(1)…because
the areas of dispute are clearly identified in the parties’
submissions
as set forth in these application papers’.
Fifthly, both the basis for condonation and the attempt to avoid
that part of
the rule requiring notice to state a case are
specifically challenged in the answering affidavit and no
alternative basis for
the application is raised in the replying
affidavit. Indeed, in the replying affidavit the Trustees clearly
persist in the approach
that the application is one brought under
the rule.
In their heads of argument, the Trustees submit for the
first time that the application is brought under the common law.
Later
in their heads, in attempting to deal with the point taken
that the procedure in Rule 48 has not been complied with and no
condonation
other than that concerning the initial time limit is
sought in the application, the Trustees submit that the application
is brought
under the common law alternatively, to the extent
applicable, Rule 53. This submission is also called in aid to deal
with the
failure to comply with the 15 day period in Rule 48. As
indicated, the papers do not support these contentions.
The Trustees have not complied with a single aspect of
Rule 48, despite purporting to bring the application under the rule.
They
have used the procedure set out in Rule 6 and seek to justify
non-compliance with two aspects of Rule 48 whilst simply ignoring
all of the others. In the answering affidavit, ENS specifically
takes the point of non-compliance with Rule 48 saying that this
alone warrants the dismissal of the application. ENS also takes the
point that, if it is found that this is not sufficient to
be visited
with that result, the Trustees have failed to make out a case for
the only condonation sought in the application,
namely, the failure
to comply with the 15 day period imposed by the rule. I shall deal
with each of these points
in limine
in turn.
As mentioned above, s 74(5) of the Act makes the
decision of the Society reviewable as if it was the decision of a
High Court
taxing master. The procedure for such a review is laid
down in Rule 48. The present application, therefore, clearly falls
within
the ambit of the rule. It is a unique procedure, and differs
both from that prescribed in Rule 53 for reviews in general and from
that prescribed in Rule 6 for applications in general. In essence
the rule requires the dissatisfied party to notify the taxing
master
within 15 days that it requires him or her to state a case.
4
The notice must specify the aspects complained of. The
taxing master must supply the stated case to each party within 20
days
after receipt of the notice and set out any finding of fact in
the stated case. Within 15 days of receipt of the stated case, the
parties must make submissions in writing. Within 20 days of receipt
of the submissions, the taxing master must furnish the parties
with
a report. The parties may within 10 days thereafter make further
written submissions to the taxing master who shall then
forthwith
lay the case, together with all of the submissions, before a judge
in chambers. The judge has four options, viz. to
decide the matter
on that basis, to require further information from the taxing
master, to hear the parties in chambers or to
refer the case for
decision to the court.
The first issue to determine is whether this procedure
must be used if a review falls within the ambit of Rule 48 or
whether it
is simply available, as one of a number of optional
procedures, to a party seeking this kind of review. Section 74(5)
was enacted
to make the rule apply to this kind of review. This is,
in itself, no more than a provision that such a review falls within
the
ambit of the rule. It does not necessarily mean that the rule
must be used. Without the provisions of s 75(4), Rule 48,
dealing as it does with taxations by the taxing master, would not
apply to such assessments. Whether or not a party is bound to
use
the rule must be determined by the principles of interpretation of
documents, including the peculiar characteristics of the
rule. I was
not referred to any cases which bear directly on this issue and have
also found none myself.
There is a clear purpose in the provision and
formulation of this rule by the legislature. That purpose is to
provide a process
for the most expeditious, inexpensive and
procedurally appropriate resolution of disputes concerning taxations
of costs.
5
It does so without in any way detracting from the
common law or constitutional rights of parties,
6
including the
audi alteram
partem
principle. The judge in chambers is
required to consider the matter and, if she or he deems it
necessary, to call for further
information from the taxing master,
to call for argument in chambers from the parties or to refer it to
court before deciding
the review. This discretion allows the judge
to tailor the process to meet the exigencies of the specific case.
The rule does
not shoehorn all matters into an inflexible procedure
regardless of the issues. It does not preclude the full ventilation
of
complex issues or the introduction of voluminous evidence if, in
the discretion of the judge, this is deemed appropriate. It also
takes into account the stringent requirements, honed over the years,
for the successful review of a decision of the taxing master.
7
It presupposes that the material on which the decision
was made had been dealt with by the taxing master. It is clearly
designed
to avoid the launch of an application such as the present
one, which runs to over 390 pages, unless a judge has decided that
such an approach is appropriate. These factors strongly militate
against an interpretation which gives the parties the option to
decide which procedure to adopt.
I have not found any case where the review of a
taxation fell within the ambit of the rule was dealt with by a
different procedure.
I was also not referred to any.
8
There are, however, cases where judges have dealt under
the rule with matters where the matter in question might not
strictly
have fallen within its ambit. Two examples suffice. In
Bowman Gilfillan & Blacklock v Timberit
Properties & others
,
9
the court held that it ‘does not seem to be
altogether clear that Rule 48 was intended to refer to a taxation
other than
a taxation by a Taxing Master in the ordinary sense of
that term’.
10
This was not such a taxation, but Milne JP
nevertheless dealt with it under Rule 48 and condoned the use of the
rule to bring
the case before him ‘in so far as it is
necessary’.
11
Secondly, prior to its amendment, Rule 48 limited the
right of review under the rule to a situation where one of the
parties had
objected to an item in the taxation. Despite this, Caney
J dealt under the rule with the review of items taxed down
mero
motu
by the taxing master.
12
In deciding to do so, Caney J said the following:
‘
I know of no other remedy available to the
applicant, unless he were to institute full review proceedings under
the provisions of
Rule 53, but applying the reasoning of PITTMAN,
J.P., in
Templehoff v. Aberdeen
Municipality,
1948 (1) S.A. 745
(E) at
p.747, it would be a gross hardship if the applicant were denied the
advantage of the inexpensive and expeditious procedure
afforded by
Rule 48.’
13
The learned judge says that the procedure set out in
Rule 53 may be available to a party seeking to review the decision
of a taxing
master. What is meant is that, if he held that the
review did not fall within the ambit of Rule 48, this would be the
only means
open to the applicant.
14
He is not saying that this can be done where the review
falls within the ambit of the rule. He found that there was a
casus
omissus
concerning the case before him and
dealt with it under the rule on the basis that the applicant would
be at a relative disadvantage
if use had to be made of Rule 53. His
reasoning and decision to deal with the matter lends support to the
conclusion that it
is, if not necessary (for he did not have to
decide that point), at least clearly advantageous for all reviews of
taxations which
fall within the ambit of Rule 48 to be dealt with
under the rule. On his reasoning, parties who cannot make use of the
rule suffer
hardship.
Rule 53 provides that all review proceedings ‘shall’
be brought by way of Rule 53.
15
Despite the use of the word ‘shall’, there
is clear authority that this does not prevent a party from using
Rule 6
for reviews.
16
However, it has been held that ‘in the ordinary
course of events’ general review applications have to be
brought under
Rule 53.
17
By contrast, the more relaxed wording of Rule 48
provides that a party ‘may’ by notice require the taxing
master to
state a case. Rule 48 is therefore framed in permissive
terms. It may be argued that, since the stricter wording of Rule 53
does
not make its use peremptory for matters which fall within its
ambit, there is even less warrant to require parties to use Rule
48
where a review falls within its ambit.
Rule 48 differs from Rule 53 because it is one designed
with the special process appropriate to a review of taxation in
mind.
Its provisions are therefore aimed at that kind of review
only. It is understandable that where, as with Rule 53, the whole
range
of reviews falls within the ambit of a rule, the omnibus
procedure of the rule may not suit or be necessary for certain
reviews.
By way of example, Rule 53 is more time consuming than Rule
6. In order to expedite the application, an applicant may well
accordingly
opt to forego the advantage of having the record and
reasons for a decision furnished and thereafter being able to
supplement
the founding affidavit or amend the relief sought. It is
far more likely that a case can be made out that one of many kinds
of
reviews could more appropriately be dealt with outside of Rule 53
than that the review of a decision of the taxing master could
more
appropriately be dealt with outside of Rule 48. In addition, in
contradistinction to Rule 53 primarily benefiting an applicant,
18
it has been held that the time limits in Rule 48 have
been imposed for the benefit of a respondent.
19
I respectfully agree with this finding. It is the
respondent in a review of taxation who has accepted the outcome of
the taxation
and is more likely to desire finality without undue
delays and expense. If, in the words of Caney J, ‘it would be
a gross
hardship if the applicant were denied the advantage of the
inexpensive and expeditious procedure afforded by Rule 48’ how
much more would it operate as a gross hardship on a respondent if an
applicant were entitled to simply ignore the rule at will?
If the
choice lay with the applicant, an unscrupulous applicant could delay
the outcome of the review by avoiding Rule 48 and
thus prolonging
and rendering more costly the process.
If the approach is adopted that the use of Rule 48 is
obligatory for reviews falling within its ambit, Rule 27 affords the
court
a discretion in suitably motivated cases to condone
non-compliance. To that extent, such an approach can never be an
absolute
one. It may be argued that, where condonation is required,
the use of Rule 48 could give rise to insuperable practical
difficulties.
There is, for example, clear authority that a judge in
chambers is not empowered to grant condonation for any failure to
comply
with the rule.
20
How then does a party who is out of time obtain
condonation? Must the review not then be brought by application to
court and therefore
not under Rule 48? Not so. The court may be
approached to condone any non-compliance with, or an extension of
time limits imposed
by, the rules.
21
Once such an application has been granted, the
remaining provisions of Rule 48 can be utilised. Such an application
can be brought
by way of urgency if necessary. All of this leads me
to conclude that, where a review falls within the ambit of Rule 48
as does
the present one, the party initiating the review is bound to
utilise the rule unless a case can be made out for not doing so in
whole or in part. Should a party attempt to make out such a case,
that party is of course obliged to ask for condonation for
its
failure to comply with the rule or those parts of it which it claims
can not be, or ought not to be, complied with.
As I have mentioned, the Trustees correctly accept that
the review falls within its ambit and expressly purport to bring the
application
under the provisions of the rule. They have not complied
with any aspect of the rule. A case ought therefore to have been
made
out for non-compliance with the whole of the rule and the
appropriate condonation sought. The only aspect of non-compliance
for
which the Trustees seek condonation, however, is that relating
to the time which they took to initiate the procedure. There is
neither an attempt to make out a case, nor a request for
condonation, for not complying with other aspects of the rule. As
mentioned, the Trustees simply say that, ‘[h]aving regard to
the history of this matter it would be artificial to require
the
Fourth Respondent to state a case in terms of Rule 48(1)’.
Where a case is made out for non-compliance with only one
aspect of
the rule, it follows that this should be the only aspect not
complied with. The Trustees come nowhere near to making
out a case
for not complying with the rule as a whole. In the absence of a
properly motivated application for such relief, the
application must
therefore fail.
The present matter provides a trenchant illustration of
the effects of the failure of the Trustees to comply with the rule
and
shows that requiring them to do so is not unduly technical or
formalistic. First, the delay caused by the Trustees having
erroneously
waited for the first report would have been avoided. Had
they made use of the rule, the lack of the first report could have
been
mentioned, dealt with in the stated case, viewed by the parties
and submissions made concerning its finding all within the
prescribed
periods. Secondly, no case was stated by the Society. The
importance of this aspect of the rule has been recognised in a
number
of cases.
22
In
Brener
,
Stegmann J said the following concerning its importance:
‘
[I] t is important to bear in mind that the
stated case remains the foundation of the parties' initial
contentions, of the Taxing
Master's report and of the parties'
further contentions that are to follow in terms of the Rule. The
stated case, if not initially
prepared with due care, is likely to
create problems that complicate, or even frustrate, the steps in the
review proceeding that
have still to follow.’
23
Thirdly, I do not have the benefit of a report from the
Society.
24
Fourthly, the time within which the review will be
completed has been extended well beyond that likely to have been
taken if the
rule had been applied. Based on the times allowed under
the rule, the papers would have been laid before a judge at the
latest
by 12 January 2012, some four months after the second report
was furnished to the Trustees. In the event, the application was
argued
on 12 June 2012, five months after that date. Fifthly, the
costs exceed those likely to have been incurred by way of the rule
even
if the judge in chambers had required further steps to be taken
after receiving the review. In my estimate, all of the above
mentioned
factors confirm the requirement to use the rule or to bring
a fully motivated application for condonation. The Trustees have done
neither.
If I am wrong on the point that condonation should have
been sought for all of the aspects of Rule 48 which were not
complied
with, the question of the application for condonation for
the failure to act within 15 days arises. It must be stressed that
this application was brought under Rule 48 and not on the basis of
the common law or Rule 53. On the Trustees’ interpretation,
the requisite action should have taken place no later than 26
October which is 15 days after 5 October 2011. In fact, since the
only decision sought to be reviewed is that dealt with in the second
report which was received by the Trustees on 12 September
2011, the
15 day period begins then and ends on 3 October. The application was
launched on 12 December but only served on the
Society on 14
December.
25
This means that the application was launched three
months after receipt of the second report and was more than two
months late.
In
Kingsborough Town Council v
Thirlwell & another,
26
in a review of taxation where no time limit was
stipulated in the rule applicable at the time, the court held that a
three and
a half month delay was unreasonable and that proof of
prejudice was not necessary for holding such a delay unreasonable.
The
application was dismissed with costs.
The present matter requires even more prompt action on
the part of the Trustees. This is because the legislature has seen
fit,
since
Kingsborough
, to specify a time limit in Rule 48.
A case must therefore be made out, not that the time within which
the application was launched
was reasonable, but that the failure to
comply with the specified time limit should be condoned. This
requires concrete evidence
as to why the time limit could not
reasonably have been complied with in the circumstances of the
matter. For the reasons referred
to in paragraphs 23 and 24 below,
no satisfactory evidence to this effect has been proffered. In any
event, as I have said above,
the relief sought as a whole is framed
under Rule 48 but the condonation requested relates only to one
aspect of non-compliance.
Even if, contrary to what I have held, it was not
necessary to proceed by way of Rule 48 and, in addition, the
application can
be said to have been brought under Rule 6 (Rule 53
has clearly not been utilised either), the Trustees need to show
that the
delay for which they seek condonation was not unreasonable
in the circumstances. It is therefore necessary to evaluate the case
made out by the Trustees for condonation.
The Trustees do not say that they were unaware of the
time limit fixed by Rule 48. In the letter covering the second
report the
Society referred specifically to s 74(5) of the Act. On 4
October 2011, ENS called for payment of the costs. This provoked the
response that the erstwhile attorney for the Trustees could not
obtain instructions from them until he had seen a copy the first
report and that a copy had been requested. This position was
contested by ENS on the basis that the reasoning in the second
report disclosed what had been dealt with in the first. On 6
October, ENS wrote to the Trustees’ attorney indicating that,
if the Trustees were not satisfied, they should initiate a review.
On 11 November, this attorney wrote notifying that he had
been
instructed to bring review proceedings and had briefed senior
counsel for that purpose but that his client was in Johannesburg
and
the counsel concerned had been involved in trials. ENS responded
less than 30 minutes later to reiterate that the reasons
for the
delay were not accepted and not sufficient. Nothing more was heard
until the launch of the application on 12 December.
Despite this,
all that has, in essence, been said in the application for
condonation is that the first applicant ‘is in
ill health
and…is due to go in for a heart bypass operation’, that
the bill assessed is voluminous and complex,
that it is necessary to
interpret clause 6.3 of the settlement agreement, that it took time
to obtain advice from senior conveyancers
and that the closure of
the practice of the Trustees’ erstwhile attorney and handing
the matter to the their present attorney
also delayed matters.
This is woefully inadequate. No mention is made in
either the founding or the replying affidavit of the fact that
senior counsel
had been briefed more than one month prior to the
launch of the application and why it was not launched shortly
thereafter. No
particularity is given as to the date on which the
first applicant became ill or how that affected his ability to give
instructions
or what steps were taken to obtain them. Nothing is
said as to why the first trustee needed to do anything more than
issue instructions
since the Trustees’ erstwhile attorney
deposed to the founding and replying affidavits and their present
attorney to an
affidavit supporting the replying affidavit. Despite
deposing to these affidavits, the erstwhile attorney gives no
information
about when the winding up of his practice began, what it
entailed or how and to what extent it delayed matters. In the light
of the clearly communicated attitude of ENS that no delays would be
brooked, the paucity of detail in the explanation for the delay
borders on the audacious. In attempting to make out a case for
condonation it does not even get off the ground, let alone take
flight.
This is true of the explanation whether the application
falls under Rule 48 or not. One must take cognisance that, since
such
applications should ordinarily be brought under Rule 48, the
short time limit will be a factor influencing the view of a court
as
to what constitutes a reasonable period within which to bring an
application by way of a different procedure. This in turn
informs
the decision whether the delay is unreasonable. It is at least
expected that a detailed explanation is given of the steps
taken in
attempting to comply and the obstacles which prevented it. The delay
of three months is clearly unreasonable in the
light of the lack of
such explanation. As regards the prospects of success, I am
unpersuaded that they weigh in favour of the
Trustees for the
following brief reasons. The Trustees conceded in argument that
clause 6.3 must mean that ENS was to be involved
in more than
conveyancing and, accordingly, that fees other than conveyancing
fees would be incurred. Even in the application
the Trustees do not
attack the time which ENS says was spent on performing its mandate.
The fees charged are all, except in the
case of one attorney whose
time made up a small fraction of that spent, lower than the usual
charge out rate for the people concerned.
In any event, this is a
matter where the Society is far better qualified to assess
reasonableness of both the time spent and
the hourly charges than I
am.
27
It is therefore unlikely that the Trustees would have
succeeded on the merits of the review. The lack of prospects of
success
coupled with the unreasonable delay means that no case for
condonation is made out even if the application is dealt with under
Rule 6. All of this means that it is unnecessary to go into the
merits of the review in any further detail.
The parties agreed that, if the Trustees were
unsuccessful, the provisions of Rule 48(7) should not apply. ENS did
not persist
in its prayer for costs on the scale as between attorney
and client so nothing further need be said on this aspect.
In the result, the application is dismissed with costs.
DATE OF HEARING: 12 June 2012
DATE OF JUDGMENT: 29 June 2012
FOR THE APPLICANTS: HA de Beer SC, instructed by Mooney
Ford Attorneys.
FOR THE 1st RESPONDENT: Max du Plessis, instructed by
Edward Nathan Sonnenbergs Inc.
1
The
rule requires the body assessing to ‘allow all such fees and
disbursements as appear to it to have been reasonable for
the
performance of the work concerned’ taking into account the 11
listed factors.
2
Although
the rule requires action to be taken by a dissatisfied objector
within 15 days after the
allocatur
, the parties are in
agreement that the relevant time from which the period runs is the
date on which the decision of the Society
was made known to the
party seeking review.
3
The
Notice of Motion, prior to its amendment, and the founding affidavit
treat the application as a review of the decision of
de Freitas.
This is why the reference here is to the fourth respondent. Even
after amending the relief sought in the Notice of
Motion, the
averments in the founding affidavit to this effect were not
corrected or said to apply to the Society. It was accepted
in
argument that it is the decision of the Society that should be
subject to review under the rule.
4
It
has been said that it is not necessary for the taxing master ‘to
write an essay at this stage’ because, once the
parties have
made their submissions, the taxing master must frame a report. Per
Schutz J in
Nedperm Bank Ltd v Desbie (Pty) Ltd
1995 (2) SA
711
(W) at 713A-B.
5
Buonanno
v The Taxing Master
1965 (2) SA 653
(N) at 654E-G;
Templehoff
v Aberdeen Municipality
1948 (1) SA 745
(E) at 747 which latter
case dealt with the predecessor to the present Magistrates’
Courts Rule 35(3).
6
It
is instructive that the corresponding rule in the Constitutional
Court was utilised in the complex matter of
President of the
Republic of South Africa & others v Gauteng Lions Rugby Union &
another
2002 (2) SA 64
(CC) paras 9 and 10 in relation to a bill
of costs taxed in the Constitutional Court. In that matter the
Constitutional Court
did not deem it necessary to call for further
written submissions or oral argument. The Constitutional Court
utilised the procedure
of the rule even though it was not called on
to consider its constitutional validity. Neither was the
constitutional validity
of Rule 48 challenged before me.
7
This
test has been stated in a number of cases. In essence the reviewing
judge or court must come to the conclusion that the taxing
master
was clearly wrong before the decision is interfered with.
South
African Rugby Union
para 13;
Ocean Commodities Inc &
others v Standard Bank of SA Ltd & others
1984 (3) SA 15
(A)
at 18F-G;
Visser v Gubb
1981 (3) SA 753
(C) at 754H-755C;
Lander v O’Meara & another
2011 (1) SA 204
(D) para
13.
8
It
may be thought that
Stubbs v Johnson Brothers Properties CC &
others
2004 (1) SA 22
(N) does not deal with the matter under
Rule 48. However, a close reading of the judgment shows this was
done in that the taxing
master stated a case and various persons
made written submissions (see 26A and 27E-I). There are many
instances where it has
been held that the review in question does
not fall within the ambit of the rule. See eg
Gran-Or (Edms) Bpk
v Bevan
1969 (2) SA 87
(T);
Mcunu v Southern Insurance
Association Ltd
1977 (2) SA 18
(SEC). This was not the
contention of the Trustees in the present matter.
9
1967
(2) SA 542
(N).
10
At
542G-H.
11
Loc
cit.
12
Buonanno
(fn 5) at 654E where he labelled the failure of the legislature to
provide for that situation a
casus omissus
. It appears, with
respect, that Caney J was correct in such characterisation because
shortly after the judgment was reported,
the rule was amended to
include precisely that situation.
13
At
654E-F.
14
Some
examples of this appear in fn 8.
15
Rule
53 is said to apply ‘[s]ave where any other law otherwise
provides’.
16
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 661E-662H.
17
Van
Zyl & others v Government of the Republic of South Africa &
others
2008 (3) SA 294
(SCA) para 36 where Harms ADP said that
the failure to follow the rule in that matter had ‘caused much
aggravation’.
18
In
Jockey Club
, Kriegler AJA said the following of Rule 53 at
661E-F: ‘On the face of it the Rule was designed to aid an
applicant, not
to shackle him. Nor could it have been intended that
an applicant for review should be obliged, irrespective of the
circumstances
and whether or not there was any need to invoke the
facilitative procedure of the Rule, slavishly – and
pointlessly –
to adhere to its provisions.’
19
Preller
v Jordaan & another
1957 (3) SA 201
(O) at 202F-H, which
upheld the reasoning of Wessels J in
Maseto & others v
Pleskus & others
1917 TPD 366
at 368. In
Jockey Club
at 662G-H, Kriegler AJA held that Rule 53 confers only incidental
and minor benefits on a respondent whereas it confers real
benefits
on an applicant ‘which he may enjoy if and to the extent
needed in his particular circumstances.’
20
Per
Erasmus J in
Mahomed v Mahomed
1999 (1) SA 1150
(E) at
1152E-F.
21
Just
as a court may be approached to order compliance with the rule if
the taxing master does not comply with it as was done in
Tempelhoff
(fn 4) at 748 where the magistrate was ordered to state a case under
the relevant Magistrates’ Court rule.
22
Brener
NO v Sonnenberg, Murphy, Les Burnett (Pty) Ltd
(Formerly
D’Arch
Masins Benton and Bowless SA (Pty) Ltd)
1999 (4) SA 503
(W);
Desbie
(fn 4) at 713A–C.
23
At
508D-E. At 508F-G he cited in support the dictum of Rabie JA in
Kruger v Sekretaris van Binnelandse Inkomste
1973 (3) SA 231
(A) at 232E-233A where, dealing with the equivalent Rule in the
Appellate Division, he ‘emphasised the importance of stating
the case properly at the outset, and some of the problems which can
result if the requirements of the Rule are ignored or dealt
with in
an imprecise or slipshod manner.’
24
When
the lack of the stated case and report was raised in argument, the
Trustees submitted that the Society has elected to abide
the outcome
of the application and would therefore not, in all probability, have
stated a case or framed a report. There are
two fatal difficulties
with this submission. First, under the rule the Society would have
been obliged to state a case and, after
receiving submissions, to
have framed a report. As pointed out above, if the Society had not
done so, the Trustees could have
approached the court for an order
requiring the Society to comply. Secondly, as mentioned in fn 3, the
founding papers claim
relief only to set aside the decision of de
Freitas. All the averments in the founding affidavit target the
decision as if it
was made by de Freitas. When it was pointed out in
the answering affidavit that the decision sought to be reviewed is
that of
the Society, the Trustees amended the relief sought to
target the Society. This means that, at the time the application was
served
on the Society and it decided to abide the decision of the
court, no averments had been made concerning its decision nor was
its decision sought to be reviewed and set aside. Any election or
waiver requires knowledge of all the material facts (
Laws v
Rutherfurd
1924 AD 261
at 263). The election contended for was
therefore not made with the required knowledge of the facts. The
submission does not
hold water.
25
I
will assume, without deciding, for the purpose of this aspect that
the mere issue of the papers is sufficient. This was the
approach in
BHP Billiton Energy Coal South Africa Ltd v Minister of Mineral
Resources & others
2011 (2) SA 536
(GNP) para 24. In Rule
48, however, notice to the Society within 15 days after the decision
is required and it is certainly arguable
that service of an
application would be required rather than the mere issuing of the
application papers.
26
1957
(4) SA 533
(N).
27
Wellworths
Bazaars Ltd v Chandlers Ltd and Others
1947 (4) SA 453
(T) 457 –
8
Scott
& Another v Poupard & Another
1972 (1) SA 686
(A) 689 F
– G;
Lander
(fn 7) para 17.