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[2012] ZAECELLC 11
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Norris and Another v Belfa Fire (Pty) Ltd and Another (EL: 197/2012, ECD: 497/2012) [2012] ZAECELLC 11 (18 May 2012)
7
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE
DIVISION- EAST LONDON
Case no: EL: 197/2012
ECD: 497/2012
Date Heard: 15/05/2012
Date Delivered:
18/05/2012
In the matter between:
PATRICIA ANNE MOIRA
NORRIS
….................................
1
ST
APPLICANT
TONI NORRIS
….............................................................
2
ND
APPLICANT
And
BELFA FIRE PTY (LTD)
….............................................
1
ST
RESPONDENT
THE SHERIFF OF THE
HIGH COURT,
EAST LONDON
…........................................................
2
ND
RESPONDENT
JUDGMENT
SMITH J:
[1] The Applicants
launched urgent motion proceedings for an order staying the execution
of a writ pending the review of taxation
in terms of Rule 48 of the
Uniform Rules of Court.
[2] The pending review
of the Taxing Master’s
allocatur
relates only to the
reasonableness of counsel’s fees allowed by him. First
Respondent has subsequently conceded the other
items in dispute,
which amounted to some R500, in the hope that the matter could be
resolved amicably. I may also add that these
costs were awarded in
respect of the hearing of an exception and the main action between
the parties is still pending.
[3] A dispute of fact
has however arisen as to whether or not the parties have agreed that
the costs of Heads of Argument should
be taxed off counsel’s
fees, and that the balance being R16 500.00, should be allowed as
counsel’s fees for the day.
[4] The Taxing Master,
Mr Ndlebe, has filed an affidavit wherein he confirms the assertion
by the First Respondent that the fee
had been agreed upon between the
parties. The Applicants denied that such an agreement was concluded
and averred that the decision
had been taken by the Taxing Master.
They have now applied for this issue to be referred for oral
evidence.
[5] I am not called
upon in this matter to rule on the merits of the Applicants’
grounds of review in respect of the Taxing
Master’s
allocatur
,
this being an application to stay the execution of a writ in respect
of the costs order pending such review. The Applicants will
therefore, regardless of my finding in this matter, still be entitled
to proceed with the review in terms of Rule 48.
[6] In terms of that
rule the Taxing Master’s report will be laid before a judge in
chambers who may:
(i) decide the matter
upon the merits of the case and submission so submitted;
(ii) require any
further information from the Taxing Master;
(ii) if he or she deems
it fit, hear the parties or the advocates or attorneys in his or her
chambers; or
(iv) refer the case for
decision to the court.
[7] The hearing of
viva
voce
evidence on this issue will, apart from relating to a
relatively small amount (being R11 500), not be dispositive of
the review
in terms of Rule 48. It will merely be relevant in
establishing whether or not the Applicants’ review has
reasonable prospects
of success, this being one of the factors that I
am constrained to consider when deciding whether or not to grant the
relief.
[8] I am satisfied that
the facts and circumstances of this matter call for the adoption of a
common sense and robust approach.
While I am mindful of the dangers
of determining probabilities in the face of conflicting versions in
affidavits, I am satisfied
that the facts of this case present no
such dilemma. (
Buffalo Freight Systems (Pty) Ltd v Crestleigh
Trading (Pty) Ltd
2011 (1) SA 8
(SCA)
at 14D-F.)
[9] It is settled law
that a court should not be reluctant to resolve disputes of fact in
affidavits simply because it may be difficult
to do so. (
Sofiantini
v Mould
1956 (4) SA 150
E
at 154F)
[10] The Taxing Master
has filed a detailed affidavit wherein he stated unambiguously that
the parties had agreed on the amount
to be allowed in respect of
counsel’s fees. His bold and unequivocal assertions in this
regard leave no room for the possibility
of a retraction during
viva
voce
evidence on the basis that he had been mistaken. In order
for the applicant to be successful nothing less than an admission by
the
Taxing Master that he had misstated the true facts in his
affidavit would suffice. This is in my view a highly unlikely
scenario.
[11] I am also mindful
of the fact that a referral to oral evidence of this issue will
entail additional costs for both parties
which will, undoubtedly,
exceed the amount which is in dispute.
[12] Motion proceedings
are meant to facilitate expeditious resolution of disputes and in
terms of Rule 6 (5) (g) I am required
to make an order which will
ensure a “
just and expeditious decision”
.
[13] Having regard to,
inter alia
, the relatively small amount in dispute, the fact
that the Applicants will not be precluded from pursuing their Rule 48
review
and the considerable financial implications for both sides if
the matter is referred for oral evidence, I am not persuaded that
I
should exercise my discretion in favour of the Applicants. In the
result the application to refer the aforesaid issue for oral
evidence
is dismissed with costs.
[14] Both counsel
agreed that in the event of the aforesaid application being
unsuccessful, the matter should be decided on the
basis of the facts
alleged by the Respondent together with the facts alleged by the
Applicants and which have been admitted by
the Respondent.
(Plascon-
Evans Paints LTD v Van Riebieck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[15] If the matter is
decided on this basis the Applicants cannot succeed in the face of an
unequivocal assertion by an objective
and impartial deponent (who
also happens to be the Taxing Master) to the effect that there had
been an agreement in respect of
counsel’s fees. On the facts
before me I am therefore constrained to find that there are no
reasonable prospects that the
Applicants will succeed with the review
in terms of Rule 48 and the application must therefore fail for this
reason.
[16] In the result the
following order shall issue:
1. The application is
dismissed;
2. The Applicants are
jointly and severally liable to pay the First Respondent’s
costs.
_________________________
J.E SMITH
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Applicant : Advocate Brooks
Attorney for the
Applicant : Cooper Conroy Bell & Richard Inc.
4 Epsom Road
Stirling
EAST LONDON
Ref: G.S
BELL/stuart/BC7376
Counsel for the 1
st
Respondent : Advocate Cole
Attorney for the 1
st
Respondent : Wylde & Runchman Inc.
Motorland Building
Cnr Oxford & Fleet
Street
EAST LONDON
Ref: I
Runchman/roenel/G10879
Date Heard : 15 May
2012
Date Delivered : 18 May
2012