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[2011] ZAFSHC 13
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Spartan Technology Rentals (Pty) Ltd v Quipsell Trading 1041 CC and Others (801/2010) [2011] ZAFSHC 13 (27 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 801/2010
In
the matter between:-
SPARTAN
TECHNOLOGY RENTALS (PTY) LTD
…...............
Applicant
and
QUIPSELL TRADING
1041 CC
…...................................
1
st
Respondent
ALITORI 1470 CC
….......................................................
2
nd
Respondent
HENDRIK GIDEON
BURGER
….....................................
3
rd
Respondent
QINISO KENNEDY
KHOZA
…........................................
4
th
Respondent
JACOBA JOHANNA
PRINS
….......................................
5
th
Respondent
RUDOLF FRONEMAN
KOTZE
…...................................
6
th
Respondent
FRANS JACOBUS LUBBE
….........................................
7
th
Respondent
_____________________________________________________
DELIVERED
ON:
27 JANUARY 2010
_____________________________________________________
JUDGMENT BY:
FISCHER, AJ
_____________________________________________________
[1] This is a review of
taxation brought in terms of the provisions of High Court Rule 48.
The Bill of Costs was taxed before the
Taxing Master on 12 August
2010 and thereafter the
allocatur
was completed on 30 August
2010. The Bill of Costs so taxed and allocated was that of the
present applicant (hereinafter referred
to as “the judgment
creditor”) arising from an application brought by the judgment
creditor against the seven respondents
(hereinafter referred to as
“the judgment debtors”) in terms of which the judgment
creditor sought payment from the
judgment debtors of a sum of money.
The claim of the judgment creditor was based on a suretyship
agreement concluded between the
parties in terms whereof it was
agreed that the judgment debtors would
“
be
responsible for all charges and expenses of whatever nature incurred
by the Creditor in securing the performance of the obligations
of the
Debtor or the Surety, or enforcing the rights of the Creditor,
including, without limitation, all legal costs, including
attorney
and own client costs, ...”
(See clause 24)
[2] It is common cause
that the notice of motion together with founding papers and annexures
thereto ran to some 161 pages and that
payment in full was made by
the judgment debtor shortly after the matter was enrolled for hearing
on 18 March 2010. Following such
payment an agreement was reached
between the parties in terms whereof the application was removed from
the roll and the respondents
ordered to pay the costs of the
application on the scale as between attorney and
own client
jointly and severally, the one to pay, the others to be absolved. At
the taxation the judgment creditor was represented by its
own
attorney and the judgment debtors by a representative from their own
firm of attorneys.
[3] The judgment debtors
were dissatisfied with the ruling of the Taxing Master relating to
various items and delivered a notice
as envisaged in terms of High
Court Rule 48(1) calling upon the Taxing Master to state a case for
the decision of a judge. High
Court Rule 48 is very clear as to the
manner in which not only the parties to the intended review, but as
importantly the Taxing
Master are to respond, but for reasons that
appear more fully from what follows hereinafter I find it unnecessary
to deal at any
length with such procedure.
[4] High Court Rule 48(1)
permits a party who is dissatisfied with any ruling of the Taxing
Master as to any item or part of such
item
which was objected
to or disallowed
mera moto
by the Taxing Master, to
require such Taxing Master to state a case for the decision of a
judge. What is quite clear from the aforegoing
is that a taxation of
review under this rule is as such limited to those cases where there
was an objection to the relevant items
by or on behalf of the
judgment debtors which they now seek to take on review. The items
objected to fall within three separate
categories and the Taxing
Master in his response to aforesaid notice, claims that all the
relevant items were as such not objected
to on taxation. In this
regard the Taxing Master reports that:
“
Ms Pittas
from Neuhoff Attorneys appeared on behalf of the applicant, and Ms Du
Preez from Symington & De Kok Attorneys appeared
on behalf of the
respondent. The respondent in this matter has brought an application
for a review.
First point the Taxing Master wishes
to address (sic) is the fact that the applicant’s attorney
(sic) (it is accepted for
purposes hereof that reference is being
made to the respondents’ attorney)
never raised any
objections to any of the items he is taking on review on this matter
(sic).”
(My emphasis.)
Neither the judgment
creditor nor for that matter the judgment debtors saw fit to deal
with this claim by the Taxing Master and
I, in the circumstances,
find that the judgment debtors have not satisfied me that there was
as such an objection raised at the
taxation to any of the items in
question and that these items are accordingly not subject to review.
See
KRUGER v SECRETARY FOR INLAND REVENUE
1972 (1)
SA 749
(C). See also
MCUNU v SOUTHERN INSURANCE ASSOCIATION LTD
1977 (2) SA 18
(SECLD) at p. 19 and
DAYWINE PROPERTIES (PTY)
LTD v MURPHY AND ANOTHER
1991 (3) SA 216
(D) and (CLD) at p.
217.
[5] There is no escaping
the clear meaning of the language used in High Court Rule 48(1) and
(2) in that where the party opposing
the taxation fails to object to
any particular item when appearing before the Taxing Master, such
party cannot thereafter attempt
to invoke the review of taxation
procedure provided for by the relevant rule in an apparently belated
attempt to question any items
which the Taxing Master has allowed.
The simple truth is that in the circumstances there was apparently no
objection to the relevant
items and they are accordingly not subject
to review. I however make no order as to costs.
________________
P.U. FISCHER, AJ
/sp