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[2011] ZAFSHC 33
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Coetzee v Coetzee and Another (6241/2009) [2011] ZAFSHC 33 (24 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 6241/2009
In
the matter between:
ELDA COETZEE
…...................................................................
Applicant
and
GERT ABRAHIM
COETSEE
….......................................
1
st
Respondent
ELMA NEL
…..................................................................
2
nd
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
JUDGEMENT:
RAMPAI, J
_____________________________________________________
DELIVERED ON:
24 FEBRUARY 2011
_____________________________________________________
REVIEW JUDGMENT
[1] These are review
proceedings. The applicant, in other words the plaintiff, applies for
the review of the taxation of her bill
of costs by the taxing
officer. She is aggrieved by the decision of the taxing officer to
reduce her bill by R5 998,25. The respondent,
in other words the
first defendant, does not oppose the review application although he
had earlier during the taxation raised many
objections to certain
specific items.
[2] The applicant and the
respondent were previously husband and wife. They were married to
each other out of community of property
with the inclusion of the
accrual system. They tied the marital knot in Bloemfontein on 6
February 1999. Approximately 11 years
later, on the 17 December 2009,
the applicant filed for a divorce. The respondent defended the
action. Soon after doing so she
brought an application in terms of
rule 43 against the respondent. The respondent also opposed the
application.
[3] The application for
interim maintenance was scheduled for hearing on the 6
th
May 2010 but had to be postponed because the respondent was not
ready. On the 13
th
May 2010 the matter was allocated to
Cillié J. On that day the parties signed a deed of settlement.
Consequently the application
was removed from the roll and the action
was summarily enrolled in its place. The applicant’s evidence
was heard and the
marital bond dissolved. The deed of settlement was
incorporated in the final decree of divorce. The respondent is
obliged in terms
of clause 7 to pay the applicant’s taxed costs
on the party and party scale (the pap scale).
[4] On the 28
th
July 2010 the applicant delivered notice of taxation of her bill of
costs. On the 9
th
July 2010 the respondent delivered
notice of his intention to oppose the bill. The bill was presented
for taxation on the 28
th
July 2010. Attorney Pretorius of
Rossouws Prokureurs appeared for the applicant whereas Ms Lubbe, an
independent costs consultant,
appeared for the respondent on the
instructions of Peyper Majaphage Prokureurs. Ms Lelane van Blerk was
the taxing officer.
[5] Several items were
taxed off. The applicant claimed fees in the sum of R17 553,70 and
disbursements in the sum of R5 560,05.
Her pre-taxation total was
therefore R19 212,02. The post taxation picture was as follows: Fees
R17 553,70 less R5 560,05 equalled
R11 893,65 disbursements R1 658,32
less 438,20 equalled R1 220,12. The applicant’s original total
claim of R19 212,02 was
therefore slashed by R5 998,25 to R13 113,77.
According to the taxing officer’s allocatur issued on 17 August
2010, the applicant’s
bill was taxed and allowed in the sum of
R15 972,24. The applicant was aggrieved by part of the sum taxed off
viz R5 998,25. This
completes the historical background of the
matter.
[6] I could find no
notice in terms of rule 48(1) which the applicant as an aggrieved
party was required to deliver. It was incumbent
upon her, within 15
days of the allocatur, to call upon the taxing officer to prepare a
stated case. I wanted to take the matter
up with the taxing officer
but I was reliably informed that she was no longer in the employ of
the Department of Justice and Constitutional
Development. Therefore,
there was a procedural lacuna in the sense that the record was
incomplete.
[7] The taxing officer
stated her case in terms of rule 48(3) on the 16 November 2010.
Copies thereof were served upon the applicant’s
attorney on the
same day and upon the respondent’s attorney the next day. It
stands to reason, therefore, that the taxing
officer would not have
reacted in terms of rule 48(3) if the applicant had not filed the
required notice in terms of rule 48(1).
I also assume that the taxing
officer reacted within 20 days of such notice.
[8] The parties were
required in terms of rule 48(5) to deliver their submissions within
15 days after the service upon them of
the stated case – that
is the taxing officer written reasons for her rulings. The applicant
exercised her right on the 7
December 2010. On that day, she caused
her written submissions to be served and filed. However, the
respondent elected to file
no written submissions.
[9] The taxing officer
was required in terms of rule 48(5) to deliver a report with 20 days
after the filing of the applicant’s
written submissions. She
did not file a report. On 24 January 2011 the taxing officer advised
all concerned that she had decided
to file no supplementary reasons
to her stated case and that she would abide by the decision of the
court.
[10] In the absence of
the taxing officer’s report, there were obviously no
supplementary written submissions by the applicant.
Naturally no
submissions were expected from the respondent since he had hardly
filed any original written submissions in response
to the stated
case.
[11] This then completes
the procedural dimension of the matter. Notwithstanding the lacuna,
the procedure was substantially complied
with in my view. Therefore
the matter was ripe to be reviewed.
[12] All in all there
were thirteen items in dispute of which five were consultation items.
They, more than any other item, were
the real war zones. They
accounted for the bulk of the total disallowed by the taxing officer.
Therefore the principal issue in
the review is whether the taxing
officer properly exercised the discretion entrusted to her in
disallowing the disputed total of
the consultation fees involved.
Most of the rulings were taken on the grounds that the consultation
had endured for an unreasonably
long time or that the consultation
was entirely unnecessary.
[13] The court has the
power to interfere and correct the taxing officer’s ruling(s)
on various recognised grounds but also
when it is satisfied that the
taxing officer was clearly wrong. To interfere and correct on the
strength of the latter ground the
court must be in the same position
as the taxing officer or even better than (s)he to determine the
point in issue. See
LEGAL AND GENERAL ASSURANCE SOCIETY LTD v
LIEBERUM, NO AND ANOTHER
1968 (1) SA 473
(A) at 478G –
H per Potgieter JA:
“
With these
remarks I find myself in full agreement and I consider that the
review referred to in Appellate Division Rule 9 (1) confers
upon this
Court the wider exercise of supervision envisaged by INNES, C.J., in
this decision. The Court, therefore, has the power
to correct the
Taxing Master's ruling not only on the grounds stated in Shidiack's
case but also when it is clearly satisfied that
he was wrong. Of
course, the Court will interfere on this ground only when it is in
the same or in a better position than the Taxing
Master to determine
the point in issue.”
[14] The various grounds
on which the court can interfere with the discretion of the taxing
officer were enumerated in
PRELLER v JORDAAN AND ANOTHER
1957 (3) SA 201
(O) at 203B – E per Smith AJP. There are two
instructive features in the judgment. The one is that a taxation of
the bill
is pre-eminently a matter which falls within the discretion
of the taxing officer. The other is that the scope of interference by
the court is limited. Thus we, on review, cannot interfere with the
exercise of that discretion merely because we would have exercised
such discretion differently.
[15] The ostensible
purpose of an award of costs is to recompense the successful
litigant. The objective is usually attained in
one of two ways. The
one method is called the “pap” scale. See
CITY DEEP
LTD v JOHANNESBURG CITY COUNCIL
1973 (2) SA 109
(W) and
DBM
HUURMASJIENE v ADMINSTRATEUR, OVS
1987 (4) SA 264
(O).
[16] The other method is
called the attorney and client scale (the “aac” scale).
See
BEN McDONALD INC AND ANOTHER v RUDOLPH AND ANOTHER
1997 (4) SA 252
(T) and
PROTEA LIFE CO LTD v MICH QUENET
FINANCIAL BROKERS EN ANDERE
2001 (2) SA 636
(O).
[17] In
VAN ROOYEN
v COMMERCIAL UNION ASSURANCE CO OF SA LTD
1983 (2) SA 465
(O)
M T Steyn J made some important comments about the various
stakeholders in a taxation matter. He aptly described the role of
an
attorney, a taxing officer and a judge. He saw the essence of the
process of taxation as a joint venture between an attorney
and a
taxing officer aimed at insuring that justice was properly done
between the winner and the loser – vide para 468 C
–
469C.
[18] The current dispute
revolves around 13 items. From now on I shall refer to the applicant
as the plaintiff and the respondent
as the defendant. However this
will not apply to the order. As regards item 2, the fee claimed was
R71,00. The whole amount was
disallowed. The item concerned an
application by the attorney to the Department of Home Affairs for a
duplicate marriage certificate.
The defendant objected to the
plaintiff’s claim on the grounds that the plaintiff’s
attorney’s fee, for services
rendered before the divorce
proceedings were initiated, was not recoverable by means of “pap”
scale from the loser
but by means of “aac” scale, from
the winner herself. The taxing officer upheld the defendant’s
objection. She
added that because every married couple is provided
with a marriage certificate on the day of the marriage, the
plaintiff’s
application for a duplicate marriage certificate on
the 7 December 2009 was unnecessary.
[19] In his original
written submission the plaintiff alleged that she had to apply
because the defendant had taken away the original
marriage
certificate when he left the common home. She contended that in terms
of the practice rule of this provincial division
issued on 1 February
2008 her divorce summons would not be issued without the relative
marriage certificate.
[20] The defendant’s
objection was correctly upheld. There is no substance in the
plaintiff’s submission. Her reliance
on the provincial practice
rule does not assist her claim for this pre-litigation service.
According to the plaintiff’s particulars
of claim it is clear
and obvious that the defendant, just like the plaintiff, no longer
wanted to go on with the marriage. Therefore,
he would probably have
handed the marriage certificate to the plaintiff to expedite the
process of having the unwanted marriage
bond dissolved.
[21] If requested, I am
almost certain that he would readily have done so. However, it is not
the plaintiff’s case that she
ever tried to get the original
marriage certificate from the defendant. Perhaps he would have
provided it free of charge. Since
there was a high probability or a
good chance that there would have being no charge, her application to
the Department of Home
Affairs was unnecessary. In the circumstances
I would uphold the ruling of the taxing officer.
[22] I turn now to items
3 and 4. Both were related to item 2. Item 3 concerned a fee for the
candidate attorney’s attendance
at the Department of Home
Affairs. The whole R54.00 fee claimed was disallowed. The plaintiff
also claimed a disbursement in the
amount of R15,00 (item 4) paid to
the Department for supplying her with a duplicate marriage
certificate.
[23] Since the
defendant’s objection, the taxing officer’s reasons and
the plaintiff’s submissions are precisely
the same as in the
case of item 2
supra
, my views there apply
mutatis mutandis
to these items here. There is no need for judicial interference in
respect of these two items. The items were correctly disallowed.
[24] As regards item 43
the fee claimed was R71,00. The whole amount was disallowed. The item
was about a letter written. The defendant’s
objection was that
the letter was part of abortive settlement negotiations. The reason
of the taxing officer for disallowing the
fee was that costs (fees,
disbursements or both) of unsuccessful settlement negotiations were
not recoverable by means of “pap”
scale from the loser.
The plaintiff’s submission was that she did not forsee that
attempts to settle the dispute would become
futile in the end.
[25] The parties did not
hold a pre-trial conference as provided for in para 6, section A of
the tariff. Instead they elected to
engage each other by means of an
informal exchange of correspondence from the 10 March 2010 until the
16 April 2010. The plaintiff
did so at her own peril. When litigants
embark on such an informal way of negotiations it is always wise in
practice to agree,
right from the outset, that costs occasioned by
such negotiations would be borne and paid by the loser to the winner
on the “pap”
scale irrespective of the outcome. It was
never so agreed in this case.
[26] To expect the loser
to be liable to the winner for the costs of a fruitless joint
exercise is inequitable. Such an unregulated
process would be open to
serious abuses if it were sanctioned and rewarded by the taxing
officer by means of a “pap”
scale. The principle whereby
unsuccessful negotiations to settle the proprietary rights of the
litigants are not at all recompensed
– is a sound one. It is
not the plaintiff’s submission that such principle is unfair,
inequitable or in any other way
unjust.
[27] As a matter of fact
the plaintiff has advanced no grounds as to why the decision of the
taxing officer in this regard should
be set aside. To say that she
did not expect or forsee the negotiations to collapse is, of course,
no grounds of review. I am,
therefore, inclined to uphold the ruling
of the taxing officer not only in respect of the item under
consideration but also in
respect of similar items 46, 48 and 52.
[28] The next disputed
item was item 56. The fee claimed for consultation between the
plaintiff and her attorney was R1 242,50,
disallowed R621,25 and
allowed R621,25. The defendant objected to the item on the grounds
that its duration of 105 minutes was
unreasonably long and that parts
thereof related to the aforesaid abortive negotiations. The taxing
officer reasoned that a portion
of the consultation of the 4 May 2010
was unnecessary because by then the plaintiff had already rejected
the defendant’s
settlement proposals. The decision to reject
was taken way back on the 16 April 2010 (vide item 51). The taxing
officer explained
that she allowed half the consultation time for the
plaintiff to prepare her own proposals.
[29] I am not persuaded
that the taxing officer was wrong in sustaining the defendant’s
objection. There is no indication
as to the length of the defendant’s
letter or document in which his proposals for the settlement of the
matter were embodied.
In her submission the plaintiff made no attempt
to justify the long duration of 105 minutes for the consultation,
which according
to her was exclusively devoted to discussing the
defendant’s proposals, which she rejected in any event. All she
did was
to repeat that such consultation endured for 1 hour and 45
minutes. Her assertion that the taxing officer allowed only 45
minutes
is factually incorrect. The taxing officer in fact allowed
half the time claimed.
[30] In my view the
plaintiff failed to justify the alleged long duration for a
consultation. Therefore it cannot be said that the
taxing officer had
no valid reason for reducing the fee claimed as she did. It appears
that the whole fee claimed and not just
half thereof should have been
disallowed in accordance with the principle applicable to
unsuccessful negotiations. According to
the plaintiff’s
submission which is contrary to the defendant’s objection and
the taxing officer’s opinion, the
entire consultation revolved
around the defendant’s proposals which she had already
rejected. Since the defendant did not
attack the item as a whole,
there is no need to interfere with the decision of the taxing
officer.
[31] The next source of
the dispute was item 57. Like item 56, it also concerned a
consultation fee. The fee claimed was R355,50
which was totally
disallowed. The subject-matter of such consultation was discussion a
draft deed of settlement. The taxing officer
explained that she had
already allocated a fee of R621,25 under item 56 for this particular
consultation because it was held on
4 May 2010 just like item 56.
[32] The crux of the
taxing officer’s reason was that the plaintiff would have been
doubly recompensed for the same service
rendered by her attorney if
she had allowed item 57 in additions to the allowance she had already
made in respect of item 56. The
reason is understandable. The ruling
cannot be interfered with. The plaintiff has given no reason why such
ruling should be reversed.
[33] Now item 62. It was
also about a consultation fee. The consultation was held on 6 May
2010. Its scope was limited to the marital
dispute between the
plaintiff and the second defendant only. The fee claimed was R532,50,
disallowed R177,50 and allowed R355,00.
The subject-matter of the
consultation revolved around certain proposals to the draft deed of
settlement which were raised by the
first defendant.
[34] The first defendant
objected to the fee claimed on the grounds that 45 minutes was too
long for the purpose. The taxing officer
upheld the first defendant’s
objection and reduced the alleged duration of 45 minutes by 15
minutes. In her further submissions
the plaintiff stated that the
consultation was necessitated by the first defendant’s
insistence that the second dispute,
in other words the dispute
between plaintiff and the second defendant, should also be resolved
and that provision of its terms
and conditions should be made in one
and the same deed of settlement as the first dispute, in other words,
the dispute between
the plaintiff and the first defendant. The
plaintiff submitted that the consultation of 45 minutes was necessary
to take the case
further.
[35] It would seem that
before the 6 May 2010 the plaintiff was under the impression that the
settlement negotiations concerned
the first dispute only. The first
defendant has filed no further submission to show that the plaintiff
was wrong and that, all
along, the plaintiff was well aware that the
negotiations concerned the settlement of both disputes. It must be
accepted, therefore,
that prior to the consultation the scope of the
negotiations was a narrow one.
[36] It follows from the
aforegoing that on the 6 May 2010 the first defendant unilaterally
decided to broaden the scope of the
negotiations. His sudden decision
to fight the second defendant’s battle dismayed the plaintiff
who was determine to settle
a score with the second defendant in a
different way at some other time in the future. It must have been
difficult for the plaintiff
to suddenly consider and decide such an
important and emotionally hurtful matter. Even worse was the
tormenting thought of letting
the second defendant off the hook on
such easy terms and conditions as the first defendant proposed.
[37] It is apparent that
the taxing officer did not appreciate the cutting edge of the
negotiations. She was persuaded by the first
defendant’s
argument that the consultation was too long and that the plaintiff
and her attorney had discuss the aspect of
the settlement on various
previous occasions. Like the first defendant, the taxing officer did
not refute the submission of the
plaintiff concerning the new
dimension which the first defendant introduced in the negotiations on
the 6 May 2010. In the circumstances
it could not be convincingly
submitted that the consultation was unreasonably long.
[38] In my view the
taxing officer did not properly apply her mind to this particular
item. That consultation was different from
the previous
consultations. Its duration was reasonably commensurate to its
subject-matter. The plaintiff had invested a great
deal of time,
expense, resources and emotions in her decision to sue the second
defendant for the alleged alienation of her husband’s
affection. Taking 45 minutes to decide whether to abandon all that,
was not unreasonable. Therefore I would interfere with the
taxing
officer’s ruling in this regard.
[39]
“●
Dit
dien verder vermeld te word dat telkemale nadat die verteenwoordigers
‘n skikkingsvoorstel bespreek het en nadat daar
instruksie
geneem is vanaf die Eiser, die 1ste Verweerder daarna verdere
wysigings aan die skikkingsvoorstel verlang het. Elke
keer was dit
nuwe aspekte. So byvoorbeeld is ‘n lys van die goedere wat aan
2de Verweerder moet toekom aan die Eiseres verskaf,
en sodra die
Eiseres toegestem het tot al die items vermeld in die lys, het die
2de Verweerder verdere items vermeld.”
Certainly that was not
consistent with the behaviour of a litigant who, right from the
onset, genuinely desired to settle in order
to avoid further legal
costs.
[40] Item 66 was also in
dispute. It concerned a fee for a letter written. The fee claimed was
R71,00, but the whole amount was
disallowed.
[41] At para 6 of the
stated case, the taxing officer wrote:
“
Item 66: op
dieselfde dag is daar ‘n skrywe toegelaat waar die eiser eers
die akte van dading aanheg en afstuur vir ondertekening
deur die
verweerder (sien item 65) en dan by item 66 steeds op dieselfde datum
stuur die eiser weer ‘n skrywe aan die teenkant
waarin hulle
versoek dat die akte onderteken word, die tweede skrywe op dieselfde
dag is dus afgetakseer;”
[42] At par 2.4 of the
plaintiff’s further submissions, she replied:
“●
Op 6
Mei 2010 is ‘n ongetekende Akte van dading aan die teenkant
gestuur vir oorweging. (Item65) Dit is die eerste Akte van
Dading wat
opgestel is en waaruit die samesprekings wat in item 63 gemeld is,
gevolg het.
●
Na die
partye skikkingsamesprekings gevoer het en die akte van dading
gewysig het, het die Eiseres die gewysigde akte van dading
onderteken
en is dit per brief afgestuur na die 1ste Verweerder. (item 66).”
[43] The preceding item
65 refers to the letter from plaintiff’s attorney to the
defendant’s attorney dated 6 May 2010.
A draft deed of
settlement was annexed to the letter. The plaintiff’s attorney
wrote the letter dated 6 May 2010 to the defendant’s
attorney.
The draft deed of settlement was annexed to the letter. The plaintiff
had apparently signed the proposed deed of settlement.
In the draft
the plaintiff addressed the first dispute only. She expected the
first defendant only to sign. Therefore, the letter
had nothing to do
with the second defendant.
[44] Upon receipt of the
letter the first defendant’s attorney apparently contacted the
first defendant. The first defendant
declined to sign the draft deed
of settlement attached to the letter because, as we already know, no
provision had made for the
secondary dispute in the original draft.
After such consultation, the first defendant’s attorney
telephoned the plaintiff’s
attorney (vide item 62) and informed
him about the first defendant’s attitude and new demand, viz
provision for the settlement
of the secondary dispute in the same
draft (vide item 65).
[45] The refusal of the
first defendant to sign the original draft deed of settlement, as I
have already pointed out, made it necessary
for the plaintiff’s
attorney to call the plaintiff back for necessary consultation on the
same for the further instructions
(vide item 63). During that further
consultation on 6 May 2010 the plaintiff acceded to the first
defendant’s proposal concerning
the settlement of the secondary
dispute as well. Her attorney accordingly amended the draft deed of
settlement. The amended draft
deed of settlement was then resent to
the first defendant’s attorney on the same day for signing by
the first defendant as
well as the second defendant (vide deed of
settlement, signed 13 May 2010). Herein lies the difference between
item 65 and item
66. The latter concerned both the primary and
secondary disputes and was accepted by the defendants whereas the
former concerned
the primary dispute only and was rejected by the
defendants.
[46] The taxing officer
failed to recognised the important distinction. She erroneously
reckoned that what was stated in the letter
(item 66) could as well
have been embodied in the earlier letter (item 65) to which the
original draft deed of settlement was annexed.
What the taxing
officer regrettably failed to grasp was that item 65, in other words
the first letter, referred to the original
draft whereas item 66, the
second letter, had a bearing on an amended draft. The difference
between the two was of great significance.
The amendment was
material. It was effected on the specific insistence of the
defendants.
[47] The taxing officer
was persuaded by the first defendant’s objection that item 66
was a duplication of the fee already
allowed under item 65. There was
no substance in such an objection. In my view the taxing officer was
clearly wrong to sustain
the defendant’s objection. I am in a
better position than the taxing officer to make a decision on the
disputed item. See
LEGAL AND GENERAL ASSURANCE SOCIETY LTD v
LIEBERUM, NO AND ANOTHER
supra
. Therefore I am
inclined to interfere. The plaintiff’s objection is sustained.
The taxing officer’s ruling is set aside.
[48] Also in dispute was
item 70. The item was about a consultation held for 45 minutes on the
12 May 2010. The fee claimed was
R532,50, disallowed R177,50 and
allowed R355,00. The subject-matter of the consultation was perusing
defendant’s list of
lose tools and alleged amended draft. The
defendants objected to the item on the grounds that the consultation
was too long and
not supported by any contemporary written note. The
taxing officer sustained the objection albeit on different grounds.
Firstly,
she stated that the list did not make it necessary to amend
the draft deed of settlement. Secondly, she stated that the list in
question was a one-page document. The taxing officer was therefore of
the view that the whole business of considering the least
could have
been properly done in no more than 30 minutes.
[49] It is significant to
remark that the plaintiff did not re-joined issue with taxing
officer’s reasons for her conclusion
that 45 minutes
consultation was unreasonably long in the circumstances. It indicated
that the plaintiff must be taken to have
conceded the merits of the
taxing officer’s ruling. In this instance, I would decline to
interfere with the ruling of the
taxing officer. In this
circumstances it cannot be said that the taxing officer took a
decision which no reasonable taxing officer
would have taken.
[50] Finally, I turn to
item 72. That item was also about the holding of a consultation. The
fee claimed and wholly disallowed was
R355,00. The plaintiff
submitted that a 30 minutes consultation was a necessary pre-trial
consultation. The defendants objected
to the length of the
consultation.
[51] The taxing officer
motivated her decision by stating that pre-trial consultation was not
allowed on a “pap” scale
in uncontested divorce actions
which were disposed of in the general motion court for uncontested
matters. She went on to comment
that an attorney was allowed a
standardised fee for strictly 30 minutes. Such a fee was
all-inclusive of the necessary court attendance
for the finalisation
of a matrimonial action (vide item 73) seeing that an advocate had
been briefed (vide item 82).
[52] The contention of
the first defendant was that the final decree was not granted in the
general motion court as an uncontested
divorce action. According to
the first defendant, a divorce action was not on the court roll of
the 13 May 2010. What was on the
court roll in the separate motion
court for the contested matters was a rule 43 application. The
submission of the first defendant
was therefore that seeing that the
first defendant was opposing the plaintiff’s application for
interim maintenance, a pre-hearing
consultation was necessary.
[53] The deed of
settlement was signed on the 14 May 2010. It was then faxed by the
plaintiff’s attorney to the defendant’s
attorney. The
transmission appears to have started 13:58 and ended at 14:04. That
tended to give credence to the plaintiff’s
case that her
application in terms of rule 43 for interim maintenance was opposed
by the first defendant; that it was settled on
the very day of the
hearing; that as a result of its late settlement it was removed from
the roll; that the main divorce action
was then fast-tracked enrolled
and finalised.
[54] I am persuaded by
the plaintiff’s submission. Although the plaintiff eventually
took the divorce order on unopposed basis
and by virtue of the deed
of settlement hers was not a typical undefended action disposed in
the uncontested motion court by virtue
of a deed of settlement
reached without hassles and signed long before the matter or the
action was enrolled for hearing. In these
circumstances it would be
inequitable to deprive the plaintiff of a fee for holding a pre-trial
consultation.
[55] The taxing officer
erred in finding that the instant case was an uncontested matter and
that the deed of settlement was already
signed by the two parties.
The true facts were that, at the time the consultation was held,
there was no signed deed of settlement.
The matter was eventually
settled after 14H00 when proof of settlement was evidenced by the
signatures of all the parties. I have
to mention that, in principle,
the defendant(s) did not dispute the necessity
per se
of such
a consultation. They merely questioned the alleged length thereof.
[56] I am of the firm
view that such pre-hearing consultation was indeed necessary. It
follows from this that the plaintiff was
entitled to recover the fees
relative thereto on the “pap” scale. The taxing officer
considered factors which she was
not supposed to consider but failed
to consider those which she has supposed to have consider –
PRELLER v JORDAAN
supra
. The result was that she
ended up misapplying the principle which applies to undefended but
settled matrimonial matters in the
unopposed motion court to defend
but ultimately settled matrimonial matters in the contested motion
court. The misdirection was
so material that it warranted
interference, by the ultimately arbiter, with the injudicious
exercise of the discretion.
[57] Accordingly, I make
the following order:
57.1 The applicant’s
review application succeeds in respects of items 62, 66 and 72.
57.2 The applicant’s
review application fails in respect of items 2, 3, 4, 43, 46, 48, 52,
56, 57 and 70.
57.3 The respondent is
directed to contribute R400,00 plus 14% value added tax thereon
towards the applicant’s costs of review.
57.4 The taxing officer
is directed to adjust the allocatur accordingly.
_______________
M. H. RAMPAI, J
Applicant’s
attorneys: Rossouws Prokureurs
BLOEMFONTEIN
Respondent’s
attorney: Peyper Majaphage Prokureurs
BLOEMFONTEIN
/eb