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[2011] ZAFSHC 144
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Ex parte: Workforce Group, Ex parte: Workforce Group v Futter and Another (6188/2009, 290/2010) [2011] ZAFSHC 144 (1 September 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 6188/2009
290/2010
In
the matter between:-
Ex
parte
:
THE
WORKFORCE GROUP (PTY) LTD
…...............................
Applicant
In
re
:
THE
WORKFORCE GROUP (PTY) LTD
…...............................
Applicant
and
H J FUTTER
….................................................................
1
st
Respondent
CAPITAL OUTSOURCING
GROUP (PTY) LTD
…........
2
nd
Respondent
_____________________________________________________
HEARD ON:
23 MAY 2011
_____________________________________________________
DELIVERED ON:
1 SEPTEMBER 2011
_____________________________________________________
JUDGMENT
_____________________________________________________
K.J. MOLOI, J
[1] This is a review of
taxation as contemplated in Rule 48 of the Uniform Rules of Court
(the Rules). The applicant withdrew the
application it had filed in
the following terms:
“
KINDLY TAKE
NOTICE that the Applicant withdraws its Application against the
Respondents and hereby tenders the Respondents’
duly taxed
costs on a party and party scale.”
[2] The taxation was
subsequently set down for 8 September 2010 before the taxing mistress
of this Court, Ms Ngobeni. Before the
taxing mistress appeared Ms J.
Taylor of Webbers Attorneys for the respondents. Ms Taylor was at the
time a candidate attorney.
Ms Alet Lubbe, a Costs Consultant appeared
on behalf of Hunt’s Attorneys as represented locally by Messrs
McIntyre Van der
Post, for the applicant in the application.
[3] The applicant for
review, (the respondents in the main application), sought a review of
the items disallowed by the taxing mistress
viz
items 5 and 6
(relating to the perusal and copying of certain (important)
documents; item 51 (perusal); items 65, 66 and 104 (perusal
and
copying); items 114, 118 and 120 (perusal); item 137 (disbursement)
and item 26 (reduction of consultation hours) which was
taxed down
from 6 to 3 hours. No objection was raised by the applicant during
taxation.
[4] In her stated case
the taxing mistress raised two points
in limine
on the grounds
of which she opposed the review. Firstly, she alleged that the review
should not be allowed to take place because
the applicant sent a
candidate attorney to attend the taxation and not an attorney duly
admitted. Secondly, she contended that
when the application for
review was made, she as the taxing mistress, had not affixed the
allocatur
to the bill of costs. She thereafter dealt with some
of the items complained of in some detail.
[5] As regards the first
point made, I cannot find any support for her contention. The rule
refers to a “party” being
dissatisfied and the party may
be represented by any legal representative including a candidate
attorney. After all a candidate
attorney appears for and on behalf of
her/his principal who will always be a duly admitted attorney. It is
also noteworthy that
the taxing mistress did not question the
competency of Ms Taylor to attend the taxation process.
[6] The second point
raised requires more in depth consideration. The affixing of the
allocatur
signifies the finality of the taxation process.
Before that is done to the bill of costs, the taxing mistress had not
made up her
mind: See
SELLMAN v BOORN
(1841) 8 M and W
552;
151 ER 1158
referred to with approval in
PRETORIUS AND
ANOTHER v COHEN
1953 (3) SA 639
(O) at 639H – 640. The
following was stated at 639H:
“
The master
has not finally decided as to the costs until he has made his
allocatur
.
Until he has done so, it is still open to him to alter his mind, and
he is not bound by any declaration he may have made as to
what costs
he intends to allow”
and at 640H the
following:
“
For these
reasons the Court concluded that the absence of an
allocatur
in the instant case sufficed to justify the dismissal of the
application as premature.”
In the discussion of Rule
48 in Erasmus,
Superior Court Practice
, p. B1-350 the authors
define “After the
allocatur
” mentioned in Rule
48(1). The following is stated:
“
No bill of
costs, or any item thereof, can be reviewed unless the taxing master
has affixed his
allocatur
to the bill”
and cite
PRETORIUS
v COHEN
,
supra
and
GEORGIAN HOUSE ANTIQUES (PTY)
LTD v HENRI LIDCHI & CO LTD
1970 (2) SA 488
(D) at 491,
inter alia
.
[7] Whereas the applicant
made further submissions after the taxing mistress submitted her
stated case, it addressed only the first
point
in limine
raised and not the second one. I am of the view that had the
applicant paid attention to the second point raised, the review
application
would have been withdrawn until after the affixing of the
allocatur
. The applicant, however, persisted with the
application despite this fatal defect. The original of the bill of
costs in the court
file also shows no
allocatur
affixed to it.
[8] In the light of the
above the court is bound to refuse to review the said taxation and
makes the following order:
The application for
review of taxation is DISMISSED with costs.
____________
K.J. MOLOI, J
On behalf of applicant:
Hunt’s Attorneys
c/o McIntyre & Van
der Post
Ref: Mr. C. Gerdener
BLOEMFONTEIN
On behalf of second
respondent: MacGregor - Erasmus
Ref:J. Schabort/ke02/C009-0008
c/o Webbers Attorneys
Ref: AC Conradie
BLOEMFONTEIN
/sp