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[2011] ZAFSHC 215
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Mabaso v Road Accident Fund (940/2009) [2011] ZAFSHC 215; 2012 (2) 656 (FB) (21 September 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No.: 940/2009
In
the matter between:
M
M F MABASO
........................................................................
Applicant
and
THE
ROAD ACCIDENT FUND
.............................................
Respondent
_____________________________________________________
CORAM
:
KUBUSHI, AJ
DELIVERED ON:
22 SEPTEMBER 2011
KUBUSHI, AJ
[1] This is a review of
taxation in terms of rule 48 (1) of the Uniform Rules of Court.
Brevitatis causa
the applicant will be referred to as the
plaintiff and the respondent as the defendant. The review arose from
a bill of costs enrolled
for taxation by the plaintiff in accordance
with an order of the court granted in her favour. At the taxation of
the bill, the
defendant opposed some of the items on the bill as a
result of which the taxing master disallowed some of the items in
full and
reduced others.
[2] The defendant was not
satisfied with the taxing master’s decision and applied for a
review of the taxation. The taxing
master, in terms of rule 48 (3),
duly supplied his stated case to both parties. In response thereto,
the plaintiff filed his written
submissions in terms of rule 48 (5)
(a). The taxing master did not supply the parties with a report as
required by rule 48 (5)
(b).
[3] The bill of costs
emanated from the cost order granted against the defendant by the
court on 6 August 2010. The plaintiff issued
summons against the
defendant for payment of damages for personal body injuries sustained
in a motor vehicle accident. The defendant
defended the summons. By
agreement between the parties the matter was settled and the
settlement agreement was made an order of
court.
[4] The order of the
court granted on the 6 August 2010, reads as follows:
“
IT IS
ORDERED THAT: (By agreement)
The defendant is to pay 100% of the
plaintiff’s proven or agreed damages.
The defendant is to pay plaintiff’s
taxed costs as between party and party and the qualifying expenses
(the amount of such
expenses to be fixed by the Taxing Master) of
such witnesses as it may consent to, and failing such consents as
may be ordered
by the above Honourable Court, subject to the
following conditions:
The plaintiff shall serve the Notice
of Taxation on the defendant’s attorney of record; and
The plaintiff shall allow the
defendant 7 (seven) court days to make payment of the taxed costs.”
[5] It is trite law that
when a bill of cost is taxed, the taxing master exercises a
discretion. The purview of this discretion
was set out in
PRELLER
v JORDAAN AND ANOTHER
1957 (3) SA 201
at 203C – E as
follows:
“
It is clear
that a discretion is given to the Taxing Master to award such costs
etc. “. . . as appear to him to have been
necessary and proper
. . .” . . . Since the discretion is vested in the Taxing
Master, the reviewing Court will not interfere
with his decisions
unless it is found that he has not exercised his discretion properly,
as for example, when he has been actuated
by some improper motive, or
has not applied his mind to the matter, or has disregarded factors or
principles which were proper
for him to consider, or considered
others which it was improper for him to consider, or acted upon wrong
principles or wrongly
interpreted rules of law, or gave a ruling
which no reasonable man would have given.”
[6] The defendant
objected to the following items on the plaintiff’s bill of
costs: items 11 (g), 11 (h), 11 (j), 14, 15,
16, 49, 50, 51, 52, 53,
54 and 62 of the bill of costs of Podbielski Mhlambi Ingelyf; and
items 70, 71, 73 and 74 of the bill of
costs of Honey Prokureurs. The
objection was that all these items related to
quantum
and
since
quantum
had not been settled the plaintiff was not
entitled thereto. The defendant raised the same reasons in its
written submission. The
taxing master agreed with the defendant and
disallowed the items.
[7] The plaintiff in her
application for review did not agree with the taxing master’s
decision and argued that the items
were mistakenly taxed off. She
contended that in terms of the court order the defendant was liable
for her taxed party and party
costs including the qualifying fees of
her expert witnesses, up to and including the 6 August 2010.
According to the plaintiff
if the court had intended the taxed party
and party costs to be in respect of the merits only, it should have
been so stated. The
taxing master in his stated case contended that
he taxed off these items because they could only be claimed once the
quantum
has been settled.
[8] I agree with the
taxing master that these items could not be claimed at this stage. My
view is that they can only be claimed
once the court order has been
complied with in the following manner: firstly, the
quantum
must be settled, either proven or agreed upon; secondly, the
defendant has to consent to the witnesses or failing such consent
the
court must make the necessary order; and lastly, the amount of such
expenses must be fixed by the taxing master. The court
order is
explicit on these issues.
[9] There is no
indication on the record that as at the date of the taxation of the
bill of costs, the damages had been proven or
agreed upon, or that
the defendant had consented to the witnesses or that the court had
granted an order in respect of the witnesses,
nor had the taxing
master fixed the qualifying expenses for the witnesses. In the
circumstances, in my view, the taxing master
was correct in
disallowing these items. The plaintiff is not entitled thereto until
the court order has been complied with.
[10] The defendant also
objected to items 77 and 79 of Honey Prokureurs bill of costs. Item
77 was in respect of the attendance
at the court during the
settlement negotiations and item 79 was as regards the attendance at
the court, waiting for the judge to
grant the order. The defendant
objected to these items on the basis that firstly, some of the time
during the settlement negotiations
was attorney and client and
secondly, that waiting time at the court was an attorney and client
cost and must therefore be taxed
off. The defendant raised the same
issues in its written submissions. The taxing master agreed with the
defendant and taxed off
a portion of these items.
[11] The plaintiff was
not satisfied with the taxing master’s decision to tax off a
portion of these items. Her argument was
that the parties’
attorneys spent from 9h30 to 13h00, in respect of the settlement
negotiations and from 14h00 to 15h15 waiting
for the judge to have
the settlement made an order of court and therefore the plaintiff was
entitled to the full costs on these
items.
[12] Item 77 was stated
as follows in the bill of costs:
“
Bywoning Hof
en skikkingsonderhandeling (3 ure 30 min)”.
In the notice of opposing
the taxation, the defendant stated the following:
“
Tydsduur
word in dispuut geplaas. Gedeelte is prokureur en klient”
The plaintiff was not
satisfied with the decision of the taxing master and in her
application for review stated the following:
‘
Beide die
partye se prokureurs was vanaf 9h30 – 13h00 aanwesig en besig
met skikkingsonderhandelinge by die hof en is die
eiseres derhalwe op
n party en party skaal gerigtig op die voormelde item in totaliteit
en bestaan daar derhalwe hoegenaamd geen
basis waarop n gedeelte
daarvan afgetakseer kon word nie en is die bedrag van R426.00
derhalwe foutiewelik by hierdie item afgetakseer.
In his stated case, the
taxing master stated the following:
‘
Although
there were settlement negotiations not all the time was for the
negotiation some of the time was used for consultation
and therefore
is attorney and client. So I decided to tax off part of the time for
attorney and client.’
[13] The tariffs do not
specifically provide for a fee for settlement negotiations. Rule 70
of the Uniform Rules of Court which
provides for costs on a party and
party scale, provides in item A-6 for any other conference which the
taxing master may consider
necessary. In my view settlement
negotiations would also fall in this item.
[14] In this instance,
the taxing master considered and found only a portion of the costs to
be necessary and disallowed a portion
which he considered not to be
necessary. His reasoning being that ‘not all the time was for
the negotiation, some of the
time was used for consultation’.
The plaintiff’s dissatisfaction on the other hand stems from
the fact that ‘both
party’s attorneys were present and
busy at the court with the settlement negotiations from 9h30 to
13h00.’ I consequently
had to determine whether in the taxation
of a bill of costs a fee for settlement negotiations is taxable in
full in a party and
party bill or whether a portion thereof, in
respect of consultation with client, is taxable in an attorney and
client bill.
[15] Despite a diligent
search I could not find any case where an issue similar to the one in
this instance had
per se
been decided. The only case I found
was where a court was called upon to decide whether a fee for a
consultation to discuss and
consider with a client a proposal for
settlement emanating from the other side was properly taxable in a
party and party bill or
not. That court held that the taxing master
acted on a correct principle in allowing this fee. The issue decided
in that case,
in my view, did not differ substantially from the issue
in this instance. See
GOLDSCHMIDT AND ANOTHER v FOLB AND
ANOTHER
1974 (3) SA 778
(TPD).
[16] My view is that
since a fee for settlement negotiations is allowable under item A-6
it must be taxable in full in a party and
party bill. In a settlement
negotiation an initiator will put an offer or proposal on the table
to start the process of negotiations.
The other party would then
discuss the proposal with his or her attorney and
vice versa
until settlement is reached. The settlement negotiations could be
started either by a consultation with own client or by a proposal
emanating from the other side. Either way there will always be a need
for the attorney to consult with his or her client before
a final
settlement can be reached.
[17] A consultation
between an attorney and his or her client, whether as initiating the
process or throughout the process of negotiations
is cardinal and
such a consultation, to my mind, forms part of the settlement
negotiations and must not be viewed as a separate
process. Fees
incurred during this consultation process, to my mind, can therefore
not be attributed to attorney and client costs.
As stated in
GOLDSCHMIDT
supra
at 781H an attorney will
indeed be failing in his or her duty to his or her client if he or
she did not consult with his or her
client on a proposal for
settlement. My view is that this is so irrespective of whether there
was a settlement proposal from the
other side or the settlement
negotiations were initiated by the party entitled to the costs. An
assiduous attorney would not finalise
settlement negotiations without
having consulted with client.
[18] In the
circumstances, I find therefore that the taxing master acted on a
wrong principle in disallowing a portion of this item.
These were
party and party costs and were necessary for the conduct of
litigation and should have been allowed in full. See
BEN
McDONALD INC AND ANOTHER v RUDOLPH AND ANOTHER
1997 (4) SA
252
(TPD) at 257H.
[19] In respect of item
79 the taxing master allowed only a fee for attendance to obtain the
order from the judge and taxed off
an amount for waiting time which
he contended was an attorney and client cost.
[20] A fee for waiting is
allowed in terms of item A-11of the tariff of fees of attorneys as
provided for in rule 70 of the Uniform
Rules of Court. The said item
provides that rates of remuneration in items 1 - 9 (of the tariff of
fees of attorneys) do not include
time spent travelling or waiting
and the taxing master may, in respect of time necessarily so spent,
allow such additional remuneration
as he or she in his or her
discretion considers fair and reasonable, but not exceeding R177,50
per quarter or part thereof in the
case of an attorney and R54,00 for
a candidate attorney.
[21] In terms of this
item, once the taxing master is satisfied that time was necessarily
spent in waiting he or she must apply
his or her mind to the
quantum
of the fee to be allowed therefor which would necessarily involve
also a consideration of the duration of the period necessarily
spent
waiting. The first enquiry is therefore whether it was necessarily
for the attorney to be present at the court and to wait.
If the
taxing master remains not persuaded that it was necessary for the
attorney to wait at all, he or she would not only be justified
but
would be obliged to disallow any fee for time spent by the attorney
waiting. See
LINTON & CO v ASSISTANT TAXING MASTER
1972
(2) SA 550
at 552A – D.
[22] To my mind, the
taxing master, in this instance, misdirected himself by concluding
that the time spent by an attorney waiting
for the judge was an
attorney and client cost. It is patently clear that item A-11 falls
within the tariff set out for party and
party costs.
[23] What was required of
the taxing master was to first enquire whether or not it was
necessary for the attorney to wait for the
judge. This he did not do,
but instead misdirected himself by following a wrong principle. The
taxing master could only disallow
these costs if after the enquiry he
could not be persuaded that it was indeed necessary for the attorney
to wait. The plaintiff’s
contention was that the parties’
attorneys spent from 14h00 to 15h15 waiting for the judge to have the
settlement made an
order of court. My view is that, in the current
circumstances, it was necessary for the attorney to be present at the
court and
to wait for the judge. The attorney could not have known
how soon the judge would be available and had therefore to wait all
that
time until the judge was available to grant the order. I
conclude therefore that the taxing master was wrong to disallow this
item.
[24] The next step that
must follow would be to determine the
quantum
of the fee to be
allowed which would necessarily involve also a consideration of the
duration of the period necessarily spent waiting.
In terms of item A
-11 the taxing master may, in respect of time necessarily so spent,
allow such additional remuneration as he
or she in his or her
discretion considers fair and reasonable, but not exceeding R177,50
per quarter or part thereof in the case
of an attorney. I therefore,
find it necessary to set aside the taxing master’s ruling in
respect of item 79 and to remit
the matter back to him to determine
the
quantum
of the fee to be allowed.
[25] Accordingly, I grant
the following order:
25.1 The plaintiff’s
review application fails in respect of items 11 (g), 11 (h), 11 (j),
14, 15, 16, 49, 50, 51, 52, 53,
54 and 62 of the bill of costs of
Podbielski Mhlambi Ingelyf; and items 70, 71, 73 and 74 of the bill
of costs of Honey Prokureurs.
25.2 The plaintiff’s
review application in respect of item 77 succeeds.
25.3 The plaintiff’s
review application succeeds in respect of item 79. This item is
referred back to the taxing master to
deal therewith in accordance
with this judgment.
25.4 No order as to costs
of the review is granted.
__________________
E. M. KUBUSHI, AJ
On behalf of the
applicant: Me. A. Prinsloo
Instructed by:
Honey Attorneys
Ref: A
Prinsloo/cvdm/JO2543
BLOEMFONTEIN
On behalf of the
respondent: Mnr. J. H. Conradie
Instructed by:
Rossouws Attorneys Ref:
SCH41/0467 (JHC/AB)
BLOEMFONTEIN
EMK/eb