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[2011] ZAKZPHC 55
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Alpherea Financial Services v Grove (6299/11) [2011] ZAKZPHC 55 (1 September 2011)
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO: 6299/11
In the matter
between:
ALPHERA
FINANCIAL SERVICES
a
division of BMW financial services (South Africa) PTY LTD
….................
Plaintiff
and
CARL
GROVE
…........................................................................................
Defendant
REVIEW OF
TAXATION
Date: September 2011
Ploos van Amstel, J
[1] This is a review
of a ruling of the taxing master in terms of rule 48 of the Uniform
Rules. The ruling with which the defendant
is dissatisfied relates to
the amount of counsels fees which the taxing master allowed as part
of the costs occasioned by an adjournment.
[2] The matter
arises out of an apposed application for summary judgment. On 10
January 2011 the matter was adjourned the 3 May
2011 on the apposed
role the plaintiffs heads of argument were filed with the registrar
on the 19 April 2011 on 14 January 2011
the plaintiffs attorneys
delivered a notice confirming that the matter would proceed on the
opposed motion court roll on 3 May
2011 and would be argued.
[3] On the 3 May
2011 the matter came before Patel AJP who adjourned the matter the 9
June 2011 on the opposed role and directed
the defendant to pay the
costs occasioned by the adjournment.
[4] A bill of costs
was prepared and submitted to the taxing master. The costs occasioned
by the adjournment on 3 May2011 were taxed
in an amount of R9 865, 18
this included a sum of R 7000 in respect of counsel’s fees.
[5] The notice by
the defendant’s attorneys to the taxing master requiring her to
state a case for the decision for a judge
in terms of rule 48(1)
relates to one item only, namely the sum of R 7000.00 in respect of
counsel’s fees.
[6] The taxing
master stated that counsel’s fee note stipulated a sum of R
2500.00 in respect of heads of argument and a further
sum of R
7000.00 in respect of the opposed application. She disallowed the sum
of R 2500.00 as she did not regard this as a wasted
cost. She allowed
the amount of R7000.00 because in her view it was reasonable and less
than the amount usually allowed by the
taxing master in respect of
counsel’s fees for opposed applications, which is between R
9000.00 and R 13 000.00.
[7] In the
plaintiffs written contentions reference is made to a document headed
“survey of fees ordinarily charged by Silks as at 1 July
2004 “. The plaintiff’s attorney sought to justify the
fee of R7000.00 with reference to the survey which reflects a daily
rate of R 9000.00 and R 15000.00 for counsel between 0 and
5 years.
The attorney has misread the document. The survey of fees annex to
the plaintiffs written contentions relates to fees
charged to senior
counsel. The reference to “0 – 5 years “is a
reference to counsel who have been Silks for between
0 - 5 years.
[8] In the
defendants reply to the taxing masters stated case and the plaintiffs
written contentions it is contended that the taxing
master does not
normally allow a separate fees for a heads of argument and that such
fee is included in counsels fee allowed in
respect of an opposed
application. On that basis it is contended that the sum of R 2500.00
should be deducted from the sum of R
7000.00 charged in respect of
the opposed application. This is refuted by the taxing master in her
reply, who says that the fee
allowed by her in respect of opposed
applications doses not included the fee for drafting heads of
argument. She deals with them
separately. She did not regard the fee
for charged for heads of argument as a wasted cost and on that basis
disallowed it. The
fee of R 7000.00 which she allowed in respect of
the opposed application did therefore not include any allowance for
heads of argument.
[9] The rest of the
contentions in the defendant written submissions relate to the
circumstances which lead to the adjournment on
3 May 2011. They are
irrelevant to this review because of the order made by Patel AJP that
the defendant was to pay the costs occasioned
by the adjournment. It
is not for me to consider whether or not he should have made that
order.
[10] In the
circumstances I am not persuaded that the taxing master erred in
allowing counsel’s fees in the sum of R7000.00
as part of the
cost occasioned by the adjournment.
[11] The review of
taxation is dismissed with costs.
___________________
PLOOS VAN AMSTEL J