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[2011] ZAECMHC 19
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Mpeleki Tshiki v Premier for Eastern Cape Province and Others, In re: Twani and Others v Premier for Eastern Cape Province and Others (460/99) [2011] ZAECMHC 19 (27 October 2011)
IN THE HICH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION MTHATHA)
CASE NO 460/99
In the matter between
MPELEKI TSHIKI
…....................................................................................
.APPLICANT
and
PREMIER FOR EASTERN CAPE PROVINCE
….............................
1
ST
RESPONDENT
MEC FOR AGRICULTURE AND LAND
AFFAIRS
…......................
2
ND
RESPONDENT
TAXING MASTER, MR. NDLEBE, MTHATHA
…............................
3
RD
RESPONDENT
IN RE:
R.Z. TWANI & TEN OTHERS
…..................................................................
PLAINTIFFS
and
PREMIER FOR EASTERN CAPE PROVINCE
…................................
1
ST
DEFENDANT
MEC FOR AGRICULTURE AND LAND
AFFAIRS
….........................
2
ND
DEFENDANT
TRANSKEI AGRICULTURAL CORPORATION
LIKMITED (IN LIGUIDATION)
….........................................................
3
RD
DEFENDANT
JUDGMENT
ROBERSON J
[1] The applicant applied for an order
reviewing and setting aside the taxation of a bill of costs by the
third respondent (“the
Taxing Master”). The application
was opposed by the first and second respondents, and, according to
the applicant, the Taxing
Master abided the decision of the Court.
[2] The applicant is a practising
attorney. During April 2004, a costs
de bonis propriis
order
was made against him during the course of certain litigation, in
which he acted for the plaintiffs in an action against the
first and
second respondents, as first and second defendants.
2
[3] On 3 March 2010 the first and
second respondents, represented by the State Attorney, served a
notice of taxation of the first
and second respondents’ bill of
costs on the applicant. The date for taxation was 24 March 2010.
[4] On 12 March 2010 an amendment to
Rule 70 of the Uniform Rules came into operation. It provided for the
insertion of the following
sub-rule:
“
(3B) Prior to enrolling a
matter for taxation, the party who has been awarded an order for
costs shall, by notice as near as may
be in accordance with Form 26
of the First Schedule-
afford
the party liable to pay costs at the time therein stated, and for a
period of ten (10) days thereafter, by prior arrangement,
during
normal business hours and on any one or more such days, the
opportunity to inspect such documents or notes pertaining
to any
item on the bill of costs; and
require
the party to whom notice is given, to deliver to the party giving
the notice within twenty (20) days, a written notice
of opposition,
specifying the items on the bill of costs objected to, and a brief
summary of the reason for such objection.”
The amendment also provided for the
substitution of Rule 70 (4) as follows:
“
(4) The taxing master shall not
proceed to the taxation of any bill of costs unless he or she is
satisfied that the party liable
to pay the same has-
(a) received due notice in terms of
subrule (3B); and
(b) received due notice as to the time
and place of such taxation and notice that he or she is entitled to
be present thereat: Provided
that such notice shall not be necessary-
(i) if the party liable to pay costs
has consented in writing to taxation in his or her absence;
(ii) if the party liable to pay costs
failed to give notice of intention to oppose in terms of subrule 3B;
or
for the taxation of writ and post-writ
bills:
3
Provided further that, if any party
fails to appear after having given notice of opposition in terms of
subrule (3B) (b), the taxation
may proceed in their absence.”
[5] On 24 March 2010 the applicant
attended on an official at the Mthatha High Court, whom he thought
was the Taxing Master, and
informed him that he (the applicant) was
due to appear in the Magistrate’s Court. He further informed
this official of the
amendment to Rule 70, and then left, before the
arrival of the representative from the State Attorney. The amended
Rule was brought
to the attention of the Taxing Master, who attempted
a number of times to contact the applicant, without success. The bill
was
then taxed in the sum of R61 680.54.
[6] The applicant’s stance is
that the amendments to Rule 70, being procedural, are retrospective.
In that case, the Taxing
Master should not have taxed the bill
because no notice had been given to the applicant in terms of Rule 70
(3B).
[7] The submission that legislation
governing procedural matters is retrospective, is not an unqualified
statement of the law.
In
Minister of Public Works v
Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
Marais JA, after considering various
authorities, said at 753 B-C:
“
In other words, it does not
follow that once an amending statue is characterised as regulating
procedure it will always be interpreted
as having retrospective
effect. It will depend upon its impact upon existing rights and
obligations. If those substantive rights
and obligations remain
4
unimpaired and capable of enforcement
by the invocation of the newly prescribed procedure, there is no
reason to conclude that the
new procedure was not intended to apply.
Aliter
if they are not.”
[8] At the time the notice of taxation
was served on the applicant, Rule 70 (3B) was not in operation. The
first and second respondents
were not legally required to comply with
Rule 70 (3B) because it was not in existence. They were only legally
obliged, and were
entitled, to give notice of the time and place of
taxation, which they did. To insist that they should have complied
with Rule
70 (3B) would be to render ineffective a procedural step
which had already legally been taken, and which was all that was
required
at the time, in relation to notice of taxation. Although at
the time the bill was taxed, Rule 70 (3B) had come into operation,
the Taxing Master could not have insisted on compliance therewith
before taxation, because the first and second respondents were
not,
at the time of enrolling the matter for taxation, legally obliged to
comply with Rule 70 (3B).
[9] Further, the procedure of taxation
had already commenced when notice was given to the applicant. The
taxation was a further
step in this procedure.
1
The obligation on the Taxing Master
not to tax without being satisfied that Rule 70 (3B) had been
complied with, must be seen in
the context of the taxation process as
a whole, and not in isolation.
5
[10] The interpretation for which the
applicant contends, would have the effect that every matter properly
set down for taxation
prior to 12 March 2010, but taxed thereafter,
would be a nullity. He submitted that such bills should be removed
from the roll
and the party seeking to tax should comply with Rule 70
(3B). Such a result could not have been the intention of the
Legislature.
[11] In my view Rule 70 (3B) and Rule
70 (4)(a) apply to bills of costs which were enrolled for taxation as
from 12 March 2010.
[12] In the result, I am of the view
that there was no irregularity in the taxation of the bill and the
application cannot succeed.
It is not necessary for me to consider
the issue of the delay in bringing the review.
[13] The following order is made:
The
application is dismissed with costs.
______________
J.M.
ROBERSON
JUDGE
OF THE HIGH COURT
6
Appearances
Applicant: Mr. M. Tshiki, Tshiki &
Sons Incorporated, Mthatha.
First and Second Respondents: Adv.
P. Msiwa, instructed by the State Attorney, Mthatha.
1
In
Transgroup Shipping SA (Pty) Ltd v Owners of MV Kyoju Maru
1984 (4) SA 210
(D) at 213B-C Leon J said: “However,
procedural provisions in statutes operate prospectively in relation
to all procedural
matters
arising after them coming into force
.”
(My emphasis)