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[2010] ZAFSHC 8
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Wurth South Africa (Pty) Ltd v Schaup and Another (3872/2006) [2010] ZAFSHC 8 (4 February 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. :
3872/2006
In
the
matter
between:-
WüRTH
SOUTH AFRICA (PTY) LTD
Applicant
and
SHAWN
ANTHONY SCHAUP
1
st
Respondent
ROSSBURG
INDUSTRIAL ENTERPRISES
2
nd
Respondent
(PTY) LTD t/a/
BEARING MAN
JUDGMENT
BY:
MOLEMELA,
J
DELIVERED
ON:
4
FEBRUARY 2010
[1]
This
is a review of taxation as contemplated in Rule 48(1) of the Uniform
Rules of Court.
[2] The review stems from
the orders made by Beckley J. The order made on 26 October 2007
stipulates as follows:
“1. The
matter is removed from the roll.
2. Costs occasioned
by the removal to be paid by the first respondent and Carlos Frade
the attorney for first respondent
de
bonis
jointly and severally, the one paying the other to be absolved.
3. Leave is granted to Mr Frade and
first respondent to furnish reasons within ten days as to why prayer
2 above should not be made
an order of Court.”
The order of 15 November
2007 stipulates as follows:
“
1. The order made on 26 October
2007 is made a final order of court.
2
nd
Respondent to pay costs of today.”
[3]
The
applicant’s attorney presented a bill of costs for taxation and
it was duly taxed on the 19
th
March 2008. On 26 June 2008 the 1
st
respondent filed a Notice of Review of Taxation in terms of Rule
48(1) of the Uniform Rules of Court querying the fees allowed
to
counsel in respect of item 52 and 68 of the applicant’s taxed
bill of costs.
[4] The
Taxing Master filed a stated case as contemplated in Rule 48(3) of
the Uniform Rules of Court. She stated as follows:
“Item
52:
Mr Frade noted an
objection against item 52 arguing that it should not be allowed as
the case did not proceed on that day. The
Taxing Master allowed the
item based on the fact that the matter was in fact before Court and
the advocate had to prepare and appeared
for the applicant. The
advocate’s fee was not regarded as exorbitant and allowed as a
day fee for the council. In other
instances where a matter is
removed up to three days before the trial date, only two thirds of
the day fee would have been allowed
but as it was removed by the
Judge on the day that the matter was in fact set down for hearing and
in light of the order given
it was regarded as been removed on the
26
th
of October 2007. (sic)
Item 68:
Mr Frade also noted an objection
against item 68 arguing that the fee is inappropriately exorbitant
for the services rendered.
Mr Frade had ten days to furnish reasons
as to why prayer two of the order given on 26/10/2008 should not have
been made an order
of Court. No reasons were given and on 15/11/2008
the order was made a final order of court. The taxing master allowed
this item
on the grounds that it was not exorbitant and that the
council indeed prepared and appeared for the applicant. (sic).”
[5] Subsequent
to the filing of the Taxing Master’s stated case, the applicant
filed submissions as contemplated in
Rule
48(5)(a) of the Uniform Rules of Court. No such submissions were
made on behalf of the respondent. The Taxing Master subsequently
advised that she had nothing to add to her stated case. No further
submissions were made by either party.
[6] I
am satisfied with the reasons advanced by the Taxing Master for
allowing counsel’s fees. It is settled law that if
a matter is
removed from the roll on the day of the hearing, counsel is entitled
to his/her full fees for the day. The objections
in respect of item
52 are therefore unjustified.
[7] It
is quite clear from the applicant’s submissions that on the
15
th
November 2007, the day of the second order, the matter was argued as
a fully-fledged opposed application. This would mean that
counsel
was entitled to his fee for the day. The applicant further submitted
that the fee charged by counsel was within the rates
allowed by the
Free State Bar Council. In this regard the Master stated that she
did not regard the fee charged as exorbitant.
[8] It
is trite law that a court interferes with a taxing master’s
decision only if it is clearly wrong or where he/she has
not
exercised his/her discretion judicially. I can find no grounds
whatsoever warranting that I interfere with the taxing master’s
decision to allow counsel’s costs as per the taxed bill of
costs. I must accordingly dismiss the application for review
of
taxation.
[9] I
am of the view that the objection made is one of such a frivolous
nature that an order of costs ought to be made against the
1
st
respondent on the grounds that he was the unsuccessful party in the
review application.
[10] I therefore make the
following order:
10.1 The application for
review of taxation is dismissed.
10.2 The first
respondent is ordered to pay an amount of R300.00 in respect of the
costs of review.
_______
_____________
M.B. MOLEMELA, J
/
sp