Taute NO v Heymans (6032/2008) [2009] ZAFSHC 77 (27 August 2009)

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[2009] ZAFSHC 77
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Taute NO v Heymans (6032/2008) [2009] ZAFSHC 77 (27 August 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No.:
6032/2008
In the
matter between:
ANTON
HERBERT TAUTE NO
Applicant
and
GERT
PETRUS JOHANNES HEYMANS
Respondent
_______________________________________________________
DELIVERED:
27 August 2009
_______________________________________________________
JUDGMENT
_______________________________________________________
M
OLEMELA,
J
INTRODUCTION
[1] This
is a review of taxation as contemplated in Rule 48(1) of the Uniform
Rules of Court.
The
taxation arose from the following order that was made by agreement
between both parties and made an order of court:
“1. Die
aansoek word uitgestel na die bestrede rol van hierdie hof op
Donderdag 5 Februarie 2009.
2. Die respondent het geleentheid
tot 19 Desember 2008 om ‘n aanvullende opponerende verklaring af te
lewer.
3. Die applikant het geleentheid tot
Vrydag, 23 Januarie 2009 om ‘n aanvullende repliserende verklaring
af te lewer.
4. Die respondent
betaal die koste veroorsaak deur hierdie uitstel en aanvullende
reëlings soos tussen prokureur-en-kliënt.”
[2] At
the taxation of the applicant’s bill of costs, the taxing master
disallowed (taxed off) some amounts from the fees that
were charged
for various items. The applicant’s attorney objected to the
disallowance of those fees. The taxing master duly
filed a stated
case, after which both parties filed written submissions as
contemplated in Rule 48(5).
[3]
The
details of the items of the bill of costs that were disputed are set
out hereunder.
Item
3:
“
Arranging,
sorting and pagination of documents”. Fee charged: R125.00; Amount
disallowed: R87.00; Taxing master’s reason:
The most
cost-effective method of litigation should always be followed and
thus a candidate attorney could have been requested
to do it..
Item
8:
“
Telephone
consultation with client regarding trial date and a short
discussion”; Fee charged: R50.00; Amount disallowed: R25.00

Reason: An average of 3 minutes was allowed since the duration of the
discussion was not specified,. See
City
Deep Ltd v Johannesburg City Council
1973 (2) SA 109
(W) at 119 G. Also see High Court Rule dated
24/1/2000 that stipulates minimum charge of R20.00.
Item
9:
“Perusal
of letter from client”; Fee charged: R25.00; Amount disallowed:
R25.00; Reason: This item related to the main action
and therefore
did not amount to wasted costs.
Item
10:
“
Response
to the above letter received in item 9”: Fee charged: R50.00;
Amount disallowed: R50.00; Reason: This item did not amount
to wasted
costs as it was in relation to the main action.
Item
11:
“A
letter to an attorney Penzhorn in Pretoria that appears for Afgri and
that also has a
n
interest in this application”; Fee charged: R50.00; Amount
disallowed: R50.00 plus disbursement of R8.00; Reason: Attorney

Penzhorn was not a party to this matter and Mr. Lubbe on behalf of
applicant could not provide any evidence to the contrary.
Item
13:
“Perusal
of the heads of argument by the advocate for the applicant”; Fee
charged: R375.00; Amount disallowed: R375.00; Reason:
This
did not amount to wasted costs because it relates to the main action
and can be used again.
Item
14:
“Copies
for the respondent, the advocate and for the file”
;
Fee charged: R56.25; Amount disallowed: R56.25; Reason: This did not
amount to wasted costs because it related to the main action.
Item
15:
“Drafting
of filing notice”
;
Fee charged: R50.00; Amount disallowed: R50.00; Reason: This did not
amount to wasted costs because it was in relation to the
main action.
Item
16:
“Letter
to attorney Penzhorn to report”
;
Fee charged: R50.00; Amount disallowed: R50.00 plus disbursement of
R30.00 Reason: Attorney Penzhorn was not a party in this
matter and
no evidence could be provided to the contrary.
Item
17:
“Perusal
of attorney Penzhorn’s response”. Fee charged: R25.00; Amount
disallowed: R25.00; Reason: Attorney Penzhorn was not
a party to the
matter.
Item
19:
“Perusal
of respondent’s heads of argument as well as practice notes”:
Fee
charged: R400.00; Amount disallowed: R400.00 Reason: This did not
amount to wasted costs because it was in relation to the
main action.
See
Greenberg
v Mortimer
1979 (4) SA 642
(T).
Item
20:
“Copy
of item 19 for the advocate”
;
Fee charged: R20.00; Amount disallowed: R20.00; Reason: This did
not amount to wasted costs because it was in relation to the
main
action. See
Van
Heerden and Another v Tarr
1959 (2) SA 328
(E).
Item
21:
“Consultation
with advocate and client”
;
Fee charged: R120.00; Amount disallowed: R450.00; Reason: An amount
of R500.00 per hour was allowed which is the normal tariff
for a
consultation was allowed together with a surcharge of 50%.
Item
23:
“Further
discussions after discussion with advocate and client”
;
Fee charged: R600.00; Amount disallowed: R225.00; Reason: The
duration of the discussion time was not specified, therefore
a fee
for a duration of 30 minutes was allowed, together with a 50%
thereon, which added up to an amount of R375.00 An informal
rule of
practice was applied, which is to the effect that when there is no
written agreement between the parties one takes into
account the
seniority of the attorney and allows the normal tariff plus a
surcharge of 50% thereon.
Item
28:
“Telephone
conversation with client”
;
Fee charged: R50.00; Amount disallowed: R25.00; Reason: Duration of
discussion not specified, thus fee for three minutes’ discussion

allowed. See
City
Deep Ltd v Johannesburg City Council
,
supra
.
Item
32:
“Letter
to client providing feedback”
;
Fee charged: R50.00; Amount disallowed: R50.00; Reason: In item 28 a
charge for a telephone call with client on the same day was
allowed.
A letter and a telephone call on the same day amounts to unnecessary
duplication.
Item
34:
“Consultation
with advocate”. Fee charged: R600.00
;
Amount disallowed: R524.00; Reason: A fee of R76.00, payable for
candidate attorneys, was allowed since it was not at all necessary

for the attorney to have personally delivered the court order. See
Liquidator
for Benghiat Ltd v Liquidators of Sterling Trading Co
1922 WLD 177
at 181.
Item
35:
“Drawing
fee of the draft order”
;
Fee charged: R125.00; Amount disallowed: R75.00; Reason: According to
the general tariffs, the drawing fee is R50.00 per page.
The mere
drafting of a court order does not warrant a fee of R125.00.
Item
36:
“Telephone
conversation to attorney Penzhorn”
;
Fee charged: R50.00; Amount disallowed: R50.00; Reason: Attorney
Penzhorn was not a party to this matter.
Item
38:
“Letter
to attorney Penzhorn”
;
Fee charged: R50.00; Amount disallowed: R50.00 plus disbursement of
R4.00; Reason: Attorney Penzhorn was not a party to this matter.
Item
42:
“Payment
to the advocate for the drafting of the heads of argument”
;
Counsel’s fees: R6 000.00; Amount disallowed: R6 000.00; Reason:
An advocate is not allowed to charge separately for drawing
up heads
of argument. According to the Advocates guidelines the drawing of
heads of argument is included in the first day fee.
Item
43:
“VAT
amount on item 42”
;
Disbursement charged: R840.00; Amount disallowed: R840.00; Reason:
This is the VAT amount on item 42. As a result of item 42
taxed off,
the amount claimed for VAT was also taxed off.
Item
44:
“Payment
to advocate for
appearance at the application”; Counsel’s fee charged: R18
000.00; Amount disallowed: R3000.00; Reason: The general tariff

allowed for an advocate’s appearance in court is R15 000.00 per day
depending on experience. Therefore an amount of R15 000.00
was
allowed and the balance of R3 000.00 was taxed off.
Item
45:
“VAT
amount on item 44”. Dis
bursement
charged: R2 520.00 Amount disallowed: R420.00 Reason: As a result
of the adjustment of the advocates fees taxed off
on item 44, an
amount of R420.00 was also taxed off from the amount of VAT claimed.
Item
46:
“Disbursement amount
in terms of a letter that was sent to the client with a copy of the
court order”. Fee charged: R50.00
plus disbursement of R4.00
Amount disallowed: R2.00 Reason: The practice rules of the High
Court allow between R1.85 and R2.00
per letter sent. No postages are
allowed as it is an inclusive fee in the drawing of letters.
[5]
LAW
APPLICABLE TO THE ISSUES
5.1
WASTED
COSTS OCCASIONED BY A POSTPONEMENT
In
Van
Heerden and Another v Tarr
,
supra
,
at 330 G wasted costs were defined as follows:
“
I think the
meaning to be given to the term 'wasted costs' emerges from the
ordinary meaning of the words used. Costs are 'wasted'
when the
services which occasioned them are of no more use to the parties in
the action.”
In the
case of
Protea
Life Co Ltd v Mich Quenet Financial Brokers en Andere
2001 (2) SA 636
(O) at 648 D – E it was held, with regards to
wasted costs, that it must always be kept in mind that wasted costs
do not relate
only to work which has been wasted, but also to
additional costs which have been incurred as a result of the actions
of the party
who was to blame.
ATTORNEY AND CLIENT COSTS
It is
trite that a distinction is drawn between attorney and client costs
taxed against
one’s
own client and attorney and client costs payable by an opponent. It
is clear that the attorney-and-client costs payable
by an opponent
are not as generous as in the case of attorney-and-own client costs.
See
Ben
McDonald Inc and Another v Rudolph and Another
1997 (4) SA 252
(T)at 257 G – 258 F where Van Dijkhorst J
summarised them as follows:
“
In cases where
the losing party in litigation is to pay them to the successful party
this means
all
reasonable costs
incurred on behalf of the client although not strictly necessary or
'proper'. In practice this means that these costs are taxed
according
to the tariff, but generous where there is some leeway. Items not in
the tariff may be included and so may amounts which
would be reduced
on taxation on a party and party basis.” (my underlining)
This
principle was confirmed in this Division in the unreported case of
Harris
v Harris
,
Case no. 3963/99 as well as the case of
Protea
Life Co Ltd v Mich Quenet Financial Brokers en Andere
,
supra
,
at 643 B – D.
DISCRETION EXERCISED BY THE
TAXING MASTER
It is
trite law that when a bill of costs is taxed, the taxing master
exercises a discretion. This is equally applicable irrespective
of
the scale of costs applicable to the bill of costs concerned. For
this reason, a court will not readily interfere with this
discretion,
except where such discretion was not applied judiciously or where the
decision of the taxing master was clearly wrong.
See
Harris
v Harris
,
(
supra
at p. 5).
[6]
APPLICATION
OF THE LAW TO THE ISSUES
Item
3:
The
respondent submitted that it is unreasonable to expect the
arrangement, sorting and pagination of documents to be attended to
by
a candidate attorney as candidate attorneys do not always execute the
task correctly and therefore need the supervision of an
attorney.
This submission would carry water if this item was
considered
in isolation. However, it must be taken into account that in item 6
the fee that has been allowed for the arrangement
of the brief, i.e.
R125.00 is the full fee chargeable by an attorney and not a candidate
attorney, so the taxing master has thus
already taken cognizance of
an attorney’s involvement in the matter. It would thus be
unnecessary to expect an attorney (as
opposed to a candidate
attorney) to be involved each time the same documents are arranged,
sorted and paginated. The disallowance
of part of the fee under this
item is thus upheld.
[7]
Item
8 and 28:
In the
case of
City
Deep Ltd v Johannesburg City Council
,
supra
,
at 119 G the court had the following to say:
“
A bill of costs
must be a complete bill of the whole of the fees, charges and
disbursements in respect of the particular business
done. The
business or action to which it relates should be specified item by
item. Each item must be dated and should state its
subject-matter
precisely and not in vague and general terms. Each item must be
charged specifically.”
My own
view is that a party who fails to specify
his/her
bill of costs as afore-mentioned
,
does so at his/her own peril and cannot quarrel with the taxing
master if part of the fee is taxed off, especially if the amount

allowed was not arbitrary but benchmarked against the stipulations of
a practice rule. The disallowance of the fees by the taxing
master
is accordingly upheld.
Items 9 and 10:
The
applicant’s submissions
do
not seem to be consonant with the stated case’s averment that the
letters referred to in these items, in fact, have to do with
the main
application and do not form part of the wasted costs. The taxing
master’s disallowance of the fees is accordingly upheld.
Items 13, 14, 15, 19
and 20:
I agree with the
applicant’s submission that the aforesaid items do not fall within
the definition of wasted costs as laid out
in the cases mentioned in
paragraph 5.1. The heads of argument will obviously still be
applicable when the main application is
argued and therefore do not
constitute services that are no longer of any use to the parties in
the main action. The disallowance
of the fees in these items is
accordingly upheld.
Items 36 and 38:
As with items 9 and 10
above, the submissions of the applicant’s attorney under these
items do not detract from the fact that
the letters concerned had
nothing to do with the postponement of the matter and are related
only to the main application. The
disallowance of the fees by the
taxing master is therefore upheld.
Item 21:
I
disagree with the respondent’s submission that the principle laid
out in the
Ben
McDonald Inc and Another v Rudolph and Another
,
supra
,
is that one can only depart from the tariff in an attorney and own
client taxation or in a taxation against one’s own client.
This
contention is negated at page 257 I – J of that judgment by the
following statement:
“
In practice this
means that these costs are taxed according to the tariff, but
generous where there is some leeway. Items not in
the tariff may be
included and so may amounts which would be reduced on taxation on a
party and party basis.”
It is
quite clear that even in ordinary attorney
-and-client
costs (as opposed to attorney-and-own client), the taxing master
still has a discretion. In my view the taxing master
exercised her
discretion judiciously and there is therefore no reason for me to
tamper with it. The taxing master’s allowance
of the party and
party plus a surcharge of 50% thereon is therefore upheld.
Item 23:
This item is upheld on
the same grounds as mentioned in respect of item 21.
Item 32:
I
agree with the applicant’s submission that there is nothing wrong
with keep
ing
their clients posted of development in matters that they are handling
on behalf. I do not consider it overly-cautious for a
practitioner
to confirm the telephonic discussion in writing. This, in my view,
does not constitute duplication and the disallowance
of the sum of
R50.00 is thus set aside.
Item 34:
This item should not be
considered in isolation but in conjunction with item 21, for which
the taxing master allowed a fee. I agree
with the respondent’s
submission that a fee chargeable to a candidate attorney was
adequate. There was no longer any need for
any further elaborate
discussion as the fee for that had already been allowed under item
21. The taxing master’s disallowance
of part of the fee charged,
is thus upheld.
Item 35:
The taxing master’s
disallowance of part of the fee is upheld on the ground that the
drafting of the order in accordance with
the parties’ agreement was
administrative in nature and that the normal tariff of R50.00 per
page is adequate.
Item 42 and 43:
I am
astounded by the applicant’s attorney’s alleged ignorance of the
Free
State Bar Association’s Guidelines
for
fees. This ignorance will unfortunately not come to his aide in any
way as there are authorities which support the proposition
that heads
of argument should not be charged for separately. See
J
D Van Niekerk en Genote Ing v Administrateur, Transvaal
1994 (1) SA 595
(A). Also see
Ocean
Commodities Inc and Others v Standard Bank of SA Ltd and Others
1984 (3) SA 15
(A) at 19 C – D and 20 E. In this regard, the dicta
of Van Dijkhorst J in the case of
Ben
McDonald Inc and Another v Rudolph and Another
,
supra
,
at p. 258 F – G are apposite:
“
There is a
perception, possibly true, that attorney and client costs taxed on
the basis of 2.2 above do not adequately indemnify
the successful
party. If this is so the blame should be placed either on the Taxing
Master (should he or she tax too stringently)
or on the legal
representatives (should they charge exorbitant fees). In the former
case the remedy is a review. In the latter
case the forum is the
professional body.”
Perhaps
it is
high
time that the applicant’s attorneys fully acquainted themselves
with all the operations of the Free State Bar Association.
Certainly,
no fault is attributable to the taxing master regarding this item.
Her disallowance of part of counsel’s fees in this
matter is
therefore upheld.
Item
44:
In her
stated case, the taxing master merely stated that the general tariff
allowed for an advocate’s appearance in court is R15
000.00 per
day,
depending
on experience
.
Nothing more is said about the experience of counsel concerned.
Crucially, the taxing master does not contend that a fee of
R18
000.00 is not justifiable for the advocate in question. I therefore
cannot conclude that the taxing master exercised her discretion

judiciously when she taxed off the amount of R3 000.00. Moreover,
the very
Free
State Bar Association Guidelines
do recognise that the fees charged by counsel, may vary depending on
counsel’s experience, the complexity of the matter etc.
These
guidelines do not stipulate a maximum fee that can be charged by
counsel. Quite clearly then the taxing master misdirected
herself
with regards to this item and her disallowance of the amount of R3
000.00 is hereby set aside.
Item 46:
I
agree with the taxing master that there was no
longer
any urgency warranting a fax. After all, the client had already been
advised of the postponement telephonically. The disallowance
of the
disbursement is therefore upheld.
[8]
RULING
Items
32 and 44
are accordingly referred back to the taxing master to be dealt with
in accordance with this judgment. No order is made as to the
costs
of the review, as both parties were partially successful.
_____________
____
M.B.
MOLEMELA
,
J
MBM
/sp