Vrystaat Mielies (Pty) Ltd v Da Silva and Others (2100/2006) [2007] ZAFSHC 114 (13 September 2007)

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[2007] ZAFSHC 114
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Vrystaat Mielies (Pty) Ltd v Da Silva and Others (2100/2006) [2007] ZAFSHC 114 (13 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
Case No. : 2100/2006
In
the matter between:-
VRYSTAAT
MIELIES (PTY) LTD
Applicant
and
C
A DA SILVA & 34 OTHERS
Respondent
______________________________________________________________
JUDGMENT
BY:
RAMPAI
J
_____________________________________________________
DELIVERED
ON:
13
SEPTEMBER 2007
_____________________________________________________
[1] These
proceedings are about a review of the decision of the taxing master
made on 26 April 2007. In the main application my brother
Kruger J
gave judgment in favour of the respondents under case no. 4455/2005.
The applicant was ordered to pay the costs of the
application
including such costs as were occasioned by the employment of two
counsels. The judgment was delivered on 24 November
2005.
[2] Pursuant
to such judgment the respondents drew up their bill of costs. The
bill was presented to the taxing master for taxation
on 26 April
2006. It consisted of two parts. The one part originated from their
attorneys at Bethlehem, Messrs Hattingh Marais.
The other part
emanated from their attorneys here in Bloemfontein, Messrs Naudes.
[3] The applicant
objected to certain items on the respondents’ bill. As regards the
costs claimed by Messrs Hattingh Marais, 20
items came under attack
and as regards Messrs Naudes 17 items. Notwithstanding such
objections the taxing master taxed and allowed
the bill in the total
sum of R151 280,33. The disputed items were largely allowed. The
respondents were represented by Mr. Pienaar
and Mr. Lubbe during the
taxation. The applicant was represented by Mr. Bronkhorst and Mr.
Fuls, a taxing consultant.
[4] The applicant applied
in terms of Rule 48 for the review of the decisions of the taxing
master. Six grounds of review were relied
upon. I shall deal with
them seriatim in accordance with the applicant’s notice of review
filed on 19 May 2006. The respondents
filed no statement of response
in terms of Rule 48(5)(a). However, they informed the registrar that
they would abide by the decision
of the court. This was conveyed by
way of a letter dated 31 July 2006 by Messrs Naudes.
[5] The taxing master
filed a stated case in terms of Rule 48(3). The stated case was
undated. If, however, the respondents’ response
letter dated 12
January 2007 coupled with the applicant’s reply to the stated case
dated 7 February 2007 as well as the note by
Malherbe JP dated 13
December 2006 are used as assistive guidelines, one can safely take
an informed guess that the taxing master’s
stated case was signed
and served between 13 December 2006 and 12 January 2007.
[6] After
service of the taxing master’s stated case upon them, the
respondents again indicated by way of a letter from Messrs Naudes
to
the registrar that they would abide. The applicant filed its reply
on 7 February 2007. Thereafter the taxing master supplemented
his
stated case in terms of Rule 48(1). He served it on the parties.
The supplement was also undated. Its date of service does
not appear
ex
facie
the document. However, it was filed on 22 June 2007. On 26 June
2007 the matter was allocated to me in my absence while I was
recuperating
at home following an orthopaedic operation of my
decompressed right shoulder.
[7] The
first objection was against the taxing master’s decision to allow
the following items:
7.1 As
regards the bill of Messrs Hattingh Marais, please see notice of
review page 1.
“
1.1 Hattingh Marais - Items 16, 18,
19, 20, 26, 28, 31, 33, 34, 35, 38, 40, 42, 43, 55, 56, 58, 59, 60 &
67”
As
regards the bill of Messrs Naudes,
vide
notice of review page 1.
“
1.2 Naudes - Items
25, 27, 28, 34, 37, 38, 43, 48, 50, 52, 59, 60, 65, 76, 83, 85 &
94”
In general, the majority
of these items concerns drawing up of documents or perusing of
documents. The fee for the unit drawing
of a document is R50,00; for
the unit attendance R25,00 and for the unit perusing also R25,00.
The basic unit for charging a fee
in respect of any necessary
drawing, attending or perusing is a page.
[8] The objection against
the above items was that the existing practice in this division
whereby a page was regarded as a page irrespective
of the number of
words for the purposes of the drawing up of a document or the
perusing thereof, leads to the allowing of higher
fees than the
tariff prescribes. The taxing master considered the objection, took
into account the provisions of Rule 70(9) together
with those of Rule
70(5) and dismissed the objection. He found that strict application
of Rule 70(9) could produce absolutely absurd
results. He applied
what is termed the “well-drafted principle” and found that Rule
70(5)(a) gave him discretion to depart from
the strict provisions of
Rule 70(9) on which the applicant relied in support of the objection.
[9] The
objection revolves around the interpretation of Rule 70(9). The Rule
reads as follows:
“Save
for the forms set out in the first schedule to these rules, a page
shall contain at least 250 words and four figures shall
be counted as
a word.”
[10] The
legislature has made no attempt to define the word “page”.
According to “The New Shorter Oxford English Dictionary”
the word
“page” means
“Either
side of a leaf of a book, manuscript, letter etc. Also, a complete
leaf of a book etc.”
This
ordinary meaning of the word “page” differs from the special
meaning of the word as contained in the above rule. However,
the
rule does not purport to define the word strictly in a legal sense.
It does no more than to say a page is one side of a leaf
of a
document with a minimum of 250 words. Ordinarily speaking a leaf of
a document or a single sheet is a page irrespective of
the number of
words written or printed thereon. Rule 70(9) primarily regulates the
counting of pages where a multi-leaf or multi-sheet
document has to
be considered for taxation purposes. I understand the rule to
require the counting of words and not the sheets from
the second
sheet in order to determine the number of pages it has.
[11] I
found a particularly helpful exposition of the above rule in the
matter of
R.
SCHELLAUFF v W.E. WILDHABER NO & OTHERS
an unreported decision of the TPD delivered on 25 March 1998. I
quote what Botha J instructively had to say on page 7 – 8 about
the
word “page” as used in the rule:
“Any
document by definition has to have at least one page in the literal
sense.
Where
remuneration in relation to the handling of a document is to be
assessed
per
page
,
it seems to be inevitable that the first page must be considered even
if it contains less than 250 words. Rule 70(9) comes into
play when
a document contains more than one page in the literal sense. Then
the words are counted to determine how many pages it
contains for the
purposes of the tariff.
Such
an interpretation
is
harmonious and it leads to no absurdity
.
At worst it can lead to a situation
where in a multipage document the last words falling short of 250,
will go unremunerated.
It
must be stressed that Rule 70(9) contains no definition of ‘page’.
It merely provides a yardstick for the counting of the
number of the
pages when there is more than one page.
To
make it clear: if a document contains less than 250 words, it counts
as one page, no matter over how many physical pages it is
spread. If
it contains 999 words, it counts as three pages, no matter over how
many physical pages it is spread.”
I am in respectful
agreement.
[12] In the stated case
the taxing master remarked as follows about the said rule:
“Dit
is my respekvolle opinie dat die streng navolging van Hofreël 70(9)
supra
op absolute absurditeit neerkom.
Dit het die gevolg dat ‘n dokument
wat minder as 250 woorde bevat, nie as ‘n bladsy gereken word nie.
Om hierdie rede kan ‘n
prokureur dus nie vergoeding kry vir die
opstel en deurlees van so ‘n dokument nie.”
Here
I am in respectful disagreement with the taxing master. The strict
interpretation of the rule does not mean that an attorney
presenting
a bill of successful party cannot be appropriately remunerated for
the drawing or perusing of a multiple page document.
Where, for
instance, page one of such a document has 250 words, page two 200
words, page three 150 words, page four 100 words, page
five 50 words,
page six 249 words, page seven 248 words, page eight 247 words, page
nine 230 words and page ten 220 words, the rule
does not restrict the
attorney’s remuneration for perusing to R25,00 x one page because
the ten page long document contains only
one page, namely page one,
with 250 words - and secondly, the rule does not then ignore the
remaining nine pages because each of
them has less than 250 words.
To allow a minimum fee for only one page in such a situation would
certainly be absolutely absurd.
But that is certainly not what the
rule lays down.
[13] It is in such
situation that the rule requires that the words on each sheet must be
counted to determine whether such a sheet
qualifies as a page or not.
The formula is a simple one. A group of four figures counts as one
word. Let us revisit the example
I made in the preceding paragraph.
Now adding up the number of words embodied in the nine individual
sheets with less than 250 words
gives us a gross total of 1694 words.
Dividing 1694 words by 250 words equals 6,776 pages. Mathematically
this may be rounded off
to 7,0 pages. The strict interpretation of
all this means that from the second to the tenth sheet of the
document we have seven
and not nine pages. The document has one plus
seven which equals eight pages. Therefore the attorneys remuneration
for perusing
the multi-leaf document, must be eight pages multiplied
by the unit charge of R25,00.
[14] The aforegoing
exposition is the strict but equitable remuneration formula the rule
prescribes. This taxation method of remuneration
is, in my view,
more accurate and equitable than the taxation method called the
“well-drafted principle” which the taxing master
employed in this
matter. In the stated case the taxing master, Mr. G. Thompson,
explains what the latter method entails as follows:
“Hierdie
afdeling se Takseermeesters pas die
‘well-drafted’-
beginsel toe. Dit behels kortliks dat daar gelet word op die
uiteensetting, spasiëring, die grootte van woorde en asook die die
essensie van die inhoud van elke dokument. Met ander woorde of die
dokument
redelikerwys
opgestel is.
”
[15] The
greatest problem I have about the method in question is this: It
virtually eliminates the words counting process from the
equation.
And because it does it drastically offends the spirit and object of
Rule 70(9). It seems to me this method may easily
lead to divergent
interpretation by different taxing masters as whether the essence of
a particular sheet of print qualifies as a
page or not.
[16] The
taxing master clearly did not apply Rule 70(9) properly. He reckoned
it was too harsh to the winner’s attorney. He sought
to explain
and to justify his rather misguided approach by invoking Rule
70(5)(a) which stipulates:
“The
taxing master shall depart from any of the provisions of this tariff.
The subrule explicitly confers a discretion on the taxing
master to
depart from any provisions of the tariff where strict adherence to
such provisions would be inequitable.”
I have already
demonstrated that there is fundamentally nothing inequitable about
the provisions of Rule 70(9) if properly interpreted.
Moreover, the
taxing master’s reliance on Rule 70(5)(a) appears to me to be
misguided since there is nothing extraordinary or
exceptional about
this case. The applicant contended that the taxing master’s
approach was wrong. The respondents made no effort
to defend the
taxing master’s ruling in respect of the first objection. I would
therefore set the ruling aside.
[17] It is not sufficient
for the attorney drafting a bill for taxation to merely specify the
number of pages a multi-leaf document
has. It is imperative for such
a draftsman or draftswoman also to specify the number of words there
are from the second to the last
leaf of a document concerned. Then
and only then may the tariff appropriately, be applied. Unless this
is done, and I appreciate
how cumbersome such word counting process
can at times be, the rule will certainly be misapplied. The mere
sheet counting process
distorts the number of actual pages. The
exaggeration of pages leads to the charging or claiming by an
attorney and allowing by
the taxing master of a higher fee than the
tariff actually prescribes.
[18] The
applicant contends in its reply before me that it went through the
tedious word counting process of the disputed items and
tabled the
results before the taxing master, but that the taxing master did not
take note. Although he was referred to the decision
in
NDZAMELA
v EASTERN CAPE DEVELOPMENT CORPORATION LTD AND ANOTHER
2004 (6) SA 378
(TkH), he felt that in this division it was not the
taxing master’s duty to count words on taxation. That may well be
so, but
he was obliged to recognise and to consider the available
results of the physical counting done by the applicant. Since the
respondents
had apparently not taken the trouble of counting the
words as the applicant had done, the contention of the applicant
should have
prevailed and the bill of the respondents should have
been taxed off or marked down accordingly. The taxing master’s
failure to
do so constituted a reviewable irregularity.
[19] The
effect of the method used by the taxing master led to the excessive
remuneration of the respondents’ Bethlehem attorneys,
Hattingh
Marais, as the following tabular demonstration shows:
Item 18 4
pages instead of 2 pages allowed
Item
19 2 pages instead of 1 page allowed
Item 20 221
pages instead of 162 pages allowed
Item 26 9
pages instead of 7 pages allowed
Item 33 2 pages
instead of 1 page allowed
Item 34 2
pages instead of 1 page allowed
Item
35 2 pages instead of 1 page allowed
Item 38 2
pages instead of 1 page allowed
Item 40 317
pages instead of 195 pages allowed
Item 42 25
pages instead of 20 pages allowed
Item
43 23 pages instead of 16 pages allowed
Item
55 2 pages instead of 1 page allowed
Item
56 11 pages instead of 5 pages allowed
Item
58 81 pages instead of 60 pages allowed
Item
59 39 pages instead of 31 pages allowed
Item
60 2 pages instead of 1 page allowed
Item
69 2 pages instead of 1 page allowed
746
pages
instead of
506
pages
allowed
[20] The same can be said
about the bill of the respondents’ Bloemfontein attorneys, Naudes.
The disputed items were:
Item 27 2
pages instead of 1 page allowed
Item
28 221 pages instead of 161 pages allowed
Item
34 2 pages instead of 1 page allowed
Item
37 3 pages instead of 2 pages allowed
Item
38 2 pages instead of 1 page allowed
Item
43 2 pages instead of 1 page allowed
Item
48 2 pages instead of 1 page allowed
Item
50 2 pages instead of 1 page allowed
Item
52 317 pages instead of 195 pages allowed
Item
59 25 pages instead of 20 pages allowed
Item
60 23 pages instead of 16 pages allowed
Item 65 2
pages instead of 1 pages allowed
Item 76 11
pages instead of 5 pages allowed
Item
83 81 pages instead of 60 pages allowed
Item
85 34 pages instead of 31 pages allowed
Item
94 2 pages instead of 1 page allowed
731
pages
instead
of
498
pages
allowed
[21] I
would therefore set aside the ruling of the taxing master in respect
of each of the items specified above and substitute the
incorrect
number of pages with the correct number as shown above. This
disposes of the first ground of objection.
[22] I
turn now to the second ground of the objection. It concerns the
perusal of documents in
THORNYCROFT
CARTAGE CO v BEIER & CO (PTY) LTD AND ANOTHER
1962 (3) SA 26
(N) the word perusal was said to mean:
“The
application of a trained legal mind to the contents of the document
in question.”
[23] Item 16 Hattingh
Marais bill contained perusal of 3259 pages. The application which
gave rise to this bill was launched in order
to determine whether the
parties had concluded an arbitration agreement or not and if the
answer was affirmative, then to determine
whether such an arbitration
agreement was still operative.
[24] On
behalf of the applicant it was contended that the bulk of the
documents referred to in item 16 had a bearing on the merits
of the
arbitration and that they had no bearing on the application before
Kruger J. The documents had already been in the respondents’
attorney for quite some time in order to be used in connection with
the anticipated arbitration proceedings. As regards arbitration
hearing consultations had already been held as between the parties.
In other words, before the application was launched, the attorneys
for the respondents were already
au
fait
with the contents of the documents now in dispute. So went the
contention of the applicant. Where a document had already been
perused
for one main purpose or dispute, a full perusal fee in
connection with its use for an ancillary side-show, cannot be
allowed.
GOLDSCHMIDT
AND ANOTHER v FOLB AND ANOTHER
1974 (3) SA 778
(T).
[25] Of
the total 3259 pages of documents alleged to have been perused, only
800 pages were annexed to the application. A staggering
figure of
2459 of the total pages perused was discarded. The fact that more
than 75% of the pages perused was not annexed can only
mean that such
discarded pages were considered irrelevant for the purposes of the
application by the respondents themselves. If
that was the case, I
find it difficult to understand why the applicants should be held
responsible for the payment of the full perusal
fee for the documents
which were not necessarily perused and annexed to the founding
affidavit in the main application.
[26] It
must therefore be accepted for the purposes of a fair, just and
equitable taxation that the 800 pages that were annexed to
the
application were the only documents that could have been perused.
That, however, is not where it all ends. Of the 800 pages
that were
actually annexed, 28 were blank sheets, 27 were repetition of some
annexures to the standard contract between the applicants
and each of
the respondents and 103 pages were re-perusing of the documents
previously exchanged between the parties by way of correspondence.

When these 158 pages are taken into account, there remain only 642
pages of the original 3259 pages. The three errors, especially
the
error pertaining to the blank sheets, cast a shadow of doubt as to
whether the pages in the item were indeed actually perused.
[27] A
litigant who dumps every single scrap of paper on the desk of his
attorney, however irrelevant, and expects his attorney to
find a
needle in a haystack, does so at his peril. Whereas the attorney is
bound to peruse every scrap of such document, he is not
entitled to
recover or claim the full fee for perusing the irrelevant documents
from the losing opponent. Of course the attorneys
is entitled to
claim such fees on the scale as between attorney and client and not
on the scale as between party and party.
[28] Although the
respondents argued on taxation for the full perusal fee in respect of
this item, on review they did not mount any
challenge to the
applicant’s contention. They chose to abide. In the light of all
this I am inclined to uphold the contention
of the applicant. The
full perusal fee should not have been allowed by the taxing master.
Therefore I would reverse the taxing
master’s ruling by disallowing
a perusal fee in respect of 2617 pages (3259 – 642). This disposes
of the second ground of the
objection.
[29] The third ground of
the objection concerns items 58 and 59 of Hattingh Marais’ bill.
The two items relate to perusing of the
heads of argument. The
taxing master in the stated case remarked that there existed
differences of opinion as regards the perusing
of heads of argument.
He preferred the view that it was necessary and proper as between
party and party for an attorney to peruse
heads of argument. He
accordingly allowed a perusal fee of R2 025,00 and R975,00 for items
58 and 59 respectively.
[30] The
contention of the applicant was that the taxing master erred in
allowing such items because perusing heads of argument was
an
attorney client fee and as such should have been disallowed on
taxation. I am in respectful agreement.
MAGWILL
CARRIERS (PTY) LTD v NATIONAL TRANSPORT COMMISSION AND ANOTHER
1982 (1) SA 166
(T) at 170 G. I would therefore set the taxing
master’s ruling aside. In my view, the two items should not have
been allowed.
These two items represent pure attorney and client
fee. The respondents were not awarded costs on the more lucrative
albeit punitive
attorney and client scale of fees. The heading of
the bill also shows that the lower party and party tariff applied.
[31] The fourth leg of
the objection concerns item 25 of Naudes bill. The item relates to
the attendance on receipt of documents
by a local attorney of
documents emanating from an instructing attorney. The item was
divided into two classes of documents. The
first class consists of
1902 pages described by the respondents as statements and schedules
(state en skedule). The second class
consists of 1357 pages
described by the respondents as contracts, correspondence, etc.
(kontrakte, korrespondensie ens.).
[32] I
am not certain as to why the documents were characterised in that
fashion. The full fee for the necessary attendance to the
first
class of documents, 1902 pages, ordinarily should have been R47
550,00. However, the respondents chose to claim half of the
fee due
to them, which was R23 775,00. As regards the second class of
documents, 1357 pages, the respondents claimed a full fee
of R33
925,00. Here there was no halving of the fee. Therefore, the total
fee claimed under this item for the necessary attendance
was R57
700,00.
[33] The respondents
claim was resisted by the applicant. The crux of the objection was
that it was unnecessary for the local attorney
to attend to such
documents because right from the outset the instructing attorney had
been in complete control of the case. The
grounds of the objection
is fully set out in paragraph 4 of the applicants’ reply filed on 7
February 2007. It reads as follows:
“
4.
NAUDES
ITEM 25:
4.1 Die opdraggewende prokureur was
vanaf die staanspoor in beheer van die saak. Hy het saam met die
korrespondent die Advokaat
gaan sien en die met instruksies verskaf
vir die opstel van die aansoek sowel as die repliserende
eedsverklaring en laastens was
hy teenwoordig tydens die
argumentering van die saak in die hof.
4.2 Die
rol wat die korrespondent moes vervul was om bevestigende
eedsverklarings te laat onderteken en die dokumente te laat liasseer.
Daarom hoef die korrespondent nie al die dokumente na te gaan nie.
4.3 Die doel van
die deurlees van die dokumente is om die stukke op te stel. Dit is
reeds deur die opdraggewende prokureur gedoen,
sowel as die advokaat
wat die stukke opgestel het. Indien die korrespondent iets kon
gelees het sou dit slegs die finale Kennisgewing
van Mosie gewees het
soos dit opgestel is deur die Advokaat en nie die 3259 bladsye waarna
verwys word nie. Sien ‘
Grobbelaar
v Sentrale Raad vir Koöperatiewe Assuransie BPK
1973 (1) SA 310
(T)
BY 313 F – H’.
4.4 Die
Takseermeester het sy diskresie verkeerdelik toegepas om die helfte
van die item toe te laat.”
[34] On
taxation the taxing master took the total sum of R57 700,00 divided
further by two and allowed a fee of R28 850,00. He motivated
his
mathematical calculation as follows:
“Die
applikant se argument is dat dit nie nodig was vir plaaslike
opdragnemende prokureurs om hierdie dokumentasie deur te lees
nie,
eerstens dat die opdragewende prokureurs dit wel deurgelees het en
tweedens dat die advocate die stukke opgestel en die aanhangsels
nagegaan en aangeheg het. Dit is verder die argument was dat Naudes
slegs die korrespondent was en dus nie nodig gehad om die dokumente
te lees nie.
My
beslissing was om slegs die helfte (50%) van die totale fooi, soos
gehef, toe te laat. Dit wil sê R23 775-00 + R33 925-00 =
R57 700-00
÷ 2 = R28 850-00 Die applikant se argument, dat Naudes slegs die
korrespondent was, dra volgens my oordeel, geen gewig
om nie ‘n
deurlees fooi toe te laat nie. Die respondente kwalifiseer vir die
aanstelling van twee stele prokureurs en kan nie
sien waarom die
plaaslike prokureurs, wat suksesvol die geding namens hul kliënte
gevoer het, gepenaliseer word.”
The approach was wrong.
The taxing master overlooked the fact that a component of the sum he
halved R23 775,00 was already half of
the full fee of R 47 550,00
which the respondents on their own had halved prior to the
presentation of the bill. The practical effect
of the approach is
that in respect of the first class of documents the taxing master
allowed a quarter of the full fee which equals
R11 887,00 and in
respect of the second class half of the full fee which equals R16
963,00. The two add up to the sum of R28 850,00.
[35] I
appreciate the good intentions of the taxing master in the above
approach. However, it will be readily appreciated that, despite
such
good intentions, the approach was unmethodical and unprincipled. The
arbitrary nature thereof produced inequitable results.
In
R.
SCHELLAUFF v W.E. WILDHABER NO & OTHERS
,
supra
on page 6 Botha J observed that there was no provision in the tariff
for allowing a portion of the prescribed basic unit of remuneration.

The fractionalisation of the tariff is therefore impermissible.
[36] I
have previously found that the respondents did not count the words to
verify the number of pages in order to justify the fee
they claimed
for perusing documents. The same can be said about this item. There
is no basis for relying on their bare claim that
the local attorney
received from the instructing attorney and attended to 3259 pages.
Earlier on I found that the applicants’
contention that only 642
were perused was reasonable and acceptable. That figure is also
equally representative of the fairly accurate
and equitable number of
the pages of documents received and necessarily perused under this
item.
[37] Under various items,
for instance, item 2, 3, 4, 9, 10, 31, 32 and so on, fees
specifically pertaining to letters written and
received were claimed
and allowed. That was, of course, correspondence. What ...
“korrespondensie ...” as referred to in item
25 means is rather
obscured and vague. To make matters worse the word “korrespondensie”
is followed by the vague word “ensovoorts”.
Perhaps the word
correspondence in this item referred to letters exchanged between the
applicant and its individual members, the
respondents. I can only
guess. It must be borne in mind that the respondents did not reply
to the stated case by the taxing master
to clarify this item or any
other disputed item for that matter.
[38] The
taxing master’s stated case and the applicants’ reply thereof
shows that the real nature of the fees claimed under this
item was
misunderstood. The taxing master talks of “... deurlees fooi”
whereas the applicants used expressions such as “...
die deurlees
van dokumente ...” and “... die korrespondent iets kon gelees
het ...”. The item does not concern perusing of
documents, but
rather the local attorney’s necessary attendance to the documents
when they were received. This kind of fee relates
to a series of
important little steps taken before the documents are actually
perused. For instance, the fetching of the letter
plus annexed
documents concerned from the post office, the opening thereof in an
attorney’s office, the drawing of the relevant
file from the filing
cabinet, the placing of the letter therein and the placing of the
file before the respondents’ attorney for
perusal.
[39] Indeed
the meaningful role of the local attorney was drastically reduced by
the deep involvement of the instructing attorney,
for instance, he
gave direct instructions to counsel, accompanied by the local
attorney, he attended consultation with counsel and
also attended
court the day the application was argued before Kruger J on 17
November 2005. His active, dominant and participative
role greatly
minimised the role of the local attorney. But there was nothing
wrong with that sort of involvement. Primarily his
clients looked
upon him to protect their interests as best he could. But the
obvious arbitrariness entailed in the approach used,
effaces the
reliability thereof as well as the taxing master’s discretion,
however well intended, it was exercised.
[40] I
am of the view that the taxing master misdirected himself by adopting
the approach as he did and by misconstruing the true
nature of the
fees as itemised in this fourth leg of the objection. I would,
therefore, set the ruling whereby a fraction of the
fees claimed was
allowed for perusing 3259 pages and substitute, therefore, a fee for
the necessary attendance on receipt of 642
pages.
[41] I
proceed now to consider the fifth ground of the objection. It is
about item 28 Naudes bill. It reads as follows:
“Naudes – Item
28
Dieselfde argument soos per Paragraaf
4 hierbo.
Die
Takseermeester beslis dat dit nodig was om te lees.”
The grounds of objection
were formulated as follows:
“5,
NAUDES
ITEM 28:
5.1 Die Advokaat
stel die stukke op en stuur dit terug an (sic) die opdraggewende
prokureurs wat dit nagaan vir korrektheid. Hoekom
moet die
korrespondent dieselfde taak vermag as wat die opdraggewende
prokureur al reeds gedoen het? Dit dui op duplisering.
5.2 Reël
70(3) is van toepassing ‘
no
cost shall be allowed which appeared to the Taxing Master to have
been incurred or / increased through over caution
’.
5.3 Die Takseermeester het dus
verkeerdelik sy diskresie uitgevoer deur die deurlees fooi toe te
laat.”
[42] The taxing master’s
ruling is set out on page 4 of the stated case and reads:
“
Naudes
– Items 28, 83 en 85
Hierdie items handel ook oor die
toelaatbaarheid van ‘n deurleesfooi. Dit is weereens die applikant
se betoog dat, aangesien Naudes
slegs die korrespondent in hierdie
aangeleentheid was, hulle daarom nie geregtig sou wees om die
betrokke dokumente deur te lees
nie.
In
die oorweging van die toelaatbaarheid van hierdie items, steun die
takseermeester grootliks op die bepaling van Reël 70(3):
‘
With
a view to affording the party who has been awarded an order for costs
a full indemnity for all costs reasonable incurred by him
in relation
to his claim or defence and to ensure that all such costs shall be
borne by the party against whom such order has been
awarded, the
taxing master shall, on every taxation, allow all such costs, charges
and expenses as appear to him to have been necessary
or proper for
the attainment of justice or for defending the rights of any party,
but save as against the party who incurred the
same, no costs shall
be allowed which appear to the taxing master to have been incurred or
increased through over-caution, negligence
or mistake, or by payment
of a special fee to an advocate, or special charges and expenses to
witnesses or to other persons or by
other unusual expenses.’
Derhalwe
was die gemelde items toegelaat.
Die partye word versoek om die
bepalings van Hofreël 48(5)(a) na te kom.”
[43] The essence of the
objection was that what the local attorney did was an unnecessary
duplication of what the instructing attorney
had already done. Here
the number of the pages is not an issue. The local attorney’s
attendances to the founding affidavit plus
annexures thereto, as well
as the replying affidavit plus annexures all in support of the
application can never be regarded as duplication
of work already done
by the instructing attorney. Similarly the perusing thereof by the
local attorney does not amount to unnecessary
duplication, in my
view.
[44] The bill shows as
per item 29 that only one set of each sworn statement was received by
the local attorney from the instructing
attorney. The local attorney
necessarily had to peruse such statements and annexures received from
the instructing attorney to ensure
that they were complete in every
important respect before copies were made for service and filing.
Item 30 demonstrates the importance
of such perusing of documents
from an instructing attorney by a local attorney. How else could the
local attorney in this case have
known that a revenue stamp had to be
affixed to the notice of motion unless he physically perused such a
document drawn by counsel
and forwarded to the local attorney via the
instructing attorney? How can a local attorney ascertain that the
copies for service
and filing were complete unless he had taken the
trouble to peruse each statement and each annexure referred to
therein? It must
be kept in mind that the ultimate responsibility to
the court seized with the matter rests with the local attorney and
not the instructing
attorney. It is the former’s name and not the
latter’s that is officially on record as the respondents’ legal
representative.
The local attorney cannot seek refugé behind the
instructing attorney should a litigant’s founding or replying
papers be found
wanting on the day of the hearing or argument.
[45] In allowing the fee
in this item the taxing master relied on the provisions of Rule
70(3). I am of the opinion that he was quite
correct in doing so.
The respondents were legitimately entitled to a full indemnity for
such costs which, it appears to me, were
reasonably incurred in
pursuit of the relief they sought. There was no over-caution here.
It seems to me that the objection in
this regard had no substance and
that the taxing master exercised his discretion properly and
reasonably. In the circumstances I
am inclined to uphold his ruling.
The applicant has failed to show that the taxing master has
committed reviewable misdirection
or irregularity.
[46] Naudes items 83 and
85 – this is the sixth and the final leg of the objection. The two
items concerned attending to the service
of the respondent’s heads
of argument and the perusing thereof. The nature of the professional
services rendered and the grounds
of objections are the same as those
raised in connection with the third leg of the objection.
I found that the taxing
master’s ruling whereby he allowed the fees as recoverable party
and party was incorrect. The same considerations
I articulated in
connection with items 58 and 59 of Hattingh Marais apply with equal
force here. Therefore, I would set aside the
ruling in respect of
both items.
[47] In
the results the following order is made:
47.1 The objection is
upheld as regards the first, second, third, fourth and sixth grounds
thereof.
47.2 The
rulings of the taxing master in respect of the affected items as
specified in the notice of review, are set aside.
47.3 The
affected items are taxed off and the bills are adjusted in accordance
with this judgment.
The objection is
dismissed as regards the fifth ground.
The rulings of the
taxing master in respect of the items attacked in terms of the
fifth ground, are upheld.
The
items referred to in paragraph 47.5
supra
are allowed to stand.
There is no order made
as to costs.
______________
M.H. RAMPAI, J
On
behalf of the applicant: Messrs Horn & Van Rensburg
BLOEMFONTEIN
and
Messrs
Gerrit Coetzee Inc.
POTCHEFSTROOM
On
behalf of the respondent: Messrs Naudes
BLOEMFONTEIN
and
Messrs
Hattingh Marais
BETHLEHEM
/sp