Murray v Murray (R855/05) [2005] ZAFSHC 6 (18 August 2005)

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[2005] ZAFSHC 6
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Murray v Murray (R855/05) [2005] ZAFSHC 6 (18 August 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 855/2005
In
the review between:
ESTIE
MURRAY
Plaintiff
and
JURIE
JOHANNES MURRAY
Defendant
_____________________________________________________
JUDGMENT
BY:
RAMPAI J
_____________________________________________________
DELIVERED
ON:
18 AUGUST 2005
_____________________________________________________
[1] The matter came to
this court by way of a taxation review in terms of rule 48 of the
Uniform Rules of Court. The parties once
lived together as husband
and wife. They were married to each other at Bethlehem on 20 January
2001. On 17 July 2003 the plaintiff
filed for divorce. The matter
was enrolled for hearing over three days beginning on 19 October
2004.
[2] On the first day, 19
October 2004, the matter was settled. Among others, the parties
agreed that the defendant would be responsible
for the payment of the
plaintiff’s taxed costs of the action under case no. 2479/2003 and
that such costs would also include the
costs of the rule 43
application for an interim relief under case no. 3839/2003.
[3] The plaintiff lived
at Bethlehem. She also worked there. Her two sets of lawyers were
Messrs. Crowther & Pretorius of Senekal
and Messrs. Naudes of
Bloemfontein. Their two separate bills of costs were drawn up and
presented for taxation.
[4] On 21 February 2005
Mr. George Thompson, the taxing master of the Free State High Court,
overruled the objection of the defendant,
taxed and allowed the bill
of Messrs. Crowther & Pretorius in addition to that of Messrs.
Naudes. The total sum of the disputed
taxed bill of the plaintiff’s
Senekal lawyers is R29 519,69 excluding the costs of the rule 43
application in the sum of R672,80
and excluding the undisputed tax
bill of R15 857,39 due to Messrs. Naudes.
[5] The defendant’s
objection was formulated as follows:
“
Verweerder se beswaar het daarop
berus dat die eiseres woonagtig en werksaam is te Bethlehem en dat sy
op sterkte van die beslissings
in Sonnenburg vs Moima 1987 (1) SA
Hofverslae bladsy 5571 sowel as Niceffek (EDMS) BPK vs Eastvaal
Motors (EDMS) BPK 1993 (2) SA
Hofverslae bladsy 144 nie geregtig is
om gebruik te maak van ‘n prokureur in ‘n ander dorp (tewete
Senekal), terwyl eiseres,
soos voormeld, in Bethlehem woonagtig en
werksaam is.”
The correct citations of
the two cases are
SONNENBURG v MOIMA
1987 (1) SA 571
(TPD) and
NICEFFEK (EDMS) BPK v EASTVAAL MOTORS (EDMS) BPK
1993 (2) SA 144
(OPD).
[6] In the instant case
the plaintiff resides approximately 250 kilometres away from
Bloemfontein, a place where the divorce proceedings
were initiated.
She appointed her lawyers of first instance at Senekal, a place
approximately 160 kilometres away from Bloemfontein.
Put
differently: she went about 90 kilometres nearer to the seat of the
court to appoint Messrs. Crowther & Pretorius. She
did not go to
Harrismith for instance, a place further away from Bloemfontein. But
even if she did, it would still have done no
harm to the principle,
in my view.
[7] In the case of
FANELS
(PTY) LTD v SIMMONS NO AND ANOTHER
1957 (4) SA 591
(TPD) at
593 A – B Boshoff J correctly observed:
“
A practice has grown up in the
Transvaal and has been sanctioned by judicial decisions, that where a
litigant resides away from the
place where legal proceedings are
instituted, he is entitled to employ an attorney in the place where
he lives as well as the place
where the proceedings are instituted.
The reason for the practice is that it is desirable for a litigant to
have an attorney at the
place where he lives with whom he can
consult; S.A. Railways v Kemp,
1915 T.P.D. 618
at p. 620 and cases
cited therein; Commissioner for Inland Revenue v Baikie,
1932 AD 184
at p. 187.”
I am in respectful
agreement with these sentiments.
[8] Boshoff J was dealing
with a 1952 taxation note which like rule 70(8) of today provides
that where in the opinion of a taxing
master, more than one attorney
had been necessarily engaged in the performance of any legal work
covered by the prescribed official
tariff, each such attorney shall
be entitled to be remunerated on the basis set out in the tariff for
the work necessarily done by
him.
[9] The question which
falls to be determined here is whether the taxing master was correct
in allowing the fees and disbursements
claimed from the defendant by
the plaintiff for the work done by her Senekal attorneys.
[10] If I understand the
defendant’s objection well, and I think I do, the plaintiff was not
entitled to make use of a legal services
provider outside Bethlehem
since she lived and worked at Bethlehem. In my view, this is a thin
argument. It is not the defendant’s
case that the plaintiff was
not entitled to the legal services of an attorney away from
Bloemfontein. Indeed it is also not the
defendant’s case that the
work rendered by the Senekal attorney, in respect of which the
plaintiff claims remuneration, was really
not work necessarily done
by an attorney in the performance of work ordinarily done by an
attorney appointed to execute a divorce
mandate. Implicit in the
defendant’s argument is that had the work necessarily done at
Senekal, been done at Bethlehem, the defendant
would not have
objected to the bill in question.
[11] Ideally a litigant
who resides away from the place where the legal proceedings were
initiated is entitled to employ an attorney
in a place where she
resides as well as another attorney where the legal proceedings were
instituted. See
M Jacobs and M J Ehlers: Law of Attorney’s Cost
and Taxation Thereof
1979 Edition page 82;
HUMAN v VAN WIJK
1906 TS 8
on page 620;
COMMISSIONER FOR INLAND REVENUE v BAIKIE
1932 AD 184
on page 187;
CORDINGLEY, N.O. v BP SOUTHERN AFRICA
(PTY) LTD
1971 (3) SA 118
(OPD);
ELDRAW MOTORS (PTY)
LTD v SALZWEDEL
1984 (2) SA 846
E. This rule should not be
restrictively interpreted because it was not cast in stone. It is a
flexible and equitable rule designed
to protect both parties. The
notion that the plaintiff who does not engage the local legal
services provider, whatever the reason
for such decision might be,
forfeit the benefits of the rule of practice, cannot be harmonised
with the spirit object and purpose
of the rule with such deep roots
of equity and flexibility.
[12] Therefore, I cannot,
with respect, agree with Ackermann J in
SONNENBURG v MOIMA
1987 (1) SA 571
(TPD) at 575 F – G where he remarked:
“
Die oomblik wat eiser nie sy
plaaslike prokureur wou opdrag gee nie (wat die redes vir die besluit
ookal mag gewees het) het hy die
voordeel van die gemelde
praktyksreël verbeur en was dit nie meer vir hom noodsaaklik om twee
prokureurs opdrag te gee nie.”
[13] Such a rigid
application of the rule in favour of a local attorney can lead to
absurd and unjust results. Consider the scenario,
for instance where
both litigants live in a small town where there is only one attorney.
And there are many such towns in this country.
The plaintiff
appoints that only one attorney to act for him against the defendant.
The reality of the matter is that the defendant
now has virtually no
local attorney where she lives to defend her. Naturally she cannot,
on ethical grounds, appoint the same attorney
already appointed by
her adversary. If the rule absolutely forbids the defendant from
engaging a legal services provider in another
town away from the town
where she lives, for any reason whatsoever, as was decided in
SONNENBURG v MOIMA
supra
,
then we face an
absurd situation. Such a strict and narrow interpretation of the
rule may absolutely deny a litigant access to justice.
Or it may
force a litigant in such a situation to travel a considerable
distance, at great expense from where she lives to where
the court
sits in order to appoint an attorney there – that while the
plaintiff enjoys easy and cheap access to the sole local
attorney at
his doorstep. I am unable to sanction such a rigid interpretation.
To do so can only lead to serious injustice between
man and man.
[14] The aforegoing is
but one example of absurdity. There are countless other instances I
can think of to show that strictly confining
a litigant to the
employment of a local attorney can yield absurd and unsatisfactory
results. Let me hasten to add that the scenario
I have sketched
above was just an example with no bearing on the real facts here.
Therefore my remark is
obiter dictum
. But the point I was
trying to highlight and to stress is that there can be a great
variety of valid reasons why litigants may appoint
attorneys outside
the towns where they live. See
NICEFFEK (EDMS) BPK v EASTVAAL
MOTORS (EDMS) BPK
1993 (2) SA 144
(OPD) where Wright J held
that it could not be sufficiently emphasized that each case had to be
considered in the light of its own
peculiar circumstances and that it
was impossible to lay down a hard and fixed set of rules to determine
as to when a litigant was
entitled to employ two sets of attorneys.
[15] It has not been
shown and it has not been contended that by appointing an attorney at
Senekal, approximately 100 kilometres away
from Bethlehem where she
lived, the plaintiff thereby unnecessarily saddled the defendant with
an inflated and heavier bill than
would have been the case had she
appointed an attorney at Bethlehem. It seems to me therefore unfair
and inequitable to seek to
deprive her of the costs in respect of her
Senekal bill merely on the grounds as advanced by the defendant in
his objection. I am
a proponent of liberal, equitable and dynamic
approach to legal rules. Therefore I am inclined to uphold the
decision of the taxing
master. For the reasons advanced above I have
come to the conclusion: firstly, that the decision of the taxing
master represented
a reasonable and a realistic discretionary
determination and secondly, that the defendant had not raised
convincing grounds in his
objection to justify judicial interference
with such decision. I would therefore dismiss the defendant’s
objection.
[16] Accordingly I make
the following order:
The defendant’s
objection is overruled.
The decision of the
taxing master is upheld.
The defendant is
ordered to pay the costs hereof in the amount of R450,00.
______________
M.H. RAMPAI, J
/sp