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2024
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[2024] ZAECMHC 42
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X.M Petse Incorporation/ Zilwa Attorneys v Nabile (CA57/2023) [2024] ZAECMHC 42 (30 May 2024)
FLYNOTES:
COSTS – Taxation –
Prior
to litigation
–
Part
payment of bill by client – Alleging thereby acquiesced to
or accepted bill – No allegation by appellant
that after it
demanded payment of outstanding balance, respondent paid it –
Part-payment cannot be viewed as discharge
of debt – Refusal
to pay balance of fees is not consistent with defense of
acquiescence or waiver – No misdirection
by magistrate –
Appeal dismissed –
Magistrates Courts Act 32 of 1944
,
s
80(4).
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– MTHATHA]
CASE NO.: CA57/2023
REPORTABLE: YES
In the matter
between:-
X.M. PETSE
INCORPORATED/ZILWA ATTORNEYS
APPELLANT
and
SICELO NABILE
RESPONDENT
JUDGMENT
NORMAN J:
[1] This is an appeal
against the judgment and order of the magistrate sitting in Mthatha
which was delivered on 10 November 2023
where a special plea of
jurisdiction was upheld with costs. The magistrate further
ordered a stay of the action pending taxation
of the appellant’s
fees.
[2]
The appellant attacks the order of the magistrate on the following
grounds : That the Learned magistrate erred and misdirected
himself
by ,
inter
alia
,
upholding the special plea of jurisdiction; by rejecting the argument
that the respondent’s conduct of paying the
invoice
partly without any protest amounted to acquiescence ; respondent
was thus estopped from subsequently challenging
the statement of
account; he misdirected himself in finding that the case of
Rabeney
v Schoeman Attorneys Incorporated
[1]
was distinguishable from the facts of this case; and that he erred in
finding that the action should be stayed pending taxation
of the
appellant’s fees.
[3] Mr Zilwa appeared for
the appellant and Mr Dzingwa for the respondent.
Background facts
[4] Appellant is a legal
firm trading as Zilwa Attorneys in Mthatha. The respondent is
the appellant’s erstwhile client
to whom it had rendered
professional legal services. It instituted an action against the
respondent by issuing simple summons.
It alleged that it was owed a
total outstanding balance in the amount of R130 832.03 in
respect of services rendered by it
at the special instance and
request of the respondent. The alleged legal services were
rendered on 13 February 2019 until
16 April 2019 in the matter
involving the respondent under case number 718/2019. There was a
further claim of an amount of R28 102.50
as fees owed in respect
of services rendered by the appellant on 25 June 2019 until 24
October 2019 in a matter bearing case number
219B/19. Litigation
involving both cases proceeded before the Mthatha High Court.
[5] The total amount
claimed was R158 934.53 which, according to the appellant,
remained owing, due and payable. The invoices
and the statements of
account were attached to the summons as annexures “A” and
“B” respectively.
[6] Appellant alleged
that it presented to the respondent the statement of account and a
tax invoice amounting to R230 832.03
and the defendant only paid
R100 000.00 leaving the balance of R130 832.03 that is
under claim. After the filing
of a notice of appearance to
defend, the appellant did not file a declaration.
[7] The respondent raised
a special plea that: The magistrate lacked jurisdiction in the matter
because the respondent had disputed
liability or the extent of his
liability to the plaintiff , had communicated the dispute to
plaintiff and had requested that the
bill of costs be subjected to
taxation; taxation falls within the jurisdiction of the taxing master
being the clerk of the court
or the registrar and not the court. He
pleaded that the matter has been prematurely placed before the
magistrate. He also pleaded
over and denied owing monies to the
appellant or to the extent claimed by it. He disputed his liability
and requested that the
appellant’s bills be subjected to
taxation. He further denied that all the work reflected in annexures
“A” and
“B” had been performed by the
appellant and denied that the appellant is entitled to the full
amount claimed in respect
of each item and he put the appellant to
the proof thereof. He further denied that he paid only R100 000.00.
He averred that
he made further payments including a direct payment
of R60 000.00 to the advocate that was instructed by the
appellant to
represent him. He prayed for the dismissal of the claims
with costs.
[8] The appellant
replicated to the defendant’s
special
plea. It averred that
the statement of account and invoices
were presented to the respondent for settlement. The respondent did
not object to the invoices
but proceeded to effect part -payment
towards settlement thereof. It contended that in the circumstances,
the respondent
acquiesced
and should be estopped from raising this belated challenge. It
prayed for the special plea to be dismissed with costs.
[9] Subsequent thereto,
the respondent filed an amended plea wherein he relied specifically
on the provisions of section
80(4)
of the
Magistrates’ Courts Act
(“the Act”)
and
Rule 33(18) of the Magistrates’ Courts Rules (‘the
Rules’) that the disputed bill ought to be subjected
to
taxation before it is placed before a magistrate who can only
entertain it thereafter in terms of section 81 of the Act
.
[10] He contended that
the matter was not properly before the magistrate given the fact that
section 80(4) is peremptory. In the
alternative, he submitted that,
the court lacked jurisdiction in that the cause of action (litigious
work) that is the subject
of dispute took place before the High
Court. In this regard he pleaded that Rule 17(1) of the Rules of High
Court provides that
only the court or registrar of the court to which
litigious work was done has jurisdiction over the costs emanating
from such work.
He sought an order that the costs incidental to the
taxation must be determined by the clerk of the court or the
registrar. He
further pleaded over that the defendant’s claimed
amounts, the invoice and bill of costs were unreasonably excessive,
improper,
over-cautious and unusual.
Submissions by the
appellant
[11]
Mr Zilwa submitted that there is no authority that before a claim
based on a bill of costs is instituted, the bills must be
subjected
to taxation. In this case he relied on
Benson
& Another v Walters & Others
[2]
where
the court stated:
“
It
follows that
where
taxation is not waived
,
taxation is a condition precedent to enforceability of an attorney’s
claim for fees and disbursements, the debt is not due
until
taxation.”
(its
emphasis).
[12] He submitted that
the respondent must be estopped from raising a challenge to the bill
because he had acquiesced to it by not
objecting instead had
proceeded, without protest, to effect part-payment towards settlement
of the debt. He further submitted that
although the appellant
accepted that an attorney and client statement can be converted to a
bill of costs and be subjected to taxation
where there is a dispute
about it, such dispute cannot be raised after an acknowledgment of
indebtedness which has led to payment.
That, he argued, is what finds
the application of the doctrine of acquiescence.
[13]
Relying on the decision of
Markham
v South African Finance & Industrial Company Ltd
[3]
,
he argued that, the fact that the respondent had unequivocally made
payment of the amount claimed must be construed as a clear
admission
of liability. Mr Zilwa submitted that payment does not have to
be made in full, part payment signifies an acknowledgment
of debt. He
relied on the remarks of the appeal court in the
Markham
matter
where it stated that:
“
The
section contemplates a voluntary and intentional act by the debtor
communicated
by
him
to his creditor. That this is so follows from the three forms
of
acknowledgment by the debtor specially set out in the section
as
acknowledgment
by part payment, payment of interest and the giving of security.”
[14]
He further relied on the
Rabaney
case where Khumalo J
remarked:
“
[32]
In the instance where following a demand notwithstanding a dispute
being raised the debt is paid or discharged by the client
without
reservation the obligation for taxation is also discharged. Payment
by the client without reservation means without demour
or protest.”
He
further relied on
Praxley
Corporate
Solutions (Pty)Ltd v Werksmans Incorporated
[4]
where
Van der Linde J remarked:
“
[43]
But
that is different from saying that the client is entitled, after
payment without protest, to insist that the attorney initiates
and procures a taxation of the invoices it had submitted, and which
the client had voluntarily paid, just so that the client can
decide
whether or not it has a cause of action in enrichment against the
attorney. It follows that the appeal cannot succeed
.”
[15]
In its reliance on the doctrine of acquiescence the appellant relied
on the case of
Botha
v White
[5]
and
on
Policansky
Bros v Hermann & Canard
where
Wessels J stated:
“
It
is a principle of our law that if a person has once acquired a right
he is entitled at anytime to vindicate that right when infringed,
provided that the period of prescription has not elapsed. This is the
general rule, but in course of time exceptions have
been
grafted
onto
this rule. The equitable principle that if a person lies by with a
full knowledge of his rights and of the infringement of
those rights,
he is precluded from afterwards asserting them, has been adopted by
our courts. It forms a branch of the law of
dolus
malus
.
The principle of lying by is not unknown to the civil law though its
application is not so often met with in our system of law
as it is in
English law. Sometimes the rights are lost through mere acquiescence
at other times by estoppel as where the element
of prejudice exists
in addition to acquiescence. Thus acquiescence can be proved by
definite acts or by conduct.”
[16]
Mr Zilwa argued that acquiescence applied in situations where a
party’s conduct is inconsistent with his or her subsequent
action
[6]
. He
submitted that the appeal should be upheld with costs.
Respondent’s
legal submissions
[17]
Mr Dzingwa, on the other hand, made the following submissions: That
the appeal should be dismissed because the court a quo’s
findings are
unassailable.
There
was no abuse of the court’s discretion; the court was correct
in the evaluation of the facts against the law; the court
was also
correct in staying the action pending taxation and that the appellant
has no prospects of success in this appeal. He submitted
that the
respondent properly raised the issue of taxation by a special plea
and in this regard relied on
Benson
& Another v Walters & Others
[7]
.
He argued that
section
80 (4) and
Rule
33 (18) govern taxation of attorney and client costs at any time even
after a party had issued summons demanding payment of
costs. He
submitted that the stay of the proceedings pending taxation is
consistent with the provisions of section 80(4) of the
Act.
[18] He argued that the
appellant had alleged that the respondent was refusing to pay the
bills despite demand and that, he argued,
is consistent with the
respondent’s defence that he disputed the extent of his
liability and had communicated that dispute
to the appellant.
[19]
The respondent submitted that the cause of action stems from the
disputed attorney and client costs. That dispute led the respondent
to make only partial payment
and
demanded that the appellant’s bill be taxed. He relied on
Albertus J.
Retief
and Another v J.P.Kriel & Co
[8]
where
Molefe J stated:
“
When
a client disputes the quantum of an attorney’s fees the bill of
account must be taxed.”
[20]
He submitted that this points to a lack of jurisdiction by the court
to resolve the cause of action emanating from a disputed
bill of
costs. He submitted that the magistrate was not in a position to
determine the reasonableness or correctness of the bills.
Relying on
Trollip
v Taxing Mistress of the High Court and Others
[9]
where
the court found that the discretion to decide what costs have been
necessary or properly incurred is given to the taxing master
and not
to the court. In this regard, he also relied on
Preller
v Jordaan & Another
[10]
.
He contended that it is not the function of the court to delve into
the merits of the legal costs and decide the extent of liability
of
the respondent. That is the function of the taxing master who has
that power to decide a party’s extent of liability to
pay the
other party’s legal costs.
[21] He argued further
that the magistrate did not have jurisdiction to enforce payment of
an attorney’s bill of costs be
at a party and party or attorney
and client scale where (a) the extent of liability of a bill of
legal costs is in dispute;
(b) the bill is not the product of an
agreement or mandate; and (c) allegations that fees are fair,
reasonable, usual or normal
fees due for the work in question are not
made in the summons; and (d) that the bill is not taxed and is not
due and enforceable.
[22] He submitted the
factors
tabulated above are necessary
allegations that should form the foundation for particulars of claim
where an attorney sues client
for untaxed client and attorney costs.
In the absence thereof, he argued, there is absence of a cause of
action. He argued that
because jurisdiction is linked to a cause of
action where there is no cause of action then it means there is no
jurisdiction.
[23]
He further submitted that once the taxing master has exercised his or
her discretion her decision regarding the quantification
of costs is
equivalent to that of the court. In this regard, he relied on the
judgment of Crutchfield J in
S
heriff
of Pretoria North East v SA Taxi Development Finance (Pty) Limited
and Others
[11]
where
she found that it is trite law that an
allocatur
has
the effect of a court order.
[24] He submitted that
taxation of the disputed bill of costs precedes enforcement. Relying
on the
Benson
judgment he submitted that the debt is not due
until taxation. He further submitted that although it is common cause
that part payment
was made, it is not common cause that payment was
made without protest.
[25]
Relying on
Kali
v Incorporated General Insurance Ltd
[12]
where
it was stated that a pleader cannot be allowed to direct the
attention of the party to
one
issue
and then at the
trial
attempt to canvass
another.
He submitted that the respondent’s plea that , he had denied
the extent of liability, his communicated dispute to
the appellant,
and the request that the bill should be referred for taxation,
reveals protest. He further submitted that
although the
appellant submits that the respondent must be estopped from raising
issues about the bill after part-payment none
of the allegations or
facts pleaded relate to estoppel. He submitted that there was never a
clear and unequivocal communication
that the respondent accepted
liability for the entire bill.
[26]
He referred to the test for waiver as set out by the Constitutional
Court in
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
[13]
“
80.
Waiver
is first and foremost a matter of intention; the test to determine
intention to waive is objective, the alleged intention
being judged
by its outward manifestations adjudicated from the perspective of the
other party, as a reasonable person. Our
courts take cognisance
of the fact that persons do not as a rule lightly abandon their
rights. Waiver is not presumed; it must
be alleged and proved; not
only must the acts allegedly constituting the waiver be shown to have
occurred, but it must also appear
clearly and unequivocally from
those facts or otherwise that there was an intention to waive. The
onus is strictly on the
party asserting waiver; it must be shown that
the other party with full knowledge of the right decided to abandon
it, whether expressly
or by conduct plainly inconsistent with the
intention to enforce it. Waiver is a question of fact and is
difficult to establish.”
[27] He submitted that
given the facts of the matter it is apparent that the respondent did
not waive his right to have the bill
taxed. He further submitted that
there is no misdirection in so far as the finding by the court that
the case of
Rabaney
was distinguishable. He submitted that the
exercise of the magistrate of his discretion in not dismissing the
action but affording
the appellant the opportunity to have the bill
taxed does not constitute a misdirection.
[28]
He further relied on
Arie
Kgosi v Kgosi Aaron Moshete & Others
[14]
where
the court stated:
“
As
soon as the client says I am not ready to pay the attorney must have
his bill taxed and as soon as the question of taxation arises
the
amount depends in every instance on the discretion of the taxing
master.”
Discussion
[29] Section 80 (4)
provides:
“
80. Costs to
be in accordance with scales and to be taxed
(1)
. . . . . . .
(2)
. . . . . . . .
(3)
. . . . . . . .
(4)
Any
person who is liable to pay
or
who is sued for costs of any civil proceedings in a court otherwise
than under an award by the court or under a special agreement,
may
require that those costs shall be taxed by the clerk of the court as
between attorney and client; and
thereupon
any action for the recovery of those costs shall be stayed pending
the taxation.
The
costs of and incidental to such a taxation shall be borne, if not
more than one-sixth of such costs is disallowed on taxation,
by the
person requiring the taxation, and, if more than one-sixth is so
disallowed, by the person claiming the costs.”
(my
emphasis).
[30]
Rule 33 (18) provides:
“
33. Costs
(18) Where a bill of
costs as between attorney and client is required to be taxed,
taxation shall take place on at least five days'
notice thereof to
the attorney or client,
whether
or not an action therefor is pending
:
Provided that, notwithstanding the provisions of subrule (3), a bill
of costs as between attorney and client may be taxed at any
time
after termination of the mandate.”
(my
emphasis).
[31]
Attorney and client costs include all the costs in respect of which
the client is indebted for professional services rendered
by his or
her attorney in legal proceedings to which
the
attorney had been formally mandated to act. Litigation is very
costly, it is for that reason that fees charged to members of
the
public for legal services must be reasonable. Coupled with that
is a right to every litigant to challenge attorneys or
counsel’s
fees where they believe they are exorbitant.
[32]
The magistrate found that the case of
Rabaney
[15]
is distinguishable from the facts of this case in that in the
Rabaney
matter
the claim was settled in full without demur or protest. He also
found that there was no authority to support the contention
that the
defendant is precluded from raising the dilatory special plea that he
raised. In the
Rabaney
matter
some 250 invoices bar one had been settled by
Rabaney
.
In respect of the remaining invoice demand was made and a period of
30 days for objection as agreed between the parties had also
passed.
Rabaney
paid
the last account on 20 April 2015 in full prior to him collecting his
file on 22 April 2020. On 22 June 2016, a year
later, he
requested taxation of the bill of costs. The court dismissed
the application based on, inter alia, the fact that
at the time
Rabaney
was
insisting that a bill of costs be taxed, the obligation for taxation
of the accounts had been discharged and thus he forfeited
his right
to insist on taxation on those settled invoices.
[16]
Those facts were found by the magistrate herein to be
distinguishable. I agree. There is also no allegation made by
the appellant that after it demanded payment of the outstanding
balance the respondent paid it. The part-payment cannot be
viewed as a discharge of the debt. That interpretation goes against
the principle articulated in
Harrismith
Board of Executors v Odendaal
[17]
:
“
Payment
is the delivery of what is owed by a person competent to deliver to a
person competent to receive. And when
made it operates to
discharge the obligation of the debtor, (Grotius 3.39.7; Voet
46.3.1).”
[33]
In
Benson
& Another v Walters & Others
[18]
the
Appellate Division, in my view, and contrary to the respondent’s
contention, corrected the notion that taxation is a condition
precedent
that
before an attorney sues for the recovery of his bill of costs for
legal services in civil matters his bill must have been taxed
[19]
.
T
he
Appellate Division re-emphasized the correct position that it is well
established that judgment cannot be given on an attorney
and client
bill until it has been taxed if such taxation has been demanded by
the client
[20]
. At page 84 at
paragraph B of the
Benson
judgment
the court held that:
“
84.
In my view, this passage is consistent
with
the view that taxation is not a prerequisite for the institution of
action on a bill of costs
,
but that, if a client insists on taxation, the action cannot proceed
until the bill has been taxed. The fact that an appeal against
the
upholding of an exception was dismissed is of no particular
significance in view of what was said in Layton’s case and
of
the fact that the appeal was not directed against the procedure which
had been adopted.”
(my
emphasis).
[34] It seems to me that
the respondent adopted the stance that the bill of costs had to be
taxed before an action could be brought.
In this regard, any reliance
on
Benson’s case
based on this proposition is, with
respect, misplaced. That contention, in my view, is what the judgment
in
Benson
decried. Mr Dzingwa correctly conceded before us
that his client’s interpretation in this regard does not find
support in
Benson
. It is so that such proposition is not
supported by the magistrate’s findings that:
“
Taxation
of an attorney – and – client bill is not a prerequisite
for legal proceedings to recover fees.”
[35] The magistrate found
that where fees have not been agreed, the client may raise a special
plea and require taxation of the
bill. Only after taxation can the
case proceed. That finding, in my view, is consistent with the object
of the provisions of section
80 (4).
Acquiscence
[36] The next issue is
whether the respondent had acquiesced by effecting part - payments
towards the bill furnished to him by the
appellant. The appellant
contends that the respondent should be estopped from raising the
defense of taxation because he has acquiesced
by effecting part-
payment.
[34]
In
Aris
Enterprises (Finance (Pty) Ltd v Protea Assurance Co
Ltd
[21]
the court defined the
essence of the doctrine of estoppel by representation as:
“
A person is
precluded or estopped from denying the truth
of
a
representation
previously made by her or him to another person if the latter,
believing in the truth of the representation, acted
thereon to her or
his detriment.”
[35]
In
Trust
Bank Van Afrika Bpk v Eksteen
[22]
Hoexter
AJA at 415 H to 416 A stated:
“
The doctrine of
estoppel is an equitable one developed in the public interest, and
seems to me that whenever a representor relies
on a statutory
illegality, it is the duty of the court to determine whether it is in
the public interest that the representee should
be allowed to plead
estoppel. The court will have regard to the mischief of the statute
on the one hand and the conduct of the
parties and their relationship
on the other hand.”
[36]
In
Burnkloof
Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd
[23]
Freedman AJ stated the
following:
“
Acquiescence
is, in my view, a form of tacit consent, and in this regard it must,
however, be borne in mind that, as Watermeyer
CJ said in
Collen
v Rietfontein Engineering Works
[24]
quiescence is not
necessarily acquiescence and that conduct to constitute an acceptance
must be
an
unequivocal
indication
to the other party of such acceptance.
[25]
”
(my underlining).
[37]
In
Makgosi Properties
(Pty) Limited v Fichard No and Others
[26]
Meyer
J stated:
“
[27] Whether a
party can be said to have acquiesced in the conduct complained of is
a question of fact. The acts or conduct
relied upon to prove
acquiescence must be
unequivocal
and inconsistent with any intention to enforce a party’s
infringed right
.
As was said by Innes CJ in
Dabner
v South African Railways and Harbours
[27]
,
‘[i]n doubtful cases acquiescence, like waiver, must be held to
be non-proven.”
(my
emphasis).
[38] The fact that the
respondent made part–payment and raised taxation is consistent
with the fact that he wished to enforce
his rights in this regard. It
cannot be said that he waived any of his rights or he unequivocally
acknowledged indebtedness of
the full amount. In fact, it proves the
contrary. It follows that estoppel does not find application
herein. The appellant’s
reliance on the
Markham
decision
is misplaced as the court was dealing with a decision related to
certain provisions of the Prescription Act 18 of 1943,
and in
particular with interruption of prescription.
[39]
No one is presumed to waive his rights. It is for that reason that
the onus is on the party alleging it who must provide clear
proof of
an intention to do so
[28]
. The
conduct from which waiver is inferred, as frequently stated, must be
unequivocal, that is to say, consistent with no other
hypothesis
[29]
.
[40] Coming to the
pleaded facts it is apparent that the appellant had to resort to
litigation to recover the balance of the fees
because the respondent
was refusing to pay.
An acknowledgement of
liability must be unequivocal. There is, in my view, no bar to a
client, who recognizes the work that had
been done by his attorneys,
from effecting part–payment of what he deems to be reasonable
whilst demanding taxation of the
bill in order for him to be placed
in a position to challenge what he believes to be unreasonable and
excessive fees. In
those circumstances, it cannot be said that
by making part-payment he waived his right to taxation and had
acquiesced as submitted
by the appellant. The respondent
challenged the extent of his liability to the appellant as
demonstrated in the amended plea.
His reasons for seeking
taxation of the bill differ materially from those in
Praxley
,
supra, where
Praxley
insisted on taxation of even past, paid invoices to determine whether
over reaching in respect of those invoices may have occurred,
in
circumstances where the debt to the attorney had been discharged
voluntarily and without reservation.
[41]
Most importantly, there are no facts advanced in the claim to show
that if the respondent’s right to taxation is enforced
there
would be real inequity and the respondent’s conduct would
amount to unconscionable conduct.
[42]
Section 80 (4) affords a
litigant,
if he or she wishes, a right to challenge a bill upon which a claim
is based, even when litigation is in progress. The
fact that the
person has paid partly the fees due to the attorney does not amount
to acknowledgment of liability to pay the bill
in its entirety. The
interpretation contended for by the appellant would not only deprive
a litigant of a right to defend
the action itself but would undermine
the very right to demand taxation that section 80 (4) affords
litigants including those who
are liable to pay. The
Legislature was aware that once that demand for taxation is made the
court will either proceed with
the action and disregard that demand
or accede to it. It made it easy for the courts by using peremptory
language that the court
‘
shall
’
stay
the action. That is exactly what the magistrate did. He did not
need to do anything else other than to act in a manner
that is
consistent with the spirit and purport of section 80 (4). That
provision also caters for both mischievous litigants
and attorneys by
regulating liability for costs of taxation in that: ‘
The
costs of and incidental to such a taxation shall be borne, if not
more than one-sixth of such costs is disallowed on taxation,
by the
person requiring the taxation, and, if more than one-sixth is so
disallowed, by the person claiming the costs.’ That
in my view
takes into account the interests of both clients and attorneys who
have disputes of this nature.
[43] The only basis
relied upon by the appellant for acquiescence and waiver is the
part - payment made. But that cannot be
the only consideration. The
reason for failure to pay the balance of the fees must be taken into
consideration when one determines
whether or not the respondent
acquiesced when he made the part - payment. According to the
respondent’s plea he was insisting
on taxation and that is the
reason why he did not pay the balance. To me, those facts do
not demonstrate an unequivocal intention
to abandon the rights that
the respondent has in so far as taxation of fees is concerned. That
is a right that is made available
to any litigant and that right
cannot simply be taken away by assuming that by making part-payment
that amounts to acknowledgement
of liability to pay the full amount,
without any protest, especially in the light of the facts pleaded by
the respondent. That
is not how intention is to be determined.
[44] In my view, for as
long as the entire bill had not been satisfied or paid in full it is
open to a litigant to raise the issue
of taxation and it cannot be
that by raising the issue the court must simply view the conduct of
the part -payment and not view
the conduct that resulted in the
non-payment of the balance of the fees. Therefore, the fact that the
appellant itself had indicated
in the summons that there had been a
refusal to pay the balance of the fees is not consistent with the
defense of acquiescence
or waiver or payment without
demur or
protest
contended for by it. I accordingly find that there was no
misdirection on the part of the magistrate in this regard. On this
basis
alone the appeal must fail.
An order for the stay
of the litigation
[45]
The scope of the power of courts to determine their own procedure is
provided for in section 173 of the Constitution. The primary
purpose
of that power is to ensure fairness in the proceedings before the
court. Jafta J in
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
[30]
held
that:
“
42.
The
reason for this is that a court before which a case is brought is
better placed to regulate and manage the procedure to be followed
in
each case so as to achieve a just outcome. For a proper adjudication
to take place, it is not unusual for the facts of a particular
case
to require a procedure different from the one normally followed. When
this happens it is the court in which the case is instituted
that
decides whether a specific procedure should be permitted.”
[46]
Madlanga J in
Mokone
v Tassos Properties CC and Another
[31]
held that:
“
[67]
Courts
may regulate their own process taking into account the interests of
justice. I will say nothing about equity but, based
on this, I
do not see why proceedings may not be stayed on grounds dictated by
the interests of justice. Whatever the import
of what was said
by courts previously may be, the Constitution lays down its own test;
and it has everything to do with the interests
of justice.
[68] In this context,
the idea of interests of justice is quite wide. I will not
attempt to delineate what it encompasses.
Suffice it to say,
what justice requires will depend on the circumstances of each case.”
[47]
Having regard to the fact that the magistrate stayed the proceedings
in order for taxation to take place and having had regard
to the
decisions of the Constitutional Court, supra, that enjoin a court to
formulate a procedure that it believes is in the interests
of
justice, I do not find that the staying of the proceedings
constitutes a misdirection. Section 80 (4) does not give a
magistrate a discretion once a litigant requests taxation. A
magistrate’s court is a creature of statute. The approach
adopted
by the magistrate is what is envisaged in section 80 (4).
The Legislature was aware when creating section 80 (4) that once
a
litigant raises an objection to the bill an injustice may result if
the magistrate were to proceed with the trial. It was
also
mindful of the fact that the magistrate, when such an objection is
raised, will have to defer to the taxing master.
It is only
after a taxing master has concluded the taxation that the trial may
resume. That process has a potential of yielding
speedy
resolution of the disputes between the parties. In any event, no
judgment can issue where the very basis of the bill is
being
contested. It can only be resolved by the taxing master who
will ascertain whether the work was done, whether the costs
charged
are commensurate to the work that was done, the scale at which the
costs were charged and the
quantum
of
counsel’s fees
[32]
.
Thereafter the court will decide all issues relating to liability.
[48]
In
South
African Broadcasting Corporation Limited v National Director of
Public Prosecutions and Others
[33]
the
court held that:
“
32. Courts
should in principle welcome public exposure of their work in the
court room, subject of course to their obligation to
ensure that
proceedings are fair. The foundational constitutional values of
accountability, responsiveness and openness apply to
the functioning
of the judiciary as much as to other branches of government. These
values underpin both the right to a fair trial
and the right to a
public hearing (ie the principle of open court rooms). The public is
entitled to know exactly how the judiciary
works and to be reassured
that it always functions within the terms of the law and according to
time-honoured standards of independence,
integrity, impartiality and
fairness.”
[49]
Having
said that I find that there is no merit in the appeal and it stands
to be dismissed.
Costs
[50] The Magistrate
upheld the respondent’s special plea with costs. Given
the approach taken in this appeal I have
no reason to depart from the
normal rule that costs should follow the result. There are no grounds
to interfere with the magistrate’s
exercise of his discretion
in this regard by awarding the respondent costs of the special plea.
ORDER
[51]
I accordingly make the following Order:
“
The
appeal is dismissed with costs.”
T.V NORMAN
JUDGE
OF THE HIGH COURT
I agree.
M.N. HINANA
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
For the
APPELLANT
: MR
ZILWA
Instructed
by
: ZILWA
ATTORNEYS
SUITE
452 – 4
TH
FLOOR
DEVELOPMENT
HOUSE
YORK
ROAD
MTHATHA
TEL:
047 531 1572
FAX:
086 600 7931
EMAIL:
zilwa@zilwaattorneys.co.za
REF:
SN0014HZ/am
For the RESPONDENT
:
MR
DZINGWA
Instructed
by
: NO.18
CRAISTER STREET/
22
CUMBERLAND STREET
MTHATHA
REF:
S. Dzingwa
EMAIL:
sipiwodzinga@gmail.com
TEL:
047 531 3387/ 071 768 9945
Date
heard
:
17 MAY
2024
Date delivered
: 30 MAY
2024
[1]
Rabaney
v Schoeman Attorneys Incorporated
2020
JDR 1081 (GP).
[2]
Benson
& Another v Walters & Others
1984
(1) SA 73
(A) at D – E.
[3]
Markham
v South African Finance & Industrial Company Ltd
1962
(3) SA 669
(A) at page 671 G – H.
[4]
Praxley
Corporate Solutions (Pty) Ltd v Werksmans Incorporated
2017
JDR 0482 (GJ) at para 43.
[5]
Botha
v White
2004
(3) SA 184
(T) at para 31; see also Policansky Bros v Herman &
Cannard 1910 DPD 1265 at 1278-9.
[6]
See
Mabhuda
v Minister of Cooperation & Development
1984
(2) SA 49
(CKS) at 53 A – E.
[7]
At
page 85 of SALR paras C – D.
[8]
Retief
and Another v J.P. Kriel & CO
Case
No. 31971/2011 GDHC at para 19.
[9]
Trollip
v Taxing Mistress of the High Court and Others
(6091/2015) [2018]
ZAECGHC 59;
2018 (6) SA 292
(ECG) (31 July 2018).
[10]
Preller
v Jordaan & Another
1957
(3) SA 201
(O) at 203.
[11]
Sheriff
of Pretoria North East v SA Taxi Development Finance (Pty) Limited
and Others
Case
No. 23904/2017 [2023] ZAGPJHC 331 (14 April 2023).
[12]
Kali
v Incorporated General Insurance Ltd
1976
(2) SA 179
(O) at 182 (A).
[13]
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
2009
(4) SA 529
at para 80.
[14]
Arie
Kgosi v Kgosi Aron Moshete & Others
1921
TPD 524
at 526.
[15]
Rabaney
v Schoeman Attorneys Incorporated
2020
JDR 1081 (GP) para 32.
[16]
Rabaney
v Schoeman Attorneys Incorporated
2020
JDR 1081 (GP) para 34.
[17]
Harrismith
Board of Executors v Odendaal
1923
AD 530
.
[18]
Benson
& Another v Walters & Others
1984
(1) SA 73
(AD).
[19]
See
Clarke
v Heming
1923
EDL at page 315.
[20]
See
also
De
Villiers v Scholtz
1931
CPD at page 94; see also
Benson
& Another
(supra)
at page 75 paras G – H.
[21]
Aris
Enterprises
(
Finance
(
Pty
)
Ltd
v Protea Assurance
Co
Ltd
1981 (3) SA 274
(A) at 291.
[22]
Trust
Bank Van Afrika Bpk v Eksteen
1964
(3) SA 402
(A) at 415 H – 416 C.
[23]
Burnkloof
Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd
1974
(2) SA 125
(C) at 137 D – F.
[24]
Collen
v Rietfontein Engineering Works
1948
(1) SA 413
(A) at 422.
[25]
See
also
Safari
Surf Shop CC v Heavywater
and
Others
[1996]
4 All SA 316
(D) at 323 I – J;
New
Media Publishing (Pty) Ltd v Eating Out Web Services
CC and Another
[2005]
ZAWCHC 20
;
2005 (5) SA 388
(C) at 407 E – I.
[26]
Makgosi Properties
(Pty) Limited v Fichard NO and Others
(24249/2015) [2016]
ZAGPJHC 374 (13 July 2016) at para 27
[27]
Dabner
v South African Railways and Harbours
1920
AD 583
,
at 594
[28]
Hepner
v Roodepoort- Maraisburg Town Council
1962
(4) SA 772
( A ) 778 D – 9A
[29]
Road
Accident Fund v RE Mothupi
case
number: 518/98, SCA , heard 15 May 2000 , delivered 29 May 2000.
[30]
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
2013
(5) SA 89
(CC) at para 42.
[31]
Mokone
v Tassos Properties CC and Another
(2017
(5) SA 456
(CC) paras 67-68.
[32]
See
Trollip
(
supra), para 22.
[33]
South
African Broadcasting Corporation Limited v National Director of
Public Prosecutions and Others
2007
(1) SA 532
(CC) para 39 at para 32.