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2024
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[2024] ZAECELLC 20
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Gqomo v Taxing Master and Another (EL2120/2023) [2024] ZAECELLC 20 (15 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
NOT
REPORTABLE
CASE
NO: EL2120/2023
In
the matter between
MZINGAYE
GQOMO
Applicant
and
THE
TAXING MASTER
First
Respondent
THEMBEKA
DUNYWA
Second
Respondent
IN
RE:
THEMBEKA
DUNYWA
Applicant
and
MZINGAYE
GQOMO
Respondent
JUDGMENT
IN RESPECT OF
PURPORTED
REVIEW OF TAXATION
HARTLE
J
[1]
The applicant, acting in person, served a
“
Notice in terms of Rule 48
”
on the first respondent, the taxing master of this court, calling
upon her to state a case for the decision of a judge regarding
“
her
decision to refuse to attend to the taxation which was set down for
26th April 2024
” (sic).
[2]
I will refer to the parties by their names
and reference this as “
the present
application
” as opposed to the
main application which is for a review proper (“
the
main/review application
”) to
avoid any confusion herein.
[3]
The bill of costs forming the subject
matter of the taxation arises from the review application initiated
by Ms. Dunywa against
Mr. Gqomo
inter
alia
under the above case number. On
29 August 2023 that application served before Beshe J when she issued
an order removing the
matter from the roll. In a further order
made by her she directed Ms. Dunywa to pay Mr. Gqomo’s “
wasted
costs
”.
[4]
It appears that there is a complex history
concerning the main application which is not entirely relevant to the
present application.
Mr. Gqomo holds the view that the court
has no jurisdiction to hear Ms. Dunywa’s dispute in the main
application and the
matter has been on and off the roll at his
instance to finalise the matter on the basis that the application
ought to be dismissed
in its entirety.
[5]
The bill to be taxed granted in his favour
along the way evidently itself is the subject of a complaint lodged
by Ms Dunywa with
the Legal Practice Council (“
The
Council
”) against Mr. Gqomo or
his attorneys, and representations were made to the taxing master
when the bill first came before
her for taxation that the process
should not be proceeded with in the light of that complaint and
pending its resolution by the
Council. On 17 November 2023 the
taxing master ruled that the bill is to be taxed after the outcome of
that complaint.
[6]
On 11 April 2024 Mr. Gqomo sought to
sidestep the taxing master’s ruling by terminating his mandate
to his attorney, disavowing
that the latter had acted on his
instructions in compliantly awaiting the resolution of the complaint
by the Council. He
wrote to the taxing master in this regard as
follows:
“
I
have been advised by Mr Mashingaidze that you have decided that the
taxation be held after May 2024. On further enquiries
he
informed me that you decided that it should await the LPC complaint.
I have terminated my mandate to Mr Mashingaidze with
immediate effect
as he acted without my instructions in the communications with
yourself regarding this. Without getting
into the merits of
this matter I advise that the LPC matter has no bearing in the
litigation which was in court and a Cost Order
was made by a Judge
and should be complied with.
In the circumstances I
will be serving and filing a notice of set down of taxation as
previously allocated by you, being the 26
th
April 2024.
I will represent myself going forward with this matter. He
advises me that he will forward his withdrawal
notice to you.
I hope
this is in order and await to hear from you.”
[7]
At a taxation on 26 April 2024 the issue of
the pending complaint was successfully raised again with the taxing
master and she informed
Mr. Gqomo that the taxation will not be
proceeded with until the disciplinary hearing has been finalized by
the Council.
[8]
It is perhaps apposite that I record the
taxing master’s input sought by me to determine the
circumstances surrounding her
ruling:
“
The
bill of costs for the above matter was set down at our office for 17
November 2023.
TP Dunywa attorneys
objected to the bill being taxed, they indicated that there was a
complaint lodged with Legal Practice Council
about the same Bill and
the Court order.
I
made a ruling on
17 November 2023
that the bill will be taxed after LPC outcome.
This
year
Mashingaidze INC
,
requested a date for taxation.
I made a follow up
whether the issues raised last year were resolved and the response
from Mashingaidze INC was yes and a date was
allocated to tax the
bill of costs on
26 April 2024.
On
10 April 2024
,
after a date was allocated, TP Dunywa attorneys brought to my
attention that the matter was not resolved as it was set down for
28
May 2024.
After I heard that the
issues were not resolved I told the parties that my last year`s
decision stands and the matter will be taxed
after
28 May 2024
,
a date after LPC hearing.
On
11 April 2024
,
Mashingaidze Inc sent me notice of withdrawal as attorneys of record
for Mr Gqomo and they copied Dunywa attorneys
.
I am not certain whether
Mashingaidze INC will still continue with taxation after 28 May 2024
because they drafted the bill not
Mr Gqomo.”
[9]
Mr. Gqomo’s present complaint as
framed against the taxing master’s decision is that her ruling
is tantamount to disregarding
a costs order granted in his favour and
further that she “
has disregarded
factors and principles which were proper to her to consider or acted
upon wrong principles or wrongly interpreted
rules of law, or gave a
ruling which no reasonable person would have given. She has
absolutely no ground in law to refuse
to (tax) my bill and
accordingly I request a Judge be appointed in terms of Rule 48 of the
Uniform Rules of Court to deal with
this matter.
”
[10]
The taxing master responded to Mr. Gqomo’s
notice in terms of Rule 48 (1), in accordance with her perceived
obligation to
do so in terms of rule 48 (3), as follows:
“
Kindly
note that I have not taxed your bill as a result Rule 48 is not
applicable in this matter. Rule 48 is applicable if
a party is
dissatisfied with the ruling made on items in the bill.
I would suggest that you
consider Rule 53.”
[11]
In response Mr. Gqomo wrote as follows:
“
I
acknowledge receipt of you response to my Notice in Terms of Rule 48
contents of which have been noted. I vehemently differ
with
your opinion that Rule 48 is not applicable. In the Notice I
have requested, in terms of the Rules, that the Registrar
must state
a case for a decision of a Judge regarding the
refusal
to attend to the taxation of the bill. It is the rational or
basis of your decision that has to be referred to a Judge for
determination as to whether your decision passes the test of
reasonableness and rationality.
Your response does not do
so at all but simply to give an advice to apply in terms of Rule 53
(a protracted and cumbersome process).
I submit that Rule 48
has been created specifically to assist the litigants to approach a
Judge, in chambers for review of taxations
without the necessity of
utilizing the “normal” review application. Your
opinion is precisely what a Judge will
ultimately have decided or
make a determination. In any event the Taxing Master cannot
simply say that the reasons for the
refusal was explained to the
attorneys who were present when the matter was before her. It
is the Taxing Master who has made
a decision and it is encumbent upon
him/her to disclose the reasons of the decision to a Judge who will
be ceased of the matter.
As this matter will at
the appropriate time be referred to a Judge, the Taxing Master will
eventually have to state a case for a
Judge to make a decision, if
any. It is submitted that the contention that Rule 48 is only
available to a litigant in the
event that the Taxing Master has
actually taxed a bill is incorrect. That is a narrow
interpretation of Rule 48 and case
law supports this view as will be
submitted in this matter.
Accordingly I advise that
this matter should follow the procedure as envisaged by Rule 48 and
ultimately be referred to a Judge
at the appropriate time.
Kindly acknowledge
receipt and I await your response if any.”
[12]
In a further communication dated 22 April
2024. The taxing master again advised Mr. Gqomo that he could
“
take the matter on review
”.
[13]
After receipt of Mr. Gqomo’s request
for the review of taxation in the present application I enquired
whether Ms. Dunywa had
been served with a copy of the papers.
His answer was “
No
”.
I further asked both her and the taxing master to weigh in. The
latter’s input is as set out in paragraph
8 above. Ms.
Dunywa wrote as follows:
“
We refer to
the above matter and write to inform the honourable Judge that this
application for Review was neither served on us
electronically nor
physically. We have no knowledge of this application.
We received
correspondence stating that the Taxing Mistress stands by her
decision to stay taxation pending further investigations
by LPC, to a
date after LPC furnish us with their decision, then we proceed with
appealing the cost order as it was granted in
contravention of Rule
16 of the uniform court of rules which provides that:
“
If an attorney
acts on behalf of any party in any proceedings, such attorney shall
notify all other parties of this fact and shall
supply an address
where documents in the proceedings may be served, (2) (a) Any party
represented by an attorney in any proceedings
may at any time,
subject to the provisions of Rule 40, terminate such attorney’s
authority to act, and may
thereafter act in person
or appoint
another attorney on behalf of such party or the newly appointed
attorney on behalf of such party shall forthwith give
Notice to the
Registrar……”
In this instance, a cost
order was granted in favour of Mr Gqomo who is neither an attorney
nor an advocate, in the absence of any
termination of mandate or a
Notice of withdrawal from his then attorneys of record. We annex the
complaint herein for easy reference.
His former attorneys went (on)
to draft a bill of costs using a party and party scale and also
claimed attorneys costs.
We hereby request that
this taxation is stayed pending finalization of our enquiries with
Legal Practice Council to a date after
28 May as advised by LPC.”
[14]
The provisions of rule 48 set out the
procedure to be adopted in a review of taxation as well as the
jurisdictional grounds that
must be present for a Judge to be called
upon to review a ruling of the taxing master as follows:
“
48.
Review of taxation
(1)
Any party dissatisfied with the ruling of the taxing master as to any
item or part of an item
which was objected to or disallowed mero motu
by the taxing master, may within 15 days after the allocatur by
notice require the
taxing master to state a case for the decision of
a judge.
(2)
The notice referred to in subrule (1) must—
(a) identify each item or
part of an item in respect of which the decision of the taxing master
is sought to be reviewed;
(b) contain the
allegation that each such item or part thereof was objected to at the
taxation by the dissatisfied party, or that
it was disallowed mero
motu by the taxing master;
(c) contain the grounds
of objection relied upon by the dissatisfied party at the taxation,
but not argument in support thereof;
and
(d) contain any finding
of fact which the dissatisfied party contends the taxing master has
made and which the dissatisfied party
intends to challenge, stating
the ground of such challenge, but not argument in support thereof.
(3)
The taxing master must—
(a)
supply his or her stated case to each of the parties within 20 days
after he or she has
received a notice referred to in subrule (1); and
(b)
set out any finding of fact in the stated case.
(4)
Save with the consent of the taxing master, no case shall be stated
where the amount, or the
total of the amounts, which the taxing
master has disallowed or allowed, as the case may be, and which the
dissatisfied party seeks
to have allowed or disallowed respectively,
is less than R100.
(5) (a) The parties to
whom a copy of the stated case has been supplied, may within 15 days
after receipt thereof make submissions
in writing thereon, including
grounds of objection not raised at the taxation, in respect of any
item or part of an item which
was objected to before the taxing
master or disallowed mero motu by the taxing master.
(b)
The taxing master must within 20 days after receipt of the
submissions referred to in paragraph
(a), supply his or her report to
each of the parties.
(c)
The parties may within 10 days after receipt of the report by the
taxing master, make further
written submissions thereon to the taxing
master, who shall forthwith lay the case together with the
submissions before a judge.
(6) (a) The judge
may—
(i) decide the matter
upon the merits of the case and submissions so submitted;
(ii) require any further
information from the taxing master;
(iii) if he or she deems
it fit, hear the parties or their advocates or attorneys in his or
her chambers; or
(iv) refer the case for
decision to the court.
(b) Any further
information to be supplied by the taxing master to the judge must
also be supplied to the parties who may within
10 days after receipt
thereof, make written submissions thereon to the taxing master, who
shall forthwith lay such information
together with any submissions of
the parties thereon before the judge.
(7)
The judge or court deciding the matter may make such order as to
costs of the case as he or she
or it may deem fit, including an order
that the unsuccessful party pay to the successful party the costs of
review in a sum fixed
by the judge or court.”
[15]
The provisions of the rule self-evidently
provide a peculiar basis for a Judge to review a ruling taken
pursuant to a taxation (that
concerns itself with objections to items
in a bill of costs and the taxing master’s decision in each
instance as well as
a scenarios where the taxing master might decide
mero motu
to disallow or tax off items in such a bill) that culminates in an
allocatur
where the disallowed amounts must not be less than R100.00 Indeed the
jurisdictional basis therefor is that an
allocatur
has been made, in other words, the taxing master must have exercised
his/her discretion and the question which begs itself in a
review
under Rule 48 is whether there is a basis to interfere with the
exercise of that discretion. It ostensibly does not
afford a
litigant the right to compel the taxing master under its provisions
to proceed with a taxation. The rulings
that are subject
to scrutiny under this rule are ones that concern “
any
item or part of an item which was objected to or disallowed by the
taxing master
”. The
connection with items or part thereof objected to or disallowed is
reinforced by the notice contemplated in sub-rule
(2) and what it
should concern itself with in a review of taxation. It is also
qualified by the provisions of sub-rule (4)
concerning when the
invocation of the rule is warranted.
[16]
Rule 70 (1)(a) of the Uniform Rules of
Court provides for the competency and peremptory obligation of a
taxing master to tax any
bill of costs for services actually rendered
by an attorney in his/her capacity as such in connection with
litigious work.
The sub-rule provides further that such bill is
to be taxed subject to the provisions of sub-rule (5) in accordance
with the provisions
of the tariff. Sub-rules (5) and (5A) set
out how the taxing master’s discretion (that is, concerning
what amounts,
or the total of the amounts, he/she has disallowed or
allowed, as the case may be) is to be exercised. Even before
reaching
this point, sub-rule (2) provides that a taxing master may
call for such books, documents, papers or accounts which in his/her
opinion are necessary to enable him/her properly to
determine
any mater arising from such taxation
.
(Emphasis added.)
[17]
In this instance it appears that the taxing
master has determined it necessary to await the outcome of the
Council’s decision
in respect of the complaint. I see no
overreach in that or avoidance of her obligation to tax the bill.
Further the
attorneys whose bill it is has evidently acquiesced in
her earlier ruling to await the outcome of the Council’s
disciplinary
process.
[18]
Even
if there was any case law (none was held up to me) to the effect that
a refusal to tax can
per
se
can be reviewed under Rule 48,
[1]
Mr. Gqomo has not been candid about the fact that the taxing master
already made a ruling which is certainly not tantamount to
a refusal
by her to tax the relevant bill of costs.
[2]
[19]
In
the result I make no order on the application and since it is a
putative review, I also make no order as to costs.
[3]
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT: 15 May 2024
[1]
It
is not an issue I am presently required to decide.
[2]
It
is of concern to me that the present application was not even served
on Ms. Dunywa whereas Rule 48 (1) prescribes that the
invocation of
the rule is to be “
by
notice
”
of the party purported to be affected by the ruling requiring the
taxing master to state a case for the decision of a
judge.
[3]
Nedperm
Bank Ltd v Desbie (Pty) Ltd
1995 (2) SA 711
(WLD) at 713 D –
E.