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[2024] ZAMPMBHC 11
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Ebundu (Pty) Ltd v Blake and Others (2135/2021) [2024] ZAMPMBHC 11; 2024 (5) SA 197 (MM) (16 February 2024)
FLYNOTES:
COSTS – Taxation – Review –
Notice
served and proceeded unopposed – Uniform Rule 48 applicable
where party appears and objects to items –
Applicant seeking
review in terms of Uniform Rule 53 and common law – Seeking
to avoid process they had to follow in
terms of Rule 48 and force
challenge under different rule – Rule 53 cannot be employed
as remedy in aid of party to
rectify its former failure to
participate at taxation stage – Rule having application
where taxation proceeded in absence
of party who was entitled to
receive notice – Application dismissed.
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
CASE
NUMBER: 2135/2021
(1)
REPORTABLE:
YES
(2)
OF INTEREST TO OTHER JUDGES:
YES
(3)
REVISED.
DATE:
16
February 2024
SIGNATURE
In the matter between: -
EBUNDU (PTY)
LTD
Applicant
and
WAYNE
MICHAEL BLAKE
First
Respondent
THE
SHERIFF OF THE HIGH COURT: WHITE RIVER
Second Respondent
THE
TAXING MASTER: HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION
Third
Respondent
WDT
INC
ATTORNEYS
Fourth Respondent
JUDGMENT
GREYLING-COETZER
AJ
Introduction
[1]
The applicant approaches this court in
terms of Rule 53 and the common law for review and setting aside of
the taxation by the third
respondent (“the taxing master”)
of the first respondent’s taxed bill of costs under case number
2914/2017 (“the
preceding litigation”) and issued
allocator
.
The applicant further seeks the setting aside of
the writ of execution issued on the strength taxed bill of costs.
Background
[2]
The facts in this application are largely
common cause.
[3]
The applicant was the plaintiff in the
preceding litigation and sought relief against Willem Constantyn
Janson (“Janson”)
as first defendant and the first
respondent as second defendant. Judgment was delivered in the
preceding litigation on 18
March 2018.The applicant was granted
relief against Janson, but the relief sought against the first
respondent was refused.
[4]
Janson, as the unsuccessful defendant was
ordered to pay the applicant’s costs. The first respondent as
successful defendant
was granted costs in his favor for a defined
period from the date of delivery of the defendants’ plea to
date of judgment
being 18 March 2018. The order reads:
“
the
plaintiff is ordered to pay the second defendant’s costs
incurred from 26 January 2018 to the date of this judgment
”
The taxation
[5]
On 10 May 2019 a notice of taxation to
which the untaxed bill of costs was annexed, was served on the
applicant’s correspondent
attorneys in Mbombela, who in turn
forwarded same to the applicant’s attorneys of record on 13 May
2019, being Fluxmans Inc
(“Fluxmans”). Fluxmans
instructed its costs consultant to consider the bill of costs.
[6]
The applicant did not oppose the taxation
of the bill of costs. The taxation proceeded unopposed and in the
applicant’s absence.
The
allocator
was issued on 26 June 2019.
[7]
On 31 July 2019 the first respondent,
through its instructing attorneys, WDT Inc Attorneys (“WDT”),
demanded payment
from the applicant in the amount of R252 162.75 in
line with the issued
allocator
.
Some correspondence between Fluxmans and WDT followed.
[8]
On 14 August 2019, Fluxmans addressed
correspondence to WDT in terms of which it raised that the Taxing
Master failed to exercise
his or her discretion judicially and/or
apply his or her mind to the circumstances of the matter
inter
alia as
the Taxing Master allowed costs
beyond this period specified in the court order, the fact that the
matter did not warrant senior
counsel, the first respondent’s
case was a small part of the judgment. Therefore little preparation
was necessary, improbable
that costs reflected in the bill of costs
was incurred by the first respondent or him alone and the costs in
respect of 5 March
2018 was incurred as a result of no doing on the
applicant’s part, and the applicant should not reasonably be
expected to
pay same.
[9]
Fluxmans further contended that for, a
Taxing Master to come to a fair and adequate assessment of a bill of
costs, he or she ought
to have the benefit of submissions from the
relevant parties, which forms the subject matter of a costs order
being deliberated
upon. It was suggested that the matter be
re-enrolled for taxation to ensure fair and adequate assessment of
the bill of costs.
[10]
WDT did not respond to Fluxmans letter.
Fluxmans followed up on three occasions during the months of August
2019 and September 2019.
Six months passed.
[11]
On 20 March 2020 WDT again demanded payment
of the taxed bill of costs. In response, and on 21 March 2020,
Fluxmans, with
reference to that raised in the correspondence of 14
August 2019, asserted that the applicant will not be making payment,
and any
attempt to execute will be met with an application to stay
the writ.
[12]
WDT responded on 24 March 2020. WDT said
that it had fully complied with the taxation process, the applicant
failed to enter a notice
to oppose, nor did it attend the taxation
proceedings. The proposal of submission of the taxed bill of costs
for re-taxation was
rejected on the basis that same is not
appropriate in circumstances were the applicant elected not to oppose
and failed to attend
the proceedings. It reiterated that should the
applicant be aggrieved by the bill of costs; it should follow the
applicable rules
of court in order to remedy such aggrievance. It
restated its demand for payment, failing which execution would be
proceeded with.
Fourteen months passed.
[13]
On 18 May 2021 WDT again demanded payment
of the taxed bill of costs. In response, and on 21 May 2021, Fluxmans
denied that costs
were owing on the strength of that raised on the
14
th
of August 2019. Fluxmans confirmed holding instructions to launch
an application to set aside the taxation, which will be
launched in
due course. It demanded an undertaking that the first respondent
would desist from instructing the Sheriff to proceed
with an
execution, failing which urgent relief would be sought from court
pending the setting aside of the taxation.
[14]
On 28 May 2021 WDT responded, persisting
with its demand for payment of the taxed costs, failing which
execution will be proceeded
with. On 3 June 2021 the Sheriff attended
the applicant’s premises for the purpose of executing a writ of
execution. An amount
of R256 039.93 was paid into the Sheriff’s
trust account on 4 June 2021. According to the applicant this was
done not
to satisfy the debt but to be kept in trust pending an
urgent application to be instituted. The Sheriff’s return of
service,
to the contrary, state that the attachment made on 3 June
2021 was released as full payment of the warrant was received on 04
June
2021. On 8 June 2021 the Sheriff paid over the funds into WDT’s
trust account.
[15]
This application was issued in its then
urgent format was issued on 10 June 2021. The application was
enrolled for hearing on 22
June 2021. By agreement between the
parties, Part A of the urgent application was withdrawn, WDT would
hold the funds received
from the sheriff in trust until finalization
of Part B.
[16]
On even date, the
applicant made a ‘without prejudice’ offer to the
applicant in order to avoid further unnecessary
litigation. In terms
thereof they offered to accept 50% of the taxed bill of costs in full
and final settlement, and that the application
be withdrawn with each
party paying their respective legal costs.
[17]
The first respondent
during these proceedings waived his privilege in respect of such
letter, the tender therefore stood.
Issues to be
decided
[18]
The issues for determination in these
proceedings are as follows:
(a)
Whether a party who received notice of
taxation and failed to oppose and/or object, are entitled to seek
review in terms of Rule
53 and common law;
(b)
If aforesaid is answered in the
affirmative, whether the applicant issued this review application
without unreasonable delay;
(c)
If found that the application was not
instituted within a reasonable time, whether same should be
overlooked;
(d)
Whether the Taxing Master was “
clearly
wrong
”;
(e)
Whether the writ of execution stands to be
set aside.
The applicant’s
contentions
[19]
Although Rule 48 deals with the review of
taxations, Rule 48 only applies in circumstances where the party
seeking a review of the
taxation appeared at the taxation and objects
to certain items on the bill of costs. This, according to the
applicant, does not
mean that a party who was not present has no
remedy. The applicant contended that an absent still has a
remedy under the
common law and Rule 53.
[20]
It was contended on behalf of the applicant
that the applicant’s failure to object, oppose or attend the
taxation is irrelevant
(as even on an unopposed basis) because the
Taxing Master is still required to exercise a proper judicial
discretion in taxing
a bill of costs.
[21]
It was argued that the applicant has dealt
with the delay in launching the review application. Further that the
applicant sought
to engage the first respondent on the matter before
rushing to court. As there was no indication that the first
respondent, for
a considerable period, intended on proceeding with
execution but failed to do so, the applicant was justified,
especially in light
of the correspondence by Fluxmans of 14 August
2019, to believe that the first respondent would not seriously
proceed with execution.
It was only clear at the time when execution
proceeded, that the first respondent was insisting on recovering its
costs, which
was the trigger for this application.
[22]
In respect of the merits of the review, it
is contended that the Taxing Master did not apply his or her mind,
and failed to exercise
his or her discretion judicially when taxing
the bill of costs. This, according to the applicant, is a matter of
general observation,
in that the amounts allowed by the Taxing Master
are excessive. as demonstrated by the items set out in the
correspondence of 14
August 2019.
[23]
The applicant contends that, although the
applicant made payment to the Sheriff, the funds have been held in
trust, and the first
respondent’s entitlement thereto remains a
live issue. Therefore, the warrant of execution has not been carried
out to finality,
as the first respondent had not been paid.
[24]
On
the strength of
The
National Coalition for Gay and Lesbian Equality and Others v Minister
of Home Affairs
2000 (2) SA 1 (CC)
[1]
it was
contended that the question is whether there remains a live
controversy between the parties, and as long as there is a live
controversy and the outcome of the case will affect the parties,
there can be no muteness.
The Respondents’
contentions
[25]
The respondents argued that the applicant,
at its own peril, elected not to oppose the taxation. The applicant
is therefore belatedly
seeking the review the taxation. This,
according to the first respondent, constitutes an abuse of court
process. The first respondent
also contended that the applicant did
not bring this application to court within a reasonable time, nor did
it give a satisfactorily
explanation for its failure to do so. It was
asserted by the first respondent that the review should have been
instituted by the
applicant the moment that it formed the view that
it possessed grounds justifying review.
[26]
According to the first respondent, the
applicant made a conscious decision after receiving the notice of
taxation, and on the applicant’s
version, it sent the bill of
costs for consideration to its costs consultant and decided not to
oppose the taxation nor to attend
same. Thereafter, and having
received a demand for payment on 31 July 2019, the applicant still
did not seek to review the taxation
it bemoaned.
[27]
The founding affidavit in this application
was only issued on 10 June 2021, more than twenty-four months after
being served with
the notice of taxation and bill of costs and
twenty-three months since forming the view that the taxation ought to
be set aside.
[28]
It was contended that the applicant,
notwithstanding, does not seek condonation of any sorts from this
court.
[29]
According to the first respondent, none of
the grounds relied on demonstrate that the Taxing Master was clearly
wrong. Therefore,
it can simply not be said to be in the interest of
justice and the doctrine of finality to allow a recalcitrant party
almost two
years later to challenge a taxation.
[30]
It was further averred that the applicant
has not established a basis upon which it is entitled to set aside
the writ of execution.
Equally, that the right to set aside a writ of
execution may be lost due to a delay in seeking to set same aside,
and that even
if a writ of execution is issued for an amount larger
than the amount than what it should have the whole writ of execution
will
not be set aside in the absence of substantial prejudice to the
debtor. Proper course is to amend the writ to the correct amount.
Review of taxation
[31]
Rule
48 is a taxation specific remedy trough which provision is made for a
review of a taxation. A party seeking to review a taxation
should do
so in terms of the provisions and Rule 48. However, in addition, a
party aggrieved by an aspect of a taxation, has three
further
possible remedies, namely, Rule 30 (an irregular step),
[2]
an application for setting aside or rescission of the taxation at
common law,
[3]
and a general
Rule 53 review.
[32]
Each of these remedies cater for specific
instances, and the facts of a particular case should guide a party in
employing one and
not the other, or where suitable in the
alternative.
[33]
Therefore, the principal remedy for review
of a taxation is found in Rule 48. For a party to invoke Rule 48
it needs to meet
the jurisdictional requirements, (1) it is a party
entitled to notice of taxation, (2) the party had opposed the
taxation, (3)
it objected to an item or part of an item, or (4) an
item has been disallowed
mero motu
by the Taxing Master. Having established the jurisdictional
requirements such a party may within 15 (fifteen) days after the
allocatur
by notice require the Taxing Master to state a case for the decision
of a judge.
[34]
The process of taxation under Rule 48
affords the parties a procedural right to be heard before the Taxing
Master and before any
discretion is applied by him/her. As was
held in
Gründer v Gründer
en Andere
1990 (4) SA 680
(C),
the Taxing Master’s
allocatur
is a quasi-judicial administrative act.
Thereby he or she must hear parties or their legal representatives,
and even if necessary,
also evidence, and exercise a judicial
discretion. It is an action in miniature. The aforesaid informed the
procedure outlined
in Rule 48 for seeking a review of taxation after
a taxation has been conducted and an
allocator
issued.
[35]
Rule 30 would accommodate situations where
taxation proceedings are tainted by an irregularity of form and not
substance. Such as
instances were a taxation occurred in the absence
of a party who was entitled to notice, but who did not receive notice
of the
taxation date.
[36]
An
application for setting aside or a rescission of the taxation under
the common law, would be applicable in instances where
notice
of taxation was given, yet a party had not attended the taxation,
resulting in the taxation being conducted in such party’s
absence. Where the setting aside of a taxation and
allocatur
are
sought for default of appearance, the principles finding application
is identical to those operative in the setting aside of
a default
judgment.
[4]
The party seeking a
setting aside/recission will be required to establish that it was
granted in default, show good cause, provide
a reasonable explanation
for the default, show the application is brought on
bona
fide
grounds and that it has a
bona
fide
defence which prima facie hold prospects of success.
[5]
Notwithstanding compliance with the aforesaid requirements, a court
still retains a discretion to be exercised judicially on a
consideration of the relevant circumstances.
[6]
[37]
A Rule 53 review application finds general
application. The Rule provides as follows:-
“
(1)
Save where any law otherwise provides, all proceedings to bring under
review the decision or proceedings of
an inferior court and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions, shall
be by way of notice of motion
directed and delivered by the party seeking to review such decision
or proceeding to the magistrate,
presiding officer or chairman of the
court, tribunal or board or to the officer, as the case may be and to
all other affected parties
…
”
[38]
A
review in terms of Rule of 53 in common law, that is, a review
in a broader context of procedural issues, can serve as an
alternative remedy to Rule 30.
[7]
[39]
It was submitted on behalf of the applicant
that although Rule 48 only applies in circumstances where the party
seeking to review
the taxation appears at the taxation and objects to
certain items on the bill of costs, it does not mean that a party who
was not
present at the taxation has no remedies.
[40]
Although I agree with this general
proposition, it cannot without more, and absent further enquiry into
the fact of a particular
matter be instinctively accepted that such a
party will have a remedy under the Rule 53 at common law. In other
words, such cannot
be accepted to be the position in a vacuum and
devoid of considerations of the facts of a matter and the principle
and other remedies
available to a party to obtain a review and or
setting aside.
[41]
In support of the applicants contention
that the applicant is entitled in terms of Rule 53 and common law to
review the taxation,
having not participated at its own election to
review the taxation under Rule 48, the applicant placed reliance on
various judgments,
which are discussed hereinafter.
[42]
It
was argued on behalf of the applicant that in the
Brenner’s
Service Station and Garage (Pty) Ltd v Milne and Another
[8]
the
court held Rule 53 the be available as stated at 238E: -
“
Rule
53 prescribes the procedure to be taken in review proceedings at
common law and under the provision of Section 24 of the Supreme
Court
Act….I will assume, for the present purpose, that the taxation
is reviewable under the rule on the ground that an
i
rregularity
has been committed.”
(own
underline)
[43]
In
Brenner’s
a notice of taxation was given to
the opposing party. The taxation did not proceed on the stated date,
as the court file was missing.
The taxation proceeded on a later
date, yet no notice of the later taxation date was given to the
opposing party. The bill of costs
was therefore taxed in the absence
of the opposing party. The court held that the opposing party was
entitled to a notice of the
later taxation, and absent such a notice,
the taxation was irregular. It proceeded to hold that an irregular
performance of a taxation
qualifies within the meaning of an
irregular proceeding contemplated by Rule 30(1) . It further held
that even if such an irregular
taxation is reviewable under Rule 53,
it is cognisable under Rule 30.
[44]
The court in coming to the conclusion
considered Rules 48 and 53. In respect of Rule 48, the court found
that it was not apposite
to the facts, as the matter did not relate
to a case of objection to a particular item, but to the fact that
taxation took place
in the absence of the opposing party. In respect
of Rule 53 the court stated that quoted above.
[45]
In
Brenner’s
the opponent’s wish to oppose the taxation of the bill of costs
was within the knowledge of the attorney, and said attorney
relying
on the fact that notice has been given for the earlier taxation, and
that there had been no specific agreement but merely
a request that
notice of the new date to be given, resolved not to give it. In the
circumstances the taxation was held to be irregular.
[46]
Brenner’s
is
merely authority in circumstances where a party had the clear
intention to oppose and had not received notice it was entitled
to.
This would amount to an irregularity. The court found that a party in
those circumstances will be entitled to review a taxation
in terms of
Rule 53 or Rule 30(1). It does not deal with whether a party who had
not opposed the taxation is entitled to seek a
review
post
fact.
The irregularity in
Brenner’s
was procedural in nature.
[47]
The
applicant relied on
Gründer
v Gründer en Andere
1990
(4) SA 680 (C)
[9]
where
the court held that in taxing a bill of costs, a Taxing Master
performs a quasi-judicial administrative act, and that the
common law
principles applicable to the setting aside of default judgments apply
to the setting aside of a taxation conducted by
a Taxing Master.
[48]
I am in agreement. Therefore, a party in
default of appearance (other than in circumstances where notice of
taxation was given and
the party consciously elected not to
participate) would be entitled to the setting aside of a Taxing
Master’s
allocatur
.
In doing so, such a party would have to comply with the requirements
set out in paragraph 36 above. It ought to be noted that
the
Gründer
dealt with an argument for costs
and the court did not engage on the appropriateness of a revie in
terms of Rule 53.
[49]
The court in
Barnard
v Taxing Master of the High Court SA (TPD) and Others
[2005] 2 All SA 485
(T)
came
to a similar conclusion. The court found that where an
applicant seeks to challenge a decision made at taxation, which
such
party had not attended, the applicant ought to apply for a
rescission
of the Taxing Master’s decision.
[50]
The court in
Barnard
was faced with an application directing the Taxing Master to furnish
reasons why his findings on taxation should not be taken on
review
and why the taxed costs could not be set aside. The basis of the
application was that several items appearing on the bill
of costs
were incorrect, and that the Taxing Master’s allocated amounts,
which were excessive, demonstrated that the Taxing
Master did not
apply his discretion by allowing these items. The court held that the
applicant had not attended the taxation of
the bill of costs and
blamed his attorney for not informing him of the set down. The court
held that the applicant ought to have
followed the procedure of a
rescission
.
As the applicant failed to adequately explain his default, the
application was dismissed.
[51]
The applicant also placed reliance on
Beinash t/a Beinash and Co and
Another v Renolds NO and Others
1999
(1) SA 1094
(W), more particularly where it was held that Rule 53
would have been more appropriate and required if the contents of the
bill
or the manner in which it was taxed were challenged. The court
was faced with an application to review the decision of the Taxing
Master in circumstances where he proceeded to tax a bill of costs
with the knowledge and/or in spite of the fact that an application
for leave to appeal had been noted against the judgment of the court
a quo
and
had not yet been disposed of at date of taxation. The court held
that, although an application was styled as one of review,
it was
really aimed at setting aside a decision of the Taxing Master to tax
the bill of costs and that Rule 53 therefore did not
have to be
complied with, as the rule would have been appropriate and required
if the content of the bill or the manner in which
it was taxed were
challenged.
[52]
In
Beinash
,
the taxation was opposed or attend by the applicant. The court did
not consider the provisions of Rule 48, and held as it did
merely in
response to the objection by the respondents that Rule 53(1)(b) was
not complied with.
Beinash
is distinguishable on the facts.
[53]
The applicant further relied on
Olgar
v Minister of Safety and Security and Another
2012 (4) SA 127
(ECG), more particularly where the court held that
the review of taxation under Rule 48(2) could in its view not
succeed, and concluded
that the applicant should instead have
instituted proceedings for an order setting aside the taxation.
[54]
In
Olgar
,
the applicant filed a notice of opposition to the taxation, albeit
that it was delivered out of time, and sought a review of the
taxation in terms of Rule 48(2). It was held that as the Taxing
Master had no power to condone the late filing of the notice of
opposition, and if the party opposing the taxation failed to object,
he is precluded from invoking a review in terms of Rule 48
in a
belated attempt to attack items which were allowed. Such an applicant
should instead have instituted proceedings for an order
setting aside
the taxation. The finding in this matter is in my view correct and
not authority for seeking a review in the circumstances
of this
matter in terms of Rule 53.
[55]
Moreover, the authorities relied on by the
applicant and first respondent in respect of the merits of the review
were reviews in
terms of Rule 48.
[56]
The aforesaid authorities demonstrate that
where a taxation had occurred in the absence of a party entitled to
notice, an application
to set aside/rescind the taxation, in common
law, was regarded to be the appropriate remedy to pursue. The
authorities do
not establish an entitlement of a party to bring a
Rule 53 review, in circumstances where it received notice of taxation
and did
not oppose or object thereby relinquishing the opportunity to
participate in the taxation.
[57]
I briefly return to the facts that must
determine this application.
[58]
On 10 May 2019, the applicant was served
with a notice of taxation to which the untaxed bill of costs was
annexed. The applicant
through Fluxmans instructed its costs
consultant to consider the bill of costs. The applicant did not
oppose the taxation of the
bill of costs. The taxation
proceeded on an unopposed basis. In response to the demand for
payment on 31 July 2019, the
applicant raised its concerns in
respect of the bill of costs within correspondence to WDT.
[59]
What followed was approximately 24 months
of intermitted exchange of correspondence. The first respondent at
the one end threated
execution and the applicant at the other
threatened approaching the urgent court and an application to set
aside the taxation.
When at last in June 2021 the first respondent
acted on his prior threats of execution, this application saw the
light of day.
[60]
A
party seeking to challenge a bill of costs is required to participate
in the taxation proceedings as envisaged in Rule 70.
[10]
Rule 70 further dictates how such participation should be conducted
and limits objection to items not identified. The right to
review a
taxation is premised on such participation as set out in Rule 48. As
held in
Gründer
(supra)
the
Taxing Master’s
allocatur
is
a quasi-judicial administrative act. By employing this participation
process, the Taxing Master must hear parties or their legal
representatives, and even if necessary, also evidence, and exercise a
judicial discretion. It is an action in miniature.
[11]
The procedure outline in Rule 48 is in line with the doctrine of
finality.
[61]
Rule 53 cannot be employed as a remedy that
is always ready in aid of a party to rectify its former failure to
participate at the
taxation stage. Nor can it come to the assistance
to a party who is not entitled to a notice of taxation for lack of
opposing the
main action or application. This will amount to an abuse
of court process.
[62]
Having
received notice, and not opposing and/or objecting at taxation stage,
nor attending, by implication amounts to consent to
a taxation
in
absentia
.
A party has to abide by its election not to participate and cannot be
permitted to approbate and reprobate
ex
post facto
by insisting on entering into the arena to challenge what has gone
before.
[12]
[63]
Having been served with a notice of
taxation with the untaxed bill annexed, instructing its cost
consultant to consider the bill
of costs, having ultimately not
opposed the taxation, the applicant relinquished the entitlement to
participate in the general
sense, more specifically to challenge the
bill of costs. Equally it justifiably limits such a party’s
entitlement to challenge
the conduct or decision of the Taxing
Master.
[64]
To
hold otherwise would lead to an absurdity and render Rule 48
nugatory.
[13]
[65]
It therefore follows that the provisions of
Rule 53 would find application in cases where taxation proceeded in
the absence of a
party who was entitled to receive notice, but did
not, or where taxation was postponed to a date not communicated to
such party,
as in
Brenner’s
case and such like situations where a right to proper notice has been
infringed.
[66]
The ultimate effect of not opposing or not
participating in a taxation is no different than in any other rule
dictating certain
processes are to be followed in terms of which a
party vindicates their rights. Equally, a party’s entitlement
to action
and vindicate its rights is justifiably limited if not
exercised within a specific time, such as in the instance of
prescription,
or in a specific manner by failing to bring its claim
within the ambit of the governing rules. An example would be where an
appeal
has lapsed for failure to prosecute. Notwithstanding how could
the prospects of success might be, if an appellant failed to act
in
terms of the rules and failed to persuade the court to condone its
non- compliance the entitlement to pursue the appeal will
be lost.
[67]
As held by Justice Kampepe, writing for the
majority in the Constitutional Court, remarked:-
“
Like
all things in life, like the best times and the worst of times,
litigation must, at some point, come to an end…”
[14]
[68]
Returning to the circumstances in this
application. With regards to the applicant’s contention that
the failure to object
in the taxation proceedings is not only
consideration for the Taxing Master to consider I am of the view that
the Taxing
Master was still required to apply his or her mind
and exercise his or her discretion judicially, even in the absence of
the applicant’s
opposition. In the absence of an objection
having had the opportunity to do so, I find that the applicant’s
entitlement to
challenge the taxation was lost, even in circumstances
where the applicant may have had good reason or grounds to do so.
[69]
Dealing
with irregularity in the content of a recission application in terms
of Rule 42 the Constitutional Court in Zuma (supra)
stated:
[15]
“
[59]
Similarly, in
Morudi
,
this Court identified that the main issue for determination was
whether a procedural irregularity had been committed when the
order
was made. The concern arose because the High Court ought to have, but
did not, insist on the joinder of the interested applicants
and, by
failing to do so,
precluded them from
participating
. It was because of this
that this Court concluded that the High Court could not have validly
granted the order without the applicants
having been joined or
without ensuring that they would not be prejudiced.25 This Court
concluded thus:
“
[I]t
must follow that when the High Court granted the order sought to be
rescinded without being prepared to give audience to the
applicants,
it committed a procedural irregularity. The Court effectively gagged
and prevented the attorney of the first three
applicants – and
thus these applicants themselves – from participating in the
proceedings. This was no small matter.
It was a serious irregularity
as it denied these applicants their right of access to court.”
[60]
Accordingly, this Court found that the irregularity committed by the
High Court, insofar as
it prevented the
parties’ participation
in the
proceedings, satisfied the requirement of an error in rule 42(1)(a),
rendering the order rescindable. Whilst that
matter
correctly emphasises the importance of a party’s presence, the
extent to which it emphasises actual presence must not
be
mischaracterised. As I see it, the issue of presence or absence has
little to do with actual, or physical, presence and everything
to do
with ensuring that
proper procedure is
followed so that a party can be present, and so that a party, in the
event that they are precluded from participating,
physically or
otherwise, may be entitled to rescission in the event that an error
is committed.
I accept this.
I
do not, however, accept that litigants can be allowed to butcher, of
their own will, judicial process which in all other respects
has been
carried out with the utmost degree of regularity, only to then,
ipso
facto
(by that same act), plead
the “absent victim
”. If
everything turned on actual presence, it would be entirely too easy
for litigants to render void every judgment and
order ever to be
granted, by merely electing
absentia
(absence).”
[70]
Although the above
was in the context of a rescission application, the principle is
equally applicable. A party having enjoyed an
opportunity to
participate and electing not to be present cannot post fact seek a to
challenge such proceedings, which proceedings
were procedurally
compliant, on the strength of their absence, and thereby avoid the
process they had to follow, in casu Rule 48,
and force a challenge
under a different rule such as Rule 53.
[71]
It is accordingly
found that the applicant was not entitled, considering its failure to
oppose the taxation, to rely on Rule 53
review as a remedy in aid
avoiding its prior conduct of electing not to participate in the
taxation by employing the taxation specific
review remedy provided
for in Rule 48.
[72]
Where
a party is in default of appearance with notice and therefore failed
to oppose the taxation, the appropriate remedy would
be the setting
aside of the decision by the Taxing Master. However, a setting aside
can only flow from a review of the Taxing Master’s
decision
which is only open to a challenge in terms on proper grounds. As
party who elects not to oppose a taxation in terms of
Rule 48, is
justly deprived from a review under the common law of Rule 53.
Generally, where the wrong label has been attached to
relief claimed,
but where the
causa
relied on and the relief sought were clear, a court would entertain
the merits of a matter based on the premise that the pleadings
are
made for the court and not the other way around.
[16]
[73]
The applicant would have been entitled,
ignoring its absence at the taxation, to seek the setting aside or
rescission of the taxation
and
allocatur
,
provided that it has adequately explained its default. There is no
indication why, having been served with a notice of taxation,
the
applicant failed to oppose it and partake in the process.
[74]
Furthermore, and assuming that the default
had properly been explained, the applicant’s application for
the purpose of setting
aside falls short in its failure to
demonstrate that the application was brought
bona
fide
. In this respect, the chronology
of events is instructive in this regard. The applicant would for want
of aforesaid not be entitled
to a setting aside of the taxation and
allocatur.
[75]
Having found as foresaid it is unnecessary
to deal with the remaining issues identified for determination is the
former is dispositive
of the matter.
Order
[76]
I accordingly make the following order: -
1.
The application is dismissed with costs.
GREYLING-COETZER
AJ
DATE
OF HEARING: 16
November 2023
DELIVERED
ON:
This judgment was
delivered electronically by circulation to the
parties’ representatives by way of email and by release to
SAFLII. The date
and time for delivery is deemed to be at 16h00 on 16
February 2024.
FOR THE APPLICANT:
Adv M Sethaba
Instructed
by Fluxmans Inc
c/o
Macbeth Inc Attorneys
E-mail:
SShoba@fluxmans.com
FOR
THE FIRST & FOURTH
RESPONDENTS:
Adv J de Beer
Instructed
by WDT Inc Attorneys
E-mail:
elsie@wdtatt.co.za
[1]
par
[21]
[2]
Brenner’s
Service Station and Garage (Pty) Ltd v Milne and Another
1983 (4) SA 233
(W);
Olgar
v Minister of Safety and Security and Another
2021 (4) SA 127 (ECG)
[3]
The
term setting a side and rescission is used interchangeable without
distinction in authorities on the issue.
Gründer
v Gründer en Andere
1990 (4) SA 680
(C);
Barnard
v Taxing Master of the High Court SA (TPD) and Others
[2005] 2 All SA 485 (T)
[4]
Gründer
(
supra
)
[5]
Sheriff
of Pretoria North East v SA Taxi Development Finance (Pty) Limited
and Others
(23904/2017) [2023] ZAGPJHC 346 (14 April 2023) par [12]
[6]
Colyn
v Tiger Foods Industries Ltd t/a Meadow Feed Mills (Cape)
2003
(6) SA 1
(SCA) para 11
[7]
Brenner’s
(supra) Fn 1
[8]
Brenner’s
(supra) Fn 1
[9]
Fn
2
[10]
Rule 70
(3B)
(a)
Prior
to enrolling a matter for taxation, the party who has been awarded
an order for costs shall, by notice as near as
may be in accordance
with Form 26 of the First Schedule —
(i) afford
the party liable to pay costs at the time therein stated, and for a
period of ten (10) days thereafter,
by prior arrangement, during
normal business hours and on any one or more such days, the
opportunity to inspect such documents
or notes pertaining to any
item on the bill of costs; and
(ii) require
the party to whom notice is given, to deliver to the party giving
the notice within ten (10) days
after the expiry of the period
in subparagraph (i), a written notice of opposition, specifying the
items on the bill of costs
objected to, and a brief summary of the
reason for such objection.
[11]
Gründer
(supra)
Fn2
[12]
Joseph
Sipho Dos Santos vs Liason Ntini and Others
(06/2023)
[2023] SZSC 46 (22/11/2023)
[13]
Ibid
[14]
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations
of State capture, Corruption and Fraud in the Public Sector
Including Organs of State and Other
2021
(11) BCLR 1263
(CC) par 1
[15]
Para
[59]-[60]
[16]
Bowman
NO v Da Souza Roldao
1988 (4) SA 326
(T) at 331E-I