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2024
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[2024] ZALMPPHC 120
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Masweneng Attorneys and Another v Makwela M.P.Attorneys and Others (1326/2014) [2024] ZALMPPHC 120 (30 September 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 1326/2014
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO
OTHER JUDGES:
YES
/NO
(3) REVISED:
YES
/NO
Date: 30/09/2024
Signature:
In
the matter between:
MASWENENG
ATTORNEYS
1
st
APPLICANT
JAN
TSHEPO GOLOLO
2
nd
APPLICANT
And
MAKWELA
M.P. ATTORNEYS
1
st
RESPONDENT
THE
TAXING MASTER
2
nd
RESPONDENT
THE
ROAD ACCIDENT FUND
3
rd
RESPONDENT
In
re:
JAN
TSHEPO GOLOLO
PLAINTIFF
AND
THE
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
NGOBENI AJ:
INTRODUCTION
[1] The first applicant
is a firm of attorneys duly established as such, and conducts
business at 476 King’s Highway, office
08, 3
rd
Floor,
Lynnwood, Pretoria, Gauteng Province.
[2] The second
applicant is Jan Tshepo Gololo, an adult male person
represented throughout the main legal proceedings between the parties
by the
first applicant, with his address for purposes of the current
proceedings as c/o 476 King Highway, Office 08, 3 Floor, Lynwood,
Pretoria, Gauteng Province.
[3] The first respondent
is Makwela MP Attorneys, a firm of attorneys duly registered in terms
of the laws of the Republic of South
Africa, practicing as such at
office 14 Block B, 89 Biccard street, Polokwane.
[4] The second respondent
is the Taxing Master of the High Court of South Africa, Limpopo
Division, Polokwane (taxing master).
[5] The third respondent
is the Road Accident Fund (RAF), a juristic person established in
terms of
section 2
of the
Road Accident Fund Act 56 of 1996
, with its
business address at 38 Ida Street, Menlo Park, Pretoria, Gauteng.
PURPOSE OF THE
APPLICATION
[6] The applicants
firstly seek an order for condonation for the late filing of its
application for the default taxation order that
was granted in favour
of the first respondent on 19 October 2016 by the taxing master, to
be rescinded and set aside, alternatively
that the said taxation
order be reviewed and/or set aside (review for easy reference).
SUMMARY OF THE
BACKGROUND FACTS
[7] On or about 23 March
2015 the second applicant appointed the first applicant to assist him
with a claim against the third respondent,
being the Road Accident
Fund. Mafori Lesufi Attorneys had already issued summons against the
third respondent on 02 September
2014 out of this court under
case number 1326/2014.
[8] The first respondent
was appointed by the applicants or at least by the first applicant to
act as a correspondent attorney in
this court for the claim of the
second applicant against RAF. The first respondent would under no
circumstances be requested to
draw pleadings or notices but only to
serve and receive documents on behalf of the applicants. The main
action was set down for
trial on 18 April 2016, and judgment was
granted in favour of the second applicant.
[9] The first respondent
then submitted a bill of costs for the amount of R116 775-50 to
the applicants, and the applicants
found it to be too excessive. The
submission by the applicants is that the bill of costs contained
fatal inaccuracies. The first
respondent subsequently applied that
the bill of costs be taxed as they were not in agreement about the
bill of costs with the
applicants. The bill of costs was then taxed
to the amount of R73 519-85. The first respondent, seeing that
the taxed bill
of costs was not paid, issued a letter of demand for
the latter amount which was sent and received by the applicants on 26
October
2016.
[10] The first applicant
enquired from the first respondent about proof of service of the
notice of taxation, and the first respondent
has to date failed to
furnish the first applicant with the notice of taxation. The court
was told that besides these proceedings
in which the applicants seek
the rescission or review of the taxed bill of costs by the taxing
master, there is also pending action
proceedings with regard to the
same taxed bill of costs under case number 903/17.
APPLICATION FOR
CONDONATION
[11] The applicants
acknowledge that the application for rescission or review of the
taxed bill of costs by the taxing master was
filed out of time, and
therefore necessary for the applicants to firstly bring an
application for condonation of the late filing
of the application for
rescission, alternatively the review application. I will revert to
the issue of condonation later.
RESCISSION OR REVIEW
APPLICATION
[12] It must be clearly
understood that I’m at this stage not dealing with the
rescission or review application that is before
court, because I have
to deal with the condonation application first. I’m just
mentioning what the law states with regard
to rescission and review
applications for the sake of context. The 1
st
respondent
in its submissions submitted that the application that is before
court could have been brought in terms of Rule 53 of
the Uniform
Rules of Court (Rules) or Rule 48.
[13] I will not quote the
two Rules verbatim at this stage, but I will in a summary manner
state what each of the Rules state. Rule
48 deals with Review of
Taxation, and states that any party who is 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.
[14] The taxing master is
also required to supply a report to each party involved in the case
with regard to his/her decision in
allowing or disallowing an item.
It is clear from the summary that I have given of Rule 48 that it is
applicable to the parties
who have been present when the taxing
master taxed the bill of costs. It is common cause that in this case
when the bill of costs
was taxed the applicants were not present, and
therefore the provisions of Rule 48 do not find application in this
case.
[15]
That is in line with the reportable decision in
Ebundu
(Pty) Ltd and Blake &
Others
[1]
,
to which I was referred to by the 1
st
respondent,
where jurisdictional requirements relating to the application of Rule
48, were clearly set out on paragraph 33 of the
judgment, and I’m
satisfied that Rule 48 does not find application in these proceedings
as the applicants were not present
when the taxing master taxed the
bill of costs.
[16] I now turn to deal
with provisions of Rule 53. Rule 53 deals with review of decisions or
proceedings of any inferior court,
tribunal, board or officer
performing judicial, quasi-judicial or administrative functions. The
1
st
respondent submitted that this application by the
applicants should have been brought in terms of Rule 53 of the
Uniform Rules
of Court, because for the court to be able to rescind
or set aside the
allocatur,
the court must be placed in the
same position as the taxing master, with regard to the evidence that
was presented before him/her
at the time when the bill of costs was
taxed. The further submission is that the court cannot be in that
position unless the court
is presented with such evidence.
[17] Rule 53 reads as
follows:
‘
53
Reviews
(1)
Save where any other law otherwise provides,
all proceedings to bring under review the decision or proceedings of
any 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 proceedings to the
magistrate, presiding
officer or chairperson of the court, tribunal
or board or to the officer, as the case may be, and to all other
parties affected-
(a)
Calling upon such persons to show cause why
such decision or proceedings should not be reviewed and corrected or
set aside, and
(b)
Calling upon the magistrate, presiding officer,
chairperson or officer, as the case may be, to dispatch, within 15
days after receipt
of the notice of motion, to the registrar the
record of such proceedings
sought to
be corrected or set aside, together with such reasons as the
magistrate, presiding officer, chairperson or officer, as
the case
may be is by law required or desires to give or make, and to notify
the applicant that such magistrate, presiding officer,
chairperson or
officer, as the case may be has done so.
2.
The notice of motion shall set out the decision
or proceedings sought to be reviewed and shall be supported by
affidavit setting
out the grounds and the facts and circumstances
upon which applicant relies to have the decision or proceedings set
aside or corrected.
3.
The registrar shall make available to the
applicant the record despatched as aforesaid upon such terms as the
registrar thinks appropriate
to ensure its safety, and the applicant
shall thereupon cause copies of such portions of the record as may be
necessary for the
purposes of the review to be made and shall furnish
the registrar with two copies and each of the other parties with one
copy thereof,
in each case certified by the applicant
as
true copies. The costs of transcription, if any, shall be borne by
the applicant and shall be costs in the cause.
4.
… ’
[18] I’m quoting
the provisions of Rule 53 to a large extent, so that it can be
understood, when taking into consideration
the submissions of the 1
st
respondent, that it is not the case of the applicants that they are
asking specifically for the record of proceedings relating
to the
decision of the taxing master. I am however mindful of the fact that
the applicants in the alternative are praying for the
review and/or
setting aside of the decision by the taxing master.
[19]
I agree with the 1
st
respondent
that indeed for the court to review an administrative action, it must
have records of the proceedings that led to that
decision, and of
course a record of that decision. In my view the case of
Murray
and Others NNO v Ntombela and Others
[2]
dealt fully with how the courts should approach or deal with an
application in terms of Rule 53.
[20]
In
Grunder
v
Grunder
and Others
[3]
,
the court held that the taxing master’s allocator is a
quasi-judicial administrative act: he must hear parties or their
legal representatives (and if needs be also evidence) and exercise a
judicial discretion. I have highlighted above that in the
main the
application by the applicants is for rescission of an award by the
taxing master.
[21] The requirements for
rescission of a judgment is that the applicant must (i) give a
reasonable explanation for his default,
(ii) his application must be
bona fide
and not be made with the intent to delay the
opposite parties’ claim and (iii) he must show that he has a
bona fide defense
to the opposite parties’ claim.
[22]
In
Barnard
v Taxing Master of the High Court SA (TPD) and Others
[4]
,
it was held that where a party seeks to challenge a decision that was
made at taxation which was taken in its absence, such application
must be brought in the form of a rescission application. The
Ebundu
decision,
supra
,
states exactly that. I have stated that the condonation
application must be dealt with first as a matter of procedure, and
I
revert to that.
APPLICABLE LAW
[23] Rule 27(3) states
that the court may, on good cause shown, condone any non-compliance
with these Rules.
[24]
In
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[5]
the Constitutional Court held that condonation must be granted if it
is in the interests of justice to do so, and if there is an
existence
of prospects of success. In determining whether the interests of
justice permit the granting of condonation, the following
factors
were clearly set down in
Brummer,
supra,
as:
(i)
The interests of justice must be determined by
reference to all relevant factors including the nature of the relief
sought,
(ii)
The extent and cause of the delay,
(iii)
The nature and cause of any other defect in
respect of which condonation is sought,
(iv)
The effect on the administration of justice,
(v)
Prejudice and the reasonableness of the
applicant’s explanation for the delay or defect.
[25]
The same court in
Grootboom
v National Prosecuting Authority and
Another
[6]
in considering the aspect of condonation quoted with approval the
above factors from the case of
Brummer,
supra
.
The court clearly and unequivocally stated that it is now axiomatic
that the granting or refusal of condonation is a matter of
judicial
discretion. It involves a value judgment by the court seized with a
matter based on the facts of that particular case.
[26]
A condonation application is regarded by some as an application that
is brought for procedural and compliance sake, which can
be granted
easily by the court, hence it was important for the Constitutional
Court to impress that condonation cannot be had for
the mere asking.
A party seeking condonation must make out a case entitling it to the
court’s indulgence, hence a requirement
that a full explanation
must be given
[7]
.
APPLICATION OF THE LAW
TO THE FACTS
[27] The explanation
given by the applicants in the case at hand, for the late filing of
the rescission application is that they
were not provided with proof
of notice of set down for taxation. The first applicant states in its
founding affidavit that on or
about 26 October 2016, it received a
letter of demand for a taxed bill of costs.
[28] The court can safely
say the first applicant has at least been aware of the taxed bill of
costs as at 26 October 2016. In my
view having known that there was
such a taxed bill of costs, which even led to the 1
st
respondent issuing summons against the applicants, was an opportune
time to challenge the taxed bill of costs.
[29] The extent of the
delay before the taxed bill of costs could be challenged is almost
one year. The explanation by the applicants
as already outlined above
is that they were waiting for proof of service for notice of taxation
from the first respondent. The
court had the benefit of seeing the
annexures numbered MP3 and MP4. On the face of these documents I can
see that the notice of
taxation that was sent to the 1
st
applicant was according to these reports delivered to one L.J. Jonas
Mahlaela on 16 September 2016 at 09h07.
[30] The first respondent
referred the court to a document marked MAS 11 which shows that a
parcel bearing the same registration
number as MP3 and MP4 was
collected on 02 August 2017 at 12h30. I’m unable to say much on
the document, as I suppose, will
have to be explained for one to
understand better as to what the position is. It was highlighted
however that there are action
proceedings which are pending on the
facts of this case, in which I believe issues will be fully
ventilated there.
[31] The applicants
waited for almost the whole year before they could challenge the
taxed bill of costs. In the face of the documents
that I have quoted,
being MP3 and MP4 I see no prospects of success on the explanation
that the applicants waited for the notice
of taxation from the first
respondent. That information could be obtained from the court file,
as rightly stated by the first respondent.
[32]
In
Mtshali
N.O. and Others v Buffalo Conservation 97 (Pty) Ltd
[8]
and
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development
Company
& others
[9]
,
the Supreme Court of Appeal impressed on the factors to be considered
when faced with a condonation application, which I have
already
quoted from the
Grootboom’s
case,
supra.
[33]
I find that the explanation by the 1
st
applicant,
in the light of what I have just highlighted makes the explanation
for seeking condonation by the applicants to fall
short of making out
a case for condonation, on the basis that there are no prospects of
success. The court can still grant condonation
if it is satisfied
that the interests of justice requires that, as was the test in
Bertie
van
Zyl
(Pty) Ltd & another v Minister for Safety & Security &
others
[10]
The court can of course grant condonation even though there are no
prospects of success if the matter before it raises a matter
of
importance.
[34] I did not find that
this case raises a matter of importance, or that the interests of
justice requires that condonation be
granted. That simply means that
the court cannot proceed to hear the application for the rescission
of the award by the taxing
master or alternatively the review of the
allocatur.
ORDER
[35] In the result the
following order is granted:
1.
The application for condonation is dismissed with
costs.
J.T. NGOBENI
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION:
POLOKWANE
Appearances
Counsel
for the 1
st
and 2
nd
Applicants
:
Advocate F.M. Masweneng
Instructed
by
:
Masweneng Attorneys
Counsel
for the 1
st
Respondent
:
Mr. K.C. Makhafola
Instructed
by
:
Makhafola Inc.
Counsel
for the 2
nd
&
3
rd
Respondents
:
No Appearances
Date
of the hearing
:
16 August 2024
Date
of judgment
:
30 September 2024
Judgment transmitted
electronically
[1]
(Case
number 2135/2021) [2024] ZAMPMHC (16 February 2024).
[2]
(792/2022)
[2024] ZASCA 24
;
[2024] 2 All SA 342
(SCA);
2024 (4) SA 95
(SCA) (14
March 2024).
[3]
1990
(4) SA 680
(C),
[4]
[2005]
2 All SA 485 (T).
[5]
(CCT
45/99) [2000] ZACC3
[2000] ZACC 3
; ;
2000 (50 BCLR 465
;
2000 (2) SA 837
(CC) (30
March 2000); Dengetenge
Holdings
(Pty) Ltd v Southern Sphere Mining and Development Company Ltd &
others
[2013]
ZASCA 5
;
[2013] 2 All SA 251
(SCA); S v Mantsha
2008 JOL 22468
(SCA).
[6]
(CCT
08/13)
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC) (21 October 2013);
Mulaudzi
v Old Mutual Life Assurance Company
[2017]
ZASCA 88[2017]
3 All SA 520
(SCA);
2017 (6) SA 90
SA 90 (SCA).
[7]
Grootboom
case,
supra
,
footnote 1,
[8]
(250/2017)
[2017] ZASCA 127
(29 September 2017)
[9]
[2013]
ZASCA 5; [2013] 2 All SA 251 (SCA).
[10]
[2009]
JOL 23540
(CC);
[2009] ZACC 11
(CC);
2009 (10) BCLR 978
(CC).