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[2024] ZAFSHC 285
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Khanye v Minister of Police (4810/2022) [2024] ZAFSHC 285 (12 September 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 4810/2022
In
the matter between:
ALETTA
KHANYE
Plaintiff
And
MINISTER
OF POLICE
Defendant
CORAM:
VAN ZYL, J
HEARD
ON:
3
SEPTEMBER 2024
DELIVERED
ON:
12
SEPTEMBER 2024
[1]
This matter was enrolled for trial on 3, 4 and 5 September 2024.
However, the morning of
3 September 2024 I was advised by Mr van
Eeden, who appeared on behalf of the plaintiff, and Mr Chauke, ‘
who appeared on
behalf of the defendant, that the action has been
settled between the parties.
[2]
The parties, however, could not settle the scale upon which the
plaintiff`s fees are to be payable.
Background
to the action:
[3]
In the present matter it was the plaintiff’s case in terms of
the pleadings that she was
unlawfully arrested on 29 October 2021 and
unlawfully detained until 3 November 2021. She claimed
R400 000.00 for general
and special damages suffered in respect
of the following:
“
10.1
Depriving of the Plaintiff’s freedom
10.2
Contumelia
;
10.3
Emotional stress and Psychological trauma;
10.4
Embarrassment suffered by the Plaintiff by keeping her in the holding
cells and being arrested before members of
the public.”
[4]
The plaintiff’s second claim is on the basis that she was
wrongfully and maliciously charged
with malicious damage to
property. In this regard she claimed general and special
damages in the sum of R200 000.00
for the following:
“
12.1
Depriving of the Plaintiff’s freedom;
12.2
Contumelia
;
12.3
Emotional stress and Psychological trauma;
12.4
Embarrassment suffered by the Plaintiff by keeping her in the holding
cells.”
[5]
The matter has been settled on the basis that the defendant is to pay
the plaintiff the capital
amount of R200 000.00 in respect of
“
damages suffered by the Plaintiff
”, together with
interest on the said amount and costs of suit.
Legal
principles and application thereof to the facts:
[6]
Rule 67A was inserted, and rule 69 substituted, both with effect from
12 April 2024. Both rules
only address awards of costs as between
party and party.
[7]
Rule 67A(3)(a) determines as follows:
“
(3)(a)
A costs order shall indicate the scale in terms of rule 69,
under which costs have been granted.
(b)
In considering the factors to award an appropriate scale of costs,
the court may have regard to:
(i)
the complexity of the matter; and
(ii)
the value of the claim or importance of
the relief sought.
(c)
If the scale in terms of paragraph (a) s not indicated in the order,
scale A of Rule 69(7) shall apply to the costs
that the court has
awarded.”
[8]
In terms of rule 69(7) the scales of fees contemplated by rule 67A(3)
are scale A,
scale B and scale C. The fees connected to the
respective scales are as follows:
Scale
A
R375.00 per quarter of an hour
or part thereof (maximum allowed)
Scale
B
R750.00 per quarter of an hour
or part thereof (maximum allowed)
Scale
C
R1 125.00 per quarter of
an hour or part thereof (maximum
allowed)
[9]
The costs order made by the court must only indicate the scale in
terms of rule 69, under which
costs have been granted. The
court is not required to also indicate in its order whether the
maximum amount or a lower amount
than the maximum one in the
particular scale is allowed. The taxing master retains a
discretion to determine what the reasonable
amount within the
parameters of the relevant scale should be. See
Erasmus:
Superior Court Practice,
DE van Loggerenberg, at RS 23, 2024,
D1 Rule 69-6
[10]
Mr Chauke submitted that scale A is the appropriate scale in the
present matter. He referred to the judgment
of
Mashavha v Enaex
Africa (Pty) Ltd
(2022/18404) [2024] ZAGPJHC 387 (22 April
2024). He submitted that only the importance, value and
complexity of the case
are the factors in terms of rule 67A(3)(b)
which are to be taken into consideration when determining the
appropriate scale.
Mr Chauke submitted that none of the said
factors justify costs on scale B in the present circumstances.
[11]
The judgment in
Mashavha
,
supra,
is criticized
in certain respects by the learned author of
Erasmus: Superior
Court Practice
,
supra,
at RS 23, 2024, D1 Rule 67A-8
to 67A-9:
The
approach adopted by Wilson J is not free from difficulties, for the
following reasons, amongst others:
(a)
The factors set out in rule 67A(2) are
not factors to be taken into account by the court in determining an
appropriate scale of
fees in terms of rule 67A(3). Thus, the
‘inartful or unethical conduct’ referred to in paragraph
11 of the judgment
is irrelevant as far as an appropriate scale is
concerned. This is recognized in paragraph 19 of the judgment.
(b)
It is not correct, as held in paragraph
16 of the judgment, that the default position is that fees will be
recovered on scale ‘A’
unless a higher scale has been
justified. There is simply no indication in rules 67A and 69 to that
effect. If that is the position,
as Wilson J would have it, a court
would not be exercising its discretion in determining that scale ‘A’
is the appropriate
scale. In terms of rule 67A(3)
(c)
scale
‘A’ is the default scale only if the costs order does not
indicate the scale of costs.
(c)
The importance of the relief claimed (i
e not the ‘importance of the case’) has both a subjective
and an objective element.
To have applied only an objective test in
paragraph 20 of the judgment appears to be incorrect under
circumstances where the parties
were not invited to place facts
before the court in order to properly consider the subjective (or
objective) position.
(d)
The value of the claim, and not whether
it is recovered, is a relevant factor in terms of rule 67A(3)
(b)
(ii).
Thus, the approach in paragraph 23 of the judgment appears to be
incorrect.
(e)
Wilson J was not called upon to make a value judgment of a general
nature concerning counsel’s fees.
That was simply not an issue
in the case before him. Paragraphs 24–27 are accordingly
imprudent and inappropriate
19
or,
at best, constitute
obiter
dicta
.”
[12]
I do not have to express myself on the applicability, or not, of the
factors listed in rule 67(A)(2) for
purposes of determining the
appropriate scale, since those factors are not relevant in this
instance where the trial has been settled.
[13]
Mr van Eeden submitted that scale B is the appropriate scale of fees
in the present matter. With regard to
the importance of the relief
claimed, he relied on the judgment in
Mjali v Minister of
Police
(2223, 2226 & 2227/2016) [2020] ZAECMHC 49 (29
September 2020). (The said judgment served on appeal [
Minister
of Police v Mjali
2023 JDR 4603 (ECM)], which appeal was
successful, but without affecting the principles Mr Van Eeden is
relying upon.) The judgment
also dealt with unlawful arrest and
detention and malicious prosecution. At paragraph [82] of the said
judgment reference was made
to the following judgment:
[82]
In RA & others v Minister of Police, unreported judgment
full bench, dated 21 April 2016, (Case
Number A315/2015 available on
saflii), the court stated the following:
“
This
case also bears a public interest element as, inter alia it relates
to unlawful conduct by SAPS and the protection of the rights
of
citizens. An attack on the rights of the individual is an attack on
the community and grinding down of individual’s rights
erodes
the rights of the community as a whole. Therefore, in this type of
case the impact is not limited to the individuals but
extends to the
community of which they form part. This underscore the importance of
the matter.”
The
court continued as follows at paragraph [89] of the judgment:
“
[89]
In RA (
supra)
which was an appeal from a single judge to a
Full Bench it was held that the Judge of the court
a quo
erred
in awarding costs on the Magistrate’s Court scale merely
because of the quantum of damages awarded to [the plaintiff.
The full
bench was unanimous that the Judge
a quo
ought to have awarded
the costs to the plaintiff on the High Court scale. A number of
considerations were taken into account
in setting aside the costs
award of the court
a quo
and awarding costs on High Court
scale. Such considerations included the importance of the rights
involved, public interest, the
complexity of the matter …”
[14]
The court further found as follows at paragraph [93] of the judgment:
“
[93]
Consequently, the society has an interest in the High Court hearing
matters that relate to State Officials violating
the rights enjoyed
by individuals rather than respecting and protecting such rights.”
[15]
With regard to the complexity of this matter, I do not consider it as
uncomplicated as submitted by Mr Chauke.
This matter was due to be on
trial in respect of both merits and quantum and had been certified
trial-ready and allocated three
days for the trial. A bundle of
documents, consisting,
inter alia,
of the contents of the
police dockets and some photos, were also to be used during the
trial.
[16]
The value of the claim was R600 000.00, which is a substantial
amount which does not even fall within
the jurisdiction of the
Regional Court.
[17]
In addition to all of the aforesaid, I agree with the judgment of
Ghubhelabm (Pty)Ltd v R.A.W. Truck
Trading CC
(B3217/2023)
[2024] ZAGPPHC 460 (26 April 2024), which also dealt with the
Mashavha
-judgment,
where the court found as follows at paragraph [27] of the judgment:
“
Costs
orders, including the assessment of the appropriate Rule 69 scale,
remain a matter for the exercise of judicial discretion.”
[18]
In the totality of the circumstances I find that scale B of fees for
plaintiff`s counsel is appropriate.
Order:
[19]
The following order is made:
1.
By agreement between the parties, save
for the scale of the fees of counsel, the following order is made:
1.1
The defendant is to pay the plaintiff
the capital amount of R200 000.00 damages suffered by the
plaintiff, which amount is
to be deposited into the account of the
plaintiff’s attorneys, being the following account:
Name:
Loubser
van Wyk Inc.
Type:
Trust
account
Bank:
First
National Bank (Hatfield)
Account
No:
6[…]
Branch
code:
252145
(under
reference number W2679, with proof of payment to be sent to
info@louwalt.co.za
).
1.2
The defendant will be liable for
interest on the amount of R200 000.00, calculated at the rate of
10.75% per annum from date
of judgment until date of final payment,
if payment of the capital amount is not received within 60 days from
date of this order.
1.3
The defendant is to pay the plaintiff’s
costs of suit to date, on a scale as between party and party on the
High Court tariff
and counsel’s fees on scale B, having regard
to the provisions of Uniform Rules 67A and 69.
C.
VAN ZYL, J
On
behalf of Plaintiff:
Adv
JC van Eeden
Instructed
by:
Loubser
van Wyk Inc.
c/o
Jacobs Fourie Inc.
BLOEMFONTEIN
Ref:
P VENTER/LOU7/0072
On
behalf of Defendant:
Mr G
Chauke
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
E-mail:
gchauke@justice.gov.za
Ref:
GP CHAUKE/66/202201023/P16 K