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2024
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[2024] ZAFSHC 350
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Mofokeng and Another v Taxing Master of the Free State High Court and Others (4685/2023) [2024] ZAFSHC 350 (5 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable/Not
reportable
Case
number:
4685/2023
In
the matter between:
THABO
MOSES MOFOKENG
1
st
APPLICANT
MABATHO
MOFOKENG
2
nd
APPLICANT
And
THE
TAXING MASTER OF THE FREE STATE
HIGH
COURT
1
st
RESPONDENT
THE
RIDGE BODY CORPORATE
2
nd
RESPONDENT
THE
TRUSTEES OF THE RIDGE BODY CORPORATE
3
rd
RESPONDENT
THE
NATIONAL REAL ESTATE (PTY) LTD
4
th
RESPONDENT
Coram:
Loubser J
Heard:
25 July 2024
Delivered:
5
November 2024
Summary:
Taxation award and allocatur made by the Taxing
Master after Notice to Oppose items on Bill of Costs filed late –
whether
a ground for rescission of the allocatur
ORDER
1.
The application for rescission and setting
aside of the allocatur made by the Taxing Master on 29 April 2024
under case number 4685/2023,
is dismissed.
2.
The Applicants to pay the costs of the 2
nd
,
3
rd
and 4
th
Respondents on the party and party scale, including the fees of
counsel on scale B.
JUDGMENT
LOUBSER J
[1]
The Applicants made application in this
Court “that the taxation award, the allocatur, made by the
taxing master on 29 April
2024 and dated 29 April 2024 in respect of
Symington and De Kok Attorneys fees and disbursements under case
number 4685/2023, be
rescinded and set aside”. Secondly, they
pray that there be no order as to costs unless any Respondent opposes
the application.
They pray that any opposing party be ordered to pay
the costs of the Applicants, including the costs of counsel on scale
C.
[2]
The 1
st
Applicant is a practicing advocate at the Cape Town Bar, and the 2
nd
Applicant is his wife. They issued summons against the 2
nd
,
3
rd
and 4
th
Respondents during September 2023, claiming for damages they
allegedly suffered at the hands of the Respondents. An exception was
taken against the particulars of claim, which exception was upheld by
Hefer, AJ on 1 March 2024. He granted the plaintiffs leave
to amend
their particulars of claim within 21 days of the Court order, and
ordered them to pay the costs of the exception on a
party and party
scale.
[3]
It is in relation to this order of costs
that the Respondents served a Notice of Taxation in terms of Rule
70(3B) on the Applicants
on 18 March 2024. The Notice was accompanied
by a Bill of Costs, and it set down the taxation of the Bill of Costs
for 29 April
2024 at 9h45 in the morning. In the Notice the
Applicants were given 20 days after receipt of the Notice of Taxation
within which
to file a Notice of Intention to Oppose the taxation,
together with a list of all the items on the Bill of Costs to which
they
object, and a brief summary of the reasons for such objections,
alternatively to attach the marked Bill of Costs indicating the
items
in dispute.
[4]
In the Notice of Taxation the Applicants
were further informed that should they fail to file their Notice of
Intention to Oppose
within the time specified, the Bill of Costs will
be submitted to the taxing master for taxation on the specified date
without
further notice. They were also informed that if they do give
Notice of Intention to Oppose within the specified time, they may
object at the taxation to the items specified in their Notice of
Opposition.
[5]
It
is common cause on the papers before the Court that the 20 days
within which the Applicants could file their Notice to Oppose
together with a list of all the items to which they object, expired
on 18 April 2024 without them having filed the required Notice.
They
only filed their Notice to Oppose together with the list of
objections and the reasons therefore, on the morning of 29 April
2024
when the taxation was about to begin. The Applicants were represented
by their Bloemfontein based attorney at the venue for
the taxation.
As the taxing master has no power to condone the late filing of the
Notice of Opposition,
[1]
the attorney requested the taxing master and the attorneys appearing
for the Respondents for a postponement of the taxation
proceedings to
a later date. The taxing master then indicated to the attorney of the
Applicants that a postponement would be granted
if the attorneys for
the Respondents would agree to the postponement. At 14h00 that
afternoon and after receiving instructions,
the attorneys for the
Respondents refused to agree to a postponement. The taxation
proceedings then commenced on an unopposed basis
with the attorney of
the Applicants still in attendance. The taxing master resolved that,
since the Notice of Opposition was filed
late, the attorney for
Applicants would not participate in the proceedings, which would be
considered to have been held in the
Applicants’ absentia.
[6]
The
Applicants now seek the rescission and the setting aside of the
allocatur eventually issued by the taxing master (1
st
Respondent). The application is made on the basis that the late
filing of the Notice of Opposition was not willful, and that a
number
of items in the allocatur were erroneously sought and erroneously
granted. To demonstrate that the late filing was not willful,
the
Applicants provided an explanation which they contend is a reasonable
and acceptable explanation for the lateness. In contending
as such,
it is obvious that the Applicants are relying on the provisions of
Rule 42, which provides,
inter
alia
,
that a court may rescind an order or judgement erroneously sought or
erroneously granted in the absence of any party affected
thereby.
Which appears to be equally obvious, is that Rule 42 deals with
judgments and orders of Courts of law. This is despite
the view
expressed
[2]
that the
taxing master is, in a sense, a court. In my view, the relief sought
by the Applicants ought not to be for a rescission
and a setting
aside in terms of Rule 42, but rather for a review and a setting
aside of the taxing master’s decision not
to postpone and for a
review of certain items allowed in the allocatur. For the review of
certain items allowed in the allocatur,
the Applicants should rather
have made use of Rule 48, which provides for a decision of a judge on
review in chambers.
[7]
Be it as it may, I propose to deal with the
application as it stands before the Court in order to bring finality
to the issues raised
by the Applicants. As mentioned earlier, they
have offered an explanation for the late filing of their Notice to
Oppose. This was
apparently to comply with the requirement set in
Rule 31(2)(b) that the Court may, upon good cause shown, set aside a
default judgment.
[8]
The explanation of the Applicants to show
such good cause, consist of the following: The Applicants say in
their founding affidavit
that the 2
nd
Applicant fell sick on 26 March 2024, whereafter she was booked off
sick until 28 March 2024. They appended a copy of the medical
certificate to this effect. The 1
st
Applicant says that he had to nurse the 2
nd
Applicant until the first week of April 2024. On 3 April 2024 their
baby boy also fell sick, and they had to nurse him at home
until 9
April 2024. A medical certificate dated 8 April 2024 is appended to
confirm his sickness. On 10 April 2024 the other child
of the
Applicants became terribly sick, they say. She was bedridden and
missed school for two weeks until 19 April 2024. Again
the Applicants
produced a medical certificate showing that the child was unfit for
school from 10 April 2024 until 19 April 2024.
[9]
The 1
st
Applicant further says that his attorney of record was also not in
good health during the week of 18 April 2024. He consulted a
doctor
on 18 April 2024, who booked him off until 25 April 2024. A medical
certificate is appended confirming same. Eventually,
the attorney was
booked of until 28 April 2024. The taxation was set down for the next
day, 29 April 2024.
[10]
According to the 1
st
Applicant, his family was so severely plagued by sickness as from the
date they received the Notice of Taxation on 18 March 2024
up to the
date that they had to file the Notice of Opposition on 18 April 2024,
that he even had to turn down briefs during that
period.
[11]
While it may be so that the Applicants
found themselves in a predicament from 26 March 2024 to 18 April
2024, there is no explanation
offered for the period 18 March 2024 to
26 March 2024. In addition, there is no explanation whatsoever why
their attorney in Bloemfontein
could not have attended to the
preparation and filing of the Notice of Opposition during the period
they were unable to do so.
On their own version, he only became ill
during the week of 18 April 2024. That was after the Notice of
Opposition became due on
18 April 2024.
[12]
In such circumstances this Court cannot
find that the Applicants have provided a reasonable and acceptable
explanation for their
default. They have therefore not shown good
cause for a rescission and the setting aside of the allocatur.
[13]
The Applicants further indicated a number
of items in the Bill of Costs provided by the Attorneys for the
Respondent with which
they do not agree. They submit that they have a
good prospect of successfully objecting to those items should
rescission be granted.
It is to be noted that the taxing master did
tax off or disallowed some of the items presented by the attorneys,
and that all the
items were not simply agreed to. This leaves the
strong impression that the Taxing Master was satisfied that the items
allowed
were allowed in accordance with the law. In the premises, it
cannot be said that the Applicants would necessarily have good
prospects
of success in a second round of taxation.
[14]
More importantly, this Court cannot set
aside the whole allocatur where only certain items of the total are
challenged. This underlines
the Court’s view that the
Applicants should rather have followed the route of Rule 48 to obtain
a review of the ruling of
the taxing master on the items that they
wish to dispute. The present application is, after all, an
application for rescission
and not for the setting aside of the
taxing master’s ruling on certain items.
[15]
Lastly, the Applicants are challenging the
authority of the Respondent’s attorney to oppose the
application for rescission,
since there is no indication in the
answering affidavit that he was authorised by the Respondents to do
so. In my view, this contention
is without merit, since the firm of
attorneys in question have represented the Respondent throughout all
the proceedings leading
to this application for rescission. In
addition, the 2
nd
and 3
rd
Respondents have filed a Special Power of Attorney two days before
the hearing of the application. In this document they confirm
that
the attorney is and was duly authorised to oppose the rescission
application.
[16]
The application can therefore not succeed.
As for costs, I can find no reason why the general rule that costs
follow the outcome,
should not apply. The
following
order is made:
1.
The application for rescission and setting
aside of the allocatur made by the Taxing Master on 29 April 2024
under case number 4685/2023,
is dismissed.
2.
The Applicants to pay the costs of the 2
nd
,
3
rd
and 4
th
Respondents on the party and party scale, including the fees of
counsel on scale B.
P.J. LOUBSER, J
For
the Applicant:
Adv.
T. M. Mofokeng
Instructed
by:
Modisenyane
Attorneys Inc, Bloemfontein
For
the 2
nd
,3
rd
& 4
th
Respondent
Adv.
W. A. Van Aswegen
Instructed
by:
Symington
and De Kok Attorneys, Bloemfontein
[1]
Olgar
v Minister of Safety & Security 2012(4) SA 127 (ECG)
[2]
By
Van Loggerenberg, Superior Court Practice, 2
nd
Edition, in his commentary on Rule 70(2), page D1-782