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2024
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[2024] ZAECMKHC 100
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Mokwana v Minister of Justice and Constitutional Development and Others (1825/2024) [2024] ZAECMKHC 100 (20 August 2024)
FLYNOTES:
COSTS – Taxation –
Out
of town attorney –
Indigent plaintiff in Eastern
Cape – Attorney in Pretoria briefed – This firm then
appointing attorneys in Eastern
Cape – Taxing mistress
refusing to allow two bills of costs – Case law discussed –
No evidence that plaintiff
could not have found competent local
firm that would have acted on contingency basis –
Instruction of firm in Pretoria
was not necessary –
Application for review dismissed – Uniform Rule 70(8).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION
– MAKHANDA)
Reportable
/
Not
Reportable
Case no.: 1825/2024
Matter heard on: 13
August 2024
Judgment delivered on:
20 August 2024
In
the matter between:
BUSISWE
MOKWANA
Applicant
and
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
First
Respondent
DIRECTOR
COURT OPERATIONS,
EASTERN
CAPE HIGH COURT,
DENIM
KROQWANA N.O.
Second
Respondent
SOPHIE
KLUE, TAXING MASTER OF
THE
HIGH COURT, MAKHANDA N.O.
Third
Respondent
THE
MEC FOR HEALTH EASTERN CAPE
PROVINCE
Fourth
Respondent
In
re:
BUSISWE
MOKWANA
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE
COMMITTEE
FOR HEALTH, EASTERN
CAPE
PROVINCE
Defendant
JUDGMENT
BRODY AJ
1.
This is an application for a review of the
decision of the Taxing Mistress and I shall refer to the parties as
they have been cited
above, and in the main application.
2.
The applicant, (the mother and guardian of a minor
child) who instituted action under case number 1201/2017 for damages
that presumably
arose out of the negligent treatment of the minor
child. This is not clear from the review papers, or the record of the
proceedings.
3.
The applicant was successful in her action on
behalf of the minor child and was awarded a substantial capital sum
and cost order.
4.
The cost order awarded was the usual order and
reads as follows:
“
The
reasonable costs of the consultations of the plaintiffs counsel and
attorney with plaintiffs experts on quantum, of whom notice
has been
given in terms of Rule 36 (9) (a) and (b), in preparation for trial”
5.
The applicant resides at Mqanduli in the Eastern
Cape, is unemployed and indigent, and was unable to afford legal
representation.
The issue of costs and legal representation was
referred to Christopher Consulting (Pty) Ltd, (“Christopher
Consulting”)
who in turn briefed Werner Boshoff Incorporated, a
panel of attorneys for Christopher Consulting.
6.
Werner Boshoff Incorporated practise from Pretoria
in the Province of Gauteng and they in turn appointed Ms Ilze Pienaar
practising
at Netteltons Attorneys Incorporated in Makhanda, Province
of the Eastern Cape. Summons was issued under case number 1201/2017
against the MEC of Health, Eastern Cape Province, (“the
Defendant”).
7.
After receipt of the award by this court the
applicant, in terms of paragraph 2 of the order of the court
submitted two bills of
costs between party and party by Werner
Boshoff Incorporated, and the correspondents at the seat of the
court, namely, Netteltons
Attorneys.
8.
The defendant submitted a notice of objection to
the taxation of the applicants bills and the main objection was the
presentation
of two sets of bills and argued that a reconsolidated
bill should be presented for taxation.
The
basis for the objection was that the applicant lived in Mqanduli and
instructed attorneys in Pretoria, not being a close local
attorney
and alleged that the plaintiff did not reside, or work, in Pretoria.
The defendant further submitted to the taxing mistress
that the
plaintiff should have instructed an attorney in a nearby town center
such as Mthatha, Queenstown or East London or an
attorney at the seat
of the court directly, instead of instructing an attorney in
Pretoria, which had resulted in unnecessary duplication
costs, which
is not for the account of the defendant.
9.
The plaintiff invited the defendant to identify
any unnecessary duplication of costs which would not been incurred,
had the plaintiff
appointed an attorney in Mthatha, Queenstown or
East London. These costs were never identified as a result of the
Taxing Mistress’s
decision.
10.
The Taxing Mistress then refused to allow two
bills of costs and refused to sign an allocator, ruling that “no
items”
had been disallowed.
11.
The Taxing Mistress then gave the following
reasons for failing to tax the bills, “I cannot allocate the
bills by endorsing
the allocators, because Netteltons Attorneys are
dissatisfied with my ruling that one composite bill should be
presented for taxation.
The review should first be decided before the
bills can be taxed.”
“
Please
take note that Rule 48 is meant for a party that is dissatisfied with
Rulings relating to individual items on the bill. Thus,
your review
should be brought in terms of Rule 53.
On that basis I refuse to
state a case in terms of Rule 48 (1).”
12.
These reasons were given by the 20
th
of
July 2023.
13.
Ms Pienaar then received instructions from her
instructing attorney to proceed with an application for review and to
set aside the
Taxing Mistress decisions on the 24
th
of July 2023.
14.
A draft founding affidavit was prepared on 10
August 2023 in consultation with Ms Pienaar’s instructing
attorney, and the
applicants cost consultant. Ms Pienaar, however,
was under the impression that the pleadings and annexures were be
considered by
the instructing attorney and awaited further detail.
15.
It was only on 10
th
November 2023 that Ms Pienaar received
communication from the applicants’ costs consultant enquiring
on the progress report
of the review that Ms Pienaar had been under
the mistaken belief that the matter was still being considered by the
instructing
attorney.
16.
Due to pressure of work from November 2023 to the
recess in December 2023 Ms Pienaar overlooked the matter and
thereafter documents
were sought, and were only made available later.
17.
The record was eventually finalized, and the
review application was launched on the 2
nd
of May 2024.
18.
In terms of Rule 53, the review had to be brought
within a reasonable period of the decision of the Taxing Mistress,
(20 July 2023)
and the applicant contends that the review application
was brought three-and- a-half months later than the 180 days
provision in
a PAJA application.
19.
The applicant’s attorney contended that,
despite the delay, there is no prejudice to the defendant in that the
legal costs
have not being taxed, and no interest runs on the bills
of costs until the bills are allocated.
20.
I am persuaded in the submission that there can be
no prejudice to the defendant, in that the bills of costs have not
been taxed
and there has been no allocatur.
21.
I agree with the applicant that the minor child
will be prejudiced if condonation is not granted as the issue of the
taxation of
the costs will not be finalized until this issue is
resolved.
22.
Therefore, despite the lengthy delay in bringing
the application, I am inclined to grant condonation in the best
interests of the
minor child, and in the interests of justice.
23.
In considering a review of taxation on this issue
it is appropriate that Rule 70 (8) is set out, which reads as
follows:
“
(8)
Where, in the opinion of a Taxing Master, more than one attorney has
necessarily been engaged in the performance of any of the
services
covered by the tariff each such attorney shall be entitled to be
remunerated on the basis set out in the tariff for the
work
necessarily done by him”
24.
There
can be no doubt from the rule that the decision as to whether a
litigant is entitled to recover the cost of an out of town
attorney,
as well as those of an attorney engaged at the seat of the court is
one for the Taxing Mistress.
[1]
25.
This was also considered by Kroon J in
Schoeman
v Schoeman
at 431-44B where the
following was stated:
“
For
the sake of completeness I should mention that although the present
proceedings are termed a review they are in fact a ‘revision’
of the Taxing Master’s decision and the Court’s power to
interfere is not limited to that applicable to the ordinary
type of
review
stricto
sensu
which
concerns the interference by the Court with improper exercise of a
discretion entrusted to him by, eg, disregarding factors
which ought
proper to have been taken into account or giving a grossly
unreasonable ruling or where he failed to apply his mind
to the
matter or where he acted on a wrong principle, but also where the
Court is of the view that the taxing official has been
clearly wrong
in regard to some matter, even one involving degree. The Court will,
however, not lightly interfere with the decision
of the taxing
official. The matter must go further than mere disagreement therewith
and the Court must be distinctly of the opinion
that the decision is
wrong before interference therewith will be warranted. See Cilliers
Law of Costs 2
nd
ed
at 226-8 B and the cases there cited.”
26.
Applicants counsel, Ms Sephton, in her eloquent
heads of argument made reference to the matter of
AD
and Another v MEC for Health and Social Development, Western Cape
2017 (5) SA 134
(WCC
) and in that
matter Rogers J (as he was then) stated the following:
(12)
the plaintiffs could not have afforded to run this litigation at
their own expense. It could only have
brought the case by reaching a
special arrangement with the attorneys.
(13)
the general rule is that a litigant who resides in a town distant
from the seat the court is entitled
to engage an attorney where he
resides and that in such cases that the cost of the second
(correspondent) attorney at the seat
of the court is justified.
(
Sonnenburg v Moima
1987 (1) SA 571
(T))
. The general rule
would thus not, in the present case, permit the plaintiffs to recover
additional costs occasioned by the choice
of their Johannesburg
attorney. I cannot find on the evidence before me that the plaintiffs
could not have found a competent firm
in Cape Town to act on a
contingency basis. Put differently, I cannot on the material before
me conclude that the plaintiffs could
not have instituted action
except be engaging Joseph’s Incorporated and other out of
town-firm willing to act on a similar
basis. The plaintiff may be
able to persuade the Taxing Master that this was indeed the case in
which event the Taxing Master in
his discretion may properly allow
the further costs occasioned by the engagement of the main attorney
in Johannesburg.
27.
With regard to the authorities stated above, this
court is only able to depart from the Taxing Mistress decision if the
court is
satisfied that she did not exercise her discretion properly,
or that she was clearly wrong. This very issue was a matter in which
Eksteen J was faced with similar circumstances, and in which he had
the following to say:
“
[9]
In the circumstances I would only be able to depart from the Taxing
Masters decision if
I’m satisfied here that she did not
exercise her discretion properly, or that she was clearly wrong.”
[2]
28.
In the present review the applicant had submitted
that the Taxing Mistress was clearly wrong and that she failed to
apply the principles
set out in the authorities, referred to by the
applicant.
29.
In
Sonneburg v Moima
1987 (1) SA 571
(T)
Ackermann J set out
the principle relevant to two sets of attorneys. The reason why a
litigant is entitled to recover the costs
of two attorneys is that it
is desirable that a litigant should have an attorney at the place
where he his resident, with whom
he can easily consult.
30.
The findings in
Sonneburg
v Moima
were approved by a Full Bench
of the Eastern Cape in the matter of
The
Master v Gerber and Another: Thomas v Minister of Law and Order and
Others
1989 (2) SA 659
, where Zietsman
AJP, as he then was, stated the following at 663H-J:
“
I
would, however, like to qualify and extend in a limited way the
meaning of the word ‘plaaslike’ in the passage just
quoted. In my opinion there may be cases where the ‘local’
attorney instructed by the litigant is not an attorney who
practices
at the place where the litigant resides or carries on his work but
where the litigant, if successful, should nevertheless
be entitled to
recover his costs. A person may, for example, reside in a small town
where only one attorney has a practice and
he may for good reason not
wish that particular attorney to act for him. If he then gives his
instructions to an attorney in a
nearby town, who over the years has
always done his legal work for him, I can see no reason why he should
not be entitled to recover
the costs of such attorney on the same
basis as if the attorney had his office at the place where the
litigant resides.”
31.
In
Morris v
Commercial Union Assurance Company of South Africa Limited
1990 (3)
SA 934
Levy AJ found the following:
“
The
boundaries of towns do not limit parties choice of attorneys. If an
attorney lives conveniently near to a litigant or if the
litigant
lives conveniently near to the attorneys offices then the litigant
cannot be denied his right to consult that attorney
merely because a
municipal boundary line separates the two places. A rule of practice
must possess a degree of flexibility as indeed
do the uniform rules
themselves, the application of which lies in the court’s
discretion.”
32.
The aforesaid approach has consistently been
accepted in the Eastern Cape and/or highly relevant to the present
review.
33.
In the present matter the applicant resides at
Mqanduli, which is 30km away from Mthatha. The applicant chose to
instruct an attorney
in Pretoria, which is 1004km away from the
applicant and 1042km from the seat of the court.
34.
There is no evidence before me, to find that
applicant could not have found a competent firm in Mthatha, or
Makhanda, that would
have acted for her on a contingency basis. This
was not canvassed at all on the papers, and I cannot find on the
material before
me that the applicant could not have instituted
action, on behalf of the minor child, save for engaging Werner
Boshoff incorporated.
35.
It follows therefore that the instruction of a
firm of attorneys in Pretoria was not “necessary”.
36.
In the review papers the submission was made that
the actions of the Taxing Mistress will have serious financial
implications and
cause serious prejudice to the interests of the
minor child, and which will violate her constitutional right as
envisaged in section
28 (2) of the constitution.
37.
The main contention was that without the financing
supplied by Christopher Consulting the applicant would not have been
able to
litigate and this would be determined to the minor child, and
her rights.
38.
Ms Sephton also made reference to those
authorities where the issues of practicality and reasonable
convenience was raised and Zietsman
AJP, in response to this
argument, stated the following:
“
This,
however, is not borne out by the authorities which refer specifically
to the place of the residence or place of business of
the litigant as
the criterion for justifying his right to instruct local attorneys
and to recover the costs from the unsuccessful
litigant.”
39.
As I cannot find evidence in the case before me
that the applicant could not have found a component firm in Mthatha,
or Makhanda,
to assist her on a contingency basis, and that her only
redress was to appoint a further attorney in Pretoria I am not
persuaded
that the Taxing Mistress erred in making the ruling that
she did. Based on the facts and the authorities cited above, it is my
view that the Taxing Mistress was in fact correct, and her ruling is
upheld.
40.
In the review application the applicant sought
costs of the application from the Taxing Mistress, on behalf of the
applicant. The
defendant early on in the proceedings filed a notice
to abide.
41.
In the result, I make the following order:
1.
Condonation is granted for the late filing of the
review.
2.
The application for review is dismissed.
3.
The applicant is ordered to pay the costs of the
defendant on Scale A, in terms of Rule 69 (7).
B.B. BRODY
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant :
Adv. Sephton
Instructed
by
:
Netteltons Attorneys
118A
High Street
MAKHANDA
(REF.:
Ms. Pienaar/Sam)
[1]
Kellerman
v Die Takseermeester en Andere
1971 (4) SA 103
(NC) at 104H and
Schoeman v Schoeman
1990 (2) SA 337
(E) at 39G
[2]
An
unreported judgment of Phillippus Neckless Johannes Snyman NO &
Others v Carl Albrechtaupt, (2222/2006) at 9