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[2011] ZALCCT 74
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National Union Of Mineworkers and Others v Trans Hex Operations (Pty) Ltd (C614/2009) [2011] ZALCCT 74 (24 May 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN CAPE TOWN
CASE
NO
: C614/2009
IN
THE MATTER BETWEEN:
NATIONAL
UNION OF MINEWORKERS
1
ST
APPLICANT
SECOND
TO FURTHER APPLICANTS
AS
PER SCHEDULE “A”HEREWITH
2
ND
APPLICANT AND FURTHER APPLICANTS
AND
TRANS
HEX OPERATIONS (PTY) LTD
RESPONDENT
JUDGMENT:
REVIEW OF TAXATION
GUSH
J
[1]
This is an application by the applicants to
review the ruling of the taxing master in respect of the taxation of
the bill of costs
in this matter. The application is brought in
accordance with the provisions of Rule 48 of the Rules of the High
Court.
[2]
As the rules of the Labour Court do not
prescribe the form or procedure to be followed in reviewing rulings
of the taxing master,
in the interests of an expeditious and
inexpensive procedure, a practice has developed whereby reviews of
the taxing master are
dealt with in accordance with rule 48 of the
High Court Rules. I can see no reason why despite the absence of any
similar provision
or reference to rule 48 in the rules of this court
I should not follow this practice.
[3]
I
am satisfied that I am able to “decide the matter upon the
merits of the case and the submissions so submitted”
[1]
[4]
In
considering the applicant’s review I am mindful of the general
principles applicable to matters of this nature as set out
in the
judgment of
Tebbutt
AJ in the matter of VISSER v GUBB
[2]
,
where it was held:
The
Court will not interfere with the exercise of
[the]
discretion
[of the taxing master]
unless
it appears that the Taxing Master has not exercised his discretion
judicially and has exercised it improperly, for example,
by
disregarding factors which he should properly have considered, or
considering matters which it was improper for him to have
considered;
or he has failed to bring his mind to bear on the question in issue;
or he has acted on a wrong principle. The Court
will also interfere
where it is of opinion that the Taxing Master was clearly wrong
but it will only do so if it is in the
same position as, or a better
position than, the Taxing Master to determine the point in issue.
[3]
[5]
Rule 48 entitles any party dissatisfied
with the ruling of the taxing master in respect of any item or part
of an item which was
objected to or disallowed by notice require the
taxing master to state a case for the decision of a judge. The
notice:
(i)
must identify each item …
sought to be reviewed
;
(ii)
Set
out the grounds of objection or the finding of fact which is
challenged.
[4]
In
response to the taxing master’s statement of case the parties
are entitled to make submissions in writing but only in respect
of
those items in respect of which the taxing master has stated a
case.
[5]
[6]
As regards items 10 and 56 of the taxed
bill of costs the applicant’s did not require the taxing master
to state a case in
this regard and although she has done so, these
items do not form part of this review and her original decision must
stand.
[7]
Items 3, 6, 7, 8, 11, and 12 referred to in
the respondent’s response did not form part of the applicant’s
objection
nor has the taxing master stated a case in respect of these
items and accordingly the taxing master’s original decision
must
stand.
[8]
In respect of the taxing masters ruling in
respect of the following items to which the applicants objected,
either:
(i)
The applicants were satisfied with the
taxing masters statement of case and/or withdrew the objection viz:
Items 43, 47, 49, 58,
65, 72, 73, 80, 128, 131, 133 and 142; or
(ii)
The respondents were either satisfied with
the taxing masters statement of case, or have referred to items not
objected to by the
applicant, in respect of: items 16, 22, 25, 35,
38, 48, 52, 57, 63 66 74, 95;
And
the taxing master’s decision in respect of these items must be
confirmed.
[9]
In the circumstances only items 14,
15, 75, 76, 79, 84, 85, 90, 96, 99,
101,
105,
107, 112, 122, 125, 129, 130, 132, 134, 136, 141 and the objection to
the VAT allowed by the taxing master therefore remain
to be
considered.
[10]
In respect of items 14, 15, 75, 76,
85, 90, 96, 101, 107, 122, 125, 129, 130, 132 and 136 the applicant
in its notice of review
states that these items should be disallowed
on the grounds that
The
court order
does not make provision for
recovering fees on this basis. The taxing master allowed the fees as
if the respondent had obtained
a special costs order.
[11]
In response:
(i)
The taxing master stood by her decision in
respect of items 15 and 132. In response thereto the applicant
submitted that the amount
referred to in item 15 should be reduced by
one hour as the time spent was excessive and duplication and that
item 132 be
disallowed as being excessive and unreasonable.
(ii)
Regarding items 75, 76 the taxing master
conceded that these items should be taxed off. The respondent’s
response hereto
was simply “
The
taxing master was correct in allowing these items and opposes the
applicant’s objections”
(iii)
As regards items 85, 90, 96, 101, 107, 122,
125 and 136
the
taxing master in response to the objection and did not concede
that these items should taxed off but reduced the fee for
the second
and subsequent days to two thirds of the amount claimed. The decision
of the taxing master was accepted by the applicant
but opposed by the
respondents on the grounds that the taxing master in other matters
had allowed fees in excess of those claimed
by the respondent in its
bill of costs.
(iv)
The taxing master conceded the
objection to items 129 and 130 and agreed to tax off these items. The
ruling of the taxing master
was accepted by the applicant. The
respondent submitted that these amounts should be allowed as
legitimate party/party expenses.
[12]
The applicant’s objection to items
79, 84, 99, 105, 112, and 134 was based on the time claimed by the
respondent for the appearances
which included the short and long
adjournments. The taxing master conceded the objection and reduced
the amounts commensurately.
The respondent submitted that the “
items
were correctly allowed … and should not be reduced
”
[13]
The taxing master conceded that the
applicant’s objection that item 141 constituted an attorney and
client fee and ruled that
it be taxed off. The respondent simply
submitted that the amount was originally correctly allowed.
[14]
The
respondent’s objection to the taxing master having allowed the
respondent VAT on its fees was dismissed by the taxing
master. The
respondents in responding to this decision of the taxing master
relied on the matter of PRICE WATERHOUSE MEYERNEL v
THOROUGHBRED
BREEDERS' ASSOCIATION OF SOUTH AFRICA
[6]
.
In this matter the taxing master had held that “
the
VAT issue was not for him to determine
[7]
”
In this matter it was held that it was not for the Court to decide
this issue and the matter was referred back to the taxing
master for
reconsideration “
subject
to such proof and arguments as the parties may wish to present”
.
[8]
Neither party in this matter has suggested that the question of
whether or not VAT should be included in the bill of costs was
not
considered by the taxing master or that the parties had not presented
proof or arguments on whether the VAT constituted an
“
out
of pocket expense
”
[9]
.
This is a matter for the taxing master to decide. In any event, in
the absence of such any such averment proof or argument there
is no
basis upon which this court can even consider referring the matter
back to the taxing master to decide afresh.
[15]
Taking the above into account, in respect
of the items referred to in paragraph 9 above (save for item 14) and
bearing in mind the
principles enunciated in VISSER v GUBB I am
not satisfied that:
(i)
the Taxing Master has not
exercised
[her]
discretion
judicially and has exercised it improperly;
or
(ii)
the Taxing Master was clearly
wrong”
[16]
It is clear from the applicant’s
notice of review that it objected to the taxing master having allowed
item 14. The taxing
master has however not dealt with this item in
her statement of case.
[17]
Accordingly I uphold the taxing master’s
rulings as set out in her statement of case in respect of those items
referred to
in paragraphs 8 and 9 above and direct that item 14 be
referred back to the taxing master to be considered and for her to
issue
a statement of case in respect of that item. There is no order
as to costs.
_______________
GUSH
J
Date
of Judgment :
24
th
May 2011
In
Chambers.
[1]
Rule 48(6)(i)
[2]
1981
(3) SA 753
(C); see also Bedford Pharmaceuticals Ltd v S A Pharmacy
Board and the Taxing Master
1947 (1) SA 291.
[3]
At pages 754/5
[4]
Rule 48(1) and (2)
[5]
Aircraft Completions Centre (Pty) Ltd v Rossouw
2004 (1) SA 123
(W)
[6]
2003
(3) SA 54
(SCA)
[7]
At page 62
[8]
At page 62
[9]
At page 61