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[2017] ZALCJHB 98
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Samancor Limited v NUM obo Maloma and Another (JR1061/2007) [2017] ZALCJHB 98 (24 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
Nos: JR1061-2007
In
the matter between:
SAMANCOR
LIMITED
Applicant
and
NUM
obo MARIFI JOHANNES MALOMA
First
Respondent
TAXING
MASTER, LABOUR COURTS
Second
Respondent
Heard:
13 February 2017 (In Chambers)
Date
of Judgment: 24 March 2017
Summary:
Application to review and set aside the taxation of two bills of
costs on the basis that they were taxed on an unopposed
basis in
breach of an undertaking given to the applicant. Application granted
on the basis that undertaking was binding and taxation
of the bills
in breach thereof was procedurally unfair.
JUDGMENT
BARNES
AJ
[1]
This is an application
to review and set aside, alternatively, rescind the taxation of two
bills of costs undertaken by the Second
Respondent on 30 May 2012
under the above case numbers.
[2]
The application was heard in chambers by agreement between the
parties.
[3]
The facts which gave rise to the application are the following:
3.1
The applicant unsuccessfully brought an application in the Labour
Court to review and set aside
a Commission for Conciliation Mediation
and Arbitration (CCMA) award. On appeal, the Labour Appeal Court,
overturned the decision
of the Labour Court in part. Thereafter, the
first respondent successfully appealed the matter to the Supreme
Court of Appeal.
Consequently, the applicant became liable to the
first respondent for the costs of the proceedings in the Labour Court
and the
Labour Appeal Court.
3.2
The applicant was represented in the above litigation by Ms Kate
Savage of Bowman Gilfillan Inc.
The first respondent was represented
by Mr Makinta of Makinta Attorneys.
3.3
Early in 2012, Ms Savage left Bowman Gilfillan and joined Haffegee
Roskam Savage Attorneys. At
the time of her departure, Ms Savage
sought and obtained from Mr Makinta a verbal undertaking that he
would serve any documents
or process related to the litigation
between the parties on her at Haffegee Roskam Savage Attorneys.
3.4 Mr
Makinta concedes that he gave Ms Savage this undertaking.
3.5
Nevertheless, on 26 March 2012, notices of taxation in respect of the
bills of cost arising out
of the Labour Court and Labour Appeal Court
proceedings were served on Bowman Gilfillan Attorneys and not on Ms
Savage at Haffegee
Roskam Savage Attorneys.
3.6
To make matters worse, apparently due to an administrative error,
Bowman Gilfillan Attorneys
did not draw the bills to the attention of
Ms Savage after her departure from the firm.
3.7
As a result, Makinta Attorneys taxed the bills on an unopposed basis.
3.8
Thereafter, the bills were served on the applicant to be paid.
3.9
Ms Savage first had sight of the taxed bills in late June 2012. She
immediately made telephonic
contact with Mr Makinta and reminded him
of the undertaking he had given. Ms Savage states that Mr Makinta
confirmed his undertaking
and “accepted that his conduct was in
breach of his undertaking.” Mr Makinta denies this. However, as
stated above,
he concedes that he gave the undertaking itself.
3.10
The applicant, on perusing the taxed bills, took the view that
certain of the items were unreasonable and unjustified.
The applicant
communicated this to the first respondent and this gave rise to
attempts by the parties, with the assistance of costs
consultants on
both sides, to settle the disputed items. These attempts were
extensive. They finally proved unsuccessful on 18
March 2013.
3.11
This application was launched on 7 April 2013, approximately three
weeks later.
[4]
In its founding affidavit, the applicant states that had it been made
aware of the taxation date, it would have attended and
made
representations in relation to certain of the items on the bills. The
applicant contends that the bills fall to be reviewed
and set aside
on the basis that they were taxed on an unopposed basis in breach of
the undertaking given to it.
[5]
The first respondent raised two point
in
limine
. First, it
submitted that the applicant had delayed unreasonably in bringing the
review application and that it fell to be dismissed
for this reason.
Second, it submitted that the application was fatally defective
because the notice of motion did not request the
record or reasons
and therefore failed to comply with Labour Court Rule 7A(2)(b).
[6]
On the merits, the first respondent submitted that the undertaking
given by Mr Makinta was not binding. It submitted further
that
because no formal notice of change of attorneys had been filed, the
notices of taxation had been properly served on Bowman
Gilfillan
Attorneys.
[7]
Although neither party made reference to Labour Court Rule 25, the
application is in my view, governed by it. Rule 25 provides
as
follows:
“
25
Taxation
(1)
The registrar may
perform the functions and duties of a taxing master or appoint any
person as taxing master who is in the registrar’s
opinion fit
to perform the functions and duties as are assigned to or imposed on
a taxing master by these Rules, on such terms
and for such period as
may be determined.
(2)
The taxing master is
empowered to tax any bill of costs for services actually rendered in
connection with proceedings in the court.
(3)
At the taxation of any
bill of costs, the taxing master may call for any book, document,
paper or account that in the taxing master’s
opinion is
necessary to determine properly any matter arising from the taxation.
(4)
The taxing master must
not proceed to the taxation of any bill of costs unless the taxing
master has been satisfied by the party
requesting the taxation (if
that party is not the party liable to pay the bill) that the party
liable to pay the bill has received
due notice as to the time and
place of the taxation and of that party’s entitlement to be
present at the taxation.
(5)
Despite subrule (4),
notice need not be given to a party –
a.
who failed to appear at
the hearing either in person or through a representative; or
b.
who consented in
writing to the taxation taking place in that party’s absence.
(6)
Any decision by a
taxing master is subject to the review of a court on application.”
[8]
Rule 25 does not stipulate a time limit for the institution of an
application to review a decision by a taxing master and Mr
Mashishi,
who appeared for the first respondent, conceded that there is no
prescribed time limit for the launching of an application
of this
nature. Mr Mashishi argued however that the applicant had delayed
unreasonably in launching the review application.
[1]
[9]
I disagree. The delay in launching the review application was as a
result of the parties’ efforts to settle the disputed
items on
the bills. These attempts were extensive and included the involvement
of costs consultants on both sides. A number of
proposals and counter
proposals were made over an extended period of time. These are set
out in some detail in the papers. Had
these efforts proved
successful, the need for this review application would have been
obviated. It was only on 18 March 2013 that
it finally became clear
that the disputed items could not be settled. This application was
launched promptly thereafter, on 7 April
2013.
[10]
For the above reasons, I am of the view that the review application
was launched within a reasonable time in the circumstances
and that
there is no merit in the first respondent’s point
in
limine.
[11]
The first respondent’s second point
in
limine
is also
without merit. It is not correct that the failure by an applicant for
review to invoke Rule 7A(2)(b) renders its application
fatally
defective. It is not incumbent on an applicant for review to invoke
Rule 7A(2)(b). This is so especially, but not only,
in cases in which
there is no record.
[12]
In
Simelela and Others v Member of the Executive Council for
Education, Province of the Eastern Cape and Another
(2001) 22 ILJ
1688 (LC), this Court held as follows with reference to Rule
7A(2)(b):
“
This
rule is similar to rule 53 of the Uniform Rules of the High Court.
Rule 53 bears the same relationship to rule 6 of the Uniform
Rules as
rule 7A has to rule 7 of the Rules of the Labour Court. It is trite
that rule 53 of the Rules of the High Court is for
the benefit of the
applicant in review proceedings, and that an applicant’s
decision to proceed in terms of rule 6 without
calling for the record
of the proceedings under review is not fatal to the application.
The
record contemplated in rule 7A(2)(b) is the record, either
handwritten or electronically recorded, of formal proceedings which
require such a record. No such record exists in the present
matter.”
[2]
[13]
The proceedings before a taxing master are not usually recorded. But
in any event, the applicant in this case seeks to review
and set
aside the bills on the narrow basis that the taxation proceeded on an
unopposed basis in breach of an undertaking given
to it. There was,
in these circumstances, no obligation on the applicant to invoke the
provisions of Rule 7A(2)(b).
[14]
Turning to the merits of the review application, I do not accept the
first respondent’s submission that the undertaking
given by Mr
Makinta was not binding. There is a duty of care owed by attorneys
conducting litigation on behalf of their clients,
both to the Court
and to their opponents.
[3]
The
duty exacted by the law in this regard is one of
uberrima
fides
–
that is, the highest possible degree of good faith. This clearly
includes the duty to honour undertakings such as the one
given by Mr
Makinta. This is so regardless of whether or not a formal notice of
change of address or of attorneys was filed.
[15]
Moreover, and in addition to the duty derived from common law, Labour
Court Rule 25(4) itself imposes a duty on a party requesting
taxation
to satisfy the taxing master that the party liable to pay the bill
has received notice as to the time and place of taxation.
In this
case, Mr Makinta’s failure to ensure that the notices of
taxation were served on Ms Savage as per his undertaking
meant that
this rule was effectively breached.
[16]
In
SASBO – The Finance Union v UFIWO and Others
(2003)
24 ILJ 231 (LC), this Court confirmed that Rule 25 of the Labour
Court Rules affords a party who is aggrieved by a taxing
master’s
decision a single remedy, namely that of common law review. It is
trite that at common law, decisions are subject
to be reviewed and
set aside if the requisite standards of procedural fairness are not
met. In this case, the bills were taxed
on an unopposed basis in
breach of a binding undertaking given to the applicant. This meant
that the applicant was unfairly deprived
of an opportunity to be
heard in relation to the bills. The taxing of the bills was therefore
procedurally unfair and they fall
to be reviewed and set aside for
this reason.
[17]
Since no costs order was sought by the applicant, none will be made.
[18]
I accordingly make the following order:
Order
1.
The decisions of the Second Respondent in
the taxations of the bills of cost undertaken on 31 May 2012 under
case numbers JA57-2008
and JR1061- 2007 are reviewed and set aside.
2.
The bills of cost are referred back to the
Second Respondent for a taxation
de novo
to be undertaken on an opposed basis on a date to be determined by
the Second Respondent.
3.
There is no order as to costs.
__________________________
Heidi
Barnes
Acting
Judge of the Labour Court
Appearances:
For
the Applicant: Adv M Musandiwa instructed by Hafegee Savage Roskam
For
the Respondent: Adv P Mashishi instructed by Makinta Attorneys
[1]
In the absence of a prescribed time period, the review application
must of course be brought within a reasonable time, see
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13 (A).
[2]
At para 17.
[3]
See
Barlow Rand Ltd t/a
Barlow Noordelike Masjinerie Maatskappy v Lebos and Another
1985 (4) SA 341
(T)