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IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
PETRU JACOBA BOTHA N.O.
JOHANNES NICOLAAS LABUSCHAGNE N.O.
and
SUNFOX 148 CC T/A AVANTI RESTURANT
ENZO PANELATTI
LOUISE PANELATTI
INRE
PETRU JACOBA BOTHA N.O.
JACOBUS ELISA KRITZINGER N.O.
and
SUNFOX 148 CC T/A AVANTI RESTURANT
ENZO PANELATTI
LOUISE PANELATTI
JUDGMENT BY: MHLAMBI , J
Reportable: NO
Of Interest to other Judges : NO
Circulate to Magistrates: NO
Case No: 5106/2019
1st Applicant
2nd Applicant
1st Respondent
2nd Respondent
3rd Respondent
1st ·Plaintiff
2nd Plaintiff
1st Defendant
2nd Defendant
3rd Defendant
2
DELIVERED: 24 DECEMBER 2024
TAXATION REVIEW
[1] The applicants were dissatisfied with the ruling of the taxing mistress for having
disallowed certain items to which they had objected. They required her to state
a· case under Uniform Rule 48(1 ). The items objected to appeared on two bills of
cost referred to as Bills A and B. Bill A was taxed in terms of the applicants'
attorneys' letter dated 24/06/2021, in which costs were tendered. Bill B was taxed
in terms of a court order dated 16 February 2023.
[2] The items objected to on Bill A are 6 to 9, 12, and 29. Item 29 was related to
counsel's fees, but the applicants abandoned the request for its review after
noting the taxing mistress' contention that it had not been objected to in taxation.
Items 6 to 9 consisted of the following:
Item 6 -the Summons , the Particulars of Claim and Annexures to that (74 folios),
allowed in the amount of R4 921.00;
Item 7 -the Defendant's Plea (3 folios), allowed in the amount of RI 99.50;
Item 8 -the Rule 37A M inutes and Annexures to that (6 folios), allowed in the
amount of R399 .00; and
Item 9-the Notice of Set Down for Trial (1 folio), allowed in the amount of R66.50.
[3] The Applicants contended that the perusal fees associated w ith these items
would form part of the main action and should not be included in the bill of costs
at that stage of the proceedings. At the end of the hearing of the main action, the
court would make an appropriate order as to costs, including the said costs.
Suppose the Taxing Mistress deemed their inclusion necessary and reasonable
at that stage of the litigation, she should have considered awarding a lesser fee
for the perusal of the Items as the pleadings, notices, and annexures contained
in items 6 to 9 were not entirely new to the respondents' attorney who dealt with
and knew the contents those documents before receiving the Rule 28 Notice of
Amendment. The Taxing Mistress erred in allowing the full perusal fee for these
\
items. She did not consider the duplication of costs awarded to the respondents
by allowing the full perusal fee on all the items.
[4] Item 12 related to the perusal of 122 folios of the first application to amend dated
14 June 2021. A full perusal fee of R8113.00 was allowed, The application to
amend consisted of:
the Notice of Motion (4 folios) - a first perusal;
Rule 28 Notice of Amendment dated 28 April 2021 (4 folios) together with
Annexures to it consisting of "POC4.1", "POC4 .2", and "POC4 .3" (3 folios) (7
folios in total) - a second perusal of all 7 folios;
the Founding Affidavit: PJ Botha (15 folios) - a first perusal;
the Annexure 'A' - Resolution dated 10 June 2021 (1 folio) - a first perusal;
the Annexure 'B' -Letter by Applicants addressed to Respondents dated 9 June
2021 (6 folios) - a second perusal of all 6 folios;
Annexure 'C' - Particulars of Claim (13 folios) together with Annexures (a total
of 58 folios) to it consisting of:
the Agreement of Lease (28 folios) ("POC)
the Deed of Suretyship (8 folios) ("POC 2"),
the Addendum to Agreement of Lease (4 folios) ("POC 3")
The breakdown of arrears letter (2 folios) ("POC 4")
the Balance Certificate (1 folio) ("POC5");
the Section 129(1) Letters of Demand (9 folios) ("POC6.l","POC6 .2" and
("POC6.3"),
the Registered Post Slips for the Section 129(1) Letters (3 folios) ("POC7.1 ",
"POC7 .2" and "POC7 .3"), and
4
the SAPO Parcel Tracking (3 folios). ("POC8, and "POC8 .3") - all of which
constitute a second perusal of all 71 folios.
Annexure 'D' -the Rule 28: Notice of Amendment dated 28 April 2021 (4 folios)
together with Ann~xures thereto consisting of "POC4 .1 ", "POC4 .2", "POC4 .3" (3
foli~s) - a third perusal of 7 folios of.the Rule 28: Notice to.Amend .
Annexure 'E' - Defendant's Notice of Objection in terms of Rule 28(3) (6 folios)
a second perusal of 6 folios; and
Annexure 'F' -Defendant's Plea (4 folios) a second perusal of 4 folios.
[5] The applicants stated that the respondents' attorneys perused several of the
annexures to the first application to amend and that of the 122 folios, only 20 had
not been perused. 4 folios of the notice of motion, 15 of the founding affidavit,
and 1 folio of the annexure were entirely new documents to the proceedings. A
perusal of such papers should not have been allowed or allowed at a reduced
rate as it constituted a re-perusal. Items 6 and 7 were part of the application for
leave to amend , and the granting of such costs was a duplication.
[6] Items 5 to 9 on Bill B related to the perusal fees for the following items:
Item 6 -the Plaintiff's Discovered Documents (182 pages) allowed in the amount
of R6 051.50-a second perusal of 182 pages (albeit at half the tariff as presented
by Respondents in the bill of costs);
Item 7 -Trust Documents (88 folios) allow ed for R 5852.00;
Item 8 -the Summons , Particulars of Claim and Annexures (74 folios) allowed in
the amount of R4 921.00-a third perusal of 74 folios as the perusal of the same
pleadings and annexures had already been allowed i) under Item 6 of Bill A in
the amount of R4 921.00 and ii) under Item 12 of Bill A (see Annexure "C ") in the
amount of R4 721.50 (72 folios x R66 ,50); and
Item 9-the Notice in terms of Rule 28, which is understood to be the First
Application for Amendment dated 14 June 2021 (122 folios), was allowed a
5
second perusal of 122 folios in the amount of RS 113.00 as the perusal had
already been allowed under Item 12 of Bill A in the amount of R8 113.00.
[7] The applicants disagreed with the taxing mistress that the perusal of items 5-8
was necessary for drafting the Rule 28(3) notice of objection and their inclusion
in the bill of costs. Suppose she deemed their inclusion necessary and
reasonable at that stage. In that case, a reduced perusal fee should have been
allowed as the respondents' attorneys had previously applied their legal minds.
Items 8 and 9 of Bill B were duplicates of items 6 and 12 of Bill A and were
allowed in R4 921 .00 and R8 113.00. The applicants paid four times for the
perusal of the summons , the particulars of the claim, and annexures thereto, and
twice for the first application for amendment dated 14 June 2021.
[8] The applicants contended that the perusal of the Applicants' discovered
documents (182 pages) under item 6 and al_l the trust documents (88 pages)
under item 7 were unnecessary and amounted to overcaution by the
respondents. Only four folios were attached to the discovery affidavit, and the
trust documents we re attached to the respondents' answering affidavit. The
taxing mistress should have allowed the perusal of only those pages necessary
to draft the respondents' objection to the Rule 28 notice and the answering
affidavit.
[5] In her stated case, the taxing mistress noted that the amendments were made
when the matter was already set down for trial. The effect of the amendments on
all the pleadings could only be determined by a perusal of these pleadings.
Relying on Rule 28(9), she stated that the party giving notice of the amendment
shall be liable for the costs thereby occasioned to any other party unless the
court otherwise directs.
[6] The pleadings and notices at items 6 to 9 and 12 could not have been perused
at a lesser fee as suggested by the applicant's representative because re-perusal
is when the same document is perused mo re than once for a different reason
than when it was initially perused. This perusal will qualify as a justifiable party
and party charge according to the taxation of legal costs in South Africa·. She
aligned herself with the views of the taxing master in Lynn-an Civils CC v Eskom
6
Holdings Ltd1 that it was reasonable and necessary for an attorney to peruse
relevant annexures to determine the way forward. Each amendment to the
summons and the particulars of claim required the respondent's attorneys to
peruse the documents de novo in so far as they set out the cause of action.
Failure to do so would amount to negligence by such a practitioner.
[7] She noted that Bill B came about after the applicants had brought a fresh Ru le
28 application to amend the amount claimed. The respondents' representatives
said perusing the documents to recalculate the amended claim amount was vital.
The applicants had abandoned one amendment previously, and examining the
records in conjunction with the new application to amend them was essential.
She followed the same principles in the taxation of Bill A to arrive at her decisions
regarding items 5 to 9 of Bill B. The applicants' conduct was repetitive, resulting
in increased legal costs.
[8] The applicants submitted that the objected items constituted a re-perusal. In
these extraordinary circumstances, it wou ld be fair and reasonable for the taxing
mistress, in applying her discretion, to allow a lesser fee for perusal. She erred
in allowing re-perusal fees as these had already been allowed a perusal fee
under Bill A, leading to an inequitable award of costs. Even though the rules do
not make provision for the re-perusal of documents, Rule 70(5)(a) entitled the
taxing master, in his discretion, at any time to depart from any of the provisions
of this tariff in extraordinary or exceptional cases, where strict adherence to such
requirements would be inequitable. The taxing mistress erred in not considering
the prior knowledge or even detailed knowledge that the respondent's
representatives had on several of the re-perused documents, especially noting
the re-perusal of items in Bill B, which had been allowed for perusal in Bill A. The
documents were not entirely unknown to the respondent's representatives at the
time of re-perusal and, therefore, warranted a departure from the prescribed fee
for perusal.
[9] In her report in terms of Rule 48(5)(b), the taxing mistress stated that it was
necessary to note that the first application for amendment was served on 14 June
1 1756/2014 Free State Division
7
2021, approximately a year after the matter was considered trial-ready. The
amendment sought to amend the claim amount from R 290 205.45 to R
204 010.50, the computation of the rent, electricity, water, sanitation, and refuge
amounts. Numerous annexures were attached to the pleadings supporting the
applicant's amended claims. The pleadings, application to amend, and discovery
documents had to be considered and perused by the respondent's legal
representative to make the necessary objection, as the applicants sought to
change the fundamental basis and computation of the claimed debt. This was
work done.
[1 0] The respondent's legal representative had to consider the new calculation that
had to be done, how the new information submitted changed and why, who was
affected, and why the amendment was not done earlier .. All documents filed are
reconsidered and analysed to determine the defence in this case. The efforts of
the respondent's attorneys resulted in the applicants' withdrawal of the
application and tendering the costs of the first amendment. The second
amendment application was filed on 23 June 2022, exactly one year after the
first Rule 28 application was filed. This was two years since the matter w as
initially set down for trial. This amendment did not only seek to amend the
competition of the amounts comprising the debt and affecting the annexures
attached but sought to amend the parties to the ma in action. This was not a
simple application for an amendment as it fundamentally impacted the matter,
such as the change of parties, the reliance on a different trust deed, and other
letters of authority, w hich equivocally changed the cause of action.
[11] In drafting the objection and the answering affidavit, the respondent's legal
representatives faced the task of perusing the initial founding papers with
annexures, the First Amendment w ith annexures to it, and all documen ts
discovered to extrapolate evidence and determine the cause and effect on the
new , c;:urrent amendment before the court.2 The respondents argued that the
pleading would have to be exchanged afresh because of the amendment ,
2 Para 11 of the 48(5)(b) report.
8
rendering the previous pleadings redundant. Upon inspecting the file, the parties
began exchanging pleadings again and filing an amended plea.
[12] The Taxing master must strike a moderating balance that affords an innocent
party adequate indemnification within reasonable bounds. This equitable
balance should be struck correctly in the light of all the circumstances. The court
will not interfere with a ruling made by the Taxing Master merely because its view
differs from his or hers but only when satisfied that the Taxing Master's view
differs so materially from its own should it be held to vitiate the ruling. Time
related charges are not decisive, and an objective assessment of the features of
the case is primarily used to determine the reasonableness of the fee for that
work and to obviate the charging of exorbitant fees for slow and inefficient work.3
[1 O] The court order states that the applicant is granted leave to amend the summons
per the amendment sought in annexure FA 5 to the founding affidavit.
[11] Rule 70 (3) of the Uniform Rules of Court provides that the taxing master shall,
on every taxation, allow all such costs, charges, and expenses as appear to him
to have been necessary or proper for the attainment of justice or for defending
the rights of any party but save as against the party who incurred the same, no
costs shall be allowed which appear to the taxing master to have been incurred
or increased through over-caution, negligence or mistake.
[12] In deciding what fee to allow for the perusal of documents, the taxing master
must inquire into the time necessarily taken by the attorney perusing.4 When
there are delays and documents have to be perused again, a re-perusal fee will
be allowed, depending on the delay's length and the matter's nature.5 The taxing
master w ill consider that the documents perused w ere not res nova to the
attorney the second time around (i.e., at reperusal) and allow a fee at his or her
discretion. Tinley and Tulbagh allowed a cost of a third of what was claimed.6
3 Van Pletzen v Taxing Master of the High Court (unreported, FS case no 4992/2014 dated 15 January 2021) at
paragraph 18.
4
Para 8.10.4: Taxation of costs in the H igher and Lower Co urts A Practical G uide: A lbert Kmger; Wi lma
Mostert; Lexis Ne xis.
5 Tinley and Others v Keeble and Another; Keeble and An other v T inley and Others [2001] Jol 7266 [EJ 14;
T ulbach Mun icipality v W averen Bo ukontrakteurs (Edms) B pk and O thers 1968 (3) SA 246 (C).
6 Taxation of costs, supra, para 8.10.5.
9
When the attorney acted in the previous proceedings in which the same
documents were read, a mere glance at most of the previous papers wou ld have
been sufficient to satisfy himself which needed perusal for the eventual hearing.7
[13] In De Villiers v Estate Hunt,8 the court said that if an attorney has perused
documents in one case, he cannot claim to charge for perusing the same
documents used in a subsequent case as if they were res nova. The taxing
master should have borne that in mind and should, on the facts of the case, have
allowed a globular sum concerning the perusal charges under consideration.
[14] The applicants contend that the total amount of R14 563.50 was allowed to
peruse the summons , Particulars of Claim , and annexures under B ills A and B .
A total amount of R 16 226.00 was allowed to peruse the first amendment in Bills
A and B .
[15] As a result, the taxing mas ter's al/ocatur:
1. Is set aside, and the matter is sent back to the taxing master to reconsider the
following items: 6,7,8,9 and 12 of Bill A; 6,7,8 and 9 of Bill B.
2. There is no order as to costs.
On behalf of the applicant: Adv. JS Rau tenbach
Instructed by: Van Wyk Attorneys Inc.
7 Collins Road
2nd Floor Linde Building
Arboretum
Bloemfontein
1 WAPENAAR v TODT AND ANOTH ER 1962 (I) SA 239 (W)
8 J 940 CPD 5 18 at p. 526.