(1)
(2)
(3) 1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
REPORTABLE :YESI.N0'°"
OF INTERES T TO THE JUDGES: YES/~
REVISED.
{, ./4~-··;µ············"•' ••· ..
DATE .. Y, SIGNATU E ...
In the matter between:
SPORTS TAVERN & RESTURANT
MOAGABO ELIZABETH MOLAPO
THE SPORT TA VERN (PTY) LTD
And
THE EXECUTOR ESTATE LATE SANTOS CASE NO: HCAA0I/2023
QUO CASE NO: 5076/2020
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
DEFENDANT
2
JUDGEMENT
MULLER J:
[1] This appeal, with leave of the court a quo, emanates from an order granted by
Naude-Odendaal J in a review of a determinat ion made by the taxing master in terms rule
48.
[2] The facts underlying the review before the learned Judge are simple and
straightforward . It is common cause that the parties are embroiled in litigation during the
course of which the appellants instituted a rule 30 application due to the delivery of a
replication by the respondent which was out of time. The rule 30 application was enrolled in
the unopposed court for 25 March 2021. The respondent delivered a notice to defend on 24
March 2021. The application was then removed from the unopposed roll to enable the
respondent to deliver the necessary opposing affidavits. The respondent failed to do so and
the matter was again enrolled on the unopposed roll for 27 July 2021.
[3] When the matter was called before Kganyago J on 27 July 2021 legal
representatives appeared on behalf of both the respondent and the appellants . After
submissions were made by them, the learned Judge ordered that:
"1. The matter is postponed sine die.
2. Respondents to file answering affidavit within 10 days from the date of Order and applicant to file
reply within 10 days if any.
3. Responden t to pay wasted costs on party and party scale."
3
[4] The bill of costs issued by the appellants included only one item, the particulars of
which are described as:
"Attendance at court-matter postponed sine die, (day fee in terms of Rule 69): 1 day R20 000.00."
[5] The appellants argued before the taxing master that no provision is made in the
rules for unopposed applications or that there is an applicable tariff in connection therewith.
The taxing master allowed an amount of R5 400.00 as well as an amount of R594.00 for
attending the taxation and affixed an allocator in the amount of R5 994.00. The allocator
brought about review by the respondent before Naude-Odendaal J who made the following
order:
"1. Item 1 of the allocator by the taxing master in respect of the fee charged by an attorney for
attendance at court is received (sic) and set aside.
2. The fee allowed for attendance at the unopposed motion court is R292.00 per¼ of an hour -
1 ½ are allowed. The amount allowed by the taxing master in respect of Item 1 is substituted
with the amount of R1752-00 (1½ hours).
3. The attendance fee allowed by the taxing mater of attendance at taxation is accordingly also
reviewed and set aside and substituted with a fee of R 192. 72 for attendance at taxation.
4. No order as to costs for attendance at the review."
[6] The appellants in their heads of argument persisted with the view that the attorney was
entitled to a day fee of R20 000.00 as wasted costs. The issue this court is called upon to
decide is whether the attorney, and who appeared in the high court to move the unopposed
application in terms of rule 30, is entitled to the said day fee.
[7] Rule 70 (Item A 10 of the Tariff of Fees of Attorneys ) provides that the tariff under rule 69
is applicable to attorneys who appear in the High Court. Rule 69 is silent in respect of a
4
tariff applicable to attorneys with right of appearance in the high court, and who appear in
the high court. The appellants rely on the provisions of Item A 10 as justification for the day
fee charged on the basis that the rule does not prescribe a tariff and do not differentiate
between opposed and unopposed applications .
Rule 69(5) states that:
"The taxation of advocate's fees as between party and party shall be effected by the taxing master in
accordance with this rule and, where applicable, the tariff. Where the tariff does not apply, the taxing
master shall allow such fees (not necessarily in excess thereof) as he or she considers reasonable ".
It follows from the wording of Item A 10, read with rule 69, that attorneys who are admitted
to appear in the High Court, where there are no tariff prescribed for their appearances in
court, are entitled to equal compensat ion with advocates when they appear in the High
Court.1 What is intended by Item 1 OA is that the fees of attorneys performing the functions
of advocates in the high court are to be determined in accordance with rule 69 in cases to
which the rule applies. And the fees of those attorneys appearing in the high court are not
limited to the fees recoverab le under the tariff in the magistrate 's court (unless the court
orders otherwise).2 A taxing master, in such matters is vested with a discretion , in terms of
the common law, to determine the reasonableness3 of the fee charged by an attorney.4
[8] It was held in Hennie De Beer Game Lodge CC v Waterbok Bosveld Plaas CC and
Another° that reasonableness of the fee is determined by the taxing master in accordance
with the following guidelines:
1 Promine Agentskap en Konsultante Bpk v Du Plessis [1998] JOL 3912 (T) par 9; Stubbs v Johnson Brothers
Properties CC and Others 2004 (1) SA 22 (N) 278: Stevens NO v Maloyi2012 JDR 2548 (ECD) par 19;
Ramuhovhi v President of the Republic of South Africa and Others 2018 (2) SA 1 (CC) par 67.
2Aircraft Completions Centre (Pty) Ltd v Rossouw and Others 2004 ( 1) SA 123 (W) par 154.
3 Reasonableness is a value judgment.
4City of Cape Town v Arun Property Developm ent (Pty) Ltd 2009 (5) SA 227 (C) 237 A-H.
5 2010 (5) SA 124 (CC).
5
"The principles guiding the review of a taxation in this court were settled in President of the Republic
of South Africa and Others v Gauteng Lions Rugby Union and Another:
Costs are awarded to successful party to indemnify it for the expense to which it has been put
through, having been unjustly compelled either to initiate or defend litigation.
A moderating balance must be struck which affords the innocent party adequate indemnification, but
within reasonable bounds.
The taxing master must strike this equitable balance correctly in the light of all the circumstances of
the case.
The taxing master should be guided by the general precept that the fees allowed constitute
reasonable remuneration for necessary work properly done.
And 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 it is satisfied that the taxing master's view differs so materially from its
own that it should be held to vitiate the ruling
To these general principles must be appended one of particular importance in this case .... The
principle flowing from this is that time charged is not decisive."
The latter principle also applies to the present case with slight modification in that it is not
decisive that the rule does not expressly exclude (or prescribe) a day fee.
[9] The taxing master, regrettably , has failed to explain in the stated case what factors
had been considered for arriving at the amount allowed by him. It leaves the court in the
dark.
It is settled law that when a court reviews a taxation it may exercise a wider degree of
supervision. It was held in In Wellworths Bazaars Ltd v Chandlers Ltd that:6
"The law, as I can conceive it to be, is that in general the discretion of the Taxing Master will not be
disturbed unless it is found that he did not exercise a proper discretion, for example, by disregarding
factors which were proper for him to consider or by considering matters which it was improper for him
61947 (4) SA 453 (T).
6
to consider, or by giving a ruling which the court can see no reasonable person would have given. That
is the general principle. But this principle has had engrafted upon it something else, and that is this:
There are certain class of case where the point in issue is a point on which the court is able to form as
good opinion as the Taxing Master and perhaps, even a better opinion.7
The test was refined in Ocean Commodities Inc and Others v Standard Bank of SA Ltd
and Others 8 to the extent:
" ... that the Court must be satisfied that the Taxing Master was clearly wrong before it will interfere
with a ruling made by him ... viz that the Court will not interfere with a ruling made by the Taxing Mater
in every case where its view of the matter in dispute differs from that of the Taxing Master, but only
when it is satisfied that the Taxing Master's view of the matter differs so materially from its own that it
should be held to vitiate his ruling." 9
[1 0] Despite having indicated in the judgment that the taxing master has to apply certain
criteria to determine the reasonableness of a fee, the learned Judge was nevertheless of
the view that a tariff of R292.50 per 15 minutes should be applied, simply because there
was no proof of an hourly tariff applicable to an attorney for appearing in the high court.
The learned Judge erred, with respect, in her determination that a tariff of R292.50 per 15
minutes applies which tariff was neither prescribed by rule 69 nor by the provisions of Item
A 10. Such determination placed an attorney for doing the same work in a different and
subservient category to an advocate who is entitled to charge a reasonable fee, without
reference to any tariff for time spent in court. There is in my view no rational basis in law to
have differentiated between them.
7 457-458.
8 1984 (3) SA 15 (A); Noel Lancaster Sands (Pty) Ltd v Theron and Others 1975 (2) SA 280 (T) 2820-2830 ;
JD van Niekerk en Genote Ing v Administrateur , Transvaa l 1994 (1) SA 595 (A).
9 18F-G.
7
[11] This court is in as good position as the taxing master to determine the
reasonableness of an attorney's fee for his/her appearance in an unopposed rule 30
application which was postponed . Where the dispute relates to quantum of fees allowed by
the Taxing Master, courts are reluctant to interfere with the assessment of the taxing
master.10 The decision of the taxing master should only be reversed if the court is distinctly
of the view that the taxing master was wrong.11 In a border-line case the court should not
interfere with a decision, even if the court is of the opinion that it might or even would
probably have decided differently in the place of the taxing master.12
[12] I do not share the view of the taxing master that a fee of R5400.00 is reasonable for
an appearance to move an uncomplicated and straightforward unopposed application in
terms of Rule 30. If placed in the shoes of the taxing master I would have been inclined to
regard a fee of R3500 as being reasonable. The difference between the fee determined by
this court as reasonable and the fee arrived at by the taxing master is of such a degree that
this court, should interfere on appeal with the determination of the taxing master.13
[13] I do, however, share the view of the learned judge a qua that the fee of R20 000.00
is egregious overreaching . It is difficult to comprehend that the attorney could have been of
the opinion that such a fee is reasonable because the rule is silent in respect of a tariff. A
moments' reflection would have revealed to any seasoned practitioner that there is a
discernable difference between the work and preparatio n of an unopposed application
(which in all probability was drafted by the attorney who appeared in court) and one where
opposing papers and a reply had been delivered.
10 President of the RSA v Gauteng Lions Rugby Club 2002 (2) SA 64 (CC) par 14.
11 Bensusan v Sterling and Mockford NO 1930 WLD 303; Schoeman v Phoenix Assurance Co Ltd and the
Taxing Master 1963 (3) SA 742 (E).
12 Mahomed v Bezuidenhout 1948 (4) SA 369 (T) 372.
13 Section 19(d) Act 10 of 2013.
8
[14] It also needs to be recalled that Kganyago J specifically ordered that the respondent
pays the "wasted costs" occasioned by the postponement of the application which was duly
enrolled for hearing on an unopposed basis.14 The wasted costs in this matter are the costs
attended to setting down of the application and the costs in respect of the appearance in
the unopposed motion court. The purpose of the costs order is to indemnify the appellants
for their expense, within reasonable bounds, for having the application postponed . The
costs of the action will only become relevant when the application is finally disposed of.
[15] There is a perception by the public that legal costs are spiraling out of reach. This is
also by no means an isolated case. The Constitutional Court in Camps Bay Ratepayers
and Residents Association and Another v Harrison and Another 15 remarked:
"We feel obliged to express our disquiet how counsel's fees have burgeoned in recent years. To say
that they have skyrocketed is no loose metaphor. No matter the complexity of the issues, we can find
no justification, in a country where disparities are gross and poverty is rife to countenance appellate
advocates charging hundreds of thousands of rands to argue an appeal.
No doubt skilled professional work deserves reasonable remuneration , and no doubt many clients are
willing to pay market related rates to secure the best services. But in our country the legal profession
owes a duty of diffidence in charging fees that goes beyond what the market can bear."16
[16] It is apposite in this regard that reference be made to the judgment of Wallis JA in
General Council of the Bar v Geach and Others:17
14 Jowell V Behr 1940 WLD 64, 64.
15 (CCT76/12 [2012] ZACC 17.
16 Par 10 -11.
17 2013 (2) SA 52 (SCA).
9
"Overreach ing involves an abuse of the person's status as an advocate, to take advantage for personal
gain of the person who is paying them. Advocates enjoy considerable advantage in setting a fee. They
know what standards · are applicable to the charging of fees; they know what work has been done on
the brief and what time and effort has gone into that work; they know in broad terms the fees charged
by advocates of comparable seniority and ability for similar work. This creates what economists call
information asymmentry between the advocate and the client and even the attorney, one of whose
functions is to ensure that the advocate does not claim or be paid unreasonable fees"18
These remarks are well grounded and are applicable to attorneys who appear in the high
court. When it was put to the representative of the appellants that the fee which was
charged is unreasonable and amounts to overreaching , he argued that it is not. He
contended that the difference lies in the attorney and client fee that the attorney charges his
client.
[17] Making the high court accessible to attorney's widened access to the high court, but
not necessarily cheaper. An attorney who acts as an advocate in the high court is also
subject to the rules applicable to counsel. Such attorney bears a heavy responsibility
because, unlike in the case of an advocate, there is prior to taxation no internal scrutiny of
his/her fees by the instructing attorney pertaining to the reasonableness of the fee.
[18] A taxing master bears the responsibility in unopposed matters, where applicable , to
determine the reasonableness of the fees charged by legal representatives . Taxing
masters are at the coalface. They are privy to the bill of costs and supporting documents
and are eminently best suited to determine whether a legal representative has prima facie
overreached. The time has come to make it obligatory for a taxing master to report such
18 Par 132.
10
legal representatives to the registrar who must report them to the Legal Practice Council to
take further steps, if it is deemed necessary .
[19] It is to be noted that rule 69 has been amended as from 12 April 2024. A new Rule
67 A was also introduced at the same time. The appeal, notwithstanding the amendment,
has to be considered in terms of the applicable law as at 17 February 2022, which is the
date of the allocator fixed by the taxing master.
[20] The question of costs remains. The appellants requested that they be awarded the
costs of the appeal. I do not agree. I have alluded to the fact that the appellants in the
heads of argument asked for the allocator to be amended to R20 000.00. The legal
representative of the appellant argued that that the appellants accepted the reduced
amount set by the taxing master. That was not the position as I have indicated. Although
the appellants are successful in the appeal they should not benefit from the fact that this
appeal is the result of a fee charged that was wholly unreasonable from the very start and
their persistence that it was reasonable despite the finding of the court a quo, that it was
not.
[21] It is also deemed appropriate to forward the judgment to the Legal Practice Council
for consideration and to take steps, if necessary . In the result the following order is made.
11
ORDER
1. The appeal is upheld.
2. The order dated 24 October 2022 is set aside.
3. The allocator of the Taxing Master dated 17 February 2022 is amended to the
extent that the amount of R3 500.00 is substituted for the amount of R5 400.00
and the amount of R385.00 is substituted for the amount of R594.00 in respect
of the attendance of the taxation: Grand Total R3 885.00.
4. There is no order as to the costs of the appeal.
5. A copy of this judgment is to be brought to the attention of the Registrar and is
to be forwarded to the Legal Practice Council: Polokwane for consideration and
appropriate steps, if deemed necessary.
12
THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
J. NGOBENI
JUDGE OF HIGH COURT
LIMPOPO DIVISION , POLOKWANE
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION , POLOKWANE
13
APPEARANCES
FOR THE APPELLANTS : L.M MABOT JA
INSTRUCTED BY : MAKWELA & MABOT JA ATTORNEYS
FOR THE RESPONDENT : ADV M.J KLEYN
INSTRUCTED BY : EHLERS LAW INCORPORATED
DATE OF HEARING : 24 JANUARY 2025
DATE OF JUDGEMENT : 05 FEBRUARY 2025.