CASE Number: 39556/2020
{ 1) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED: NO
22 May2025
In the matters between:-
THABAZIMBI AIR COMPRESSORS (PTY) LTD Applicant
and
ACDC WINDING (PTY) LTD Respondent
JUDGMENT
H F JACOBS AJ:
[1] The applicant issued this application on 22 February 2021, claiming the
following relief:
2
"1. The Respondent's refusal, of 10'h February 2021, to provide documentation
so requested by the Applicant is unlawful and is hereby set aside;
2. The Respondent is hereby ordered to provide the Applicant with the
documentation so requested within ten (10) business days from the date of
this order;
3. The Respondent is hereby held liable for the legal costs of the Applicant
herein;
4. The purported taxed bi!! of costs is set aside as an irregular process and
declared null and void; and
5. Further or alternative relief the Honourable Court deems fit."
[2] The relief sought follows the taxation of the bill of costs and the allocatur
issued by the Taxing Master. The allocatur reads as follows:
--
e.--
~ 1,:,4;"°?4',. w.
··- Rbfs,::,s.qz
y__. .... ___,.._,,,.""·"'----""'
...
----------
3
[3] The allocatur was issued on December 1, 2020, and contains the taxed
costs due to the respondent's attorney on a scale between attorney and client. There
must have been a causa for the taxation by the Taxing Master.
[4] The existence of allocaturis evident from the founding affidavit. There is no
answering affidavit on behalf of the respondents because Kekana AJ struck out the
affidavit filed on 8 August 2024 at the applicant's request. More about that shortly.
First, the factual background drawn from the founding papers warrants mention.
[5] The applicant owed the respondent money for services rendered and goods
sold and delivered in the sum of R57,952.26. The applicant demanded R65,085.00,
and the applicant assumed that the balance of R7, 132.74 was for legal costs incurred
by the respondent for the collection of the debt. The applicant then paid the sums of
R25,000.00 and R40,085.14 (totalling R65,085.14) in August 2020, after the date
stated in the letter of demand.
[6] On 20 August 2020, the applicant's attorney received a further letter of
demand for R15,000.00 from the respondent , allegedly for legal costs incurred in
drafting and issuing a liquidation application for the winding up of the applicant.
[71 On 14 January 2021, 1he applicant received a letter of demand for payment
of legal costs in the sum of R61,573.92, as taxed by the Taxing Master, in accordance
with the allocatur quoted in [2] above. This application was brought by the applicant
under the Promotion of Access to Information Act, 2 of 2000, following demands made
to the respondent for information regarding how the bill was taxed, the amounts
included therein, and consequently, the allocatur issued by the Taxing Master.
[8] There is no answering affidavit before me. The reason for that is this. On
7 February 2022, the matter was set down before. Mbongwe J. On that day, there was
no answering affidavit. The respondent sought a postponement , which was granted.
4
The respondent was ordered t~ fde its heads of argument within 20 days. The
respondent did file its heads of arg·ument , but one day late. On the following day, 9
March 2022, it filed its answering affidavit and an application for condoning its
lateness. In response to the late filing of the respondents ' heads of argument , the
condonation application and the answering affidavit, the applicant applied in terms of
Rule 30 for the answering affidavit to be struck out. Kekana AJ heard the application
on 30 April 2024, and he granted the order striking out the respondent's answering
affidavit on 8 August 2024. Kekana AJ held the application for condonation to be "not
before" him and was therefore not considered . I therefore confine myself to the
evidence before me gleaned from the applicants ' founding papers.
[9] It is important to note what is recorded in paragraphs 7, 8, and .9 of the
judgment of Kekana AJ. In those paragraphs , it is stated that an extension of time (to
accommodate the late filing of the answering affidavit) was sought, and the defence
raised on behalf of the respondent that the application before me is fatally defective
was addressed before Kekana AJ. The judgment indicates that the applicant was
made aware of the alleged defect prior to the application being heard in April 2024.
The answering affidavit was struck out despite the respondent's offer to cover the
wasted costs caused by the lateness and the condonation application.
[1 O] This application was not served on the Taxing Master; the Taxing Master
was not called upon to provide reasons, and no process envisaged by Rule 48 of the
Uniform Rules of Court or Rule 53 has been followed by the applicant. Before a court
can interfere with the decision of a Taxing Master (as claimed by the applicant in prayer
5
4 of its notice of motion), the court must be satisfied that the Taxing Master's ruling
was "clearly wrong" .1
[11] There is a difference of opinion regarding whether a party, like the applicant
who was absent during the taxation, may challenge the taxation on review under Rule
48, or if the provisions of Rule 53 .should be applied in such a challenge. In my view,
there is no need to delve into this difference of opinion in this matter, as the Taxing
Master was not given the chance by the applicant to provide reasons for the taxation
and the allocatur issued by him or her on 1 December 2020. I believe the applicant's
application is, in this respect, fatally flawed for the purpose of a judicial challenge to
set aside the taxed bill of costs, as claimed in the notice of motion.
[12J Section 7(1) of the Promotion of Access to Information Act, 2 of 2000 states
that the act does not apply in cases where the production of or access to records is
provided for by any other law after the commencement of civil proceedings and for the
purposes of civil proceedings. In my view, Rules 48 and 53 (and, to a certain extent, .. ,'
Rule 6) of the Unifonn Rules of Court provide for the supply of the information the
applicant seeks. The request under these rules, along with the joinder and citation of
the Taxing Master, would have enabled and perhaps still allows the applicant access
to the information required to challenge the respondents' demand for payment of the
taxed bill. Under these circumstances , the application must fail.
[13] The irony is that in prayers 1 and 2 of the notice of motion, the applicants
seek relief in the form of the. supply of information and/or access to information. 'Mien
the respondent eventually filed an answering affidavit, the applicant applied for the
See Legal and General Assurance Society Ltd v Lieberum NO and Another 1968 (1) SA 473
(A) at 478 G; Brener NO v Sonnenberg, Murphy, Leo Bumett (Pty) Ltd (formally D'Arcy Mysins
Bentonn & Bowless SA (Ply) Ltd) 1999 (4) SA 503 (W) at 527
6
affidavit to be struck out. This, in my view, constitutes an abuse of process and places
an undue burden on judicial resources.
[14] It is not clear why the merits of the application (the main application) was
not set down and heard by Kekana AJ last year. This application has been afoot for
four years. Merits of this application could have been accommodated at that hearing
and the presiding judge could have been informed of the merits, the provisions of the
legislation applicable and the judgment of the Constitutional Court in this connection.
[1 SJ Under the circumstances I make the following order:
1. The application is dismissed with costs including the co€ts of
counsel taxable on scale B.
Heard on:
For the applicant:
For the respondent:
Instructed by:
Date of Judgment: H FJACOBS
JU OF THE HIGH COURT
ENG DIVISION, PRETORIA
16 May 2025
Mr T Ramabokela
Email: reception@ramabokelainc.co.za
Adv Lotter
Coombe Commercial Attorneys
E.mail: mat@coombe.co.za
22 May 2025