Nutun Business Servives South Africa (Pty) Limited v Taxing Master, High Court of South Africa Gauteng Local Division, Mr J Mahlaule and Another (02014/2020) [2026] ZAGPJHC 25 (13 January 2026)

60 Reportability

Civil Procedure

Brief Summary

Costs — Taxation — Application for rescission of taxation awards — Applicant contends that taxation occurred without proper notice and in absence — Court finds that proper service was not established as per Uniform Rules.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of an application in the High Court of South Africa, Gauteng Division, Johannesburg, in which the applicant sought to undo the consequences of two taxations of bills of costs that had been finalised in its absence. The applicant framed its relief primarily as a rescission application in terms of Uniform Rule 31(2)(b), alternatively Uniform Rule 42, and further alternatively as an application to set aside the taxation(s) in terms of Uniform Rule 48(1).

The applicant was Nutun Business Services South Africa (Pty) Limited (formerly Transaction Capital Recoveries (Pty) Limited). The first respondent was the Taxing Master, High Court of South Africa, Gauteng Local Division, Mr J Mahlaule, cited because the impugned allocaturs were issued by his office. The second respondent was Emfuleni Local Municipality, the successful party in the underlying litigation and the party in whose favour the costs were taxed.

The procedural background was that two earlier costs orders had been granted against the applicant in the same matter under case number 02014/2020. The first costs order was made on 18 February 2020 (when an urgent application was struck from the roll with costs). The second costs order was made on 7 August 2020 (when the matter was heard in the opposed motion court and dismissed, with costs including the costs of two counsel). The municipality subsequently caused two bills of costs to be taxed, on 7 June 2024 and 26 June 2024, on an unopposed basis. The present application challenged those taxations on the basis that they occurred without proper notice to the applicant and thus without the applicant being heard.

The general subject matter of the dispute concerned the procedural validity of the taxations, focusing on whether there had been proper service and due notice of the taxation dates as required by the Uniform Rules, and whether the Taxing Master could competently proceed in the absence of such notice.

2. Material Facts

Two costs orders existed against the applicant arising from earlier proceedings between the parties. The first was made on 18 February 2020 by Senyatsi J when the applicant’s urgent application was struck from the roll with costs. The second was made on 7 August 2020 by Muller AJ (as he then was) when the application was dismissed on the opposed motion roll, with an order that costs include the costs consequent upon the employment of two counsel. The existence of two separate costs orders in the same matter was treated as common cause and explained the presence of two separate bills of costs.

Two bills of costs were taxed in favour of the municipality. The first bill, arising from the urgent proceedings, was taxed on 7 June 2024 in the amount of R 447 213.63. The second bill, arising from the opposed motion proceedings, was taxed on 26 June 2024 in the amount of R 288 973.91. It was common cause that both taxations took place on an unopposed basis and that the combined total taxed amount was R 736 189.54.

The applicant’s case on the material facts was that it did not attend either taxation because it allegedly did not receive the notices of taxation or the relevant set-down notices. The applicant attributed this to a failure by the municipality’s cost consultant, Mr Obrey Sibiya, to effect service in accordance with the Rules. The municipality’s position, by contrast, was that the Taxing Master had satisfied himself that due notice was given and that service was effected by email.

On the applicant’s version, it only became aware that a taxation had occurred when its attorney received an email from the municipality’s attorneys under cover of which a taxed bill of costs in the urgent proceedings was attached (the judgment recorded this date as 25 June 2025). The applicant’s attorney then searched her inbox for the alleged email from the municipality’s cost consultant and asserted that no such email was received. A further email from the municipality’s attorneys, dated 27 June 2024, stated that both bills had been taxed and requested payment within fourteen days.

A central factual point treated by the court as dispositive was that the purported service relied upon by the municipality consisted of emails allegedly sent to the applicant attorney’s personal email address. The applicant’s attorney denied receipt of those emails and contended that neither she nor her firm had provided that personal email address as an address for service for purposes of the Rules. The municipality accepted (on its own version) that there was no explicit agreement between the parties to accept service by email, and sought to rely instead on the fact that no “undelivered” response had been received and that the notices were uploaded to CaseLines.

The first respondent did not oppose the application and did not provide an affidavit explaining what satisfied him that proper notice had been given before he proceeded with taxation.

3. Legal Issues

The central questions were procedural and concerned compliance with the Uniform Rules governing taxation and service. The court was required to determine whether the municipality complied with the requirement to give due notice of taxation, whether service by email was permissible on the facts, and whether the Taxing Master could properly proceed to tax in the absence of the applicant.

More specifically, the issues included whether the municipality complied with the notice requirement in Uniform Rule 70(3B)(a)(i), whether the Taxing Master complied with his duty in Uniform Rule 70(4)(a) (and related provisions) not to proceed unless satisfied that due notice had been received, and whether the alleged email service satisfied the requirements of Uniform Rule 4A(1)(c).

The dispute primarily concerned the application of legal rules to facts. While there was a factual dispute about whether the applicant’s attorney actually received the emails, the court’s determination turned on whether, even accepting that the emails were sent, the method relied on constituted valid service in terms of Rule 4A and whether the jurisdictional preconditions to taxation were met. The court also had to make an evaluative assessment of whether the applicant showed good cause to have the allocaturs set aside, which involved a value judgment informed by procedural fairness and the right to be heard in circumstances where a financial liability was determined.

4. Court’s Reasoning

The court approached the matter from the premise that the taxation of a bill of costs is not merely administrative but is a function with significant consequences because it determines the extent of a litigant’s financial liability. In that context, the court emphasised the centrality of the right to be heard and treated the Rules governing taxation—particularly the notice requirements—as strict and protective of the party liable to pay.

The court applied Uniform Rule 70(3B)(a)(i) as imposing an unequivocal requirement that a party wishing to tax must give notice to every other party with an interest in the bill. It characterised this as a jurisdictional prerequisite to a valid taxation. It then linked this to Uniform Rule 70(4)(a), which prohibits a taxing master from proceeding unless satisfied that the party liable to pay has received due notice. The court treated the word “shall” as imposing a mandatory duty, and it accepted the proposition (with reference to Erasmus) that the duty to be satisfied is not a mere formality but a proactive requirement which, if not complied with, renders the taxation irregular and liable to be set aside.

Turning to service by email, the court analysed Uniform Rule 4A(1)(c) and treated it as permitting email service only where the party to be served has consented in writing, either expressly or by implication, to service at that email address and in that format. On the facts before it, the court held that the municipality’s purported service was “fatally defective” and failed on multiple grounds.

First, the court accepted that there was no agreement for service by email, noting that the municipality itself conceded that there had never been an explicit agreement between the parties for service by email. The court reasoned that the municipality’s reliance on the absence of an objection was inconsistent with Rule 4A(1)(c), because the Rule requires positive consent rather than merely a lack of protest.

Second, the court held that the email address used was not shown to have been “provided” for service in the matter, and that the municipality produced no evidence that the applicant’s attorney furnished her personal email address for the purpose of service. The court distinguished between an email address used generally in correspondence and a formal address provided for service as contemplated by Rule 4A.

Third, and decisively, the court held that there was no confirmation of receipt. It interpreted Rule 4A(1)(c)(ii) as requiring the sender to obtain confirmation that the email was received. Given the applicant attorney’s direct denial of receipt and the absence of proof such as a read receipt or acknowledgement, the court held that the purported service could not stand.

In support of this approach, the court relied on Acrow Limited and Another v South Mead (Pty) Ltd and Another 2022 JDR 3188 (GP), where the court analysed the evidentiary requirements relating to the sending of an email and the insufficiency of merely alleging that an email was sent without proper proof from the sender’s system. The court drew from Acrow that it is inadequate to invoke deeming provisions without first demonstrating proper proof of transmission, and it treated the municipality’s case as similarly lacking the necessary proof of emailing and receipt in the face of a direct denial.

The court rejected the municipality’s attempt to rely on CaseLines uploads as constituting notice. It reasoned that the Rules do not permit substituted service through a general litigation platform and that uploading a notice, without proof of specific notification to the opposing attorney, does not constitute “due notice” in terms of Rule 70(3B).

The court further dealt with the Taxing Master’s role. Because the first respondent filed no explanatory affidavit, the court regarded the municipality’s assertion that the taxing master had “satisfied himself” as speculative. On the court’s approach, even if the taxing master had purported to be satisfied, that satisfaction would have been misplaced because the method of service relied upon was invalid from the outset. The court concluded that the allocaturs were issued without a proper foundation of notice and were therefore “granted in error”, with the consequence that the subsequent taxation proceedings were treated as a nullity.

On the remedy, the court held that to set aside an allocator granted in absentia an applicant must show good cause, including a reasonable explanation for the absence and a bona fide defence to the bill of costs. Relying on Grunder v Grunder 1990 (4) SA 680 (C), the court accepted that the principles applicable to rescinding default judgments are also applicable to setting aside a taxing master’s allocator. The court found that the applicant provided a reasonable explanation—its lack of awareness due to defective service—and accepted that the application was brought in good faith. The court also held that the applicant raised queries about the propriety of certain items in the taxed bills sufficient to establish a prima facie basis for wishing to oppose the taxations, and rejected the municipality’s characterisation of the application as vexatious or an abuse of process.

5. Outcome and Relief

The court set aside both taxation awards made under case number 02014/2020, namely the awards dated 7 June 2024 and 26 June 2024, relating respectively to the urgent application and the opposed application costs.

The court ordered the second respondent, Emfuleni Local Municipality, to pay the costs of the application, including the costs of senior counsel on scale B.

Cases Cited

Acrow Limited and Another v South Mead (Pty) Ltd and Another 2022 JDR 3188 (GP).

Southmead (Pty) Ltd t/a Meister Cold Store v Acrow Limited (A357/2023) [2024] ZAGPPHC 1121 (12 November 2024).

Grunder v Grunder 1990 (4) SA 680 (C).

Legislation Cited

The judgment did not identify any legislation by name, but it referred to section 23(a) and section 23(b) in the discussion drawn from Acrow Limited and Another v South Mead (Pty) Ltd and Another 2022 JDR 3188 (GP).

Rules of Court Cited

Uniform Rule 31(2)(b).

Uniform Rule 42.

Uniform Rule 48(1).

Uniform Rule 70(3B)(a)(i).

Uniform Rule 70(4)(a) and Uniform Rule 70(4)(b).

Uniform Rule 4A(1)(c).

Uniform Rule 4.

Held

The court held that the municipality did not provide the applicant with due notice of taxation as required by Uniform Rule 70(3B)(a)(i), because the purported email service did not comply with Uniform Rule 4A(1)(c). In particular, there was no agreement to accept service by email, the email address used was not shown to have been provided for service, and there was no confirmation of receipt in circumstances where receipt was directly denied.

The court further held that, in the absence of valid notice, the Taxing Master’s allocaturs were issued without the necessary procedural foundation and were consequently liable to be set aside. The court accepted that the applicant established good cause to have the allocaturs set aside, including a reasonable explanation for its absence from the taxations and a prima facie basis for wishing to oppose the taxed items.

LEGAL PRINCIPLES

Proper service and due notice are fundamental prerequisites to a valid taxation of a bill of costs. The notice requirement in Uniform Rule 70(3B)(a)(i) operates as a jurisdictional safeguard for the party liable to pay, ensuring that the affected party has an opportunity to participate in the taxation process.

A taxing master may not proceed to tax a bill unless satisfied that due notice has been received by the party liable to pay, as required by Uniform Rule 70(4)(a). This is a mandatory, proactive duty and not a mere formality; failure to comply renders the taxation proceedings irregular and susceptible to being set aside.

Service by email under Uniform Rule 4A(1)(c) requires positive consent to service at the relevant email address and in that format, and it requires proof consistent with the Rule’s requirements, including confirmation of receipt where required. The absence of an objection to email service is not equivalent to consent.

An allocator issued in the absence of a party may be set aside on a showing of good cause, applying principles analogous to those applicable to rescinding default judgments, including a reasonable explanation for the absence, good faith, and a prima facie bona fide basis to challenge the taxed bill, as recognised in Grunder v Grunder 1990 (4) SA 680 (C).