IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C552/02
In the matter between:
SASBO - THE FINANCE UNION Applicant
and
U.F.I.W.O. 1st Respondent
P.LO. LUNGUZA 2nd Respondent
N. MGUGA 3rd Respondent
M.R. PULE 4th Respondent
P.C. MASHALABA 5th Respondent
D. FLETCHER 6th Respondent
P.C. GABARAANE 7th Respondent
ABSA BANK LIMITED 8th Respondent
STANDARD BANK LIMITED 9th Respondent
NEDCOR LIMITED 10th Respondent
FIRST NATIONAL BANK LIMITED 11th Respondent
NATAL BUILDING SOCIETY 12th Respondent
J U D G M E N T
CORAM FARBER AJ:
On 5 November 2002 the first to seventh respondents
lodged a notice with the registrar. It carries the heading
"Notice of Review of Taxation" and is couched in the
following language:-
"Be pleased to take notice that Respondents require the Taxing
Master of the above Honourable Court to state a case for the
decision of a Judge in terms of Rule 48 as to why he on the 29th
October 2002 in the above matter allowed the under mentioned
items in the Respondents bill of costs.
It is the respondents contention that the Taxing Master failed to
apply his mind judiciously and allowed the items despite the
Respondents objection being items:
2,3,5,6,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,
26,27,
28,29,30,31,32,33,34,35,36,38,39,40,41,42,43,44,45,46,47,48,49
,50,51,
52,53,54,55,56,57,59,60,61,62,63,64,65,66,67,68,69,70,71,72,73
,74,75,
76,77,78,79,80,81,82,83,84,85,86,87,88,89,90,91,92,93,98,99,10
9,110,111."
I pause to mention that the reference therein to Rule 48
appears to be a reference to Rule 48 of the Uniform Rules
which regulate the proceedings of the several divisions of
the High Court of South Africa (the High Court Rules).
The matter has as its background the following:-
1.On 4 June 2002 the applicant instituted proceedings against,
amongst others, the first to seventh respondents
(hereinafter referred to in the body of this judgment as the
respondents) by way of urgency for certain injunctive relief.
2.The application was served on the respondents.
3.Despite this, no appearance was made by them or on their
behalf on 6 June 2002, being the date which the applicant
had, in the notice of motion in the application, signified as
the date upon which the court would be moved for the relief
foreshadowed therein.
4.In the result, the court, in the absence of the respondents,
granted an order to the applicant in the terms sought. This
included an order for costs, it being decreed that the
respondents were jointly and severally liable, the one paying
the others to be absolved, to the applicant for the costs of
the application.
5.Pursuant thereto, the applicant's attorneys submitted a bill of
costs to the taxing master for taxation on 29 October 2002.
6.The respondents were furnished with notice of the taxation,
with the result that both the applicant and the respondents
were represented before the taxing master on that date.
7.The taxing master directed the parties to endeavour to settle
the matter or, failing that, at least to make some attempt to
narrow the issues in dispute.
8.The taxation was then adjourned.
9.No accord could be reached and the parties again attended on
the taxing master some hours later on that day.
10. The applicant wished the taxation to proceed and its
representative indicated that the respondents were not
entitled to be heard in the matter, apparently because the
order in the application had been taken in their absence,
that in consequence they had not been entitled, by virtue of
rule 25(4) of the rules for the conduct of proceedings in the
Labour Court (the Labour Court Rules), to notice of taxation,
and that in the circumstances their attendance was barred.
11. This point was apparently upheld and the respondents'
representative left the taxation, which then proceeded in his
absence. Despite an allegation to the contrary in the notice
of 5 November 2002, the result was that none of the items
in the bill were objected to.
12. The taxing master's allocatur amounted to the sum of R36
910,78.
The taxing master, in his response to the respondents'
notice of 5 November 2002, adopts the position that he is
"not in a position to state a case in this review". His reasons
for so stating appear from the following paragraphs of his
response:-
"1) The respondents in this matter delivered a notice of review of
taxation on the 5th November 2002. In terms of rule 25(5)(a), an
applicant is not required to serve a notice of taxation on the
parties or their representatives who failed to appear at the
hearing. The taxing party however did give notice to the
respondents.
2) Both parties appeared at the taxation at 10:00 and they were
directed to attempt to settle the bill. The taxing master will
thereafter only hear argument on those items parties could not
being settled [sic].
3) At their second appearance, the applicants' representative
informed me that their attempts to settle the bill was
unsuccessful and requested me to excuse the respondents from
the taxation. The request was granted in terms of rule 25(5)(a)
and the respondents were excused from the taxation and the bill
was taxed in their absence.
4) In terms of rule 48(1) of the High court rules a party can only
take those items objected to at the taxation, on review. As a
result of the respondents being excused from the taxation, they
could not object to any of the items on the bill and therefore have
forfeited their right of review."
My judgment is sought on the correctness, or otherwise, of
the taxing master's stance.
It will readily be appreciated that the taxing master, and at
least some of the protagonists to the dispute, have
proceeded on the assumption that High Court Rule 48 is of
application to the taxation of bills of costs in the Labour
Court.
Rule 25 of the Labour Court Rules deals with taxation. It
reads 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
the court on application."
The rule is in my judgment clear and unequivocal. It affords
to a party who is aggrieved by a taxing master's decision a
single remedy, namely that of common law review. It is
precisely this position which obtained in the High Court
(then the Supreme Court) prior to the adoption of High Court
Rule 48. (See, in this regard, the remarks of Viljoen J in
Gran-or (Edms) Bpk v Bevan 1969(2) SA 87 (T) at 89G-90E.)
There is nothing in Labour Court Rule 25, or any provision of
the Act, which renders the machinery of High Court Rule 48
applicable to the Labour Court.
I am advised that taxing masters of the Labour Court have
for a number of years approached the review of taxations on
the basis that High Court Rule 48 is applicable thereto. This
practice is not sanctioned by the rules of the Labour Court.
Despite the desirability that the procedure for the review of
a taxation ought to be inexpensive and expeditious, and
despite the fact that High Court Rule 48 meets those
requirements, its provisions cannot simply be made of
application to the Labour Court, at least not without the rule
maker's imprimatur.
As previously indicated, this is not the case. There is
consequently nothing which required the taxing master in
casu to state a case for the decision of a judge.
In the result, I am of persuasion that the taxing master's
decision is correct, albeit for the wrong reasons.
I pause to observe that even postulating the applicability of
High Court Rule 48 to the situation, the taxing master was
nonetheless freed of any obligation to state a case for the
decision of a judge.
The relevant segments of the rule read as follows:-
"REVIEW OF TAXATION
48. (1) Any party dissatisfied with the ruling of the taxing
master as to any item or part of an item which was objected to or
disallowed mero motu by the taxing master, may within 15 days
after the allocatur by notice require the taxing master to state a
case for the decision of a judge.
(2) The notice referred to in sub-rule (1) must -
(a) identify each item or part of an item in respect of which the
decision of the taxing master is sought to be reviewed;
(b) contain the allegation that each such item or part thereof was
objected to at the taxation by the dissatisfied party, or that it was
disallowed mero motu by the taxing master;
(c) contain the grounds of objection relied upon by the dissatisfied
party at the taxation, but not argument in support thereof; and
(d) contain any finding of fact which the dissatisfied party contends
the taxing master has made and which the dissatisfied party
intends to challenge, stating the ground of such challenge, but
not argument in support thereof.
(3) ..........
(4) ..........
(5) ..........
(6) ..........
(7) .........."
The notice delivered by the respondents manifestly fails to
comply with sub-rule (2). By reason of the respondents'
absence from the taxation, they are not able to make the
allegations referred to in sub-rule (2)(b); nor are they, by
reason thereof, able to comply with sub-rule (2)(c). On this
score, and postulating that High Court Rule 48 does in fact
regulate the situation, the taxing master was correct in his
declination. It seems to me that on a plain reading of High
Court Rule 48, an aggrieved party who has not attended the
taxation cannot invoke its provisions. So much so is
apparent from Gran-or (Edms) Bpk v Bevan, supra at
89G-90E. The only remedy available to such a party is for
the setting aside of the taxation on the same basis on which
judgments by default are set aside. There may be other
remedies, and in this regard the exclusion of the
respondents from the taxation may well constitute an
irregularity. (See generally Gründer v Gründer en Andere
1990(4) SA 680 (C) at 684G-685H.)
I have not had the benefit of argument from either the
applicant or the respondents. Fairness dictates that my
decision to uphold the taxing master's declination should at
this stage not be rendered final. It is for this reason that I
propose dealing with the matter on the basis of the issue of
a Rule nisi, leaving it open to the parties to challenge the
conclusion at a later stage.
In the result, I make the following orders:-
1. A Rule nisi shall forthwith issue calling upon the applicant
and the first to seventh respondents to show cause on 23
January 2003 at 10h00, or so soon thereafter as they may
be heard, why:-
(a) the first to seventh respondents' Notice of Review of
Taxation dated 4 November 2002 should not be set aside;
(b) the taxing master's declination to state a case for the
decision of a judge, as required of him under the Notice
referred to in paragraph 1(a) hereof, should not be upheld.
2. The registrar is directed to deliver a copy of this judgment to
the applicant and the first to seventh respondents forthwith.
3. Should any of them wish to oppose the confirmation of the
Rule nisi referred to in paragraph 1 hereof, the party so
wishing must:-
(a) notify the registrar within ten days of the delivery of this
judgment on it of such intention;
(b) deliver an affidavit setting out the grounds of opposition
within a further ten days therefrom.
4. There will be no order for costs in respect of the proceedings
thus far.
G FARBER
ACTING JUDGE OF THE
LABOUR COURT
DATE OF JUDGMENT:
27TH NOVEMBER 2002
UFIWO, on its behalf and on behalf of
applicant's attorney second to seventh respondents
of Smit Hauptfleisch Attorneys Room 653-655
c/o Deneys Reitz Attorneys Golden Acre
8th Floor, Southern Life Centre 6th Floor, Grand Parade Centre
8 Riebeek Street Adderley Street
CAPE TOWN
Tel: (021)405 1200
Fax: (021)418 6900
Cell: 082 600 3633