Hennie De Beer Game Lodge CC v Waterbok Bosveld Plaas CC and Another (CCT 106/09) [2010] ZACC 1; 2010 (5) BCLR 451 (CC) ; 2010 (5) SA 124 (CC) (4 February 2010)

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[2010] ZACC 1
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Hennie De Beer Game Lodge CC v Waterbok Bosveld Plaas CC and Another (CCT 106/09) [2010] ZACC 1; 2010 (5) BCLR 451 (CC) ; 2010 (5) SA 124 (CC) (4 February 2010)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
106/09
[2010]
ZACC 1
In the
matter between:
HENNIE DE BEER GAME
LODGE
CC
........................................................
Applicant
and
WATERBOK BOSVELD PLAAS
CC
........................................................
First
Respondent
ASSOCIATION OF THE
TIMBAVATI PRIVATE NATURE
RESERVE
........................................................
Second
Respondent
Decided on : 4
February 2010
JUDGMENT
THE COURT:
This is a
review of a taxation in which the Taxing Master of this Court
allowed counsel’s fees totalling 61 hours for drafting
a 62-page
affidavit
1
resisting leave to appeal. The matter originated from a dispute in
which the respondents (Waterbok) sought an interdict in
the North
Gauteng High Court to prevent the applicant (Hennie de Beer) from
erecting a camp in a private nature reserve. Waterbok’s

application was dismissed at first instance. But on appeal the
interdict was granted by a Full Court of the High Court, which

reversed the refusal of relief. Application for special leave to
appeal to the Supreme Court of Appeal, which Waterbok resisted,
was
refused with costs. The proceedings culminated in Hennie de Beer’s
application for leave to appeal to this Court, which
was also
dismissed with costs on 2 October 2007.
As was its
due, Waterbok presented its bill of costs, which was taxed on
22 May 2008. The only item in issue was counsel’s
fee for
the 62-page affidavit resisting leave to appeal in this Court.
Counsel billed R129 504 for 71 hours’ work on
the affidavit
but allowed a discount of ten hours. His total fee for the
affidavit was therefore R111 264 for 61 discounted
hours.
This Court’s
Taxing Master allowed the full discounted time billed of 61 hours,
but taxed down counsel’s fee per hour from
over R1 800 to
R1 200. The total fee granted for the affidavit was therefore
reduced to R73 200.
Hennie de Beer
objected to this fee, lodging a notice of review of taxation.
2
Hennie de Beer complained that in view of the prior application to
the Supreme Court of Appeal and the Full Court appeal that
preceded
it, counsel’s fees for drafting the affidavit resisting leave to
appeal in this Court were “excessive” and “exorbitant”.

Hennie de Beer pointed out that the same counsel represented
Waterbok from the inception of the proceedings and had charged

extensive hours on preparing the initial urgent application (46
hours); on preparing Waterbok’s replying affidavit in the
urgent
application (61,5 hours); on preparing heads of argument for the
Full Court appeal and preparing for the appeal (45
hours); and on
attending to the Full Court appeal (22 hours). Even though
Hennie de Beer was not in possession of counsel’s
bill for the
unsuccessful Supreme Court of Appeal proceedings, it averred, and
Waterbok did not deny, that he was also on brief.
In essence,
Hennie de Beer’s complaint was that “the same facts and
arguments presented themselves” during all the preceding
court
proceedings in which counsel was involved, rendering a further 61
hours for the affidavit in this Court unreasonable.
Waterbok, in
opposing the review, contended that “although the facts giving
rise to the application for leave to appeal were
similar to the
facts giving rise to the earlier matters, the nature of the
application and applicable legal principles were
substantially
different.” Here Waterbok relied on the fact that its opposing
affidavit in this Court had to deal with whether
a constitutional
issue was raised, the horizontal application of the Bill of Rights,
the interests of justice, and the prospects
of success.
In his report,
the Taxing Master states that in fixing counsel’s fees, he took
into account the complexity of the matter,
the total hours spent on
the work, prevailing levels of counsel’s fees, and that counsel
must be fairly compensated. He
further observes that counsel did
not foresee when preparing the opposing affidavit that the
application would be dismissed
and that “therefore he needed to
prepare himself on the constitutional dispute”.
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
:
3
Costs are
awarded to a 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.
4
A moderating
balance must be struck which affords the innocent party adequate
indemnification, but within reasonable bounds.
5
The Taxing
Master must strike this equitable balance correctly in the light
of all the circumstances of the case.
6
An overall
balance between the interests of the parties should be
maintained.
7
The Taxing
Master should be guided by the general precept that the fees
allowed constitute reasonable remuneration for necessary
work
properly done.
8
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.
9
To these
general principles must be appended one of particular importance in
this case. The Supreme Court of Appeal has taken
note of “the
almost invariable practice throughout the country nowadays for
legal practitioners to make their charges time-related”.
10
The principle flowing from this is that time charged is not
decisive. An objective assessment of the features of the case
is
primary, and time actually spent in preparing an appeal cannot be
decisive in determining the reasonableness, between party
and
party, of a fee for that work.
11
The reason is that time alone would put a premium on slow and
inefficient work and would conduce to the charging of fees wholly

out of proportion to the value of services rendered.
12
That principle
applies here. Counsel charged 61 hours for preparing an affidavit
opposing leave to appeal in this Court. It
is difficult to find
any measure by which that time can be considered reasonable. Here,
the prior history of the dispute is
relevant. Counsel had already
traversed the principal issues in three previous courts. It is
true and the impugned affidavit
shows that constitutional issues,
as well as the factors relevant to this Court’s grant or refusal
of leave to appeal, were
canvassed.
The brunt of
the affidavit is to urge that the application for leave to appeal
should be dismissed on the ground that there
is no constitutional
issue since the property rights clause in the Bill of Rights has no
horizontal application, and that the
interests of justice will not
be served by granting leave to appeal because the issue is neither
of constitutional importance
nor of public interest and can be
decided without determining the constitutional issue. The
affidavit in addition asserts
that the prospects of success are in
any event remote.
But issues
uniquely within the contemplation of this Court form only a minor
part of the deposition. The major portion canvasses
the facts in
detail and sets out Waterbok’s contentions on the servitudinal
rights at issue and on the duties of co owners.
Signally, the
affidavit confirms Hennie de Beer’s assertion that the
constitutional arguments were already in play before
the Full Court
and therefore no less in the application for leave to appeal to the
Supreme Court of Appeal.
In its
greatest part the affidavit is thus a rehearsal of issues that had
already been well trampled out before the Full Court
and in the
application to the Supreme Court of Appeal. The Taxing Master
therefore erred in allowing counsel 61 hours for
drafting the
affidavit on the basis that counsel “needed to prepare himself on
the constitutional dispute”.
At most, 20
hours could be considered reasonable for collating the response to
the application from the preceding papers in
the other courts, for
marshalling the constitutional arguments and for propounding
Waterbok’s contentions on the particular
tests appropriate to the
determination of leave to appeal in this Court. A period of 20
hours represents two days and a half
of what may be considered
full-time effort within normal working hours. It is difficult to
conceive how a competent professional
acquainted with the issues,
as counsel would have been in this case, could require more time
for this task.
Taxation, it
must be borne in mind, should afford “reasonable remuneration for
work necessarily and properly done”.
13
Twenty hours at R1 200 per hour does this more than
adequately. Any more would fail to strike the “moderating
balance”
this Court requires. The Taxing Master’s omission to
find the correct and “equitable balance” that this Court
alluded
to in
Gauteng Lions
14
therefore warrants intervention.
In determining
reasonable remuneration for counsel, this Court is in a better
position than the Taxing Master to assess what
went into the
affidavit. Waterbok makes no complaint about the hourly amount the
Taxing Master has allowed, namely R1 200.
The parties’ sole
dispute is about the number of hours. It is therefore appropriate
for this Court to finalise the disputed
bill itself. It is
therefore not necessary to remit the matter to the Taxing Master.
Order
In the result,
the following order is made:
(a) The Taxing Master’s
allocatur
for items 21-33 of the
respondents’ bill of costs is set aside.
(b) In its stead, a total of 20 hours at R1 200 per hour is
allowed.
(c) The respondents are to pay the applicant’s costs of the review
of taxation.
Ngcobo CJ, Moseneke
DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde
J, Skweyiya J, Van der Westhuizen J and
Yacoob J.
1
The parties to this dispute have all proceeded on the assumption
that the contested deposition is 38 pages long. This averment

appears in both Hennie de Beer’s contentions, as well as in
Waterbok’s submissions on the Taxing Master’s stated case.

However, the original court file reveals that the deposition is in
fact 62 pages long.
2
In terms of Rule 22 of the Rules of this Court read with Rule 17 of
the Rules of the Supreme Court of Appeal.
3
[2001] ZACC 5
;
2002 (2) SA 64
(CC);
2002 (1) BCLR 1
(CC).
4
Per Innes CJ in
Texas Co. S.A. Ltd. v Cape Town Municipality
1926 AD 467
at 488, applied in
Gauteng Lions
above n 3 at
para 15.
5
Gauteng Lions
above n 3 at para 15.
6
Id at para 16.
7
Id at para 15.
8
Id at para 45.
9
Ocean Commodities Inc and Others v Standard Bank of SA Ltd and
Others
1984 (3) SA 15
(A) at 18F-G, applied in
Gauteng Lions
above n 3 at para 13.
10
Price Waterhouse Meyernel v Thoroughbred Breeders’ Association
of South Africa
2003 (3) SA 54
(SCA) at para 15.
11
Scott and Another v Poupard
and Another
1972 (1) SA
686
(A) at 690C-D, endorsed in
J D van Niekerk en Genote Ing v
Administrateur, Transvaal
1994 (1) SA 595
(A) at 602D-E and
applied in
Gauteng Lions
above n 3 at para 28.
12
Gauteng Lions
above n 3 at para 28.
13
Gauteng Lions
above n 3 at para 45.
14
Id at para 16.