CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 91/18
In the matter between:
ANDREW DONALD JONATHAN PENWILL Applicant
and
RICHARD DOUGLAS PENWILL N.O. First Respondent
CHRISTOPHER ANTHONY FRASER
McDONALD N.O. Second Respondent
WILLEM FRANCOIS BOUWER N.O. Third Respondent
MASTER OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG Fourth Respondent
TAXING MASTER OF THE CONSTITUTIONAL
COURT, BRAAMFONTEIN Fifth Respondent
SHERIFF OF THE COURT, SANDTON SOUTH Sixth Respondent
Neutral citation: Penwill v Penwill N.O. and Others [2020] ZACC 17
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J,
Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
Judgments: Madlanga J (unanimous)
Decided on: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the
Constitutional Court website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 21 July 2020.
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ORDER
On application for review of taxation of costs arising from this Court’s dismissal of
Mr Andrew Donald Jonathan Penwill’s application for leave to appeal:
1. The sum of R1 504.00 allowed at taxation in respect of item 23 of the bill
of costs is set aside and substituted with the sum of R384.00.
2. The warrant of execution issued on 19 October 2018 in respect of the
movable property of Mr Andrew Donald Jonathan Penwill is set aside.
3. The notice of attachment issued on 6 December 2018 pursuant to the
warrant of execution referred to in paragraph 2 is set aside.
JUDGMENT
MADLANGA J ( Mogoeng CJ, Jafta J, Khampepe J, Majiedt J, Mathopo AJ,
Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring):
Introduction
[1] Hopefully t his is the final round of this sorry saga of bitter litigious feuding
between two brothers. At its centre is what Van Oosten J of the High Court of
South Africa, Gauteng Division, Pretoria described as a dispute “embedded in rivalry,
jealousy, greed and hatred”. 1 So bad was the rivalry that it prompted an attorney who
was once involved with the family to express his annoyance with both brothers thus, in
an e-mail to one of them:
1 Penwill N.O. v Penwill 2016 JDR 1150 (GP) at para 3.
MADLANGA J
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“Your dishonesty and obsequiousness are the pillars upon which you and . . . your
brother have built your wretched lives. You are like two vultures feeding off the
corpses of your dead parents. So ugly and distasteful. Conduct becoming of the pond
people. Repulsive. There is a special hell for you guys who are mirror images and that
is to spend eternity with only one another as company.”2
[2] Before us is a stated case in which Mr Andrew Donald Jonathan Penwill, who is
acting in person, is challenging costs allowed by this Court’s Taxing Master. Costs
were granted against Mr A D Penwill when this Court dismissed his application for
leave to appeal for lack of reasonable prospects of success. The case was stated by the
Taxing Master under rule 17(3) of the Rules Regulating the Conduct of Proceedings of
the Supreme Court of Appeal of South Africa (SCA Rules).3 Rule 17 of the SCA Rules
2 Id.
3 These rules were gazetted in Government Gazette Number R1523 of 1998. Rule 17 reads:
“Taxation
(1) The costs incurred in any appeal or application shall be taxed by the registrar who,
when exercising this function, shall be called the taxing master, but his or her taxation
shall be subject to review in terms of subrule (3).
VAT
(2) Value-added tax may be added to all costs, fees, disbursements and tariffs in respect
of which value-added tax is chargeable.
Statement of case
(3) 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
20 days of the allocatur require the taxing master to state a case for the decision of the
President, which case shall set out each item or part of an item together with the
grounds of objection advanced at the taxation, and shall embody any relevant findings
of facts by the taxing master.
Contentions of parties
(4) The taxing master shall supply a copy of the stated case to each of the parties, who
may within 15 days of receipt of the copy submit contentions in writing thereon,
including grounds of objection not advanced at the t axation, in respect of any item or
part of an item which was objected to before the taxing master or disallowed mero
motu by the taxing master.
Report
(5) Thereafter the taxing master shall frame his or her report and shall supply a copy
thereof to each of the parties and shall forthwith lay the case, together with the
contentions of the parties thereon and his or her report, before the President.
MADLANGA J
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is made applicable to this Court by rule 22(1) of our Rules. We are considering the
stated case simultaneously with an application in which Mr A D Penwill is seeking
several orders. All thos e orders interlock with the stated case. In the main ,
Mr A D Penwill is asking for the setting aside of a warrant of execution and notice of
attachment issued in respect of his movable property. The other orders are ancillary to
this. He wants us to set aside the warrant of execution because he is aggrieved by the
very taxation that has given rise to the costs. And, of course, if the warrant of execution
falls, so should the notice of attachment as well.
Background
[3] These proceedings are a sequel to a series of other proceedings. The original
fight was between Mr A D Penwill, on the one hand, and his younge r brother,
Mr Richard Douglas Penwill, and others, 4 on the other. Mr R D Penwill was cited in
his capacity as a trustee of the Beverly Trust . The Beverly Trust is a family trust that
was established by the late father of the two warring Penwill brothers . The trust was
the sole shareholder in a company called D J Penwill Properties (Pty) Ltd. The
company, in turn, owned a number of farms which were at the centre of an ugly fight
between the Penwill brothers over inheritance.
[4] The conflict concerned the validity of the will of the deceased mother of the
brothers. Their father had predeceased her. Mr A D Penwill’ s failure before the
High Court and Supreme Court of Appeal brought him before us on a quest for leave to
appeal. This Court dismissed that application with costs for l ack of reasonable
Hearing of review
(6)(a) The President or a judge or judges designated by him or her may—
(i) decide the matter upon the merits of the case and submissions so submitted;
(ii) require any further information from the taxing master;
(iii) if deemed fit, hear the parties or their advocates or attorneys in chambers; or
(iv) refer the case for decision to the Court.”
4 The others were Mr Christopher Anthony Fraser McDo nald, Mr Willem Francois Bouwer ( both of whom, like
Mr R D Penwill, were cited in their capacity as trustees of the Beverly Trust) and the Master of the High Court of
South Africa, Gauteng Division, Johannesburg.
MADLANGA J
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prospects of success . Mr A D Penwill then applied for rescission or variation of the
order of dismissal . We dismissed that rescission application as well . Undeterred,
Mr A D Penwill filed at this Court yet another application alleging that the rescission
application was dismissed by the Registrar, and not by the Court. In that bout he joined
the Registrar as a respondent. T here was no substance in the allegation and we
dismissed that application as well.
[5] This Court’s Taxing Master subsequently taxed the costs awarded when we
dismissed the application for leave to appeal. Mr A D Penwill, who had received notice
of taxation, did not attend on the date of taxation. He explains that he was not well. In
the notice under rule 17(1) and rule 17(3) of the SCA Rules he challenges certain items
in the bill of costs that were allowed at taxation. And it is because the taxation is under
challenge that Mr A D Penwill wants the warrant of execution and notice of attachment
set aside. This Court ordered that the application for the setting aside of the warrant of
execution and notice of attachment , including ancillary relief, be held in abeyance
pending the determination of the review of taxation under the stated case.
[6] In the stated case the Taxing Master did not explain the bases on w hich he had
allowed the disputed fees. In respect of the first four challenged items he merely made
the same generalisation to the effect that the fees were in accordance with the
SCA Rules. That does not say much. As a result, we issued directions requ iring the
Taxing Master to file an affidavit clarifying how he had arrived at the amounts allowed.
That affidavit has since been filed. Insofar as the bases for what was allowed are
concerned, this judgment’s focus will be on what the Taxing Master says in this
affidavit.
[7] The matter is now ripe for the review of the challenged taxation. As is
permissible in terms of rule 17( 6)(a)(iv) of the SCA Rules and section 173 of the
Constitution,5 we have opted to determine the review as the Court. This approach helps
5 Section 173 of the Constitution provides:
MADLANGA J
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us avoid the question whether it is constitutionally compliant for a single Judge or fewer
Judges than the constitutionally set quorum of eight to determine the review. At the
Supreme Court of Appeal the review may be entertained by at least a single Judge.6
[8] Only Mr A D Penwill, Mr R D Penwill and the Taxing Master filed affidavits.
[9] We are deciding this matter without an oral hearing.
Stated case
[10] Mr A D Penwill objects to five items in the bill of costs. First, he object s to
item 2. This item concerned perusal by the opposing attorneys of the filing sheet and
notice of application for leave to appeal comprising 31 pages . The Taxing Master
allowed R47.00 per page, totalling R1 457.00. The basis of the objection appears to be
that a reasonable fee is R23.50 per page.
[11] The Taxing Master said that the applicable tariff under Part C 3(a) of rule 18 of
the SCA Rules provides for R53.00 per page for the perusal of any application, affidavit
or any other document not provided for elsewhere. It seems that this is not provided for
elsewhere. The Taxing Master explained that he allowed taxation at R47.00 p er page
because in the bill of costs the claimed fee was in accordance with the old tariff which
was R47.00 per page . The Taxing Master concludes that had the billing attorney
charged the current tariff, a higher amount would have been allowed. On the ot her
hand, the “tariff” of R23.50 relied on by Mr A D Penwill has no cogent basis. Therefore,
he has no cause for complaint. If anything, he should consider himself lucky.
[12] Second, Mr A D P enwill takes issue with item 4. This was the perusal of the
High Court judgment by the opposing attorneys. R1 316.00 was allowed for 28 pages.
“The Constitutional Court, the Supreme Court of Appeal and the Hig h Court of South Africa
each has the inherent power to protect and regulate their own process, and to develop the
common law, taking into account the interests of justice.”
6 Rule 17(6)(a) of the SCA Rules.
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On this as well he contends that a reasonable fee is R23.50 per page. According to the
Taxing Master, the applicable tariff – but under Part C 1(a) of rule 18 – is R53.00 per
page. An amount of R47.00 was allowed because that is what was claimed. Yet again,
I take the view that there is no basis to set aside what was allowed.
[13] Third, Mr A D Penwill is contesting item 23 . This was for perusal by the
opposing attorneys of an affidavit drawn by Mr R D Penwill, who is an advocate of the
High Court, in opposition of the application for leave to appeal. On this, R1 504.00 was
allowed for 32 pages. In drawing the affidavit, Mr R D Penwill – although also a litigant
– was assisting the Beverly Trust in his capacity as counsel. T he opposing attorneys
had claimed, and were allowed, R47.00 per page. Mr A D Penwill argues that this
affidavit ought to have been drawn by the opposing attorneys and that, therefore, these
attorneys cannot charge in respect of work for which they were “subsidised” by
Mr R D Penwill. The Taxing Master avers that he relied on Part C 3(a) of rule 18. As
indicated earlier when dealing with item 2, Part C 3(a) provides for R53.00 per page for
the perusal of any application, affidavit or any other document not provided for
elsewhere. The Taxing Master then allowed R47.00 per page because on this as well
that is what was claimed.
[14] Part C 3(a) cannot apply to the perusal of an affidavit drawn or settled by counsel
briefed by that attorney if there is specific provision for the perusal of that type of
affidavit. It is Part C 3(c) that makes that specific provision. Part C 3(c) provides for a
tariff of R12.00 per page and it applies to “[a]ttendance on and perusal of an application
or affidavit composed or corrected by counsel”. It is less likely that an attorney would
know that counsel on the opposing side “composed or corrected” an affidavit drawn in
furtherance of her or his client’s case. On the contrary, she or he would know for a fact
that an affidavit drawn in furtherance of her or his client’s case was drawn or settled by
counsel. It makes sense, therefore, that Part C 3(c) applies to the scenario where an
attorney is perusing an affidavit drawn or settled by counsel instructed by that attorney.
And it makes sense why the tariff applicable to this scenario should be much lesser .
The attorney is perusing an affidavit that concerns a case of which she or he is familiar;
MADLANGA J
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her or his own client’s case. That should be contrasted with the opposing side’s case.
Without suggesting that perusal of the attorney’s client’s affidavits and other documents
does not require care, t he perusal of documents relating to the opposing side’s case ,
which the attorney knows little or nothing about , takes and requires much more. It
makes sense, therefore, that the tariff for the perusal of the other side’s documents
should be higher.
[15] This Court in Gauteng Lions Rugby Union endorsed the principle that—
“the Court must be satisfied that the Taxing Master was clearly wrong before it will
interfere with a ruling made by him . . . [T]he Court will not interfere with a ruling
made by the Taxing Master 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.”7
[16] As much as courts afford a Taxing Master a wide margin for the exercise of
discretion in taxing bills of costs, that can never allow a misinterpretation or
misapplication of the applicable law. Set tariffs form part of that law. I am satisfied
that on item 23 the Taxing Master was clearly wrong in that he applied a wrong tariff.
If he was not, it is difficult to conceive of other scenarios to which Part C 3(c) would
apply. Therefore, the Taxing Master ought to have allowed R12.00 under Part C 3(c).
Thus instead of R1 504.00, a total of R384.00 ought to have been allowed. That is made
up of 32 pages at R12.00 each.
[17] Fourth, Mr A D Penwill objects to item 26. That concerned making 29 copies
of the filing sheet, opposing affidavit and its annexures in respect of which R5 655.00
was allowed for a total of 2 262 pages. The Taxing Master allowed R2.50 per page;
clarification is coming shortly. The basis of the objection is that this was excessive and
that a reasonable amount should not have exceeded R1.00 per page. As a self-chosen
7 President of the Republic of South Africa v Gauteng Lions Rugby Union [2001] ZACC 5; 2002 (2) SA 64 (CC);
2002 (1) BCLR 1 (CC) at para 13.
MADLANGA J
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benchmark, Mr A D Penwill drew attention to the fact that Jetline, a commercial entity,
charges R0.40 per page for documents that are more than 2 000 pages. We are left in
the dark as to why the Jetline rate should apply to the taxation of a bill of co sts. In
response, the Taxing Master states that the applicable tariff for copying prescribes
R3.50 per page. He allowed R2.50 per page because that is what the billing attorney
charged. According to the Taxing Master, R2.50 per page is the old tariff. On this as
well, Mr A D Penwill must consider himself lucky. His challenge is unfounded.
[18] Fifth, Mr A D Penwill challenges item 48. The bill of costs describes the fee
under this item as “provision for payment” of counsel’s fee for work done by Mr R D
Penwill in his capacity as counsel for the Beverly Trust. For this Mr R D Penwill had
marked a fee of R45 000.00. T he Taxing Master deducted from that amount
R12 500.00. Initially Mr A D Penwill did not challenge the quantum of
Mr R D Penwill’s fees. He raised what I would term technical objections. He claimed
that reference in the item to “provision for payment” was an indication that
Mr R D Penwill was never really paid. That being the case, there was no basis to want
Mr A D Penwill to indemnify his brother for fees that were never paid. Also,
Mr A D Penwill contended that his brother had no authority from the Beverly Trust to
represent it. Mr R D Penwill produced proof of authority from the trust. And he also
responded – quite correctly – that there was no substance in the point about “provision
for payment”. Later, Mr A D Penwill challenged the quantum of the fee, claiming that
it was excessive.
[19] There is no set tariff in respect of this item. The Taxing Master justified the
amount allowed on the basis that, in the exercise of his discretion, it was “fair and
reasonable”. This Court has previously stated that “[i]n some instances, for example,
where the dispute relates to the quantum of fees allowed by the Taxing Master, the
courts are slow to interfere with the Taxing Master’s assessment”.8 That is true of this
instance. I can conceive of no reason, and none that is cogent has been suggested, why
8 Id para 14.
MADLANGA J
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the Taxing Master’s assessment should be faulted. In the result, what the Taxing Master
allowed on this item must stand.
Matters held in abeyance
[20] As I stated in the beginning, in addition to the review of taxation ,
Mr A D Penwill wants us to set aside the warrant of execution. The execution is meant
to satisfy the debt arising from the costs allowed at taxation. Mr A D Penwill is asking
for the setting aside of the warrant of execution because he is aggrieved by the very
taxation that gave rise to the intended execution. The warrant of execution cannot stand.
That is so because it was issued in respect of an amount that is now going to change ,
given what I hold in respect of the challenge to item 23. The issuing of the notice of
attachment was a consequence of the existence of the warrant of execution. The notice
too cannot stand.
Costs
[21] Mr A D Penwill has succeeded in getting us to reduce the amount allowed at
taxation and, therefore, in warding off execution. But, because the bulk of the allowed
amount has been left intact, it seems fair that there should be no order as to costs.
Order
[22] The following order is made:
1. The sum of R1 504.00 allowed at taxation in respect of item 23 of the bill
of costs is set aside and substituted with the sum of R384.00.
2. The warrant of execution issued on 19 October 2018 in respect of the
movable property of Mr Andrew Donald Jonathan Penwill is set aside.
3. The notice of attachment issued on 6 December 2018 pursuant to the
warrant of execution referred to in paragraph 2 is set aside.