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[2011] ZAWCHC 150
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Brown and Another v Papadakis NO and Another (13420/2007) [2011] ZAWCHC 150 (17 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 13420/2007
In
the matter between:
JOSEPH
ARTHUR WALTER BROWN
…..........................................
First
Applicant
ID
NO:
SUSAN
JENNIFER BROWN
…....................................................
Second
Applicant
ID
NO:
And
GEORGE
PAPADAKIS N.O.
….....................................................
First
Respondent
DINES
CHANDRA GIHWALA N.O.
…......................................
Second
Respondent
Court:
Jl
Cloete. AJ
Heard:
16
February 2011
Judgement
on application for leave to appeal
Delivered:
17
February 2011
JUDGMENT
CLOETE
AJ:
INTRODUCTION
[1]
The applicants (and their attorney of record, Mr Khan) brought an
application in terms of rule 48 for the review of the taxing
master's
decision in relation to certain items in a bill of costs which the
respondents had presented for taxation on 20 May 2009.
The
respondents then made a counter application in terms of the same rule
in regard to their complaints in respect of the taxing
master's
decision relating to certain items.
[2]
The notice of application for leave to appeal presently before me
refers to the first and second applicants as being parties
to the
application for leave to appeal Whilst this may notionally be
correct, as a matter of fact the costs order which underpins
this
entire matter is one granted against Mr Khan only. I agree with
counsel for the respondents that there can be little doubt
that Mr
Khan is the effective applicant.
[3]
The taxing master's stated case was delivered on 3 June 2010. The
respondents delivered written submissions in terms of rule
48(5){a)
in response thereto on 25 June 2010 On 14 September 2010 the taxing
master delivered a notice in terms of rule 48(5)(b)
indicating that
he had nothing further to add and that he would abide the decision of
the reviewing judge
[4]
Although open to the applicants, they did not deliver any written
submissions after receipt of the taxing master's stated case
as is
provided for in terms of rule 48(5) (a).
[5]
The application and counter application for review came before me in
chambers and on 8 November 2010 I made an order dismissing
both, with
no order as to costs.
[6]
The applicants now seek leave to appeal against the whole of my
judgement and order. The respondents do not seek leave to appeal,
but
oppose the application.
WHETHER
THE ORDER IS APPEALABLE
[7]
Before turning to the grounds of appeal, it is necessary to consider
whether an appeal lies against my judgment and order.
[8]
In
Menzies.
Birse and Chiddy v Hall
1941
CPD 297
a full bench of this division held that, save as specifically
provided by statute, there is no appeal from a judgment or order
given by a judge sitting in chambers. Although the court was dealing
with the former rule 48 of the rules of court, it would appear
that
the relevant provisions were, for practical purposes, the same as the
present rule 48: see
Vaaltyn
v Goss and Another
1992
(3) SA 549
at 557 G. The rationale for this decision is to be found
at page 301 of the judgment where the court stated that:
'As
an appeal only lies in general from a Divisional Court, and as a
Judge sitting in Chambers is not such a Court, it follows that,
save
when specifically provided by Statute, there is no appeal from the
judgment or order given by a Judge sitting in Chambers,
and that an
appeal consequently will not lie in the present
case."
[9]
At page 302 the court went on to say that:
"Under
the rule now in question, the Judge sits purely as
a
Judge
in Chambers, and does not purport (whether in term time or in
vacation) to exercise the functions of the Court, and there
is, in my
opinion, no appeal from his decision.. That it was competent to take
away that right of appeal by the new rule is, I
think, clear from the
fact that there is no inherent right to a litigant to 'review' the
taxation of the Taxing Master - which
is in the nature of a ruling by
an administrative official - save, naturally, for a gross
irregularity or some other reason which
makes it per se reviewable.
Here, he is given a right of 'review', which is in reality a
revision, on the merits, of that ruling,
and is in no sense a
proceeding of the Court. It was consequently competent, by this rule,
to make such revision the last word
on this subject."
[10]
It should also be noted that
"Judge"
is
defined in rule 1 of the rules of court as meaning "a
judge
sitting otherwise than in open court",
and
"court" in relation to civil matters is defined as meaning
"a
court
constituted in terms of section thirteen of the Act.
Section
13 of the Supreme Court Act 59 of 1959 ("the Act")
provides, insofar as it is relevant to the present matter,
that a
court of first instance shall be
"constituted
before a single judge of the division concerned".
[11]
Further, section 20(1) of the Act makes provision for an appeal
"from
a judgment or order
of
the court
of
a provincial or local division in any civil proceedings.. "
(my
emphasis).
[12]
However, see
Vaaltyn
v Goss and Another supra
at
557 B - 560 G; although in that matter the court was called upon to
interpret the provisions of rule 69(3) of the rules of court,
an
issue which is clearly of relevance to other litigants and their
legal representatives as well. In the present matter I was
called
upon to interpret the provisions of a court order relevant only to
parties to the litigation which preceded it. This was
conceded by
counsel for the applicants and Mr Khan during argument.
[13]
In any event, I am bound by the decision in
Menzies
supra,
since
it pronounced on the provisions of rule 48 itself, and it is trite
that a single judge is bound by the decision of the full
bench of the
same division on the same issue. Fourie J also considered himself to
be so bound in his judgment handed down on 23
April 2010 in the as
yet unreported matter of
Weaving
v Reck and 3 Others
(Western
Cape High Court Case No: 11579/06).
[14]
It should however be mentioned that a full bench of this division in
the matter of
City
of Cape Town v Arun Property Development (Pty) Ltd and Another
2009
(5) SA 227
(CPD) in fact heard an appeal arising from the dismissal
by a judge in chambers of an application for review of taxation It is
clear though from a reading of the judgment that the court was not
called upon to consider whether the leave granted by the judge
a
quo
to
appeal her order was competent or not. Accordingly I do not believe
that the
City
of Cape Town
case
can be regarded as authority for the proposition that a review of
taxation is appealable.
WHETHER
THE APPLICATION FOR LEAVE TO APPEAL SHOULD BE POSTPONED TO ALLOW THE
MINISTER OF JUSTICE TO BE JOINED IN THE APPLICATION
FOR THE PURPOSE
OF A CONSTITUTIONAL CHALLENGE
[15]
The applicants and Mr Khan have asked that in the event that the
respondents contend that the order which I made is not appealable,
they (together with Mr Khan) shall apply for an order postponing the
application for leave to appeal to allow the Minister of Justice
to
be joined in the application for the purpose of:
15.1.
Declaring that the provisions of rule 48(2) are unconstitutional in
that they violate the right of the costs debtor to have
a dispute
determined by a court;
15.2.
Declaring that the procedure of a judge sitting in chambers violates
the provisions of section 34 of the Constitution of the
Republic of
South Africa Act no 108 of 1996 ("the Constitution"), which
provides for a public hearing Alternatively,
the rule must be amended
to eliminate the distinction between a judge sitting in chambers -
giving a judgment or making an order
- and a judge sitting in open
court giving a judgement or making an order. If the decision in
chambers is intended as a final judgment
or order, the rule must say
so and the section must be amended.
[16]
In my view, the second ground relied upon by the applicants (and Mr
Khan) is really a variation on the same theme as the first
ground.
[17]
Section 34 of the Constitution provides as follows:
Access
to
Courts
34
Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before
a
court or, where appropriate, another independent and impartial
tribunal or forum."
[18]
Section 173 of the Constitution provides that:
"Inherent
power
173.
The Constitutional Court, Supreme Court of Appeal and High Courts
have the inherent power to protect and regulate their own
process,
and to develop the common law, taking into account the interests of
justice'
[19]
In
South
African Broadcasting Corporation Limited v National Director of
Public Prosecutions and Others
[2006] ZACC 15
;
2007
(2) BCLR 167
(CC) the Constitutional Court commented on section 173
as follows (at 181 B - D):
"This
is
an important provision which recognises both the power of courts to
protect and regulate their own process as well as their power
to
develop the common law. It is the former power that is of relevance
in this case. It must be understood in the context of section
165
which provides that the judicial authority is vested in courts, that
they are independent and must apply the law impartially
and without
fear, favour or prejudice.
Courts,
therefore, must be independent and impartial. The power recognised in
section 173 is a key tool for courts to ensure their
own independence
and impartiality. It recognises that courts have the inherent power
to regulate and protect their own process.
A primary purpose for the
exercise of that power must be to ensure that proceedings before
courts are fair. It is therefore fitting
that the only qualification
on the exercise of that power contained in section 173 is that courts
in exercising this power
must
take into account
the
interest of justice"
(court's
emphasis)
[20]
The preamble to the rules of court specifically provides that the
purpose of the rules contained therein is to regulate the
conduct of
the proceedings of the provincial and local divisions of the Supreme
Court of South Africa.
[21]
In the present context, the rules of court must surely fall squarely
within the provisions of section 173.
In
terms
of rule 48(5) (c), in a review of taxation, the taxing master is
obliged to
"lay
the case together with submissions before a judge".
I
have
already referred to the definition of a
"judge"
above
and accordingly do not need to repeat such definition.
[22]
Rule 48(6) (a) confers a discretion on the judge to whom the case has
been submitted. He or she may either (a) decide the matter
upon the
merits of the case and submissions so submitted; or (b) require any
further information from the taxing master; or (c)
if he or she deems
it fit, hear the parties or their advocates or attorneys in his or
her chambers; or (d) refer the case for decision
to the court.
[23]
As to the first ground advanced by the applicants and Mr Khan, namely
that the provisions of rule 48(2) are unconstitutional
in that they
violate the right of the costs debtor to have a dispute determined by
a
court
(my
emphasis), it is to be noted that the applicants (and Mr Khan) do not
submit that the discretion conferred upon me in terms
of rule 48(6)
(a) was improperly exercised. In any event, the reference by the
applicants (and Mr Khan) to rule 48(2) is clearly
incorrect. Rule
48(2) simply refers to the manner in which the notice in terms of
rule 48(1) must be phrased. I will accept for
purposes of this
judgement that the reference to rule 48(2) was intended to be a
reference of rule 48(6).
[24]
As to the second ground advanced by the applicants and Mr Khan,
namely that the procedure of a judge sitting in chambers violates
the
provisions of section 34 of the Constitution, in addition to what
I
have
set out above. I believe that it is necessary to be mindful of the
purpose of the proceedings for review of taxation, namely
that, as
far as possible, such procedure should simplify and reduce the costs
of such proceedings: See
Erasmus:
Superior Court Practice
at
B1 - 352 and the comments of the full bench of this division in the
Menzies
case
supra
at
302 that
"the
object of the rule was certainly to cheapen reviews of taxation."
In
the
South
African Broadcasting Corporation Limited
case
(supra)
the
Constitutional Court stated the following at 181 E:
UA
court must regulate the way proceedings are conducted and this will
inevitably affect both the right to a fair trial (section
35 of the
Constitution) and the right to have disputes resolved by courts
(section 34). Courts are bound by the provisions of the
Bill of
Rights and therefore bear a duty to respect those rights. In
exercising the power, therefore, they must take care to ensure
that
those rights are not unjustifiably attenuated"
[25]
In my view, the discretion afforded to a judge presented with a
review of taxation in terms of rule 48{6)(a) does not "unjustifiably
attenuate" a costs debtor's rights in terms of section 34 of the
Constitution, particularly if regard is had to the following:
25.1.
The very purpose of the procedure prescribed in terms of rule 48,
namely to cheapen reviews of taxation: and
25.2.
The costs debtor (and the costs creditor) are each afforded two
opportunities to make written submissions to the judge before
whom
the review is placed: the first set of submissions must comply with
the detailed format prescribed in terms of rule 48(2)
and, perhaps
more significantly, the second set of submissions may be made after
the taxing master has supplied his or her stated
case, with the costs
debtor (and creditor) specifically being afforded the opportunity in
terms of rule 48(5)(a) to also raise
any ground of objection not
raised at the taxation. As set out above, the applicants (and Mr
Khan) elected not to utilise the provisions
of rule 48(5)(a).
[26]
As to the alternative to the second ground relied upon by the
applicants and Mr Khan, namely that the rule must be amended
to
eliminate the distinction between a judge sitting in chambers -
giving a judgment or making an order - and a judge sitting in
open
court giving a judgement or making an order, and that if the decision
in chambers is intended as a final judgment or order
the rule must
say so and be amended accordingly, I believe that the following is
pertinent:
26.1.
The powers afforded to the Chief Justice, Judge of Appeal and Judges
President to make rules regulating the conduct of proceedings
in the
Supreme Court of Appeal and the various provincial and local
divisions was abolished upon the coming into effect of the
Rules
Board for Courts of Law Act 107 of 1985 (the Act came into effect as
from 20 February 1987). Since that date it is the Rules
Board for
Courts of Law which has the power to make, amend or repeal rules for
both the High Court and the Magistrates Courts.
The existing rules
made by the judges prior to the commencement of this Act remain in
force until amended or repealed by rules
made by the Rules Board
under section 6 of the aforesaid Act;
26.2.
Section 6(1) of the Rules Board for Courts of Law Act provides that:
"The
Board may, with a view to the efficient, expeditious and uniform
administration of justice in the Supreme Court of Appeal,
the High
Courts and the Lower Courts, from time to time and on a regular basis
review existing rules of court and. subject to the
approval of the
Minister, make, amend or repeal rules for the Supreme Court of
Appeal, the High Courts and the Lower Courts regulating
- ... (s) the
taxation of bills of costs and the recovery of costs ..."
[27]
By
parity of reasoning, rule 48 of the Rules of Court falls within the
purview of the Rules Board; and
I
am
not persuaded that the apparent contradiction relied on by the
applicants (and Mr Khan)
"unjustifiably
attenuates"
the
costs debtor's rights in terms of section 34 of the Constitution for
the same reasons set out above.
[28]
I accordingly decline the application to postpone the Leave to
Appeal.
THE
GROUNDS OF APPEAL
[29]
As I have found that I have no authority to grant leave to appeal in
this matter, the views which I express hereunder are.
of necessity,
academic. However, I do believe that it is necessary to state that,
even rf I had the power to grant leave to appeal,
I would have
refused it, as I do not believe that the applicants (and Mr Khan)
have shown that they have a reasonable prospect
of success on appeal.
[30]
Apart from the aspect dealt with hereunder, I have already provided
reasons in my judgment in the review of taxation as to
why I believe
the taxing master was correct, and it is not necessary for me repeat
these reasons
[31]
The applicants (and Mr Khan) have, in their notice of application for
leave to appeal, raised a new ground which they did not
raise in the
application for review, namely that I erred and/or misdirected myself
by failing to find that the taxing master erred
and misdirected
himself in concluding that the application was
'exceptional
and extraordinary",
it
is alleged that the application for leave to appeal in respect of
which the taxing master taxed the bill of costs was "nothing
more than an application for leave to appeal".
[32]
In this regard, the respondents (in their written submission on the
taxing master's stated case in terms of rule 48(5)(a))
set out the
history of the matter giving rise to the order of Davis J that their
costs be taxed and allowed on the scale as between
attorney and own
client, payable
de
bonis propriis.
The
applicants further submitted that:
"The
extraordinary facts of this matter necessitated research into the
powers of a Court of Appeal as set out in sections 20
and 21 of the
Supreme Court Act
59
of
1959 ("the Act") and an investigation into whether, by
virtue of the fact that no application was made by the Respondents
(i.e.
the applicants in the matter)
for
Davis J's recusal and no refusal of such application was granted,
there was a judgment, order or decision in regard thereto
which may
be appealed against as envisaged by the provisions of section 20 and
21 of the Act. An investigation into the proper
procedure to be
followed by the respondent was furthermore required...
(and
further) ...
A
case had to made out by the applicants
(the
respondents in the matter)
justifying
the granting of a costs order de bonis propriis against the
respondents attorney of record."
It
was also submitted that Davis J, in ordering and allowing the costs
of two counsel, acknowledged and accepted the complexity
and
importance of the application for leave to appeal
[33]
Counsel for the applicants (and Mr Khan) conceded during argument
that, in reaching my decision on review, I was entitled to
have
regard, not only to the taxing master's stated case, but also to all
of the written submissions by both the costs debtor and
costs
creditor. There was nothing in the submissions by the applicants to
counter or contradict the respondents' submissions on
the issue of
whether or not the case was
'extraordinary
or exceptional'.
[34]
The issues involved have been set out by the respondents and, in the
words of Vos J in
Horseshoe
Caterers (Green Point) (Pty) Ltd v Bumkloof Caterers (Pty) Ltd
1977
(3) SA 383
at 327 B. I regard myself
"in
as good a position as. if not in a better one than, the Taxing Master
to assess the complexity of this matter".
[35]
To my mind, there is no question that the taxing master correctly
ruled that the case was an
"extraordinary
or exceptionaf
one.
COST
OF THIS APPLICATION
[36]
This application thus clearly falls to be struck from the roll with
costs. The issues which now arise are (a) which scale of
costs should
apply; and <b) whether such costs should be awarded against the
applicants and Mr Khan jointly and severally or
against Mr Khan
himself.
[37]
During the course of argument counsel for the respondents (with the
consent of counsel for the applicants and Mr Khan) handed
in a letter
dated 29 November 2010 which had been addressed by the respondents
attorneys to Mr Khan in which his attention was
drawn to the
Menzies
case,
particularly as Mr Khan had indicated that he would seek leave to
appeal in this matter
[38]
The letter advised that it would be brought to this court's attention
that Mr Khan had been advised of the
Menzies
case
and that a costs order would be sought against him on the scale as
between attorney and client.
[39]
Counsel for the respondents argued that a punitive costs order is
warranted in this matter, since, despite having been advised
of the
Menzies
case.
Mr Khan pursued this application.
[40]
I am not persuaded that a punitive costs order is warranted, matter
but only because of the constitutional issues raised by
the
applicants (and Mr Khan) in their notice of application for leave to
appeal. I do however believe that it would be appropriate
that the
costs order should be effective against Mr Khan since, as pointed out
by counsel for respondents, the costs order which
underpins this
entire matter is granted against Mr Khan only.
[41]
As set out in
Rautenbach
v Symington
1995
(4) SA 583
(OPD) at 587 J - 588 A, it is well known that the question
of costs rests in the discretion of the court and that in the
exercising
thereof the court should attempt as far as possible to
dispense justice and fairness to all the parties. Further, the
court's discretion
is not restricted to cases of dishonest, improper
or fraudulent conduct and no exhaustive list exists. It includes all
cases where
special circumstances or considerations justify the
granting of such an order (see the
Rautenbach
case
at 588 A - B).
[42]
In the result, the application is struck from the roll with costs,
such costs to be paid by Mr M R Khan, the applicants' attorney
of
record.
JI
CLOETE