IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 4263/2005(a)
In the matter between
TWK AGRICULTURE HOLDINGS (PTY) LTD,
Formerly known as TWK AGRICULTURE LIMITED Applicant
And
THE TAXING MASTER OF THE HIGH COURT 1st Respondent
SWAZILAND MEAT INDUSTRIES LIMITED 2ndRespondent
THE DEPUTY-SHERIFF FOR THE DISTRICT
OF HHOHHO 3rd Respondent
In re:
TWK AGRICULTURE LIMITED Plaintiff
and
SWAZILAND MEAT INDUSTRIES LIMITED 1st Defendant
SIMUNYE CATTLE COMPANY LIMITED 2nd Defendant
Neutral citation: Twk Agriculture Holdings (Pty) Ltd vs The Taxing Master of the High Court and 2 Others (4263/2005(a)) [2015] SZHC 133 (06 August 2015)
Coram: MAMBA J
Heard : 17 February, 2015
Delivered: (Order made 20 March 2015)
[1] Civil law and Procedure – application for review of taxation. Rule 48 only applicable
where the applicant objected to specific items or part thereof and was present during the taxation of the bill of costs. However, where the whole bill or allocatur is objected to or where the taxation was done in the absence of the applicant or where the taxing master failed to exercise his discretion, rule 53 and the common law, is applicable to set aside such taxation.
[1] In 2005, the applicant instituted action proceedings against the 2nd Respondent and Simunye Cattle Company Ltd, before this Court under case 4263/2005. The action was heard by Masuku J, who on 10 June 2009 granted absolution from the instance in favour of the 2nd respondent herein and the applicant – as Plaintiff – was to pay the costs of that action ‘on the scale as between party and party, including the costs of two Counsel as certified in terms of rule 68(2) of the rules of this Court.’
[2] Following the judgment by Masuku J, the applicant noted an appeal against that judgment. The Supreme, essentially dismissed the appeal but varied the order by Masuku J and ordered that the order for costs ‘…shall be limited to the costs of a successful exception by the [2nd respondent] to the [applicant’s] particulars of claim.’
[3] Armed with the order of the Supreme Court referred to in the preceding paragraph, the second respondent drew up, served on the applicant and filed with the taxing Master – first respondent - a Bill of costs for taxation. The applicant’s attorneys duly filed their objections to the Bill. After countless correspondences between the parties, some of which were served on the first respondent, the Bill was taxed by the first respondent to its completion and allowed in the sum of E1104 519.00. This was on 17 September 2013 and was done in the absence of the Applicant’s attorney who had all along been handling the matter. It is this taxation of the Bill under such circumstances that has resulted in this application for the review of the actions by the first respondent. In this application the applicant seeks an order inter alia:
‘1. Reviewing and setting aside:-
- The taxation by the first Respondent of the second Respondent’s Bill of Costs under case Number 4263/2005 and/or
- The allocator of the first Respondent dated 17 September 2013 for the sum of E1 104 519.00 in respect of the above said Bill of Costs.
2. Costs of suit against the second Respondent only, including the costs of Counsel as certified in terms of High Court rule 68 (2), on the attorney and client scale.’
[4] This application is opposed by the second respondent. The first respondent has also filed her report or reaction to this application wherein she explains her actions pertaining to the taxation that is the subject of this Review application. (See Annexure SMI1 at pages 201-204 of the Book of Pleadings). Her actions are in fact under review herein.
[5] This application has been filed in terms of rule 53 of the rules of this Court. The second respondent has submitted that this is irregular and is contrary to the provisions of rule 48 of the rules. I shall return to this argument presently in this judgment. I should also note that the argument or objection in this application substantially centred around these two rules and their respective applicability or inapplicability in such a review application.
[6] It is necessary, for purposes of this application to set out the long history of the taxation. During the taxation proceedings, the applicant was represented by Mrs Currie whilst Mrs Kemp Thomson represented the second respondent.
[7] First, the taxation was set down to be heard on 28 June, 2010 but on that date, it was mutually agreed between counsel to have it postponed to 13 July 2010. On 13 July, again, the matter could not proceed due to the absence of attorney D. Jele who was due to represent the second respondent. He had been taken ill. The taxation was postponed to the 14th day of October of the same year. Mr Jele indicated that that date was not suitable to him and promised to propose to Mrs Currie one that was suitable to him. He failed to do so and on 20 October 2010 Mrs Currie in a letter to Mrs Kemp Thomson, indicated that if the parties failed to reach an agreement on a suitable date, she would have no alternative but to set it down without such agreement. In response Mrs Kemp-Thomson responded by saying:
‘I will set the matter down on a date suitable to yourself and allow the matter to follow its normal course.’ This was by letter dated 02 November 2010. (See Page 114 of the Book of Pleadings).
[8] The matter went into a lull until it was set down for 14 July 2011. The attorney for the 2nd respondent was indisposed on that date and the matter was rescheduled for the 27th day of that month. On that day, the matter began in the presence of both Mrs Currie and Mrs Kemp Thomson. The taxation could not be finalized and Counsel agreed to agree on a further date suitable to both of them.
[9] Meanwhile Counsel agreed to meet in Johannesburg on 19 September 2011 before a costs consultant Mr. W. Wandrag in an endeavour to resolve some of their disagreements pertaining to certain items in the Bill. Further correspondence in the form of fee notes, Counsel’s fees and vouchers were exchanged between Counsel, including an offer of settlement on the disputed items by the applicant.
[10] About 2 years later; on 13 September 2013 the second respondent’s attorneys gave written notice to the applicant’s attorneys that the taxation would take place on 17 September 2013. This notice was delivered at the applicant’s attorneys’ office. There was no prior agreement between Counsel on this date and ‘Mrs Currie was out of Swaziland for the period from the 12 to 22 September 2013 and was in an area in Mozambique with no telephone network or other means of communication. …’
[11] On 17 September 2013 the 1st respondent in the form of Ms Gabsile Ntuli telephoned the applicant’s attorneys to remind them that the taxation had been set-down for 9.30 am that day. This call was made at around 900 am. The receptionist at Applicant’s attorneys’ office explained to Ms Ntuli that Mrs Currie was out of the country and thus could not attend the taxation. She asked that the taxation be postponed for a week. This request was refused by Ms Ntuli.
[12] It is common cause further that the said receptionist then informed Mr Thwala; Mrs Currie’s clerk, who was at the time at the Mbabane Magistrate’s Court, to hasten to the first respondent’s office to explain to the parties that Mrs Currie was not available and was unreachable and Mr Thwala had to seek for a postponement of the matter. Mr Thwala did so. He explained that the matter was rather complicated and Mrs Currie had all the necessary instructions thereon and he, Mr Thwala, could not be of any assistance in the exercise. His entreaties were in vain. He left the first respondent’s office and Ms Ntuli indicated to him that she would prepare a report on the matter and inform Mr Thwala accordingly. However, unbeknown to Mr Thwala, Mrs Ntuli went aheard with the taxation and finalized it that day and made the allocator in question herein.
[13] Perhaps not insignificantly, the matter went on a lull once more and it was not until 20 January, 2014 that the third respondent attempted to serve a Writ of execution in respect of the taxed costs at the applicant’s subsidiary in Matsapha. This writ, although bearing the Registrar of this Court’s date stamp, was not signed by her. This is how and when the applicant got notification that the taxation had been done and finalized on 17 September 2013.
[14] On 24 January 2014 Applicant’s attorneys wrote to the 2nd respondent’s attorneys seeking to have the taxation set aside by consent and to be conducted de novo. This request was declined by the latter who insisted that the taxation had been conducted regularly and after due notice to the Applicant’s attorneys. (See pages 164 -169 of the Book of Pleadings.) It is this standoff between the Applicant and the 2nd Respondent that has resulted in this Review Application.
[15] I have already stated above that the 2nd respondent has objected in limine that this application is fatally defective inasmuch as it has not been filed in terms of rule 48 of the rules of Court and the first respondent has been denied the opportunity to state a case for the Court as required by that rule. The second respondent further contends that the applicant is objecting to specific items in the Bill of Costs and thus it was mandatory that the application be filed in accordance with the provisions of the said rule. I shall revert to this contention presently.
[16] Most of the essential facts in this case are common cause. For instance, the parties are agreed that the Bill of Costs was hotly contested such that several meetings and interventions were conducted by the parties in an attempt to reach a settlement. Again, it is common cause that the applicant was, during the negotiations and as a result thereof required to make an offer of settlement. The 2nd respondent states that this offer had to be made within a reasonable time but the applicant waited for over a year to do so. Besides this long delay, the offer was considered to be frivolous and derisory and did not, in the opinion of the 2nd respondent, deserve or merit a response from the latter.
[17] Again, 2nd respondent largely concedes that there was an agreement reached on several items in the Bill. However, it is contended that this agreement was conditional or ‘…with clear proviso that certain specific claims within those items, which were clearly disputed, had to be discussed and agreed upon. Further ..that items 95-208 be excluded but be replaced with an amount which fairly reflects the preparation and argument of an exception in the High Court.’ (Per paragraphs 22 of the Answering Affidavit).
[18] The second respondent denies that the date for the continuation of the taxation had to be mutually agreed between Counsel. The second respondent states that the date (of 17 September 2013) was set by the first respondent and notice thereof was given to the parties. Lastly, it is denied by the 2nd respondent that the first respondent did not correctly apply her mind to the matter or that she incorrectly used her discretion in conducting the taxation.
[19] Notwithstanding that the first respondent finalized the taxation on 17 September, 2013 and promised to file a written report thereon, such report was only filed in April 2014 after she was served with this application. The delay is not explained. Suffice to say that the taxing master states that the taxation was properly carried out and she exercised her judicial discretion properly. She also makes the point that this application is irregular for it fails to comply with the provisions of rule 48 of the rules of this Court.
[20] Save to note or observe that the notice of taxation distributed by the first respondent in respect of this case was directed not to the Applicant’s attorneys herein but to Currie and Nsibandze Associates, I do not think that any useful purpose would be gained by any further comment on the first respondent’s report at this stage. It is nothing but a self-serving piece that is devoid of any factual bases on the specific items that were disputed on the Bill of Costs.
[21] The second respondent’s attorney confirm that:
‘28. I made various calls to Mrs Currie, but for personal reasons, she was not available at the beginning of 2013. I called her twice on her Cell phone, and called her offices, on or around the beginning of September 2013, but could not reach her.
29. I contacted the taxing master, Gabsile Ntuli at the beginning of September 2013 regarding my position and the difficulty I was having getting a date from Mrs Currie. She informed me that it was her job to give us a date that suited her timetable, and she would revert to me in this regard. She did so a week later, giving me the date of the 17 September, and requesting me to file a notice of set-down, as required by the High Court rules. …I accordingly deny that the date for taxation had to be agreed between the parties.’
[22] As a general rule, the Court is reluctant to interfere with the decisions of the taxing master upon matters in respect of which he is required to exercise a discretion entrusted to him. The general principles governing interference with the exercise of a taxing master’s discretion as were stated by the Court in Visser v Gubb 1981 (3) SA 753 (C) at 755-755 as follows:
‘The Court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercised his discretion judicially and has exercised it improperly, for example, by disregarding factors which he should properly have considered, or considering matters which it was improper for him to have considered; or he has failed to bring his mind to bear on the question in issue; or he has acted on a wrong principle. The court will not interfere where it is of the opinion that the taxing master was clearly wrong but will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue. …The court must be of the view that the taxing master was clearly wrong, ie its conviction on a review that he was wrong must be considerably more pronounced than would have sufficed had there been an ordinary right of appeal.’
See also Mcunu v Southern Insurance Association Ltd 1977 (2) SA 18 (SE), Ocean Commodities Inc v Standard bank of SA LTD 1984 (3) SA 15 and Miller v Hosiosky 1973 (1) SA 113 (W). The Court also has jurisdiction to review a taxation even if the taxing master has not exercised his discretion in an improper manner. (Warmbad Makelaars v Marais1983 (2) SA 417 AT 420).
[23] In Basson v Standard Bank of South Africa Ltd (5222/2009, 5314/2009) [2011] ZAFSHC 22 (10 February 2011), the court made the following observations:
‘[15] The discretionary powers of the taxing officer to allow or disallow and the judicial powers of the court to oversee the taxation process by way of revisionary interventions were instructively outlined and contrasted in PRELLER v JORDAAN AND ANOTHER 1957 (3) SA 201 (O) at 203B – E. There are two instructive features in the judgment by Smith AJP. The one is that the taxation of the bill of cost is primarily the prerogative of the taxing officer. The other is that the scope of intervention by the courts is limited. An important segment of the taxing officer’s discretion is that costs, which appear to the taxing officer to have been incurred by the claimant through overcaution, should be disallowed. The various ground on which the court can interfere with the discretion of the taxing officer are enumerated in the passage.
[20] In the case of VAN ROOYEN v COMMERCIAL UNION ASSURANCE CO (SA) LTD 1983 (2) 465 (O) M T Steyn J made some apposite comments about the role-players in a taxation matter as well as the process of taxation itself:
[21] At 468C – E he said the following about an attorney:
“The attorney is his client's master of costs, often deciding, either on his own or in conjunction with counsel, what steps to take, what evidence to obtain for and use in the litigation, evaluating the work and effort involved in the matter and what the charges therefor should be. If his client is the successful party he then has to see to it that the client be properly indemnified and has to draw his party and party bill of costs accordingly and have it properly taxed. As officer of the Court the attorney is enjoined to act responsibly and to draw his party and party bill of costs so as to include therein only what is permissible to recover from the party condemned in such costs.
What is permissible is, to my mind, those costs which an honest, experienced and capable practitioner would consider reasonable in relation to the particular claim or defence, bearing in mind the requirements of efficient practice and the exigencies of litigation.”
[22] At 468 E – G he said the following about a taxing officer:
“But even the most reasonable and capable of minds tend to subjectivity in evaluating own conduct and estimations. To curb such subjectivity the office of Taxing Master was called into being for the purpose of introducing an objective standard whereby to judge, from the outside as it were, the permissibility of the amounts sought to be recovered from the losing party. By virtue of his having in effect to make value judgments on the nature and amounts of the items in the bills of costs he has to tax, the Taxing Master must of necessity be vested with a discretion as to what he should allow or disallow. Being like the attorney an officer of the Court, the Taxing Master is enjoined to act responsibly in the performance of his duties and must consequently exercise his discretion judicially.”
[23] At 468G – 469B he said the following about taxation process.)
“In essence the process of taxation is a joint undertaking by attorney and Taxing Master, aimed at justice being properly done in the matter of costs and each making his contribution for that purpose. It is clearly for this reason that the learned authors of Nathan, Barnett and Brink's Uniform Rules of Court 2nd ed remarked at 422 that attorneys, as officers of the Court, have a "duty to assist the Taxing Master, where possible, to steer his difficult course between the Scylla of liberality and the Charybdis of niggardliness.
But to evade the fangs of the monster on the one hand and the vortex of the whirlpool on the other, the Taxing Master should be properly appreciative of the role of the attorney and be ever mindful of the exigencies of the particular litigation the attorney was set to handle.
The process in fact requires of each that he place himself in the position of the other. By way of such mutual appreciation the proper balance needed for an equitable result can the (sic) more readily and speedily be attained.”
[24] At 469B – C he said the following about the court:
“But the Court remains the ultimate arbiter and it is a well-established principle of review that the exercise of the Taxing Master's discretion will not be interfered with
‘unless it is found that he has not exercised his discretion properly, as for example, when he has been actuated by some improper motive, or has not applied his mind to the matter, or has disregarded factors or principles which were proper for him to consider, or considered others which it was improper for him to consider, or acted upon wrong principles or wrongly interpreted rules of law, or gave a ruling which no reasonable man would have given’.
per SMIT AJP in Preller v Jordaan and Another 1957 (3) SA 201 (O) at 203C - E.”
[24] Now, rule 48 of the rules of this Court provides as follows:
‘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 fourteen days of the allocations require the taxing master to state a case for the decision of a judge, 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 finding of fact by the taxing master:
Provided that, save with the consent of the taxing master, no case shall be stated where the amount, or the total of the amounts, which the taxing master has disallowed or allowed, as the case may be, and which the party dissatisfied seeks to have allowed or disallowed respectively, is less than E50.
2. The Taxing Master shall supply a copy of the case of each of the parties, who may within ten days of the receipt of the copy submit contentions in writing thereon, including grounds of objections not advanced at the taxation 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.
3. The taxing master shall thereafter make his report and supply a copy thereof to each of the parties who may within seven days of the receipt thereof submit contentious in writing thereon to the taxing master who shall forthwith lay the case together with the contentious of the parties thereon, his report and any contentious thereon before a judge, who may then decide the matter upon the case and contentious so submitted, together with any further information which he may require from the taxing master, or may decide it after hearing, if he deems fit, the parties or their advocates or attorneys in his chambers or he may refer the case for decision to the court.
4. Any further information to be supplied by the taxing master to the judge under sub-rule (3) shall be supplied by him to the parties who may within seven days of the receipt thereof submit contentions in writing thereon to the taxing master who shall forthwith lay such further information together with any contentious of the parties thereon before the judge.
5. The judge or court so deciding may make such order as to the costs of the case as he or it may deem fit, including an order that the unsuccessful party shall pay to the opposing party a sum fixed by the judge or court as and for costs.’
[25] The provisions of rule 48 are applicable where a party who was present during the taxation is dissatisfied with a ruling by the taxing master in respect of any item or part of an item which was objected to or was disallowed mero motu by the taxing master. It has no application where the aggrieved party did not attend the taxation or did not object to specific items or part thereof ; or where the whole bill is objected to. This does not of course mean that a party whose case does not fall under or is not governed by rule 48 has no remedy. He has such remedy under the common law and rule 53 of the rules of this court. See The Attorney General v The Taxing Master and Another, Civil Case 738/2009 (judgment delivered on 21 February 2011, Beinash t/a Beinash and Co and Another v Reynolds N.O. and Others 1999 (1) SA 1094 (W) and Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Others 1990 (2) SA 574 and Olga v Minister of Safety and Security and Another (586/2012) [2012] ZAECGHC8; 2012 (4) SA 127 (ECG) (20 February 2012). In Olga (supra) after reviewing the authorities concluded that “…the proposed review of taxation under rule 48(1) could, in my view, never succeed. The Application should instead have instituted proceedings for an order setting aside the taxation.’
[26] It has to be noted that whilst the applicant has complained of certain or specific items in the Taxed Bill, these specific objections are by way of illustration that the first respondent did not exercise her judicial discretion properly. The complaint in general is about the whole Bill, the manner it was taxed, in allegedly in violation of the audi alteram partem rule and the failure to exercise a judicial discretion by the first respondent. For the above reasons, I hold that the point raised in limine is misconceived and stands to be rejected and is hereby dismissed.
[27] I now examine whether the application may succeed under rule 53 of the rules of this Court or the Common Law. From the outset, it has to be stated that rule 53 is, unless the governing regulations or legislation provides otherwise, the usual rule by which decisions of lower courts or functionaries are reviewed by this court. I have already found that the provisions of rule 48 do not apply in the instant case. Therefore there is no bar in principle to this court hearing this application in terms of either rule 53 or the common law.
[28] In the President of the Republic of South Africa and 2 Others v Gauteng Lions Rugby Union and Another, case CCT 16/98 Kriegler J said:
‘[13] It is settled law that when a court reviews a taxation it is vested with the power to exercise the wider degree of supervision identified in the time-honoured classification of Innes CJ in the JCI case. This means:
‘…that the court must be satisfied that the taxing master was clearly wrong before it will interfere with a ruling made by him … viz that the court will not interfere with a ruling made by the taxing master in every case when 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:
This dictum has not only been reaffirmed fairly recently by the SCA in JD Van Niekerk en Genote Ing v Administrateur, Transvaal [1994 (1) SA 595 (A)] but has been approved and followed by the Namibian Supreme Court in Hameva and Another v Minister of Home Affairs, Namibia [1997 (2) SA 756 NMSC]. There is therefore no apparent reason why this court should adopt a different approach to a review of taxation … or apply a different test for interference with decisions of its taxing master.
…
To this there is a qualification, however. Not all decisions by the taxing master are equally insulated from judicial interference. In 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. But there are other cases
… where the point in issue is a point on which the court is able to form as good an opinion as the Taxing Master and perhaps even a better opinion [per Millin J in Wellworths Bazaars Ltd v Chandlers Ltd and Others 1947 (4) SA 453 (T) at 457]’
See also Visser (supra), Ocean Commodities Inc & Others v Standard Bank of SA Ltd & Others (1984 ZASCA 2, 1984 (3) SA 15 (A) and Legal and General Insurance Society Ltd v Lieberum NO and another 1968 (1) SA 473 at 478G.
In the instant application, this court has not been asked to examine each item in the Bill, rather, it has been asked to set-aside the entire exercise and refer it back to the taxing master for the Bill to be taxed anew.
[29] In Van Der Merwe N.O. v MEC for Health Gauteng, In Re: Steenkamp v MEC for Health Gauteng (15360/2009) [2014] [ZAGPPHC 1045 11 December 2014), the court stated as follows:
‘39. The respondents are of the view that this application, if brought as a review application, cannot be brought in terms of the Rules of Review of Taxation due to the fact that it is not governed by Rules 48 and or 53… and that it is not a review of any decision, but is rather tantamount to a rescission application based on the facts as set out in the founding papers.
…Counsel for the applicant … confirmed that this was not a review in terms of either rule 48 or rule 53, but in terms of the common law.
41. Neither party could, however, provide the court with any case law in this regard. The Court, however, had regard to the matter of Grunder v Grunder and Another 1990 (4) SA 680 (C). The English headnote of this case at 680J-681B correctly reflects what was stated in the judgment, namely:
‘The Taxing Master’s allocator is a quasi-judicial administrative act: He must hear parties or their legal representatives (and if needs be also evidence) and exercise a judicial discretion. Inasmuch as proceedings before the Taxing Master constitute an action in Miniature, Common law principles applicable to the setting aside of default judgments apply also to the setting aside of the Taxing Master’s allocatur. An order as to costs cannot be enforced without the Taxing Master’s quantification thereof, and a quantification done in the absence of one of the litigants ought to be open to challenge on the same basis as are default judgments. (See too Barnard v Taxing Master of the High Court of South Africa TPD & Others 2005 (2) ALL SA 485 (T)’
42. The court found in the matter supra that having regard to authorities the proposed review of taxations under rule 48 (2), could in his view, never succeed and that the applicant should have instituted proceedings for an order setting aside the taxation.’
[30] It is common cause that when the taxation was finalized by Ms Ntuli, Mrs J. Currie who was the Counsel representing the applicant in the taxation was absent. She was out of the country and this fact had been brought to the notice and attention of both the Taxing master and counsel for the first respondent. Further it is common cause that she had left Swaziland before the notice of Taxation by the Taxing Master was issued. Therefore, it was not a case of her having left Swaziland and being absent during the taxation after due notification of the taxation had been given to her. It is also significant to note that the Taxing master set down the matter after she had been notified or informed by Counsel for the first respondent that she was unable to get Mrs J. Currie in order to finalise or agree on a date for the taxation. It was as a result of this information that the Taxing Master told her that it was her prerogative to do so and she would unilaterally determine the required date and issue notice accordingly.
[31] It must also be remembered that when Ms Ntuli took over the taxation, she was informed of the delays that had plagued the matter. It is therefore perhaps understandable that her approach to the matter was to issue orders instead of seeking consensus or agreement between the warring parties. However, in her desire or eagerness to finalise the taxation, she decided, rather unfortunately, to move with such haste that in the process ignored or violated the rules of natural justice to hear both sides to the context. It is fair to say that she came with a pre-meditated, or even prejudiced plan to conduct and finalise the taxation whatever the circumstances. This, regrettably clouded her judgment and exercise of discretion. At the end, she exercised no discretion at all in my judgment. She failed, totally, to consider all the relevant surrounding facts and just forged ahead head-on. Further, she regrettably ignored the fact that both Counsel had agreed to agree on a date for the future conduct or hearing of the taxation. The fact that Mr Thwala, an Articled Clerk, did attend the taxation, albeit briefly, to explain the applicant’s predicament, was in my judgment, no attendance or appearance at all. He was not familiar with the matter. He had no instructions whatsoever on it. He told the Taxing Master so. The Taxation was hotly or sharply contested and that was evidenced by the long delays and documentation involved in the whole exercise. And above all, it was complicated and the amounts involved were substantial. Therefore it was totally unreasonable for the Taxing Master to expect Mr Thwala to participate in the Taxation under such circumstances. Without in any way suggesting that notice should have been given to Mrs Currie personally, I do not see what purpose would have been gained by the applicant if Mr Thwala had remained throughout the taxation and only had to report to his principal how the Taxation had been done. The notice of taxation itself constituted short service and the taxing master failed to realise this. It was given, it has to be remembered, on Friday 13th September and the taxation was on Tuesday 17th September 2013.
[32] In Ntulini Investments (Pty) Ltd v P K Msibi and Associates and Others case 392/2009, Ota J said the following:
‘I am of the considered opinion, regard had to the nomenclature employed by the lawgiver, that due to the financial consequences attendant upon the taxation of a Bill of Costs, it is vitally important and imperative that the party liable to pay the costs shall be afforded due notice of the date, time and place of the intended taxation. Furthermore, that party must, in the notice, be advised of its right to attend the taxation … If any one of the two imperatives above has not been met, it is then clear that the Taxing Master may not proceed to tax that bill of costs and if he does proceed, then the Bill of Costs so taxed is liable on application, to be set aside for offending the aforesaid provisions:
I, respectfully agree with these views. See also Brenner’s Service Station and Garage (Pty) Ltd v Milne and Another, 1983 (4) SA 233 (W), Grunder (supra) and Schaeffer and Schaeffer v Maller and Emdin No 1937 CPD 243.
[33] The respondents have argued that due and adequate notice was given. Rule 68 (6) lays down that the required notice should not be less than four clear days before the date of taxation. In the instant date, there is no controversy about the initial set down for the taxation. The only controversy about service is in regard to the set-down and notice made by the first respondent ie Taxing master. This notice was given to the applicant by the second respondent through a pigeon hole at the High Court which however, did not bear the correct name of the applicant’s attorneys. Only two days were given for the taxation. (See para 30 above).
H.J. Erasmus, Superior Court Practice (1994) Juta at B1-434 that
‘Where a party deliberately evades notice of taxation, the court can assume that the judgment creditor has complied with the subrule [requiring due notice], ie the court is entitled to apply the doctrine of fictional fulfilment.
…
As in every case of waiver, [it] must be clear before the court will accept that there has been a waiver. Appearance at the taxation without taking objection to the lack of notice amounts to waiver of notice. Waiver can also arise where instead of applying for a review on the ground of lack of notice, the aggrieved party seeks a review of taxation in regard to the items allowed against him by the Taxing Master.’
(I have omitted all footnotes).
There can be no waiver in this case. Indeed, the clear evidence is that applicant’s receptionist or office manager and Mr Thwala applied for a postponement for 1 week on the ground that Mrs Currie was not available. There was clearly no acquiescence to the taxation taking place on the day it was finalized or concluded. Apart from that, the applicant has filed this application for review based on the grounds inter alia, that no due notice was given as provided in the rules. This is a clear sign militating against waiver or fictional fulfilment.
[34] I have already referred above to the amount in the Bill. The final allocatur is just over One Million Emalangeni and that is for costs based on a successful exception in this Court. That, to me, appears to be rather on the high side. I am mindful of course that each case has to be decided on its own particular or peculiar facts and circumstances. I shall resist the temptation to comment on any specific items on the Bill, lest I poison the judicial discretion of the Master who is going to redo the taxation.
[35] For the above reasons, I allowed the review and set aside the taxing master’s allocatur made on 17 September 2013 and ordered that the taxation must be re-done by another officer other than Ms Ntuli. I also ordered that the second respondent must bear the costs of this application at the scale of attorney and own client, including the costs of Counsel to be duly certified in terms of rule 68 (2) of the rules of this Court. What follows are my reasons for the costs order.
[36] In Philani Clinic Services (Pty) Ltd v Swaziland Revenue Authority (1937/13) [2014] SZHC 360 (08 October 2014) I pointed out that:
‘[27] In Swazi MTN Limited and 3 Others v Swaziland Posts and Telecommunications Corporation and Another app. Case (58/2013) dated 29 November 2013, the Supreme Court stated as follows:
‘Now, the law on attorney and client costs as well as costs de bonis propriis is well settled in this jurisdiction. In the first place an award of costs lies within the inherent discretion of the court. Such a discretion must not, however, be exercised arbitrarily, capriciously, mala fide or upon a consideration of irrelevant factors or upon any wrong principle. It is a judicial discretion. Generally speaking, an award of costs on attorney and client scale will not be granted lightly. The authors Cilliers, Loots and Nel: Costs 5th edition state the principle succinctly and page 971 in following apposite terms:-
“An award of attorney-and-client costs will not be granted lightly, as the court looks upon such orders with disfavour and is loath to penalize a person who has exercised a right to obtain a judicial decision on any complaint such party may have.”
We agree with this statement. We wish to caution, however, that everything has its own limits. It is not inconceivable that even a person who exercises his right to obtain a judicial decision may abuse such right. In such a situation the court would be entitled within its discretion to award costs on attorney and client scale against such person in order, for example, to mark the court’s displeasure.
There are several grounds on which the court may grant an award of costs on attorney and client scale. The list is certainly not exhaustive. It includes dishonesty, fraud, conduct which is vexatious, reckless and malicious, abuse of court process, trifling with the court, dilatory conduct, grave misconduct, such as conduct which is insulting to the court or to counsel and the other parties. As to authorities see the leading case of Nel v Waterberg Landbouwers Kooperatiewe 1946 AD 597 at 607.’
[28] Not long ago I had occasion to say:
‘[20] It is axiomatic; like in matters of sentencing in a criminal trial, that the issue of costs is a matter predominantly within the discretion of the court. The Court exercises a judicial discretion. Such discretion has to be exercised judiciously and in a just and equitable way.
[21] In Intercontinental Sports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) at para 25 Smalberger JA explained the nature of this discretion in the following terms:
‘The Court’s discretion is a wide, unfettered and equitable one. It is a facet of the Court’s control over the proceedings before it. It is to be exercised judicially with due regard to all relevant consideration. These would include the nature of the litigation being conducted before it and the conduct before it and the conduct of the parties (or their representatives). A court may wish, in certain circumstances, to deprive a party of costs, or a portion thereof, or order lesser costs than it might otherwise have done as a mark of its displeasure at such party’s conduct in relation to the litigation.’
This rule applies across the board whether the order for costs is at the ordinary scale or on the scale as between attorney and own client or even where the costs are to be borne by one or more of the parties or their legal representatives de bonis propriis. In this case I deal with the issue of costs on a punitive scale; ie on attorney and client scale. See Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging, 1946 AD 597 at 607 and Ward v Sulzer, 1973(3) SA 701 (AD at 706-707). See also Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa, 3rd ed (1979) at 487 where the learned authors state the rule or position as follows:
“Tindall JA [in Nel supra] stated that by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case may consider it just, by means of such an order, to ensure more effectively than it can do by means of a judgment for a party and party costs that a successful party will not be out of pocket in respect of the expense caused to him by the litigation.
An award of attorney and client costs will not be lightly granted, as the court looks upon such orders with disfavour and is loath to penalize a person who has exercised his right to obtain a judicial decision on any complaint he may have.
The grounds upon which the court may order a party to pay his opponent’s attorney and client costs include the following: that he has been guilty of dishonesty or fraud or that his motives have been vexatious, reckless and malicious, or frivolous, or that he has misconducted himself gravely either in the transaction under inquiry or in the conduct of the case.’
(I have omitted all foot notes and would also add that such costs may also be awarded against a party who has been mendacious).
[22] In MCpherson v Teuwen and Another (2009/27002) [2012] ZAGP JHC 18 (22 February 2012) KGOMO J stated as follows:
‘[55] Attorney and client costs are those costs which a litigant or attorney is entitled to recover on behalf of or from a client in respect of disbursements made on behalf of the client and for professional services rendered by him to and for his client. They are normally payable by the client whenever and whatever the outcome of the case. This is in contradistinction to or with party and party costs whose purpose of granting was clearly set out in Die Voorsitter van die Dorpsraad van schweizer – Reneke v Van Zyl 1968 (1) SA 344 (T) at 345.
…
[57] Attorney and client costs are mostly only awarded under extraordinary circumstances or where they are part of the parties’ agreement. For a party to be saddled with an order of costs an attorney and client scale, such a party would most probably have acted or conducted itself mala fide and or misconducted itself in one way or another during the litigation process. Normally, such a party would have been capricious, brazen and or cowboyish in its approach to the litigious process and not have cared what the consequences of its acts or actions would be on the legal process and or the other side.’
The learned judge also noted that where a party has acted in good faith, although an element of fraud or recklessness could be inferred, the court might still refuse to grant costs at attorney and client scale. I fully endorse these remarks as reflective of the practice in this court as well. (See also De la Guerre, Juanna Elize v Ronald Bobroff and Partners INC and 2 others, case 2264/2011 (RSA HC).
[23] I would add that where reference is made to the conduct of the litigation, this is not restricted to litigation that is already pending in Court. It also includes conduct prior to such litigation being actually commenced; so long as such conduct is closely connected with or leads to such litigation.’
That occasion was Gilbert Majalimane Zulu v The Nhlangano Town Council and 7 Others, Case 429/2014, judgment delivered on 21 July 2014. These remarks are applicable in this application and are hereby re-iterated.’
[37] The applicant has applied for costs on the punitive scale because, amongst others, the following reasons and grounds:
37.1 The second respondent’s Counsel misconducted herself by going through with the taxation in breach of an earlier agreement between Counsel that a date for the taxation would be mutually agreed. This has, of course been denied by Counsel. The evidence, however, points towards the existence of such an agreement, otherwise I cannot understand why Counsel for the second respondent would have reported to the first respondent that she was failing to find Mrs Currie for an agreement on a date for the taxation.
37.2 The taxation was done in violation of audi alteram partem rule, ie in the absence of the applicant.
37.3 Counsel for second respondent further pursued and obtained allowance of items that had already been excluded by agreement of the parties and
37.4 The 2nd Respondent’s Counsel thereafter caused to be issued and served a writ of execution that was prima facie not proper as it was not signed by the registrar of this court. This writ was further irregularly served on the applicant’s subsidiary company in Swaziland and
37.5 The 2nd respondent refused and or failed to abandon the taxation when called upon to do so by the applicant in order to avoid unnecessary costs.
[38] I have carefully considered these grounds and in particular found that the taxation was conducted irregularly and without due and adequate notice to the applicant. The second respondent is not without blame for this irregularity. Counsel for the second respondent was again aware of the absence of Counsel for the applicant and the agreements that had been reached between them regarding the taxation. It was therefore improper to conduct the taxation in violation of these agreements. In the face of these difficulties attendant on the taxation, it was grossly unreasonable for the second respondent to refuse to have the taxation and Master’s allocatur set aside by agreement. A punitive costs order is in the circumstances merited for these infractions by the second respondent.
[39] Lastly, I have not made a determination on whether or not the taxation was done in accordance with the order of the Supreme Court. That is an issue, I think, for the decision of the Taxing Master.
[40] These, then, are my reasons for the judgment herein.
MAMBA J
For the Applicant: Adv. M. Van der Walt
For the 2nd Respondent: Adv. P. Flynn
