IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No.707/89
In
the matter between
BRUNA
LYRISTIS Plaintiff
vs
SWAZILAND
ROYAL INSURANCE Defendant
RULING
13/06/89
Rooney,
J.
This
is a review of the taxing Master's decision dated the 12 April, 1989
to allow the plaintiff a disbursement of E16,639-03 paid to Messers
Kramer and Wesemann of Benoni a firm of Attorneys practising in the
Transvaal, who were instructed by the plaintiffs in this matter. The
accident which gave rise to this action occurred in the Transvaal
where the plaintiffs reside. The defendant is a Swaziland Corporation
and proceedings were instituted in this Court.
Messrs
Kramer and Wesemanns Bill of Costs was framed in accordance with the
tariffs applicable in South Africa. The defendant contends that these
costs should be taxed and allowed on the basis of the local tariffs
which are much lower than those obtaining in South Africa.
The
Taxing Master exercised a discretion to allow the foreign attorney's
costs on the basis submitted because he considered that in the
circumstances the plaintiffs were entitled to take the convinient
course of instruting attorneys in South Africa, where the bulk of the
work in preperation for the trial was concluded.
It
is a well established principle that the Court will not lightly
disturb the ruling of a Taxing Master where he has exercised his
discretion. It will be interfered with if (a) he has not exercised
his discretion judicially, that is if he has exercised it improperly;
(b) he has not brought his mind to bear on the question; or (c) he
has acted on a wrong principle [Minister of Water Affairs v. Meyburgh
1966 (4) S.A. 51 at 52.].
2
The
Bill of Costs of the South African attorneys has not been taxed by
any authority in the Republic of South Africa. It was presented to
the Taxing Master as a necessary disbursement incured by the
plaintiff. The Taxing Master allowed the whole bill as presented
without taxing off any item.
In
Grindlays International Finance (Rhodesia) Ltd. v Ballaro 1985 (2)
636 Kriegler J. took the view at 648
"I
hasten to add that a Zimbabwean attorney's bill of costs (and any
other foreign attorney's bill) can certainly be taken into account in
a South African taxation of a domestic bill of costs. A South African
Taxing Master will consider such a foreign bill in exactly the same
way as he would consider any voucher for work done in connection with
a law suit, the costs of which he is obliged to tax. He wil not take
it at face value. He will scrutinise the foreign bill and will,
depending upon the circumstances, place a greater or lesser degree of
reliance upon a certificate emanating from the office of his opposite
number in the foreign Court. Thus in the instant case, the Taxing
Master would be entitled to scrutinise the Zimbabwe bill of costs in
the knowledge that the Deputy Registrar of the High Court of
Zimbabwe, which shares a common tradition with the Supreme Court of
South Africa, has certified that the fees set opposite the various
items in that bill are in " accordance with the prevailing
Zimbabwean tariff. As far as all foreign bills of costs are
concerned, I am in agreement with the learned authors of Jacobs and
Ehlers (loc ait at 264), that:
'A
Taxing Master is entifled to scrutinise the bill of a foreign
attorney and should not accept it as a mere voucher without any
attempt to tax the various items.'
(See
also May v Federal Supply and Cold Storage Co. Ltd (1904)25 NLR 244
at 250, 251.)"
I
am in agreement with this approach. But , in the present instance the
Taxing Master did not have the advantage of the assurance that the
bill of costs, if presented to a South African Taxing Master, would
have been in order. However the defendants have not raised any
objection to the bill based upon the fact that it has not been taxed
in the foreign jurisdiction. What they contend is that the Taxing
Master should scrutinize the bill with reference to the local tariff
and disallow so much of it as does not conform to that scale.
3
The
Taxing Master in Swaziland cannot be expected to be aquainted with
the scale of costs allowed in foreign countries. Even if he had
presented to him a certificate of the South African Taxing Master he
would not be bound by it and would have to consider whether or not
the bill of costs is reasonable in all the circumstances, one of
which might be that the tariff allowed to attorneys in foreign
jurisdiction may be much higher than that obtaining here. If the
Taxing Master is presented with a bill of costs drawn up in a foreign
currency he must still endevour to deal with it.
I
am inclined to the view that the defendant has made this application
for review on an incorrect premise. The taxing master allowed the
bill as a disbursement apparently without detailed scrutiny. He took
it at its face value and in so doing he' may have been wrong in
principle. But, that is not the issue raised in this review.
The
Taxing Master in his stated case indicated that the plaintiff was
"entitled to engage an attorney in South Africa who in my view
would be entitled to use scale for taxation of bills of costs
applicable in South Africa".
I
think this is correct. A foreign attorney necessarily engaged for the
purposes of litigation in Swaziland should not be expected to make
use of the Swaziland tariffs.
The
defendant has confined its contention in this matter to the
proposition that the Taxing Master's decision to accept that the
South African tariff was applicable to the foreign attorneys bill of
costs was unprecedented and "seeks to introduce a departure from
a well established practice". As I do not accept this
submission, I now make an order upholing the decision of the Taxing
Master. In accordance with Rule 48 (3) of the High Court Rules I make
an order that the defendants pay the costs of this review which I fix
in the sum of E100.
F.
X. ROONEY
JUDGE
