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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case No: 5/13

21/9/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

 

T-TECH IT SOLUTIONS CC                                                                           First Applicant

ISMAIL GOOLAM HOOSEN SHEIK                                                          Second Applicant

 

and

 

MICROSOFT CORPORATION                                                                  First Respondent

MINISTER OF POLICE                                                                         Second Respondent

THE SHERIFF PRETORIA EAST                                                             Third Respondent

JUDGMENT

MOHLAMONY ANE AJ:

 

[1] This is an application by the Applicants for review of a Tax Allocatur in terms of Rule 48(1) of the Uniform Rules of Court. The Applicants’ notice of motion reads, inter alia, thus:

“1. That the Tax Allocator dated the 26th February 20 14 as Taxed by the former Taxing Master, Mr Lucky Rambombolo be reviewed and set aside due to non-compliance with Rule 48 by the former Taxing Master.

2. That the Respondents’ Bill of costs be taxed de- novo.

3. …

4. …

 

BRIEF BACKGROUND TO THIS APPLICATION:

[2] For reasons that are irrelevant for purposes of deciding this application, the First Respondent was the Plaintiff in a civil suit in which the Applicants were First and Second Defendants in an action brought in this Court under case number 5/2013. I may mention that the same case number has rightly been used in this application. An order was granted by this Court on the 21^st October 2013 ordering the First and Second Applicants to pay the costs of the “exception jointly and severally”. (Annexure “TIA”, p. 12). It seems the Applicants were compelled to pay the First Respondent’s wasted costs. The Second and Third Respondents, who have been cited in this application, have not participated in this application as it had no bearing on them.

[3] On the 28th November 2013, a Bill of Costs, together with a notice of intention to tax the Bill of Costs was served on the Applicants’ attorneys of record. On the same day the Applicants, through their attorney, raised an objection to the Bill of Costs in a letter marked “S3”annexed to the answering papers (p.76) The basis of the objection was that the Bill of Costs was “unethical” because counsel’s fees were excessive. An indication was given in the same letter that the Taxation will be vigorously opposed. The notice of intention to tax the Bill of Costs required the Applicants to file notice to oppose taxation within twenty (20) court days after receipt of the notice. The notice of intention to oppose taxation was due on the 27th December 2013.

 

GROUNDS FOR REVIEW:

[4] The Applicants contended, firstly, “... that the Taxing M aster accepted an irregularly prepared and... an undated Bill of Costs”. Secondly, the Applicants attacked the two invoices of counsel who were briefed in the main action, as having charged highly excessive fees and as a result were “irregular” for the work performed in that counsel were dealing with a relatively simple and straightforward exception.

[5] The Applicants furthermore contended that the Taxing Master erred in allowing the taxation to proceed on an unopposed basis. Furthermore, that the Taxing Master had used his discretion improperly in taxing the Bill of Costs.

 

SER VICE OF NOTICE OF SET DOWN:

[6] The Applicants’ further complaint is that the notice of set down of the Taxation was provided to them by the First Respondent’s attorneys in an “irregular” manner. Such notice was faxed to the Applicants’ attorney on the 23rct January 2014. (see Annexure “S1”, p. 75), by the First Respondent ‘s costs consultant. The First Respondent contends that the costs consultant was duly authorised to serve the notice of set down on the Applicants’ attorney. I agree. Indeed as was contended on behalf of the First Respondent, Rule 4A (1) makes provision for service to be effected by facsimile or electronic mail. The Applicant’s attorney was also notified of the date of Taxation being the 26’h February 2014, by letter dated the 28th January 2014. (see Annexure “S4”, p. 54).

[7] It was only on the afternoon of the 25th February 2014 that the Applicants ‘ attorney faxed the notice to oppose the taxation to the First Respondent’s attorney. On the 26th February 2014 the Taxing Master afforded the Applicants’ attorney an opportunity of addressing him on the late filing of the notice to oppose. The Taxing Master then used his discretion and ruled that the taxation will proceed on an unopposed basis. The Taxing Master proceeded to tax the Bill of Costs.

 

WHAT IS THE CRUX OF THE APPLICANTS’ CASE?

[8] The crux of the Applicants’ case is that the Taxing Master did not comply with Rule 48 by refusing to give a stated case as contemplated in Rule 48(1). I can mention that it was impossible for the relevant Taxing Master, who had taxed the Bill of Costs, to give a stated case because he had resigned as a Taxing Master. Secondly, that the notice of set down of the taxation was not properly served on the Applicants and that counsel’s fees excessive.

 

ITEMS OR PARTS OF THE BILL OBJECTED TO:

[9] I will not recite all the items objected to, which are fully laid down in the notice to oppose taxation delivered by the Applicants. (see Annexure “TIC”, pp. 25-29) . The main complaint by the Applicants appears to be the fees charged by both Senior and Junior counsel as being “irregular” and “excessive”. The complaint concomitant thereto was that there was no justification for employing Senior counsel “... in addition to the junior ... “. In my view, the employment of the two counsel were on separate occasions and I see no irregularity or improper employment of the two counsel who were Senior and junior.

[10] Several items were drastically reduced by the Taxing Master. For instance in item 9, where Senior Counsel had charged R6 840.00, was drastically reduced by R1 340.00. Item 15, containing Senior Counsel’s fee, was reduced from R17 100.00 by a substantial amount of R11 600.00. Item 41 was junior counsel’s fee of R25 992.00, which, after due consideration by the Taxing Master, was reduced substantially by R6 792.00. Items 42 and 43, 18 and 44 were also reduced. The total untaxed bill was R63 652.67 which came to R45 259 .18 after being taxed. Before I venture a decision in this matter, I first wish to deal with the law relevant to the issue raised.

THE APPLICABLE LAW:

[11] Counsel for the Respondents referred me to a few decided cases on the point in issue. In Administrator, Cape v Cape Town City Council and Another 1964 (2) SA 722 (A), dealing with the exercise of a Taxing Master’s discretion, the Court stated:

“The Court will only interfere with the exercise of his discretion if it is satisfied that he has exercised it in a manifestly improper manner, or where he has erred on a point of principle”.

[12] In Legal and General Assurance Society Ltd v Lieberum, NO and Another, 1968(1 ) SA 473(A) the Appellate Division dealt with some of the decisions of Provincial and Local Divisions, at page 477 as follows:

“In the case of Nourse Mines v Clarke, I 910 T. P. D. 660 at p. 661, BRISTOWE, J., said:

‘I agree that if the Taxing Master had exercised his discretion this Court would not overrule it. The jurisdiction of the Court to overrule the discretion of another person or officer only arises where the discretion has been improperly exercised, that is, where the officer has been actuated by some improper motive, or has not brought his mind to bear upon the question, or where he has adopted some principle which the Court considers unsound. If, therefore, the Taxing Master had considered the merits of this case, and decided that it was not reasonable to allow two counsel, I should not have interfered'.

No doubt these remarks show that the learned Judge equated the position of the Taxing Master with the position where a matter is left to the discretion or determination by a public officer. The approach of the Court in those cases is set out by INNES, A.C.J., in the decision of Shidiack v Union Government, 1912 AD 642 at p. 65 1, as follows:

‘Now it is settled law that where a matter is left to the discretion or the determination of a public officer, and where his discretion has been bona fide exercised or his judgment bona fide expressed, the Court will not interfere with the result. Not being a judicial functionary no appeal or review in the ordinary sense would lie; and if he has duly and honestly applied himself to the question which has been left to his discretion, it is impossible for a Court of law either to make him change his mind or to substitute its conclusion for his own... There are circumstances in which interference would be possible and right. If, for instance, such an officer had acted mala fide or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute-in such cases the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion, even if it considered the decision inequitable or wrong’.

In the case of Marais v Union Government, 191 1 T.P.D. 407, CURLEWIS, J., did not limit the Court’s jurisdiction to the instances mentioned by BR/STOWE, J., in Nourse Mines case, supra and INNES, A C. J., in Shidiack’s case. At p. 409 he said:

“I quite agree that the Court would be reluctant to inter/ere with the decision of the Taxing Officer; but it seems to me it is going too far to limit the jurisdiction of the Court to review the Taxing Officer’s decision to cases in which he has decided a matter of principle wrongly. It is quite within the province of this Court, where the Taxing Officer has decided that a certain affidavit or witness was not necessary, to review his decision and to determine whether he was right or wrong in so holding ‘.

[13] The Court (at p. 478) proceeded thus:

“It is clear from all these decisions that the Court’s power of interference with the Taxing Master’ s ruling is not limited to the grounds stated in Shidiack’s case, but that in certain cases the Court may also reverse his ruling if it is clearly of the view that he is wrong” .

see also:

Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others, 1984(3) SA lS(A) at p. 18.

City of Cape Town v Arun Property Development (Pty) Ltd and Another 2009(5) SA 227(C) at par. [17]

[14] Counsel for the Applicants, in his heads of argument also referred me to Benson v Union National South British Insurance Co. Ltd, 1979(3) SA 710 (T) at 712E in which the following is stated:

“Onder die vorige Reels is beslis dot ‘n Hof of Regter nie streng gesproke op hersiening sit soos daardie begrip in die gemene reg verstaan word nie en dot door ‘n wyer jurisdiksie bestaan om ‘n Takseermeester se beslissing fer syde te stel selfs al het hy sy diskressie nie onbehoorlik uitgeoefen nie (vgl Century Trading Co v The Taxing Master and Another 1958 (1) SA 78 (W) te 83-4; Adamant Laboratories (Pty) Ltd V General Electric Co 1964 (1) SA 363 (T) te 366; Legal and General Assurance Society Ltd v Lieberum NO and Another 1968 ( 1) SA 473 (A) te 478)” .

[15] The Applicants seek relief on the ground that the:

(a) Tax Allocatur be reviewed and set aside;

(b) Bill of Costs be taxed de novo; and

(c) The warrant of execution be stayed until the finalisation of this review application.

This last mentioned basis is currently of academic value as the Respondents’ attorneys went to great strides to accommodate the First Applicant, e.g. by instructing the Sheriff to only attach the First Applicant’s property, to the exclusion of its stock-in-trade. I also agree with the Applicants’ argument that it is trite law that the bringing of this review application does not have the effect of staying execution. (see Bayview (Ply) Ltd v Director of Valuations and Another, 1989 (1 ) SA 999 (C). Therefore I should not be detained any further by this last mentioned ground.

[16] I have considered the Taxing Master’s conduct in taxing the Bill of Costs. He has made deductions where it was, in his discretion, necessary to do so.  In particular, the Taxing Master has drastically reduced both counsel’s fees. If, for the benefit of the Applicants I accept that they were, for the moment, excessive, then in my view such excess has clearly been cured.

[17] In light of the conclusions of the Courts as set out in the decided cases cited supra, I am of the view that the Taxing Master has not acted improperly, was not mala fide and did not act from ulterior and improper motives. In my view, the facts in Benson’s case supra, are distinguishable. I cannot accordingly follow it. It is clear that the Taxing Master, even in the absence of the Applicants’ attorney, exercised his judicial discretion properly. I am accordingly unable to say that he was wrong. I cannot therefore interfere with the exercise of his discretion.

[18] I have already indicated that I agree that service of the notice of set down of the taxation was proper. The point in limine taken cannot therefore be sustainable. The Tax Allocatur can, accordingly, not be reviewed, be set aside and cannot be taxed de novo.

[19] In the result I make the following order:

19.1 The application is dismissed with costs.

 

_____________________

M D MOHLAMONYANE

[Acting Judge of the High Court of

South Africa,

Gauteng Division, Pretoria]

APPEARANCES:

For the Applicants  :                       W. J. Van Wyk

                                                            Instructed by Snail Attorneys,

                                                            PRETORIA

For the First Respondents :          H. Koovertjie

                                                            Instructed by Adams & Adams

                                                            PRETORIA

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