Absa Bank Limited v Oosthuizen (A7/2020; 2496/2020) [2021] ZAFSHC 335 (1 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Appeal case number: A7/2020

Case number: 2496/2020

In the matter between:

ABSA BANK LIMITED Applicant

And

GERRIT OOSTHUIZEN

Respondent

JUDGMENT:

REVIEW OF TAXATION

JUDGMENT BY: DANISO, J

DELIVERED ON: This judgment was handed down electronically by circulation to the parties' representatives by way of email and by release to SAFLII. The date and time for hand-down is deemed to be 15H00 on 01 SEPTEMBER 2021.

[1] The applicant seeks the review of the taxing master’s decision in terms of which the respondent’s bills of costs pertaining to two sets of attorneys Messrs Basson Olivier & Coetzee and Du Plooy attorneys were taxed and allowed by the taxing master.

[2] On 19 September 2019 the applicant obtained a judgment against the respondent in an action for breach of contract. The respondent filed a notice to appeal the judgment resulting in the applicant abandoning the judgment and tendering the respondents’ wasted costs in that regard.

[3] On 29 April 2021 the taxing master taxed and allowed the costs of the two sets of attorneys despite the applicant’s objection thereto.

[4] The purpose of Rule 70 (3) is to ensure that a successful litigant should be reimbursed of his costs while the interests of the winner should also be protected from having to pay an excessive amount of costs.

[5] The applicant’s complaint is premised on the grounds that the respondent’s domicilium address is situated at Farm Skoongesig, Bultfontein, Free State Province. The seat of the court is in Bloemfontein also in the Free State Province. The respondent then appointed attorneys, Messrs Basson Olivier & Coetzee in Kroonstad as his instructing attorneys to defend the claim and another firm, Du Plooy attorneys was appointed as correspondent attorneys.

[6] According to the applicant the respondent was not entitled to instruct attorneys Basson Olivier & Coetzee as their firm is not situated at the place where the respondent is resident or employed. One firm of attorneys in Bloemfontein where the seat of the court is situated would have sufficed. The appointment of two sets of attorneys was unnecessary and in fact prejudicial to the applicant as it became saddled with the extra costs.

[7] It is the applicant’s case that the taxing master erred in her decision to allow

the taxation of the costs of two sets of attorneys. The taxing master’s decision must accordingly be set aside.

[8] In her stated case the taxing master contends that the applicant’s review application ought to be dismissed. She states that the respondent’s residential address is in Butlfontein. He works in Welkom. His instructing attorneys are in Kroonstad. The respondent is entitled to appoint an instructing attorney where he is employed, Welkom or he resides, Bultfontein. The distance between Welkom and Kroonstad is a mere 60 kilometres, the taxing master was satisfied that it was convenient for the respondent to consult these attorneys and also cost effective in terms of travelling fees as the towns are not far from each other. In terms of the Rules a taxing master is entitled to allow the costs of more than one attorney where the taxing master is satisfied that more than one attorney has been engaged in the performance of any of the services covered by such an attorney on the basis set out in the tariff for the work done. It is in that regard that she applied her discretion in favour of the respondent and allowed the costs of the two sets of attorneys: Murray v Murray[1] and Sonneburg v Moima.[2]

[9] The respondent contends that the taxing master exercised her discretion properly. In terms of Rule 70 (8) of the Uniform Rules of court where more than one attorney has been necessarily engaged in the performance of any of the services covered by the tariff each such attorney shall be entitled to be remunerated on the basis set out in the tariff for the work necessarily carried out.

[10] Relying on Murray and also Salemane v Setsoto Local Municipality[3] the respondent states that there is only one firm of attorneys in Bultfontein thus having regard to the afore-mentioned there is nothing untoward about the respondent’s choice to appoint an instructing attorney in the vicinity of his employment address. The taxing master’s decision should therefore stand.

[11] I’m in agreement with the respondent’s contentions. Murray is the locus classicus on the disputed issue. Having regard to the facts of this matter and the case law to be applied, I’m not persuaded that the taxing master’s ruling was wrong.

[12] In the result, the following order is made:

1. The review of the taxation is dismissed.

2. There is no order in respect of costs.

NS DANISO, J

APPEARANCES:

On behalf of the Applicant: SYMINGTON & DE KOK ATTORNEYS

BLOEMFONTEIN

The taxing Master: FREE STATE HIGH COURT

On behalf of the Respondent: DU PLOOY ATTORNEYS

[1] Unreported judgment by Rampai J, case number R855/05 delivered on 18 August 2005.

[2] 1987 (1) SA 571 (T).

[3] (1356/2020) [2021] ZAFSHC 31 at para 14.6.