Aeterno Investments 192 CC t/a Ramlin Square v Polokwane Local Municipality and Another (6302/2018) [2023] ZALMPPHC 6 (16 February 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

CASE NO: 6302/2018

REPORTABLE: YES/NO

OF INTEREST TO THER JUDGES: YES/NO

REVISED

In the matter between: AETERNO INVESTMENTS 192 CC T/A RAMLIN SQUARE APPLICANT And POLOKWANE LOCAL MUNICIPALITY FIRST RESPONDENT THE MUNICIPAL MANAGER – POLOKWANE LOCAL MUNICIPALITY SECOND RESPONDENT

REVIEW JUDGMENT - TAXATION

KGANYAGO J

[1] On 5th August 2021 the applicant had presented its bill of costs before the Taxing Master for taxation, which as per the court order of 29th January 2019 was for the costs of the 19th October 2018, 26th October 2018 and 29th January 2019. The costs on all these dates were awarded against the first respondent. In terms of the order of 19th October 2018, the first respondent was ordered to pay the applicant’s costs on attorney and own client scale. The order of 26th October 2018 is silent on the party who is liable for the wasted costs. It is the order of 29th January 2019 which had ordered that the first respondent was liable for the applicant’s costs for the three days but does not specify on which scale. It is trite that if the order does not specify the scale on which the costs are awarded, the scale will be party and party scale.

[2] The applicant’s bill which has been presented before the Taxing Master for taxation does not specify on which scale the bill has been drafted. The respondents are dissatisfied with the rulings of the Taxing Master on items 2, 3, 6, 8, 21, 60, 62, 81, 86 and 93. The applicant is also dissatisfied with the rulings of the Taxing Master on items where he had reduced the fees claimed by the applicant. The attorney and own client costs is as per the order of 19th October 2018, and that scale on the applicant’s bill will be from item 1 up to 35.

[3] It is trite that in attorney and own client scale, there is no specific tariff that is applicable and the Taxing Master will tax the bill on the basis that the fee is not unreasonable in all the circumstances. The successful party will be entitled to claim all costs which he/she would not be able to claim under party and party scale. The successful party is indemnified to the fullest to the costs he/she was supposed to expend in that litigation. In taxing an attorney and own client bill, the Taxing Master has a discretion to allow all such fees and expenses that appears not to be unreasonable for the proper attainment of justice or for defending the rights of any party.

[4] The Taxing Master was supposed to have taxed the bill in two parts, attorney and own client scale, that is from item 1 up to 35 and party and party scale, that is from item 36 up to the end. Party and party costs are costs awarded against a losing party in a litigation and are taxed in terms of Rule 70 with a view to a full indemnity to the successful party, but limited to costs necessary and proper for the conduct of the litigation. Attorney and own client costs means all costs incurred except where unreasonable. Attorney and client costs means all reasonable costs incurred on behalf of the client although not strictly necessary or proper.

[5] The Taxing Master in taxing a party and party bill must strictly follow and apply the tariffs that has been fixed, and which may be amended from time to time. The test to be applied in a party and party bill is whether the costs incurred were proper and necessary for the attainment of the litigation. On items 2, 8, and 21 which relates to attorney and own client scale, Taxing Master has conceded that he had erred, and therefore do not need any further attention. On items 3 and 6 the Taxing Master tries to justify his rulings in favour of the applicant, but has failed to state whether the costs were not unreasonable. On item 3 he had simply stated that “he was aware of the possible duplication, however, on item 22 it included the copies for counsel”. His justification does not make sense since he had stated that he was aware of the possible duplication. If he was aware of the

duplication, why proceed to award that duplication rather than to tax it off. On item 6 the Taxing Master has stated that he had allowed 3 hours considering the volume of papers they consulted on. It seems it was just a thump suck estimation without considering whether they were unreasonable or not.

[6] I have pointed out that from item 36 of the applicant’s bill of costs the Taxing Master was supposed to have taxed the bill on party and party scale. On item 62 the Taxing Master has stated that in taxing the bill he had allowed the costs on the basis that they were reasonable. His justification on items 81 and 86 shows that he had allowed the costs on the basis that they were reasonable. The Taxing Master was supposed to tax the party and party bill on the basis of whether the costs incurred were necessary or proper for the conduct of the litigation. By applying the principle of reasonableness, he was using the principle applied for attorney and client scale and therefore, a wrong principle of the law.

[7] It is trite that the court of review will not interfere with a ruling of a Taxing Master unless it is established that the Taxing Master was clearly wrong. By applying the wrong principle of the law, the Taxing Master was clearly wrong in the manner in which he had taxed the applicant’s bill of costs. By failing to consider whether the attorney own client bill was unreasonable or not, the Taxing Master was also clearly wrong. By also taxing the whole bill on the same principle of reasonableness, without separating attorney and own client from party and party costs, the Taxing Master was clearly wrong in his rulings.

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

8.1 The review by the respondents is upheld.

8.2 The Taxing Master’s allocation is set aside in its entirety.

8.3 The matter is referred back for taxation before another Taxing Master.

8.4 There is no order as to costs.

JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

LIMPOPO DIVISION,POLOKWANE

APPEARANCES: Attorneys for the applicant : Maree van der Berg Attorneys Attorneys for the respondents : Mohale Inc Electronically circulated on : 16th February 2023