BG Talioe v Family Advocate and another (641/2017) [2021] ZAFSHC 71 (26 February 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

Case No.: 641/2017

In the matter between:

BABE GRACE TALIOE

Applicant

and

ADVOCATE HOLELE

FAMILY ADVOCATE BLOEMFONTEIN 1st Respondent

THANKISO PHILLIP TALIOE

2nd Respondent

Coram:

Opperman, J

Date of hearing: 26 February 2021

Delivered: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 25 March 2021. The date and time for hand-down is deemed to be 25 March 2021 at 15h00.

Summary: Taxation - Discretion of Taxing Master

JUDGMENT

INTRODUCTION & LAW

[1] This is a review in terms of Rule 48 of the Uniform Rules. Due to the emotionally charged nature of the case that played out on paper, I ordered that the review be heard on record in court and that the parties supply me with Heads of Argument.

[2] The case a quo was an application to compel the Family Advocate to make their notes during consultations with the minor(s) in issue, available to the applicant. The notes pertained to the Report of the Family Advocate that was later to be submitted into evidence in court. The application was dismissed.

[3] Reading of the judgment on the issue by Moeng, AJ dated 6 August 2019, shows a highly emotive case fuelled by the legal representatives of the applicant and the Family Advocate. It came to a stage where the legal representative for the applicant was criticised for deposing of the founding affidavit without any confirmatory affidavit by the applicant and a finding of hearsay evidence was the result.

[4] An application for an order of costs de bonis propriis against the legal representative followed because it was alleged that the said legal representative attended a meeting regarding this case whilst acting as a Judge in this division. The application was dismissed.

[5] Counsel for the Family Advocate Bloemfontein delivered her invoice on the State Attorney on 5 August 2019. She claimed an amount of R77 400.00 for the interlocutory application to compel. Mr Phalatsi described it as, in so many words, exorbitant for an interlocutory application during the hearing of the matter before me, and in the NOTICE OF INTENTION TO OPPOSE as “obscenely excessive”.

[6] In his Heads of Argument dated 3 February 2021 Mr. Phalatsi concluded that: “We are of the view that the points in limine raised by the respondents in this matter were so farfetched and ridiculous that they did not even warrant a proper address to the court. The Taxing Master cannot just say her view is that the matter was complex, without stating what issues were involved, making it complex. It is therefore submitted that the matter was not a complex one, which necessitated the fees in the amount of R91 469.43.”

[7] Mr. Phalatsi also pointed out that he noted with concern that the Taxing Master prays that “ the objections be dismissed with costs”. He correctly pointed out that the Taxing Master is supposed to be a neutral officer who places the facts before the judge and cannot ask the judge to make a costs order against any of the parties. No costs order can be ordered in favour of the Taxing Master and it is therefore clear that the said prayer only refers to the other party; being the 1st respondent in the matter. He submitted that it is unethical for the Taxing Master to be biased in favour of one party when she is clothed with the authority to decide the disputes between the parties in a fair and even-handed manner.

[8] The purpose of taxation[1] was stated in Mouton v Martine 1968 (4) SA 738 (T) at 742:

In former times it was the function of the court, or one of the judges, to tax the costs of a case. The purpose of the taxation was really twofold; firstly, to fix the costs at a certain amount so that execution could be levied on the judgment and, secondly, to ensure that the party who is condemned to pay the costs does not pay excessive and the successful party does not receive insufficient costs in respect of the litigation which resulted in the order for costs.

[9] High Court Rule 70(3) provides as follows:

With a view to affording the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him in relation to his claim or defence and to ensure that all such costs shall be borne by the party against whom such order has been awarded, the Taxing Master shall, on every taxation, allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but save as against the party who incurred the same, no costs shall be allowed which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of a special fee to an advocate, or special charges and expenses to witnesses or to other persons or by other unusual expenses.

[10] Rule 70(3) expresses the clear intention that, granted that litigation is expensive, “the ultimate winner should not have the fruits of his victory bitten into by the necessity of paying too high a proportion of his costs”. On the other hand, the interests of the loser should also be protected: it is true that a successful party should have a full indemnity in respect of costs reasonably incurred, but it is equally important to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs.[2]

[11] Rule 70(3) requires that an expenditure of a type which it was reasonable to incur must be allowed.

[12] Rule 48:

(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 15 days after the allocator by notice require the Taxing Master to state a case for the decision

of a judge.

(2) The notice referred to in sub-rule (1) must—

(a) identify each item or part of an item in respect of which the decision of the Taxing Master is sought to be reviewed;

(b) contain the allegation that each such item or part thereof was objected to at the taxation by the dissatisfied party, or that it was disallowed mero motu by the Taxing Master;

(c) contain the grounds of objection relied upon by the dissatisfied party at the taxation, but not argument in support thereof; and

(d) contain any finding of fact which the dissatisfied party contends the Taxing Master has made and which the dissatisfied party intends to challenge, stating ground of such challenge, but not argument in support thereof.

(6) (a) The judge may-

(i) decide the matter upon the merits of the case and submissions so submitted;

(ii) require any further information from the Taxing Master;

(iii) if he or she deems it fit, hear the parties or their advocates or attorneys in his or her chambers; or

(iv) refer the case for decision to the court.

[13] It is trite that on 17 July 2020 a Notice of Intention to Tax a Bill of Costs was served on the applicants’ legal representatives by the attorneys for the 1st respondent; Office of the State Attorneys, Bloemfontein.

[14] Mr. Botes represented the Office of the State Attorneys, Bloemfontein and Mr. Phalatsi the applicant, Babe Grace Talioe. I will from here on refer to the parties as Mr. Botes and Mr. Phalatsi. The Taxing Master was Ms. J de Wet.

[15] The taxation was set down to be taxed on 20 August 2020 in terms of Government Gazette No. 42068 dated 30 November 2018. The Notice was served at 09h09 on 17 November 2020 on NW Phalatsi & Partners.

[16] A Notice of Intention to Oppose was filed on 12 August 2020 that reads:

Please take notice that the above-mentioned Applicant herewith opposes the following items on the Bill of Costs of Messrs THE STATE ATTORNEY BLOEMFONTEIN:

Before dealing with the individual items, we would like to remind the Taxing Master that this was an interlocutory application to compel the first respondent to produce certain documents. This was not a substantive application dealing with facts, but only the law. Against this background, we object to the following items:

ITEM

OBJECTION

1 the time of 60 minutes is unreasonable for the nature of the application. At the most, 15 minutes should be allowed.

2 The notice of motion and affidavit is 7 pages (5 folios). The annexures are 14 pages (3 folios).

3 The total number of copies are 21.

6 there was no memorandum served on our offices and none formed part of the papers.

7. Attorney and client.

8. it was agreed between the parties that the respondent can file opposing papers. The respondents’ attorney undertook to inform the judge accordingly. That could not have taken 1 hour, but at the most 5 minutes. In any event, the agreement was that there will be no order as to costs.

10. The time of 120 minutes is way unreasonable. It could not have taken 5 minutes for consultation with counsel.

11. This seems to be a duplicate. If not, this further consultation was not necessary.

19 & 20

There was no discussion with counsel and again the respondents’ attorney undertook to report to the judge what the agreement was.

22 there is only 7 folios.

24 The respondent is not entitled to costs of application to strike out, as the said application was granted.

32 & 33 Duplicate.

40 this matter was on the opposed roll of one page.

41 proceedings did not take more than 30 minutes.

44 Counsel’s account is obscenely excessive.

45-49 Proof of these items is required.

[17] It is trite that Mr. Phalatsi did not inspect the 1st respondent’s Office File.

[18] The taxation was postponed to 24 August 2020 at 14h00. The postponement was to give Mr. Phalatsi the opportunity to file a Notice to Oppose Taxation in terms of Rule 70(3B)(b). No order as to wasted costs were made. The “new” notice was filed.

[19] A Notice of Review of Taxation in terms of Rule 48 was filed by the applicant on 14 September 2020. The Taxing Master’s stated case in terms of Rule 48(3) followed on 30 September 2020 and the respondents’ reply followed on 12 October 2020. Mr. Phalatsi’s response to the Taxing Master Stated Case was filed on 9 November 2020.

[20] The Taxing Master, Ms de Wet, pointed out that the response of Mr. Phalatsi was only filed on the 9th of November 2020 without any reason as to why there was a delay in filing of the response. She referred to the matter of Berndt v Berndt 1963 (3) SA 838 (E) whereby she noted that such conduct may lead to a dismissal of the application in total. She pointed out that Mr. Phalatsi does

not refer to any authorities to be considered that lays down the basis for his arguments and therefor the arguments are moot.

[21] The above shows that the conduct of Mr. Phalatsi caused frustration during the application a quo and the taxation proceedings. It even resulted in two points in limine during the Rule 48-Review. I am thus forced to turn to the law applicable in cases of this nature to settle the frustrations but with a warning that all Officers of the Court has a constitutional duty to interact to serve an open and democratic society based on human dignity, equality and freedom.

[22] Relatively recently on 29 August 2019 our brother Pohl, AJ reiterated in Daka v Government of the Republic of SA and others [2019] JOL 45609 (FB) that:

[12] A court reviewing a taxation will only interfere with the ruling of the Taxing Master if it is satisfied that the Taxing Master was clearly wrong. It will not interfere with a ruling made by the Taxing Master in every case where 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 differ so materially from its own that it should be held to vitiate his/her ruling. See Ocean Commodities Inc. and others v Standard Bank of SA and others 1984 (3) SA 15 at 18F–G.[3]

[23] Also, from this division, Kruger and Mostert[4] discussed the principles, limitations to interference on review, the test on review and deference and expertise of the Taxing Master and the judge. In summary a court reviewing a taxation must be satisfied that the Taxing Master was clearly wrong before it interferes. The court will interfere only when its assessment differs materially from that of the Taxing Master as to vitiate his or her ruling. The discretion to decide whether costs have been necessarily or properly incurred belongs to the Taxing Master not the courts. Courts are slow to interfere when the issue relates to the quantum of fees. The court’s conviction that the Taxing Master’s view was wrong must be considerably more pronounced that it would have been an ordinary right of appeal. This approach is not limited to the matter of quantum. The court will interfere when the Taxing Master was actuated by an improper motive, did not apply his or her mind to the question at hand or adopted some principle the court considers unsound.

[24] The court cannot substitute its opinion for that of the Taxing Master and all the parties must realise that the Taxing Master has specialised knowledge of the technical details of taxation. Bertish v Standard Bank of SA Ltd 1956 (4) SA 9 (C) at 13A-B confirmed this rule.

[25] The test on review is that taxation by the Taxing Master is an administrative decision made by a public official in terms of empowering legislation, the duties of the Taxing Master are quasi-judicial and the Promotion of the Administrative Justice Act 3 of 2000 applies. Case law that evolved concluded in the test that the court will ask whether there is a rational objective basis justifying the connection made by the Taxing Master between the material made available (the bill together with the grounds advanced) and the conclusion reached. The court will then consider whether a reasonable person would have arrived at the same conclusion. The court will acknowledge that they are generally not, by virtue of their office, specialist on taxation issues. The task of the reviewing judge is to primarily check the reasoning not to tax.[5]

THE POINTS IN LIMINE

[26] 1st Point in limine

Me. Machedi signed all the pleadings, Notice of Intention to Oppose, Review of Taxation & 1st Notice to Oppose without having right of appearance in the High Court. This proved to be a misdirection by Mr. Botes and the point was abandoned.

[27] 2nd Point in limine

The Taxing Master submitted and filed her stated case on 30 September 2020 and filed it in the pigeon hole in order for the attorneys to collect it. This to be the line of communication between the courts and the attorneys for decades. Mr. Phalatsi, being from a one-person practise, only collected when he had the opportunity and this caused his written submissions to be out of time. It was supposed to be filed on 21 October 2020 but was only filed on 9 November 2020. Mr. Phalatsi correctly pointed out that there is not a rule that prescribes a process of service by pigeon hole. He replied timeously after he received the papers. The point in limine also fell flat and was not taken further by Mr. Botes.

THE ITEMS ON REVIEW

[28] The premise from which the applicant objects to the taxation are that the matter “did not pertain to the contents of the documents, but to the production of the notes of the Family Advocate, which fact has bearing on some of the objections to the individual items.”

[29] ITEMS 6 & 7

Counsel for 1st respondent

6. Receive and peruse memorandum from 1st respondent for filing at court. (17p-17f)

R1011.50

7. Copies to keep, counsel and filing (51p)

R204.00

Applicant

The significance of the general objection is clearly apparent from this objection. There was absolutely no need to peruse the document, as the contents of the documents was clearly not at issue. It is further tried[6] that even where a practitioner has read a document which later turns out to be irrelevant, the practitioner is not entitled to recover the fee of such perusal from the other party, on party and party scale. The document was not filed for the purpose of the interlocutory application and did not have to be perused.

Mr. Botes

Rule 70(3) of the Uniform Rules of court reads as follows “with a view to affording the party who has been awarded an order of costs a full indemnity for all costs reasonable incurred by him in relation to his claim or defence and to ensure that all such costs shall be borne by the party against whom such order has been awarded, the Taxing Master shall, on every taxation, allow all such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for the defending of the rights of any party, but save as against the party who incurred the same.” These documentations were filed at the court and surely relevant to the application.

Documents that are not annexed to pleadings or not used in proceedings may nonetheless be necessarily peruse and allowed as a perusal fee. (Taxation of legal costs in South Africa, p144)[7] perusal of documents not annexed to a petition was deemed necessary to the defendants’ rights: Chemical Formulations and

Consultants (Pty) Ltd and others 1976 (1) SA 466 (E). The documentation was received from the Family Advocate, Adv Holele. These documents were served and filed at Court under the same case number and was before Court. The only way relevance of the documentation can be determined is upon perusal.

Rule 70(6)(b) stipulates that fees may be allowed by the Taxing Master in his discretion as between party and party for the copying of any document which, in his view, was reasonably required for any proceedings. It is the duty of the Taxing Master to decide whether to allow for the copying of documents. (Knipe v Venter 1964 (4) SA 1 (C)). A fee for copying a document will be allowed if it is deemed necessary and proper. (Taxation of legal costs in South Africa, p152)

Taxing Master

The nature of the objection to the above listed items are that the said items was never part of the application and was never relied on by the parties or court. In Taxation of Legal Costs in South Africa at page 144, Francis-Subbah opinions that: “Documentation that are not annexed to pleadings or not used in proceedings may nonetheless be necessarily perused and allowed as a perusal fee.” The learned authors in Kruger & Mostert, Taxation of Costs in the Higher and Lower Courts: A Practical Guide at page 43 described that the relevance of documents for a matter can be determined only on perusal. Therefor the view that the documents are not before the court or part of the appeal record should not be allowed must be cautiously applied. An opportunity should be given to place before the Taxing Master grounds or reasons why a fee should be allowed for perusal. Mr. Botes convinced me as the Taxing Master that to establish the importance and relevance of the documents filed for purposes of the interlocutory application same had to be perused, even if same was not used during the application. The documents in dispute were however still filed at court and used in the main application. In coming to my decision, I satisfied myself that items 6-7 were indeed necessary and proper procedures to follow for the 1st respondent in the attaining of justice and defending their rights.

CONCLUSION BY COURT

The decision of the Taxing Master on items 6 & 7 cannot be faulted and the objection of the applicant is without substance and

corroboration in law. It seems to be a personal opinion of the legal practitioner.

[30] ITEMS 10 & 11

Counsel for 1st respondent

10. Consultation with counsel (120min)

R2340.00

11. Consultation with counsel (90min)

R1755.00

The points in limine and the application to strike out are done by the drafter and do not depend on the consultation with the client. There is no information to get from the client, as these are points of law, that have nothing to do with the facts. This is exactly why they are referred to as preliminary points, as they are determined independently of the facts. In any event, all points in limine raised were dismissed and the striking out application was granted. As alluded to earlier, even the application itself was based on a legal question and not on the facts, being, whether, in law, the applicant is entitled to the notes of the family advocate. There was therefore no need to consult for 3 hours and 30 minutes.

Counsel consulted with Mr. Holele, Mr. van der Westhuizen, Mr. Jamba and Mrs. Cronje. Counsel needs to gather all information in order to draw the 3 affidavits of 24 pages. Despite the interlocutory application, there was also an application to strike out certain paragraphs of the 1st respondent’s opposing affidavit, as well as at the least 5 different points in limine raised by the 1st respondent. That to enable counsel to be fully briefed, it warranted, at best, a consultation with counsel, attorney and client.

Consultation and duration fall within the Taxing Master’s discretion. (Vaatz v Law Society of Namibia 1994 (3) SA 536 (NM)) Counsel may well be entitled to a fee for more than one consultation in appropriate proceedings. (Aloes Executive Cars (Pty) Ltd 1990 (4) SA 587 (T))

The nature of the objection to the above listed items are that there was no need for the attorney and counsel to have consulted for 3 hours and 30 minutes on an interlocutory application. Mr. Phalatsi loses sight of the following by claiming that it was only an interlocutory application which was not complex in nature: Despite the interlocutory application to compel, there was also an application by the applicant to strike out certain paragraphs of the 1st respondents opposing affidavits, as well as at least 5 different points in limine raised by the 1st respondent. In Vaatz v Law Society of Namibia 1994 (3) SA 536 (NM) it was held that to enable counsel to be fully briefed, it warranted, at best, a consultation with counsel, attorney and client. The granting of such consultation and its duration will fall in the discretion of the Taxing Master, based on whether it is proper and necessary. An attorney consulting with a client or witness to draft an affidavit is generally regarded as proper and necessary party and party charge.

In coming to my decision and after reading the unreported judgment of Acting Judge Moeng of the Free State Division 641/2017 at paragraph 16, I satisfied myself that the matter was indeed of complex nature due to technical and legal aspects of the application and the preparation to oppose.

The decision of the Taxing Master on items 10 & 11 cannot be faulted and the objection of the applicant is without substance and corroboration in law. It seems to be a personal opinion of the legal practitioner that cannot be condoned in the circumstances of the case.

[31] ITEMS 24 & 25

24. Receive and peruse application to strike out (2p-1f)

R59.50

25. Copy thereof to counsel (2p)

R8.00

The application to strike out is a separate application from the main application. The dismissal of the main application is separate from the determination of the application to strike out, as different considerations are made in the determination of the two. One is entitled only to costs in respect of the application on which he/she succeeds, and not on other unsuccessful applications, which he/she has lost.

The entire application was dismissed (which include the application to strike out) and gave rise to the cost order. Furthermore the 1st respondent perused the Application to strike out as it was served on them by applicant. Item 25 is not subjected to review. (Rodgers v Rodgers 103/2010 (2012) SANWCH 46 (14 December 2012). This item was not opposed before taxation or objected to during taxation. Also see Rule 48(1) of the Uniform Rules of Court.

The nature of the abovementioned items is that one cannot be entitled to costs of an application one lost. Kindly note that no objection was made to item 25, regards to item 24:- The application to strike out was not placed before the court as a single application, but such application formed part of the main application to compel and was heard by the court on the same day. Although the application to strike out was in effect successful, the whole of the application to compel of which the application to strike out formed part was unsuccessful. Due to the fact that the entire application was dismissed (which included the application to strike out) it gave rise to a costs order on party and party scale. In Herbstein and Von Winsen, The Civil Practise of the Supreme Court of South Africa 1997 edition at 702 the learned authors describe party and party costs as follows:

“Party and party are those costs which have been incurred by a party to legal proceedings and which to other party is ordered to pay him. They do not include all costs which a party to suit may have incurred but only those costs, charges and expenses that appear to the Taxing Master to have been necessary or proper for the attainment of justice of for the defending the rights of any party.”

Furthermore, it was necessary for the 1st respondent to peruse the Application to strike out since same was served on them and as described in Kruger & Mostert, Taxation of Costs in the Higher and Lower Courts: A Practical Guide at page 43; the relevance of documents for a matter can only be determined upon perusal.

CONCLUSION BY COURT

The decision of the Taxing Master on item 24 cannot be faulted and the objection of the applicant is without substance and corroboration in law. Item 25 is not subject to review because it was not opposed.

[32] ITEMS 45 – 49

45. Letters written(22)

R2585.00

46. Letters received (21)

R1249.50

47. Printed for file (43p)

R172.00

48. Telephone calls made (18-90 min)

R1764.00

49. Telephone calls received

R1078.00

The directive referred to by the Taxing Master does not take away the fact the he/she needs to use his/her discretion and to exercise such discretion judiciously. It has already been stated that the application was mainly based on a point of law, which needs little,

if any correspondence between the parties. To rely on the directive where it will clearly lead to unjust and/or absurd results, is clear misdirection. The deduction of 20% in this case is clearly not fair, taking into account what has already been said.

Practise in this division is that if a letter and telephone calls are not specified, 20% should be taxed off to make provision for attorney and client items. In the Northern Cape its 25% and in the Eastern Cape its 50%. The applicant’s legal representative had the opportunity to inspect the file content of the 1st respondent and count the letters and pages but declined the opportunity. The Taxing Master applied her discretion and also had a duty to make a ruling. (Brener NO v Sonnenberg, Murphy, Leo Burnett (Pty) (Formerly D'Arcy Masins Benton & Bowless SA (Pty) Ltd 1999 (4) SA 503 (W))

The nature of the above-mentioned items is that there is no need to write 43 letters and to make 29 telephone calls for the purpose of interlocutory applications. During taxation Mr. Phalatsi was of the view no letters or written or telephone calls made and received should be allowed at all even if it is practise in our division to tax off 20% to make provision for attorney and client items. He then requested Mr. Botes to give proof of each and every letter written and/or received and telephone call made and/or received. Mr. Botes’s response was that Mr. Phalatsi was granted time to inspect the file which he did not do. Mr. Phalatsi’s argument before this court is that the taxation was merely postponed for formal objection and never to inspect the file contents of the State Attorney, whilst the Notice of Intention to Tax the Bill of Costs was already served on Mr. Phalatsi’s Office on the 17th of July 2020 and it clearly states in such notice at paragraph 2 that Mr. Phalatsi has ten(10) days in terms of Rule 70 (3B)(a) after receipt of the notice to inspect the file. Herbstein and Von Winsen, The Civil Practise of the Supreme Court of South Africa 1997 edition at 702 refer to party and party costs as those costs, charges and expenses that appear to the Taxing Master to have been necessary and proper. However, the Free State Division have a standing directive that each and every letter and/or telephone call need not be specified but can be grouped together. To make provision for attorney and client items I deducted 20% with regards to letters written and received, and telephone calls made and received. Furthermore Mr. Phalatsi did not produce any evidence why certain letters or telephone calls should be deducted. He merely gave his opinion that it was a simple interlocutory application. Should I have followed the view of Mr.Phalatsi the successful party would have been out of pocket.

CONCLUSION BY COURT

This is again a situation wherein the applicant should have done more than give a personal opinion. He should have inspected the file and premised his objections on substantive and legally sound basis. The decision of the Taxing Master cannot be faulted.

[33] ITEM 44

44. Draw cheque and attend to pay

R77400.00

If the Taxing Master did not note the objections to items 2, 3 and 15, it does not mean the objections was not made. Items 2 and 10 go hand in hand, as they relate to the same thing, being that it was not necessary to brief counsel for agreed postponement. It can never be said that it is cheaper to brief counsel as two legal practitioners are paid, instead of one only.

1. Ad Item 3 thereof:

The item was objected to on the basis that that only consultations and emails relevant to the matter can be allowed. The conversations and emails are not specified and are therefore not allowed.

2. Ad Item 15 thereof:

The reason for the taxing off of item 15 is that it cannot be claimed with item 13, and not the quantum. The whole item should be taxed off, and not only a certain amount, as item 13 has already been permitted.

3. Ad Item 4 thereof:

The said document did not even form part of the index and paginated papers in respect of the application. The document attached to the appellant’s founding affidavit was the Family Advocate’s Report, and not this document.

4. Ad Item 5 thereof:

Advocates are entitled to fees on work actually done and not what they are entitled to. It is a fallacy that fees will be allocated on what Advocates are entitled to, and not on actual work done.

5. Ad Item 6 thereof:

The technical and legal aspects of the case fall within the sole knowledge of counsel, and not on clients. It defies logic as to how can a client help counsel in respect of the technical and legal aspects of the case. In fact, it should be the other way round. The consultation was absolutely not necessary.

6. Ad Item 8 thereof:

Again, counsel is entitled to fees for work actually done and not what he/she could have charged. The fact that it was objected to as attorney and client fee, still stands, because “new documents” were not specified.

7. Ad Item 9 thereof:

The fact that the attorney’s bill was allowed in respect of these items, is the very reason why counsel’s bill should be taxed off, since it becomes a duplication, which is unnecessary.

We are of the view that the points in limine raised by the respondents in this matter were so farfetched and ridiculous that they did not even warrant a proper address by the court. The Taxing Master cannot just say her view is that the matter was complex, without stating what issues were involved, making it complex. It is therefore submitted that the matter was not a complex one, which necessitated the fees in the amount of R91 469.43.

1. Ad Items 2, 3 & 15 on counsel’s account are not subject to review. These items were not opposed before taxing or objected to during taxation.[8]

2. Ad Item 10 on the counsel account – the Taxing Master only allowed R900.00 on this item. R2700.00 was taxed off. There will be costs involved and due to the costs order that the applicant be liable for costs.

3. Ad Item 4 on the counsel account – The documentation was filed by the 1st respondent and the applicant indexed and paginated the Court file and included it in the application bundle. See pages 16-49.

4. Ad Item 5 on the counsel account – Counsel can peruse documentation at 20 pages per hour. (Taxation of Legal Costs in South Africa at page 214.) Application was 58 pages and then the reports should be taken into consideration.

5. Ad Item 6 on the counsel account – See arguments at item 8 of Heads.

6. Ad Item 8 of counsel account – Counsel can draw documentation at 4 pages per hour. (Taxation of Legal Costs in South Africa at page 215)

7. Ad Item 9 on counsel account – See argument at item 8 of Heads of Argument and one must keep in mind that R4500.00 was taxed off.

1. Items 2 and 15 were dealt with by the Taxing Master.

2. Item 3 was pointed out to the applicant as being 21 copies.

3. It was not taken further. Broome J in Daywine Properties (Pty) Ltd v Murphy & Another 1991 (3) SA 216 (D) strongly expressed his view that a party who is present at taxation and fails to object when the matter is before a Taxing

Master should be denied the opportunity to have the Taxing Master’s decision reviewed in a ‘belated attempt to attack items’. In Kruger v Secretary for Inland Revenue 1972 (10) SA 749 (C) at F-G Von Winsen J held in a similar matter that: “I do not deal with the belated objection to item 16 since no objection was made to the Taxing Master’s allowance of this at the time of the taxation. It is accordingly not subject to review. (Rule 48(1))”

4. Kindly take note that even though no objection was made to item 2 on counsel’s account R900.00 was deducted since a half an hour would suffice to postpone the matter and getting an order to oppose the application. Furthermore, with regards to item 10 (should be item 15) only one hour was allowed for preparation and R4500.00 was taxed off due to the fact that counsel is only entitled to a half of their fee (being five hours) for preparation and four hours drafting heads of argument which is included in preparation fees was already granted at item 13.

5. Ad Item 10 on Counsel’s Account

With regard to item 10; R900.00 was allowed and an amount of R2700.00 was deducted. Mr. Phalatsi’s objection is unclear but it seems as if his objection is to the fact that an advocate was briefed to appear at the postponements and not the attorney of record. However, the case may be an order for postponement would not be granted without the appearance by an attorney and/or advocate with the Right of Appearance. (Section 4(2) of Act 62 of 1995) Be it an advocate and/or attorney whatever the case maybe, there will be costs involved and due to the costs order the applicant will be held liable for such costs. The starting point which the Taxing Master follows is the cheapest way litigation, if the 1st respondent made use of the attorney of record it may have resulted in a much more expensive exercise due to the seniority of the 1st respondent’s attorney of record.

6. Ad Item 4 on Counsel’s Account

The objection is that the documents was never part of the application and was never referred to. Even though the documents were never referred to during the application same was still filed by the respondent and indexed and paginated by the applicant into the trial/application bundle and would my submission be exactly the same as in addressing item 6 of the 1st respondent’s bill of costs.

7. Ad Item 5 on Counsel’s Account

The objection is that the family advocate’s reports and affidavits was not part of the application and hence counsel is not entitled to a perusal fee of such document. Advocates can peruse documents at twenty (20) pages an hour. The Application alone constituted of fifty-eight (58) pages making three (3) hours perusal more than reasonable without even taking the family advocates reports and affidavits into consideration.

8. Ad Item 6 on Counsel’s Account

The objection is that one only gets fees for a consultation with a client based on facts not on technical and legal aspects. The manner in which Mr. Phalatsi poses this objection is a clear indication that he did not make notes during taxation as to the items he is opposing but merely copied the Taxing Master’s notes. In coming to my decision my conclusion on this item is exactly the same as what my decision was at item 10 to 11 of the attorney’s bill of costs after reading unreported judgment of judge Moeng of the Free State Division 641/2017 at paragraph 16. I satisfied myself that the matter was indeed of complex nature due to technical and legal aspects of the application, and the preparation to oppose. Since I granted the time asked at items 10 to 11 of the attorney’s bills of costs I am obliged as the Taxing Master to allow same for the advocate.

9. Ad Item 8 on Counsel’s Account

The objection to this items that the new documents are not specified to determine if it is relevant to the application whilst the objection during taxation to these items was that it constituted attorney and client items. Without even taking the perusal of the new documents into consideration an advocate can draft four(4) pages per hour. Only the affidavits of Adv Jamba and Me van der Westhuizen was six(6) pages, making an half (½) an hour for drafting more reasonable while in actual fact the advocate could ask one and a half (1 ½) hours just for drafting of these affidavits.

10. Ad Item 9 of Counsel’s Account

The objection to this item is that this item should be deducted in total, since there is no need for further consultations. R4500.00 was deducted for this item only granting the advocate ninety (90) minutes. As Taxing Master, I have already dealt with these objections at items 10 to 11 of the attorney’s bill of costs and at item 6 of the advocate’s account. Since I granted the time asked at items 10 to 11 of the attorneys bills of costs I am obliged as the Taxing Master to do same for the advocate.

The discretion applied by the Taxing Master cannot be faulted.

[34] FINAL CONCLUSION

The application to review must fail. The grounds for review are without merit and legal substance. After having listened carefully to the address of Mr. Phalatsi in court and giving due regard to his Heads of Argument I am not convinced that it will be prudent to review the matter or in the alternative; to interfere with the decision of the Taxing Master.

[35] ORDER

The application to review the rulings of the Taxing Master is dismissed with costs.

___________________

M OPPERMAN, J

APPEARANCES

Counsel for the Applicant

Mr. N W Phalatsi

NW Phalatsi & Partners

2nd Floor, Metropolitan Building

96 Henry Street

BLOEMFONTEIN

Counsel for 1st Respondent

Advocate C F Botes

FCB Cost Consultants

31 Vilonel Street

Dan Pienaar

[1] AC Cilliers, Law of Costs, Last Updated: April 2019, http://www.mylexisnexis.co.za/Index.aspx on 12 May 2019 at paragraph 13.02.

[2] AC Cilliers, supra at paragraph 13.02.

[3] In Martens v Rand Share & Broking Finance Corporation (Pty) Ltd 1939 WLD 159 (A) at 165 the Taxing Master duty was correctly described as follows: “the Taxing Master’s function is to decide whether the services have been performed, whether the charges are reasonable or according to tariff, and whether disbursements properly allowable as between party and party have been made, his function is to determine the amount of liability”. Francis v Francis and Dickerson 1955 (3) ALL ER 836 stated when considering whether or not an item in a Bill is “proper” the correct viewpoint to be adopted by the taxing officer is that a sensible solicitor sitting in his chair and considering what in light of the then knowledge is reasonable in the interest of the client. In Ocean Commodities Inc v Standard bank 1984 (3) SA 15 (A) 18 E-G it was stated that the master must clearly be wrong before a court may interfere. It also became generally accepted that the court will only upset the ruling of the Taxing Master when it is clear that the Taxing Master was wrong. (Paton v Santam Insurance 1967 (1) SA 98 (E))

[4] Taxation of Costs in the Higher and Lower Courts, A practical guide, 2010, ISBN 978 0 409 04838 4, LexisNexis at page 107. Also see Cilliers, Law of Costs, Last Updated: October 2020 - SI 42, https://www.mylexisnexis.co.za/Index.aspx on 12 March 2021 at Chapter 13: 13.12 “When will the court interfere with the exercise of the Taxing Master’s discretion?”, and also see paragraphs 13.47–13.49.

[5] Kruger and Mostert supra page 110.

[6] “trite”.

[7] Taxation of Legal Costs in South Africa (eBook), Francis-Subbiah, Edition: 1st Edition, Format: eBook, ISBN: 781485118305, Language(s): English, Published: 2014, Category: Civil Procedure.

[8] Note that item 2 & 3 do appear on the Notice of Intention to Oppose but not item 15.