Bothma v Bothma (3653/2013) [2016] ZAFSHC 118 (30 June 2016)

Bothma v Bothma (3653/2013) [2016] ZAFSHC 118 (30 June 2016)

The court held that Rule 43(8) clearly contemplates a single maximum fee for the instructing attorney in defended applications, and that the correspondent attorney is not entitled to a separate maximum fee unless the court finds the case to be exceptional. The Taxing Master erred in allowing the maximum fee to both the country attorney and the Bloemfontein correspondent, as there was no evidence or argument presented to justify treating the matter as exceptional. The court referred the matter back to the Taxing Master for re-adjustment of the bill of costs in accordance with this interpretation.

Citation
[2016] ZAFSHC 118
Parties
Plaintiff: Jacoba Magaretha Odendaal Bothma; Defendant: Johannes Pieter Bothma
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 June 2016
Case Number
3653/2013
Procedural Posture
Review Application / Review of Taxation Under Rule 48(1)
Outcome
The matter is referred back to the Taxing Master for re-adjustment of the bill of costs; no order as to costs of the review.
Judges
P. Fischer
Legal Topics
Taxation of Costs, Rule 43 Applications, Maximum Attorney Fees
Civil Procedure Taxation of Costs Rule 43 Applications Maximum Attorney Fees

Case Brief

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Parties

Jacoba Magaretha Odendaal Bothma

Plaintiff

Johannes Pieter Bothma

Defendant

Procedural Posture

Review Application / Review of Taxation Under Rule 48(1)

Legal Issues

  1. 1 Whether both the instructing country attorney and the Bloemfontein correspondent are entitled to the maximum fee under Rule 43(8).
  2. 2 Whether the Taxing Master was correct in allowing the maximum fee to both sets of attorneys.
  3. 3 Whether the circumstances justified an exception to the maximum fee under Rule 43(8).

Ratio Decidendi

The court held that Rule 43(8) clearly contemplates a single maximum fee for the instructing attorney in defended applications, and that the correspondent attorney is not entitled to a separate maximum fee unless the court finds the case to be exceptional. The Taxing Master erred in allowing the maximum fee to both the country attorney and the Bloemfontein correspondent, as there was no evidence or argument presented to justify treating the matter as exceptional. The court referred the matter back to the Taxing Master for re-adjustment of the bill of costs in accordance with this interpretation.

Court Disposition

The matter is referred back to the Taxing Master for re-adjustment of the bill of costs; no order as to costs of the review.

Orders

  • The matter is referred back to the Taxing Master for re-adjustment of the bill of costs in accordance with the judgment.
  • No order as to the costs of this review.