De Villiers v De Villiers (E1223/04) [2006] ZAECHC 64 (16 November 2006)

FORM A

FILING

SHEET FOR EASTERN CAPE JUDGMENT

ECJ no:

PARTIES: DEAN DE VILLIERS vs EDNA DE VILLIERS

REFERENCE NUMBERS –

Registrar: 1223/2004

Magistrate:

Supreme Court of appeal/Constitutional Court: EASTERN

CAPE DIVISION

DATE HEARD: 09 NOVEMBER 2006

DATE DELIVERED: ORDER DELV. 9/11/06, Reasons made available on the 16/11/06

JUDGE(S):

JONES J

LEGAL REPRESENTATIVES –

Appearances:

for the State/Applicant(s)Appellant(s): ADV

R QUIN

for the accused/respondent(s): ADV

D DE LA HARPE

Instructing attorneys:

Applicant(s)/Appellant(s):

NETTELTONS ATTORNEY’S

Respondent(s):

DOLD AND STONE ATTORNEY’S

CASE INFORMATION –

Nature of proceedings:

MOTION COURT

Topic:

A court which is not sitting as a court of appeal or review has no general power to make a special costs order which is at variance with the costs order which had already been made.

Keywords:

Possibly reportable

In the High Court of South Africa

(Eastern Cape Local Division) Case No 1223/2004

Delivered: Made available the 16/11/06

In the matter between

DEAN DE VILLIERS Applicant

and

EDNA PAULINE DE VILLIERS Respondent

SUMMARY: A court which is not sitting as a court of appeal or review has no general power to make a special costs order which is at variance with the costs order which had already been made.

JUDGMENT

JONES J:

[1] The parties to this application were plaintiff and defendant in a divorce action pursuant to the issue of a summons out of the Eastern Cape Division of the High Court in Grahamstown. During the course of the trial they arrived at a settlement which was made an order of court by consent. The order included an order that the defendant pay the plaintiff’s costs of suit on the scale as between party and party, as taxed or agreed. In due course the plaintiff presented her bill, or rather bills of costs for taxation by the taxing master.

[2] Included in the bill of costs was a bill by the attorneys of record who represented the plaintiff at the trial in Grahamstown, and a bill by attorneys whom she consulted at her home town, East London, and who had in turn instructed her attorneys of record. The defendant objected to the two bills. It is common cause that the parties were domiciled and resident in Gonubie. Gonubie is in East London and is within the area of jurisdiction of the East London Circuit Local Division, which has concurrent jurisdiction with the Eastern Cape Division. The plaintiff could have issued summons out of the East London court. If she had done so, two sets of attorneys would not have been necessary. The defendant considers that she has unreasonably escalated the costs of this litigation by issuing summons out of the court at Grahamstown, and that she should only be entitled to the costs which would have been incurred if she had sued out of the East London court. The principle upon which he relies is that a defendant should not be required to pay the costs of litigation in a more expensive forum where the defendant could reasonably have proceeded in a less expensive forum.

[3] Whatever the merits and demerits of this objection, which depend upon the particular facts and circumstances of this case, there is a fundamental problem with the defendant’s argument. He brought his objection before the court by way of an application for what amounts to a variation of an order of court. This order made provision, inter alia, for payment of the taxed party and party costs of the plaintiff’s attorneys, which would include the costs of more than one attorney where in the eyes of the taxing master more than one attorney was necessarily engaged to perform any of the services covered by the tariff (rule 70(8)). See Zeelie v General Accident Insurance Co Ltd 1993 (2) SA 776 (E) 777 E – 778 A and the authorities there referred to, and 779 B – 780 C); Sonnenburg v Moima 1987 (1) SA 571 (T) 574 H – 575 A, and Schoeman v Schoeman 1990 (2) SA 37 (E). In other words there is already in existence a costs order which regulates the rights of the parties on the issue in question and which makes the trial judge functus officio in respect of that issue. The fundamental problem with the defendant’s application is this: on what legal basis am I empowered to vary the order?

[4] Because of the need for preserving the finality and certainty of judgments, the courts do not ordinarily have the power to set aside or vary their own orders (Firestone SA (Pty) Ltd v Gentiruco A.G. 1977 (4) SA 298 (A) 306F-G). The usual method for achieving a variation or rescission is by way of appeal or review. Neither is appropriate and neither has been employed here. This is because there is no basis for an appeal against or a review of a costs order which was sought by both parties by consent. The common law limits the setting aside or variation by a court of its own judgment to cases of fraud (Schierhout v Minister of Justice 1927 AD 97, 98) or to new and hitherto unavailable documents (Chiderley Estates Stores v Standard Bank of SA Ltd 1924 OPD 163, 166-169) or to the instances referred to in the Firestone SA (Pty) Ltd v Gentiruco A.G. judgment at the page cited above.1 None of those grounds applies to this case because the court made the order, including the order for costs, which both parties asked it to make during proceedings when they were both represented and advised by counsel and attorneys, they both had full knowledge of all the facts, and there was no suggestion of fraud by anybody. There are additional procedural grounds for rescission or variation under rule 31(2)(b) and rule 42 of the rules of court, which are inapplicable. I am not aware of any statutory ground for setting aside or varying this order, and counsel has not referred to a statutory remedy.

[5] That is not to say that the defendant is without remedy. He may apply to the taxing master to tax off any amounts for services of a second attorney which were not necessarily incurred. If he is dissatisfied with the taxing master’s decision, he may bring a review of taxation under rule 48.

[6] This matter came before the taxing master as a point in limine. After the plaintiff’s attorneys had drawn up two separate bills, the parties’ attorneys decided to approach the taxing master for a ruling on whether the plaintiff was entitled to submit both bills for taxation. The taxing master held that it was ultra vires his function as taxing master to decide whether or not the plaintiff was entitled to submit two bills. I understand that the ratio of his decision was that it is not competent for the taxing master to pronounce upon the propriety of a plaintiff’s decision to sue out of the court in Grahamstown when she had every right to do so. See Fanels (Pty) Ltd v Simmons NO and another 1957 (4) SA 591 (T). He cannot make a blanket ruling that the plaintiff is confined to a single bill by one set of attorneys only and may not recover any costs for work done by a second attorney. It matters not whether the plaintiffs’ attorneys drew up separate bills (which is the more convenient way of doing it) or whether they lump everything together in a single bill. In either event the duty of the taxing master is to consider whether or not to allow each item in the bill or bills under consideration. One of the considerations to which he will have regard is whether more than one attorney was necessarily employed to perform services covered by the tariff. As a general rule, he will not allow unnecessary duplication. The taxing master’s rulings on all such decisions are subject to review, which is the defendant’s remedy if he considers that he is being called upon to pay more than he should.

[7] The parties could have asked the trial judge to make a special costs order in respect of the costs of two sets of attorneys. They did not do so. I have difficulty with the suggestion by the defendant’s counsel that this was because the defendant did not foresee the possibility of having to pay the costs of two sets of attorneys. Whether or not the defendant, who is extremely wealthy, gave the matter his considered attention, he was aware, when he agreed to the settlement order, that both parties had employed and were obliged to pay East London and Grahamstown attorneys. So were his legal advisors. The plaintiff did give the matter her considered attention. She is not wealthy and the payment of costs was of major importance to her. Her evidence was that she was obliged to sell her house to finance the litigation and she would not have settled on any basis which did not involve payment of her attorneys’ party and party bill in full. Be that as it may. The parties’ failure to ask for a special order does not give me jurisdiction to make a subsequent order in variation of the original order unless the case falls within the dictum in Firestone SA (Pty) Ltd v Gentiruco A.G. case supra. Were the position otherwise, there would never be an end to litigation.

[8] At the conclusion of argument I made an order dismissing the application with costs. I undertook to give reasons later. These are the reasons.

RJW JONES

Judge of the High Court

10 November 2006

1 Two of the instances specifically referred to in the judgment relate to issues of costs, which are are not applicable to this case and which illustrate that the court cannot do what the defendant asks it to do in this case: They are, in the words of Trollip JA at 308 A – 309 B: The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, that the court overlooked or inadvertently omitted to grant. . . .

. . .

Where counsel has argued the merits and not the costs of a case (which nowadays often happens since the question of costs may depend upon the ultimate decision on the merits), but the court, in granting judgment, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order.

1 Two of the instances specifically referred to in the judgment relate to issues of costs, which are are not applicable to this case and which illustrate that the court cannot do what the defendant asks it to do in this case: They are, in the words of Trollip JA at 308 A – 309 B:

The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, that the court overlooked or inadvertently omitted to grant.

. . .

. . .

Where counsel has argued the merits and not the costs of a case (which nowadays often happens since the question of costs may depend upon the ultimate decision on the merits), but the court, in granting judgment, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order.