Fezile Dabi District Municipality v Maximum Profit Recovery Pty Ltd and 1 Other (2051/2019) [2021] ZAFSHC 248 (30 September 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 2051/2019

In the matter between:

FEZILE

DABI DISTRICT

MUNICIPALITY APPLICANT

and

MAXIMUM

PROFIT RECOVERY PTY

LTD RESPONDENTS

AND 1 OTHER

JUDGMENT BY: MOLITSOANE, J

DELIVERED ON: 30 SEPTEMBER 2021

[1] This application for leave to appeal is launched against the judgment of Jordaan J, delivered on 4 February 2021. Upon receipt of the application for leave to appeal I caused certain directives to be issued with regard to the filing of the Heads of Arguments in order to dispose of this matter without the necessity of hearing oral arguments. Maximum Profit Recovery (Pty) Ltd since obliged and filed its Heads of Arguments. Fezile Dabi District Municipality, chose not to comply with the directives and did not file any Heads of Arguments.

[2] The judgment is assailed essentially on the ground that the court erred in holding that there was no objection made by the legal representatives of the Municipality on 47 items in the Bill of Costs presented to the Taxing Master for taxation. The judgment is further assailed on the basis that the court erred in holding that the Municipality did not seek condonation for the late filing of the review of taxation.

[3] Maximum Profit opposed this application on three grounds:

a) Whether the decision by a judge made in terms of Uniform Rule 48(6) was appealable;

b) Whether a judge sitting in chambers in a Rule 48(1) review may grant condonation for the late filing of the notice in terms of the said rule;

c) Whether the Municipality qualified for a review in terms of Rule 48(1).

[4] The Maximum Profit, having raised the issue of the non-appealability of an order of Jordaan J, I directed the Municipality to file Heads of Argument in order to respond on this issue, if so advised. The applicant again chose not to file any Heads of Arguments. In my view the issue of the non-appealability of a decision of a judge made in terms of Rule 48(6) raised by Maximum Profit is dispositive of this application.

[5] Section 16 of the Superior Courts Act, 10 of 2013 deals in general terms with the procedure of appeals from ‘the Court’. Nowhere does this provision deal with an appeal from a “Judge”. Uniform Rule 1 defines both ‘Court’ and ‘Judge’. A ‘Court’ is defined as “the High Court as referred to in section 6 of the Act”. Reference to a ‘Judge’ means ‘a judge sitting otherwise than in open court.’

[6] Rule 48(1) provides that a party dissatisfied with the ruling of the Taxing Master may within 15 days of the allocatur by notice require the taxing master to state a case for the decision of a judge. Rule 48(5)(c) further determines that a review of taxation must serve before a ‘Judge’, meaning a Judge sitting otherwise than in open court.

[7] In Menszis, Berse & Chiddy v Hall the court dealing with the appealability of Rule 47, which for practical purposes is the same as the present Rule 48 held that ,save as specifically provided, no appeal lies from a judgment or order given by a judge sitting in Chambers. The court went on further to say the following:

“Under the rule now in question, the Judge sits purely as a Judge in Chambers, and does not purport (whether in term time or in vacation) to exercise the functions of the Court, and there is, in my opinion, no appeal from his decision. That it was competent to take away that right of appeal by the new rule is, I think, clear from the fact that there is no inherent right to a litigant to ‘review’ the taxation of the Taxing Master-which is in the nature of a ruling by an administrative official- save, naturally, for a gross irregularity or some other reason which makes it per se reviewable. Here, he is given a right of ‘review, which is in reality a revision, on the merits, of that ruling, and is in no sense a proceeding of the Court. It was consequently competent, by this rule, to make such revision the last word on this subject.”

[8] The Vaaltyn v Goss the court on the other hand said:

“…. where a review of taxation was heard by three judges, one therefore has an anomalous, if not absurd situation that a Judge may reach a decision in Chambers, which is not appealable, but if the same Judge hears the same matter in Court, it becomes appealable. The only difference would seem to be that in Court the Judge would have the benefit of viva voce argument as against written contentions.”

[9] It seems to me that the court in Vaaltyn appreciated the difference between the Judge sitting in Chambers and one sitting in an open court because it said the following:

“It must be accepted that, on strict interpretation of the relevant legislation, no provision is made for an appeal from the decision of a Judge in Chambers, certainly in relation to review of taxation. On the other hand, there is no provision of which I am aware (sic) which specifically excludes an appeal from a sitting Judge in Chambers.”

[10] Much as the court in Vaaltyn criticised the Menzies judgment, it held that it had the difficulty in dissenting from or even distinguishing it. The reason it dealt with the appeal before it, was it involved the matter of importance not only to the parties in that case but to other litigants. The same cannot be said about the matter before me. This one is only of importance to the parties.

[11] The Rule 48 review procedure was meant to cheapen the proceedings. It is also my view that it was meant to be dealt with without much procedural hurdles. I agree with the sentiments expressed in Menzies that it is in reality a revision on the merits and that it was competent… “to make such revision the last work on the subject.” I am accordingly bound by the judgment of the full court in Menzies and find that the order of Jordaan J is not appealable. I decline to grant leave to appeal.

ORDER

1. The application for leave to appeal is dismissed with costs.

P.E MOLITSOANE, J

On record for Applicant: Webbers Attorneys

BLOEMFONTEIN

Ref: MR NTULI/ COETZEE

On behalf of the Respondents: Adv. HJ Benade

Instructed by: Symington & De Kok Attorneys

Ref: R Brink/ nvdm/FMF0031