Ex parte: Workforce Group, Ex parte: Workforce Group v Futter and Another (6188/2009, 290/2010) [2011] ZAFSHC 144 (1 September 2011)

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case No. : 6188/2009

290/2010

In the matter between:-

Ex parte:

THE WORKFORCE GROUP (PTY) LTD …...............................Applicant

In re:

and

H J FUTTER ….................................................................1st Respondent

CAPITAL OUTSOURCING GROUP (PTY) LTD …........2nd Respondent

_____________________________________________________

HEARD ON: 23 MAY 2011

DELIVERED ON: 1 SEPTEMBER 2011

JUDGMENT

K.J. MOLOI, J

[1] This is a review of taxation as contemplated in Rule 48 of the Uniform Rules of Court (the Rules). The applicant withdrew the application it had filed in the following terms:

“KINDLY TAKE NOTICE that the Applicant withdraws its Application against the Respondents and hereby tenders the Respondents’ duly taxed costs on a party and party scale.”

[2] The taxation was subsequently set down for 8 September 2010 before the taxing mistress of this Court, Ms Ngobeni. Before the taxing mistress appeared Ms J. Taylor of Webbers Attorneys for the respondents. Ms Taylor was at the time a candidate attorney. Ms Alet Lubbe, a Costs Consultant appeared on behalf of Hunt’s Attorneys as represented locally by Messrs McIntyre Van der Post, for the applicant in the application.

[3] The applicant for review, (the respondents in the main application), sought a review of the items disallowed by the taxing mistress viz items 5 and 6 (relating to the perusal and copying of certain (important) documents; item 51 (perusal); items 65, 66 and 104 (perusal and copying); items 114, 118 and 120 (perusal); item 137 (disbursement) and item 26 (reduction of consultation hours) which was taxed down from 6 to 3 hours. No objection was raised by the applicant during taxation.

[4] In her stated case the taxing mistress raised two points in limine on the grounds of which she opposed the review. Firstly, she alleged that the review should not be allowed to take place because the applicant sent a candidate attorney to attend the taxation and not an attorney duly admitted. Secondly, she contended that when the application for review was made, she as the taxing mistress, had not affixed the allocatur to the bill of costs. She thereafter dealt with some of the items complained of in some detail.

[5] As regards the first point made, I cannot find any support for her contention. The rule refers to a “party” being dissatisfied and the party may be represented by any legal representative including a candidate attorney. After all a candidate attorney appears for and on behalf of her/his principal who will always be a duly admitted attorney. It is also noteworthy that the taxing mistress did not question the competency of Ms Taylor to attend the taxation process.

[6] The second point raised requires more in depth consideration. The affixing of the allocatur signifies the finality of the taxation process. Before that is done to the bill of costs, the taxing mistress had not made up her mind: See SELLMAN v BOORN (1841) 8 M and W 552; 151 ER 1158 referred to with approval in PRETORIUS AND ANOTHER v COHEN 1953 (3) SA 639 (O) at 639H – 640. The following was stated at 639H:

“The master has not finally decided as to the costs until he has made his allocatur. Until he has done so, it is still open to him to alter his mind, and he is not bound by any declaration he may have made as to what costs he intends to allow”

and at 640H the following:

“For these reasons the Court concluded that the absence of an allocatur in the instant case sufficed to justify the dismissal of the application as premature.”

In the discussion of Rule 48 in Erasmus, Superior Court Practice, p. B1-350 the authors define “After the allocatur” mentioned in Rule 48(1). The following is stated:

“No bill of costs, or any item thereof, can be reviewed unless the taxing master has affixed his allocatur to the bill”

and cite PRETORIUS v COHEN, supra and GEORGIAN HOUSE ANTIQUES (PTY) LTD v HENRI LIDCHI & CO LTD 1970 (2) SA 488 (D) at 491, inter alia.

[7] Whereas the applicant made further submissions after the taxing mistress submitted her stated case, it addressed only the first point in limine raised and not the second one. I am of the view that had the applicant paid attention to the second point raised, the review application would have been withdrawn until after the affixing of the allocatur. The applicant, however, persisted with the application despite this fatal defect. The original of the bill of costs in the court file also shows no allocatur affixed to it.

[8] In the light of the above the court is bound to refuse to review the said taxation and makes the following order:

The application for review of taxation is DISMISSED with costs.

____________

On behalf of applicant: Hunt’s Attorneys

c/o McIntyre & Van der Post

Ref: Mr. C. Gerdener

BLOEMFONTEIN

On behalf of second respondent: MacGregor - Erasmus

Ref:J. Schabort/ke02/C009-0008

c/o Webbers Attorneys

Ref: AC Conradie

/sp