Janse van Rensburg and Another v Janse van Rensburg (1293/04) [2005] ZANWHC 3 (2 January 2005)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 1293/04

In the matter between:

MACHIEL CHRISTAAN JANSE VAN RENSBURG 1st

APPLICANT

C JANSE VAN RENSBURG 2ND

APPLICANT

and

PRECILLE HENRIËTTA JANSE VAN

RENSBURG RESPONDENT

JUDGMENT

LANDMAN J

[1] The applicants (plaintiffs in the main action) M C and C Janse Van Rensburg instituted action against P H S Janse Van Rensburg. I shall refer to the applicants as the plaintiffs. The matter was enrolled for hearing on 7 June 2006. For reasons which had not been recorded the parties agreed to postpone the matter sine die. The plaintiffs were ordered to pay the wasted costs of the day on an attorney and client scale to be taxable before the matter is setdown for hearing.

[2] The defendant’s correspondent drew up a bill of costs. What happened next is disputed. So much so, that the dispute cannot be decided on the papers. I do not think that it is advisable to refer the matter for oral evidence. The parties wish their dispute to be determined by this court. It is inadvisable to hold up this process while a dispute between their attorneys is resolved, especially where it can be resolved on another basis and without the need for oral evidence.

[3] To put it simply the plaintiffs’ correspondent alleges that his candidate attorney was misled by the professional assistant of the defendant’s correspondent into believing that his principal had consented to the taxation of the bill in a certain way. The candidate attorney and the professional assistant met and “taxed” the bill accordingly.

[4] The bill as ‘taxed” was submitted by the professional assistant to the taxing master of this court on 13 April 2006. The Taxing Master was told that the taxation was by consent and all she need do is attach her signature to the allocatur. She did so on 18 April 2006.

[5] The plaintiffs now seek to review and set aside the allocatur on the grounds that their correspondent had not consented to the taxation. They also seek other relief.

[6] The application is opposed by the defendant.

[7] Practice note 10 of this court (as it stood on 18 April 2006) reads as follows as regards opposed bills which become unopposed:

“An opposed bill can also be taxed on an unopposed basis. As soon as a bill is served on the opposition, he should scrutinise it. If there are no items which he is opposing he may send the bill to the attorneys presenting the bill with the endorsement. “I have no objection to the bill being taxed in my absence.” The attorney presenting the bill then sends it to the taxing master who will deal with it in accordance with paragraph 1 above. The “booking” will also be deleted in his diary.”

[8] It is common cause that the bill did not bear an endorsement by the plaintiffs’ attorney that he had no objection to the bill being taxed in his absence. The Taxing Master taxed the bill in good faith. However she should have insisted on the endorsement which is intended to and would have obviated the present embarrassment. It seems to me that justice will be done by reviewing and setting the allocatur aside.

[9] I do not intend to make a cost order as I have decided this matter on a point which was not raised by the parties.

[9] In the result I make the following order:

1. The late filing of this application is condoned.

2. The allocatur as determined by the Taxing Master of this Court dated 18 April 2006 is reviewed and set aside.

3. The taxation of the respondent’s bill of costs is to be set down again for determination by the Taxing Master.

4. There is no order as to costs.

____

A

A LANDMAN

JUDGE

OF THE HIGH COURT

APPEARANCES:

FOR THE APPLICANT : IN

CHAMBERS

FOR THE RESPONDENT :

ATTORNEYS: