Masawe v Road Accident Fund (12820/04) [2010] ZAKZDHC 18 (1 June 2010)

Masawe v Road Accident Fund (12820/04) [2010] ZAKZDHC 18 (1 June 2010)

The court held that the taxing mistress erred in disallowing the curator ad litem's fees for perusal and consultation at the advocate's tariff. The curator ad litem, although acting in the stead of the plaintiff, remains a professional advocate rendering services for which payment is due. The relevant court orders, particularly the order dated 18 August 2006, awarded costs not only for the appointment application but also for the exercise of the curator ad litem's powers, which includes perusal and consultation. The taxing mistress failed to exercise her discretion judicially by making an absolute ruling without considering the fairness and reasonableness of the quantum. The matter was...

Citation
[2010] ZAKZDHC 18
Parties
Plaintiff: Msebenzi Michael Masawe; Defendant: Road Accident Fund
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
1 June 2010
Case Number
12820/04
Procedural Posture
Review Application / Review of Taxation Under Rule 48
Outcome
The review succeeded; the taxing mistress's decision was set aside and the matter remitted for reconsideration of the quantum of fees.
Judges
Ndlovu
Legal Topics
Taxation of Costs, Curator Ad Litem Fees, Review of Taxing Master Decision
Civil Procedure Taxation of Costs Curator Ad Litem Fees Review of Taxing Master Decision

Case Brief

Summary, issues, holding and outcome

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Parties

Msebenzi Michael Masawe

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Review Application / Review of Taxation Under Rule 48

Legal Issues

  1. 1 Whether a curator ad litem appointed by the court is entitled to charge fees at the advocate's tariff for perusal and consultation.
  2. 2 Whether the costs awarded in the relevant court orders cover the fees for the exercise of the curator ad litem's powers beyond the appointment application.
  3. 3 Whether the taxing mistress exercised her discretion judicially in disallowing the claimed fees.

Ratio Decidendi

The court held that the taxing mistress erred in disallowing the curator ad litem's fees for perusal and consultation at the advocate's tariff. The curator ad litem, although acting in the stead of the plaintiff, remains a professional advocate rendering services for which payment is due. The relevant court orders, particularly the order dated 18 August 2006, awarded costs not only for the appointment application but also for the exercise of the curator ad litem's powers, which includes perusal and consultation. The taxing mistress failed to exercise her discretion judicially by making an absolute ruling without considering the fairness and reasonableness of the quantum. The matter was...

Court Disposition

The review succeeded; the taxing mistress's decision was set aside and the matter remitted for reconsideration of the quantum of fees.

Orders

  • The decision of the taxing mistress disallowing items 259 and 260 of the plaintiff's bill of costs is reviewed and set aside.
  • The matter is remitted to the taxing mistress to determine the fairness and reasonableness of the fees charged for the said items as a matter of urgency.