MEC for Health, Northern Cape Province v Louw and Another (249/2014) [2020] ZANCHC 30 (19 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE HIGH COURT, KIMBERLEY)

CASE NO: 249/2014

Date heard: 09-09-2019

Date delivered: 19-06-2020

In the matter between:

The MEC for Health, Northern Cape Province Applicant

And

Sylvia Jeanette Masigo Louw 1st Respondent

The Taxing Master, Northern Cape High Court,

Kimberley 2nd Respondent

CORAM: WILLIAMS J:

JUDGMENT

WILLIAMS J:

1. This is an application in which the applicant, the MEC for Health, Northern Cape Province, seek orders inter alia:

1.1 Declaring that until the trial action pending between the applicant and the first respondent has been finally determined, the first respondent may not tax or proceed with the taxation of any bills of costs, including but not limited to the bill of costs in respect of the postponement of the trial on 12 February 2018; and

1.2 That until the trial action pending between the parties has been finally determined:

1.2.1 The taxation of any bills of costs already served and filed in the above matter shall be stayed; and

1.2.2 The first respondent is interdicted and restrained from serving and filing any further bills of costs for taxation unless the court has ordered that she may do so.

2. The 1st respondent is Ms Sylvia Louw, who has instituted an action for medical negligence against the applicant in her personal and representative capacity as mother and guardian of her minor son, who was born at Kimberley Hospital (now Robert Mangaliso Sebukwe Hospital) on 11 July 2012. The merits of the action have been conceded by the applicant but the trial on quantum has not yet been finalised.

3. The 2nd respondent is the Taxing Master of this Division (Mr C Conradie), who is cited in this application in so far he may have a legal interest in the matter.

4. The dispute arises out of a bill of costs relating to the postponement of the quantum trial on 12 February 2018. The postponement was at the request of the applicant who was not ready to proceed due to a failure to appoint experts and which resulted in an order made by agreement between the parties that, inter alia, the trial be postponed to 19 to 29 June 2018 and that the defendant (the applicant herein) “pay the wasted costs occasioned by the postponement of the quantum trial that was set down from 12 to 23 February on the scale as between attorney and client.”

5. Following upon the above costs order, the 1st respondent’s attorney of record, Mr H Van Niekerk of Elliot Maris Wilmans and Hay prepared to have the bill of costs taxed and served a notice of taxation on Towell and Groenewaldt, the erstwhile attorneys of the applicant, on 7 March 2018. The taxation was not opposed and proceeded in the absence of Mr C Kgotlagomang of Towell and Groenewaldt on 19 April 2018.

6. The applicant alleges that although a notice of taxation was served at the offices of Towell and Groenewaldt, a copy thereof was not left at the attorneys offices and as such, Mr Kgotlagomang had not been aware that the bill of costs had been set down for taxation. The applicant only became aware of the taxation on 23 April 2018 when

Towell and Groenewaldt received a notice from the 1st respondent’s attorneys attaching an allocatur from the 2nd respondent in the amount of R715 973, 68.

7. The deponent to the applicant’s affidavits, Mr M Motingoe, the Legal Head: Medico-Legal Unit of the Department of Health, Northern Cape, states that had the applicant been aware of the bill of costs he would have personally instructed Towell and Groenewaldt to oppose the taxation on the basis that the court order of 12 February made no provision for the bill of costs to be taxed and paid immediately.

8. After certain correspondence between the respective attorneys and a further attempt at taxation, the applicant’s attorneys brought an application to set aside the taxation. The application was not opposed by the 1st respondent. However the 1st respondent served a new notice of taxation on the applicant’s attorneys on 31 July 2018. At this taxation which was set down for 6 September 2018, the applicant’s attorney raised the point in limine that the taxation of the bill of costs was premature since the court order of 12 February 2018 did not provide that the wasted costs be immediately taxable and payable.

9. The 2nd respondent dismissed this point in limine but decided not to proceed with the taxation on 6 September 2018 in order for the applicant to bring this application.

10. The main issue to be decided in this application is whether a party can have interim bills of costs taxed without a specific order of court to do so and in the absence of agreement between the parties to this effect. Whereas the founding affidavit made much of the fact that the bill of costs contained a large number of items which were not wasted costs but costs relating to the trial, this aspect was not pursued during argument and quite correctly so since it is a matter not relevant to the issue in dispute.

11. Although the issue between the parties appears to be limited, the matter has escalated to such an extent that there at one stage were at least eight separate applications before court.

11.1 The main application;

11.2 1St Respondent's conditional counter-application, in the event a finding is made in favour of the applicant in the main application, that the costs order of 12 February 2018 and 20 June 2018 be supplemented/amended by adding thereto:

“Not withstanding the fact that the trial has not been finalized, these costs shall be taxable immediately and payable thereafter”;

alternatively, that it be declared that the above mentioned costs orders are taxable immediately and payable thereafter;

11.3 The 1st respondent’s application to strike out portions of Mr Motingoes replying affidavit and answering affidavit to the counter’

application;

11.4 The 1st respondent’s application for leave to file the affidavit of Mr Conradie dated 21 February 2019;

11.5 The applicant’s application to strike out 1st respondent’s application for leave to file Mr Conradie’s affidavit, alternatively an application to file further affidavits;

11.6 The applicant’s application to strike out certain portions of Mr Van Niekerks answering affidavit to the main application and founding affidavit to the counter application;

11.7 The applicant’s application to set aside the affidavit of Mr Conradie in terms of Rule 30(1), alternatively an application to file further affidavits; and

11.8 Applicant’s applications to set aside the 1st respondent’s notice of intention to oppose the application in paragraph 11.7 above as well as the answering and supplementary

affidavits filed in this respect. (Further Rule 30(1) applications).

12. The applications mentioned in 11.4, 11.5, 11.7 and 11.8 all arise from the filing of an affidavit by Mr Conradie (the 2nd respondent) on 21 February 2019.

13. Initially, on 7 December 2018, Mr Conradie had filed a notice to abide in the main application which reads as follows:

“1. The Taxing Master abide the decision of their Honourable Court.

(As far as Taxations of wasted costs bills, in the High Courts, are concerned, these can be taxed immediately. No order is required and this taxation is conferred by authorities. This principle is applied by Taxing Masters.)”

14. On 21 February 2019 Mr Conradie filed an affidavit in the main application which reads as follows:

“1. I am the second respondent in the application under case number 249/14. I have been cited in my official capacity as the taxing master in this division. The facts herein contained fall within my personal knowledge and are true and correct.

2. I have already submitted a notice to abide dated 5 December 2018. I do not intend to oppose the application. This is still my position. I shall abide the decision of this honourable court.

3. I received a letter from the first defendant’s attorneys of record dated 20 February 2019 which I attach hereto. I considered its contents and deem it appropriate, in view thereof and in view of my intention to provide clarity on the intended meaning of the content of the notice to abide, to state the following for consideration by the court and the parties.

3.1 I have been Taxing Master in this division for 32 years. Before that I was Taxing Master for 4 years in the Western and Eastern Cape Divisions of the High Court.

3.2 It has been the practice in this division over the last 32 years that costs orders granted against a party before finalisation of an action are taxable and payable even if the court does not specifically order it to be so in its order ordering the payment of such costs. This includes wasted costs on whatever scale the court may deem appropriate. As an example I may mention that over the last 32 years in this division, hundreds of such interim costs orders have been taxed which would have been payable immediately thereafter (subject to any legislation or agreement regulating the period of payment)

3.3 I verily believe that the legal position in so far as interim costs orders are concerned, accords with the practice in this division. It is in my view not necessary that such costs orders are only taxable and payable upon express leave of the court.”

15. The relevant portion of Mr Van Niekerk’s letter referred to in paragraph 3 of Mr Conradie’s affidavit reads as follows:

“Our interpretation of the contents of the notice and particularly the portion between brackets, is that you may have deemed it necessary to assist the court, either with your view of the legal position in general or, to state what the practice is (in this division or in general in other divisions), or both. As you are aware, it is central to the dispute between the parties in respect of the application, what the practice in this division is with regard to the taxation of costs orders as were granted in the action between the applicant and the first respondent before finalisation of the action on the issue of quantum. If it was your intention to assist the court (as we interpreted the notice), we believe that it may not be clear what you intended to convey.

In order to, firstly, obviate a dispute on what you intended to convey, and secondly, to record address the issue of the practice in this division, we would suggest that you perhaps consider providing detail whether this was the first instance where interim costs orders were set down for taxation and taxed absent a specific order expressly permitting such taxation and payment of whatever was ultimately taxed. Your own experience and the duration thereof may also be relevant.

You are at liberty to disclose this letter and its contents as being the catalyst for filing such an affidavit should you deem it necessary.”

16. When the matter first served before me on 20 March 2019, it was postponed to 30 May 2019 with orders, inter alia, that the applicant file his application in terms of Rule 30(1) against the 2nd respondent by no later than 3 April 2019 and that the costs of the postponement be reserved for later determination.

17. On 30 May 2019 I ruled that Ms Williams SC, for the applicant, address me first on the applicant’s Rule 30(1) application for the setting aside of Mr Conradie’s affidavit despite the fact that the 1st respondent’s application for leave to file Mr Conradie’s affidavit as part of her papers predated the filing of the Rule 30 application, albeit 2 days after the applicant’s Rule 30(2)(b) notice was served on the parties.

18. My view of the matter was that, despite being approached by Mr Van Niekerk to consider clarifying his statement made in brackets in the notice to abide, the affidavit by Mr Conradie was intended by him to be an independent affidavit on behalf of the 2nd respondent and as such should not be immune to a challenge of irregularity, if so warranted.

19. The particulars of the irregularity listed in the applicant’s notice in terms of Rule 30(2)(b) can be summarised as follows:

19.1 The 2nd respondent’s answering affidavit was filed out of time;

19.2 The 2nd respondent failed to file a notice to oppose;

19.3 The 2nd respondent’s affidavit appears to constitute an opposing/answering affidavit despite having previously filed a notice to abide, which contradictory action constitutes an irregular step; and

19.4 The 2nd respondent’s belated answering affidavit was at the behest of the 1st respondent and is accordingly biased.

20. The fundamental problem that I have with the first three grounds of irregularity mentioned above is that it proceeds from the premise that Mr Conradie is opposing the application and that his affidavit serves as an answering affidavit, since only then would he be bound by the provisions of Rule 6 relating to the filing of opposing

papers. It is clear, however, from his notice to abide and his affidavit, specifically paragraphs 2 and 3 thereof, that his

intention is not to oppose the application but to clarify his statement in the notice to abide, for consideration by the court and the parties. The concept of what is often termed an “informatory” or “explanatory” affidavit is not a novel one and is often used by officials in government departments, not to oppose applications but to provide the court with insight into the operations of the specific department for better understanding of its processes. In doing so, it may be that one or other of the parties’ case benefits from the information, but this is no reason for the setting aside of such an affidavit. See Clairison’s CC v MEC for Local Government, Environmental Affairs and Development Planning and Another 2012(3) SA 128 (WCC) at paragraphs 9 and 11.

21. The situation in casu is in my view no different from that in the Clairison’s case and any prejudice suffered by the applicant as a result of the late filing of Mr Conradie’s affidavit would be tempered by allowing the applicant an opportunity to file a further affidavit to deal with Mr Conradie’s affidavit.

22. As far as the allegation of bias is concerned, the fact that Mr Van Niekerk requested Mr Conradie to consider the making of such an affidavit (which I must hasten to add is not a practice to be encouraged) is countered in my view by the full disclosure of Mr Van Niekerk’s letter to Mr Conradie. In any event Mr Conradie’s view on the issue has been apparent since his dismissal of the point in limine at the taxation referred to in paragraph 9 herein.

23. For the reasons stated above I dismissed the applicant’s Rule 30(1) application relating to Mr Conradie’s affidavit and allowed the affidavit to stand.

24. I do not intend to deal in any great detail with the other applications which followed as a result of Mr Conradie’s affidavit since it has mainly become academic (except for costs) as a result of the order I made on 30 May 2019 which, inter alia, provided for the admission of the 2nd respondent’s (Mr Conradie’s) affidavit, the postponement of all other undetermined issues to 9 September 2019 and leave

granted to the parties to file further affidavits in response to the 2nd respondent’s affidavit.

25. When the proceedings resumed on 9 September 2019, the applicant had filed in response to Mr Conradie’s affidavit, the affidavit of Mr Mogamat Mia, currently a cost consultant and a former Taxing Master of the Western Cape High Court. 1st respondent had filed affidavits of attorneys Mr Van Nieierk, Mr Morné Scheepers, Ms Sophia Avvakoumides and Mr Peter Horn. But before I can proceed with the real issue between the parties, there remains the matter of striking out applications brought by both the applicant and the 1st respondent in the main application and the conditional counter-application. The applicant filed an application to strike out certain paragraphs in the 1st respondent’s founding/answering affidavit dated 26 October 2018 and the replying affidavit to the conditional counter-application dated 3 December 2018 on grounds that it either comprises vexatious, scandalous and irrelevant matter or that it contained inadmissible hearsay.

26. The 1st respondent filed an application to strike out certain paragraphs in the applicant’s replying affidavit and answering affidavit in the conditional counter-application. In all, the 1st respondent’s application comprised 18 paragraphs of complaints relating to various paragraphs in the applicant’s affidavit

relating to unnecessary legal argument, repetitiveness, irrelevance, it being vexatious, scurrilous and at times defamatory.

27. After I requested counsel, before the commencement of these proceedings before me, to reconsider the advisability of proceeding with applications to strike out matter which do not detract in any way from the case advanced by either party, especially in the light of the myriad of other applications which burdened this matter, Mr De Waal SC for the 1st respondent abandoned all other matter initially sought to be struck, except for those paragraphs in the applicant’s affidavit which relate to affidavits made by Mr Kgotlagomang. The applicant however chose to proceed with its entire application to strike out.

28. Before proceeding with the applicant’s application to strike out, I need to make a few remarks regarding striking out applications. Rule 6(15) confers a discretion upon a court to order the striking out of matter which is scandalous, vexatious or irrelevant and requires a court to be satisfied that a party will be prejudiced in his/her care if the application is not granted. Hearsay evidence is generally considered to be prejudicial. The trend, in my experience, and a laudable one at that, is not to bring wasteful and time consuming applications for striking out where

allegedly objectionable matter is included in affidavits, but to leave it to the court who is presumed to know when a party has

overstepped the mark, to make an appropriate cost order against such a party. That being said, I now turn to the striking out applications which I intend to deal with as briefly as possible.

29. Paragraph 1.1 of the applicant’s striking out application refers to paragraph 7.16 to 7.19, 7.32 and 11.1 to 11.5 of the 1st respondent’s affidavit dated 26 October 2018 as containing vexatious, scandalous and irrelevant matter. I do not intend to incorporate these paragraphs herein so as not to overburden this judgment with a regurgitation of completely unobjectionable matter.

30. Paragraph 1.2 complains of inadmissible hearsay in paragraph 7.19, 7.21, 7.23, 7.24, 7.34 and 10 of the same affidavit, Except for paragraphs 7.34 which in any event does not even vaguely contain any hearsay evidence, the rest of the paragraphs mentioned refer to correspondence, conversations and agreements between Mr Van Niekerk and Mr Kgotlagomang, which in most instances are supported by annexures attached to the applicant’s affidavit. The conversations and agreements related by Mr Van Niekerk in those paragraphs took place in his presence and with him as a participant. It can by no stretch of the imagination be described as hearsay.

31. Paragraphs 2.1 and 2.2 of the application refer to the 1st respondent’s replying affidavit dated 3 December 2018. Paragraph 2.1 of the striking out application complains of scandalous, vexatious and irrelevant matter contained in paragraphs 3, 4, 7.2, 7.1, 7.18, 7.19, 18, 21, 24.2, 25.3 and 27.2. I once again do not intend to deal with each of the paragraphs complained of. However, the majority of the paragraphs objected to contain responses by Mr Van Niekerk to personal attacks on his integrity and reliability by Mr Motingoe, by referring to these comments as either scandalous, vexatious, defamatory, bound to be struck, etcetera. I cannot fathom how such responses can be regarded as either scandalous, vexatious or irrelevant. However, it is unfortunate that a legal professional should stoop to this type of pleading.

As a matter of fact, I could have struck those paragraphs in Mr Motingoe’s affidavit containing personal attacks on the integrity of Mr Van Niekerk, had the 1st respondent not abandoned that part of her striking out application.

There can be no prejudice to the case of the applicant. The remainder of the paragraphs complained about under this heading is nothing but robust pleading which certainly is not prejudicial to the applicant’s case.

32. Paragraph 2.2 of the applicant’s striking out application relates to alleged hearsay in paragraphs 7.7, 7.16, 12.1, 12.2, 12.3, 12.4, 15, 23.2 and 23.3. The same comments relating to hearsay evidence which I have made in paragraph 30 herein are applicable. Mr Van Niekerk’s interactions with Mr Kgotlagomang can by no

means be hearsay evidence.

33. The applicant’s striking out application is devoid of any merit whatsoever and the persistence in proceeding with what is obviously an exercise in futility and a waste of time and money, cannot be condoned. This application is dismissed.

34. This brings me to the 1st respondent’s application to strike out. As alluded to hereinbefore, the objectionable matter complained of have been

limited to those paragraphs referred to in paragraph 4 of the application and relate to the references to and inclusion of affidavits made by Mr Kgotlagomang in other applications. The other applications referred to are the application for the postponement on 12 February 2018 and the application for the setting aside of the taxation which was issued on 23 May 2018 and heard on 8 June 2018.

35. The complaint relates specifically to annexure “MSM26”, the setting aside application, and in more general terms to the postponement application. “MSM26” has been annexed to the replying/answering affidavit of Mr Motingoe to indicate that the issue of immediately taxing costs despite the court not making

such an order, was raised by Mr Kgotlagomang in the founding affidavit of the setting aside application, some time before the order of 20 June 2018, when the trial was again postponed.

36. There are two objections to this annexure. Firstly, that Mr Motingoe refers in general terms to the annexure which consists of 55 pages, without identifying the specific portions which he relies on; then expecting of the 1st respondent to “trawl through annexures to the opponent’s affidavit and to speculate on the possible relevance of facts therein contained”. In this regard reference was made to National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA), paragraph 47. See also Swissborough Diamond Mines (Pty) Ltd and others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T) at 324; Helen Suzman Foundation v President of the Republic of South Africa and others 2015 (2) SA 1 (CC).

37. The objectionable matter complained of in casu can hardly be compared to the cases referred to above. The affidavit of Mr Kgotlagomang comprises only 17 pages of the application. Moreover, the setting aside application as well as the 12 February 2018 application for postponement form an integral part of the subject matter of the main application and form part of the court file – their inclusion can hardly be prejudicial to the 1st respondent in the sense objected to.

38. The same applies to the hearsay argument. The 1st respondent’s objection to the applicant’s failure to file a confirmatory affidavit by Mr Kgotlagomang confirming his affidavit in other related applications under the same case number is far-fetched in my view.

39. No prejudice has been shown by the 1st respondent in respect of the inclusion of these affidavits and as such the 1st respondent’s application to strike out is dismissed.

40. This bring me to the main issue for consideration in this application.

41. Mr Mia on behalf of the applicant and who appears to have been a Taxing Master of the Western Cape High Court for a combined period of about 12 to 13 years, disagrees with Mr Conradie’s assertion regarding the usual practice relating to the taxation of bills of costs before finalization of a matter. The relevant portions of Mr Mia’s affidavit reads as follows:

“9. There are a number of risks in allowing bills to be taxed before the finalisation of a matter (or distinct phase of the litigation such as the conclusion of the merits).

10. My experience as a Taxing Master and as a person who presents bills for taxation has revealed the following, including:

10.1 Very often matters are postponed several times;

10.2 It is exceedingly difficult to isolate what truly constitutes wasted costs;

10.3 There is a real risk that the party against whom the costs order is made will be billed for a charge for which it later turns out that that party was not liable;

10.4 Whether or not an item constitutes a wasted costs is best determined at the end of the matter;

10.5 While there have been occasions when a bill of costs has been taxed after a postponement, this occurs if a court orders as much and usually where one is dealing with relatively small amounts. It has also occurred where there is no objection to the taxation by the party against whom the costs order had been made;

10.6 I have not encountered a situation where wasted costs have been taxed despite an objection thereto by the party against whom the costs order has been made.

13. It is important to bear in mind that when courts order that bills are taxed and payable immediately, this is generally a punitive measure.

42. Mr Scheepers and Ms Avvakoumides, attorneys and cost consultants respectively from Bloemfontien and Pretoria who both have more than 20 years experience as cost consultants nationally, disagree with Mr Mia’s contention that the usual practice is that unless the court orders taxation or the parties agree thereto, that a final order for costs in the High Court is not taxable and payable immediately. Mr Horn who has been practising as an attorney locally for over 60 years and who has held leadership positions in his profession and has served on numerous committees within the attorneys field also disagrees with Mr Mia’s assertion of the usual practice relating to costs orders before finalization of litigation. These three attorneys who have filed affidavits on behalf of the 1st respondent all agree with Mr Conradie’s point of view relating to the factual and legal position regarding the issue in dispute and contend that Mr Mia’s contentions correctly reflect the position in respect of interim orders in the Magistrates Courts but not in the High Court.

43. Rule 33(3) of the Magistrates’ Courts Rules provide as follows:

“Unless the court shall for good cause otherwise order, costs of interim orders shall not be taxed until the conclusion of the action, and a party may present only one bill for taxation up to and including the judgment or other conclusion of the action.”

In Du Preez v Mostert 1981(2) SA 515 (T) at 519 Van Dijkhorst J stated that the object of this sub rule was “die verhindering van kwelling van ‘n party met eksekusie van tussentydse kostebevele.”

44. There is no equivalent Rule relating to costs of interim orders in the High Court. There also in my view does not appear to have been a discernible usual practice developed along the lines of Rule 33(3) of the Magistrates’ Court Rules, which has been followed nationwide in the High Courts. I refer briefly to the cases referred to by counsel in this regard.

45. In Balomenos v Fanels (Pty) Ltd and Another 1954(2) SA 481 (W) at 483 c, Blackwell J stated: “I am fortified in this view by my knowledge of the practice of this court. If an interim order is made as to costs, an order which then is final, those costs, as far as I am aware, can be taxed at once. The party in whose favour such an order is made is not obliged to wait until the proceedings are final before taxing those costs.”

46. In Scott v Nel, NO and Another 1963(2) SA 384 (E), the applicant sought an order directing the Assistant Registrar to tax a bill of costs. The parties had

agreed thereto that the second respondent pay inter alia all costs of the medical examination of the applicant’s minor son “as taxed between party and party”. The applicant presented a bill of costs to be taxed after the medical examination, which the Taxing Master refused to tax on the basis inter alia that it was premature to tax a bill of costs where there is no judgment or order of court entitling him to do so. The Taxing

Master distinguished between an agreement to taxation and an agreement to pay taxed costs, as was the case in the matter before

that Court. The Taxing Master referred to Magistrates Courts Rule 49(3) (the present Rule 33(3)) as a guide to “avoid bills being presented in bits and pieces.” The Court found this to be “a salutary practice that save in exceptional cases the costs of a law suit are taxed at one and the same time in one bill of costs. The question whether a case falls within the exception, unless it be determined by order of Court, must necessarily lie in the discretion

of the Taxing Master, and this discretion will not be disturbed unless it is found that he did not exercise a proper discretion by disregarding factors which were proper for him to consider or by considering matters which it was improper for him to consider.”

(Own underlining)

The court found that by exercising his discretion on the grounds that the matter had not yet been finalised and that there was every

possibility of a further bill of costs, the exercise of the Taxing Master’s discretion not to tax was justified since “a party who has succeeded on a preliminary issue but with poor chances of final success, may have his bill taxed and demand payment leaving the successful party no right of set-off and possibly an inability to recover his costs in the main issue. In any event it is an undesirable duplication of proceedings with a probable addition to the costs of the action.”

47. In Sanvido & Sons (Civil Engineering) (Pty) Ltd v Aglime (Pty) Ltd 1984 (4) SA 334 (CPD) where substantial amendments were moved for by the defendant at a late stage and which necessitated the postponement of the trial, the plaintiff moved for orders on the day the trial was to commence that the matter be postponed, that defendant pay the

costs of the application as well as the wasted costs as a result of the postponement of the trial and granting leave to the plaintiff to tax its bill of costs in relation and the wasted costs forthwith and directing the defendant to pay such cost forthwith upon taxation thereof. The defendant opposed the claim, arguing that the usual practice was for a single bill of costs to be taxed after final judgment. Berman AJ (as he then was) expressed difficulty in appreciating why the plaintiff should not have its wasted costs paid forthwith since the plaintiff would be required to pay counsel’s fees, attorney’s charges, witnesses’ fees immediately or very shortly and could think of no good reason why a party who is in no way at fault should be saddled with these costs with no hope of reimbursement for many months. At 345 E-F of the judgment he states “It may be that the “usual practice” is to leave all costs to be taxed till after final judgment has been handed down. If that “usual practice” covers cases of wasted costs incurred as a result of a trial having to be postponed because of an amendment to a party’s pleading applied for and granted at a very late stage, then it seems to me that the “usual practice” ought properly to be restricted in its application.” The learned Judge then proceeded to order that the plaintiff’s bill of costs be taxed without delay and be payable upon demand.

48. In Total Swaziland (Pty) Ltd v Gordon Wilfred Angus And Another 2919/2000, a Swaziland High Court matter, the issue was also that of a bill of costs intended to be taxed after a postponement of a trial where the court had ordered that the defendants pay the plaintiffs wasted costs occasioned by the postponement and the plaintiff’s costs of the application for postponement on the attorney and client scale, and where there was no order that the costs be taxed immediately. The court found itself guided by the South African Magistrates’ Courts Rule 49(3) and Scott v Nel NO supra and held that it was improper and undesirable to tax and pay costs in a piecemeal fashion before the trial had been brought to finality and stated that: “In the ordinary course of events interlocutory orders that are given during the course of litigation do not also allow the successful

party to present a bill of costs for taxation and thereafter demand payment. The usual practice is that costs are taxed once only, at the conclusion of the trial.”

49. The applicant also referred to the cases of Van Dyk v Conradie and Another 1963(2) SA 413 (C) and P Smit v C Venter an unreported judgment in the North West Division, Mafikeng under case No 2080/2009 delivered on 20 February 2014. These matters both concern applications for the staying of actions until costs are paid and are distinguishable from the application in casu.

50. However, what is clear from the cases I have been referred to and have dealt with hereinabove, is that there does not appear to be any uniformity nationwide as to what the usual practice is with regard to the taxation of interim cost orders in the High Court. What does stand uncontroverted (from the affidavits of the Taxing Master and the practitioners on behalf of the 1st respondent), is that the usual practice in this Division is not that which is asserted by the applicant.

51. The Uniform Rules of Court make no provision for interim costs orders to be taxed only after the finalisation of a matter or a court order to that effect. Had that been the intention of the legislator, express provision would have been made therefor in the Uniform Rules as in the Magistrates’ Courts Rules. The aspersions cast on the competence of Mr Conradie by the applicant’s legal representatives are completely unfounded. While there is something to be said, in general, about the undesirability of bills of costs being taxed piecemeal and which could result in unnecessary duplication of costs, it is within the discretion of the Taxing Master to decide whether a bill of costs is to be taxed before finalisation of a matter and in the absence of a court order to that effect. That much, in my view is clear from the underlined portion of the judgment in Scott v Nel in paragraph 46 above.

52. In Preller v Jordaan 1967(3) SA 201 (OPD) it was stated at 203 C-D that the Court will not interfere with the decisions of the Taxing Master “unless it is found that he has not exercised his discretion properly, as for example, when it has been actuated by some improper motive, or has not applied his mind to the matter, or has disregarded factors or principles which were proper for him to consider or acted upon wrong principles or wrongly interpreted rules of law, or gave a ruling which no reasonable man would have given,”

It appears to me that one of the main reasons why the applicant has been so intent in trying to prevent taxation of interim bills of costs in this matter is his disagreement with the items allowed in the taxation which has now been set aside. If that is the case, then the applicant’s remedy lies in a review of taxation.

53. That being said, in my view, the applicant is not entitled to the relief sought and the main application should therefore be dismissed. This would also mean the end of the conditional counter-application. The only issue left is that of the costs of the application.

54. I have given the issue of costs in this application considerable thought and have determined an appropriate cost order in all the circumstances of this matter to be as follows. The applicant should pay the cost of the main application, the conditional counter-application (even though it has now fallen away) and the costs of the Rule 30(1) application for the setting aside of the Taxing Masters’ affidavit on the scale as between attorneys and client due to the vexations nature and uncalled for personal attacks with which these applications were dealt with both on the papers and during argument. I see no reason why these costs should not include the costs of two counsel. With regards to the striking

out applications and those applications not considered by me, each party should pay his/her own costs.

In the result the following order are made:

a) The main application is dismissed with costs on the attorney and client scale, inclusive of the costs of two counsel.

b) The applicant is furthermore ordered to pay the costs of the conditional counter-application and the Rule 30(1) application for the setting aside of 2nd respondent’s affidavit on the scale as between attorney and client, inclusive of the costs of two counsel.

c) The striking out applications are dismissed and the parties are each to pay their own costs in those applications and the applications not considered and referred to in paragraphs 11.4, 11.5, 11.7, and 11.8 of the judgment herein.

d) The applicant is to pay the wasted costs occasioned by the postponement of 20 March 2019 on the party and party scale.

_________________________

CC WILLIAMS

JUDGE

For Applicant : Adv. R Williams SC, with Adv. S Mohamed

Robert Charles Attorneys

For 1st Respondent: Adv. WP De Waal SC, with Adv. CH Botha

Elliot, Maris Wilmans & Hay