Minister of Agriculture, Land Reform and Rural Development and Another v Maidstone Planters Proactive Landowners Association and Others (LCC173/2011C) [2023] ZALCC 39 (6 November 2023)

FLYNOTES: COSTS – Taxation – Review – Interim interdict sought restraining removal of department’s attached goods pursuant to warrants of execution – Applicant failed to object to taxation of taxing master’s allowance at time of taxation – Failed to invoke remedy available to them, being review under the Rules – Any attempted review would be well out of time and require condonation – Insufficient explanation for delay – Failure to object to taxation means review process is not available to them – Have not established prima facie right – Requirements for interim relief not satisfied – Application dismissed.

IN THE. LAND CLAIMS COURT OF SOUTH AFRICA

(HELD AT RANDBURG)

Case No. LCC173/2011C

In the matter between: MINISTER OF AGRICULTURE, LAND REFORM AND RURAL DEVELOPMENT First Applicant REGIONAL LAND CLAIMS COMMISSIONER, KWA-ZULU NATAL Second Applicant and MAIDSTONE PLANTERS PRO-ACTIVE LANDOWNERS ASSOCIATION First Respondent TONGAAT HULETT LIMITED Second Respondent ACTING SHERIFF, PRETORIA NORTH EAST Third Respondent

JUDGMENT

COWEN J:

Introduction and background

1. The applicants seek an interim interdict restraining the removal of goods attached pursuant to warrants of execution issued by the Registrar of this Court in March 2023 pending the outcome of proceedings reviewing the taxation of a bill of costs.

2. The applicants are the Minister of Agriculture, Land Reform and Rural Development (the Minister) and the Regional Land Claims Commissioner, KwaZulu-Natal (the Regional Commissioner). The goods attached are movable goods of the Department of Agriculture, Land Reform and Rural Development (the Department). The movable goods were attached by the Acting Sheriff, Pretoria North East, the third respondent, on 23 June 2023 at the instance of the first and second respondents.

3. The first and second respondents are Maidstone Planters Pro-Active Landowners Association (Maidstone) and Tongaat Hulett Limited (Tongaat). Maidstone and Tongaat obtained a warrant of execution from the Registrar of this Court after unsuccessful attempts to obtain payment of a punitive costs order this Court granted in their favour. This Court granted the costs order in respect of proceedings relating to a land claim lodged by a Mr Phillip Gumede on behalf of the Qwabe Land Claims Committee. The order was granted on 11 December 2018, several years ago.

4. The costs order was granted against the Minister and the Commission and required them to pay their costs on the scale of attorney and client including a series of cost items specified in the order.[1] After the judgment was delivered, Maidstone and Tongaat’s attorney prepared a statement of fees and disbursements. The costs were taxed by the taxing master only on 21 October 2022, in the amount of R21 751 939.61. It is common cause that the applicants had notice of the taxation, did not participate in it and did not object to the taxation in any respect.

5. The attorneys for Maidstone and Tongaat sent the taxed bill of costs to the State Attorney’s office on 17 January 2023, whereafter the State Attorney requested the Department of Agriculture, Land Reform and Rural Development (the Department) to authorize its payment. In March 2023, the Department’s Director of Legal Services Mr Sifiso Ndlovu authorized its payment but, because it exceeds R500 000.00, sent it to the Solicitor-General for authorization. That was in April 2023.

6. The Solicitor-General delayed in responding but ultimately advised that the bill was exorbitant and must be reviewed. The State Attorney appointed a costs consultant who provided the Department with an opinion about the bill of costs. The opinion is attached to the founding affidavit, but its admissibility is in dispute and I return to it below. In short, however, the Minister and the Regional Commissioner contend that there are grounds to review the taxation and they wish to pursue its review. No review has been instituted at this stage.

7. On 14 March 2023, the Registrar of this Court issued a warrant of execution at the instance of Maidstone and Tongaat, directing the third respondent to attach and take into execution the Department’s movable goods and to realise by public auction the sum of R21 751 938, 61 with interest, and to then pay Maidstone and Tongaat that amount. The goods were attached on 23 June 2023 and were to be removed thirty days thereafter.

8. The applicants instituted this application to prevent the removal of the Department’s attached goods pending the intended review. Before doing so, and on 4 July 2023, the State Attorney wrote to the attorneys of Maidstone and Tongaat requesting them to stay the removal of the goods pending the determination of the review but the request was refused.

9. The application was instituted on 25 July 2023. This Court issued directions on 26 July 2023. The application for interim relief was set down for hearing on 21 August 2023 to enable the parties to exchange affidavits. This Court further issued a directive maintaining the status quo precluding the removal of the Department’s goods pending the hearing and thereafter

pending delivery of this judgment.

Urgency

10. Brief remarks on urgency are warranted. Maidstone and Tongaat submitted that the application was not urgent. I disagree. The execution process entailed an attempt to obtain payment of fees by realising the assets of the Department, which would have generated immense challenges for the Department in the performance of its duties, in this case the constitutional imperative of land reform. The applicants’ prior request to stay the execution process was refused and the process of removal of government goods for purposes of their sale by auction was imminent. The matter was urgent, though the urgency was dissipated with the

issue of directives as ensues, not infrequently, in this Court.

Legal principles: interim relief and reviews of taxation

11. The requirements for interim relief in this Court are well-established,[2] being

“a) that the right which is the subject matter of the main action and which the applicant seeks to protect is clear or, if not clear, is prima facie established though open to some doubt;

b) that, if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and he ultimately succeeds in establishing his right (it is implicit in this requirement that the harm apprehended must be the consequences of an actual or threatened interference with the right referred to in (a);

c) that the balance of convenience favours the granting of interim relief; and

d) that the Applicant has no other remedy.”

12. In applying these principles, this Court follows the approach expounded in American Cyanamid Co v Ethican Ltd.[3] That approach departs from a rigid approach of requiring establishment of a ‘strong prima facie right’ and emphasises flexibility and the importance of the balance of convenience criterion. The Court must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. As this Court held in Macassar Land Claims Committee v Maccsand CC:[4]

“According to this approach, where the grant of the interim interdict results in significant inconvenience for the respondent, a higher standard of proof is required of the applicant under the ‘serious question to be tried’ criterion. Conversely, where the inconvenience to the respondent is insignificant, a lesser standard of proof may be accepted.”

13. A review of taxation is governed by Rule 66 of the Rules of this Court, which is titled ‘Taxation of costs’. Rule 66(5) provides:

‘Any party may apply to the presiding judge for review of any costs or expenses awarded or refused by the Registrar in taxing a bill of costs. The application must be made mutatis mutandis in accordance with the procedures which apply to applications for a review of taxation by a taxing master of the [High Court].’

14. The procedures that apply to reviews of taxation in the High Court are governed by Rule 48 of the Uniform Rules of Court which is entitled ‘Review of taxation’. Rule 48(1) provides that:

‘Any party dissatisfied with the ruling of the taxing master as to any item or part of an item which was objected to or disallowed mero motu by the taxing master, may within 15 days after the allocatur by notice require the taxing master to state a case for the decision of a judge.’

15. Rule 48(2) sets out what the notice must contain and Rule 48(3) requires that the taxing master, within 20 days of receipt of the notice, then supply a stated case setting out any findings of fact. Thereafter, and in terms of Rule 48(5), parties may within fifteen days make submissions on the stated case, after which the taxing master delivers a report and the parties may make further submissions on the report. At that stage, the taxing master must forthwith lay the case and submissions before a judge. The judge then deals with the matter in terms of Rule 48(6), which empowers the judge to (i) decide the matter upon the merits of the case and submissions so submitted; (ii) require any further information from the taxing master; (iii) if he or she deems it fit, hear the parties or their advocates or attorneys in his or her chambers or (iv) refer the case for decision to the court.’

16. It is well-established that the process of taxation is an integral part of the judicial process and the taxing master presides, not as an administrator, but as an extension of the judiciary.[5] The rights and obligations of the parties to a suit are not finally determined until the costs ordered by the Court have been taxed.”[6] The taxation process is designed to provide a fair and efficient process finally to determine the rights of the parties and provides for a review where a participating party is aggrieved or where the taxing master disallows items mero motu. The rescission remedy is, in principle, available to those who can meet its requirements.[7]

Decision

17. After considering the submissions of the parties, I have concluded that the application must be dismissed for the following reasons.

18. First, the applicants failed to invoke the remedy available to them, being the review provided for in Rule 66. Mr Hamman, who appeared for Maidstone and Tongaat, submitted that the applicants are precluded from availing themselves of this remedy because they did not object to the taxation in the first place. In Daywine Properties (Pty) Ltd v Murphy,[8] Broome J held:

‘… in my judgment there can be no escape from the clear meaning of the language used in Rule 48(1) and (2). If the party opposing the taxation fails to object when before the Taxing Master, he cannot thereafter invoke the review of taxation procedure provided by Rule 48 in a belated attempt to attack items which the Taxing Master allowed.’

19. To similar effect, in Kruger v Secretary for Inland Revenue,[9] Van Winsen J declined to deal with a specific objection during a review process as no objection was made to the Taxing Master’s

allowance at the time of taxation. Pickering J came to the same conclusion in Olgar v Minister of Safety and Security.[10]

20. Mr Hamman submitted that the applicants’ failure to object to the taxation is a complete answer to the application as the review process is not available to the applicants. This is not a case, he emphasized, where there is any suggested basis to rescind the taxation or that the respondents are seeking to do so. I agree with Mr Hamman’s submission. Both the rules and the authorities are clear.

21. Secondly, and in any event, any attempted review would be well out of time and require condonation and there has been an insufficient explanation in the application for interim relief for the delay, specifically as regards to the delay occasioned in the office of the Solicitor-General. The rules of court provide for a time-bound process to ensure finality in litigation and it is trite that condonation is not merely there for the asking.[11]

22. Thirdly, Mr Hamman objected to any reliance on the legal opinion of the costs consultant. As I understand the affidavits, the legal opinion was supplied for the purpose of advancing the basis upon which the Department has been advised to review the taxation. There is currently no review before the Court, but I can see no reason why the opinion should be treated as inadmissible if advanced for this narrow purpose. Nonetheless, it remained necessary for the applicants to demonstrate, in their founding affidavit, a prima facie right to the relief sought or at least that there is a serious question to be tried. They cannot merely attach the opinion, refer in general terms to its content or parts of the opinion, and then fairly expect the respondents to seek to discern from it whether or not there is any sound basis suggested to ground a potential review.[12] In this case, the applicants point to various conclusions of the consultant that certain costs should have been disallowed or reduced. But the intended basis or even scope of the review is not sufficiently discernable from the founding affidavit nor otherwise self-evident. For this reason too, I am unpersuaded that any basis has been advanced to review the decision.

23. In the result, I am unpersuaded that the applicants have established a prima facie right, even on the flexible and less rigid approach in American Cyanamid adopted by this Court.

24. I am, moreover, unpersuaded that the remaining requirements for interim relief are met, specifically that the balance of convenience is in the applicants favour, that there is a well-grounded apprehension of irreparable harm if the interim interdict is not granted or that the applicants have no other remedy. Even assuming that a cognisable right to review remains extant, there is no dispute that the applicants are obliged to pay the first and second respondents’ costs and the only dispute is in what amount. As indicated above, there is no indication as to what portion of the taxed bill might be affected. Nor is there any explanation why, if the applicants pay now, they cannot seek to recover any amount of overpayment later. On the other hand, parties in whose favour costs awards are made should not be made to wait unduly to recover their fees, in this case in a large amount. Delays of this sort ultimately hamper access to court, prevent finality in litigation and undermine the interests of justice.

Conclusion

25. Accordingly, the application for interim relief must fail. To enable the applicants an opportunity to effect payment of the taxed bill without any undue interference in the performance of their public duties, I have made provision in the order to lift the restraint in execution in 15 court days from the date of this judgment.

26. Subject to Biowatch Trust v the Registrar Genetic Resources,[13] this Court only orders costs in special circumstances dealing as it does with social legislation. In my view, this is a case that warrants a costs order. The application, which had no merit, has resulted in a further delay for the respondents in recovering their costs from the Department as ordered by this Court, with implications for access to justice.

Order

27. I make the following order:

27.1. The application is dismissed.

27.2. The restraint on execution imposed by this Court in paragraph 13 of the amended directives of 4 August 2023 remains in place for a period of fifteen days after the date of delivery of this judgment.

27.3. The applicants shall pay the first and second respondents’ costs on a party and party scale.

SJ COWEN

Judge, Land Claims Court

Appearances:

For the Applicants:

R B G Choudree SC with CM Nqala

Instructed by:

State Attorney

For the First and Second Respondents:

Adv J. Hamman

Truter James D Ridder Incorporated

Date heard: 21 August 2023

Judgment delivered: 6 November 2023

[1] Specifically: 1. The costs of the [landowners’] contempt application of 28 September 2012, including all attendances thereupon, the consultations to prepare the drawing of affidavits and any other necessary pleadings, including the telephonic conference held on 13 May 2013 referred to in the order of 9 July 2013. 2. The costs of the second contempt application and the costs incurred by the postponement thereof on 27 November 2014 included by order of court in the costs in the referral. 3. The employment of two counsel and an attorney in respect of all trial dates. 4. The costs reserved on the 1st of February 2012 in respect of the application to compel the delivery of further particulars. 5. The costs of two counsel and an attorney and the Randburg correspondent where applicable, for attending all pre-trial conferences in the preparation and circulation of the agenda and minutes thereof, the costs incurred in respect of consultations with representatives of the defendants and the costs in respect of consultations with the experts and the witnesses who testified, including all travelling and accommodation expenses and costs in respect of travelling time, as determined by the taxing master. 6. The costs of attending to inspections in loco by two counsel and an attorney and one expert witness, Mr van Jaarsveld, including costs in respect of travelling time and travelling expenses to be determined by the taxing master. 7. The travelling and reasonable and necessary accommodation expenses of the witnesses and expert witnesses of the [landowner defendants’] to attend the trial of the matter. 8. The qualifying fees and expenses of the expert witnesses Dr Whelan, Mr van Jaarsveld and Mr Schoeman, such costs to include the costs of visiting the various archives, copying of discovered documents, the inspections in loco conducted by them, the consultations by them with the [landowners] to obtain relevant information and documentation to compile their reports; the drafting of the report and the consultation time with the [landowner defendants’] two counsel and attorney, and the attendance fees for the trial; 9. All costs of preparing maps and the obtaining of all aerial photographs, the preparation of all electronic files and the making of copies thereof for the trial. 10. All costs incurred by the [landowners’] attorney and correspondent attorney in Randburg in preparation, collating, copying, indexing and pagination of all bundles of documents, including files numbered 1 to 15F; the exhibit files, maps and photographs, transcripts of court proceedings and making copies thereof as well as indexing and pagination of the Court bundles and files (inclusive of lever arch files), (the latter costs and expenses of which were the responsibility of the plaintiff’s attorneys).’

[1] Specifically:

1. The costs of the [landowners’] contempt application of 28 September 2012, including all attendances thereupon, the consultations to prepare the drawing of affidavits and any other necessary pleadings, including the telephonic conference held on 13 May 2013 referred to in the order of 9 July 2013.

2. The costs of the second contempt application and the costs incurred by the postponement thereof on 27 November 2014 included by order of court in the costs in the referral.

3. The employment of two counsel and an attorney in respect of all trial dates.

4. The costs reserved on the 1st of February 2012 in respect of the application to compel the delivery of further particulars.

5. The costs of two counsel and an attorney and the Randburg correspondent where applicable, for attending all pre-trial conferences in the preparation and circulation of the agenda and minutes thereof, the costs incurred in respect of consultations with representatives of the defendants and the costs in respect of consultations with the experts and the witnesses who testified, including all travelling and accommodation expenses and costs in respect of travelling time, as determined by the taxing master.

6. The costs of attending to inspections in loco by two counsel and an attorney and one expert witness, Mr van Jaarsveld, including costs in respect of travelling time and travelling expenses to be determined by the taxing master.

7. The travelling and reasonable and necessary accommodation expenses of the witnesses and expert witnesses of the [landowner defendants’] to attend the trial of the matter.

8. The qualifying fees and expenses of the expert witnesses Dr Whelan, Mr van Jaarsveld and Mr Schoeman, such costs to include the costs of visiting the various archives, copying of discovered documents, the inspections in loco conducted by them, the consultations by them with the [landowners] to obtain relevant information and documentation to compile their reports; the drafting of the report and the consultation time with the [landowner defendants’] two counsel and attorney, and the attendance fees for the trial;

9. All costs of preparing maps and the obtaining of all aerial photographs, the preparation of all electronic files and the making of copies thereof for the trial.

10. All costs incurred by the [landowners’] attorney and correspondent attorney in Randburg in preparation, collating, copying, indexing and pagination of all bundles of documents, including files numbered 1 to 15F; the exhibit files, maps and photographs, transcripts of court proceedings and making copies thereof as well as indexing and pagination of the Court bundles and files (inclusive of lever arch files), (the latter costs and expenses of which were the responsibility of the plaintiff’s attorneys).’

[2] Nchabeleng v Phasha [1997] 4 All SA 158 (LCC) at para 6 to 18.

[3] [1975] UKHL 1; [1975] 1 All ER 504 (HL).

[4] [2003] ZALCC 21 at page 14.

[5] Bills of Costs (Pty) Ltd v The Registrar Cape 1979 (3) SA 925 (A); [1979] 4 All SA 585 (A (Bills of Costs); Nedperm Bank Ltd v Desbie (Pty) Ltd 1995 (2) SA 711 (W) 712G; Berman and Fialkov v Lumb 2003 (2) SA 674 (C) 681H.

[6] Bills of Costs, supra.

[7] Sheriff of Pretoria North East v SA Taxi Development Finance and Others [2023] ZAGPJHC 346.

[8] 1991(3) SA 216 (D) at 218D-F.

[9] 1972(1) SA 749(C) at 750F-G.

[10] 2012(4) SA 127 (ECG) at 133A-B.

[11] Van Wyk v Unitas Hospital and another (Open Democratic Advice Centre as Amicus Curiae) 2008(2) SA 472 (CC).

[12] Swissborough Diamond Mines (Pty) Ltd .& others v Government of the Republic of South Africa & others 1999 (2) SA 279 (T) at 324G, applied by the Constitutional Court in Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR 763 (CC) at para 35 fn 35.

[13] 2009(6) SA 232 (CC).