National Director of Public Prosecutions v Tam and Others (2002/15441) [2006] ZAGPHC 59 (7 June 2006)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 2002/15441

In the matter between:

THE NATIONAL DIRECTOR

OF PUBLIC PROSECUTIONS Applicant

and

MING CLEMENT TAM Defendant

CASTAM IMPORT AND EXPORT First Respondent

CHIENG SU TAM Second Respondent

J U D G M E N T

HUSSAIN, J:

This is a review in terms of Rule 48 of the Uniform Rules of the High Court as amended.

Introduction

[1] The applicant obtained an ex parte order against the defendant and first and second respondents. The order was granted in terms of section 26(1) read with section 74(1)(a) of the Prevention of Organised Crimes Act No. 121 of 1998 (hereinafter referred to as “the Act”). The order was executed by the applicant and an attachment was carried out of the defendant’s and respondents’ assets. The defendant opposed the application and filed an answering affidavit. The matter was heard by Gildenhuys J who discharged the provisional order that was obtained by the applicant. In doing so Gildenhuys J ordered the applicant to pay “the defendant’s and respondents’ costs, including the costs of two counsel, taxed as between party and party”. The defendant, through his attorney, submitted the appropriate bill of costs for taxation. (Hereinafter any reference to defendant, must be read to include the first and second respondents.)

[2] Taxation of the bill took place before the Taxing Master of the High Court. After taxation the defendant was dissatisfied with certain rulings made by the Taxing Master. Consequently the defendant requested the Taxing Master to prepare and file a stated case in terms of Rule 48(1) of the High Court Rules. The Taxing Master presented such a stated case and the applicant and defendant responded to it. The papers were then presented to me in chambers for purposes of reviewing the Taxing Master’s decision.

I must state at the outset that, having read the papers, I decided that it was not necessary to hear the parties in chambers nor did I believe that it was necessary to refer the matter to court for argument. I decided to deal with the matter on the papers as they appear in the court file.

The issues

[3] The Taxing Master disallowed certain costs which the defendant believes was wrong. These costs, for purposes of this judgment, may be conveniently separated into two categories. In the first category costs were disallowed which pertained to the attendance of an attorney at the home of the defendant during seizure of property by applicant’s agents namely the Assets Forfeiture Unit. These costs are dealt with in items 8 and 12 of the bill of costs. The second category relates to costs attendant upon consultations held with counsel and witnesses for the purpose of “preparation and drafting” of the answering affidavit. These items, which were disallowed, appear as items 11, 15, 36, 41, 42, 44, 46, 48 and 62 in the bill of costs under taxation.

[4] In respect of the first category, item 8 reads as follow:

“3 September 02 Attending at client’s home during seizure of assets 9½ hours - R3 800,00.”

Item 12 provides:

“Further attendance at client’s home during continued seizure 6 hours – R2 400,00. ”

The Taxing Master disallowed these claims on the basis that they comprise attorney and own client costs. The second category is in respect of items 11, 15, 36, 41, 42, 44, 46, 48 and 62 of the bill of costs. All of these items relate to consultations with the defendant, counsel and witnesses. According to the bill of costs these items total 50 hours and 15 minutes of consultations with counsel, senior and junior, for the purpose of either “drafting” or settling affidavits. The Taxing Master, in his discretion, found that the number of hours billed was in all the circumstances excessive and only allowed for ten hours of consultation.

I will now deal with each of these categories:

The fist category (items 8 and 12 )

[5] During seizure, pursuant to obtaining an order, the defendant requested the presence of his attorney. It appears that the applicant’s agents conducted seizure of defendant’s property over two days namely 3 September 2002 and 4 September 2002, the total time spent was 15 and a half hours. The defendant claimed the fees for his attorney’s attendance as a party and party cost. The applicant objected to these items in the bill of costs on the basis that it was unnecessary and/or overcautious for the defendant to have his attorney present during the seizure. The defendant’s response to this is to point out that he had a right, in terms of the court order obtained by the applicant in terms of section 26 of the Act, to have an attorney present during seizure. Further, the defendant points out that the whole process of seizure involved discussions with the curator as to which items were subject to seizure and which were not. Seizure also involved preparing inventories of items seized, checking and rechecking of items seized as against inventories before loading for purposes of transport. This is not in dispute. Further, the applicant does not dispute that the seizure happened over two days and took a total of 15,5 hours.

[6] The applicant is given authorisation by the Act to obtain an order to seize and remove the movable assets of a person. In addition, in certain circumstances, the applicant may bring the application ex parte i.e. without giving notice to the respondent or defendant. This is very powerful weapon in the hands of the applicant which the legislature deemed necessary to enable the applicant, in the interests of society generally, to fight crime efficiently. The obtaining and execution of an order in terms of section 26 of the Act can have serious consequences for the defendant. Thus our courts, in granting these orders, are constantly alive to the fact that the provisions of the Act can be abused. Our courts in addition consider that steps, where possible, should be taken to prevent unnecessary harm to the defendants in such applications. To this end our courts have developed certain safeguards which are built into the order granted in favour of the applicant. In this Division it has become a practice that upon granting an order for seizure provision is made for the defendant’s or respondents’ attorney to be present. In the order granted in this case the following is included as “safeguards”:

“1.6.1 Before any search or seizure takes place, the defendant or third party whose premises are to be searched, or from whose possession property is to be seized, shall be afforded as reasonable opportunity, under the surveillance of the curator and/or any member of the SAPS who may be present, to summon a legal representative to be present during the search and seizure. ”

And:

“1.7 A detailed inventory of all property surrendered by any person in accordance with paragraph 1.4, or seized in terms of paragraph 1.5 or 1.6, must be prepared by the curator at the time of the surrender or the seizure. The person from whose possession the property is taken, or his legal representative, must be afforded an opportunity to check the inventory and either to sign it as correct or to note any alleged inaccuracy on it. A copy of the inventory must be left with the person from whose possession any property is taken.” (my emphasis)

These safeguards are in keeping with the spirit of our Constitution.

[7] On the facts before me the defendant called for his attorney who was present during the search and seizure. The attorney was present when inventories were prepared and checked before removal. The defendant was entitled, by order of court, to enjoy the assistance and the presence of his attorney during the execution of the order. One must not lose sight of the fact that the order was obtained against the defendant ex parte. This is all the more reason why the defendant should have his legal representative present during the execution of the order.

Accordingly, in my opinion the cost of having an attorney present cannot be regarded as unnecessary, overcautious or extravagant. I find that such cost, that is cost attendant upon the presence of an attorney during seizure, must be regarded as party and party costs and not attorney and own client costs. I accordingly find that the Taxing Master erred in treating items 8 and 12 as attorney and own client costs.

[8] The applicant further complained that the claim was excessive insofar as it relates to time. In items 8 and 12 the defendant claimed for a total of 15,5 hours over a period of two days during which time the attorney was present. The parties do not dispute that the attorney actually spent 15,5 hours at the defendant’s premises during seizure. For purposes of this judgment I will accept that the attorney spent 15,5 hours during seizure. On the face of it it does appear to me that 15,5 hours over a period of two days is excessive. However, I have to accept the defendant’s submission that the number of hours the whole process took was effectively within the control of the applicant’s agents. On the facts before me I am certain that the seizure, including the preparation of inventories, could have been completed in substantially less time. Perhaps this is a lesson for the applicant. The applicant should ensure that his agents act systematically and efficiently and thus save costs. If any delays are caused by the defendant, example through failure to cooperate, or by the defendant’s attorney, this must be noted and presented to the Taxing Master. Accordingly I find that the Taxing Master’s ruling that items 8 and 12 of the bill of costs be disallowed is reviewed and set aside. The Taxing Master is functus officio in this matter and no purpose will be served in referring the matter back to him. The defendant claimed an amount of R400,00 per hour for his attorney’s presence, this falls within the amount taxable on a party and party scale.

The second category (items 11, 15, 36, 41, 42, 44, 46, 48 and 62)

[9] The defendant’s complaint is that the Taxing Master exercised his discretion in an improper manner in disallowing 40 hours of consultation. The defendant submits that the time was spent in consultation “drafting” and settling the defendant’s answer affidavit. The defendant further submits that the total of 50 hours 15 minutes was reasonable and necessary in all the circumstances. The defendant’s case is that the matter was complicated and the papers were voluminous. The defendant also drew attention to the fact that the matter involved two separate criminal cases having multiple charges. For this reason the hours claimed for consultation were justifiable on a party and party scale. The applicant and the Taxing Master disagreed. The Taxing Master approached the matter on the basis that a distinction must be drawn between costs attendant upon an attorney drafting an answering affidavit and costs attendant upon counsel settling answering affidavits (my emphasis). The Taxing Master, in my view, cannot be faulted in making this distinction. See Aloes Executive Cars (Pty) Ltd v Motorland (Pty) Ltd and Others 1990 (4) SA 587 (T). In this case Van Dijkhorst J pointed out that it was not the function of counsel to draft affidavits. An attorney is expected to draft affidavits and to present them to counsel for settling. I agree with the learned judge when he warned that attorneys who relegate their role to a mere carrier of a brief will risk losing costs upon taxation.

[10] I conducted a detailed analysis of the bill of costs herein and the following relevant observations emerged:

In item 9 of the bill the defendant’s attorney claimed “Drawing answering affidavit 39 p – R3 900,00”. This item is a claim, I assume, for drafting of the answering affidavit by the attorney. This item was allowed by the Taxing Master. The point of interest is that nowhere else in the bill does the attorney claim a fee for drafting of the answering affidavit. This means that an affidavit which took the attorney just over 9 and a half hours to draft took over 50 hours of consultation with counsel to settle. This does not make sense.

Items 14, 25, 26, 34, 35 and 53 are charges in respect of consulting all of which relate either directly or indirectly to the preparation of the answering affidavit. These items total 13 hours all of which was allowed by the Taxing Master. Over and above this the defendant’s attorney claims a further 50 hours and 15 minutes in respect of consulting for purposes of settling the answering affidavit.

Item 105 sets out senior counsel’s charges. Senior counsel charged for a total of 15 hours for consultations; 11 and a half hours for settling the answering affidavit and 7 hours for “interviews”. It is not clear to me if the “interviews” were for the purpose of settling the answering affidavit. I must assume it was not. On what is before me I cannot assume that the 11 and a half hours claimed for settling the answering affidavit included consultation time. In fact it is more likely that it did not include consultation time. The point to be made here is that at the highest counsel consulted for 22 hours (that is including “interviews”), for purposes of settling the answering affidavit. I must also assume that junior counsel was present during these consultations. How the attorney can claim 50 hours for consultations and settling the answering affidavit is unexplained. This too does not make any sense.

Junior counsel’s account is unhelpful. Item 106 deals with junior counsel’s charges. Junior counsel merely charged a globular amount of R25 000,00. There is no indication as to how this is made up.

Items 11, 15, 25, 41, 42 and 44 are for consultations with counsel and I was able to find the corresponding items in counsel’s account, see item 105. In item 48 the defendant’s attorney claims “8 October 2002 to 1 November 2002 Attending in consultations with junior and senior counsel, client and curator and J Poon further settling aspects of the answering affidavit 27 hours 45 minutes – R11 100,00”. I could find no corresponding charges in senior counsel’s account for this item. This is unexplained.

[11] The defendant’s attorney justifies 50 hours of consultation on the basis that the matter is complicated and involves voluminous papers. The court record was presented to me and I read the papers. There is certainly volume as the papers occupy one lever arch file and there are just over 500 pages. However, the matter is not particularly complicated and involved. One cannot equate volume with complexity. The issues facing the defendant were fairly straightforward and do not involve complex issues of fact and law. The issues involve the illegal export of abalone, certain customs and excise infringements as well as income tax avoidance. Again I can find no justification for spending a total of 63 hours in consultation (i.e. the 13 hours allowed plus the 50 hours disallowed) for settling the answering affidavit.

[12] I accordingly came to the conclusion that the defendant’s attorney’s claim for 50 hours of consultation, over and above what was allowed, is excessive in a party and party bill of costs. In respect of the 50 hours of consultation the Taxing Master allowed the costs for 10 hours. How the Taxing Master arrived at this figure is not clear. It appears to be a mere estimate within the exercise of the Taxing Master’s discretion. For purposes of this judgment I will accept that consultations took place with counsel as set out in senior counsel’s account. I would therefore accept that the defendant’s attorney consulted with counsel for purposes of settling the answering affidavit for a period of 22 hours. Therefore I found that the defendant’s attorney be allowed a further 12 hours i.e. over and above the 10 hours allowed by the Taxing Master. I accordingly disallow the claim for 28 hours of consultation (i.e. 28 hours out of 50 hours and 15 minutes).

I accordingly make the following order:

In respect of items 8 and 12, the Taxing Master’s ruling is reviewed and set aside. The defendant is allowed both items in the amount of R3 800,00 and R2 400,00 respectively.

In respect of items 11, 15, 36, 41, 42, 44, 46, 48 and 62, the defendant is allowed a further 12 hours for consultations at the rate of R400,00 per hour. The remaining 28 hours claimed is disallowed.

Each party is to bear their own costs.

_________________________

I HUSSAIN

JUDGE OF THE HIGH COURT

FOR THE APPLICANT THE STATE ATTORNEY

FOR THE DEFENDANT H MILLER ACKERMANN AND

BRONSTEIN

DATE OF JUDGMENT: 7 JUNE 2006