Olgar v Minister of Safety and Security and Another (586/2012) [2012] ZAECGHC 8; 2012 (4) SA 127 (ECG) (20 February 2012)

11

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case no: 586/2012

Date heard: 20 February 2012

Date delivered:

In the matter between

SULEMAN AHMED OLGAR …..................................................................Applicant

vs

MINISTER OF SAFE & SECURITY …..........................................First Respondent

THE SHERIFF OF THE HIGH COURT:

EASTERN CAPE: QUEENSTOWN ….....................................Second Respondent

JUDGMENT

PICKERING J:

Applicant has launched an application as a matter of urgency seeking, inter alia, the following relief:

“2.1 That the warrant of execution issued by this Honourable Court on 20 September 2011, attaching applicant’s property, be and is hereby stayed pending the finalisation of the review application launched in terms of Rule 48(2) of the Uniform Rules of the Court.”

During 2007 the applicant instituted action against the first respondent in the High Court, Grahamstown, claiming damages for unlawful arrest, unlawful detention and malicious prosecution. After a trial of some days judgment was handed down by the Court a quo on 18 December 2008. Applicant’s claims in respect of the unlawful arrest and detention were upheld and applicant was awarded damages in the sum of R55 000,00. The first respondent was ordered to pay applicant’s costs relating to these two claims on the Magistrate’s Court scale. Applicant’s claim in respect of malicious prosecution was dismissed and applicant was in turn ordered to pay first respondent’s costs relating thereto on the High Court scale.

On 21 January 2009 applicant’s attorneys wrote to the State Attorney, who was representing first respondent, in the following

terms:

“We address you regarding the aspect of costs. In our view the evidence led to prove the claim for the arrest and detention would be the same as for the claim for the malicious prosecution. It would be practically impossible, in fact a nightmare to assess the times spent on each respective claim in order to determine the proportion of fees to be allocated to either claim. We therefore propose that the costs order obtained by either party be abandoned i.e. neither party enforce against the other the order for costs.” (Annexure SA01)

This proposal was rejected out of hand by the State Attorney. (Annexure SA02).

On 27 May 2009 the State Attorney wrote to applicant’s attorneys suggesting that “as costs orders were awarded in favour of both the plaintiff and the defendant it will be best if the respective bills are taxed and preferably taxed simultaneously.” The State Attorney suggested also that a date be arranged for such joint taxation. (Annexure SA04).

There appears to have been no response to this letter.

Nearly a year later, on 12 April 2010 the State Attorney gave notice of its intention to tax its bill of costs in respect of the claim for malicious prosecution. (Annexure SA05). In response, on 22 April 2010 applicant’s attorney wrote to Attorneys Wheeldon Rushmere and Cole, the State Attorney’s correspondents in Grahamstown, stating, inter alia, as follows:

“As you know this matter is extremely complex. It is almost impossible to ascertain what charges are to be attributable to malicious

prosecution and what charges are in respect of unlawful arrest. In an attempt to expedite the matter in a manner which is fair to both plaintiff and defendant, we propose that the plaintiff be liable for 20% of the costs of the defendant as per the bill and the defendant compensate the plaintiff as per the bill which will be served on your offices shortly. It is common cause that the onus on the plaintiff in respect of malicious prosecution is far more onerous and will therefore require less preparation on behalf of the defendant. Additionally the evidence led to prove the claim for arrest and detention is the same as that led for malicious prosecution and as such most preparation will be in respect of arrest and detention and malicious prosecution would necessarily flow from this.” (Annexure SA07)

This letter was followed on 28 April 2010 by applicant’s notice of intention to tax its bill of costs in respect of the claims on which it was successful. (SA06). It appears to be common cause that this bill, in the amount of R32 035,12, has still not been taxed.

On 12 May 2010 Mr. Huxtable of Wheeldon Rushmere and Cole, addressed the following letter to applicant’s attorneys:

“What we suggest is, you tax your full bill, we tax our full bill and then we set the one off against the other and whoever owes anyone the balance pays the balance. We do not believe it is as complex as you try and make out, in fact, it is quite simple. Your client brought us to Court for malicious prosecution, did not prove one ounce of evidence with regard to that claim and we are entitled to tax a bill without apportionment in that regard.” (SA08)

Thereafter on 21 May 2010, first respondent’s attorneys gave notice of its opposition to plaintiff’s bill of costs. (SA09). On the same day first respondent’s attorneys wrote to the Registrar of the High Court stating as follows:

“We attach hereto our notice of intention to tax a bill of costs which was served on Merss. Dullabhs on the 12 April 2010 and filed with ourselves on the same day. The 20 day period has expired, it expired on the 11 May, despite this no Notice of Opposition has been received. Could you please tax in the bill in the absence of the plaintiff and then return the bill to ourselves.” (sic)

A week later on 28 May 2010, however, a notice of opposition to the taxation of the defendant’s bill of costs was served on first respondent’s attorneys. (SA010). In this notice of opposition applicant’s attorneys emphasised “that as the same cause of action gave rise to different claims, the preparation for both claims are done simultaneously. In effect the majority of the defendant’s preparation was done for the unlawful arrest and detention... In light of the above the plaintiff objects to the entire bill as all of the items fall in the realm of the claim of unlawful arrest and detention, alternatively that they are so intricately linked to the claim for unlawful arrest and detention that it is impossible to decide in respect of which claim the items have been incurred.”

On 25 June 2010 first respondent’s attorney wrote to applicant’s attorney as follows:

“Your opposition to our Bill of Costs was received out of time. We do not condone it and before you even filed your objections we sent our bill to the Registrar to be taxed in your absence, we await return of same.” (SA011)

Thereafter on 18th August 2010 first respondent’s attorneys filed a Notice in terms of Rule 70(4) in the following terms:

“The Taxing Mistress is requested to allocate a date for the taxation of the bills of costs in this matter. Annexed hereto is the plaintiff’s (sic) notice of taxation dated 23 April 2010. Defendant (sic) has failed to deliver written Notice of Opposition to the said taxation within 20 days as provided in Rule 70(3B)(b).” (Annexure SA013).

On 19 August 2010 applicant’s attorneys wrote to first respondent’s attorneys stating, inter alia,:

“We have received your Notice in terms of Rule 70(4) requesting the taxing mistress to allocate a date. We do not agree that we have not delivered our Notice of Objection and we have informed the Registrar that we intend opposing your bill.”

It is common cause that the first respondent’s bill of costs was thereafter taxed during September 2010 by the Taxing Master in the absence of any appearance on behalf of applicant and that an amount of R87 860,58 was allowed. In this regard it appears that applicant’s attorneys were never informed as to the time and place of the taxation. On 25 October 2010, applicant’s

attorneys filed a Review of Taxation in terms of Rule 48(2) calling upon the taxing master to state a case for decision of a Judge in terms of Rule 48(1) in respect of first respondent’s attorneys entire bill of costs, alleging, inter alia, that the taxing master had failed to take into consideration the applicant’s notice of opposition to the taxation dated 28 May 2010. It does not appear from the papers what action if any applicant’s attorneys thereafter took in pursuance of this review. It does not appear, in particular, that applicant’s attorneys made any effort to obtain a stated case from the Registrar. In this regard, however, Mr. Huxtable, who deposed to the answering affidavit on behalf of first respondent, stated that “I admit that to date no stated case has been received by the Registrar, none is going to be forthcoming. The applicant adopted the incorrect procedure when he reviewed the Registrar’s taxation, he should have brought an application to have the allocatur set aside. This is the Registrar’s opinion as well.”

There the matter lay, until, on 8 February 2012, the Sheriff arrived at applicant’s premises with the writ of execution (Annexure

SA015) referred to above in paragraph 2.1 of the Notice of Motion. This gave rise to the present application.

The provisions of Rule 70 are relevant to the present matter. Rule 70(3B)(b) provides as follows:

“Prior to enrolling a matter for taxation, the party who has been awarded an order for costs shall, by notice as near as may be in accordance with Form 26 of the First Schedule –

(b) require the party to whom notice is given, to deliver to the party giving notice within twenty (20) days, a written notice of

opposition, specifying the items on the bill of costs objected to, and a brief summary of the reason for such objection.”

Rule 70(4)(b) provides as follows:

“The taxing master shall not proceed to the taxation of any bill of costs unless he or she is satisfied that the party liable to pay the same has –

Received due notice in terms of sub Rule (3B); and

Received due notice as to the time and place of such taxation and notice that he or she is entitled to be present thereat; Provided

that such notice shall not be necessary –

...

If the party liable to pay costs failed to give notice of intention to oppose in terms of subrule (3B); or

...

Provided further that, if any party fails to appear after having given notice of opposition in terms of subrule (3B)(b), the taxation

may proceed in their absence.”

Mr. De la Harpe, who appeared on behalf of first respondent, submitted that the application fell to be dismissed on the basis firstly, that whatever urgency existed was created by applicant’s own extreme dilatoriness and, secondly, that the procedure adopted by applicant in applying for a Review of Taxation under Rule 48(2) was erroneous.

As to urgency there is considerable merit in the submission that applicant has been dilatory in his conduct leading up to this

application. This dilatoriness is probably explicable in the light of the proposals made by applicant’s attorneys to the effect that each party should abandon their costs orders and also of applicant’s statement that the matter seemed to have died a natural death. Clearly, applicant was hopeful that such was indeed the case and that the first respondent had lost interest in pursuing its costs. That hope was also, in all probability, engendered by first respondent’s own dilatoriness in taking action to recover its costs. It certainly does not appear for its part to have acted with any great expedition in doing so.

According to Mr. Huxtable, demand was made for payment of the taxed costs as far back as 30 September 2010. More than a year passed,

however, before, on 26 October 2011, a letter was written by Mr. Huxtable to applicant’s attorneys advising that first respondent was intending to execute against applicant’s property to recover its costs. The writ of execution, although issued on 20 September 2011, was, however, eventually only served on applicant on 8 February 2012. There is no explanation from first respondent as to why these delays occurred. Be that as it may, there is no doubt that once the writ was served applicant wasted no time in

launching this application. In my view therefore, where both parties have been dilatory, the application should not be dismissed for lack of urgency.

I turn then to consider the second point raised by Mr. De la Harpe namely, that in seeking a review of the rulings of the Taxing Master the applicant has adopted the incorrect procedure. This submission is, in my view, clearly correct.

Nowhere in the papers before me does it appear that the applicant’s Notice of Opposition was ever brought to the attention of the Taxing Master, despite the letter by applicant’s attorneys to first respondent’s attorneys on 19 August 2010 to the effect that they had informed the Registrar that they intended to oppose the bill. (Annexure SA012). Furthermore, the Taxing Master would have had before him the first respondent’s notice in terms of Rule 70(4) in which he was advised that no Notice of Opposition had been delivered “within 20 days as provided in Rule 70(3B)(b)”. (Annexure SA)13). This statement although literally correct, was unfortunately misleading in that it would not necessarily have conveyed to the Taxing Master that a notice of opposition had been delivered, albeit out of time. Whatever the position may be, however, it is clear in any event that the Taxing Master had no power himself to condone the late filing of the Notice of Opposition. See Brivik Bros (Pty) Ltd v Balmoral Sales Corporation (Pty) Ltd 1978 (4) SA 716 (W) at 718 C.

Such being the case and where there was further no appearance for the applicant, he would obviously have proceeded to tax first

respondent’s bill on the basis that it was unopposed. The matter of Daywine Properties (Pty) Ltd v Murphy and Another 1991 (3) SA 216 (D) is relevant in this regard. At 218 (E) Broome J stated as follows at 218 E – F:

“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.”

I agree.

In Mohamed v Mohamed 1999 (1) SA 1150 (E) the plaintiff sought a review of certain rulings of the Taxing Master, inter alia, disallowing items in his bill of costs. The application was out of time in terms of Rule 48(1) and (2) and the plaintiff applied at the same time for condonation in respect of his non-compliance. Erasmus J pointed out that the remedy available to a party who is out of time with a procedural step is contained in Rule 27(1). He held, after a comparison of the provisions of Rule 27 and Rule 48 that the competency of a Judge under Rule 48 did not extend beyond reviewing the taxation and that the Judge could not in that capacity entertain an application on motion in terms of Rule 27(1).

The matter of Gründer v Gründer en Andere 1990 (4) SA 680 (C) is also relevant. The English head note of the case at 680 J – 681 B correctly reflects what was stated in the judgment,

namely:

“The Taxing Master’s allocatur is a quasi-judicial administrative act: he must hear parties or their legal representatives (and if need be also evidence) and exercise a judicial discretion. Inasmuch as proceedings before the Taxing Master constitute an action in miniature, common law principles applicable to the setting aside of default judgments apply also to the setting aside of the Taxing Master’s allocatur. An order as to costs cannot be enforced without the Taxing Master’s quantification

thereof, and a quantification done in the absence of one of the litigants ought to be open to challenge on the same basis as are

default judgments.”

See too: Barnard v Taxing Master of the High Court of South Africa (TPD) and Others [2005] 2 All SA 485 (T).

Having regard to these authorities the proposed review of taxation under Rule 48(2) could, in my view, never succeed. The applicant

should instead have instituted proceedings for an order setting aside the taxation.

First respondent is, however, himself not blameless. In my view, he was not entitled to ignore the belated Notice of Opposition and to treat it as a nullity but should have brought an application in terms of Rule 30 to set it aside.

Rule 30(1) provides:

“A party to a cause in which an irregular step has been taken by any other party may apply to Court to set it aside.”

Prior to the amendment of Rule 30(1) in 1987 the phrase “any cause” was used. See Erasmus: Superior Court Practice at B1 – 189. In Participation Bond Nominees (Pty) Ltd v Mouton (3) 1978 (4) SA 598 (W) Gordon AJ (as he then was) stated as follows at 515 D – E:

“In my view, the words ‘any cause’ are used in the widest possible sense and refer to any judicial proceeding of whatsoever nature (see Steytler N.O. v Fitzgerald 1911 AD 295 at 331).”

The submission is made in Erasmus, supra, at B1 – 189 that the phrase “a cause” in the present subrule has a similar wide meaning. This submission is, in my view, with respect to the learned authors, clearly correct.

In my view, having regard to the wide meaning of “a cause”, the late filing of the Notice of Opposition was an irregular proceeding within the meaning of Rule 30(1). See in this regard

Brenners’ Service Station and Garage (Pty) Ltd v Milne and Another 1983 (4) SA 233 (N). In that matter an application was made to set aside the taxation of a bill of costs as an irregular and improper proceeding in terms of Rule 30(1) of the Uniform Rules of Court. It was argued on behalf of the respondents that taxation was not a “proceeding” within the meaning of Rule 30(1). Leveson AJ (as he then was) rejected this submission and stated further as follows at 237A:

“I would only add that, having regard to the fact that historically taxation was initially the function of the Courts themselves and is now delegated to its officers, the function, if irregularly performed, is an irregular proceeding within the meaning of Rule 30(1).”

In Swart v Flugel 1978 (3) SA 265 (E) Addleson J held that where a request for further particulars for purposes of pleading to a summons was out of time it was irregular and the plaintiff was entitled to ignore it and to proceed to demand the defendant’s plea and, in default thereof, to apply for default judgment. In my view, the matter is clearly distinguishable from the present case dealing as it does with requests for further particulars for the purpose of pleading which were in any event abolished with effect from 1 January 1988. In coming to his conclusion, however, the learned Judge referred with approval to the matter of KDL Motorcycles (Pty) Ltd v Pretorius Motors 1972 (1) SA 505 (O) where it was held that a plaintiff confronted with an irregular entry of appearance was not obliged to apply to set it aside as an irregular proceeding before applying for default judgment.

The learned Judge made no reference, however, to Paterson N.O. v Standard Bank of South Africa Ltd 1967 (4) SA 524 (E) where Jennett JP followed the decision in the matter of Gibson and Jones (Pty) Ltd v Smith 1952 (4) SA 87 (T) and came to the conclusion that the late delivery of notice of intention to defend was an irregular proceeding which the plaintiff was not entitled to treat as a nullity. See too: Theron v Coetzee 1970 (4) SA 37 (T). In Oostelike Transvaalse Kooperasie Bpk v Aurora Boerdery en Andere 1979 (1) SA 521 (T), Grosskopf AJ (as he then was) disapproved of both KDL Motorcycles supra and Swart v Flugel supra and held that a plaintiff is not entitled simply to ignore the late delivery by a defendant of his notice of intention to defend and without more to bring an application for default judgment. The correct procedure, so the learned Judge held, was first to set

aside the irregular proceedings.

The situation in the present case is analogous thereto. The late filing of applicant’s Notice of Objection to the taxation was an irregular step. Although applicant himself did not seek condonation in respect of such late filing the first respondent for its part could not, in my view, simply ignore the Notice but should have brought an application to set it aside as an irregular

proceeding.

It is in any event difficult to understand why the first respondent should have been so reluctant to condone the late filing of the Notice. First respondent was not prejudiced thereby – his Rule 70(4) notice was only filed nearly two months after such refusal. It would surely have been in the interests of both parties to have dealt with the merits of the taxation as opposed to indulging in attritional litigation.

I should add also that in my view this was a matter where submissions from applicant’s attorney would obviously have been of considerable assistance to the Taxing Master. I have had regard to the judgment of the learned Judge in the trial court and I do not believe that the matter is as simple as first respondent would have it. It would not be appropriate to say more.

Be that as it may, having regard to what is set out above, the application in its present form cannot succeed. I am obliged to

state, however, that it is to be hoped that the parties will hereafter be able to resolve the matter and that thereby the need for further wasteful litigation will be avoided.

I turn then to the issue of costs. Although the application must be dismissed the first respondent, as I have said, is not blameless. In my view, in the exercise of my discretion and taking into account all the circumstances of the matter each party should pay their own costs.

Accordingly the following order will issue:

The application is dismissed.

Each party shall bear their own costs.

____________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing on behalf of Applicant: Adv. S. Cole

Instructed by Dullabh Attorneys: Ms. Bosman

Appearing on behalf of Respondent: Adv. De la Harpe

Instructed by Wheeldon Rushmere and Cole: Mr. Huxtable