Penwill v Penwill NO and Others (CCT 91/18) [2020] ZACC 17; 2020 (12) BCLR 1419 (CC) (21 July 2020)

Penwill v Penwill NO and Others (CCT 91/18) [2020] ZACC 17; 2020 (12) BCLR 1419 (CC) (21 July 2020)

The Constitutional Court found that the Taxing Master had misapplied the applicable tariff to item 23 of the bill of costs by using Part C 3(a) instead of the correct Part C 3(c), which applies to affidavits composed or corrected by counsel. The correct tariff was R12.00 per page, not R47.00, resulting in a reduction of the allowed amount from R1 504.00 to R384.00. The court held that the warrant of execution and notice of attachment, which were based on the incorrect taxation, must be set aside. For the other challenged items, the court found no basis to interfere with the Taxing Master's discretion, as the tariffs applied were either correct or to the applicant's benefit. The quantum of...

Citation
[2020] ZACC 17
Parties
Applicant: Andrew Donald Jonathan Penwill; Respondent: Richard Douglas Penwill N.O.; Respondent: Christopher Anthony Fraser McDonald N.O.; Respondent: Willem Francois Bouwer N.O.; Respondent: Master of the High Court of South Africa, Gauteng Local Division, Johannesburg; Respondent: Taxing Master of the Constitutional Court, Braamfontein; Respondent: Sheriff of the Court, Sandton South
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
21 July 2020
Case Number
CCT 91/18
Procedural Posture
Review Application / Review of Taxation of Costs Following Dismissal of Application for Leave to Appeal
Outcome
Application for review of taxation partially granted; warrant of execution and notice of attachment set aside; no order as to costs.
Judges
Mogoeng, Jafta, Khampepe, Madlanga, Majiedt, Mathopo, Mhlantla, Theron, Tshiqi, Victor
Legal Topics
Review of Taxation, Costs Awards, Application for Leave to Appeal, Warrant of Execution, Trust Dispute
Civil Procedure Constitutional Law Review of Taxation Costs Awards Application for Leave to Appeal Warrant of Execution Trust Dispute

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Andrew Donald Jonathan Penwill

Applicant

Richard Douglas Penwill N.O.

Respondent

Christopher Anthony Fraser McDonald N.O.

Respondent

Willem Francois Bouwer N.O.

Respondent

Master of the High Court of South Africa, Gauteng Local Division, Johannesburg

Respondent

Taxing Master of the Constitutional Court, Braamfontein

Respondent

Sheriff of the Court, Sandton South

Respondent

Procedural Posture

Review Application / Review of Taxation of Costs Following Dismissal of Application for Leave to Appeal

Legal Issues

  1. 1 Whether the Taxing Master applied the correct tariff to item 23 of the bill of costs.
  2. 2 Whether the warrant of execution and notice of attachment should be set aside following the review of taxation.
  3. 3 Whether the quantum of counsel's fees allowed by the Taxing Master was fair and reasonable.

Ratio Decidendi

The Constitutional Court found that the Taxing Master had misapplied the applicable tariff to item 23 of the bill of costs by using Part C 3(a) instead of the correct Part C 3(c), which applies to affidavits composed or corrected by counsel. The correct tariff was R12.00 per page, not R47.00, resulting in a reduction of the allowed amount from R1 504.00 to R384.00. The court held that the warrant of execution and notice of attachment, which were based on the incorrect taxation, must be set aside. For the other challenged items, the court found no basis to interfere with the Taxing Master's discretion, as the tariffs applied were either correct or to the applicant's benefit. The quantum of...

Court Disposition

Application for review of taxation partially granted; warrant of execution and notice of attachment set aside; no order as to costs.

Orders

  • The sum of R1 504.00 allowed at taxation in respect of item 23 of the bill of costs is set aside and substituted with the sum of R384.00.
  • The warrant of execution issued on 19 October 2018 in respect of the movable property of Mr Andrew Donald Jonathan Penwill is set aside.