Pillay and Another v Sewlal N.O and Others (163/2022) [2024] ZATC 8 (31 July 2024)

THE SUPREME COURT OF

APPEAL OF SOUTH AFRICA

JUDGMENT

Case no:163/2022

In the Rule 17 Review of Taxation between:

SUSILAN

DEVA PILLAY

FIRST

APPLICANT

PARVATHIE

PILLAY

SECOND

APPLICANT and

VARSHA SEWLAL N.O. (In her capacity as MASTER of the North Gauteng High Court, Pretoria)

FIRST

RESPONDENT

MICHAEL MABUELA N.O. (In his capacity as ASSISTANT MASTER of the North Gauteng High Court, Pretoria)

SECOND

RESPONDENT

PRASHANT MAHARAJ N.O. (In his capacity as EXECUTOR of the Estate of ANTHEA MAHARAJ, Master’s Reference number: 10279/15)

THIRD

RESPONDENT

Neutral citation: Pillay and Another v Sewlal N.O. and Others (Case no 163/2022)

Coram: MABINDLA-BOQWANA JA

Delivered: 31 July 2024

Summary: Review – taxation of bill of costs – whether the Taxing Master properly allowed fees for perusal by correspondent attorneys, in addition to those of the instruction attorneys – Certificate – Inspection of files – Court to only interfere when the Taxing Master is clearly wrong.

ORDER

The application is dismissed with no order as to costs.

Mabindla-Boqwana JA

[1] This is a review of taxation in terms of rule 17 of the Rules of the Supreme Court of Appeal (SCA Rules). The applicants lodged an application for special leave to appeal to this Court against a decision of the Gauteng Division of the High Court, Pretoria. The application was dismissed with costs on 14 February 2022 on the grounds that the requirements for special leave to appeal were not satisfied. The applicants then made an application to the President of this Court in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013. This application was also dismissed with costs for the reason that no exceptional circumstances warranted reconsideration or variation of the decision, refusing the application for leave to appeal.

[2] Two bills of costs were then presented for taxation by the respondent’s Bloemfontein correspondent attorneys, McIntyre van der Post Attorneys, for itself and its instructing attorneys, Barnard Incorporated Attorneys. The applicants were represented by Nene Attorneys Incorporated. The bills were taxed on 21 June 2023.

[3] The applicants apply for the review of the allucatur on the following basis. Firstly, that the Taxing Master ruled in writing that rule 70 of the Uniform Rules of Court was not applicable to the Supreme Court of Appeal (SCA). They state that the Taxing Master allowed without explanation or authority, the Certificate in terms of rule 70, attached to McIntyre van der Post Attorneys’ bill of costs, despite objection from the applicants that the said Certificate was in terms of rule 70, coupled with the fact that it had no full names of the signatory or the name of the attorneys.

[4] The applicants allege further that they requested legal authority from the Taxing Master, permitting her to allow perusal of fees by the respondent’s correspondent attorneys, despite the objection. According to the applicants, the Taxing Master stated that such authority would be given after the taxation. After the allocatur, the Taxing Master handed the applicants’ legal representative, in the corridor, a copy of a judgment, Carllo Andrias Gagiano v Carllo Andrias Gagiano Snr and Two Others (Gagiano), decided in the Free State Division of the High Court, case number 4860/07, as the case she relied on.

[5] The applicants submit that the Taxing Master’s sentiments were that rule 70 did not apply to the SCA. Furthermore, the authority the Taxing Master relied upon was a high court decision based on rule 48 of the Uniform Rules of Court. The applicants allege that their legal representative was unable to object to the case relied upon by the Taxing Master, as it was given after the taxation and after the allocatur was issued. They further submit that the parties in Gagiano were at least afforded an opportunity to inspect the files and/or documentation, while the applicants, in this case, were turned down by the Taxing Master when they made this request.

[6] The objection, the applicants raised pertained to the correspondent attorneys’ charging for perusal of documents in the same manner as attorneys of record. The relevant related to such perusal items were, items 7, 8, 15, 17, 25, 28, 29, 40, 41, 42, 49, 57, 58, 59 and 64.

[7] The applicants’ further objections were that they were not given an opportunity to inspect files and/or documents prior to the taxation. The reason given by the Taxing Master, being solely that the Uniform Rules were not applicable to the SCA. The Taxing Master confirmed that she had not seen the documentation from which taxation was based. When further queries were put to her by the applicants’ legal representative, the Taxing Master stated that she did not have to inspect or have sight of the files, documents and records prior to taxation.

[8] In her stated case, the Taxing Master notes the following. It was a long-standing practice of the SCA to adopt practice guidelines to assist practitioners to draw bills of costs on the tariffs as agreed upon by practitioners and the Taxing Master, in applying the party and party tariffs, promulgated in the Government Gazette Notice R1055 of 29 September 2017. These tariffs are applied nationwide and consistently when drawing bills of cost for the SCA. The applicable tariffs are stated in Government Notices R1055 dated 29 September 2017, Gazette number R1318 of 30 November 2018 and R858 of 7 August 2020.

[9] The Taxing Master denies that she made any written ruling that rule 70 was not applicable to the SCA. She states that she allowed the explanation given by the respondent’s correspondent attorney, Ms Van Greunen that she had drafted the bill of costs. Ms Van Greunen is an admitted attorney with right of appearance, there was no need for the bill of costs to be accompanied by a Certificate.

[10] The bill of costs for the instructing attorneys was drafted by Ms Van Greunen and she, in the presence of the Taxing Master as well as the applicants’ legal representative, confirmed that the bill of costs was in order and that the Certificate was duly signed and dated by the instructing attorney. Therefore, the rule 70 Certificate was accepted as such.

[11] As to the fees charged for perusal by the correspondent attorneys, the Taxing Master states that when they applicants’ legal representative objected to the fees being allowed, she asked her to furnish her with the reasons for the objection. The applicants’ legal representative indicated that she had not looked at the tariffs. The legal representative had neither contacted her opponent nor the Taxing Master to request the tariffs. It was clear that she was either not prepared or was not aware of the procedures relating to taxation at the SCA.

[12] As to providing the legal authority she relied on, after the taxation, the Taxing Master states that no objection was raised by the applicants’ legal representative, that she would provide the authority after taxation was done. On the issue of the applicants’ legal representatives not having been given an opportunity to inspect files and/or documentation prior to the taxation, the Taxing Master states that the SCA Rules do not specifically provide for this. There is, however, practice among Bloemfontein attorneys to allow inspection between correspondent attorneys to ensure that their files are the same and correspond with the court file. The applicants had correspondent attorneys. It was their duty to confirm with their instructing attorneys the documentation which had been served and filed and all other correspondence that had been made. The applicants’ instructing attorney could have contacted their correspondent attorney at any point to confirm the contents of the file. It is not the duty of the Taxing Master to ensure that there had been inspection of the files in support of the representation of the bill of costs, but rather that of the attorneys. Accordingly, the function of the Taxing Master is to decide:

‘… whether the services have been performed, whether the charges are reasonable or according to tariff, and whether disbursements properly allowable as between party and party have been made; his function is to determine the amount of the liability, assuming that liability

exists, and the fact that he requires to be satisfied that liability exists before he will tax does not show that there is any liability. The question of liability is one for the court, not for the Taxing Master.’[1]

[13] It is established that the Court will only interfere with the Taxing Master’s discretion on review, only when it is satisfied that he or she is clearly wrong, that is, when the Taxing Master’s view differs so materially with its own that it should be held to vitiate his or her ruling.[2]

[14] This Court’s unreported judgment of Timo Schambreel v Hendrika Maria Schambreel (Schambreel), case number 1362/2018, is apposite to this case. There, the applicant had objected to the allowance of fees charged by the Bloemfontein

correspondent attorneys, in addition to those of the instructing attorneys. The Court stated the following:

‘Attorneys instructed to seek or oppose leave to appeal from this court in respect of a judgment of another division of the High Court save for the Free State Division, invariably appoint Bloemfontein attorneys as their correspondents. That is established practice. The practice is, inter alia, necessitated by the definition of ‘lodging of documents with the registrar’ in rule 1(1). It provides that this means lodging of documents with the registrar through an attorney practi[s]ing in Bloemfontein or, if a party is not represented by an attorney, by registered post or by that party personally, after prior service of copies of such documents on any other party. The Bloemfontein attorneys thus bear the responsibility to ensure that the lodged documents comply with the rules. In addition, the registrar directs enquiries in respect of applications to the Bloemfontein attorneys and they are required to respond thereto, as also happened in this case. I daresay that these Bloemfontein attorneys are required to and do provide their correspondents with expert advice on the practice of this court.

In order to properly discharge these duties and to provide informed advice, the Bloemfontein attorneys should as a general rule, peruse the papers in an application for leave to appeal. Accordingly, I am of the view that the Taxing Master correctly allowed the perusal fees of Phatshoane Henney Incorporated, in addition to those of Karen Botha Attorneys.’

[15] As in Schambreel the Taxing Master in this case was entitled to allow the perusal fees of McIntyre Van der Post Attorneys, in addition to those of Barnard Incorporated Attorneys. That should also take care of the criticism that the Taxing Master relied on a judgment of the high court to allow for perusal fees of correspondent attorneys, which criticism was in any event unfounded, as well as that the Taxing Master gave the judgment to the applicants’ legal representative after the taxation had been finalised.

[16] In any event, parties must come to the taxation knowing exactly what the basis of the objections they would raise, would be. It appears from the record that the applicants’ legal representative was not familiar with taxation at the SCA and the tariffs applicable. Furthermore, the duty was upon them to have inspected copies of documents from which the bill of costs was sought to be taxed.

[17] It appears from the record that the notice of taxation was served on the applicants’ then correspondent attorneys, who had not filed a notice of withdrawal as attorneys of record and had accepted service of the notice on 2 June 2023. On 13 June 2023, the applicants’ instructing attorneys served a notice of opposition to taxation set down for 21 June 2023, on the basis that they were not allowed to inspect the files/documents and/or notices pertaining to an item of the bill of costs. They also wrote an email to the effect that they were not expecting the respondent to proceed with the taxation while an application they had brought to the Constitutional Court was still pending.

[18] The applicants’ legal representatives did not utilise the time before taxation to request inspection of documents, it appears that they simply went to taxation with a view to halt it from continuing, despite the fact that they were informed by the Taxing Master that it will proceed on that date. They went to taxation unprepared and did not demonstrate familiarity with the practice of taxation at the SCA.

[19] As regards the issue of the Certificate, the Taxing Master has given an explanation which I find no basis to interfere with, as the circumstances upon which I may do so are limited. I would grant no costs for this application.

[20] I, accordingly, make the following order:

1 The application is dismissed with no order as to costs.

N P MABINDLA-BOQWANA

JUDGE OF APPEAL

Written Submissions

For the applicant:

Nene Attorneys Inc., Durban

For the respondent:

Barnard Inc. Attorneys, Pretoria

McIntyre Van der Post Attorneys, Bloemfontein.

[1] Martins v Rand Share and Broking Finance Corporation (Pty) Ltd 1939 WLD 159 at 165.

[2] Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others 1984 (3) SA 15 (A) at 18F-G.