Smith and Others v MEC for Health - Mpumalanga (571/2017) [2021] ZAMPMHC 2; 2021 (6) SA 532 (ML) (3 February 2021)

IN THE HIGH COURT

OF SOUTH AFRICA

MPUMALANGA DIVISION LOCAL SEAT-MIDDELBURG)

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: YES

03 /02 /2021

CASE NUMBER 571/2017

SMITH

AND OTHERS

PLANTIFFS/APPLICANTS

AND

MEC FOR HEALTH-MPUMALANGA DEFENDANT/RESPONDENT

IN RE:

COLLINS

ATTORNEYS

And

TAXING MISTRESS- MIDDELBURG

JUDGMENT

LEGODI JP

Introduction

[1] A complaint that was formally lodged by Ms Collins of Collins Attorneys with the court manager (complaints officer) against the taxing mistress Ms Malambe in Middelburg local seat, and five other complaints informally lodged directly with and against the same taxing mistress in other five matters against the MEC for Health-Mpumalanga, became the subject of a referral by the said taxing mistress for a direction as contemplated in rule 70 (5A) (d) of the Uniform Rules of Court

[2] In terms of rule 70(5A) (d), where a party or his or her attorney or both misbehave at a taxation, taxing Master may:

(i) …

(ii) adjourn the taxation and refer it to a judge in chambers for directive with regard to the finalisation of the taxation; or

(iii) adjourn the taxation and submit a written report to a judge in chambers on the misbehaviour of the party or attorney or both with the view to obtain directions from the judge as to whether contempt of court proceedings would be appropriate.

[3] ‘At a taxation’ in the present circumstances was by way of numerous correspondence before and after the taxations in the five matters were enrolled to be attended to remotely by the taxing mistress seen in the context of the prevailing covd-19 pandemic. Subsequent to a formal complaint lodged with the Court Manager in the Smith matter, the Taxing Master was directed to respond by a particular date. Instead, the taxing mistress referred the matter to me for direction as contemplated in rule 70 (5A) (d). The taxing mistress contended that she had already dealt with the complaint. To this, I want to imagine was with reference to her mero motu discretionary powers which was disputed by Ms Collins and failure to file the bills of costs in the taxation drop box placed at the entrance of the court. I give more details later in this regard.

[4] At the onset, it is important to mention that in her letter dated 25 November 2020 sent to Ms Collins, the taxing mistress stated: “Kindly note that the taxing master is not bound to consider those items that are contested. As a decision maker, a taxing master is bound to check each and every item and not only to rubber stamp items which are not contested”.

[5] The statement quoted above was in response to Ms Collins email letter of 25 November 2020 in which she inter alia, stated: “Kindly note that we decline to set this matter down for physical taxation as you have suggested. Your contention that the bill is “too huge” is without merit. This documentation states clearly states that only 35 items remain contested. The balance of the 882 items have all been settled and do not require your consideration”. (My emphasis).

[6] What is quoted in paragraph [5] above was in response to the taxing mistress’ letter of 5 October 2020 in which she advised as follows regarding the taxation in the Smith matter which was enrolled for taxation on 7 May 2020: “Due to the size of the bill and the request for the ruling on several items including the junior counsel’s account, parties are requested to enrol the bill after the lockdown for physical appearance before the taxing master for submissions”.

[7] On 17 December 2020 and upon receipt of a request from the taxing mistress for direction, I directed Ms Collins to go back to the taxing master with the proposals or alternatives to physical appearance as such alternatives were never raised with the taxing mistress. Instead, they were raised for the first time in the complaint document sent on 10 December 2020 to the complaint officer. I had hoped that the dispute between Ms Collins and taxing mistress regarding physical appearance will easily be resolved. The alternatives included virtual taxation or written submissions on specified items by the taxing mistress. It also included the willingness on the part of the plaintiffs’ attorneys to set up a virtual connection.

[8] In the letter of 17 December 2020 to Ms Collins she was further advised that the taxing master was spot on with regard to her mero-motu discretionary powers as so articulately set out in her latter of 25 November 2020 quoted in paragraph [4]. As Ms Collins remains unconvinced in some respect, I find it necessary to deal in some details with the mero motu discretionary powers of the taxing master.

[9] I do so, because it is a worrying factor that Ms Collins and some of her colleagues including her tax consultants might wrongly be approaching taxation powers of the taxing masters not only in this division, but also in some other divisions. If that is so, it would amount to rubber stamping and is dangerous as it has the potential to encourage an abuse and defeat the essence in rule 70 read with rule 48 (1).

[10] This statement by Ms Collins to this effect is the basis for a concern: ‘I am of the opinion-along with a number of my colleagues, that once a settlement has been reached, the court or the taxing master cannot intervene to alter change the contractual items”. If that is a practice in the taxation process and strong view is so genuinely held, then, we should even be more concerned about the wide spread nature of the practice.

[11] Imagine the taxing mistress in the Smith case turning a blind eye on the 847 items of the 882. That would be dereliction of duty by the taxing mistress. And, it will encourage an abuse in the taxation process. It is for this reason that this judgment should be brought to the attention of the National OCJ to ensure that the taxing masters, perhaps nationwide are sensitised or trained on the taxation process to curb any kind of possible abuse in this regard.

[12] As I said, what I thought will lay to rest the complaint in Smith case, was not to be. On 17 December 2020 Ms Collins’s attention was specifically drawn to the mero motu provision sub-rule (1) of rule 48. However, Ms Collins disagreed and amongst others, expressed herself as follows:

“The Taxing Master is correct in that I am of the opinion- along with a number of my colleagues, that once a settlement has been reached, the court or Taxing Master cannot intervene to alter change the contractual terms.

I hold this belief based upon good legal authority being a very recent unreported Gauteng High Court decision by the Honourable Justice D Fisher in TM and MH v The Road Accident Fund given on 16 November 2020, and which dealt with this very same question. Upon conclusion of the arguments of counsel for the plaintiffs, the RAF, and two additional Amici – all of whom argued against the Honourable court oversight, the Presiding Officer found as follows:

“[131]… Notwithstanding this Court’s concerns, it cannot interfere with settlement but by review brought by an interested party. Such a review application is not before me”.

Ms Collins continued further and contended: “Respectfully I submit that it is difficult to believe that a Taxing Master, being a quasi-judicial officer- could find herself in a position where she has more profound legal powers of review and oversight than those of a Justice of the Supreme Court of South Africa.

It is my belief that the Act (sic) does give the Taxing Master the right to mero motu consider the reasonableness of items that may not be the subject of an objection but once the parties have contracted to settle all or certain of the items, such an agreement is sacrosanct…”

[13] It is as a result of this apparent strong view so held by Ms Collins that on 20 January 2021 I directed for further written heads of argument to be filed. She was requested to provide more authorities and at the same it was indicated to her that reliance on the judgment handed down on 16 November 2020 by Fisher J in the matter of TM and MH v Road Accident Fund in particular, paragraph [131] thereof was misplaced and has to be seen in context.

[14] Her contention as quoted in paragraph [12] above, is misplaced as FisherJ was not dealing with the mero motu discretionary powers of the taxing master. In any event, when the taxing master or mistress disallows an item that is objected to or when the taxing master mero motu disallows item that has been agreed upon, he or she does not exercise reviewing powers, but rather is acting almost like a court of first instance and its decision if challenged, would only then become the subject of review as contemplated in rule 48.

The taxing master mero motu discretionary powers

[15] I have now received such written heads of argument. I will proceed to give reasons for the direction or order as per paragraph [77] hereunder. As I give reasons for the direction, I will try as far as I can not to usurp the taxing master wide discretionary powers. At the conclusion of her written heads, Ms Collins states: “I acknowledge that the Taxing Master is empowered with wide discretionary powers which he or she may wield mero motu. In this, I

further acknowledge that I have erred in insisting that the Taxing Master is unconditionally barred in all circumstances from taxing

items that have become settled between the parties concerned. This blanket statement was clearly wrong and I offer my unreserved apology to this court.”

[16] Perhaps the “unreserved apology” must go to the taxing mistress. In my view, she was put under immense pressure as it would appear later herein. But one doubts whether the apology is unreserved because immediately after Ms Collins has tendered the “unreserved apology” as quoted above, she continued:

“However, that the Taxing Master’s powers are limited in circumstances where he/she seeks to alter contractual terms reached freely between parties. In particular, when both of the contracting parties resist variation of their agreement. I submit, that the Taxing Master’s discretionary power to alter such agreements may only find valid application in the most exceptional circumstances and should be well motivated so as to adhere to the mandates of section 36 of the Bill of Rights. Failure by the Taxing Master to do so must, respectfully, impugn the constitutional freedoms of both contracting parties and establish grounds of review.

Given the case law, I submit further, that the Taxing Master cannot justify alteration of the terms of an agreement merely by arguing that the relevant items do not adhere to the tariff contained in Rule 70 of the Uniform Rules of Court”.

[17] The deletion of the “unreserved apology”, is laid bare to see. That should of course be of great concern and therefore the need for this judgment. Taxation is about the tariff as per Rule 70. The taxing master is the master of taxation process ensuring that fees charged are in accordance with applicable tariff. For example, in terms of rule 69 (5) taxation of advocates’ fees as between party and party shall be effected by the taxing master and, where applicable, the excess as he or she considers reasonable.

[18] Therefore, any notion that parties can agree on fees and on their own consider the reasonableness thereof and then approach the taxing master to give an order in the form of stamping the allocatur without exercising his or her discretionary power, will become the mockery of the taxation process and the applicable rules. In terms of rule 70 (1) the taxing master is competent to tax any bill for services actually rendered by an attorney. “To tax any bill” in sub-rule (1), should easily dispose of any suggestion that settled items in the bill of costs are exempted from scrutiny by the taxing master. Otherwise, the taxing master or mistress will be denied of his or her discretionary authority to keep an eye on whether fees charged as per a particular item, are “for services actually rendered”.

[19] In other words, the taxing master is almost like a watch dog on taxation process. Look at sub-rule (2): It provides that ‘at the taxation of any bill of costs the taxing master may call for such books, documents papers or accounts as in his or her opinion are necessary to enable him or her properly to determine any matter arising from such taxation’. “To determine any matter arising from such taxation”, could relate to the question whether services have actually been rendered in connection with any item. Sub-rule (2) also makes reference to ‘any bill of costs’. Again, dispelling the idea that settled items are a no go area for the taxing master or mistress.

[20] Sub-rule (5) (a) provides that ‘the taxing master shall be entitled, in his discretion, at any time to depart from any of the provisions of this tariff in extraordinary or exceptional cases, where strict adherence to such provisions would be inequitable’. “To such provisions” is with reference to the tariff under rule 70. Therefore, “the extraordinary or exceptional cases”’ is located to the fees charged within the tariff or in excess of the tariff and that determination can only be made by the taxing master when he or she considers the items whether such items are settled or not.

[21] But Ms Collins does not see it that way. In her written heads of argument dated 27 January 2021 she contends: “This being said, the Taxing Master’s discretionary power is hardly unfettered. Even within Rule 70 of the Uniform Rules of Court, sub-rule (5) (a) in particular, the Taxing Master is admonished to exercise his/her discretion only in extraordinary or exceptional cases, in certain instances”.

[22] She clearly got the provision wrong. The “in extraordinary or exceptional cases” as I said, is in relation to the tariff. That is, whether to depart from a prescribed tariff or not and that can only be done in the process of exercising that wide discretionary powers regarding any item in the bill irrespective of whether such an item has been objected to or settled.

[23] I find it difficult to understand Ms Collins sometimes. The submission quoted in paragraph [21] above was made immediately after she had made a concession as follows: “It is settled law that the Taxing Master is given wide discretionary powers by Rule 70 of the Uniform Rules of Court. It is also trite that he/she may exercise these powers mero motu. Ergo it is well within the Taxing Master’s purview to, mero motu make discretionary determinations in presented Bills of Cost in respect even uncontested or undisputed items contained therein”.

[24] The two statements are irreconcilable and makes it difficult to know what Ms Collins’s true final legal stand point is. However, should Ms Collins still remain unpersuaded, is worth it then to refer to some few authorities. Starting with rule 48 (1) it provides that ‘any person 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’.

[25] The writing is clear on the wall. The taxing master can mero motu disallow any item or part thereof. It does not have to be objected to before it could be disallowed mero motu. One would have thought that this will bring to an end any held view to the contrary. There are several case law and other authorities which deal with the discretionary powers of the taxing master. I allude hereunder to some of them.

[26] Goosen J in the matter of Sakhele Tywini obo Sandlakazi Tywini Wini v Road Accident Fund: Case no 616/2016 in Eastern Cape Division, Grahamstown had an opportunity to express himself inter alia, as follows in paragraph [19] of his judgment:

“The taxing master would then have been required to exercise the discretion vested n her to allow, reduce or disallow the particular

items so included. Upon allocator in respect of such consolidated bill, the plaintiff would then have been entitled to seek to review the exercise of that discretion in accordance with the provisions of Rule 48(1). Plainly the plaintiff did not do so and instead entered into an agreement with the defendant in relation to the items to be allowed in the bill of costs, subject obviously to the discretion of the taxing master…” (My emphasis). So, the agreement to settle items in the bill of costs in all the six matters under the discussion, is subject obviously to the discretion of the taxing master or mistress

[27] Plasket, Smith and Lowe JJ in the judgment of Trollip v Taxing Mistress of the High Court and Others 2018 (6) SA 292 (ECG) (31 July 2018) at para [17] had an opportunity to quote AC Cilliers, Law of Costs at para 13.03 as follows:

‘The discretion vested in the Taxing Master is to allow all costs, charges and expenses as appear to him to have been necessary or proper, not those which may objectively obtain such qualities. His opinion must relate to all costs reasonably incurred by the litigant, which imports as to what is reasonable. Moreover, the words “reasonable” and “in the opinion of the Taxing Master” that occurred in the tariff appended to rule 70 imported a judgment not referable to objectively ascertainable qualities in the items of a bill in question. The discretion to decide what costs have been necessarily

or properly incurred is given to the Taxing Master and not to the court. It is now a well –established rule that in regard to quantum, both as to qualifying fees for medical expert witnesses, other expert witnesses, and counsel’s fees, the decision of the taxing master is a discretionary one.

The Taxing Master has a discretion to allow, reduce or reject items in a bill of costs. This discretion must be exercised judicially in the sense that he or she must act reasonably, justly and on the basis of sound principles with due regard to all the circumstances of the case. Where the discretion is not so exercised, the decision will be subject to review (See City of Cape Town v Arun Property Development (Pty) Ltd 2009 (C) SA 226 (C) 232. In addition, even where the discretion has been exercised properly, a court on review will be entitled to interfere where the decision is based on a misinterpretation of the law or on misconception as to the facts and circumstances, or as to the practice of the court.

The Taxing Master’s discretion is wide but not unfettered. In exercising it, the Taxing Master must properly consider and assesses all the relevant facts and circumstances relating to the particular items concerned. The discretion is not properly exercised if such facts or circumstances are ignored or misconstrued’.

[28] A Taxing Master is required to approach the task of taxing a bill of costs with an open mind. In Botha v Themistocleous[1] the court held that a Taxing Master’s function is not limited to merely fixing fees on the assumption that work that has been charged for, has in fact be done.

[29] He or she should not close his or her eyes and ears to evidence that may show that work alleged to have been done had not been done. We would add, however, that this would normally only arise if a dispute is squarely raised in taxation or where good reason exists to suspect that the services claimed for, have not been performed. In the circumstances such as these, the Taxing Master is under duty to afford the affected party an opportunity to deal with any disputed questions of fact[2]. (My emphasis).

[30] Just to pause for a moment to deal with what is underlined in the preceding three paragraphs. “Where good reason exists to suspect that the services claimed for, have not been performed”, can only be detected if one does not close his or eyes or does not just stamp the allocatur on the basis that items in the bill of costs have been settled. That would amount to rubber stamping. Ms Collins on 25 November 2020 wanted the taxing mistress to close her eyes on the 847 settled items. Fortunately, the taxing mistress refused to do so despite the threat of reprisal.

[31] The Taxing Master must have a full picture before him or her in order to determine just remuneration for work done. It is the duty of the Taxing Master to ensure that the expenditure claimed was reasonably incurred and is reasonable. It is in this context that his or her discretion is to be exercised with due regard to the purpose for which taxation is intended[3].

[32] The process of taxation is to ensure that winning parties are not put completely out of pocket. At the same time, the process is to ensure that the losing parties are not ruined by exorbitant legal costs which are not as per the tariff and some of which may even be for services not actually rendered. It is for this reason that the taxing masters are given such wide discretionary powers to consider items in the bill whether settled or not.

[33] The insistence by Ms Collins that the taxing mistress has nothing to do with the settled 847 items in the bill of costs regarding Smith case, was clearly wrong. Her formal complaint to the complaints officer on 10 December 2020 despite what was said by the taxing mistress as quoted in paragraph [4] of this judgment, in my view, was unjustified. That must have put the taxing mistress in a fix as to

how to proceed and thus the referral as contemplated in sub-rule (5A) (d) of rule 70. I deal more fully with that pressure hereunder. The provisions of the sub-rule are quoted in paragraph [2] of this judgment.

Putting the taxing mistress under undue pressure

[34] It was on 25 November 2020 when Ms Collins wrote to the taxing mistress as follows: “This is one of several matters that we have been unable to tax in Middelburg High Court and the situation has become untenable. The Complainant trusts that she is not being targeted by the Taxing Master but, given that so many other attorneys in Middelburg are not experiencing the same difficulties, the question as to unfair discrimination, has been asked. If it proves to be the case, civil litigation will have to be considered to protect our clients from further harm. The complainant fervently hopes that that will not become necessary and that this forum will be able to resolve the issue…”

[35] The tone is somewhat threatening and has to be seen in the context of what followed thereafter. To the email of 25 November 2020, the taxing mistress in her report dated 22 December 2020 alludes to the fact that: ‘the greatest part of her experience in taxation is achieved through interaction and the willingness to learn from every practitioner irrespective of race, colour or gender, who are appearing before her for taxation on daily basis, and that she has never encountered a situation like the one she was having with Ms Collins where a professional attorney will unjustifiably dictate and instruct the taxing master to consciously overlook the rules and to adopt an ignorant style to the rules and rubber stamp what is called “settled items” without due consideration’. By the way, Ms Collins took an offence to the word “ignorant” thinking that it was with reference to her when in actual fact the taxing mistress was clearly referring to herself.

[36] It will be difficult to differ with the sentiments expressed by the taxing mistress. Furthermore, the taxing mistress sees the statement quoted in paragraph [34] above as ‘unfortunate and that one wishes that Ms Collins can accept that there are things that she is not doing correctly, which the taxing master refuses to be part of and which has an effect of delaying the finalisation of her bills of costs’.

[37] Ms Collins, Mrs Breedt (costs consultant for Ms Collins) and the taxing mistress, the three of them are admitted attorneys with extensive and vast experience in various aspects of the law and procedure. That cordial relationship and mutual professional respect for each other, must be exhibited in how they interact and express themselves with or about each other in the performance of their respective duties.

[38] See the rest in context this way: On 25 November 2020 Ms Collins in addition to the wrong assertion that ‘the balance of the 882 items have all been settled and do not require your attention’, the taxing mistress was warned as follows:

“You are requested to furnish us with your formal rulings on the 35 outstanding items by close of business on 27 instant, failing which we hold instructions to lodge a formal complaint to the Provincial and National offices of the Chief Justice and to launch a mandamus application to compel your compliance with the relevant legislation.

You have been notified that there are several other Bills of Cost from our offices that our cost consultant has been unable to finalise with yourself for an extended period of time. This is unacceptable, upon receipt of the specific details we will direct further correspondence to yourself”.

[39] The message is clear: Do not look at the 847 settled items of the 887 items. Look only at the 35 disputed items and you have only one day to do so or else you will be reported for misconduct and in addition you run the risk of facing mandamus application. This I suspect is the attitude which prompted the taxing mistress to express herself as she did as follows: “the taxing master refuses to be part of’’. This was despite the fact that she was being dictated and instructed “to consciously overlook the rules and to adopt an ignorant style to the rules and rubber stamp what is called ‘settled bill” without due consideration”.

[40] The taxing mistress refused to give in. Instead, she responded to Ms Collins as quoted in paragraph [4] of this judgment. What one would have thought would settle the dispute on a legal issue, turned not to be so. Having provided Ms Collins on 25 November 2020 with the Chief Director’s Covid-19 Directive issued during May 2020 which Directive introduced a drop box for taxation matters, Attorneys Collins on 30 November 2020 filed by putting inside the drop box the bills of costs in respect of all the five matters. On the same day the taxing mistress allocated the 14th December 2020 as a date for taxation for all the five matters. This was so because the right procedure was followed in the following

matters:

L Shabangu v MEC for Health Case Number 1226/17

R Nel v MEC for Health Case Number 1227/17

M Lezar v MEC for Health Case Number 1229/17

IT Masango v MEC for Health Case Number 1230/17

W Nel v MEC for Health Case Number 1228/17.

[41] Thinking that peace would have been restored, something turned out to be a relentless hot pursuit on the taxing mistress. But before I deal with the pursuit, there is another statement by Ms Collins which I do not understand. In her formal complaint which she sent to the court manager on 10 December 2020, she made a statement to the effect that she ‘unequivocally declare that she had no contact, verbally or otherwise with the taxing master- with the exception of their correspondence on 2 and 23 December 2020’.

[42] The statement cannot be correct because before 2 December 2020 Ms Collins sent on 25 November 2020 emails to the taxing mistress wherein she expressed herself as quoted in paragraphs [34] and [38] of this judgment. The taxing mistress also responded as quoted in paragraph [4] above. Ms Collins gave the statement as she did and quoted in paragraphs [34] and [38] when she tried to shift the blame on her tax consultant, Mrs Breedt. But of course she is the attorney for the plaintiffs and not Mrs Breedt. She ought to know what her cost consultant is doing. I deal with this aspect later when I deal with the failure to file a rule 70 certificates. It suffices for now to mention that she is completely wrong to say the only time she corresponded with the taxing mistress was on 2 and 23 December 2020, the 23rd being the date on which she was sent the taxing mistress’ report dated 22 December 2020.

[43] Coming back to the topic under discussion, that is, undue pressure exerted on the taxing mistress, on 2 December 2020 and in all the five matters, Ms Collins lodged informal complaints direct with the taxing mistress in each case and in each case expressed herself in the respective covering emails as follows:

“Kindly be advised that you are hereby formally warned to resolve this matter by close of business today failing which we are lodging a formal complaint with the Office of the Chief Justice in Nelspruit. Copy of our complaint is attached hereto for your attention and perusal. Writer has been in contact with Mrs Cathy Venter, the relevant complaints office, and she is awaiting the documentation”. (Ms Collins’s bolding).

[44] The statement is almost like signalling a danger to befall on the taxing mistress unless the taxing mistress complies. By that time the taxing mistress had already enrolled the five taxation matters for 14 December 2020. The articulation in the preceding paragraph and reference to Mrs Venter (the court manager) could only have been intended to intimidate the taxing mistress which she describes “as nothing else than harassment and intimidation accompanied by desperation placing unreasonable pressure on the taxing master to

bear”.

[45] Look at it this way: A date for taxation in all five matters having been allocated n 30 November 2020 and after having drawn Ms Collins’s attention to the taxation drop box introduced in May 2020, which Ms Collins neglected to heed to despite the fact that it was sent to all attorneys practising within the division, Ms Collins still found it necessary to write to the taxing mistress as she did on 2 December 2020. Why she did that can only be ascribed to what the taxing mistress stated as referred to in the preceding paragraph.

[46] Ms Collins in her email letter dated 25 November 2020 stated that ‘we have been notified that there are several other Bills of costs from our offices that our costs consultant has been unable to finalise with yourself for an extended period of time. This is unacceptable, upon receipt of the specific details, we will direct

further correspondence to yourself regarding the specifics of those matters…’

[47] In the complaint document sent to the taxing mistress on 2 December 2020, Ms Collins expressed herself as quoted in paragraph [34]. There she describes failure to tax some of the Middelburg High Court matters as a situation that has become untenable and then added that she feels she was being targeted and discriminated against.

[48] I must immediately mention that officials who do not do their job must be reported and accordingly be dealt with by the relevant division or unit within the Office of the Chief Justice. It is expected that if there is any complaint against the office of any taxing master or mistress, such complaint would be reported. That makes us to grow and rectify any situation right as soon as possible.

[49] But of course it is also expected that those who complain or interact with state officials particularly legal practitioners, would be measured and avoid lashing out where it is not justified. Mutual respect for each other is everything in our interactions with other people. But most importantly before one resorts to lodging complaints the true and correct facts must first be established. In other words, do not complain and report unless you are sure that your own house is in order.

[50] The taxing mistress in her report dated 22 December 2020 states that she ‘wishes that Ms Collins can accept that there are things that she is not doing correctly’ and that ‘the threat of complaints without doing things the right way, is not helpful to anyone’. This was with reference to the failure to utilise the drop box to file taxation matters and for having done nothing since May 2020 about taxation matters despite the fact that the drop box was introduced in May 2020. In addition, the taxing mistress was referring to her mero motu discretionary powers which Ms Collins was wrongly disputing.

[51] The five taxation matters referred to in paragraph [40] above were initially enrolled for taxation during May 2020. On 5 May 2020 the taxing mistress asked for proof of letters written and perused in each of the five matters. That Ms Collins failed to provide and according to the taxing mistress the taxation could not proceed. On or about 21 May 2020 the Chief Registrar introduced the drop box that was intended to avoid contact or physical filing as part of safety measures to avoid the spread of covid-19 infections. The system is still in place and works efficiently.

[52] It was only on 5 October 2020 as it appears in the individual complaint forms served on the taxing mistress on 2 December 2020 that Ms Collins recorded that her correspondent or “instruction attorney’’ informed “that correspondence cannot be furnished due to staff shortages and COVID. Taxing Master should make a ruling without it”. Some comment on this statement is necessary. Ms Collins cannot have it both. As on 2 December 2020 she was steadfast that the taxing master has no authority to question the settled bills. Now here, the taxing mistress is asked to exercise her discretion on the settled bills.

[53] The problem of staff shortage that Ms Collins referred to in the completed complaint forms has nothing to do with the taxing mistress. In any event all what could have been done was to use the drop box which is attended to and emptied daily. So, the suggestion in the complaint form that between 6 to 26 November 2020 Ms Collins or her costs consultant could not be helped has to be seen in context and should be refuted. Perhaps that is the disadvantage of using the correspondent attorneys as a post box and by so doing run the risk of doing things the wrong way in a particular division contrary to the applicable directives thereto.

[54] There was no need to send emails or to phone, neither was there a need to gain entry into court building as the notice of taxation referred to as Form JA together with the bill of costs are supposed to be dropped into the drop box placed with the security at the entrance. Therefore, to draw up Form JA on 15 October 2020 and then have it emailed to the taxation mistress was not in accordance with the procedure laid down in the Chief Registrar Directive issued on 21 May 2020. Similarly, to draw another Form JA on 26 November 2020 and then engage the services of a Middelburg Attorney firm to deliver the documentation to court was also not in compliance unless it was dropped into the drop box.

[55] From 20 May 2020 as it appears from what is recorded in the complaint forms completed by Ms Collins, she did nothing until 5 October 2020 and she gives no explanation for the inaction on her part for so many months and after she was asked in May 2020 to provide proof of letters written and perused as per the bills of costs. Ms Collins and her costs consultant cannot justifiably escape the blame and Ms Collins should not have put pressure on the taxing mistress.

[56] On 10 December 2020 Ms Collins amongst others expressed herself as follows with reference to the taxing mistress in an email addressed to the court manager: “Kindly find attached the written complaint, and relevant attachments, as discussed. Sadly, all our efforts to mediate this amicably, have proven fruitless and our pleas have fallen on deaf ears…” (My emphasis).

[57] “Fallen on deaf ears” are strong words. These are words which would normally not be directed at an adult. But here they are. They are said by an admitted attorney directed at another admitted attorney. Worse they were stated without a justification. For example, the taxing mistress refused and resisted the pressure to tax and allow 847 settled items without considering them. By 30 November 2020 the taxing mistress enrolled the five matters for taxation immediately after the right procedure was followed. But, Ms Collins on 2 December 2020 still elected to lodge several complaints on those matters and threatened the taxing mistress with misconduct if she did not respond “by the close of business today”, being 2 December 2020.

[58] The cost consultant (Mrs Breedt) seems to have capitulated into what Ms Collins sought to do. The taxing mistress in her report dated 22 December 2020 alludes to the fact that on 9 December 2020 and in addition to the queries raised in May 2020 which were never fully responded to by the parties, she requested the parties to file submissions or proof as to why the matters were removed from the roll after preparation as it appears in the bills of costs. That was never done and as a result the taxation matters were on 14 December 2020 once again removed the taxations from the roll. It was only after the taxations were removed from the roll that a response to the query raised on 9 December 2020 was drafted on 17 December 2020 by the cost consultant and received only in January 2021. But still proof of the letters written and perused which were requested in May 2020 were still not provided. This was only delivered to the taxing mistress on 26 January 2021 after it was so directed. The letters so written and perused are all the subject of a pending decision by the taxing master who will be dealing with the taxations herein.

[59] Taking a step a bit backwards: On the morning of Sunday 13 December 2020 Mrs Breedt wrote to the taxing mistress to inform her that the bills of costs have been settled and that ‘please stamp the allocator in your possession’. Straight into the footsteps of Ms Collins in believing that once the bills are settled all what the taxing master has to do is to “stamp” the allocatur. Exactly what the taxing mistress refers to as “rubber stamping” contrary to the taxing master’s wide discretionary powers.

[60] In her letter of 17 December 2020 Mrs Breedt took it a step further. Having provided the information that was requested on 9 December 2020 she then concluded as follows: “Attach hereto the allocator and Bill of cost (in duplicate) to enable you to stamp same”. The statement is more than telling. It was almost like saying ‘because your duty is to stamp the allocatur on settled bills,

we have taken over the process of taxing by allowing and disallowing our own bills and all what we need from you taxing mistress, is your stamp’. That must have entitled the taxing mistress to have brought these taxing matters for direction as contemplated in sub-rule (5A) (d).

[61] It was this kind of behaviour that drove the taxing mistress to remark in her report as follows:

“It is clear that the attorneys herein expect the taxing master in Middelburg to not give consideration to the settled bills and just proceed to stamp the allocator to their satisfaction. This will be acting contrary to the rules and would amount to rubber stamping the taxation process. In the light of the failure to provide requested information and documents as provided for in the rules and lodging of complaints which are not justified and thereafter direct the taxing master to stamp the settled bills in the face of queries, in my view, amounts to an interference with the quasi-judicial functions of the taxing master and deserves to be looked at as contemplated in sub-rule (5A) (d) (iii)”.

[62] Very difficult to differ with the statement. There is a context to it. In the bills said to have been settled, the parties taxed off certain items including some letters written and perused for which the taxing master was still waiting for proof thereof since May 2020. They typed and taxed off. Furthermore, attendance fee was included in the self-taxation. This was done despite the fact that the decision by the taxing master thereon was still pending.

[63] However, I will not go for paragraph (iii) as requested by the taxing mistress. I would prefer to go for paragraph (ii) and give directions as to the finalisation of the taxations. I would also after having heard Ms Collins and Mrs Breedt on the conflicting statements, decide whether to report them to the professional body particularly with regard to what will appear later herein when I deal with the failure to file rule 70 certificates in all the six taxation matters.

[64] Just before I conclude on the topic it looks like my fear of the possible wide spread on “rubber stamping” settled bills, is fortified. In the report which was submitted on 19 January 2021 together with that of Ms Collins and at the instance of the latter, of relevance, Mrs Breedt states:

“In addition, I want to note that I have made requests such as these to - Taxing Masters in other jurisdictions and to this Taxing master in particular on a number of occasions in years past, as have most of my colleagues, almost always without

incident”.

[65] The fact that it has happened in the past with “this Taxing master” and “in other jurisdictions”, does not make it right and tolerable. It is for this reason that a copy of this judgment should be brought to the attention of the national office. As I said, in order to sensitise the taxing masters if need be nationally and where appropriate to conduct workshops focusing on the concerns raised in this judgement.

Failure to file rule 70 certificates and contradictory statements by Ms Collins

[66] In paragraph 16.1 of the taxing mistress’s report she alluded to the fact that the settlement agreements which were provided by the cost consultant on Sunday 13 December 2020 were not accompanied by rule 70 certificates. In terms of rule 70 under E-Bill of Costs item 3 (a) ‘whenever an attorney employs the services of another person to draft his or bill of costs, a certificate shall accompany the bill of costs in which that attorney certifies that-(i) the bill of costs thus drafted was properly perused by him or her and found to be correct; and (ii) every description in such bill with reference to work, time and figures is consistent with what was necessarily done by him or her’. (My emphasis).

[67] The rule 70 certificate is a very important document that is intended to protect both the attorney and cost consultant. It is almost like a licence for a cost consultant and without it, the consultant has no standing to submit the bill and similarly the taxing master is not obliged to recognise such a consultant. Most importantly, the certificate is intended to ensure that cost

consultants do not come up with their own items which are not consistent with what was necessarily done by the attorney. So, as

things stand, Ms Breedt has no locus standi in all the six matters until Ms Collins has issued and filed the certificates.

[68] As indicated, the issue of the rule 70 certificates was first raised by the taxing mistress in her reported dated 22 December 2020 which report was received by Ms Collins on 23 December 2020. Ms Collins in her response dated 19 January 2021 did not directly deal with the issue. She started by stating that despite the fact that the Taxing Master has seemingly levelled charges against her alone and not included Mrs Breedt as the latter was involved in the bulk of the events discussed in the report by the taxing mistress. Then in paragraph 3.2 of her response Ms Collins bitterly complained as follows:

“I am at a loss to explain, therefor, the Taxing Master’s motivation to specifically name me as the villain and culprit. I may have comprehended the charges better if Mrs Breedt was charged in conjunction with myself but as it stands I am utterly confounded.

Very troubled and more than a little alarmed”. By the way, the buck stops with Ms Collins as an instructing attorney. But she must also be mindful of all what she said about the taxing master as indicated earlier in this judgment.

[69] True, Ms Collins has to be “very troubled” by what follows hereunder. In the letter of 20 January 2020 addressed to Ms Collins, she was advised that the taxing mistress must have made reference to her because she was the one who lodged the complaints. Her attention was specifically drawn to the provisions of rule 70 quoted in paragraph [66] of this judgment.

[70] In her letter of 27 January 2021 as she sought to deal with the rule 70 certificates, Ms Collins wrote:

“In respect to the absence of Rule 70 certificates I must confess that same had seemingly not been attached to the Bill of Cost submitted in the Smith matter. I accept full responsibility for this oversight, which has been corrected. I offer my apologies and assurance that such an oversight will not recur.

The remaining five Bills were not accompanied by Rule 70 Certificates since I had drawn these Bills of Cost myself and therefore-to my understanding – Rule 70 Certificates are not required. However, should your Lordship hold a different view, I will ensure that Rule 70 Certificates accompany all Bills presented for taxation”. (The underlining and bolding is my emphasis).

[71] The bolded words are a complete U-Turn to or from the statement which Ms Collins made as follows in paragraphs 1.1 and 1.2 of her letter of 19 January 2021:

“During 2018 I filed 6 formal applications in terms of rule 35 (7) to compel by the legal representatives of the MEC for Health Mpumalanga

pursuant to 6 actions that were pending in the Middelburg seat of the Mpumalanga High Court at the time. The defendant subsequently filed outstanding Discovery Affidavits and tendered wasted costs, requesting that the applications be removed from the Motion Roll. I acquiesced to this request as proceeding would be needless waste of time. Copies of the correspondence mentioned were attached to the subsequent Bills of Costs submitted for taxation to the Taxing Master and are also attached to Mrs Breedt’s reply hereto marked Annexure “A1”.

1.2 In due course I appointed Mrs Karen Breedt, an admitted attorney practising for own account, to draw and tax the Bills pursuant to these Rule 35 (7) Motions.” (My emphasis)

[72] Then Mrs Breedt in Annexure A1 referred to in the quotation above and in support of Ms Collins as indicated under 1.2 of the quotation above, made a statement as follows: “I was appointed to attend the drawing and taxing of the Bills”. This statement was clearly intended to corroborate Ms Collins in her statement above. One wonders if Ms Collins brought the contradiction in her letter dated 27 January 2021 quoted in paragraph [70] above to the attention of Mrs Breedt and if so what was Mrs Breedt’s reaction thereto.

[73] The question as to who drew the bill of costs is important to any taxing master. It avoids dealing with people who do not have the authority to interact and do taxation with the taxing master. It enables the taxing master to know who to blame for anything arising from taxation proceedings. The two statements underlined, bolded and quoted in paragraphs [71] and [72] of this judgment have been laid bare to show the contraction with the statement underlined, bolted and quoted in paragraph [70]. There appears to be an element of dishonesty in these mutually destructive statements and it has the potential to mislead the taxing master or mistress. If that is so, it offends then against rule 3.1 of the code of conduct which requires of every legal practitioner to maintain the highest standards of honesty and integrity. For this reason, both Ms Collins and Mrs Breedt will be given an opportunity to be heard and explain why their conduct regarding the two mutually destructive statements should not be reported to the Legal Practice Council.

[74] The contraction reminds one about what Isaac Morris said in 1969 when he warned and advised as follows: “When you have erred (and who does not) admit the error, suffer the wrath of the court. But earn and preserve your reputation”. Before I conclude, I find it necessary to refer to another statement which I find it difficult to understand. Ms Collins might want to clarify same if she so wishes. On 25 November 2020 she wrote to the taxing mistress and told her that she was not required to consider the 847 items in the Smith matter. In the same letter, she complained about the delay in the other five matters. In addition, she threatened the taxing mistress with mandamus and misconduct. However, in paragraph 1.9 of her letter dated 19 January 2020, Ms Collins stated: “I unequivocally declare that I had no contact, verbally or otherwise with taxing master-with the exception of our correspondence on 2 and 23 December 2020”. Did she forget that she corresponded with the taxing mistress on 25 November 2020 despite the serious nature of the correspondence

that ensued on that day?

[75] The taxing mistress also raised as a concern the failure to number the items in bills of costs. Numbering of the items is very important. It facilitates easy reading and raising of queries by referring to a specific number in the bill of costs. In the five matters, whilst there is a column to number each item, the items were not numbered. As a result, the necessary direction in this regard will be made.

[76] Many things in these six matters have happened and said. The parties, Ms Collins, Mrs Breedt and the taxing mistress may feel unease to let the taxation in respect of the six matters continue before the same taxing mistress. For this reason, it would be important for the parties or their attorneys including the taxing mistress to decide whether the latter should still continue to be seized with all the six matters. I am fully aware that the taxing mistress and Ms Collins had already agreed about a date in the Smith matter and that certain information might be exchanged in between the parties. Despite this, parties and the taxing mistress should still decide whether the taxation in the Smith matter should still proceed before her. Should the taxing mistress not proceed with the six taxation matters herein, that should not be

construed as a disqualification for the taxing mistress to consider any other taxation matter where Ms Collins or Ms Breedt, is involved.

[77] Consequently, I hereby make direction or order as follows:

77.1 The plaintiffs’ attorneys in the five matters, referred to in paragraph [40] of this judgment shall number each item and thereafter re-lodge or file same into the taxation drop box at the entrance of the court.

77.2 The bill of costs in each file must be accompanied by Form JA and rule 70 certificate.

77.3 The parties to indicate by no later than 12h00 on Wednesday 10 February 2021 whether the taxations in the six matters, that is, including Smith matter should still proceed before the same taxing mistress. And if so;

77.4 The taxing mistress should indicate to the Chief Registrar by no later than 12h00 on Friday 12 February 2021 whether she feels comfortable to proceed with these particular six taxation matters and forward same to the Office of the Judge President. And if not, the Chief Registrar is hereby directed to allocate the six matters, that is, including Smith matter to another taxing master or mistress.

77.5 Upon refiling or receipt of the bills of costs in the five matters, that is, excluding Smith matter, it is hereby directed that the taxations thereof shall be finalised within 10 working days from date of such refiling or receipt thereof.

77.6 The taxing master or mistress is entitled to mero motu consider any item whether objected to or settled.

77.7 Ms Collins and Mrs Breedt are hereby directed to explain by no later than 15 February 2021 why their conduct in relation to the statements quoted in paragraphs [70], [71] and [72] above, should not be reported to the Legal Practice Council.

77.8 Copy of this judgment must be brought to the attention of the Chief-Director-Court Services National and the Director-Court Services Mpumalanga with a view to determine whether the practice alluded to in this judgment is wide spread and whether there is a need for training of taxing masters on the issues dealt with in this judgment.

LEGODI JP

DATE

OF JUDGMENT

: 03 FEBRUARY 2021

FOR THE APPLICANTS / PLAINTIFF :AC COLLINS

ATTORNEYS

C/O

TERBLANCHE PISTORIUS ATT

9

JOUBERT STREET

MIDDELBURG

TEL: 083 2575 994

Ref: A COLLINS/CV/N0275

Email: anelda.collinsattorneys@gmail.com

FOR THE RESPONDENT/DEFENDANT :ADENDORFF THERON

INC

CASTERBRIDGE

LIFESTYLE CENTER

OFFICE G1

WHITE

RIVER

NELSPRUIT

TEL: 013 752 3902

Email: letitia@adenforffs.com

[1] 1966(1) SA 107 (T) at 110 C-D

[2] See further Trollip case at para 18, Maasdorp and Smit v Sullivan 1964(4) SA 2 (E) at 2H-3E

[3] See Trollip supra at paras 20 and 21