Unit 13 Mzingazi Waterfront CC and Other v Waterfront Suites Tuzigazi CC t/a Mzingazi Waterfront Suites and Another (2584/2009) [2009] ZAKZDHC 3 (18 March 2009)

Unit 13 Mzingazi Waterfront CC and Other v Waterfront Suites Tuzigazi CC t/a Mzingazi Waterfront Suites and Another (2584/2009) [2009] ZAKZDHC 3 (18 March 2009)

The court found that the clerk of the court was clearly wrong in taxing both bills of costs without proper consideration of the relevant factors and without compliance with Rule 33(9) of the Magistrates' Court Rules. The magistrate, in declining to interfere, failed to have proper regard to the factors relevant to...

Source-derived case information.

Citation
[2009] ZAKZDHC 3
Parties
Applicant: Unit 13 Mzingazi Waterfront CC; Applicant: Hendrik Jacobus Reinier Colyn N.O. (in his capacity as the sole Trustee of the H J R Colyn Trust); Applicant: Propmiz CC; Respondent: Waterfront Suites Tuzigazi CC t/a Mzingazi Waterfront Suites; Respondent: Louise Lithgow
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
18 March 2009
Case Number
2584/2009
Procedural Posture
Review Application / Review of Taxation of Costs After Magistrate's Decision
Outcome
Application for review of taxation of costs is upheld; taxation set aside and referred back for reconsideration.
Judges
Msimang
Legal Topics
Taxation of Costs, Review of Taxing Master, Magistrates Court Rules, Attorney and Client Costs
Civil Procedure Taxation of Costs Review of Taxing Master Magistrates Court Rules Attorney and Client Costs

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Parties

Unit 13 Mzingazi Waterfront CC

Applicant

Hendrik Jacobus Reinier Colyn N.O. (in his capacity as the sole Trustee of the H J R Colyn Trust)

Applicant

Propmiz CC

Applicant

Waterfront Suites Tuzigazi CC t/a Mzingazi Waterfront Suites

Respondent

Louise Lithgow

Respondent

Procedural Posture

Review Application / Review of Taxation of Costs After Magistrate's Decision

Legal Issues

  1. 1 Whether the clerk of the court properly exercised discretion in taxing both bills of costs for local and Pietermaritzburg attorneys.
  2. 2 Whether the requirements of Rule 33(9) of the Magistrates' Court Rules were complied with.
  3. 3 Whether the magistrate correctly declined to interfere with the clerk's taxation despite non-compliance with Rule 33(9).

Ratio Decidendi

The court found that the clerk of the court was clearly wrong in taxing both bills of costs without proper consideration of the relevant factors and without compliance with Rule 33(9) of the Magistrates' Court Rules. The magistrate, in declining to interfere, failed to have proper regard to the factors relevant to the issue, such as the availability of local attorneys and the necessity of employing Pietermaritzburg attorneys. The discretion exercised by the clerk was not supported by reasons in the record, and the magistrate's stated case relied on irrelevant factors. Accordingly, the taxation was set aside and referred back for reconsideration on the basis that the respondents had...

Court Disposition

Application for review of taxation of costs is upheld; taxation set aside and referred back for reconsideration.

Orders

  • The taxation of the two bills by the clerk of the court, Lower Umfolozi Magistrate's Court, on 20 December 2005 under Case No. 2805/2005 is set aside.
  • Both bills are referred back to the clerk for taxation de novo on the basis that the respondent had employed the services of a local firm of attorneys.