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Taxing Master of the High Court of South Africa (Bophuthatswana Provincial Division) v De Jager and Others (144/2007) [2008] ZANWHC 48 (11 December 2008)

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CASE NO: 144 /2007

IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

COMBRINK KGATSHE INC (RUSTENBURG) APPLICANT

and

THE TAXING MASTER OF THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA

PROVINCIAL DIVISION) 1^st RESPONDENT

P DE JAGER	2^nd RESPONDENT
AP BORMAN	3^rd RESPONDENT
WS MAREE	4th RESPONDENT
CFJ HAYTON	5th RESPONDENT
JHT VOSLOO	6^th RESPONDENT
J HAASBROEK	7^th RESPONDENT
FOR THE APPLICANT FOR 2 - 7 RESPONDENTS :	ADV ZWIEGELAAR ADV BISSCHOFF

DATE OF HEARING 23 OCTOBER 2008

DATE OF JUDGEMENT 11 DECEMBER 2008

LEEUW J:

INTRODUCTION:

[1] The Applicant approached this Court on review, seeking an order in the following terms;

"1. Dat die taksasie-verrigtinge was plaasgevind het voor die ste respondent in hierdie Agbare Hof, ondersaaknommer 1443/2007 op 7 September 2007, tesame met die skriftelike allocatur uitgereik deur die eerste respondent op 7 September 2007, hen ien en tersydegerstel word.

2. Dat koste van hierdie aansoek toegestaan word teen enige party wat die aansoek opponeer.

3. Dat sodanige verdure en/of alternatiewe regshulp as wat in die omstandighede noodsaaklik mag wees aan applicant toegest aan word."

[2] The application is opposed by the Second to the seventh Respondents

(Respondents) on the basis that they have a direct and substantial

interest in the outcome thereof. The First Respondent in her capacity as

the Taxing Master, did not enter appearance but did furnish the Applicant with the reasons for granting the allocatur.

Background Information

[3] Phillipus Jacobus Pienaar (Pienaar) who is an attorney at the Applicant's firm of Attorneys, alleged that he received instructions to represent the Respondents during May 2004, His mandate was terminated on the 31^st May 2007, and the Respondents appointed Kritzinger Attorneys ("Respondents attorneys') of Haartebespoort as their legal representative.

[4] The work done on behalf of the Respondents when he was still their attorney of record, appears in the Value Added Tax (VAT) invoice which was presented to the Taxing Master by the Respondents' attorneys. The total bill owed by the Respondents to the, Applicant is R88 367-66.

[5] According to Pienaar, there was no litigation process initiated on behalf

of the Respondents whilst he was still their attorney of record. The VAT

invoice was therefore not supposed to be submitted to the First

Respondent (Taxing Master) for taxation as contemplated by Rule 70 (1) (a) of the Uniform Rules of Court ("the Rules")

[6] He however, on the 13^th August 2007. received a facsimile transmission from the Respondents' attorney wherein he was informed the his VAT invoice was tabled for taxation with the Taxing Master scheduled for the 7^th September 2007 at 11h30. Attached to th s letter was a Notice of taxation issued by the Taxing Master dated thee 6^th August 2006 notifying the Applicant of the hearing of the 7^th September 2007.

[7] Pienaar did not attend the taxation hearing on the 7^th September 2007 because his secretary, who had diarized this da te and was off sick from the 3^rd to the 7^th September 2007 and only reported for duty on the 10^thSeptember 2007, was not available to remind him of the date of taxation.

[8] He was notified by the Respondents' attorneys that the Taxing Master, after having considered the VAT's invoice in the presence of Mr Meintjies on behalf of the Respondents and their attorney, issued an allocatur indicating that the Applicant was only entitled to s f e of R23 178-79.

[9] Pienaar asserts that the taxation proceedings as well as the allocatur issued by the Taxing Master are irregular in th it:

(a) Rule 70 (1) (a) of the Rules only makes provision for taxation of a bill of costs for services "rendered by an attorney in his capacity as such in connection with litigious work,"

(b) That the Taxing Master allowed taxation of a VAT invoice, which is not a bill of costs;

(c) That the Respondents were obliged to request the Applicant to furnish them with a bill of costs before any taxation could take place;

(d) That if this Court finds that the VAT invoice is a bill of costs, then the

Court should find that the VAT invoice was not for services, rendered

in connection with litigious work conducted by Pienaar in his capacity
as an attorney of the Respondents; and that

(e) Since no services were rendered as contemplated in Rule 7(1) (a) of the Rules on behalf of the Respondents in that regard, the Respondents ought to have referred the VAT invoice to the Law Society for taxation.

[10] The Taxing Master set out her findings of fact n a "Statement of Case" as follows:

"1. The purpose of the above-mentioned statement is to provide reasons why the bill dated 7 September 2007 was taxed in this Jurisdiction.

2. I confirm that Mrs Annamarie Kritzinger of Ktizinger of Kritzinger Attorneys and her cost consultant Charlene Meintjies appeared before me on the 7 September 2007,

3. Mrs Kritzinger informed me that she is appearing on behalf of th 1^st to 6^th applicant and placed before me documents marked annexure 1 - 15 to confirm appearance.

4. Further more they argued that this court has jurisdiction because of the following;

4.1 Parties are in Rustenburg which falls under the above-mentioned honourable court jurisdiction

4.2 Also that rule 67 a(ii) uniform rules state as follows:-

"on every bill of costs to be taxed which is not related to an action or

application already registered in the court". This rule provides as fee

to bring any bill of costs which is not elated to an action or

application already registered in the court to be taxed in that court.

5. Bill of costs

5.1. The applicant's argument is that this bill was not supposed to save been taxed because it was not an account of services rendered for work done in court.

5.2. That rule 70 (1) of the Supreme Court Act, only allows the taxing master to tax litigious work.

6. In order for me to respond to the above, I would like to bring the
following to the above Honourable Court, that a bill of costs can be taxed in the following stages.

6.1 Final order if granted with costs

6.2 Interim order is granted with costs

6.3 Where a plaintiff withdraws his/her action and consents to pa the defendant's costs

6.4 Where a party agrees to the other party's costs at any stage of the proceeding.

6.5 Where a client terminates his/her attorneys mandate.

After stating the abovementioned principles, I submit that, the bill was properly taxed before me, it was not an irregular procedure because of the following reasons:-

The 2^nd to 6^th applicant terminated mandate
There was no action or application registered with this court when we taxed the bill, it was brought within our jurisdiction by attaching a revenue stamp of R60-00

Review Items

Rule 48 uniform rules state clearly that a party may duly make a request only when a party is dissatisfied with ruling pertaining to any item or part on item that was objected to or disallowed on taxation. Since the above-mentioned procedure was not followed and the applicant also was not present during taxation, there is no need for me to state reason for items taxed off herein."

[11] The Third Respondent in his opposing affidavit on behalf of the

Respondents, avers that before the termination of the Applicant's

mandate as their attorney of record, Respondents mandated, Advocate

Haycock to give them legal advice on their sevitude rights on a farm

Dwaarspruit. Advocate Haycock was a member of the Pretoria Bar.

[12] He states that the Respondents were at all time s under the imppression that Advocate Haycock would represent them in he action or application against the owners of the plot who had allegedly breached their servitude rights at the Dwaarspruit farm. They deposited funds in trust," on several occasions into Advocate Haycock's account. He gave them several "trust" receipts for the money paid.

[13] After their first consultation with Advocate Haycock which was Four (4) months after having given him instructions to represent them, the Respondents became uncomfortable with his services as he lad not made any progress with regard to their case. They approached Advocate Haycock in that regard who in turn advised them to obtain the services of an attorney since he could not represent them without having been given instructions by an attorney.

[14] It was then that Advocate Haycock introduced them to Pienaar during May

2004. They were all the time under the impression that the Applicant's firm and

Advocate Haycock were taking care of their case.

[15] Respondents deposited more funds in Advocate Haycock's account and Advocate Haycock promised to take care of the disbursements and the fees (including those of the Applicant) from the money deposited in his account.

[16] The case did not take ground and the matter dragged up to February 2006 without the Applicant or Advocate Haycock preparing any pleadings initiating the action or application process. A period of almost two (2) years had elapsed when Advocate Haycock advise them to obtain the services of Advocate Raath (SC) the reason been that he was not competent to handle matters pertaining to servitudes.

[17] Advocate Raath was given instructions in their matter but after a period of four (4) months he withdrew his services, Pat Ellis (SC) was then given the brief and on the 23^rd October 2006 a consultation was held between the Respondents, Pienaar, Advocates Haycock and Pat Ellis.

[18] Advocate Pat Ellis wrote an opinion on this issue and Advocate Haycock prepared a draft notice of motion; but Advocate Pat Ellis advised that action proceedings should be taken instead, and that summons be issued out of this Court.

[19] Advocate Haycock asked for more fees which were allegedly for the payment of Advocate Pat Ellis's fees. Some of the Respodents paid the fees whereas others were reluctant to do so because of the substantial amount of fees already paid to Advocate Haycock.

[20] The services rendered by Advocate Pat Ellis, were writing out three memoranda

on various dates as well as drafting particulars of claim on the 11^th May 2007.

[21] During May 2007, the Respondents decided to seek a second opinion with regard to their matter. After having obtained the services of their present attorneys of record, they terminated the mandate of the Applicant as well as that of Advocate Haycock on the 31^st May 2007.

[22] The Respondents dispute some of services iternized in the VAT invoice alleged to have been rendered by the Applicant. They further assert that they had consultations with Applicant and the advocate with the intention of instituting legal proceedings in Court, but that the delay to institute the proceedings in Court was occasioned by the Applicant and the said Advocates Haycock and Pat Ellis.

[23] It is further argued by the Respondents that the consultations with Advocates Raath and Pat Ellis respectively were aimed at initiating proceedings and that draft particulars of claim were prepared by Advocate Pat Ellis in that regard, which is an indication that the services

rendered were in connection with litigious work.

[24] Respondents further submit, with regard to the notice to attend taxation proceedings, that the Applicant in addition to the notification per facsimile transmission, were notified per registered post through a letter dated 13^th August 2007. and notice delivered to the Applicants office on the 22^nd August 2008.

[25] With regard to the submission of the bill of costs to the Law Society, Respondents submit that the Applicant's firm had ample opportunity to prepare the account in a bill of costs format taxation. But further submit that the contents of the VAT invoice contain sufficient particulars which were succinctly itemized to enable taxation to be considered thereon.

[26] Respondents further intimate that should the Court find that the VAT invoice ought not to have been taxed in accordance with Rule 70 (1) (a) of the Rules, the Court should nevertheless find that the Taxing Master was correct in relying on Rule 67 (a) (ii) of the Rules for taxation of the VAT invoice.

[27] It is further asserted that in terms of Rule 8( of the Attorneys Law Society Practice Manual, the Law Society is not empowered to tax a bill of costs where litigation is involved, or where consultation takes place with a view to litigation, unless both parties agree thereto, which consent was refused by the Respondents.

The Issues

[28] The following issues raised by both parties hereto are:

(a)Whether or not the VAT invoice (Annexure D) can be subjected to taxation as a bill of costs as contemplated by Rule 70 1 (a) of the Rules; and

(b) Whether or not the allocatur should be reviewed and set aside, and if so, whether it should be set aside in terms of Rule 48 2) of the Rules.

The Law

[29] It is common cause that the Respondents, through their attorneys of record, requested Applicant to furnish them wich a bill of cost and also indicated that the bill of costs should be submitted for taxation by the Taxing Master. The Applicant suggested that the account be submitted to the Law Society for taxation which request was refused by the Respondents. It was within the Respondents' right not to concede to the request in view of the fact that Rule 80 of the Attorneys Law Society Practice Manual prescribes that:

"80.1 It shall be competent for the Council or any Committee appointed by

the Council for that purpose, at the request of any person or member,

to assess the fees and reasonable disbursements payable by such

person to a member in respect of the performance of work in his

capacity as a practitioner, provided that the council or the Committee shall not assess fees or disbursements;

80.1.1 in instances where a state official is empowered to do so; or

80.1.2 where the work concerned is already covered by a statutory I riff; or

80.1.3 in litigious matters, unless the parties agree that the fees and disbursements are subject to assessment by the Court or a Committee appointed by the Council for that purpose."

[30] The Respondents have always insisted on the bill of costs or VAT invoice being submitted to the Taxing Master because their instructions to the Applicant were in respect of, or related to "litigitius work" regarding their action which was to be proceeded within this court. The Respondents' instruction to the Applicant an i the advocates was for them to take action in a Court of Law in order to protect thier right to a servitude which was apparently infringed. The nature of the instruction falls within the purview of litigious work referred to in Rule 70 (1) (a). Compare In Re Isaacs v Bloch 1990 (4) SA 59 ' (TPD) at 601 D - F.

[31] The Taxing Master is allowed to tax a bill of costs, which is not related to an action or application already registered in the Court. See Rule 67(a) (ii). The position in the present application is th at the consultations were related to litigious work. The application or action was not yet registered with the Registrar but preparations were being made in that regard.

[32] Ms Zwiegelaar, on behalf of the Applicant, argured that the VAT invoice

submitted does not qualify for taxation as contemplated by Rule 70 (1)

(a) because a bill of costs should set out items clearly and uccinctly

which is not the position with Annexure D in that it does not contain

sufficient information to enable the Taxing Master and the of the party to

establish the fee for the work done. She specifically refered to an

amount of R47 000-15 which is reflected as expenditure or the VAT
invoice.

[33] In support of her submission, she referred to City Deep Ltd v Johannesubrg City Council 1973 (2) SA 109 (WLD). There s no merit in this argument because the expenditure reflected in Annexure D, has been succinctly itemized in the VAT invoice and the total thereof reflected under sub-totals. The VAT invoice as a whole las been prepared with each and every item described, the amount charged and date to which such item relates in order to justify payment thereof.

[34] I am satisfied that the Taxing Master was empowered by Rule 70 (1) (a) of the Rules to subject the VAT invoice to taxation as a bi of costs because litigious work was performed by the Applicant on behalf of the Respondents.

Review of taxation

[35] Rule 48 provides that:

'(1) Any party dissatisfied with the ruling of the taxing master as to an 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 bynotice

require the taxing master to state a case for the decision of a judge.

(2) The notice referred to in subrule (1) must —

(a) identify each item part of an item n respect of wich the decision of the taxing master is sought to be reviewed;

(b) contain the allegation that each such item or part there was objected to at the taxation by the dissatisfied party, or that it was mero motu disallowed by the taxing master;

(c) contain the grounds of objection relief upon by the dissatisfied party at the taxation, but not argument in support thereof and

(d)contain any finding of fact which the dissatisfied party contends the taxing master has made and which the dissatisfied party intends to challenge' stating the ground of such challeng, but not argument in support thereof.

(3) The taxing master must -

(a)supply his or her stated case to each of parties withn 10 days after he or she has received a notice referred to in subrule (1); and

set out any finding of fact in the st; ted case."

[36] The applicant cannot profess to be relying on I lis Rule for the purpose of

this review since the procedure prescribed therein was not followed.

There is no application for condonation for the late filing thereof, which

application ought to have been filed within 15 days after the allocatur.

[37] In the notice of motion, the Court is not called upon to disallow an item

in the VAT invoice, but rather to set aside the allocatur issued by the

Taxing Master on the basis that she did not have jurisdiction to tax a VAT invoice.

[38] It would appear as if the review application is in accordance with the procedure prescribed in Rule 53, because the Applicant in the notice of motion makes reference to Rule 53 (4) of the Rules.

[39] Ms Zwiegelaar submitted that the order sought by the Applicant is in

terms of Rule 42 (1) (a) of the Rules. In an effort to persuade the to find

that this Rule is applicable, she argued that the allocatur was issued in

the absence of the Applicant and because of that this Court is
empowered to review and set it aside.

[40] I find no merit in this submission since Rule 42 s applicable only where the rescission or variation of a Court Order or judgement is sought. The

grounds for such variation or rescission are at variance with those required in a review application. In the present case, Applicant was given reasonable notice of the taxation and did not indicate his intention to oppose the taxation.

[41] The reasons for failure to attend the taxation by Pienaar are not convincing. His conduct is indicative of lack of diligence on his part. I am of the view that his reasons for not attending the taxation are not convincing in that Pienaar has failed to show any good and u justifiable cause for such failure.

[42] I consequently find that the Taxing Master had the power to tax the VAT invoice submitted and further that she had the power to do so in accordance with Rule 70 (1) (a) of the Rules of this Court.

[43] I accordingly make the following order:

The application is dismissed with costs.

M M LEEUW

JUDGE OF THE HIGH COURT