Botha v Themistocleous

• Jurisdiction: South Africa
• Judge: Hill J, Ludorff J and Theron J
• Judgment Date: 22 October 1965
• Court: Transvaal Provincial Division
• Hearing Date: 02 September 1965
• Citation: 1966 (1) SA 107 (T)

Hill, J.:

This is an appeal against the decision of VILJOEN, J., in an application for review of taxation of a bill of costs. The appellant, an D attorney practising in Johannesburg, was the first respondent and the Taxing Master of the Witwatersrand Local Division was the second respondent in an application in which the applicant, who is the respondent in this appeal, claimed an order setting aside the taxation of the bill of costs of the appellant as taxed on 5th May, 1964, and certain other relief.

E The bill was drawn to represent fees and disbursements as between attorney and client in respect of services which the appellant was required to render in terms of a deed of sale entered into by the respondent, as seller, and certain Mabel Williamson, as purchaser, whereby all the assets, including the goodwill of a business known as F Kleanwell Dry Cleaners, were sold to Mrs. Williamson for the sum of R5,000 plus the value of the stock in trade calculated at the cost price thereof.

In terms of clause 4 of the agreement the sum of R2,000 as a deposit in respect of the purchase price was to be paid to the appellant to be held in trust pending the registration of transfer of the business licence into the name of the purchaser.

G Clause 16 contained the following provisions:

'16.

Should the seller require the said D. H. Botha & Co. to issue guarantees ex the deposit, such guarantees will be as follows:

(a)

the guarantee will be subject to the seller conforming to the conditions of the deed of sale;

(b)

subject to the licences being duly granted;

(c)

the seller will pay for such guarantees and the said D. H. Botha H & Co. will deduct the costs thereof, together with his share of the costs of this agreement, from the said moneys held in trust.'

Copies of three bills, headed respectively bill No. 1, bill No. 2 and machinery bill, together with a notice that they would be taxed on 5th May, 1964, were served on the respondent's attorneys.

The respondent, who was represented at the taxation by his attorney, objected to the taxation of bill No. 2 and the machinery bill on the ground that the appellant had no mandate to incur the costs reflected in the bills. He alleged in the petition that the appellant acted for the purchaser

Hill J

Mabel Williamson in connection with the disputes and negotiations which arose from the deed of sale. This objection, which involved a question of law, was not in issue in the petition.

A In regard to bill of costs No. 1, the respondent did not dispute the appellant's right to tax a bill for services rendered by him but objected to certain items in the bill on various grounds, which were classified by VILJOEN, J., as follows:

1.

Services not rendered.

2.

Wrong tariff applied by the Taxing Master.

3.

B No liability for certain services rendered on the ground of no mandate having been given by the respondent to the appellant.

4.

Generally, that the fees were excessive.

The respondent succeeded on the first and third grounds of review and in his concluding remarks the learned Judge says:

'In view of the difficulty of specifying the items on which the C applicant has succeeded in this review, I deem it proper to set aside the entire bill of costs. Bearing in mind my decision in the present case, the...