General Leasing Corporation Ltd v Louw

JurisdictionSouth Africa
Citation1974 (4) SA 455 (C)

General Leasing Corporation Ltd v Louw
1974 (4) SA 455 (C)

1974 (4) SA p455


Citation

1974 (4) SA 455 (C)

Court

Cape Provincial Division

Judge

Baker J

Heard

August 1, 1974

Judgment

August 1, 1974

Flynote : Sleutelwoorde

Costs — Party and party — Attorney's fees — Perusal A of record in earlier proceedings under Rule 70 (3) — Granting of — "Record" — What included — Copying of protion of record — Granting of — Wasted costs — Day wasted through no fault of either party — Matter crowded out of roll until following day — Costs to be costs in the cause payable by loser — Attorney's fees payable on B ordinary common law basis of costs wasted — Such not "waiting" under item E (1) of tariff — Amount thereof to be determined by Taxing Master — Counsel entitled to refreshers.

Headnote : Kopnota

If a party in a forthcoming action in which cross-examination C as to his opponent's witnesses' credibility will be vital to him, has reasonable grounds for believing that the evidence given by or on behalf of his opponent in a previous matter might assist him in the conduct of the forthcoming case in attacking the credibility of his opponent or his opponent's witnesses, he is justified in perusing that earlier evidence and in charging his opponent in terms of Rule 70 (3) for "perusal of record", should he in the result be the winner. The possibility that such a "prospecting trip" might be D unproductive is immaterial. The question is, was it reasonable to have undertaken the "prospecting trip" in the first place.

Where the Taxing Master had failed to follow this approach and had, as a result, in the exercise of his discretion, held that certain charges for perusing a record and for copying 186 pages thereof should be taxed off, the Court, in a case stated under Rule 48 (1), held that the perusal charges should be allowed, but only on the basis that the record was "material" in terms of scale B (1) (b), and not on the basis of its being E "important" as contemplated in the tariff, B (1) (a). (The word "record" in tariff B (1) (b) clearly includes Court records, records of commissions of enquiry, and enquiries under the Insolvency Act). The Court also held that the charges for copying 186 pages of the record should have been allowed, as being useful, in terms of Rule 70 (6) (b) as amended, though, had it emerged that only parts of the portion copied were useful, the costs of copying the unhelpful parts would correctly have been disallowed.

F The costs of a day wasted but not attributable to the default of either party should be costs in the cause.

Where a matter is crowded out by an earlier case exceeding its allotted time, with the result that this case has to be postponed until the following day, the costs of a day being wasted, a matter contemplated by Rule 34 (4) (c) of the Cape Rules of Court, as far as the attorneys are concerned this wasted day is not a day of "waiting" within the meaning of "waiting" in item E (1). The attorneys are, however, entitled G to remuneration on the ordinary common law basis of costs wasted, and the loser should pay these costs. The question how much he should pay is a matter for the Taxing Master. Therefore, where the Taxing Master had applied a wrong basis in disallowing such costs, the Court referred the items back to the Taxing Master for him to assess how much was to be allowed.

Counsel are entitled to charge a refresher for a wasted day, also to be debited to the losing party as wasted costs in the cause. H

Case Information

Review of taxation on a case stated in terms of Rule of Court 48 (1).

Judgment

Baker, J.:

In a case stated in terms of Rule 48 (1) the Taxing Master says that plaintiff instituted action against defendant for damages by way of a combined summons dated 12 November 1970. Paras. 3 and 4 of the particulars of claim as amended read as follows:

1974 (4) SA p456

Baker J

"3. On 11 November 1969 and at Cape Town the parties hereto entered into a written deed of suretyship in terms whereof the defendant aforesaid bound himself jointly and severally as surety and co-principal debtor for the due payment of all sums which were then owing or which might thereafter become owing by Zano Electronics (Pty.) Ltd. (hereinafter referred to as 'Zano') to plaintiff. A copy of the said deed of suretyship is annexed hereto marked 'A'.

A 4. As at the date hereof the amount due and owing by Zano to plaintiff is the sum of R22 457,50, being damages due and owing by Zano to plaintiff in respect of certain written agreements in terms of which plaintiff leased certain articles to Zano. Details showing how the said amount of R22 457,50 is made up are set out in the schedule annexed hereto and marked 'B'."

Defendant pleaded that the true transactions between the B plaintiff and Zano were really a series of hire-purchase agreements and that the documents annexed to plaintiff's further particulars were executed to disguise the true transactions and to simulate leases. Defendant amplified his plea by further particulars saying that the documents were in themselves agreements of lease, but that, prior to the signing of the written agreements, it was orally agreed between C plaintiff and Zano, represented by one D. R. Janse van Vuuren, that, after the expiry of the period of the leases, Zano should pay to plaintiff certain sums as fixed in the agreements and that thereafter Zano would have the right to remain in possession of the goods without further payment. Accordingly the written agreements, together with the oral agreements, were D deemed to be of the same import as hire-purchase agreements.

The matter was set down for hearing on Thursday, 20 April 1972, but on that day a Judge was not available to hear the matter and the hearing started on Friday, 21 April 1972. The case was not completed on that day and it was adjourned to Monday, 24 E April 1972. On 21 April defendant paid into Court a sum of money which was accepted by plaintiff on that day after the adjournment of the Court. The presiding Judge was informed of this in his Chambers on Monday, 24 April, and he then made an order that the costs be paid by defendant.

Plaintiff thereafter presented its bill of costs. In this bill were reflected certain items of costs relating to an enquiry F held before the Master on 22 January, 5 March, 21 April and 26 May 1971, into the affairs of Zano Electronics (Pty.) Ltd., which company had been placed in final liquidation by an order of this Court granted on 18 March 1970. Defendant, a shareholder in Zano Electronics (Pty.) Ltd., and Mr. Janse van Vuuren, its managing director, both gave evidence at the enquiry.

G In the bill of costs appeared three items, for R279, R111,60 and R55,80, respectively, relating to this enquiry. These were taxed off by the Taxing Master on the ground that he could find nothing in the evidence of defendant or Janse van Vuuren given at the enquiry which could be held to have been relevant to the issues raised in the pleadings in this case.

H In the bill of costs there also appeared items charged for on the basis that the trial had lasted for two days (20 and 21 April 1972, as indicated above). The Taxing Master allowed fees in respect of one day's hearing only, and taxed off the four items set out below.

The taxing-off of the seven items mentioned caused the plaintiff's attorneys to lodge, on 12 December 1972, the following notice in terms of Rule 48 (1):

1974 (4) SA p457

Baker J

"Be pleased to take notice that plaintiff hereby requires the Taxing Master to state a case in terms of Rule 48 (1) relating to the undermentioned items, which were disallowed by the Taxing Master on taxation on Tuesday, 7 November 1972.


1972

April 1

Perusal of record of the Master's enquiry 186 pages at 3 folios per page - 558

R279

Copying for counsel and to keep 186 pages (558) folios @ 20c and 186 pages (558 folios) @ 10c

R111,60
R 55,80

April 20 (No Judge)

4 hours set aside by attorney (R7,50 per ½ hour)

R 60

Articled clerk (R1,05 per ½ hour)

R 4,20

April 24

Paid senior counsel for-

(c)

refresher

R350

Paid junior counsel for-

(c)

refresher

R250

(It is not disputed that this item should be reduced to R175)."


On 2 April 1973, the Taxing Master filed his stated case, the essence of which I have set out almost verbatim above. At the conclusion of his stated case the Taxing Master sets out the questions for decision as follows:

"(a)

D Whether the proceedings before the Master were relevant to the issues raised in the pleadings in this case.

(b)

Whether, as between party and party, fees can be allowed to an attorney and counsel for a day on which E a case cannot be heard because a Judge is not available."

The plaintiff's attorneys thereupon submitted contentions in terms of Rule 48 (2). These were lodged with the Taxing Master and the attorneys for defendant on 24 April 1973. The latter in a letter dated 2 May 1973, intimated to the Registrar that they did

"not intend to advance contentions other than that advanced at F the taxation of the plaintiff's bill of costs".

I am informed by the Taxing Master that the defendant's contentions were merely that

(a)

the record of evidence led before the Master into the affairs of the insolvent Zano Electronics (Pty.) Ltd., G was not relevant to the action between General Leasing and defendant; and

(b)

the attorney's fees for the day on which a Judge was not available to hear the case (20 April) and the refreshers paid to counsel in consequence of the trial having started on the following day (21 April) were correctly disallowed.

H In response to the contentions filed by plaintiff's...

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4 practice notes
  • Van Rooyen v Commercial Union Assurance Co of SA Ltd
    • South Africa
    • Invalid date
    ...per SMIT AJP in Preller v Jordaan and Another 1957 (3) SA 201 (O) at 203C - E. See also, eg, General Leasing Corporation Ltd C v Louw 1974 (4) SA 455 (C) at 461 - 462; Uniform Rules of Court (supra at 324); Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3......
  • Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Others
    • South Africa
    • Transvaal Provincial Division
    • 20 June 1989
    ...a record should be allowed, on the basis that the record was 'material' in terms of item B(1)(b). (General Leasing Corp Ltd v Louw 1974 (4) SA 455 (C) at 462 - Therefore I allowed the perusing of the record on a time basis, namely 30 hours @ R60 per hour in the amount of R1 800 and the amou......
  • Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Others
    • South Africa
    • Invalid date
    ...a record should be allowed, on the basis that the record was 'material' in terms of item B(1)(b). (General Leasing Corp Ltd v Louw 1974 (4) SA 455 (C) at 462 - Therefore I allowed the perusing of the record on a time basis, namely 30 hours @ R60 per hour in the amount of R1 800 and the amou......
  • Canon Service and Supplies (Pty) Ltd v Lowick NO and Another
    • South Africa
    • Invalid date
    ...v Mervis and Others 1970 (3) SA 594 (W) J at 597B-G. See also General Leasing 1995 (3) SA p154 Schabort J Corporation Ltd v Louw 1974 (4) SA 455 (C) at 462H-463; Brivik Bros (Pty) Ltd v Balmoral Sales Corporation (Pty) Ltd 1978 (4) SA 716 (W) at 720A-F. A The applicant's objection to the Ta......
4 cases
  • Van Rooyen v Commercial Union Assurance Co of SA Ltd
    • South Africa
    • Invalid date
    ...per SMIT AJP in Preller v Jordaan and Another 1957 (3) SA 201 (O) at 203C - E. See also, eg, General Leasing Corporation Ltd C v Louw 1974 (4) SA 455 (C) at 461 - 462; Uniform Rules of Court (supra at 324); Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3......
  • Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Others
    • South Africa
    • Transvaal Provincial Division
    • 20 June 1989
    ...a record should be allowed, on the basis that the record was 'material' in terms of item B(1)(b). (General Leasing Corp Ltd v Louw 1974 (4) SA 455 (C) at 462 - Therefore I allowed the perusing of the record on a time basis, namely 30 hours @ R60 per hour in the amount of R1 800 and the amou......
  • Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Others
    • South Africa
    • Invalid date
    ...a record should be allowed, on the basis that the record was 'material' in terms of item B(1)(b). (General Leasing Corp Ltd v Louw 1974 (4) SA 455 (C) at 462 - Therefore I allowed the perusing of the record on a time basis, namely 30 hours @ R60 per hour in the amount of R1 800 and the amou......
  • Canon Service and Supplies (Pty) Ltd v Lowick NO and Another
    • South Africa
    • Invalid date
    ...v Mervis and Others 1970 (3) SA 594 (W) J at 597B-G. See also General Leasing 1995 (3) SA p154 Schabort J Corporation Ltd v Louw 1974 (4) SA 455 (C) at 462H-463; Brivik Bros (Pty) Ltd v Balmoral Sales Corporation (Pty) Ltd 1978 (4) SA 716 (W) at 720A-F. A The applicant's objection to the Ta......

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