Grindlays International Finance (Rhodesia) Ltd v Ballam

JurisdictionSouth Africa
Citation1985 (2) SA 636 (W)

Grindlays International Finance (Rhodesia) Ltd v Ballam
1985 (2) SA 636 (W)

1985 (2) SA p636


Citation

1985 (2) SA 636 (W)

Court

Witwatersrand Local Division

Judge

Kriegler J

Heard

October 16, 1984

Judgment

October 16, 1984

Flynote : Sleutelwoorde B

Costs — Taxation — Two attorneys' fees — Local and foreign attorney necessarily involved — Foreign attorney outside Republic and not subject to discipline of Supreme Court of South Africa — Taxing Master unable to tax bill in terms of Rule 70 (1) (a) of Uniform Rules of Court on its own C — Foreign attorney's bill taken into account in taxation of domestic bill — Taxing Master will consider bill as voucher to be scrutinised — Reliance placed on certificate of Taxing Officer of foreign Court by Taxing Master to greater or lesser extent depending on circumstances — Rules of taxation of bills outlined — Taxation of — Two attorneys — Local and foreign attorney necessarily involved — Taxing Master signing allocatur on domestic bill — Foreign bill not capable of independent taxation — Taxing Master able to reopen bill by consent of party in whose favour ruling made even if E allocatur signed — Defendant having consented to bill being taxed — Domestic and foreign bill sent to Taxing Master for reassessment.

Headnote : Kopnota

Whether one looks to the defintion of "attorney" in Rule 1 of the Uniform Rules of Court or whether one looks to the definition of the word as contained in the Attorneys' Act 53 of 1979, a foreign attorney, ie one practising outside the Republic of South Africa and not subject to the discipline of any one of the Divisions of the Supreme Court of South Africa, F cannot be regarded as a person whose bill of costs a Taxing Master is empowered by Rule 70 (1) (a) to tax. A Zimbabwean attorney's bill of costs (and any other foreign attorney's bill) can certainly be taken into account in a South African taxation of a domestic bill of costs. A South African Taxing Master will consider such a foreign bill in exactly the same way as he would consider any voucher for work done in G connection with a law suit the costs of which he is obliged to tax. He will not take it at face value. He will scrutinise the foreign bill and will, depending upon the circumstances, place a greater or lesser degree of reliance upon a certificate emanating from the office of his opposite number in the foreign Court.

Plaintiff, a company incorporated in Zimbabwe, sued defendant in the Court (a Local Division) where he was domiciled for R18287,48. During June 1982, defendant made a payment of R50 H into Court, in terms of Rule 34 (2), without prejudice as an offer of settlement and tendered to pay costs to date of settlement. The tender was accepted and plaintiff submitted two bills for debate, one from the local attorneys and one from the attorneys in Harare. The defendant's attorney objected to the form of the Harare bill which was withdrawn by consent to be redrafted and taxation thereupon postponed sine die. On 12 September 1983 plaintiff's Johannesburg bill was submitted to I the Taxing Master for signature of his allocatur. On 8 March 1984 the Harare bill was presented for taxation. The bill was accompanied by a certificate from the Taxing Officer of the High Court of Zimbabwe stating that the bill was in accordance with the tariff but that the certificate "does not imply that the within bill of costs has been taxed by me and the reasonableness thereof is a matter for consideration by the Taxing Master concerned". The bill was objected to by defendant's attorney and the Taxing Master upheld this objection and refused to tax it. Plaintiff contended that where J more than one attorney has necessarily been engaged, each attorney is entitled to draw up

1985 (2) SA p637

and have taxed a bill of costs and this was so irrespective of A whether one of these attorneys practised in a foreign country. It was contended that it had been a long established practice in our Courts to recognise foreign attorneys for purposes of taxation, particularly those from Zimbabwe and the United Kingdom. Plaintiff submitted that it mattered not whether the foreign bill was "taxed" as a bill of costs or whether it was scrutinised as a voucher - those were merely questions of semantics. Once a foreign bill was accompanied by an appropriate certificate from the Taxing Officer and a copy of B the tariff was available for the Taxing Master, there could be no objection in principle or practice to a taxation or assessment of such a foreign attorney's bill of costs. Plaintiff conceded that, once a bill of costs representing all a litigant's fees and disbursements had been taxed, he cannot tax another bill in the absence of an agreement or an order of Court, but in the present matter the Harare attorney's bill had C been withdrawn at the express instance of defendant. Defendant contended that the power vested in the Taxing Master by Rule 70 (1) (a) to tax a bill of costs did not extend to services rendered by attorneys not admitted in any part of the Republic, that the Harare attorney's bill had formed no part of the local attorney's bill and that, inasmuch as the Taxing Master had already affixed his allocatur, he was functus officio.

Held, that the Taxing Master's refusal to tax the Harare attorney's bill of costs must be upheld as having been well D founded.

Held, further, that as a Zimbabwe bill was not capable of taxation in terms of Rule 70 (1) (a), it was not capable of independent taxation but must form part of the Johannesburg bill of costs and it could not be taxed by the Registrar once the Johannesburg bill had been completed and its allocatur had been signed.

Held, further, that there was no reason in principle why a E party in whose favour a ruling had been made by a Taxing Master, even if such ruling has been formally certified with a signature, could not consent to its reversal.

Held, further, on the facts, that defendant had consented to the separate and subsequent scrutiny of the Zimbabwean bill once it had been presented.

Held, accordingly, that the matter should be referred back to the Taxing Master for scrutiny of the Zimbabwean bill and that no order of costs should be made. F

Case Information

Review of taxation. The facts appear from the reasons for judgment.

Judgment

Kriegler J:

This is a review of taxation in terms of Rule 48 of the Uniform Rules of Court. There are two points at issue, the G one raised by the defendant and the other by the plaintiff. The first is whether certain trial costs allowed by the Taxing Master should have been taxed off as having been covered by an order that the plaintiff pay certain wasted costs. The second is whether the Taxing Master was correct in refusing to tax a bill relating to services rendered by the plaintiff's Zimbabwe H attorneys. Those issues arose in the following circumstances.

The plaintiff, a company incorporated in Zimbabwe and having its head office in Harare, instituted action in this Division, the Court of domicile of the defendant, claiming R18287,48, interest thereon and costs. After close of the pleadings the matter was enrolled for hearing on 31 May 1981. On that day the I trial did not proceed. The plaintiff was granted leave to amend its pleadings and the hearing was postponed sine die. The plaintiff was ordered to pay the wasted costs of the postponement. On 16 June 1981 the plaintiff delivered its amended pleadings and in due course 9 November 1982 was allocated as the fresh trial date. On 11 June 1982, however, the defendant paid the sum of R50 into Court in terms of Rule J 34 (2), ie without prejudice as an offer of settlement.

1985 (2) SA p638

Kriegler J

A Defendant in its notice of payment into Court tendered the costs to date of tender. After certain negotiations that tender was accepted. On 18 April and 8 June 1983 the parties' representatives appeared before the Taxing Master. Two bills were debated. The one related to services rendered by the B Johannesburg attorneys of the plaintiff and the other to services rendered by its Harare attorneys. The defendant's attorney objected to four items in the Johannesburg bill and raised certain objections in principle to the form in which the Harare bill had been prepared. The Taxing Master proceeded to deal with the Johannesburg bill and in the course of his C taxation thereof overruled the objection to the four items in question. As far as the Harare bill was concerned, that was withdrawn by consent with a view to its being redrafted. The taxation was thereupon postponed sine die.

On 26 August 1983 the defendant's attorney addressed a letter to the plaintiff's Johannesburg attorneys, the relevant portion of which read as follows:

D "I would now be pleased to learn precisely what your intentions are in regard to the taxation of the bills of costs. As you are aware, the bills of costs prepared by you and your correspondents were taxed during the course of two days and a considerable amount of time, effort and money has been spent in the taxation of the bills.

I note with surprise your client's enrolment of the matter in E terms of Rule 47 (1) of the Transvaal Rules, notwithstanding the fact that the taxation has as yet not been completed. In regard to your own bill of costs, as I understand the matter, all that is required is the Taxing Master's signature on the allocatur and, as regards the bill of your correspondents, I understand that it was your intention to have same redrafted or amended.

Whilst it is conceded that your client would accept my client's F tender only in the event that the R50 tendered and the taxed costs were paid, it was clearly a term of the agreement that your client would proceed to have the bills taxed. It is clearly only in the event that upon taxation my client either fails or refuses to pay the amount of...

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4 practice notes
  • Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?
    • South Africa
    • Juta South African Law Journal No. , August 2022
    • 25 August 2022
    ...v Waterberg Landbouwerkers Kooperatiewe Vereniging supra note 74 at 608; G rindlays Inte rnational Fin ance (Rh odesia) Ltd v Balla m 1985 (2) SA 636 (W) at 645E. © Juta and Company (Pty) Ltd TAXATION OF LEG AL COSTS 637 https://doi.org/10.47348/SALJ/v139/i3a6nancia l pain to deter wholly ......
  • Henpet Shades CC v Garzouzie and Another
    • South Africa
    • Invalid date
    ...City Council 1973 (2) SA 109 (W): dicta at 117C and 119H--120E A applied Grindlays International Finance (Rhodesia) Ltd v Ballam 1985 (2) SA 636 (W): dictum at 645E Hastings v The Taxing Master and Another 1962 (3) SA 789 (N): referred to Knipe v Venter 1965 (4) SA 1 (C): referred to B Meer......
  • New Diamond Corporation (Pty) Ltd and Another v Zone One Diamonds (Pty) Ltd (formerly Skeat Mining (Pty) Ltd and Others
    • South Africa
    • Northern Cape Division
    • 4 March 2005
    ...will be entitled not to allow unnecessary duplication of fees and costs (see Grindlays International Finance (Rhodesia) Ltd v Ballam 1985 (2) SA 636 (W) at 2005 JDR 0528 p29 Olivier J [59] In view of the conclusion to which I have however come regarding the second applicant, and indeed as a......
  • J.A. Le Roux Attorneys v Madaza
    • South Africa
    • Eastern Cape Division
    • 1 April 2017
    ...his or her authority to tax bills of costs from Rule of Court 70(1)(a). In Grindlays International Finance (Rhodesia) Ltd v Ballam 1985 (2) SA 636 (W) at 645E it was stated that Rule 70(3) "With a view to affording the party who has been awarded an order for costs a full indemnity for all c......
3 cases
  • Henpet Shades CC v Garzouzie and Another
    • South Africa
    • Invalid date
    ...City Council 1973 (2) SA 109 (W): dicta at 117C and 119H--120E A applied Grindlays International Finance (Rhodesia) Ltd v Ballam 1985 (2) SA 636 (W): dictum at 645E Hastings v The Taxing Master and Another 1962 (3) SA 789 (N): referred to Knipe v Venter 1965 (4) SA 1 (C): referred to B Meer......
  • New Diamond Corporation (Pty) Ltd and Another v Zone One Diamonds (Pty) Ltd (formerly Skeat Mining (Pty) Ltd and Others
    • South Africa
    • Northern Cape Division
    • 4 March 2005
    ...will be entitled not to allow unnecessary duplication of fees and costs (see Grindlays International Finance (Rhodesia) Ltd v Ballam 1985 (2) SA 636 (W) at 2005 JDR 0528 p29 Olivier J [59] In view of the conclusion to which I have however come regarding the second applicant, and indeed as a......
  • J.A. Le Roux Attorneys v Madaza
    • South Africa
    • Eastern Cape Division
    • 1 April 2017
    ...his or her authority to tax bills of costs from Rule of Court 70(1)(a). In Grindlays International Finance (Rhodesia) Ltd v Ballam 1985 (2) SA 636 (W) at 645E it was stated that Rule 70(3) "With a view to affording the party who has been awarded an order for costs a full indemnity for all c......
1 books & journal articles
  • Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?
    • South Africa
    • Juta South African Law Journal No. , August 2022
    • 25 August 2022
    ...v Waterberg Landbouwerkers Kooperatiewe Vereniging supra note 74 at 608; G rindlays Inte rnational Fin ance (Rh odesia) Ltd v Balla m 1985 (2) SA 636 (W) at 645E. © Juta and Company (Pty) Ltd TAXATION OF LEG AL COSTS 637 https://doi.org/10.47348/SALJ/v139/i3a6nancia l pain to deter wholly ......

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