Groenewald v Selford Motors (Edms) Bpk

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Vos AJ
• Judgment Date: 01 June 1971
• Citation: 1971 (3) SA 677 (C)
• Hearing Date: 01 June 1971

Vos, A.J.:

The applicant was the plaintiff in an action G instituted against defendant, respondent in this review. I shall refer to the parties as plaintiff and defendant.

The action was for cancellation of a sale in terms of which defendant sold a motor vehicle to plaintiff. The matter was settled, and a notice of removal from the roll was filed one H day before the trial. Defendant undertook to pay plaintiff's party and party costs.

Plaintiff resides at Thaba'Nchu. Bills of costs were submitted by both his Bloemfontein and his Cape Town attorneys.

From the bill of the Bloemfontein attorneys the Taxing Master taxed off the following items:

(a)

Return air fare for the attendance of Bloemfontein attorney at the trial in Cape Town - R57,10.

Vos AJ

(b)

Return air fare for counsel travelling from Bloemfontein to Cape Town and back - R57,10.

(c)

Accommodation of Bloemfontein attorney - R19,80.

(d)

Paid Port Elizabeth correspondents for work done in A regard to a Port Elizabeth witness - R50.

Plaintiff's attorneys thereupon required the Taxing Master to state a case for the decision of a Judge in terms of Rule 48. The Taxing Master has done so, and, after setting out the background of the matter and the disputed items, proceeds to say:

"5. Ten opsigte van items (a), (b) en (c) het verweerder B beswaar gemaak teen die ekstra koste wat eiser aangegaan het daar hy van 'n advokaat wat in Bloemfontein praktiseer gebruik gemaak het en omdat die Bloemfonteinse prokureur die Hof bygewoon het.

Ten opsigte van item (d) het verweerder beswaar gemaak, (i) omdat geen formele rekening t.o.v. die werk wat deur die Port Elizabeth prokureurs gedoen is vir taksasie voorgelê is nie, en (ii) dat die informasie wat eiser nodig gehad het reeds skriftelik ingewin is en die werk dus op onnodige duplikasie neerkom.

C Ek het besluit ten gunste van verweerder en al vier items geheel en al afgetakseer.

6. Die volgende vrae word gestel vir beslissing -

(a)

in die omstandighede van hierdie saak was dit noodsaaklik vir eiser (i) om van die dienste van 'n Bloemfonteinse advokaat gebruik te maak en (ii) dat sy Bloemfonteinse prokureur die verhoor bywoon; en

(b)

kan die rekening van 'n prokureur wat as korrespondent D optree in die opdraggewende prokureur se kosterekening opgeneem word bloot as 'n uitgawe of moet sy gespesifiseerde rekening formeel vir taksasie voorgelê word, en in die omstandighede van hierdie saak is die koste wat deur die Port Elizabeth prokureurs aangegaan is, wel toelaatbaar."

In terms of Rule 48 (2) written contentions were filed on behalf of plaintiff. Defendant's attorneys declined to comment but said their attitude must not be taken to amount to an E admission. Thereafter the Taxing Master reported as follows:

"1. In this report I refer to the disputed items as they appear in para. 4 of the stated case, i.e. (a), (b), (c) and (d).

2. Items (a), (b) and (c): Plaintiff's Cape Town attorney was fully instructed up to the close of pleadings. Plaintiff thereafter elected to employ his Bloemfontein attorney to F attend consultation for the conduct of the trial and negotiate the settlement. Had the Cape Town attorney and a Cape Town counsel been employed, the extra costs as set out in (a), (b) and (c) would not have been incurred. Plaintiff's attorney advanced no reasons at the taxation which persuaded me that this was a case where plaintiff's country attorney should be allowed to conduct the trial. Had Cape Town counsel been employed the costs as set out in 'c' would not have been incurred. I therefore ruled that the extra costs should be at plaintiff's expense, i.e. attorney and client costs.

3. Item (d): The 'detailed account' is not a bill of costs.

G Plaintiff's attorney had obtained the information required from the Port Elizabeth witness by way of a letter. A pre-trial consultation would in due course have been held with the witness, and defendant's attorney therefore objected to the costs incurred by the Port Elizabeth attorney as it amounted to unnecessary duplication of work. At no stage was any suggestion made that the information could be placed before the court by way of a letter.

I ruled that the Port Elizabeth attorney's account was not H taxable in the form in which it was submitted and indicated that I agreed with defendant's attorney's contention that there was unnecessary duplication of work. I therefore taxed off the amount of R50."

Supplementary contentions were filed on behalf of plaintiff.

The law to be applied in this matter requires consideration.

In the Transvaal the rule is that the Court will in a review of this kind interfere with the decision of the Taxing Master if he has disregarded relevant factors, or has had regard to improper factors or he has given a decision which no reasonable man could have given or

Vos AJ

if the Court is clearly satisfied that the Taxing Master is wrong - see e.g. Century Trading Co. (Pty.) Ltd. v The Taxing Master and Another, 1958 (1) SA 78 (W) at p. 84A - F; Adamant Laboratories (Pty.) Ltd. v General Electric Co., 1964 (3) SA 363 (T) at p. 366A, and the authorities therein A referred to; and cf. Fanels (Pty.) Ltd. v Simmons, N.O. and Another, 1957 (4) SA 591 (T) at p. 593F. The effect of these authorities is that this form of review rests upon a wider basis than a review strictu senso. I would observe that these decisions were arrived at prior to the Uniform Rules of Court B coming into operation in 1965.

The Transvaal rule seems to have been adopted in the Eastern Cape by CLOETE, J., in Minister of Water Affairs v Meyburg, 1966 (4) SA 51 at p. 52E, although the learned Judge did not specifically allude to the difference between the previous Transvaal Rule and the present Uniform Rule 48. See also Paton C v. Santam Insurance Co. Ltd., 1967 (1) SA 98 (E) at p. 100E.

In Natal the position appears to be the same as in the Eastern Cape - see Buonanno v The Taxing Master, 1965 (2) SA 653 (N) at p. 658C.

In the recent case of Windhoek Crushers (Pty.) Ltd. v Voigts D en 'n Ander, 1969 (1) SA 574 (SWA), the legal nature of this kind of...