Henpet Shades CC v Garzouzie and Another

• Jurisdiction: South Africa
• Judgment Date: 28 January 1998
• Citation: 1998 (3) SA 929 (O)

Henpet Shades CC v Garzouzie and Another
1998 (3) SA 929 (O)

1998 (3) SA p929

Citation	1998 (3) SA 929 (O)
Case No	4908/96
Court	Orange Free State Provincial Division
Judge	Lombard J
Heard	January 23, 1998
Judgment	January 28, 1998
Counsel	L Strating for the applicant; NH Barnaschone for the respondents

Flynote : Sleutelwoorde

Costs — Taxation of — Review of — Taxing Master disallowing costs of telephonic consultations on ground that matter not G 'of sufficient complexity' — Taxing Master applying wrong principle in disallowing item on bill — Fact that Taxing Master disallowing item on wrong ground not meaning that it had to be reinstated — On facts item should have been disallowed, but on ground that on information at Taxing Master's disposal, expenses appeared not 'to have been H necessary or proper for the attainment of justice' — In light thereof Court deciding against any interference with Taxing Master's ruling.

Headnote : Kopnota

In a review of the taxation of a bill of costs it appeared that the applicant had brought an application to protect a I trade mark listed in its favour. In order to oppose such application successfully it was necessary for the respondents to show that the term 'shade port' was a generic term which was used freely in the industry. To achieve that, the respondents' attorneys had to consult telephonically with certain witnesses. In reply to the respondents' opposing affidavits, to which were annexed affidavits by two of the witnesses, the applicant delivered a notice of withdrawal tendering payment of their party J

1998 (3) SA p930

and party costs. Included in the bill of costs submitted for taxation was the cost of two telephone calls to the A deponents/advertisers to the affidavits annexed to the opposing affidavits. The Taxing Master had disallowed the costs. It appeared that the Taxing Master's ruling was based on three legs. Firstly, she said that costs had been incurred in respect of consultations between respondents' attorneys on the one hand and witnesses or potential B witnesses on the other hand; secondly, that consultations, irrespective of between whom they took place, could not be allowed in motion proceedings unless the application was very complicated and/or if it involved difficult and important disputes of law; and, thirdly, that her authority for the latter approach was based upon the well-recognised principle that consultations with counsel with a view to settling affidavits in motion proceedings C were only allowed 'where the matter was of sufficient complexity'. In other words, what the Taxing Master had said was that she had disallowed the telephonic consultations because the matter was not of 'sufficient complexity'.

Held , that if the Taxing Master had disallowed the telephonic consultations because the matter was not of 'sufficient complexity' she had erred and applied the wrong principle. It was perfectly in order and reasonable for D the respondents and/or their attorneys to set about collecting evidence to meet the applicant's case after having been served with their founding papers. (At 936B/C--D.)

Held , further, that the Taxing Master, who derived her authority to tax bills of costs from Rule 70(1)(a) of the Uniform Rules of Court, had a discretion as to what costs she would allow or disallow. Such discretion would E not be interfered with unless it was found that the Taxing Master had not exercised the discretion properly. (At 933J--935C, paraphrased.)

Held , further, that there was no justification for the Taxing Master's attitude that consultations in motion proceedings, irrespective of between whom they took place, were not allowed unless the application was of an extremely complex nature and involved difficult and important disputes of law. The Rules of Court did not F specifically provide for that and no authority for such approach could be found. The complexity of the matter was irrelevant and would probably only come into play when the number of consultations and/or affidavits was questioned. (At 936G/H--937A, paraphrased.)

Held , further, that it was clear that the Taxing Master in casu had acted on a wrong principle, but the fact that G she had disallowed the item on a wrong ground did not mean that it had to be reinstated. If the facts showed that it should have been disallowed on some other ground, even if such other ground was not previously raised, the ruling stood. (At 937B--C.)

Held , further, that the Taxing Master's conduct had opened the door for the present Court to interfere with her ruling. On the facts, however, it appeared that the item in contention should have been disallowed on the ground H that on the information at the Taxing Master's disposal the expenses appeared not 'to have been necessary or proper for the attainment of justice'. In the light thereof, there would be no interference with the Taxing Master's ruling. The review accordingly failed. (At 937C/D--938D/E, paraphrased.)

Cases Considered

Annotations

Reported cases I

Baars v Near East Rand Darts Association and Others 1993 (3) SA 171 (W): dictum at 172J--173A applied

Barnett v Isemonger 1942 CPD 325: dictum at 327 applied

Ben McDonald Inc and Another v Rudolph and Another 1997 (4) SA 252 (T): referred to J

1998 (3) SA p931

City Deep Ltd v Johannesburg 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 applied

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 v Taxing Master and Another 1967 (4) SA 652 (D): referred to

Miller and Another v Hosiosky and Another 1973 (1) SA 113 (W): dictum at 116A--B applied

Knipe v Venter 1965 (4) SA 1 (C): referred to

Preller v Jordaan and Another 1957 (3) SA 201 (O): dictum at 203C--E applied C

Raymond v Raymond 1974 (3) SA 872 (T): dictum at 876G--H applied

Van der Westhuizen v Gibbon and Another 1983 (1) SA 95 (O): referred to

Van Rooyen v Commercial Union Assurance Co of SA Ltd 1983 (2) SA 465 (O): dictum at 468C--G applied

Van Zyl v Van der Merwe 1936 TPD 323: dictum at 329 applied

Visser v Gubb 1981 (3) SA 753 (C): referred to

Wellworths Bazaars Ltd v Chandlers Ltd and Others 1947 (4) SA 453 (T): referred to. D

Rules Considered

Rules of Court:

The Uniform Rules of Court, Rule 70: see Erasmus and Barrow The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 11th ed (1997) Part A at 111-19. E

Case Information

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

L Strating (attorney) for the applicant.

N H Barnaschone (attorney) for the respondents.

Cur adv vult. F

Postea (January 28).

Judgment

Lombard J:

This is a review of taxation under Rule 48 of the Uniform Rules of Court. The respondents opposed an application by the applicant. In reply to their opposing affidavits applicant delivered a notice of withdrawal G tendering payment of their party and party costs. The party and party bill of costs submitted for taxation included the following item (item 13):

'Twee tel oproepe aan elk van die deponente/adverteerders wat as aanhangsels tot die opponerende beëdigde H verklaring dien, om die aangeleentheid te bespreek(46)
	R3 680	R250'

(Record p 6.)

The Taxing Master disallowed these costs, maintaining that item 13 was an attorney and client item. (Record para E at p 13.)

The litigation in regard to which the bill of costs was drawn and the attitude of the parties in respect of item 13 I appear fully from the written contentions by their respective attorneys in terms of Rule 48(2). Respondents' attorneys submit, inter alia , as follows:

'3.1

The application was brought by the applicant on an urgent basis to protect a trade mark listed in its favour.

3.2

In order to successfully oppose the applicant's application and in order to J

1998 (3) SA p932

Lombard J

bring a counter-application, if so advised, it was necessary for the respondents to prove that the term ''shade port'' A was a generic term and was used commonly within the industry.

3.3

In order for respondents to prove that it was a generic term, it was necessary :

3.3.1

Firstly to obtain the permission of relevant parties to use their adverts and to request them to make affidavits in the application and B

3.3.2

once the affidavits had been drawn, to confirm the contents thereof as being correct before signature of the affidavits.

3.4

The respondents supplied a list of deponents that might be willing to depose to the affidavits required, subject to more information being given to them with regard to their involvement in the application and it was therefore necessary for the respondents' attorney to consult with these witnesses telephonically in order to do the necessary C to protect...