Hirsch v Taxing Master and Others

• Jurisdiction: South Africa
• Citation: 1958 (2) SA 632 (W)

Hirsch v Taxing Master and Others
1958 (2) SA 632 (W)

1958 (2) SA p632

Citation	1958 (2) SA 632 (W)
Court	Witwatersrand Local Division
Judge	Kuper J
Heard	September 24, 1957; October 1-2, 1957; October 3, 1957
Judgment	October 7, 1957

Flynote : Sleutelwoorde A

Costs — Taxation of — Review of — Costs incurred prior to launching of petition to set aside a writ — Allowance of — Successful petitioner annexing whole of bond — Not important in deciding issue — Costs disallowed — Petitioner ceding costs to his attorney — Not proper to cite successful petitioner. — B Applicant on review to pay petitioner's costs of appearance.

Headnote : Kopnota

Applicant, in a review of taxation of a bill of costs, contended that the costs, in respect of certain instructions given prior to the drafting of a petition to set aside a writ issued on a judgment obtained on a notarial bond and the resultant sale in execution, had been wrongly allowed by the Taxing Master. In his petition, which had been successful, the petitioner had annexed the whole of the bond. He had C also ceded his judgment for costs to his attorney.

Held, that the petitioner was entitled to his costs incurred in respect of discussions, consultations and investigations conducted prior to the final approval of the launching of the petition.

Held, further, as the bond itself and the terms thereof were of no importance in considering the question whether the writ had been properly issued that the costs of annexing the bond should not have been allowed.

D Held, further, as the successful petitioner had appeared not to oppose the present application but to oppose the claim that costs should be awarded against him that the applicant should pay his costs of appearance.

Case Information

Application to review the taxation of a bill of costs. The facts appear from the reasons for judgment.

J v Lazarus, for the applicant. E

No appearance for the first respondent who however had filed a report.

W. Lane, for the second respondent.

M. Schneider, for the third respondent.

Cur. adv. vult. F

Postea (April 7th).

Judgment

G Kuper, J.:

This is a review of taxation. In the original proceedings the applicant, one Ndikandika, sought an order setting aside a writ of execution together with the sale pursuant thereto in terms of which certain rights that he possessed had been disposed of. There were five respondents, one of them being a Mrs. R. S. Hirsch. The application was ultimately not opposed and an order was granted in terms of which Mrs. H Hirsch was required to pay the costs of the application. In due course a bill of costs was presented and was taxed; there was opposition to certain items to which further reference will be made herein, and Mrs. Hirsch, who was dissatisfied with the decision of the taxing master has now brought this review of taxation. She is the applicant in the review of taxation, the Taxing Master of this Court is the first respondent, Ndikandika is the second respondent, and she cited as the third

1958 (2) SA p633

Kuper J

respondent a Mr. M. Shartin, who is an attorney of this Court and who received a cession of the costs of Ndikandika (for whom he acted) after judgment had been given. It will be more convenient to refer to the parties by name so that no confusion can arise. The petition for review of taxation discloses that a certain number of items, which were allowed A by the Taxing Master, were attacked at the taxation and they have again been attacked before me. The first group of items deals with the instructions that were given to Shartin, both at the commencement of the mandate and thereafter up to the date when the petition was launched. On the 29th of April, 1955, the first item appears. That was an item of £10 10s. 0d. in respect of which the history is stated to be

'Attending on applicant when he called with a batch of documents and advises that his site permit in Pimville Location had been sold in execution by the messenger of the court on the instructions of Messrs. Morris Alexander, Hirsch & Adler, the first respondent's attorneys, discussing applicant's dealings with Messrs. Morris Alexander, Hirsch & Adler and allegations made in copies of summons in possession of applicant, advising applicant of fact that messenger of the court had no statutory power to sell applicant's site permit, and taking instructions to apply to Court for an order setting aside the sale'.

Then on the 9th of June, 1955, there was a further item of £2 2s. 0d., the note being

'Attending on applicant reporting on documents perused in action between the fifth respondent and applicant and fact that the fifth respondent issued writ against the applicant and had sold his site permit, discussing with applicant his reason for being under the impression that the first respondent had sold site permit and noting that he had heard the fourth respondent had bought site permit from first respondent's attorneys, considering matter, arranging to contact fifth respondent's attorneys, thereafter to proceed with application against fifth respondent 11/2 hours',

followed on the 1st of September, 1955, by an item of £1 1s. 0d.:

'Attending on client and reporting on information received from fifth respondent's attorneys, 1 hour',

E again followed on the 9th of November, 1955, by a further item of £2 2s. 0d.:

'Attending on client, lengthy discussion regarding draft petition, pointing out to him difficulty as to whether or not fifth respondent should be cited, taking instructions from client to brief counsel for purpose of settling petition and advising whether or not fifth respondent should be cited'.

F On the 24th of October, 1955, Ndikandika instructed his attorneys to draft the petition; there were 24 folios and the fee allowed by the Taxing Master for taking those instructions was £5 15s. 0d. This batch of items formed the first matter of objection raised to the Taxing Master's decision and in one form or another the decision depends upon the construction of the tariff which is to be found in Government Notice G 2835, published on the 12th of December, 1952. I turn immediately to the tariff and to the schedule giving certain instructions to Taxing Masters in regard to the method that should be adopted by them in the taxation of bills of costs. I read three notes which seem to me to be relevant to all the objections which have been taken and which appear in the first schedule to the tariff. Note I reads: H

'With a view to affording the party who has been awarded an orde r for costs a full indemnity for all costs reasonably incurred by him in relation to his claim or...