Koekemoer v Parity Insurance Co Ltd and Another

• Jurisdiction: South Africa
• Citation: 1964 (4) SA 138 (T)

Koekemoer v Parity Insurance Co Ltd and Another
1964 (4) SA 138 (T)

1964 (4) SA p138

Citation	1964 (4) SA 138 (T)
Court	Transvaal Provincial Division
Judge	Claassen J, Theron J and Colman J
Heard	August 12, 1964
Judgment	August 18, 1964

Flynote : Sleutelwoorde

Costs — Counsel — Fees of — Note VI of Union Rule of Court, 24 — Applicability of — Plaintiff employing two counsel — Matter settled day before date of trial — Plaintiff G appearing on trial date — No order in terms of settlement sought — No appearance for defendant — Taxing master disallowing fees of second counsel — Taxing master's conclusion not shown to be wrong.

Headnote : Kopnota

Note VI to Union Rule of Court 24 does not operate in a case where no award of costs is made by the Court. In such a case the taxing master H remains vested with a discretion in respect of fees incurred in the employment of more than one counsel, as in respect of other matters.

The reference to 'an appearance by counsel' in Note VI was inserted in order to give effect to the audi alteram partem rule. When counsel for the litigant who is to pay costs is present in Court at the time when costs are awarded, he has an opportunity to seek a special order under Note VI. If no such counsel is present, the litigant is given an opportunity to raise his contention before the taxing master.

The appellant had been the plaintiff in an action against the first respondent. Originally he had one counsel acting for him but about two weeks before

1964 (4) SA p139

the date of trial he had briefed a second counsel to appear in the action. On the day before the trial the matter was settled. On the trial date counsel appeared for the plaintiff but no order in terms of the settlement was sought or obtained. The matter was postponed sine die. There was no appearance for the defendant. No question relating to the costs of the action was raised or dealt with by the Court. When the appellant's attorney appeared before the taxing master to tax his party A and party bill of costs in pursuance of the settlement, the taxing master disallowed the costs consequent upon the employment of a second counsel. Appellant unsuccessfully applied to Court to set this decision aside. In an appeal,

Held, that Note VI of Union Rule of Court 24 had no application.

Held, further, that it had not been shown that the taxing master had misdirected himself in the exercise of his discretion, nor that he had erred in the conclusion he had reached. B

Case Information

Appeal from a decision of HIEMSTRA, J. The facts appear from the reasons for judgment.

R. K. R. Zeiss, for the appellant: The taxing master had no discretion to disallow the fees of second counsel. It is wrong to restrict the First Schedule to Rule 24 to party and party bills taxed in pursuance of C an order of Court as this is contrary to a presumption against a casus omissus; Steyn Uitleg van Wette, 3rd ed. p. 120; Dhanabakium's case, 1943 AD 160. The Court a quo erred in holding that the word 'opposed' in Note VI of Union Rule 24 means 'opposed in Court,' Century Trading D Co v The Taxing Master, 1958 (1) SA 78 at p. 80. The word 'opposed' should be given the ordinary meaning which is accorded to it in legal terminology; Hiemstra and Gonin, Engels-Afrikaans Regswoordeboek, p. 92. The Court is always in a better position to decide whether the employment of two counsel is justified, whether or not it has heard the case itself, Ally v Taxing Master, 1954 (3) SA 78; the Adamant E Laboratories case, 1964 (3) SA 363. The word 'opposed' means 'to appear on record' and not 'to appear in Court.' R v London Justices, 1896 (1) Q.B. 659; Bouvier, Law Dictionary. In Nokwe v Stoltz and Others, 1960 (4) SA 79, Rand Townships and Smallholdings v Griebenow, 1956 (2) SA 42 and Herbert Penny Ltd v Stone, 1948 (3) SA 1033, an interpretation was attached to the relevant portion of Note VI without F the point having been in issue or argued. In so far as these authorities may be of assistance, it is submitted preference should be given to the Transvaal authorities. The taxing master should have exercised his discretion in favour of the appellant and this Court can substitute its opinion for that of the taxing master; the Wellworth G Bazaars case, 1947 (4) SA 453; Mahomed v Bezuidenhout, 1948 (4) SA 369; Sachs v Ellis, 1953 (2) SA 457; Pretorius v Cohen, 1953 (3) SA 639; Krentos v Commissioner of Customs, 1956 (4) SA 171; Preller v Jordaan, 1957 (3) SA 201; Goodricke & Co v Durban City Council, 1958 (2) SA 340; Nokwe's case, supra; Phiri v Northern Assurance Ltd., 1962 (4) SA 284; Adamant case, supra. The general rule is that H two counsel are allowed in trial actions unless the matter is very simple, Halsbury, vol. 3 para. 130; Gundelfinger v Norwich Union, 1916 T.P.D. 341; Willemse v Stern, 1942 CPD 446; Bensusan v Sterling, 1930 W.L.D. 304; Grobbelaar v Havenga, 1964 (3) SA 522. The English practice does not differ from ours, S.A. Railways v Mills, 1924 CPD 110 at p. 116. Lengthy cross-examination cannot be conducted without the benefit

1964 (4) SA p140

of junior counsel's notes, the Century Trading Co. case, supra, at p. 84. The taxing master has fettered his discretion by showing too much deference to a misconceived 'rule of practice,' Preller v Jordaan, supra; Simons v McLeod, 25 S.C. 692. The test is not whether the A employment of second counsel was absolutely necessary, but whether it was reasonable and not a luxury: Barnett v Isemonger, 1942 CPD 325; Freitas v Rechtman, 1921 CPD 854; Moss & Beer v Osmer, 1937 E.D.L. 288; Hastings v The Taxing Master, 1962 (3) SA 789. The fact that accident cases occur with great frequency in no way simplifies the difficulties of the facts of individual cases, United Board of Executors B v Barrie, 1924 OPD 288. Once it is accepted that a third party insurance case is to be treated in the same way as any other trial, then it is submitted that, in the light of the authorities, the taxing master was clearly wrong in disallowing second counsel's fees. The experience of any particular counsel and whether or not one of the two counsel is a C silk, is irrelevant: Wellworth Bazaars case, supra.

W. H. Edelstein, for the first respondent: (1) The taxing master had a discretion as to whether the fees of more than one counsel should be allowed. Note VI of Union Rule 24 does not apply to cases when the D matter is not heard by the Court and where the Court has made no order awarding costs but where the costs are payable pursuant to an agreement, Herbert Penny Ltd v Stone, 1948 (3) SA 1033 at pp. 1034 - 5. This view is supported by the use of the word 'when' in...