Legal and General Assurance Society Ltd v Lieberum, NO and Another

• Jurisdiction: South Africa
• Judge: van Blerk JA, Botha JA, Wessels JA, Potgieter JA and Milne AJA
• Judgment Date: 21 November 1967
• Citation: 1968 (1) SA 473 (A)
• Hearing Date: 28 September 1967
• Court: Appellate Division

H Potgieter, J.A.:

On 29th March, 1967, this Court issued the following order in an appeal from a judgment of the East London Circuit Local Division awarding damages against applicant, appellant in the said appeal, in favour of first respondent, respondent in the said appeal:

'(1)

The appeal is allowed with costs; such costs to include only one-third of the costs of preparing the record;

(2)

the award of the trial Court is altered to R27,314.78;

(3)

the rest of the trial Court's order is confirmed.'

Potgieter JA

Bills of costs were duly taxed in terms of this order and the Taxing Master's allocatur was signed on 23rd May, 1967. At the hearing of the appeal two counsel were employed by appellant. Senior counsel's fee was A R1,200 and junior counsel's fee R800. On taxation R800 was taxed off senior counsel's fee and R533 off junior counsel's fee.

On 12th June, 1967, applicant gave notice, in terms of Rule 9 (2), of its intention to bring the taxation in respect of these items on review on a number of grounds I will, however, only advert to the grounds advanced by counsel for applicant in this Court.

The Taxing Master furnished a report to the Court the relevant portion B whereof reads as follows:

'In this matter the reasons for judgment were not available until the morning of the day set down for the hearing of the appeal, being only then handed in at the Registrar's office by express personal messenger on the instructions of the trial Judge. Applicant elected to file the record in the incomplete state thereby forcing the matter to proceed and contends now, quite understandably, that the preparation of argument, in C the absence of the trial Court's judgment, entailed a very considerable amount of extra work. But, be that as it may, this is a risk that every litigant is subject to. Moreover the applicant brought this on its own head by the premature lodgment of the incomplete record and it is respectfully submitted that the applicant cannot now for this reason require the losing side to pay heavy costs, such as counsels' fees amounting to R2,000, for an uncomplicated case of damages sustained in consequence of a collision between a municipal bus and a pedal cycle.

D The Taxing Master submits that he has properly and in a judicial manner exercised his discretion in the taxation of the bill of costs brought on review by the applicant and that the amount of R667 allowed to counsel is a reasonable fee.

The average fee allowed to counsel in an uncomplicated appeal in this Court has been between R360 and R400. The applicant's representative could not point to any feature in this matter which involved undue volume or complexity. On the contrary, as already remarked, it appeared E to be an ordinary running down case.'

No judicial pronouncement has, as yet, fallen from this Court as to the test to be applied when dealing with a review of taxation, but there are a number of decisions of the various Provincial and Local Divisions laying down the principles to be applied in those Courts.

Appellate Division Rule 9 (1) reads:

F 'The costs incurred in any appeal or application shall be taxed by the registrar, but his taxation shall be subject to the review of the court.'

Appellate Division Rule 10 makes it clear that when the Registrar is exercising the function of taxation of costs he is called the 'taxing master'.

G In all four Provinces there were Rules of Court providing for the taxation of costs by a Taxing Master or Taxing Officer. In the Transvaal and Orange Free State the Rules provided that either party, feeling aggrieved by the decision of the Taxing Officer, may apply to the Court or a Judge in Chambers for 'revision of such taxation'. (See Transvaal Rule 67 (c) and O.F.S. Rule 67 (c)). In Natal Rule 13 provided that the

H 'Taxing Master's decision shall in all cases be subject to review by the Court'.

In the Cape, Rule 48 provided that a party who was dissatisfied with the certificate or allocatur of the Taxing Master may require the latter to state a case for the decision of a Judge. All these Rules have now been repealed and Uniform Rules of Court have been substituted which provide for the taxation of costs by a Taxing Master (see Rule 70). Rule 48, which is in terms substantially similar to the previous Cape Rule, provides that a party dissatisfied with the ruling of the Taxing Master

Potgieter JA

may require a case to be stated for decision by a Judge. It is quite...