Mahabeer v KwaZulu-Natal Law Society

• Jurisdiction: South Africa
• Judge: Ploos van Amstel J
• Judgment Date: 01 April 2013
• Docket Number: 7985/12
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 01 March 2013
• Citation: 2013 JDR 0646 (KZP)

Ploos van Amstel J

[1]

This is a review of a taxation of a bill of costs in terms of rule 48 of the Uniform Rules. The first respondent, which is the KwaZulu-Natal Law Society, obtained a costs order against the applicant, who is a practising attorney. The second and third respondents, who represented the Law Society, prepared their bills of costs and sent the prescribed notice of taxation [1] to the applicant by registered post. [2] In terms thereof she was called upon to deliver a written notice of opposition within twenty days, specifying the items on the bill of costs to which she objected, and a brief summary of the reason for such objection. [3]

[2]

The applicant delivered a notice of opposition and attended the taxation. The attorney for the Law Society contended that the notice of opposition was out of time and that therefore the applicant should not be heard. The registrar agreed and taxed the bill on an unopposed basis. The approach seems to have been that the taxing master had no power to condone the late delivery of the notice of opposition and that it should be regarded as not having been delivered. I have to decide whether that was the right approach and, if not, whether the taxing master's decision can be reviewed.

[3]

Rule 70 (4) provides that

'[t]he taxing master shall not proceed to the taxation of any bill of costs unless he or she is satisfied that the party liable to pay the same has –

(a)

received due notice in terms of subrule (3B); and

2013 JDR 0646 p3

(b)

received due notice as to the time and place of such taxation and notice that he or she is entitled to be present thereat: Provided that such notice shall not be necessary-

(i)

if the party liable to pay costs has consented in writing to taxation in his or her absence;

(ii)

if the party liable to pay costs failed to give notice of intention to oppose in terms of subrule 3B; or

(iii)

for the taxation of writ and post-writ bills:

Provided further that, if any party fails to appear after having given notice of opposition in terms of subrule (3B)(b), the taxation may proceed in their absence.'

[4]

The first question that arises is whether the applicant's notice of opposition was out of time. In terms of rule 70(3B)(b) it had to be given within twenty days. Form 26, which is the prescribed form of the notice of taxation, says 'You may furthermore file a notice of intention to oppose the taxation within twenty (20) days after receipt of this notice.' The applicant says she received the registered postage slip on 4 July 2012 and fetched the item on the same day. The third respondent contends that the track and trace report which is attached to the...