Noel Lancaster Sands (Pty) Ltd v Theron and Others

• Judge: Botha J
• Judgment Date: 29 August 1974
• Citation: 1975 (2) SA 280 (T)
• Hearing Date: 29 August 1974
• Court: Transvaal Provincial Division

Botha, J.:

This is a review of taxation in terms of Rule 48 of the Rules of Court.

The applicant for review obtained an order of costs on an B attorney and client basis in its favour, against the first respondent in an application which had been brought by the applicant against three respondents for an order of committal for contempt of Court. That application arose out of alleged breaches by the respondents of a temporary interdict which the applicant had obtained earlier against the first respondent, restraining the latter from removing certain silica sand on a C certain farm. No order for committal was made on the application, but, as I have said, the first respondent was ordered to pay the costs of the application to the applicant on an attorney and client scale. The reasons for that particular order of costs having been granted are not now relevant.

The attorneys for the applicant drew a bill of costs, pursuant D to the order I have mentioned, and duly presented it to the Taxing Master for taxation. The Taxing Master disallowed and taxed off a number of items in the bill, either wholly or in part. The present review proceedings are directed at five particular items so taxed off. Before I deal with those particular items, however, it will be convenient to refer to the principles which I am called upon to apply in this matter.

E The written contentions submitted on behalf of the applicant commence with the following statement:

"It was held 'the object of an award of attorney and client costs is to ensure that the successful party will not be out of pocket' - see Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging, 1946 A. D. 597."

F The words quoted in the above passage are an inaccurate and misleading over-simplification of what was actually laid down in Nel's case, supra. As is pointed out by the Taxing Master in his report, the true purport of the decision in that case appears from the passage in the judgment of TINDALL, J. A., at p. 607, which reads as follows:

G "The true explanation of awards of attorney and client costs not expressly authorised by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the Court in a particular case considers it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation. Theoretically, a party H and party bill taxed in accordance with the tariff will be reasonably sufficient for that purpose. But in fact a party may have incurred expense which is reasonably necessary but is not chargeable in the party and party bill.... Therefore in a particular case the Court will try to ensure, as far as it can, that the successful party is recouped. I say 'as far as it can' because there may be a considerable difference between the amount of the attorney and client bill which a successful party is bound to pay to his own attorney and the amount of an attorney and client bill which has been taxed against the losing party."

Reference was then made to the example of a special fee payable to counsel, and thereafter the following was said, at p. 608:

Botha J

"Where the attorney and client costs are to be paid by the opposite party, the taxation should be stricter than in a taxation as between attorney and client where the costs are to be paid by the client to his attorney... We have no Rule of Court on the subject but it seems to me that here also, when the bill is taxed against the losing party, it is essential to A apply a stricter taxation to prevent injustice to the latter as the result of the award of attorney and client costs against him. Thus the award of attorney and client costs against the losing party really demands what may be termed an intermediate basis of taxation."

In practice, the application of these principles to the taxation of various types of bills of costs often occasion considerable difficulties; for instance, it is impossible to B define an exact line of demarcation in respect of the type and number of consultations between an attorney and his client for which the fees of the former are properly allowable on taxation, depending on whether the bill in question is a party and party bill, an attorney and client bill which the losing party is liable to pay, or an attorney and client bill which the client is liable to pay to his attorney. In each of the C three cases it may be said that the test is whether the particular consultation in question was reasonably necessary; but the Taxing Master is nevertheless called upon to...