Nokwe v Stoltz and Others

• Jurisdiction: South Africa
• Judge: Kuper J
• Judgment Date: 17 June 1960
• Citation: 1960 (4) SA 79 (W)
• Hearing Date: 15 June 1960
• Court: Witwatersrand Local Division

F Kuper, J.:

This is a review of taxation, the applicant seeking to review the decision of the Taxing Master in respect of certain items in a bill of costs and the respondents resisting that application and in turn seeking to review certain further items in the same bill of costs.

The applicant is an advocate of this Court and the action out of which the present proceedings stem was an action for damages brought by him G against the first, second and third respondents for damages arising from an assault, which he alleged had been committed upon him by two policemen, the first and second respondents.

The plea was a denial of the assaults. The pleadings were closed, advice on evidence was obtained and thereafter the matter was settled, one of H the terms of the settlement being that the respondents undertook to pay the costs of the applicant, and pursuant to that settlement the bill of costs was prepared and taxed and the decision of the Taxing Master in respect of the different items, to which I will refer, is presently in question.

Before I refer to the particular items, I should add that before the counsel were briefed to advise on evidence, the trial in the magistrate's court, in which the first and second defendants (first and second respondents)

Kuper J

were charged criminally with assault upon the applicant, concluded. That trial had taken considerable time. A number of witnesses were called to give evidence with the result that the record of the proceedings ran to A over 700 folios. The two constables were found guilty by the magistrate of the assault upon the plaintiff, but it was apparent from the record and from the present proceedings that it was being alleged that the plaintiff had made up the story of the assault. It was suggested that the plaintiff was drunk that night and that he was seen by a policeman some hours before the alleged assault, that he was then drunk and that B he had already then been injured and that the two constables, far from assaulting him, as alleged by him, were attempting to assist him. The magistrate, as I say, in the trial came to the conclusion that the two constables were guilty of assault and found them so guilty.

The first series of items in respect of which the applicant complains are items relating to the record of the magistrate's court. The C applicant, when obtaining the advice on evidence from his counsel, briefed them with one copy of the proceedings of the criminal trial and the Taxing Master, on objection lodged by the defendants, refused to allow the items relating to the obtaining of the criminal record, to the payment for that criminal record and to the briefing of counsel in D regard to that criminal record. The Taxing Master in his report said this:

'In disallowing as party and party costs the charges made by applicant's attorneys for obtaining, perusing and briefing counsel with a copy of the criminal record I did so for this reason:

It is respectfully submitted that the civil action was a fairly simple and straightforward one, and that the briefing of counsel with a copy of the criminal record, or relevant portions thereof, was not vital or necessary to the applicant's case. Counsel could have been fully E instructed without a copy of the said record.'

The Taxing Master went on to say that he has a discretion to either allow or disallow such costs and that he submitted that the discretion exercised by him was properly exercised in view of the foregoing, and he referred to the authorities, which are the classic authorities in regard to matters of this kind.

F Mr. Hart, who appeared for the respondents, conceded that it would have been quite wrong for counsel to have entered upon the trial without having in his possession a copy of the record, and really the complaint against the item was not that the item was wrongly incurred, but that it G was prematurely incurred; that in fact the record should be obtained and handed to counsel, but for the purposes of the trial and not for the purposes of advice on evidence.

Now it is quite clear that the Taxing Master in this case did exercise a discretion. Both counsel referred me to the case of Wellworths Bazaars Ltd v Chandlers Ltd., 1947 (4) SA 453 (T), and to a passage from the H judgment of his Lordship Mr. JUSTICE MILLIN at p. 457. The learned Judge said:

'The law, as I conceive it to be, is that in general the discretion of a Taxing Master will not be disturbed unless it is found that he did not exercise a proper discretion, for example, by disregarding factors which were proper for him to consider or by considering matters which it was improper for him to consider, or by giving a ruling which the Court can see no reasonable person would have given. That is the general principle. But that principle has had engrafted upon it something else, and that is this: There is a certain class of case where the point in issue is a point on which the Court is able to form as good an...