Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others

• Jurisdiction: South Africa
• Judge: Rabie CJ, Kotzé JA, Joubert JA, Trengove JA and Galgut JA
• Judgment Date: 29 March 1984
• Citation: 1984 (3) SA 15 (A)
• Hearing Date: 17 February 1984
• Court: Appellate Division

Rabie CJ:

This is a review of taxation in terms of Rule 9 of the Rules of this Court. The applicants were the successful respondents in the appeal reported as Standard Bank of South E Africa Ltd and Another v Ocean Commodities Inc and Others 1983 (1) SA 276 (A), in which the following order was made:

"The appeal is dismissed with costs, such costs to include the costs of two counsel."

Pursuant to the aforesaid order the respondents submitted a bill of costs between party and party for taxation which F included the following items:

"21... paid senior counsel on heads......................	R 1 200
22... paid junior counsel on heads.......................	R 800
24... paid counsels' and attorney's air fares (3 x R138)........	R 414
25... paid counsel's and attorney's hotel expenses........	R 214,91
26... paid senior counsel on arguing appeal...............	R10 500
27... paid junior counsel on arguing appeal...............	R 7 000

The Taxing Master taxed off the entire amounts claimed in items 21, 22, 24 and 25. In item 26 he taxed off the amount of R6 500, and in item 27, R4 300, thereby allowing a fee of R4 000 in the case of senior counsel, and a fee of R2 700 in the case of junior counsel. It appears from the Taxing Master's report, H furnished in terms of Rule 9 (4), that he allowed each of the said fees of R4 000 and R2 700 as a composite fee for the appeal, ie as a fee for preparing for the appeal, drawing the heads of argument and appearing in Court to argue the appeal.

The question as to when the Court will interfere with rulings made by the Taxing Master in the exercise of the discretion he enjoys when taxing bills of costs, was dealt with by this Court I in the case of Legal and General Assurance Society Ltd v Lieberum NO and Another 1968 (1) SA 473. In that case POTGIETER JA, delivering the judgment of the Court, stated (at 478G) that -

"the review referred to in Appellate Division Rule 9 (1) confers upon this Court the wider exercise of supervision envisaged by INNES CJ in this decision

Rabie CJ

A (ie Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111). The Court, therefore, has the power to correct the Taxing Master's ruling not only on the grounds stated in Shidiack's case (ie Shidiack v Union Government 1912 AD 642) but also when it is clearly satisfied that he was wrong. Of course, the Court will interfere on this ground only when it is in the same or in a better position than the Taxing Master to determine the point in issue."

B In the course of his judgment POTGIETER JA referred, with apparent approval, to decisions in which it was said that the Court would be entitled to interfere with a ruling by a Taxing Master only if it were satisfied that the Taxing Master was "clearly wrong" (see Century Trading Co (Pty) Ltd v The Taxing C Master and Another 1958 (1) SA 78 (W) at 84E; Adamant Laboratories (Pty) Ltd v General Electric Co 1964 (3) SA 363 (T) at 366F - G), and it would therefore seem doubtful whether the learned Judge intended to lay down a test different from the one mentioned in the earlier cases. (See also the remarks of BOTHA J in Noel Lancaster Sands (Pty) Ltd v Theron and D Others 1975 (2) SA 280 (T) at 282H - 283C.) In Scott and Another v Poupard and Another 1972 (1) SA 686 (A) this Court (per JANSEN JA), applying the test laid down in the above-quoted passage in the Legal and General Assurance Society case, set aside a ruling by the Taxing Master on the ground that had he had "clearly erred" in his assessment of inter alia the complexity of the appeal in issue in that case. This case E indicates, I think, that the Court was of the view that the test as formulated by POTGIETER JA in the Legal and General Assurance Society case supra and the statement that the Court will interfere with a ruling of a Taxing Master only if it is satisfied that he was clearly wrong, are merely two ways of F saying the same thing. I think, with respect, that it is better to state the test to be that the Court must be satisfied that the Taxing Master was clearly wrong before it will interfere with a ruling made by him, since it indicates somewhat more clearly than does the formulation of the test by POTGIETER JA what the test actually involves, viz that the Court will not interfere with a ruling made by the Taxing Master in every case where its view of the matter in dispute G differs from that of the Taxing Master, but only when it is satisfied that the Taxing Master's view of the matter differs so materially from its own that it should be held to vitiate his ruling.

I turn now to applicants' attack on the Taxing Master's ruling in respect of the various items mentioned above.

Items 21 and 22: heads of argument. H

The applicants contend that the Taxing Master should have allowed separate fees for the drawing of heads of heads of argument and that he erred in allowing a composite fee relating to the whole of the appeal, as mentioned above. It appears from I the Taxing Master's report that it has always been the practice of the Taxing Master of this Court to determine a composite fee for the whole of an appeal, and to make allowance for the drawing of heads of argument when determinting that fee. The applicants accept this to have been the case up to now, but they submit that the recent amendment to Rule 8 (1) has made it necessary to alter this practice. In...