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

• Jurisdiction: South Africa
• Citation: 1984 (3) SA 15 (A)

Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others
1984 (3) SA 15 (A)

1984 (3) SA p15

Citation	1984 (3) SA 15 (A)
Court	Appellate Division
Judge	Rabie CJ, Kotzé JA, Joubert JA, Trengove JA and Galgut JA
Heard	February 17, 1984
Judgment	March 29, 1984

Flynote : Sleutelwoorde H

Costs — Taxation of — Review of — When Court will interfere with ruling by Taxing Master — Must be satisfied that ruling was clearly wrong — Implications and reasons for I formulation of test set out.

Costs — Counsel's fees — Existing Appellate Division practice of allowing composite fee for the appeal, inclusive of travelling and hotel costs, affirmed and separate claims disallowed — Separate claim for drafting heads of argument likewise not in accordance with practice, even where heads were requested prior to allocation of date

1984 (3) SA p16

A of hearing in accordance with Appellate Division Rule 8 (1) as amended by GN R248 of 8 February 1980 — Claims for above average fees in view of eminence of counsel also disallowed — Appropriate test the value of the work done.

Headnote : Kopnota

With reference to the test (regarding the circumstances in B which a Court will interfere with a ruling made by a Taxing Master) annunciated in Legal and General Assurance Society Ltd v Lieberum NO and Another 1968 (1) SA 473 (A) at 478G, it is better to state the test to be that the Court must be satisfied that the Taxing Master was clearly wrong (as opposed to the Court being "clearly satisfied that he was wrong"), since it indicates somewhat more clearly what the test C 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 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 vitate his ruling.

In terms of Rule 8 (1) of the Appellate Division Rules (as amended by Government Notice R248 of 8 February 1980) the parties to an appeal may be required to lodge heads of argument D before the allocation of a date of hearing. Applicants contended that in such circumstances a separate fee should be allowed for the drawing of heads of argument. In dismissing this contention and upholding the existing practice within the Division, the Court expressed the view that heads of argument are drawn when counsel has done his research and prepared for the appeal. They reflect the result of that research and preparation, and if counsel should thereafter, due to the lapse of time, regard it as necessary to consider them again, the E extra work involved will normally not be so substantial as to warrant a separate fee. A Taxing Master could, of course, depending on the circumstances, and if persuaded that the extra work was such as to warrant his doing so, make allowance for that work when determining a composite fee for the whole of the appeal.

The existing practice, whereby the Taxing Master has regard to F the cost involved in counsel having to come to Bloemfontein when he determines the composite fee in respect of the appeal, affirmed and the Taxing Master's disallowance of separate claims for hotel and travelling expenses upheld.

The measure for determining a reasonable fee is the value of the work that was done, and the eminence of counsel is not by itself a good reason for allowing a larger fee. G

Case Information

Review of taxation. The facts and the nature of the items in the bill of costs objected to appear from the judgment of RABIE CJ.

D J Hammerschlag for the applicants cited the following authorities: Preller v Jordaan 1957 (3) SA at 203; Legal and General Assurance Society Ltd v Lieberum NO 1968 (1) SA 473; Herbstein and Van Winsen The Civil Practice of the Superior H Courts in South Africa 3rd ed at 503; Duvos (Pty) Ltd v Newcastle and Others 1965 (4) SA at 559; Port Elizabeth Local Road Transportation Board and Others v Liesing 1968 (4) SA at 401 - 2; Minister of Water Affairs v Meyburgh 1966 (4) SA at 52 - 3; Menday v Protea Assurance Co Ltd 1976 (1) SA at 572; City Deep Ltd v Johannesburg City Council 1973 (2) SA at 115 - I 116; Jacobs and Ehlers Law of Attorneys' Costs and Taxation Thereof at 123 - 4; Magwill Carriers v National Transport Commission and Another 1982 (1) SA at 170; Jackson and Ginsberg NNO v Steenkamp 1973 (1) SA 309; Groenewald v Selford Motors (Edms) Bpk 1971 (3) SA at 681; Nku v Nkosi 1981 (1) SA at 144; Reef Lefebvre (Pty) Ltd v SAR & H 1972 (4) SA 961; Scott and Another v Poupard and Another 1972 (1) SA at 686.

1984 (3) SA p17

A P Beckley for the respondents cited the following A authorities: Preller v Jordaan 1957 (3) SA 201; Legal and General Assurance Society Ltd Lieberum NO 1968 (1) SA 473; Duvos (Pty) Ltd v Newcastle and Others 1965 (4) SA 553; City Deep Ltd v Johannesburg City Council 1973 (2) SA 109; Port Elizabeth Local Road Transportation Board and Others v Liesing 1968 (4) SA 401; Menday v Protea Assurance Co Ltd 1976 (1) SA B 565; Minister of Water Affairs v Meyburgh 1966 (4) SA 51; Jacobs and Ehlers The Law of Attorneys' Costs and Taxation Thereof 1st ed at 98; Groenewald v Selford Motors 1971 (3) SA 677; Windhoek Crushers (Pty) Ltd v Voigts en Andere 1969 (1) SA 574; Buonanno v The Taxing Master 1965 (2) SA 653; Scott and Another v Poupard and Another 1972 (1) SA 680; Reef Lefebvre C (Pty ) Ltd v SA Railways & Harbours 1978 (4) SA 961; Gundelfinger v Norwich Union Fire Insurance Society Ltd 1916 TPD 341.

Hammerschlag in reply.

Cur adv vult. D

Postea (March 29).

Judgment

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...