Rowan v AF Noxaka & Co and Another

• Jurisdiction: South Africa
• Judge: Ebersohn, AJ
• Judgment Date: 05 June 2003
• Docket Number: 872/2000
• Court: Transkei High Court
• Hearing Date: 05 June 2003
• Citation: 2003 JDR 0594 (TkH)

Ebersohn AJ:

[1] Rule 48(1) of the High Court Rules makes provision for this Court to review decisions of the Taxing Master.

[2] Any party who is dissatisfied with a ruling of the Taxing Master as to any item or part of an item which was objected to or disallowed mero motu may within 15 days

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after the allocatur require the Taxing Master to state a case for the decision of a judge, which case shall set out each item or part of an item together with the grounds of objection advanced after the taxation and shall embody any findings of fact by the Taxing Master, provided that the (total) amount in dispute is more than R50,00.

[3] Rule 48(2) prescribes that the Taxing Master shall supply a copy of the stated case to each party and they may submit contentions. Thereafter the Taxing Master is to submit his stated case and the contentions, received from the parties, to the Court.

[4] The Court so deciding the matter may make, in terms of Rule 48(3), such order as to the costs of the review case as it deem fit, including an order that the unsuccessful party shall pay to the opposing party a sum fixed by the Court as and for costs.

[5] In this matter the then Taxing Master has placed before the Court a stated case duly signed by an attorney. The attorney is one of the defendants in the case and this case is therefore distinguishable from Nedperm Bank Ltd. v Desbie (Pty) Ltd 1995 (2) SA 711 (W) in which a member of the defendant company applied for the review and Schutz J, as he then was, ruled that as no admitted practitioner had signed the notice of review nor

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any of the subsequent documents, there had been no review before the Court and no order was made.

[6] It is necessary to refer to the unhappy history of the matter.

[7] The plaintiff in this matter is an advocate who sued the defendants, a firm of attorneys and a partner thereof, in this Court for fees in the amount of R19 550,00.

[8] The amount claimed was much less than the R100 000 determined by the Minister as the jurisdiction of the magistrates' courts in terms of ss 29(g) of the Magistrates' Courts Act, Act 32 of 1944.

[9] An appearance to defend was entered and the plaintiff then brought an application for summary judgment. The application was granted on the 11th January 2001. The answering affidavit was only filed several days after the summary judgment was granted.

[10] The defendants then launched an application for the rescission of the summary judgment and the plaintiff opposed the application.

[11] The rescission application, which normally is a rather straightforward matter, the applicant for rescission having to only set out acceptable reasons for the applicant's absence or default and the grounds of defence,

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unnecessarily developed into a 3 hour long unpleasant opposed motion before Dotwana AJ. His written judgment amounted to 12 pages. In the judgment he dealt with legal and factual aspects and the allegations of misconduct and collusion.

[12] Dotwana AJ dismissed the application and with regard to costs made the following order:

"The applicants are ordered to pay the costs of this application on an attorney and client scale of the magistrate's court".

[13] The plaintiffs attorneys thereafter presented a bill of costs to the then Taxing Master, who has since left, for taxation. The taxation was opposed.

[14] Included in the bill of costs is an item which reads as follows:

"50.17/08/2001 attending to pay and paid Counsel R9,00 R7 125,00"

The R9,00 is the plaintiffs attorney's fee and the R7 125,00 is the plaintiffs counsel's total fee with regard to the opposed rescission application.

[15] Counsel's fees list reflects that counsel debited the following items:

"Perusing brief and enclosures and preparation

21/2 hours @ R250 per 1/2 hour = R1 250,00

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Appearance to argue rescission application. Matter fully argued and judgment reserved by Dotwana, AJ. = R5 000,00"

To the two amounts counsel added the compulsory 14% VAT in the amount of R875,00 resulting in a fees list totalling R7125,00.

[16] The reasons for the order by Dotwana AJ must be analyze. In his judgment he said the following:

"What remains to be decided is the question of costs. Mr. Mbenenge for the respondent, has argued that the applicants be ordered to pay the costs of this application on the scale between attorney and own client for making serious allegations against the respondent that he went to the Judge in Chambers to obtain the order. He further averred that the respondent was enjoying special privileges and felt that the Rules of Court were not for him to obey. From the papers presented before me in this application, there is nothing which warranted this kind of attack on the respondent. If anything, they reveal that he played his cards open with the applicants, to the extent that he advised them of every step he anticipated taking to have his fees paid. Even when he finally decided to institute an action against the applicants, he reminded them that they had no defence to the action and that he would accordingly make an application for summary judgment to be granted in his favour. Instead of heeding the warning, the applicants showed a great degree of laxity and lack of diligence in handling the case. Not only do second applicant's remarks reflect on the integrity of the respondent, they border on contempt of this Court for they seem to imply that the presiding Judge allowed the

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matter to be heard behind closed doors and applied a different set of rules to the respondent to the one applied in open court. These allegations have no foundation whatsoever.

It is my considered view that this is an appropriate case for the Court to show its displeasure and disapproval of second respondent's conduct which is disrespectful, discourteous and contemptuous. As an officer of this Court, second respondent has a duty to maintain its dignity decorum. In all these...