Wellworths Bazaars Ltd v Chandlers Ltd and Others

JudgeMillin J
Judgment Date28 August 1947
Citation1947 (4) SA 453 (T)
Hearing Date28 August 1947
CourtTransvaal Provincial Division

Millin, J.:

This is an application to review the taxation of a bill of costs as between party and party. The matter out of which the taxation arose was an appeal in this Court from the Witwatersrand Local Division.

The appeal occupied eight hours, covering two days. There

Millin J

was a full day and then three hours on the next day. The fees of counsel brought up in the bill were: For senior counsel, a total of 110 guineas, made up of a brief fee of 75 guineas and a refresher of 35 guineas; for junior counsel, a total of 75 guineas, made up of a brief fee of 50 guineas and a refresher of 25 guineas.

It appears to be the practice that in appeals and applications, taxation proceeds on the basis not of a brief fee and a refresher but of what is a fair fee for the whole matter having regard to the time occupied by the argument. So that the case is approached from the point of view that £115 10s. was brought up as the fee for senior counsel and £78 5s. for junior counsel. On taxation these fees were reduced to £47 5s. and £31 10s. respectively.

The complaint is that an excessive amount was taxed off, and there are two lines of attack. In the first place it is contended that the Taxing Master failed to apply his mind to matters which he should have considered in assessing a proper fee, and that, in any event, he allowed so little that it is the right and the duty of the Court to correct him.

Six points are mentioned in the petition. The first is the difficulty of the law point involved in the litigation, which went before three Divisions of the Supreme Court and had resulted in five Judges holding an opinion adverse to that of four Judges. The reference there is to the fact that litigation did not conclude in this Court but was taken on appeal to the Appellate Division.

As regards that point the Taxing Master says he did take it into consideration, and it is common cause that this was a difficult matter well justifying the employment of two counsel.

The next point is that the matter was one of vital importance to all parties concerned. That is perfectly true, because the object of the litigation was to secure the ejectment of the respondents from very valuable business premises, and it was of importance to the applicant to succeed, just as it was to the respondents to resist the application. The Taxing Master says that that was present to his mind also.

Thirdly, it is said that he ought to have considered the financial standing of the parties. That the Taxing Master did not consider, and it has not been argued that he was wrong in that respect.

Fourthly, the point is made that the argument extended for a period of eight hours. That was a fact, and it was so considered

Fifthly, that the record in the Court on appeal extended to a

Millin J

matter of 110 folios which, although the argument proceeded mainly on a question of law, had to be mastered. That the Taxing Master says he had in mind.

Then lastly - and this is the important point - the applicant says that fees of £78 15s. for the senior counsel and £52 10s. for the junior represent the minimum proper party and party charge, because, as no senior counsel was obtainable at a fee of less than £78 15s., the briefing of senior counsel at that fee cannot be a 'luxury' so as to make any part of it an attorney and client charge.

It is admitted that what is meant by 'senior counsel' in this statement is counsel of the rank of King's Counsel. The Taxing Master has said in his report that it made no difference to him, in assessing what was a reasonable fee for the work done in this case to bring up in a party and party bill of costs, whether the leading counsel was in silk or was not in silk.

In support of the statement in the petition I have just read, affidavits were filed by Mr. Klagsbrun and Mr. Eales, who are practitioners in this Court of experience, and they say, both in the same form, that

'from my experience I maintain that it has been virtually impossible during the last few years to obtain the services of senior counsel (by which is meant King's Counsel) in an opposed application lasting a whole day and 60 per cent. of another day, i.e., eight hours in all, under a fee of 75 guineas'.

Mr. O'Hagan, for the respondents, has criticised this statement in these two affidavits on the ground that they are too vague. Firstly, the expression 'virtually impossible' is used, which may mean anything from very difficult to something just short of actual impossibility. But the more important criticism is that when the deponents say 'virtually impossible to obtain the services of senior counsel' they do not say 'any King's Counsel', and the value of the statement therefore depends on what King's Counsel they have in mind.

But the argument for the respondents really is that it is...

To continue reading

Request your trial
65 practice notes
  • Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others
    • South Africa
    • Invalid date
    ...he has thought fit to allow his counsel." H I agree with this statement. (See also Wellworths Bazaars Ltd v Chandlers Ltd and Others 1947 (4) SA 453 (T) at 461.) The measure for determining what is a reasonable fee is the value of the work that was done, and the eminence of counsel is not b......
  • Koekemoer v Parity Insurance Co Ltd and Another
    • South Africa
    • Invalid date
    ...in favour of the appellant and this Court can substitute its opinion for that of the taxing master; the Wellworth G Bazaars case, 1947 (4) SA 453; Mahomed v Bezuidenhout, 1948 (4) SA 369; Sachs v Ellis, 1953 (2) SA 457; Pretorius v Cohen, 1953 (3) SA 639; Krentos v Commissioner of Customs, ......
  • J D Van Niekerk en Genote Ing v Administrateur, Transvaal
    • South Africa
    • Invalid date
    ...v Union Government 1911 TPD 407; Bensusan v Sterling and Mockford NO 1930 WLD 303; Wellworths Bazaars Ltd v Chandlers Ltd and Others 1947 (4) SA 453 (T); Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others 1984 (3) SA 15 (A) op 18E-F, J 18H-I, 19B-E. 1994 (1) SA p598 A J S......
  • Schoeman v Phoenix Assurance Co Ltd and the Taxing Master
    • South Africa
    • Invalid date
    ...law that the Court will not substitute its G discretion for that of the Taxing Master. Wellworths Bazaars Ltd. v. Chandlers Ltd., 1947 (4) S.A. 453 (T); Preller v. Jordaan, 1957 (3) S.A. 201 (0) at p. 203. Premature briefing was discussed in Perl and Another v. Schneider & Rosen, 1958 (2) S......
  • Request a trial to view additional results
65 cases
  • Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others
    • South Africa
    • Invalid date
    ...he has thought fit to allow his counsel." H I agree with this statement. (See also Wellworths Bazaars Ltd v Chandlers Ltd and Others 1947 (4) SA 453 (T) at 461.) The measure for determining what is a reasonable fee is the value of the work that was done, and the eminence of counsel is not b......
  • Koekemoer v Parity Insurance Co Ltd and Another
    • South Africa
    • Invalid date
    ...in favour of the appellant and this Court can substitute its opinion for that of the taxing master; the Wellworth G Bazaars case, 1947 (4) SA 453; Mahomed v Bezuidenhout, 1948 (4) SA 369; Sachs v Ellis, 1953 (2) SA 457; Pretorius v Cohen, 1953 (3) SA 639; Krentos v Commissioner of Customs, ......
  • J D Van Niekerk en Genote Ing v Administrateur, Transvaal
    • South Africa
    • Invalid date
    ...v Union Government 1911 TPD 407; Bensusan v Sterling and Mockford NO 1930 WLD 303; Wellworths Bazaars Ltd v Chandlers Ltd and Others 1947 (4) SA 453 (T); Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others 1984 (3) SA 15 (A) op 18E-F, J 18H-I, 19B-E. 1994 (1) SA p598 A J S......
  • Schoeman v Phoenix Assurance Co Ltd and the Taxing Master
    • South Africa
    • Invalid date
    ...law that the Court will not substitute its G discretion for that of the Taxing Master. Wellworths Bazaars Ltd. v. Chandlers Ltd., 1947 (4) S.A. 453 (T); Preller v. Jordaan, 1957 (3) S.A. 201 (0) at p. 203. Premature briefing was discussed in Perl and Another v. Schneider & Rosen, 1958 (2) S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT