- February 1, 2023
- |Concise Law Reports (CLR), Costs And Taxation
Andre v Olivier NAHCMD (1 February 2023)
Reasons for orders: Practice Directive 61
On 9 November 2020, the court made an order dismissing the plaintiff’s claim and ordered the plaintiff to pay the costs of the defendant, such costs to include costs of one instructing and one instructed counsel, and the defendant to pay the wasted costs of the plaintiff occasioned by the postponement of the action on 06 to 10 July 2020 on an attorney and own client scale.
On 5 July 2022, the parties appeared before the taxing officer who issued an allocatur on the same day. The applicant, aggrieved by the taxing officer’s decision, on 21 July 2022, issued a notice in terms of rule 75, calling upon the taxing officer to state his case for the decision of a judge. The applicant took issue with items 2, 3, 17, 35, 38, 39, 52, 58, 60, 114 and 143 on various grounds. The application was opposed. The taxing officer accordingly stated his case.
MILLER AJ considered the application.
‘[12] If the costs have been awarded on a party-and-party basis, the taxing officer is required to ‘allow all such costs, charges and expenses as appear to him or her to have been necessary or proper for the attainment of justice or for defending the rights of any party, but save as against the party who incurred same, no costs shall be allowed which appear to the Taxing Master to have been incurred or increased through over-caution, negligence or mistake, or by payment of a special fee to counsel, or special charges and expenses to witnesses or to other persons or by other unusual expenses’ (Kaura v Taxing Master of the High Court (A 121/2015) [2016] NAHCMD 138 (10 May 2016).
[13] Thus, in taxation of costs, the taxing master exercises a discretion. In that regard the court may interfere with the taxing officer’s decision if he or she has not exercised his or her discretion judicially; if he or she has not brought his mind to bear upon the question; or he or she has disregarded important matters and taken into account extraneous matters, or he or she has acted on the basis of a wrong principle. These are common law grounds of review so postulated in the landmark case of Johannesburg Consolidated Investment Co (JCI) v Johannesburg Town Council 1903 TS 111 at 116.
[14] In the matter of Dietmar Dannecker v Leopard Tours Car and Camping Hire CC & Others Case No. SA79, delivered on 17 September 2020, at paragraph 8 Justice Frank AJA stated that:
‘[8] In terms of rule 25(3) a party dissatisfied with the ruling of the Taxing Master may request the Taxing Master to ‘state a case for the decision of a judge’ in respect of such ruling(s). This can only be done where ‘an item or part of an item’ was objected to or ‘disallowed by the Taxing Master of his or her own accord . . . .’ The reference to an item disallowed on own accord by the Taxing Master is of no relevance to the present matter. Where an item was not objected to at the taxation, an objection cannot be raised afterwards.’
[15] In Hollard v Minister of Finance (HC-MD-CIV-MOT-REV-2017/00002) [2020] NAHCMD 32 (31 January 2020), paragraph 24, the court had this to say regarding the exercise of the taxing master’s discretion:
‘I heed to the guidance by the Supreme Court in Afshani v Vaatz SA 01-2004 [2007] NASC 18 October 2007 that reviewing courts should not readily interfere with the discretion of a taxing officer, unless he or she has not exercised his discretion judicially but has done so improperly or has not brought his or her mind to bear upon the question or has acted on a wrong principle.’
[16] The applicant in his written submissions only states that “defendant did not incorrectly note plaintiff’s complaint” Nowhere in his submission does the applicant indicate that he raised objections during the taxation hearing. The applicant ought to have raised his objections during the taxation hearing and not after the fact. As was clearly stated in the matter of Dietmar Dannecker v Leopard Tours Car and Camping Hire CC & Others. That being the case, this court is unable to say that ‘it is clearly satisfied that he (the taxing officer) was wrong’. I am of the view that the taxing master exercised his discretion judiciously and for the reasons advanced this court will not interfere with the taxing master’s discretion.
As a result the rullings by the taxing master were confirmed and the review application was dismised. No order as to costs was made.