- January 31, 2023
- |Concise Law Reports (CLR), Costs And Taxation
Haimene v Simon NAHCMD (31 January 2023)
Plaitiff instituted action against the defendant on 08 September 2017 and the defendant filed his plea and counterclaim on 14 December 2917. During February 2018, the parties engaged in settlement negotiations and reached a settlement on the main action, on 23 February 2018, which was made an order of court. On 5 May 2018 the plaintiff abandoned his claim against the defendant and the defendant elected to pursue his counterclaim and as a result, became dominus litis.
Hereafter the matter was fraught with interlocutories and other ancillary matters. The matter was eventually set down for trial for the period 18 to 22 July 2022. On the trial date the defendant failed to appear. The court granted absolution from the instance and the defendant/plaintiff in reconvention was ordered to pay the plainfiff/defendant in reconvention’s wasted costs for the week of 18 Juy 2022 to 22 July 2022.
The plaintiff drafted a bill of cost amounting to N$255 000. The bill of cost was drawn from the date of inception of the action up to and including the aforementioned order when absolution from the instance was granted. The taxing officer allowed an amount of N$320 595.63, which included the drawing of the bill of cost, attendance, VAT and disbursements allowed. At the time of the taxation, there was no opposition to the bill of cost. However, on 12 September 2022, Mr. Shimutwikeni came on record on behalf of the defendant and filed a Notice of Motion noting the defendant’s dissatisfaction with the ruling of the taxing master and requested that the taxing master state a case for the decision of a judge in terms of Rule 75(1). In his papers, the plaintiff emphasized that:
- The main action was abandoned after the parties reached settlement on the main action as far back as 5 May 2018;
- Absolution from the instance with costs was granted in respect of the counterclaim, which carries a cost order which emanates from inception until finalization. The counterclaim was instituted on 14 December 2017 and only finalized on 19 July 2022.
- From the bill of costs it is clear that the cost allowed were from the inception of the counterclaim, carrying half the cost of case management whilst the plaintiff’s claim was alive.
No replying affidavit disputing the abovementioned averements were filed by the defendant. In his notice of motion, the defendant does not request the allocator of the taxing officer to be reviewed and set aside but only states a case which appeared to be an objection to the taxation of the bill in its entirety. The defendant did not object to specific items but contended that that if one has regard to the court order of 19 July 2022, then the only costs that should have been allowed to be taxed by the taxing officer should have been limited to items 205 to 209, which amounted to N$59 340, inclusive of VAT, the drawing of the bill of costs and attendance to taxation. This relates specifically to the punitive cost order made by the court on 19 July 2022.
The point of depature for the taxing officer is rule 98(2) which states that if a trial is called and the defendant appears and the plaintiff does not appear in person or by his or her legal practitioner, the defendant is entitled to an order granting absolution from the instance with costs. The taxing officer took the view that the court order made in terms of rule 98(2) dealt with two aspects, firstly an order for absolution from the instance and secondly, a cost order in favor of the party absolved. PRINSLOO J considered the legal principles thus:
‘[16] If the costs have been awarded on a party-party basis, which was the case in this matter, the taxing master/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 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).’
[18] Further to this, Kangueehi AJ held in the case of Dietmar Dannecker v Leopard Tours Car and Camping Hire CC & Others No. SA 79, delivered on 17 September 2020, that:
‘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 or her 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 succinctly enunciated in the landmark case of Johannesburg Consolidated Investment Co (JCI) v Johannesburg Town Council 1903 TS 111 at 116.’
In Hollard v Minister of Finance (HC-MD-CIV-MOT-REV-2017/00002) [2020] NASC 18 October 2007, the court had this to say regarding the exercise of the taxing master’s discretion:
‘[24] 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’.
The defendant did not object to any of the items at the taxation but he after the fact raised issues in respect of the taxed costs and the court order of 19 July 2022. The successful party is entitled to his costs upon the order of absolution from the instance. Such costs date back to the date of the inception of the defendant’s counterclaim. Secondly, the defendant in his approach to the cost order of 19 July 2022 was opportunistic to say the least. It is clear that he was also mulcted with a punitive cost order for the week of 18 July 2023 to 22 July 2022 for the way in which he conducted his matter. The absolution order was granted in terms of rule 98(2) of the rules of court, which included costs. The view of the defendant that he would not be liable for the costs pursuant to this court granting an order for absolution from the instance with costs in respect of his counterclaim is peplexing.
‘[25] It is clear from the bill that the costs allowed by the taxing officer were from the inception of the counterclaim, and the cost in respect of the main claim was half of the cost of the case management whilst the plaintiff’s case was alive.
[26] Taking all those factors into consideration, I am of the view that the taxing officer judiciously exercised her discretion and should not be interfered with. The application of the defendant, if one can qualify it as an application as no further relief is sought, is dismissed with costs.’