PINKSTER GEMEENTE VAN NAMIBIE vs
NAVOLGERS VAN CHRISTUS KERK SA AND ANOTHER
CASE NO. (P]A210/2000

2001/08/10

Maritz, J.

PRACTICE

Costs - taxation of - R48-review - purpose of taxation - duty of counsel in preparing bills of costs - approach of Taxing Master and criteria to be applied on taxation - taxation a court-annexed process - grounds on which the court will intervene on review with Taxing Master's ruling

Costs - taxation of - purpose of Taxing Master's report under R48(2) - Taxing Master required to set out reasons - reasons likely to overlap with those advanced by the one or the other party - such similarity of reasons no cause to allege bias or lack of objectivity

IN THE HIGH COURT OF NAMIBIA

In the matter between:

PINKSTER GEMEENTE VAN NAMIBIA

(PREVIOUSLY SOUTH WEST AFRICA)	APPLICANT

versus

NAVOLGERS VAN CHRISTUS KERK SA	1st RESPONDENT
THE REGISTRAR OF DEEDS, WINDHOEK	2nd RESPONDENT
HIGH COURT REVIEW IN TERMS OF COURT RULE 48 CORAM:     MARITZ, J
Delivered on:        10/08/2001 (In Cambers)

JUDGMENT:

report under Rule 48(2). The ultimate paragraph of the applicant's
response to the report reads as follows:
"One cannot overlook the impression that the Assistant Taxing Master has lost his objectivity. What he has prepared is not a 'report' as required by Rule 48, but an argument that he takes the side of the respondent and looses his sense of objectivity. That is regretted."

With both the fairness and the reasonableness of the taxation in issue, it is perhaps necessary to reflect briefly on the object of taxation, the role of counsel and the Taxing Master in the process and, in view thereof, to consider the grounds on which the applicant is seeking to set those rulings aside.

Generally, the objective of taxation is to award "the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him or her in relation to his or her claim or defence and to ensure that all such costs shall be borne by the party against whom such order has been awarded". (See: Rule 70(3).) If the costs has been awarded on a party-and-party basis, the Taxing Master 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 the 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".

It is with that objective in mind that counsel of a successful litigant
should draft a bill of costs. The responsibility to include in a bill of costs
only those costs that are permissible under a court's costs order is
borne, in the first instance, by counsel who submits the bill for taxation.
"The attorney is his client's master of costs, often deciding, either on his own or in conjunction with counsel, what steps to take, what evidence to obtain for and use in the litigation, evaluating the work and effort involved in the matter and what the charges therefor should be ... As officer of the Court the attorney is enjoined to act responsibly and to draw his party-and-party bill of costs so as to include therein only what is permissible to recover from the party condemned in such costs.

It is to ensure that only those costs and nothing in excess of it will ultimately be recovered from the party mulcted in costs by an adverse party-and-party costs order, that Rule 70 of the High Court Rules has created a mechanism for objections to cost items or to the quantum thereof in a bill of costs. Ultimately, it is for the Taxing Master to decide which costs to allow by bringing an objective evaluation on the basis of the stipulated criteria to bear on the bill. At every taxation, the Taxing Master is the functionary enjoined with the obligation to ensure that only the 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, are allowed.

It is with these remarks that I now turn, firstly, to the attack on the objectivity of the Assistant Taxing Master and, secondly, to his rulings disputed in this review.

It follows that the reasons of the Taxing Master are likely to be similar with those advanced by either the one or the other of the parties: If the reasons are in defence of the earlier ruling, it is likely that they will accord with those of the respondent in the review or, if the Taxing Master concedes that he was wrong in his earlier ruling, it is likely that his reasons will be supportive of those advanced by the applicant in the review. The similarity between the Taxing Master's reasons in his report and the written contentions of any of the parties to the review does not justify an inference of bias.

Next, I shall deal with the rulings on a number of items of the bill of costs taken on review. The first ruling relates to items 8 to 146. These items are all claimed for perusal of 133 letters and 8 documents (altogether about 215 folios) that formed annexures to a previous action between the applicant and first respondent in the Supreme Court of the Republic of South Africa.    The applicant's counsel objected to the

The contention by applicant's counsel that the litigation in the Republic of South Africa had nothing to do with the registration of a change of name in the Deeds Office does not take the point any further. It matters not what the relief prayed for in that Court was, fact is, that some of the disputes in that case were also pertinent to the disputes in the main application. On the basis of the applicant's prior knowledge of the substance and relevance of those disputes, the Court, in the exercise of its discretion, dismissed the application as an abuse of its procedure.

To determine whether it was necessary and proper to read all of the documents, the Taxing Master had to place himself in the position of the respondents' counsel and, from that perspective, he had to determine what steps were reasonably taken to obtain evidence for and use in the litigation. None of those documents were considered by the Assistant Taxing Master as being individually important. In fact, some of them are clearly irrelevant. In taxing the account, the Assistant Taxing Master had to bear in mind that the respondent was entitled to a full indemnity for all costs reasonably incurred by it in relation to its defence. In my view, it was not unreasonable to read the court file of previous litigation in order to decide which material to extract from it for use in the main application.

The sum of the fees for perusing the individual documents in the bill of costs would have amounted to N$723.75. In deciding not to allow perusal fees in relation to each and every relevant document but rather, to deal with the documents in the court file as a collection and allow a single fee on a time-basis in respect of their perusal under Rule 70(5)(a), the Assistant Taxing Master cannot be faulted. Moreover, if regard is being had to the number of documents the time-based composite fee of N$420.00 appears to be reasonable, if not conservative.

The next objection relates to an amount of N$ 1,929.00 allowed under item 250 for air tickets issued to one Pastor Poole when he came to Namibia for a consultation during August 1996. Pastor Poole was duly authorised by the first respondent to depose to an affidavit in opposition to the main application.  To that end a return air ticket was issued to him between Cape Town and Windhoek. The applicant's objection to this item is twofold: firstly, the first respondent's legal representatives in Cape Town were better positioned to draft the affidavit of Pastor Poole and, secondly, Pastor Poole had nothing to do with the application because he was not "a member of the Grootfontein Group".

The last of the two grounds is clearly untenable: Pastor Poole was the National Moderator of the first respondent. Given his knowledge of the relationship between the two church groups and the earlier litigation between them, he was apparently identified as most knowledgeable about the issues and therefore authorised by the first respondent to make an affidavit in opposition to the application. He had everything to do with the application as the duly authorised representative of the first respondent. Counsel for the applicant further contends that he was not a member of the "Grootfontein Group", which, as I understand, was apparently a local branch of the first respondent who initiated the change of name on the Title Deed. For good reason, the Grootfontein Group was never cited as a party to the proceedings. There is no indication on the papers in this review application that a member of the Grootfontein Group was more knowledgeable than Pastor Poole about the affairs of the first respondent, its relationship with the applicant, its control over local branches and of its overall supervisory role and responsibilities for the acts of local church branches.
The suggestion that the first respondent's attorneys in Cape Town could have drafted the affidavit is equally without merit. Although the Cape Town attorneys of the first respondent might have had more intimate knowledge of the matters that were raised in the Supreme Court of South Africa, the main application extended to disputes much wider than those. The relief prayed for in those proceedings were dissimilar to the relief prayed for in the main application. In addition, the conduct of the first respondent objected to by the applicant related to that of members of one of its branches. Members of the Grootfontein Group had to be consulted and for them to have travelled to Cape Town would have been more expensive than the costs of Pastor Poole's air ticket from Cape Town to Windhoek.

Furthermore, the main application was instituted in Namibia. The respondent had to appoint legal practitioners either directly or as correspondents within an 8 km radius from the High Court's seat. The first respondent cannot be faulted for having chosen to appoint only one firm of legal practitioners to represent its interests. Given the importance of Pastor Poole's affidavit and the fact that it related to matters beyond the scope of the issues in the RSA litigation it could not have reasonably been expected of the first respondent to require of Pastor Poole to make an affidavit in Cape Town. The Windhoek counsel was the one fully informed of the issues and they had the duty and responsibility to research matters relating to those issues and to gather and present evidence in a manner best serving the first respondent's opposition to the application. Under those circumstances it was not unreasonable of them to arrange a consultation with Pastor Poole in Windhoek.

The next objection relates to item 251 which, again, is for the cost of an air ticket issued to Pastor Poole, this time, to attend the hearing in Windhoek. According to the applicant's counsel, there was no justification for him to come to Windhoek. He objected to the expenses incurred as being "unusual". It is further contended that Pastor Poole "was not even a party" to the proceedings. I have already dealt with the latter submission. Pastor Poole was the duly authorised representative of the first respondent mandated as such because of his extensive knowledge about matters relevant to the main application. As to the justification for his presence in Windhoek, the Assisting Taxing Master accepted that it was required for the first respondent to be in a position where it could issue instructions to counsel prior to and during the hearing or argument. The presence of a litigant in court during argument is justified. The principle equally applies, in my view, to natural and legal persons.

The last objection is against the Assistant Taxing Master's ruling on item 253. This item relates to transport to and accommodation for one Pastor Van Wyk at Windhoek during August 1996. The first respondent claimed accommodation for two nights.  At the taxation the applicant's counsel did not object to this item, but the Assistant Taxing Master raised the reasonableness of the costs of accommodation for two nights. He eventually disallowed the costs of one night, ruling that Pastor Van Wyk could have travelled from Walvis Bay to Windhoek earlier the day on which the consultation was scheduled. Given the time at which the consultation finished, he allowed for one night's accommodation.

The applicant's reliance on the quoted words of Rule 48(1) is, in my view, misplaced. The relevant portion of the sub-rule reads as follows:

In the premises I decline to interfere with the Taxing Master's decision on the first three items taken on review and hold, in relation to the fourth, that, in the absence of an objection during the taxation, the applicant lacks standing to take it on review. In the result the following order is made:
1.	The review of the Taxing Master's rulings in respect of items 8 to 146, 250, 251 and 252 of the first respondent's bill of costs fails.
2.	An amount of N$450.00 is awarded to the first respondent for its costs in this review.

Counsel for the Applicant:      A. Vaatz & Partners