ITEC SA (Pty) Limited v SWX Managed Print Services and Others (HC-MD-CIV-MOT-GEN-2023/00329) [2025] NAHCMD 193 (24 April 2025)

REPUBLIC OF NAMIBIA

Flynote: Costs – Review of taxation – Rule 75(1) – Legislature’s intention – To provide a remedy for party dissatisfied with a taxing officer’s ruling to any item or part of an item objected to at the taxation or disallowed mero motu by the taxing officer – Exception to rule considered but declined.

Summary: This is a review of taxation of costs under rule 75 with a special request that it be entertained on an exceptional basis as in Municipal Council of Windhoek v Pioneerspark Dam Investment CC,¹ as the items concerned were not objected to at the taxation. In Municipal Council of Windhoek v Pioneerspark Dam Investment CC, the Supreme Court entertained a review seeking to review the taxing master’s allocatur in that court while the items concerned were not objected to at the taxation.

Held that, the legislature’s intention is clearly expressed in the ordinary wording of rule 75(1) to provide a remedy directed explicitly at assisting a party dissatisfied with a ruling of a taxing officer to any item or part of an item which was objected to at the taxation or disallowed mero motu by the taxing officer.

Held that, based on Municipal Council of Windhoek v Pioneerspark Dam Investment CC, there may be exceptions that permit deviations from rule 75(1), but the facts of the instant case are not suitable for allowing a deviation and there is no reason to deviate from the rule.

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ORDER

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1. The review of taxation under rules 75(1) and (2) dated 14 March 2024 is struck.

2. The taxing officer must correct item 13 in the fees column of the taxed bill of costs to reflect the VAT exclusive amount instead of the VAT inclusive amount, and she must further correct all totals affected thereby as well as the allocatur to bring both documents in line with the taxation conducted.

The matter is finalised and removed from the roll.

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JUDGMENT

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DE JAGER J:

1. Before court is a review of taxation of costs under rule 75. The review is coupled with a prayer that it be entertained on an exceptional basis as in Municipal Council of Windhoek v Pioneerspark Dam Investment CC² because the items concerned were not objected to at the taxation as envisaged in rule 75(1).

2. Under rule 75(1), reviews of taxations of costs only lie against rulings of taxing officers on items or parts of items objected to at the taxation or disallowed mero motu by the taxing officer. In Municipal Council of Windhoek v Pioneerspark Dam Investment CC, the Supreme Court entertained a review seeking to review the taxing master’s allocatur where the items concerned were not objected to at the taxation. That court said:

‘[14] The issue raised is one that relates to an important general principle in respect of appeals heard to litigants in this court and is not of importance only to the parties in this matter. I am of the view that it should be dealt with so as to set the tone for all further taxations in this court. In the circumstances, the objections of the applicant will be considered despite not having been raised at the taxation. I want to caution legal practitioners however that this should not be seen as a green light to seek reviews of items in bills of costs where they were not objected to at the taxation. Without some compelling reasons, such reviews will not be entertained and where such reviews relate to anything that is of importance only to the parties to the particular bill of costs it will certainly not be a sufficient reason to deviate from the general rule.’

3. The applicant is ITEC SA (Pty) Limited, and the respondents are SWX Managed Print Services (Namibia) (Pty) Limited t/a SWX Digital Solutions, Frans de Wet and Hamilton da Costa, respectively.

4. On 23 October 2023, the court ordered the applicant to pay the respondents’ wasted costs on a party and party cost scale.

5. At the taxation, the applicant was represented by a candidate legal practitioner and the respondents by a senior legal practitioner.

6. The review lies against a revised taxed bill of costs and allocatur on the following grounds:

1. The corrected allocatur indicated that the fees are payable on an attorney and client cost scale contrary to the 23 October 2023 court order providing for a party and party cost scale.

2. On the taxing officer’s advice, all advocates’ fees had to be moved from the disbursements to the fees column, as they were fees and had to be recorded as excluding VAT. However, item 13 (an advocate’s invoice) was incorrectly included in the fees column inclusive of VAT.

3. Items 13 and 37 (advocates’ invoices) were not properly itemised but allowed by the taxing officer. Properly itemised bills of those invoices must be produced, failing which those items must be removed from the allocatur.

7. The taxing officer’s stated case records the following:

1. The respondents’ legal practitioner compiled the bill of costs.

2. The applicant’s representative never objected to any item and/or raised any issue at the taxation.

3. The cost scale issue was discussed at the commencement of the taxation. The taxing officer referred to the 23 October 2023 court order and questioned why the bill of costs reflected an attorney and client cost scale. The respondents’ legal practitioner confirmed it was a typographical error and an oversight, as the items in the bill reflected a party and party cost scale.

4. The taxing officer explained the difference when recording counsel’s fees under the disbursements column (VAT inclusive) and the fees column (VAT exclusive), and the parties agreed that the counsels’ invoices at items 13, 37 and 39 could be taxed off under the disbursements column and re-entered under the fees column. Item 13’s recording was a calculation oversight, and the amount should be amended, which the taxing officer already alluded to the parties.

5. The respondents’ legal practitioner submitted counsels’ invoices for items 13, 37, and 39. The taxing officer and the applicant’s representative perused the invoices. The applicant’s representative did not raise any issues with any of them, and they were accepted as is.

8. In the applicant’s written contentions, it is conceded that the applicant’s representative raised no objections. It is explained that following the issuance of the allocatur, the applicant’s legal manager in South Africa observed certain irregularities in the taxed bill of costs, and upon advice from a Namibian cost consultant, it became apparent that the applicant had to review it. The court is implored to follow the approach in Municipal Council of Windhoek v Pioneerspark Dam Investment CC. It is submitted that the principles in the instant case are appropriate to allow a deviation from the rule that items not objected to at the taxation may not be objected to afterwards. It is further submitted therein that the taxing master disregarded important matters, considered extraneous matters and acted on a wrong principle. It is contended that common law grounds of review exist, and the court should interfere with the ruling.

9. The applicant then raised the issue that the cost award did not allow the costs of two instructed counsel, and the taxing master was not authorised to allow the second instructed counsel’s costs. The applicant further submitted that if the court’s opinion is that the respondents are allowed the costs of two instructed counsel, the taxing master failed to apply the mandatory provisions only to allow half of the second instructed counsel’s costs, she did not apply the party and party hourly rates allowed for instructed counsel and allowed 100 per cent of both instructed counsel’s costs. The applicant argued that even in the absence of any objections, the taxing master had to apply the provisions of the party and party rules. Lastly, it was pointed out that the instructed counsel’s fees were placed in the fees column, inclusive of VAT. The applicant prays that the matter be referred back to the taxing master so she can correctly apply her discretion on those issues.

10. The respondents did not submit any contentions. Following the applicant’s contentions, the taxing officer did not compile a report under rule 75(5). Instead, on 30 January 2025, she referred the case for decision to a judge for consideration and determination in chambers absentia the parties on 12 February 2025. Judgment was reserved on 12 February 2025 for 24 April 2025.

11. The remedy provided under rule 75 is specifically directed at assisting a party dissatisfied with the ruling of a taxing officer as to any item or part of an item which was objected to at the taxation or disallowed mero motu by the taxing officer. It will immediately be noticed that the issues raised in the applicant’s contentions about the second instructed counsel’s fees were not raised in the review. Considering the applicant’s contentions and how the issues came to light, they were also not raised at the taxation.

12. It has always been this court’s stance that, absent an objection at the taxation, an objection cannot be raised afterwards.³ Based on Municipal Council of Windhoek v Pioneerspark Dam Investment CC, exceptions may permit deviations from that position, but the facts of the instant case are not suitable for allowing a deviation.

13. That conclusion is illustrated with reference to the facts in Municipal Council of Windhoek v Pioneerspark Dam Investment CC, which were as follows. The legal practitioner concerned accepted the principles in Afshani and Another v Vaatz (Afshani)⁴ would apply, and that was accepted on the basis that the taxing master understood the law correctly, but after having studied Afshani, it turned out that the taxing master did not apply it correctly. At the taxation, the legal practitioner did not realise that Afshani was misapplied and hence did not object. A reason was provided why the issue was not objected to at the taxation. The Supreme Court said it has a little doubt that there will be exceptions to the general rule that objections at the taxation are a prerequisite for the bringing of a review of an allocatur, and the court can, after all, interfere where it is satisfied that the taxing master was clearly wrong when he made a specific ruling.⁵ There was, however, a further issue that the taxing master did not appreciate that the instructed legal practitioners are entitled to fees for ‘court appearance’, which is not the same as for ‘court attendance’. The Supreme Court stated that the issue raised was one relating to an important general principle in respect of appeals heard to litigants in that court and was not of importance only to the parties in that matter and was of the view it should be dealt with to set the tone for all further taxations in that court. On that basis, the court entertained the matter even though no objection was raised at the taxation. Moreover, the indulgence came with a caution not to be seen as a green light to seek reviews of items not objected to. The Supreme Court said some compelling reason must exist for such reviews to be entertained, and if it relates to anything that is of importance only to the parties to the particular bill of costs, it will certainly not be sufficient reason to deviate from the general rule.

14. In contrast, in the instant case, the applicant did not provide any reason (other than the taxing officer being clearly wrong), let alone a compelling one, why the court should entertain the review, while no objections were raised at the taxation. No reason whatsoever was provided why the issues were not objected to at the taxation. Moreover, the review only relates to something important to the applicant, not to anyone else. There is thus no reason to deviate from the rule. It is also added that, even though their wordings are similar, Municipal Council of Windhoek v Pioneerspark Dam Investment CC dealt with Supreme Court Rule 25(3) for costs incurred in an appeal, not High Court Rule 75(1). The approach adopted in Municipal Council of Windhoek v Pioneerspark Dam Investment CC should be reserved for and applied sparingly to cases with materially similar circumstances, which the instant case before court is not. That conclusion is supported by Prosecutor-General v Atlantic Ocean Management (Pty) Ltd and Another,⁶ where the Supreme Court repeated the caution expressed in Municipal Council of Windhoek v Pioneerspark Dam Investment CC that:

‘. . . lawyers attending taxations must be properly prepared and must make their objections in such a manner that the taxing master note them and makes a ruling in respect of each objection, or run the risk that the matter will not be reviewable because no proper objection was raised against the taxing of the items sought to be reviewed.’

15. There is a further reason why the review should not succeed. The upshot of the instant case is that the taxing officer did not make any specific ruling on the issues now raised, as was the case in Municipal Council of Windhoek v Pioneerspark Dam Investment CC. In other words, the taxing officer made no ruling on the issues now being objected to. As expressed in the ordinary wording of rule 75, the legislature's intention is clear in providing a remedy for rulings made by a taxing officer to any item or part of an item objected to at the taxation or disallowed mero motu. The remedy under rule 75 does not cater for the instant case, and it was wrong to engage rule 75 proceedings. If common law grounds of review exist as submitted by the applicant, its remedy was elsewhere and not under rule 75.

16. The patent error alluded to by the taxing officer in paragraph 7(d) above must be corrected to bring the taxed bill of costs and allocatur in line with the taxation conducted.

17. In conclusion, it is ordered that:

1. The review of taxation under rules 75(1) and (2) dated 14 March 2024 is struck.

2. The taxing officer must correct item 13 in the fees column of the taxed bill of costs to reflect the VAT exclusive amount instead of the VAT inclusive amount, and she must further correct all totals affected thereby as well as the allocatur to bring both documents in line with the taxation conducted.

The matter is finalised and removed from the roll.