Court name
High Court
Case number
[P]APPEAL 210 of 2000
Title

Navolgers Van Christus Kerk SA v Registrar of Deeds Windhoek ( ([P]APPEAL 210 of 2000) [2001] NAHC 28 (10 August 2001);

Media neutral citation
[2001] NAHC 28
















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







Costs
- taxation of -
locus
standi
of
party to take ruling of the Taxing Master made
suo
moto
on
review.




CaseNo.(P)A210/2000















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:



MARITZ,
J:
The
applicant, aggrieved by a number of rulings made by the Assistant
Taxing Master during taxation of a bill of costs, is seeking to have
them reviewed under Rule 48 of the High Court Rules. Not content to
simply challenge the reasonableness of the Assistant Taxing Master's
rulings, the applicant also launched an attack on his
impartiality. The attack followed upon the Assistant Taxing Master's



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.







What
is permissible is ...those costs which an honest, experienced and
capable practitioner would consider reasonable in relation to the
particular claim or defence, bearing in mind the requirements of
efficient practise and the exigencies of litigation." (Per M. T.
Steyn, J. in
Van
Rooyen vs. Commercial Union Assurance Co of SA Ltd,
1983(2)
SA 465 (O) at 468C - E).







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.











As
Rosenow, J. pointed out in
Phiri
vs. Northern Assurance Co. Ltd.,
1962(4)
SA 284 (C) at 285 E, the discretion to decide what costs have been
necessarily or properly incurred is given in the first instance to
the Taxing Master and not to the Court. Although Rule 48 contemplates
that the Court shall ultimately be the final arbiter in relation to
the taxation of costs, it is normally reluctant to interfere with the
Taxing Master's rulings in the absence of good grounds to do so.
(See:
Kock
vs. S.K.F. Laboratories (Pty) Ltd.,
1962(3)
SA 764 at 765 E). Given the large number of variations in the
complexity, causes of action, issues and other exigencies of cases,
it is sometimes difficult for the Taxing Master "to steer his
difficult course between the
Scylla
of
liberality and the
Charybdis
of
niggardliness" (to borrow the words of R.B.B. Davis, J. in
Bamett
vs. Isemonger,
1942
CPD 325 at 326). Hence, the Court will on review allow the Taxing
Master a significant degree of appreciation in the exercise of his or
her discretion.



There
are, however, certain well known and oft repeated grounds, based on
the Common Law grounds of judicial review, which will entitle a Court
to interfere with the Taxing Master's rulings: "If (a) he has
not exercised his discretion judicially, that is if he has exercised
it improperly; (b) he has not brought his mind to bear upon the
question; or (c) he has acted on a wrong principle."
(Per
Cloete,
A.J. (as he then was) in
Kock
vs. S.K.F. Laboratories (Pty.) Ltd, supra,
at
765. See also:
Preller
vs. Jordaan and Another,
1957(3)
SA 201 (O) at 203 C to E,
General
Leasing Corporation Ltd. vs. Louw,
1974(4)
SA 455 (C) at 461 to 462,
Noel
Lancaster Sands (Pty.) Ltd. vs. Theron and Others,
1975(2)
SA 280 (T) at 282 F).











It
should be borne in mind, however, that the review of the Taxing
Master's decision on taxation is one going beyond the rather narrow
Common Law parameters of judicial review applicable to the acts or
omissions of public bodies. It is by its nature a review denoting "a
wider exercise of supervision and a greater scope of authority than
those which the Court enjoyed" under either the review of the
proceedings of lower courts or of public bodies acting irregularly,
illegally or in disregard of important provisions of statute. As
Potgieter, J.A. points out in
Legal
and General Assurance Society Ltd. vs. Lieberum N.O. and Another,
1968(1)
SA 470 (A) at 478 G to H in connection with Appellate Division Rule
9(1) (citing with approval the remarks of Innes, C.J., in



Johannesburg
Consolidated Investment Co. vs. Johannesburg Town Council,
1903
T.S. Ill at 116) "the Court, therefore, has the power to correct
the Taxing Master's ruling not only on the grounds stated in
Shidiack's
case, but also when it is clearly satisfied that he was wrong. Of
course, the Court will interfere on this ground only when it is in
the same or in a better position than the Taxing Master to determine
the point in issue".











I,
with respect, associate myself with those remarks. The taxation of a
bill of costs is a court-annexed process. As such it is an integral
part of the judicial process and a Taxing Master presides on it not
simply as an administrative official, but as an extension of the
judiciary
(per
Schutz,
J. in
Nedperm
Bank Ltd. vs. Desbrie (Pty.) Ltd.,
1995(2)
711 (W) at 712 G). It is an intrinsic part of the matter and normally
follows upon an earlier ruling of the Court. Fairness, reasonableness
and justice permeates the whole process of litigation before a court
of law and, where it is left to the Registrar or the Taxing Master to
deal with aspects ancillary thereto, the Court retains a supervisory
duty to see to it that they dispose of their duties in accordance
with the Rules and with due regard to the same values.











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.




The
applicant's attack on the objectivity of the Assistant Taxing Master
is premised on the fact that his report contains argumentative
matter from which it is apparent that he was taking "the side
of the respondent". The applicant's rather severe criticism
seems to be based on an incorrect understanding of the purpose of a
Taxing Master's report to the Court in a Rule 48-review. Whilst the
stated case to be prepared by the Taxing Master under sub-rule (1)
require of him or her to state objectively and concisely "each
item or part of an item together with the grounds of objection
advanced at the taxation ...and any finding of facts" (See:
Cordingley
NO. vs. BP Southern Africa (Pty.) Ltd.,
1971(3)
SA 118 (O) at 112 B to C;
Nedperm
Bank Ltd. vs. Desbie (Pty.) Ltd.,
1995(2)
SA 711 (W) at 713 A to C), his or her duties in preparing a report
for the benefit of the Court under sub-rule (2) is different. The
Taxing Master is required to set out in the report his or her
reasons for the ruling made by him or her in full (See:
Nedperm
Bank Ltd. vs. Desbie (Pty.) Ltd., supra,
at
713 C). In so doing, he or she is not only entitled to refer to the
reasons given at the taxation, but may also include others, in
particular the reasons for agreeing or disagreeing with grounds of
objection and submissions not advanced during the taxation but put
forward as part of a party's written contentions under sub-rule (2).











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.











I
find nothing in the report of the Assistant Taxing Master that
justifies the critical remarks by counsel for the applicant or, for
that matter, which is supportive of any unfairness in the process.
Counsel will do well to remind himself of the remarks of M T Steyn,
J (as he then was) in
Van
Rooyen vs. Commercial Union Assurance, supra,
at
468 H that "in essence the process of taxation is a joint
undertaking by attorney and Taxing Master, aimed at justice being
properly done in the matter of costs and each making his
contribution for that purpose" instead of resorting to baseless
criticism of an official of this Court.











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





inclusion
of those items on the ground of relevancy. The respondent's counsel
submitted that those documents were relevant because they formed the
basis of an important
in
limine
objection
raised by the first respondent in the main application in this
Court. Having heard argument by both counsel, the Assistant Taxing
Master ruled that a composite fee on a time-basis will be allowed in
respect of those items. He determined three hours as reasonably
necessary for perusal of the documents and allocated a fee of
N$420.00, in the process taxing off some N$303.75. The ruling,
therefore, raises three questions: firstly, that of the relevancy of
the perused documents; secondly, whether a composite fee on a
time-basis should have been allowed and, thirdly, the time allowed
as reasonable or proper for the perusal of those documents.











In
the main application, the applicant sought to set aside an
endorsement by the Registrar of Deeds substituting the name of the
applicant for that of the first respondent on the title deed of a
certain property. The first respondent opposed the application and,
aside from the merits, raised two points
in
limine,
i.e.,
the applicant's
locus
standi
and
the applicant's abuse of the process of court by proceeding on
motion well knowing that there were material disputes between the
parties not capable of resolution on affidavit. In support of the
latter objection it referred to the previous litigation between the
parties in the South African Supreme Court and annexed documents
from the papers and pleadings filed in that Court to corroborate the
allegation that the applicant had been aware of the disputes, the
scope and substance thereof and how material they were to the issues
in the proceedings before this Court.











When
he decided on the relevancy of those documents, the Assistant Taxing
Master bore in mind that this Court dismissed the application (and
subsequently its Full Bench dismissed the appeal) on the basis of
the second
in
limine
objection.
As part of the
ratio
Teek,
J. (as he then was) remarked that the "applicant knew that
there were serious disputes of facts involved in this matter by the
very nature of it and especially having regard to the history of the
matter and in particular the previous litigation between the
applicant and the first respondent". It is evident from this
remark that the first respondent was entitled to consider the papers
filed of record in the Supreme Court of South Africa and to annex
documents in support of its second objection. The Court regarded
those documents and the disputes of fact apparent from them as
persuasive when it dismissed the application.











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.











In
the alternative to his main submission and in the event of this
court finding that some of those documents were relevant,
applicant's counsel contended that only those documents from the
previous litigation that were actually used as annexures to the
first respondent's Opposing Affidavit in the main application should
be allowed. He argues that a litigant cannot simply dump all his
papers on his counsel's desk and expect of counsel to go through
hundreds of irrelevant documents at the costs of the other side.
Whereas the argument, taken by itself, may be persuasive in certain
instances, it is not helpful in the circumstances of this case. The
respondents' counsel received the documents of the previous RSA
litigation as a single file. He perused those documents and, instead
of annexing the whole court file as an annexure, prudently perused
the court file and extracted from it only those documents most
supportive and illustrative of the objection
in
limine
that
he was instructed to raise on behalf of the first respondent.
Although other documents might also have been of some relevance,
there was no need to annex all of them.











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.











On
review, both the Taxing Master and counsel for the first respondent
took the view that, having failed to object to this item during the
taxation, the applicant was precluded from taking the Assistant
Taxing Master's ruling, made
mero
moto
against
the first respondent in respect of that item, on review. Whilst
conceding that he did not object to that item during the taxation,
counsel for the applicant argues that "the ruling of the Taxing
Master as to any item or part of an item which was ... disallowed
mero
moto
by
the Taxing Master" may also be taken on review. The Taxing
Master disallowed part of the item and, therefore, so he argues,
applicant was entitled to take his ruling on review.











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:











"Any
party dissatisfied with the ruling of the Taxing Master as to any
item or part of an item which was objected to or disallowed
mero
moto
by
the Taxing Master may ... require the Taxing Master to state a case
for the decision of a Judge ... : Provided that, safe with the
consent of the Taxing Master, no case shall be stated where the
amount or the total of the amounts, which the Taxing Master has
disallowed or allowed, as the case may be, and which the party
dissatisfied seeks to have allowed or disallowed, respectively, is
less than N$250.00".







The
Rule, therefore, contemplates dissatisfaction with the ruling of the
Taxing Master in relation to any item or part of an item which was
(a) objected to or, (b) which was disallowed
mero
moto
by
the Taxing Master. Under category (a), the party presenting the bill
of costs for taxation or the one objecting to it, or both of them,
may, depending on the ruling of the Taxing Master, be a
"dissatisfied" party and have
locus
standi
to
take the ruling on review: The party presenting the bill for
taxation in relation to an item taxed down; the party who objects to
an item when the whole or the part of the objection has not been not
allowed, or both parties if the Taxing Master disallows part of an
item upon an objection. In that instance the one party may be
dissatisfied that a part of the fee has been taxed down and the
other may be dissatisfied that only part of the objection has been
allowed. Under category (b), only the party who submitted the bill
of costs has
locus
standi
to
take a
suo
moto
ruling
of the Taxing Master disallowing any item of that bill wholly or in
part on review. It is difficult to comprehend that a party who has
failed to object to a particular item in a bill of costs, can be
"dissatisfied" with such a ruling made by the Taxing
Master against the presenter of that account.



I
am fortified in this view by the proviso to sub-rule (1). For
example, if the Taxing Master, acting
suo
moto
and
in the absence of any objection, taxed down a bill of costs with
less than N$250.00, the person who presented the bill of costs for
taxation will not be allowed, save with the consent of the Taxing
Master, to take the matter on review. Why then will the other party
then be entitled to do so if he or she has also unsuccessfully
objected to other items in the bill?







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







Counsel
for the Defendant: Dr. Weder Kruger
86
Hartmann