Court name
High Court
Case name
Kaese v Schacht and Another
Media neutral citation
[2009] NAHC 95





CASE NO







SUMMARY

REPORTABLE



CASE
NO.: A 311/2007





IN
THE HIGH COURT OF NAMIBIA


In
the matter between:



WALTER HORST KAESE v KLAUS DIETER SCHACHT and



GAMIKAUB (PTY) LTD









PARKER J



[IN CHAMBERS]



Delivered
to the Registrar on 2009 November 5



Costs –
Taxing Master’s
allocatur
– Review in terms of rule 48 of



the Rules of
Court – Court finding that with the coming into force of the
Legal Practitioners Act, 1995 (Act No. 15 of 1995) and the various
amendments to the Rules of Court, starting with the 1996 High Court
Rules Amendment (Government Notice 81 of 1996), the Rules of Court
prescribe a single set of tariffs for all legal practitioners, (i.e.
instructing and instructed counsel) – Consequently charges of
litigious work done by all legal practitioners must be presented in
terms of the prescribed tariffs - Consequently charges of litigious
work done by all legal practitioners must be presented in terms of
the prescribed tariffs – Court reviewing and setting aside
ruling of the Taxing Master respecting three items in the
allocatur
on
the basis that the Taxing Master exercised his (her) discretion
improperly and also acted on a wrong principle, and furthermore that
the ruling was wrong – Accordingly, Court reviewing and setting
aside the Taxing Master’s ruling respecting the three items –
Court ordering Taxing Master to reconsider the taxation of the three
items taking into account the effect of the decision of the Court.





Held,
that the law knows only ‘legal practitioner’, as defined
in s. 1 of



the Legal Practitioners Act
(Act No. 15 of 1995).








Held,
further, that in terms of the Rules of Court all legal practitioners



are also
‘counsel’.








Held,
further, that the statutory authorization in terms of the Rules of



Court which permits a legal
practitioner (instructing counsel) to employ another legal
practitioner (instructed counsel) does not metamorphose the
instructed counsel into anything else for the purposes of the
prescribed tariffs.








Held,
further, in Namibia the charges of an instructed counsel for



litigious works done are fees
and not disbursements.


























REPORTABLE






CASE
NO.: (P) A 311/2007


IN
THE HIGH COURT OF NAMIBIA


In
the matter between:





WALTER
HORST KAESE APPLICANT





And





KLAUS
DIETER SCHACHT 1
st
RESPONDENT


GAMIKAUB
(PTY) LTD 2
nd
RESPONDENT





CORAM:
PARKER
J


[IN
CHAMBERS]



Delivered to the Registrar
on: 2009 November 05





JUDGMENT:


PARKER
J







[1] The applicant is seeking a
review of the Taxing Master’s
allocatur.



The respondents have raised a
point
in limine which
is basically that I should not hear Mr. Vaatz until he has paid the
wasted costs which he was ordered to pay within one week after
taxation of the bill of costs (see Manyarara AJ’s order set out
below).







[2] As I understand the order,
‘within one week of taxation’ means within one week of
taxation if the taxation is not sought to be reviewed by the Court.
It would have been a different matter if the respondents contend that
Mr. Vaatz had not paid the costs and he did not require the Taxing
Master to state a case for the decision of a judge within 15 days
after the
allocatur
in terms of rule 48
of the Rules, or that 15 days after the judge’s decision has
passed and Mr. Vaatz has not made payment. In any case, upon the
authority of
Christian
v Metropolitan Life Namibia Retirement Annuity Fund and others
2008
(2) NR 753 (SC), I do think I should decline to stay the present
review until Mr. Vaatz has paid the costs that were ordered against
him. To do so would inhibit or terminate Mr. Vaatz’s ability
to obtain redress in this Court of his grievance against the Taxing
Master’s
allocatur.
It follows that I
dismiss the respondents’ point
in
limine.







[3] Any persistent lingering
doubt that in Namibia the two professions, i.e. of advocate and of
attorney, were ‘fused’ – to put it mildly –
on 7 September 1995 when the Legal Practitioners Act, 1995 (Act No.
15 of 1995) came into operation is put to rest if regard is had to
the following passage in a judgment by the Supreme Court in
Afshani
and another v Vaatz
2007
(2) NR 381 at 385 F-H (
per
Maritz JA):



The
two professions were ‘fused’ on 7 September 1995 when the
Legal Practitioners Act of 1995 came into operation. The Act, among
others, repeals the Admission of Advocates Act (Act 74 of 1964) and
the Attorneys Act (Act 53 of 1979) as amended (s 94); provides that
persons who have been practicing as attorneys and advocates under the
repealed statutes should be enrolled as legal practitioners under the
Act (s 6); prescribes the qualifications for future admissions of
legal practitioners (ss 4 and 5); establishes one controlling body
for all legal practitioners and compulsory membership thereof (ss 40
and 43); and, to bring other legislation in line with the new
dispensation created by the Act, provides in a single sweeping
section (s 92 (1)) that: a reference in any other law to an
advocate, a counsel or an attorney shall be construed as a reference
to a legal practitioner.







[4] Thus, the two legal
professions, namely, ‘advocate’ and ‘attorney’
were rendered statutorily defunct by the Legal Practitioners Act as
from 7 September 1995 (i.e. the critical date). I have used the word
‘defunct’ advisedly: on 7 September 1995 the professions
of advocate and of attorney ceased to exist in law. In their place,
the law created one single, unified legal profession of legal
practitioner. This conclusion is
a
priori
the repeal in
‘whole’ by s.94, read with Schedule 2, of the Legal
Practitioners Act of each and every legislation dealing with
attorneys and advocates, starting with the Admission of Advocates
Act, 1964 (Act No. 74 of 1964), and the repeal of s.11 of the
Administration of Justice Proclamation, 1919 (Proclamation No. 21 of
1919).







[5] In sum, the appellations
‘advocate’ and ‘attorney’ did not survive in
law the incisive knife of the Legal Practitioners Act. In this
regard, the point must be firmly and clearly made that s. 67(2) of
the Legal Practitioners Act does not have the effect in any shade of
perpetuating a bifurcated legal profession in Namibia after 7
September 1995. To put it simply, the Legal Practitioners Act is in
effect the death knell of a bifurcated legal profession that had
existed in Namibia before the critical date. That being the case,
the conclusion is inexorable and irrefragable that the law, as it
stands now, knows of only ‘legal practitioner’, as
defined in s. 1 of the Legal Practitioners Act.







[6] The fact that some legal
practitioners have taken advantage of s. 67(2) of the Legal
Practitioners Act and have chosen to use the appellation ‘advocate’
to describe ‘the mode of their practices’ (to borrow a
phrase from Maritz JA in
Afshani
and another v Vaatz
2007
(2) NR 381 (SC) at 386D)) is of no consequence, legally speaking:
the choice that some legal practitioners have made in that regard has
therefore, not in any way resurrected a bifurcated legal profession
in Namibia. The absolute fact that remains is what I have mentioned
previously: the law knows only ‘legal practitioner’.
This conclusion is buttressed by s. 92(1) of the Legal Practitioners
Act which reads:



Subject
to the provisions of this Act, a reference in any other law to an
advocate, a counsel or an attorney, shall be construed as a reference
to a legal practitioner.







The aforegoing conclusion is
additionally reinforced by rule 12 of the Amendment of the Rules of
the High Court of Namibia (Government Notice 81 of 16 April 1996)
(‘the 1996 High Court Rules Amendment’). For the above
reasons also, it is patently clear that the Taxing Master was
palpably wrong when he stated in his reasons (para. 8) that s. 92 of
the Legal Practitioners Act ‘has no effect whatsoever on the
existing High Court Rules.’ He has undoubtedly misread the
said s. 92.







[7] I have taken some time to
discuss the effect of the Legal Practitioners Act on the legal
profession for a good reason. To start with, in his ‘Review of
Taxation’ application, in which he requested the Taxing Master
in terms of rule 48 of the Rules of Court to state a case for the
decision of a judge, counsel formulated his request in such a manner
that he used terms that are defunct in terms of the Legal
Practitioners Act; for example, ‘instructing
attorney’
(para. 1(a)),
advocate’s
fees’ (para.
2(a)), and ‘the
advocate’
(para.2(c)). All
these tend to obfuscate the issues in this review. The discussion
above is therefore to depurate the statements by the counsel. But
more important; I have done so in order to build the correct
foundation on which the determination of this review should be
predicated. In other words, it is a necessary prelude to determining
this review.







[8]
Accordingly
, my next
logical port of call is rules 10 and 11 of the aforementioned 1996
High Court Rules Amendment. Rule 10 replaces the entire rule 69 of
the Rules of Court published under Government Notice 59 of 1990 (‘the
1990 Rules of Court’); and paragraph (a) of rule 11 replaces
sub rule (1), and paragraph (b) of rule 11 replaces sub rule (8), of
rule 70 of the 1990 Rules of Court.







[9] Doubtless, the 1996 High
Court Rules Amendment aimed at repealing rule 69 which concerned
tariff of maximum fees for advocates on party and party basis in
certain civil matters, and also at repealing parts of rule 70 which
concerned taxation and tariff of fees of attorneys. The object of
the repeals was indubitably to bring the tariffs that existed before
the critical date of 7 September 1995 in line with the Legal
Practitioners Act because, although the 1996 High Court Rules
Amendment was gazetted on 16 April 1996, the Amendment came into
operation retrospectively on 7 September 1995 when, as I have said
ad
nauseam,
the Legal
Practitioners Act came into force.







[10] The following significant
amendments to the 1990 Rules of Court brought about by the 1996 Rules
of the High Court Amendment and that are relevant to this review are
noted: they hold an important key to the determination of this
review. The new rule 69 is entitled ‘Fees of Counsel
Generally’. The word ‘counsel’ replaces the word
‘advocate’ wherever it occurred in the old rule 69.
Paragraph (a) of rule 11 of the 1996 High Court Rules Amendment
deletes paragraph (b) of sub rule (1) of rule 70 of the 1990 Rules of
Court and replaces the word ‘attorney’ with the word
‘counsel’ in the new sub rule (1) of the said rule 70;
and further, paragraph (b) of the said rule 11 replaces the word
‘attorney’ with the word ‘counsel’ in the new
sub rule (8) of the said rule 70 wherever it occurs. Since the
watershed amendment to the High Court Rules in 1996, there have been
subsequent amendments that are relevant to the present review; they
are the amendments under the Government Notices 182 of 6 July 1996,
221 of 14 November 1997, 69 of 1 April 1998, 189 of 1 August 2000,
221 of 16 December 2002 and 141 of 2006. It is this latest amendment
under Government Notice 141 of 2006 that Mr. Vaatz refers to in his
submission.







[11] The aforegoing statutory
analysis is crucial to the determination of this review. And in
determining the review, I cannot do better than to rely on the
authoritative principles on review of the ruling of the taxing master
enunciated with great succinctness by Maritz JA in
Afshani
and another v Vaatz
supra
at 393C-F:



I
am mindful that courts of law will not readily disturb a ruling of a
Taxing Master falling within his or her discretion ( see
Bradshaw
v Florida Twin Estates (Pty) Ltd
(supra)
at 316 in fine) unless he or she
(a)
has
not exercised his discretion judicially but has done so improperly;
(b)
has
not brought his or her mind to bear upon the question; or
(c)
has
acted on a wrong principle (see e g
General
Leasing Corporation Ltd v Louw
1974
(4) SA 455 (C) at 461-462 and
Noel
Lancaster Sands (Pty) Ltd v Theron and Others
1975
(2)
SA 280 (T) at 282F). In addition, given the supervisory powers the
court retains to ensure fairness, reasonableness and justice in
court-annexed procedures – such as the taxation of bills of
costs (compare the authorities referred to in
Pinkster
Gemeente van Namibia (previously South West Africa) v Navolgers van
Christus Kerk SA
2002
NR 14 (HC) at 17B to H) – the court may also correct the Taxing
Master’s ruling not only on the aforementioned common-law
grounds of review, but also when it is clearly satisfied that the
Taxing Master was wrong (cf
Legal
and General Assurance Society Ltd v Lieberum NO and Another
1968
(1) SA 473(A) at 478G-H).







That is the manner in which I
approach the determination of the instant review.







[12] Keeping the aforegoing
statutory analysis of the Legal Practitioners Act and the amendments
since April 1996 to the Rules of Court in firm view, I now direct my
attention to the items in the bill of costs which are the subject
matter of the present review. The applicant, the respondents and the
Taxing Master have all relied on
Afshani
and another v Vaatz
supra
in support of their individual contentions. Without a doubt,
Afshani
and another v Vaatz
enunciates
very useful principles concerning taxation. But it must be
remembered that that case concerned the Supreme Court Rules, and
particularly the effect of the Legal Practitioners Act on the
applicable Supreme Court Rules. That is not what this review is
about; this review concerns the 1990 Rules of Court, as amended by
the aforementioned amendments thereto since April 1996.







[13] As I have demonstrated
previously, the 1996 High Court Rules Amendment was made in order to
take cognizance of the effect of the Legal Practitioners Act on the
legal profession and practice of the profession under that Act;
hence, the need to have amended the 1990 Rules of Court. Thus, my
burden is to determine this review through the interpretation and
application of the relevant provisions of the 1990 Rules of Court, as
amended by the 1996 amendment and subsequent amendments thereto, and,
of course, relying on those useful and authoritative principles
enunciated in
Afshani
and another v Vaatz
supra
and other authorities that are of assistance to the issues under
consideration.







[14] The items in contention
are items 31, 35 and 47 of the
allocatur
of the bill of costs that was taxed by the Taxing Master and which is
the subject of this review. The bill arises from the order made by
this Court (
per
Manyarara AJ) on 30
June 2008, and it reads:




  1. That
    the Application to condone the late filing of the Applicant’s
    Heads of Argument is granted.



  2. That
    the matter is hereby postponed to the 22
    nd
    September 2008.



  3. That
    leave is hereby granted to the Respondent to file Supplementary
    Heads of Argument, (five) 5 days before the date of the hearing.



  4. That
    the wasted costs are to be paid by Mr. Vaatz personally, within one
    (1) week of Taxation.



  5. That
    the Taxing Master is hereby directed to tax the wasted costs within
    sixty (60) days of today’s date.








[15] It is important to note
that the present review is limited to the grounds on which the
applicant is seeking to set aside the Taxing Master’s
allocatur
(
Afshani and another
v Vaatz
supra).







Items 31 and 35



[16] Mr. Vaatz’s
submission is simply that since the Taxing Master has conceded that
these costs were not party and party costs, this Court should make
‘an order deleting or not allowing items 31 and 35 in the bill
reflecting wasted costs on party and party basis.’ The
respondents’ legal practitioners take an opposite view. As I
understand their submission, it was obligatory in terms of Practice
Directions (of 8 May 2007) that heads of argument be filed 15 days
before the hearing of an opposed motion. Mr. Vaatz had failed to do
so; and therefore he brought an application for condonation of the
late filing of counsel’s heads of argument. Thus, according to
the respondents’ legal practitioners, owing to the actions of
Mr. Vaatz, the respondents had to file additional heads. The legal
practitioners submitted further that ‘the legal
practitioner/instructing counsel had to refresh his memory with
regards the preliminary heads when the matter was finally heard on
the 2
nd
of February 2009, some seven (7) months later, considering that
supplementary heads (were) also filed by the respondents.’







[17] From the outset it must be
made clear that neither the Taxing Master nor this Court is
interested in what happened or might have happened after the date of
the order by my Brother Manyarara AJ which was the subject matter of
the Taxing Master’s
allocatur,
which in turn is under review in the present proceedings. Indeed, it
was because the matter was postponed as a result of Mr. Vaatz’s
inaction that was why an order for wasted costs was made by Manyarara
AJ on 30 June 2008 against Mr. Vaatz
de
bonis propriis.

Furthermore, if the respondents’ legal practitioner refreshed
his memory as regards ‘the preliminary heads’ ‘when
the matter was finally heard on 2 February 2009’, then the
preliminary heads did not go to waste. In any case, as I have said
previously, this Court is only interested in the order of wasted
costs that was made on 30 June 2008; that is, wasted costs occasioned
by the postponement on that day. In this regard, it has been held
that wasted costs are, in principle, the same as ‘costs of the
day’. (Cilliers,
Law
of Costs
, 3rd
edn. at para. 8.10; and the cases there cited). Thus, in my view,
the wasted costs in the 30 June 2008 order are ‘costs of the
day’, i.e. 30 June 2008.







[18] From the aforegoing, it is
my view that the taxing master was wrong to have allowed items 31 and
35, as charged; and so the Taxing Master’s ruling is reviewed
and set aside. I do not think this is a proper case where this Court
should correct that decision. The taxing must, in his discretion,
rule as to what amount is fair as wasted costs for the day (30 June
2008) on the party and party scale.







Item 47



[19] Mr. Vaatz’s
argument are two-pronged: the instructed counsel is entitled to
fees, ‘but those fees must be presented in the manner in which
any other legal practitioner must present his fees and cannot be
charged on a day basis but must be charged on a half hour basis as
laid down in the new tariffs application for all legal practitioners;
it is ‘exorbitant by any standard’ for a legal
practitioner to charge N$22,942.50 for ‘a mere postponement,
which requires the parties to be in court at the most 15 – 20
min.’







[20] The respondents’
legal practitioner’s submission is prefixed with what
assignments the respondents’ instructed counsel carried on, and
from that they submitted deductively that ‘the Taxing Master
should have allowed the instructed counsel’s fee as is, as same
is reasonable under these circumstances.’ And the
circumstances, according to the respondents’ legal
practitioners, are that ‘Mr. Vaatz agreed to such fees and
respondents are therefore entitled to the total amount of N$22,942.50
as agreed between Mr. Vaatz and Advocate Corbett.’







[21] With the greatest
deference, I am constrained to say that the argument of the
respondents’ legal practitioners has no merit for two main
reasons. First, this Court is not privy to any agreements made or
undertakings given by a party or the parties which might have
preceded the taxation. Second, the amount of N$22,942.50 has not
been charged by the respondents as ‘fees’, as their legal
practitioners now submit in the ‘Respondents’
Contentions’, but as ‘disbursements’ in their bill.







[22] The question that then
arises is this: Apart from the quantum of the amount (‘exorbitant’,
Mr. Vaatz characterizes it), should the amount be allowed as
disbursements; that is, should the amount be charged as fees or
disbursements? In England which has a bifurcated legal profession
(of barristers and solicitors, and barristers are referred to as
‘counsel’ in judicial proceedings) the Court accepted in
Barnato v Joel 45
TLR 167 at 167 counsel’s submission that the ‘word
“disbursements” had a technical meaning and meant certain
items not covered by profit costs as between solicitor and client; as
for example, counsel’s fees’.







[23] That is in England with a
bifurcated legal profession. In Namibia, as I have discussed
in
extenso
previously,
there is a single and fused profession of legal practitioner.
However, in terms of rule 1 of the 1996 High Court Rules Amendment,
‘“counsel” means a legal practitioner admitted,
enrolled and entitled to practise as such in the court’. Put
simply, in terms of the Rules of Court, every legal practitioner is
counsel in the court. Nevertheless, subject to sub rule (5) of the
amended rule 69 of the Rules of Court, a legal practitioner
(instructing counsel) is permitted to employ another legal
practitioner (instructed counsel) in judicial proceedings for the
purposes of the instructed counsel representing the instructing
counsel’s client in such proceedings. However, this statutory
authorization does not metamorphose the instructed counsel into
anything else for the purposes of the tariffs prescribed by the Rules
of Court for all legal practitioners. What this means is that in
Namibia the charges of an instructed counsel for litigious work done
are fees and not disbursements. As regards the client, the litigious
work done by the instructed counsel was as though it was done by the
instructing counsel herself or himself;
a
priori
, if charges
for litigious work done by instructing counsel are fees, then charges
for litigious work done by his or her instructed counsel are also
fees; they cannot be disbursements.







[24] From all the above, the
conclusion is inescapable that in terms of the Rules of Court there
are only prescribed tariffs for all legal practitioners –
instructing or instructed ‘counsel’; and as Mr. Vaatz
correctly put it, they must all present their charges according to
the tariffs prescribed by the Rules of Court. The latest prescribed
tariffs are those in the Schedule to the Amendment to the High Court
Rules (Government Notice 141 of 5 September 2006) (‘the
September 2006 Amendment of the Rules of Court’). In this
connection, it is worth noting that references to Note 1 of the
Annexure to the Rules of the Supreme Court in
Afshani
and another v Vaatz
supra
have no relevance to the interpretation and application of the Rules
of this Court.







[25] In para. 9 of the Taxing
Master’s submission, the Taxing Master makes the following
deduction from a series of contentions: ‘In respect of the
High Court Rules, counsel’s fees can be taxed as a
disbursements’. One such contention is this: ‘In
contrast (i.e. with the Supreme Court Rules), section 92 of the Legal
Practitioners Act, 1995 has no effect whatsoever on the existing High
Court Rules’. And the basis for the Taxing Master’s bold
assertion is this: ‘The latter Rules (i.e. the Rules of this
Court) specifically make provision for the concept instructing and
instructed counsel’. Another significantly damming contention
which is as fallacious as is bold is in para. 7 of the Taxing
Master’s contention:







The
effect which section 92 of the Legal Practitioners Act 1995, had on
the interpretation of Rule 14 of the then Rules of the Supreme Court,
was that, and
in
that case only
,
the fees of an advocate could not be taxed as disbursements (i.e. and
because no reference was made in the then Rules to the concepts
instructing and instructed counsel).







[26] I have shown in great
detail previously that the Taxing Master’s contention that s.
92 of the Legal Practitioners Act has no effect ‘whatsoever on
the existing High Court Rules’ is clearly palpably wrong: it
is a dangerous fallacy. With respect, the Taxing Master misreads s.
92 of the Legal Practitioners Act. I have also concluded previously
on detailed analyses that in the interpretation and application of
the relevant provisions of the Legal Practitioners Act and the Rules
of Court that were promulgated in response to the creation of a
single, fused legal profession in Namibia by the said Act, starting
with the aforementioned April 1996 High Court Rules Amendment,
charges of instructed counsel for litigious work are fees, like those
of any other legal practitioner, and not disbursements. The Taxing
Master’s misreading of the relevant provisions of the Legal
Practitioners Act and the Rules of Court appears to arise from the
fact that the Taxing Master fails or refuses to see that the law, as
it now stands, as I have said it more than once previously, does not
recognize the practice of ‘advocate’
per
se
: see, for
instance, the fourth line of the
chapeu
of the Taxing
Master’s submission: ‘But on item 47
Advocate
fee: …’
See also the third and fourth lines of para. 7 of the Taxing
Master’s submission: ‘… in that case only, the
fees of an
advocate
could not be taxed
as disbursements …’







[27] It follows from the
aforegoing reasoning and conclusions that the Taxing Master has not
exercised his discretion properly, and has acted on a wrong
principle; and furthermore, I am satisfied that the Taxing Master’s
ruling respecting item 47 was wrong. To borrow once more from
Maritz, JA in
Afshani
and another v Vaatz
supra
at 393G, ‘… the (Assistant) Taxing Master acted on an
indefensibly incorrect interpretation of the Act’, and his
reasoning respecting ‘some of the applicant’s objections
were clearly wrong’. Accordingly, his ruling on item 47 must
be set aside. As I said in respect of items 31 and 35, as respects
item 47, too, this is not a proper case where this Court should
correct the decision of the Taxing Master.







[28] I have held that this is
not a proper case where this Court after setting aside the ruling of
the Taxing Master should correct the ruling. It is my view,
therefore, that the Taxing Master must tax items 31, 35 and 47 afresh
against the backdrop of the aforegoing analysis, reasoning and
conclusions.







[29] I now pass to deal with
the question of costs in this review. Very important principles
respecting costs brought about by the Legal Practitioners Act and the
subsequent amendments of the Rules of Court, starting with the 1996
High Court Rules Amendment, have been enunciated; and that they may
guide future taxation. In my opinion, therefore, this is a proper
case where it would be fair and just that no order as to costs is
made.







[30] In the result I make the
following order:



(1) The taxation review of
items 31, 35 and 47 succeeds.



(2) The Taxing Master’s
allocatur
in respect of items 31, 35 and 47



is set aside.



(3) The Taxing Master must
tax items 31, 35 and 47 afresh.



(4) There shall be no order
as to costs.












________________



PARKER J
















ON BEHALF OF THE PLAINTIFF:
Andreas
Vaatz & Partners






























ON
BEHALF OF THE DEFENDANT
Chris
Brandt Attorneys