Court name
High Court
Case number
9 of 2011
Title

Shali v Prosecutor-General (9 of 2011) [2012] NAHC 289 (31 October 2012);

Media neutral citation
[2012] NAHC 289
Coram
Smuts J













NOT REPORTABLE



Case no: Poca 9/2011



IN THE HIGH COURT OF
NAMIBIA







In the matter between:







MARTIN SHALI
................................................................................................APPLICANT







and







THE PROSECUTOR-GENERAL
.................................................................RESPONDENT







Neutral citation: Shali v The
Prosecutor-General (POCA 9/2011) [2012] NAHCMD 44 (31 October 2012)







CORAM: SMUTS, J



Delivered on: 31 October 2012











JUDGMENT















SMUTS, J.:



[1] This court directed that the
respondent pay the applicant’s costs in respect of the latter’s
success in an application. The costs order included the costs
occasioned by the employment of two instructed and one instructing
counsel.







[2] The matter proceeded to taxation.
The respondent objected to certain items in the applicant’s
bill. The taxing master partially upheld some objections and did not
agree with others. The respondent was however dissatisfied with the
rulings of the taxation master in respect of 37 items and gave notice
to the taxing master to state a case for decision in terms of rule
48(1), specifying the grounds of objection in respect of the items in
question. The taxing master prepared a stated case and each of the
parties thereafter filed their written submissions as contemplated by
rule 48. The taxing master did not provide any further report and
neither party requested to be heard in chambers or for the matter to
be heard in court.







[3] In the respondent’s
contentions which were provided after the taxing master had prepared
the stated case, the dispute narrowed to 22 items by reason of the
fact that the respondent abandoned the review in respect of 15 items
raised in the original notice. Before the items are dealt with
individually or, where justified, as grouped together, it is
appropriate first to refer to the principles governing reviews of
taxations. It has been repeatedly held that a court would not
interfere with the exercise of a taxing master’s discretion
unless that discretion has not been exercised judicially and has been
exercised improperly where for instance facts were disregarded which
should have been considered or matters considered which were not
proper to have been considered, and furthermore where the taxing
master failed to bring his or her mind to bear on the question in
issue or has acted upon a wrong principle or where the opinion of the
taxing master was clearly wrong
1.







[4] Rule 70 confers upon the taxing
master the power to award costs “as appear to him or her to be
necessary or proper for the attainment of justice or for defending
the rights of any party.” In exercising this discretion, the
taxing master is take into consideration the fundamental rule that a
successful party is entitled to his or he costs and that the purpose
of taxation is, as specified in rule 70, for the successful party to
secure a “full indemnity for all costs reasonably incurred by
him or her in relation to his or her claim or defence”.



[5] I turn now to deal with the items
which have given rise to the respondent’s dissatisfaction with
the taxing master’s ruling.







Items 44 - 47 and 49 - 61







[6] These items relate to a second
application brought by the respondent on 20 January 2012 against the
applicant on an ex parte basis pursuant to the provisions of the
Prevention of Organised Crime Act, 29 of 2004. This second
application was for forfeiture of certain assets and for condonation.
The respondent contended at the taxation that this application did
not form part of the applicant’s urgent application in respect
of which costs were awarded to the applicant. As the second
application was an ex parte application, the applicant did not
participate in it. It was accordingly contended by the respondent
that the items would constitute pre-litigation costs which could not
be recovered on a party and party basis and not necessary for the
attainment of justice on the part of the applicant.







[7] The taxing master found that these
costs were justified because the applicant’s legal practitioner
was required to search for the documents at court and acquaint
himself with the facts of the second application in order to bring
the urgent application. The applicant’s legal practitioner
supported the taxing master’s ruling. He submitted that it was
necessary for consultations to have occurred concerning the changed
circumstances of the further preservation application and the
application for condonation. It was further submitted that even if
these attendances constituted pre-litigation costs, the taxing master
exercised his discretion properly in line with authority. Reference
was made to Robinson v Teuves NO
2
where it was held that if a party
could show that professional work, although done with the purpose of
an anterior enquiry, was likely to be of direct use and service in an
ensuing action, the taxing master would be justified in treating
those costs as being properly incurred for the attainment of justice
within the meaning of rule 70(3).



[8] It would seem to me that the
taxing master was justified in considering that the costs fell within
that category and that it was reasonably necessary for the
applicant’s legal practitioner to perform the services listed
in these items. The review in respect of these items fails.







Items 74 -78



[9] These items were listed in the
respondent’s notice in terms of rule 48. They were not
abandoned in the written contentions made by the respondent. No
submissions were however advanced in relation to them in the
respondent’s written contentions. These items relate to
consultations of the applicant’s instructing legal practitioner
with counsel which were taxed down in respect of the time claimed.
They also include a single item in respect of perusal of the
affidavit, as drafted and settled by counsel. It was submitted on
behalf of the applicant that these consultations were necessary to
prepare the urgent application. That application succeeded and a
costs order was granted.







[10] I can find no fault with the
exercise of the taxing master’s discretion to allow the
reasonable costs of consultations where in the exercise of his
discretion he reduced the number of hours for consultations held from
25 hours to 17 hours. I also see no reason why the applicant’s
instructing counsel should be disentitled to a perusal fee in respect
of the final draft affidavit as settled by counsel.







Item 119







[11] This item, being the attendance
to prepare sort and arrange two sets of documents in lever arch file
for counsel, was objected to in the respondent’s notice in
terms of rule 48. This objection was not abandoned in the
respondent’s written contentions but no submissions have had
been advanced concerning it. I see no reason why the taxing master’s
decision to allow this item should be interfered with.











Item 135







[12] This item related to an
attendance to index the instructing legal practitioner’s own
set of papers. It was taxed down from N$840 to N$280. The respondent
submitted that it constituted attorney client costs and cannot
reasonably be claimed in a party and party taxation. In my view this
item was correctly allowed by the taxing master. Without taking such
a step, an instructing legal practitioner would not be in a position
to properly contribute at a hearing of the matter.
3







Item 155







[13] This item was likewise included
in the respondent’s notice in terms of rule 48 but no written
submissions were included in the contentions subsequently provided
concerning this item. Nor was the review in respect of this item
formally abandoned. It relates to instructing counsel attending at
court to update an index. Only 30 minutes for this attendance were
claimed. It would appear to have been taxed in that amount. I
certainly am not able to find fault with the exercise of the taxing
master’s discretion to allow this attendance.







Items 184 and 186







[14] These two items involve
substantial amounts. They relate to the attendances of senior and
junior instructed counsel respectively. The respondent objected to
them on two grounds. Firstly, the respondent contended that the hours
claimed by both senior and junior counsel were unreasonable and
unjustified. In the second instance it is submitted that the hourly
fee allowed for senior counsel is unreasonable. Counsel claimed 75
and 78 hours of preparation respectively prior to the hearing and a
further two days in respect of the hearing itself. The hours are
specified in like fashion, and span several days. They are in 3
phases. They include extensive consultations with the instructing
counsel and the preparation of the notice of motion and founding
affidavit and travelling to and from Windhoek for the purpose of
those consultations. Secondly, further attendances related to
studying the opposing affidavit and counter application,
consultations and preparing, revising and finalising a replying
affidavit. In the third instance, further attendances related to
extensive research and preparing, revising and finalising heads of
argument. In addition to these, two further days were claimed by
counsel in respect of the hearing.







[15] I first deal with the objection
to the amount taxed in respect of senior counsel’s hourly rate.
The hourly rate claimed in the bill was N$3 600. The taxing master
taxed that down to N$2 800. Taking into account counsel’s
seniority and acknowledged expertise in the area of endeavour, I can
find no fault with the exercise of the taxing master’s
discretion to tax down the rate claimed to N$2 800 as being
reasonable and justified in the circumstances.







[16] The taxing master taxed senior
counsel’s bill at the rate of N$2 800 per hour for 75 hours for
the initial three phases and using this rate as well for the two
further days in respect of the hearing on a basis of 8 hours per day.
Having considered the papers in the matter, I can find no fault with
the amount of time taken for the purpose of preparing heads of
argument, being 16 hours. The amount of time taken for the initial
consultations and preparing the founding affidavit and the notice of
motion being 41 hours including travelling time and the preparation
of the replying affidavit being 18 hours would appear to me to be
unreasonable and overcautious and excessive in the circumstances.
Having regard to the issues raised in the matter and the papers
themselves, I would consider that the taxing master should have
disallowed 9 hours from the 41 hours for the initial phase and 6
hours in respect of the preparation of the replying affidavit. To
permit for the 32 hours and 12 hours respectively for those exercises
would in my view be reasonable and justifiable in the context of the
litigation. The taxing master should thus have disallowed a total of
15 hours of the attendances claimed by senior counsel as well as 15
hours of the attendances claimed by junior counsel.







[17] Two days were claimed in respect
of each counsel for the hearing. This is because counsel needed to
travel to and from Cape Town. The point is taken by the respondent
that these costs should not be allowed in respect of junior counsel
given the fact that local junior counsel could have assisted senior
counsel in the matter and there would then have been no reason for
the incurrence of the extra day of fees in respect of junior counsel
for the purpose of travelling to and from Cape Town. There is in my
view merit in this point. It would in my view be unreasonable and
unjustified for the travelling costs of junior counsel to be allowed,
when briefed with senior counsel, as a party and party costs in these
circumstances. It follows in my view that the costs in respect of
junior counsel for the second day of the hearing should have been
disallowed for this reason.



[18] In the applicant’s written
submissions, it is contended that the taxing master was clearly wrong
to have only allowed junior counsel’s fees at one third of
those charged by senior counsel. Whilst it was correctly pointed out
that junior counsel would be entitled to 50% of the fees of senior
counsel as between party and party, this point is however not well
taken on the facts of this taxation. Junior counsel however only
claimed one third of senior counsel fees. The taxing master granted
that which was claimed. He was accordingly not unjustified or
unreasonable in doing so. The amount claimed by junior counsel was
even further reduced by him in line with a cost estimate provided.
The taxing master however allowed junior counsel’s fees at a
sum in excess of the fee estimate thus claimed and charged by junior
counsel. As a consequence, an amount N$12 600 was incorrectly taxed
on to the bill. In view of my conclusion that the taxing master
should have disallowed certain of junior counsel fees, this issue
could no longer arise and the amount thus incorrectly taxed on would
fall away.







[19] It would follow that senior
counsel’s fees should have been disallowed by the amount of 15
hours at N$2 800 per hour in a total amount of N$42 000 and that
junior counsel’s fees should have been disallowed by an amount
of 15 hours at N$1 200 per hour in an amount of N$18 000, as well as
a further day fee, taxed at N$12 000, in respect of the second day
for the hearing. The total amount which should thus have been taxed
off the bill amounts to N$72 000.







[20] It would follow that the
respondent has been successful in part in respect of the review of
the taxation of the several items originally raised. But the
respondent does not ask for the costs of this review and I
accordingly make no order as to costs.







[21] In the result the applicant’s
objection to certain of the hours claimed in respect of items 184 and
185 is to the extent set out above upheld. There is no order as to
costs.















______________



DF SMUTS



Judge



1Visser
v Gubb 1981(3) SA 753 (C) at 754H – 755C and the authorities
usefully collected there.




21974(1)
SA 559 C




3Monja
v Pretoria City Council 1980(1) SA 103 (T)