CASE NO. C OF A (CIV) 29/2004
IN THE LESOTHO COURT OF APPEAL
In the matter between:-
LESOTHO NATIONAL GENERAL
INSURANCE CO. LTD APPELLANT
and
LERATA TSIU RESPONDENT
BEFORE:
RAMODIBEDIJA HEARD: 28 NOVEMBER 2007
DELIVERED: 4 DECEMBER 2007
SUMMARY
Costs - Taxation of— Review of— When Court will interfere with ruling by Taxing Master — Misdirection — The Rules of the Court of Appeal applied - The Taxing Master's ruling set aside.
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JUDGMENT
RAMODIBEDI JA
[1] This is an application under Rule 12 of the Court of Appeal Rules 1980 ("the Rules") for the review of taxation before a single Judge of this Court. The appellant's appeal in the above mentioned matter was upheld with costs by this Court on 20 April 2004. The appellant's party and party bill of costs was in turn taxed on 30 September 2005 by the then Deputy Registrar of the Court of Appeal as Taxing Master. Items 27 and 90 in the appellant's bill of costs relate to disbursements in respect of counsel's fees for the drafting of the grounds of appeal and for the arguing of the appeal. These fees amounted to M603-00 and M6 500-00 respectively. At the taxation the Taxing Master taxed off M543-00 from the M603-00 (item 27) and M6 020-00 from the M6 500-00 (item 90) on the ground that the tariff of fees for advocates set out in the Third Schedule to the Rules provides for counsel's fees of only M60-00 in respect of the settling of the notice of appeal and M480-00 for arguing the appeal.
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[2] The appellant objected to the Taxing Master's taxing off of the above amounts on the ground that Rule 12 (3) of the Rules provides that the Taxing Master may, if he thinks it just, depart from any of the provisions of the Third Schedule. This Rule reads as follows:-
" Where an advocate, duly instructed by an attorney has appeared in the appeal the amount of fees allowed for costs on a party and party basis shall be such as appears in the Third Schedule annexed to the Rules provided that the Registrar, if he thinks it just, may depart from any of the provisions of such schedule. " (Emphasis added.)
[3] Rule 12 (9) makes provision for the review of taxation by this Court and the appellant accordingly required the Taxing Master on 11 October 2005, and in terms of Rule 12 (10), to state a case for the decision of this Court in respect of the two items disallowed by her. This notice was served on the respondent's attorneys. The Taxing Master, however, failed, despite reminders on a number of occasions, to state a case for the decision of the Court. When it became apparent that the Taxing Master was not going to supply a copy of her stated case to each of the parties, the appellant, in terms of Rule 12 (11), submitted its contentions in writing and served
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them on the new Deputy Registrar of the Court on 5 April 2006. These written contentions were served on the respondent's attorneys on the same day.
[4] On 23 November 2007, the Registrar notified the respective parties in writing of the date of 28 November 2007 as the date of hearing of the matter. This was in accordance with Rule 20 (14) of the Court of Appeal Rules 2006. The parties were also directed to file their heads of argument. The appellant duly complied while the respondent did not.
[5] At the hearing of the matter, on 28 November 2007, Mr Mofilikoane for the respondent applied for a postponement of the matter on the ground that the respondent was "in the dark" as to what the matter was all about. He appeared to rely on the Registrar's failure to state a case. He accordingly applied for a postponement of the matter in order to enable the Registrar to "adequately" tell the respondent what this matter was all about. The application was strenuously opposed by Mr. Grundlingh for the appellant.
[6] After hearing submissions in the matter, I dismissed the application for postponement and directed that the parties
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argue the merits of the review. This was because the respondent had admittedly been served with appellant's contentions as far back as 5 April 2006, a point which Mr. Mofilikoane very fairly and properly conceded in argument before me. The issues between the parties were clearly and unmistakably defined in these contentions. The submission that the respondent did not know what the case was all about is, therefore, plainly incorrect, if not contrived. I was left with a distinct impression that the respondent was playing for time to the obvious prejudice of the appellant. Indeed it should be remembered that the taxation forming the subject matter of this review took place as long ago as 30 September 2005, a period spanning more than two years now.
[7] Furthermore, experience has shown that unmerited postponements soon become an unwelcome culture. As such, they undoubtedly tarnish the proper administration of justice. It is the duty of this Court to stamp out such a practice and, therefore, to lead by example. Each case must, however, be considered in the light of its own facts and circumstances.
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[8] The merits of this review undoubtedly revolve around Rule 12 (3) fully set out in paragraph [2] above. In this regard, it is evident that the Taxing Master considered herself to be bound by the Third Schedule to the Rules in respect of items 27 and 90 in the appellant's bill of costs. Accordingly, she was not prepared to go beyond the amounts stipulated in the tariff of fees for advocates namely M60-00 and M480-00 respectively in respect of the two items. The question which arises therefore is whether or not the Taxing Master was correct in adopting this approach?
[9] The starting point in answering the question posed in the preceding paragraph is to recognise that Rule 12 (3) confers a judicial
discretion on the Taxing Master to depart from the Schedule if he/she thinks it just to do so. It follows in my opinion, therefore, that by adopting the view that she was bound by the Schedule in question, the Taxing Master misconceived the true import of Rule 12 (3). She wrongly approached the matter with a closed mind. By so doing, she failed to exercise a judicial discretion to do justice in the circumstances of the case. These included the fact that
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counsel concerned had accumulated 15 years experience and that he qualified as a senior junior. But more importantly, it was not disputed that the expenses concerned were actual expenses incurred by the appellant in the litigation.
[10] Mr Mofilikoane submitted that the appellant's expenses reflected in item 90 of its bill of costs were in fact attorney and client costs which had not been ordered by the Court. The point, however, is that the Taxing Master never applied her mind to this aspect of the matter. It was within her discretion to make a reasonable award befitting the circumstances of the case in order to do justice. She did not do so.
[11] It is well-established that a reviewing court will not interfere with an award of costs by a taxing master in the absence of a misdirection. This is so because taxation is a matter which lies pre-eminently within the discretion of a taxing master. In this regard, I agree entirely with the following remarks in The Law of South Africa: First Reissue, 3 Part 2 Civil Procedure and Costs, p273, para 412:-
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"A reviewing court will not interfere with the decision of the taxing master unless it is found that he has not exercised his discretion properly, for example where he has been actuated by some improper motive, has not applied his mind to the matter, has disregarded factors or principles which were proper for him to consider or considered others which it was improper for him to consider, has acted upon wrong principles or wrongly interpreted rules of law, or has given a ruling which no reasonable man would have given. Interference on review, it has been held, may be justified on the ground that the taxing master has not exercised his discretion at all or that he has exercised it on a wrong principle. "
See also Ocean Commodities Inc and Others v Standard Bank ofSA Ltd and Others 1984 (3) SA 15 (Ah
[12] On the basis of the aforegoing considerations, more especially having regard to the factors outlined in paragraph [9] above, I am driven to conclude that the Taxing Master adopted a wrong approach in the matter. She failed to exercise a judicial discretion conferred on her by Rule 12 (3) and thus misdirected herself. Accordingly, this Court is at large to interfere.
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[13] Rule 12 (14) of the Rules provided as follows:-
" The Judge after hearing the parties may make such order as he thinks just on each item referred to and may make such order as to costs as he thinks fit, or, he may in his discretion transfer the matter for decision by the full Bench at the next session of the Court."
It should be noted that the Court of Appeal Rules 1980 have now been repealed and replaced by the Court of Appeal Rules 2006. Rule 20 (15) of the latter Rules is substantially the same as Rule 12 (14) of the Court of Appeal Rules 1980. It reads as follows:-
"(15) The Judge, after hearing the parties, may —
make such an order as he thinks just on each item referred to;
make an order as to costs as he thinks fit; or
in his discretion refer the matter for decision by the Full Bench at the next session of the Court. "
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[14] Without seeking to fetter the discretion of the Court or the Taxing Master in the quantum of fees, I would lay it down as a general principle that a successful party should ordinarily be entitled to a full indemnity of all costs reasonably incurred by such a party in litigation. Each case must, however, be judged in the light of its own particular circumstances.
[15] Giving the matter my best consideration, I think it just in the circumstances that the respondent pays M603-00 on item 27 and
M3500-00 on item 90. In my view these amounts are reasonable in the circumstances of the case. I should add that in declining to award the full fees claimed under item 90 I have mainly been influenced by the fact that, although ultimately unsuccessful, the respondent had sought to protect the interests of the minor child involved in the case. As upper guardian of minor children, the Court cannot simply ignore this factor.
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[16] In the result the following order is made:-
The appellant's review succeeds to the extent that the Taxing Master's award is set aside and replaced with the following:-
" A fee of M603-00 is allowed under item 27.
A fee.of M3500-00 is allowed under item 90."
The respondent shall pay the costs in this Court.
M.M. RAMODIBEDI
JUSTICE OF APPEAL
For Appellant : Mr. J.J. Grundlingh
For Respondent: Adv. L,A. Mofllikoane
