PINKSTER
GEMEENTE VAN NAMIBIË vs

NAVOLGERS
VAN CHRISTUS KERK SA AND ANOTHER

CASE
NO. (P)A210/2000

2001/08/10

Maritz,
J.

PRACTICE

Case
No. (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 1^ST RESPONDENT

THE REGISTRAR OF DEEDS,
WINDHOEK 2^ND 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 Barnett 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. 111 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 N.O.
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.

   
   

_____________________________

MARITZ,
J

Counsel
for the Applicant: A. Vaatz & Partners

Counsel
for the Defendant: Dr. Weder Kruger & Hartmann