THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 1086/2018

In the Rule 17 Review of Taxation between:

R H CHRISTIE INCORPORATED
APPLICANT

and

TAXING MASTER – SUPREME COURT OF APPEAL              FIRST RESPONDENT

MONTANARI: CHARMAINE HELEN                                       SECOND RESPONDENT

In re:

MONTANARI: CHARMAINE HELEN
APPELLANT
and
MONTANARI: EMILIO PIETRO VALFREDO                                        RESPONDENT

Neutral citation:
R H Christie Incorporated v Taxing Master – Supreme Court of
Appeal (1086/2018) [2021] ZASCA 152 (27 October 2021)

Coram:

NAVSA ADP

ORDER

The review is successful only to the extent reflected in paragraphs 59 to 62 of
this judgment.
There is no order as to costs.
The allocator is remitted to the taxing master to be redrawn on the basis set out
in this judgment.

JUDGMENT

NAVSA ADP

[1] This is a review of taxation referred for decision in terms of the Rules of this
Court. The bill of costs in question was in respect of an appeal related to divorce
proceedings and involved the circumscribed novel question of whether the value of
the second respondent’s spouse’s Living Annuities was to be included in an accrual
calculation. The fee relationship between the applicant, R H Christie Incorporated, and
the second respondent was between attorney and own client and the taxing master
was required to tax it as such.

[2] The appeal process included seeking leave to appeal in the Gauteng Division
of the High Court, Johannesburg and then an appeal before the full court of that
division, and finally an appeal, following on a petition, in this Court. Z F Joubert SC
was instructed to represent, as counsel, the second respondent in the appeal in this
Court. The mandate to do so was given on 16 December 2016 at a meeting involving
a Director, an Associate, and counsel. The latter flew from Cape Town to O.R Tambo

International Airport for the meeting, which took place at Edenvale. Counsel was
retained until finalisation of the argument before this Court on 7 November 2019.

[3] It is uncontested that at the meeting aforesaid an hourly rate of R3 600 for
counsel was agreed (excluding VAT). Senior counsel was only involved in the appeal
in this Court and not in prior proceedings. The divorce proceedings are pending in the
trial court. It appears that the only issue on appeal was the one identified in paragraph
1 above.

[4] The taxing master taxed off a significant amount from counsel’s invoices. He
disallowed and taxed off disbursements related to travelling and flight costs incurred
by the applicant in the prosecution of the appeal. Furthermore, the taxing master taxed
off items connected to a condonation application. Lastly, the taxing master disallowed
a list of general items which included communications between the applicant and
counsel, between applicant and correspondent attorneys, perusal of documentation,
communication between applicant and opposing legal representatives, and
attendances. I shall, in due course deal with each of the items in question. The matters
set out in this paragraph are the subject of the review. Most of what appears
immediately hereafter is taken from the stated case.

Counsel’s fees
[5] In respect of counsel’s fees, item 145 in an amount of R86 857.20 was reduced
by taxing off R56 842.20, on the basis that counsel had been allowed the full R39 330
for preparing the heads of argument on item 130, and an additional 10 hours to attend
to 18 pages of heads of argument and 3 hours on a practice note. Items 299 and 300
for an amount of R11 385 was disallowed. In relation to item 403 an invoice in an
amount of R173 134.80 was reduced by R48 934.80, which was for 20 hours work
and a day’s fee. The taxing master accepted that counsel’s rate was agreed with the
second respondent but insisted that what was disallowed was fair.

Travelling costs
[6] In relation to travelling costs under item 138, which involved flying a candidate
attorney to Bloemfontein to ensure filing of papers, the taxing master disallowed them
on the basis that the disbursement for a flight to Bloemfontein was not ‘substantiated’.

The taxing master took the view that the documents that were flown down by someone
from the applicant’s offices, ought rather to have been sent down by courier for
attention by correspondent attorneys. The same pertains to item 195, which was for
travelling costs to Bloemfontein to file heads of argument. In respect of item 404, the
taxing master stated as follows:
‘The flight fee of R53 and the disbursement of R6757.84 was disallowed as there was no need
for counsel to fly to Bloemfontein because it was not the day of the hearing and this is not the
cheapest way of litigation. The flight was on 4 November while the hearing was on 7
November.’
Item 421, which comprised motor vehicle travelling costs to Bloemfontein at the rate
of R14.22 per km, was disallowed because ‘no proof [was] furnished’. The total
claimed was R12 027.28, which is more than twice the return cost of travelling by
aeroplane. This was reduced by allowing only R4.50 per km. The item was thus
reduced by R8 221.18.

Condonation application
[7] The disallowed items in relation to the late filing of the appeal record, were items
151 to 164 and items 171 to 176, which relate to confirmatory affidavits connected with
the condonation application. The taxing master recorded that this was disallowed on
the basis that the application for condonation was necessary because of a systems
failure at the applicant’s offices. It involved data losses and data breaches. He noted
that the record was required to be filed by the Applicant by 19 March 2019, and that
work on this commenced on 17 January 2019, and that only one volume was filed
timeously and that the remaining two volumes were filed late, for which the second
respondent was not responsible and in respect of which she ought not to be liable.

[8] Items 177 and 178, in respect of copying and arranging and perusing the record
of appeal – eight hours were allowed for a candidate attorney instead of the fee for an
attorney and the cost of 10 copies, instead of 11, was allowed and R423.50 was taxed
off.

General Items
[9] Many items were disallowed which bore on the condonation application,
namely, items 221-232, 234 – 242, 264-268, 270-273, 275-277, and items 141 and
142.

[10] Items 4 and 5 were considered a duplication of item 13 – in relation to a letter
to counsel. On Item 10, the fee allowed for instructions from client was reduced from
R789 to R520.

[11] Item 25 was for a letter to the correspondent attorney. It was considered by the
taxing master to be a duplication of item 24 and adjudged to be a case of over-caution.

[12] Item 35 for perusing lodgement letter (57 pages) was reduced to allowing only
the letter and the filing page, which the taxing master deemed was all that was
required.

[13] Items 49, 50, 51 and 52 comprised; a letter to counsel advising that the petition
to the SCA had been lodged timeously; a further email to counsel the same day and
two letters on separate occasions on the same day to the correspondent. Amounts
were taxed off as unnecessary piecemeal instructions.

[14] In respect of items 65 and 66, the taxing master adopted the attitude that item
65 was for the applicant writing to counsel stating that no further affidavit to an
answering affidavit was required, only to be followed a week later by the applicant
drawing a replying affidavit, rendering the prior communication as unnecessary and
wasteful.

[15] In relation to items 103 and 104, which were in relation to two letters to the
second respondent on the same day for communications with the second respondent
‘attaching Court Order’. These were disallowed by taxing master on the basis that they
were a duplication of items 95 and 96. The latter items were in respect of
communications with the second respondent attaching the court order.

[16] The taxing master had regard to items 108 and 109, which were for letters to
counsel on the same day, the first of which attached indices to the record for his
attention. He disallowed these disbursements on the basis that the complete record
had already been sent to counsel under item 131.

[17] Under item 116, which was for copies, the taxing master disallowed costs
relating to an 11th copy which he considered unnecessary. The taxing master took the
view that item 117 was in connection with a core bundle which was not proceeded with
and disallowed it. The claim was described as ‘Attendance to receive letter from
Schindler’s with attachments to be included in the Proposed Core Bundle’. Items 121
and 122 were disallowed on the same basis. Item 121 read as follows:
‘Letter to Counsel advising that the Respondent’s attorneys wish to include Certain
documentation in the proposed core bundle’.

[18] Items 135, 136 and 137 were in connection with precedents of heads of
argument, as examples for counsel to follow. The taxing master questioned why
counsel, who is the expert, required these. The items were all disallowed.

[19] Item 205 was for perusal of lodged heads of argument, list of authorities,
practice note, condonation application, court stamp and signature, for which an
amount of R7 685 was claimed. The taxing master took the view that when
Bloemfontein correspondents send proof of service, they only send the necessary
pages which were stamped and signed by the court. There was thus no need to send
all the items said to be perused.

[20] In respect of items 209 and 210, which were for perusing a courier’s invoice
and attending to pay for it, the taxing master ruled that there was no need to courier
to counsel the heads he had already drafted.

[21] Items 211 and 212 involved the sending of heads of argument to the second
respondent. These were considered by the taxing master to be duplications of items
206 and 207.

[22] Items 280 and 281 bore on communications with counsel, advising that a date
for hearing had not been allocated. That, according to the taxing master, had been
catered for by item 287, which was a communication with counsel advising of a date
for hearing.

[23] Items 299 and 300 were already dealt with under counsel’s fees above. In
relation to items 306, 307, 410 to 416 the taxing master insisted that they were not
explained or substantiated.

[24] In respect of item 422, for attendance at court for 5 hours, the taxing master
indicated that he only allowed 3 hours, which was the actual duration of proceedings
in court.

[25] The taxing master listed items 460, 461, 462, 463, 463(2), 464, 467,468,
469,470, 471 and 472 as being unjustified as they related to a time after applicant’s
mandate had been terminated.

The applicant’s contentions
[26] The applicant began by accusing the taxing master of failing to appreciate that
he was required to tax the bill presented on an attorney and own client scale, and that
he had mistakenly dealt with it on the attorney and client scale. The applicant insisted
that the taxing master had erred by concluding that it had treated the second
respondent improperly and unfairly.

[27] The applicant was adamant that the appeal involved ‘various complexities and
was novel in nature. . .’, more particularly, because of a ‘prior decision of the Supreme
Court of Appeal . . .’. The applicant pointed out that ‘new law’ had been made. It
recorded its dismay at the ‘enormous reduction’ that ensued due to the mistaken
‘conclusion’ that the matter was not one of great complexity. It was stressed that the
second respondent had obtained success due to the endeavours of senior counsel.
Reliance was placed on the second respondent’s undertaking to pay, on which the
first respondent relied, and that he would be required to make good the shortfall. This
so, it was contended, was egregious conduct on the part of the second respondent.

[28] The applicant pointed out that no objections had in the past been raised by the
second respondent in relation to fees, that fees had been paid at intervals, and that on
19 November 2019, the second respondent had undertaken to pay all amounts due to
counsel by the end of January 2020. This, the applicant contended, was an
acknowledgement of indebtedness and was a concession that the fees charged were
reasonable. The second respondent subsequently terminated applicant’s mandate.

[29] It was contended on behalf of the applicant that the taxing master had failed to
consider that by virtue of the fee agreement reached with the second respondent,
counsel and the applicant were entitled to a full indemnity and thus erred when he
assessed reasonableness. The applicant referred repeatedly to the complexity or
extraordinary nature of the appeal, which resulted in the incurring of costs beyond
what was allowed by the taxing master. Furthermore, so the applicant contended, the
Cape Bar had confirmed that the rate charged by senior counsel was reasonable. The
disallowance of the fees of counsel was labelled arbitrary and reviewable.

[30] In relation to disallowing the disbursement involving the flight from Cape Town
to Bloemfontein in the amount of R 6 757.84 (item 404), the applicant pointed out that
this was payment in advance for counsel to have flown from Cape Town to
Bloemfontein and that he did so to attend at the hearing of the matter and contended
that the disallowance of this amount was incomprehensible.

[31] In connection with the disallowance of the flight costs for someone from the
applicant’s office to file documents in Bloemfontein, under items 138 and 195, the
applicant contended that the record would not have been filed timeously if a courier
had been used and that the applicant had acted in the second respondent’s best
interests.

[32] In respect of the application for condonation, the applicant submitted that it was
necessary to protect the second respondent’s interest and that the applicant itself was
not to blame for the system’s failure at its office. It was contended that at least the
costs of preparing and filing the bundles should be allowed.

[33] The applicant pointed out that items 4 and 5 were not a duplication of item 13.
It explained that the communication was to alert counsel to the judgment handed down
by the high court, which was attached for counsel’s attention. This, they stated, was
separate from item 13, which was in relation to the notice of motion and founding
affidavit, which was sent to counsel for settling and correction.

[34] In relation to item 35, which it will be recalled was for perusal of 57 pages, the
applicant contended that it was necessary to ensure that the correct documents were
filed and that it was work performed by the applicant for which it should be entitled to
remuneration.

[35] The applicant responded to the taxing master denying items 49,50, 51 and 52,
referred to in para 14, because he considered it unnecessary piecemeal
communications, by stating that it shows the extent of the work done on the second
respondent’s behalf.

[36] On items 65 and 66, dealt with at para 15 above, where the taxing master would
not allow the costs of what he considered unnecessary and conflicting
communications, for which the second respondent should not be held liable, the
applicant submitted that the work that was done was to protect the second
respondent’s interests.

[37] In respect of items 103 and 104, which the taxing master disallowed because it
was considered a duplication of items 95 and 96, the applicant contended that that
they did not only concern the court order but were an update regarding the compilation
of the record.

[38] There was no retort to the taxing master’s reasons for disallowing items 108
and 109, and 116, referred to in paras 16 and 17 above.

[39] With regard to items 117 and 118, which related to interaction with the opposing
attorneys, the applicant pointed out that it was common practice that all
correspondence from opposing attorneys must be perused and considered. The
attachment received from the opposing side comprised 90 pages. The applicant

insisted that these costs were justified even if the concept of a core bundle had been
abandoned.

[40] There was no response to the disallowance by the taxing master of items 135-
137, which were costs related to providing counsel with precedents of heads of
argument.

[41] In connection with item 205, which the taxing master largely disallowed on the
basis that the perusal ought to have been limited to a perusal of only the pages that
were stamped for proof of service, the applicant submitted that perusal was necessary
to ensure that the correct documents were filed.

[42] In relation to items 209 and 210, involving the perusal of a courier’s invoice and
attending to pay for it, which were disallowed on the basis that there was no need to
courier to counsel a set of heads of argument which he already had, there was no
specific response.

[43] In relation to items 211 and 212, which were disallowed on the basis that it was
a duplication of items 209 and 210, there was no response by the applicant.

[44] Regarding items 280 and 281, advising counsel that a date for hearing had not
been allocated, which were disallowed on the basis that counsel had later been
advised of a date of hearing and that costs had been awarded under item 287, the
applicant contended that they were distinguishable in that the latter item attached the
notice of set down.

[45] In connection with items 306 and 307, disallowed on the basis that there was
no proof or substantiation, it was submitted on behalf of the applicant that that the
courier’s invoice had been provided and that it was in relation to the appeal record
being sent to counsel.

[46] Items 410-416 were disallowed on the basis that they had not been
substantiated and proved. It was contended that these items pertained to
correspondence with the correspondent and opposing attorneys and that they were

clearly identified as such in the bill. It was submitted that had the taxing master
required proof of the correspondence he could have asked for it.

[47] In relation to item 422, which was for time in court on the day of the hearing and
in relation to which the taxing master allowed only three hours, instead of five, the
applicant indicated that the additional two hours included waiting time.

Second respondent’s contentions
[48] It was submitted on behalf of the second respondent that she found herself in
an impecunious position, which the applicant was aware of, and thus should have
been more conscientious and diligent in relation to incurring costs. She had made
payments to the applicant in respect of high court proceedings, so it was said, with a
layperson’s understanding of her right to challenge fees and disbursements. She only
became aware of this right after the applicant’s mandate was terminated and after she
was so advised by her present legal representatives, and consequently appointed a
costs consultant for advice.

[49] In relation to the condonation application, the second respondent was adamant
that it was totally unreasonable to lay those costs at her door. She pointed out that the
applicant had been ordered to file the appeal record four months hence, it was against
these circumstances that the raising of fees for the condonation costs must be viewed.

[50] In relation to counsel’s fees being reduced, the second respondent pointed out
that certain items had to be read together. Item 29 comprised an amount for 4 hours
in an amount of R 16 560. Item 130 related to counsel’s invoice in an amount of
R39 330, which comprised 8.85 hours. Item 300 related to 2.75 hours, in an amount
of R11 385. Item 299 was the applicant’s costs in relation to the perusal of counsel’s
invoice. In respect of item 403, counsel levied an invoice in an amount of R173 134.80,
which encompassed a further 31.82 hours of preparation. Counsel had already been
compensated for items 29, 130 and 145 for preparing, drafting, and settling papers
and heads of argument. The taxing master in considering item 403 took the view that
a globular amount of 20 hours preparation time was warranted. It was for this reason
that items 299 and 300 were taxed off and item 403 was reduced by R48 934.80,
allowing 20 hours preparation time plus counsel’s day fee.

[51] In relation to item 145, counsel’s invoice included items related to the
condonation application, which it was contended were correctly disallowed. A further
fee in relation to the heads of argument was allowed, allowing counsel to be
compensated for 10 hours on heads of argument, which was over and above the
further 20 hours preparation time allowed at Item 403. In relation to the payment for
counsel’s flight catered for in item 404, the second respondent contended that no proof
had been supplied.

[52] In respect of flying a candidate attorney to Bloemfontein to attend to the filing
of a volume of the record, the second respondent allied with the taxing master, by
stating that it was unwarranted and amounted to over-caution. That duty ought to have
been seen to by the correspondent attorney.

[53] In relation to the costs related to Mr Christie driving to Bloemfontein, the second
respondent noted that no prior proof of disbursement was provided at the time of
taxation. Subsequently, on review, it was confirmed that Mr Christie drove to
Bloemfontein. However, the taxing master, in ensuring that what was allowed was fair
and reasonable, had allowed a lesser rate allowing a total of R3 806.10.

[54] In sum, the second respondent submitted that it is trite that all disbursements
and fees occasioned by duplication, and/or overcaution, and/or extravagance and not
in the most cost-effective manner, are not recoverable even as between attorney and
own client.

Conclusions
[55] What test is a court to apply when it is considering whether to interfere with a
ruling by the taxing master? Where he or she has acted mala fide; or from ulterior
purpose or improper motives; or has not applied his mind to the matter or exercised
his discretion at all; or if he disregarded regulatory prescripts, a court will be bound to

interfere. A court will interfere if it is satisfied that the taxing master was clearly wrong.1
Of course, the court will only interfere when it is in the same or better position than the
taxing master to determine the issue.2 This Court has stated it will only interfere when
it is satisfied that the taxing master’s view differs so materially from its own that it
should be held to vitiate his ruling.3

[56] In relation to an attorney and own client bill the law is settled. As far as expenses
are concerned, that which has been specifically agreed, expressly and impliedly, may
be recovered. That too, is qualified. A taxing master has a discretion to disallow certain
expenses where an attorney has overreached his client or has been negligent or mala
fide.4 Overreaching means, in the context of an attorney and client relationship, inter
alia, the extraction of a fee that is unconscionable or excessive.5 As stated in Aircraft
Completions Centre (Pty) Ltd v Rossouw and Others,6 our legal system does not allow
a taxing master to draw, tax and allow a bill of costs that will impose an unjust liability
on a costs debtor.7 It is against the principles referred to in this and the preceding
paragraphs that the present review must be adjudicated.

[57] The applicant confuses the agreement of an hourly rate for counsel with the
question of whether the expenses were normal or usual or, whether the expenses fell
within what might have been authorised.

[58] Prior payment of accounts, without objection by an uninformed litigant who was
struggling to pay the fees presented, is not to be regarded as a bar to testing whether
there was over-reaching or the imposition of an unfair liability for cost. In this case, the
taxing master was aware that he was presented with an attorney and own client bill. It
must be said that there was no ‘conclusion’ by the taxing master, as submitted on

1 Legal & General Assurance Society Ltd v Lieberum N O and Another [1968] 1 All SA 398 (A); 1968
(1) SA 473 (A) at 477A-478H; Ocean Commodities Inc and Others v Standard Bank of SA Ltd and
Others 1984 (3) SA 15 (A) at 18F-G.
2 Legal & General fn 1 above at 478H.
3 Ocean Commodities fn 1 above at 18G.
4 Muller v The Master and Others [1992] 4 All SA 470; 1992 (4) SA 277 (T) at 283I- 284G.
5 Ibid at 284G.
6 Aircraft Completions Centre (Pty) Ltd v Rossouw and Others 2004 (1) SA 123; [2003] 3 All SA 617
(W).
7 Ibid para 108.

behalf of the applicant that the matter was not one of complexity, but more about that
later.

[59] First, I deal with the items in respect of which the taxing master clearly erred.
Item 404, which related to counsel flying to Bloemfontein to argue the matter, the
taxing master erred in relating the date of the payment to the date of the appearance.
There is nothing to gainsay the assertion that it was paid in advance to enable counsel
to fly to Bloemfontein. Or indeed, that counsel argued the matter in Bloemfontein on
the day of the hearing. The taxing master’s report does not engage on this aspect.
That item was clearly wrongly disallowed.

[60] Second, in relation to items 4 and 5, the taxing master clearly erred in not
distinguishing items 4 and 5 from item 13, as explained on behalf of the applicant.
These items too ought to have been allowed.

[61] Third, items 306, 307, and 410-416, in my view were too readily rejected by the
taxing master. I am persuaded that if he had doubt about whether they were properly
incurred he could have called for the correspondence and other documentation. These
items ought to have been allowed.

[62] Fourth, in relation to item 422, it does appear that the taxing master was too
rigid in allowing only two hours for the attendance on the day of the hearing. The two
additional hours comprising waiting time do not appear excessive. In my view, in this
regard too, the taxing master erred. This item should have been allowed.

[63] I now turn to the other items disallowed. Essentially, the biggest complaint and
sense of grievance on the part of the applicant appears to be that there was a lack of
appreciation, on the part of the taxing master, of the complexities involved in this
matter, the enormous effort expended by counsel, and that new law was created. The
matter on appeal was a narrow one. It involved a consideration of whether a prior
decision of this Court was applicable, whether it was distinguishable on the pleadings
or the facts, or whether it ought, in any event, to be departed from. It called for a
decision on the narrow aspect identified at the commencement of this review. This
Court is frequently faced with novel questions and in the light of our Constitutional

order, has not infrequently been constrained to depart from prior decisions. The taxing
master allowed fees which catered for a sufficient time to prepare to present argument
on the circumscribed issue and any complexities that might arise. The total fee for
counsel, before a substantial part was disallowed was, even in the circumstances of
the novel identified issue, excessive. The applicant’s submission that there had been
no complaint lodged with the Cape Bar is not useful. The second respondent explained
that as a layperson she did not know of her rights to challenge the bill of costs until so
advised by her present attorneys. The agreed hourly rate does not extend an open-
ended invitation to unlimited hours to be spent on the case.

[64] I cannot conclude that on this latter aspect the taxing master acted wrongly.
Neither am I persuaded that the costs related to the flights by persons from the
applicant’s office, to file papers personally, rather than have the local correspondent
deal with it, are justified. In this regard too, the taxing master cannot be faulted. Neither
can he be accused of being unfair in relation to the costs associated with the
condonation application. The circumstances that led to the delay were not of the
second respondent’s making and there had been ample time for time-limits set by the
rules of court to be met. If any client were, in those circumstances, to be asked in
advance whether he or she should pay the substantial costs for such a mishap,
including the cost of counsel’s assistance in that regard, the answer would be obvious.
It is unacceptable that the second respondent should bear such costs on the asserted
basis that on an attorney client scale there should be full indemnity for costs.

[65] In relation to the other contested items, I find that the taxing master’s reasoning
and conclusions are such that on the stated authorities they cannot be faulted. In the
light of the conclusions reached, it appears to me to be fair to make no order as to
costs.

[66] I make the following order:
The review is successful only to the extent reflected in paragraphs 59 to 62 of
this judgment.
There is no order as to costs.
The allocator is remitted to the taxing master to be redrawn on the basis set out
in this judgment.

__________________________
M S NAVSA
Acting Deputy President

Appearances:

For the applicant:

L van Schalkwyk
Webbers Attorneys, Bloemfontein
Instructed by:

R C Christie Incorporated

For 2nd respondent:

T Abbotts
Hammond Pole Inc, Boksburg.