Case: Turnerland Manufacturing (Pty) Ltd v Taxing Master, Western Cape High Court and another

[2023] JOL 59999 (WCC)

The applicant sought the review and setting aside of a taxation award made by the first respondent (the Taxing Master) in respect of the second respondent’s fees and disbursements, as well as the setting aside of the warrant of execution issued by the first respondent against the applicant pursuant to the taxation award. The disputed taxation was done on an unopposed basis. According to the applicant, the Notice of Taxation was not properly served on it although the second respondent had full knowledge that the applicant had disputed its indebtedness to them. The applicant contended that at all material times, it had disputed that it was liable to the second respondent for the sums claimed as it was of the view that the fees charged were excessive.

Held that the taxation of attorneys’ and the applicable and tariff was regulated by Rule 70 of the Uniform Rules of Court. Rule 70(4)(a) states that “The taxing master shall not proceed with the taxation of any bill of costs unless he or she is satisfied that the party liable to pay the costs has received due notice in terms of sub-rule (3B).” Rule 70(3B)(a) provides that notice must be given to a party prior to enrolling a matter for taxation. The manner of service for such notice is not defined.

The status of a taxed bill of costs is akin to a judgment of debt. In the case of a judgment debt, failure to satisfy that debt may lead to a warrant of execution. Rule 4(1)(d) of the Rules of Court provides that it is the duty of the Sheriff or other person serving the process or documents to explain the nature and contents thereof to the person upon whom service is being effected. Although there had been substantial compliance with the rules, the question that had to be determined was whether the applicant was entitled to have the taxation order set aside. The court found that the applicant had established its entitlement to rescission in this case. Any further taxation in the matter should only occur upon the finalisation of the dispute raised by the applicant regarding its liability to the second respondent for the amounts claimed.

The Taxing Master’s award and the warrant of execution were reviewed and set aside.