In Macbeth Attorneys Inc v South African Forestry Company SOC Ltd ("SAF") and Others, the South African Supreme Court of Appeal ("the SCA") provided clarity about whether a party may review the taxing master's decision in respect of legal costs, if that party did not appear before the taxing master and object to items in the bill of costs.
The SCA Rules
Rule 17(3) of the SCA Rules provides 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 by the taxing master of own accord, may within 20 days of the amount taxed and allowed require the taxing master to state a case for the decision of the President [of the SCA], which case shall set out each item or part of an item together with the grounds of objection advanced at the taxation, and shall embody any relevant findings of facts by the taxing master".
The facts
Macbeth Attorneys sought leave to appeal a judgment of the Pretoria High Court on 24 April 2023, but the application was dismissed with costs on 14 June 2023. SAF then prepared bills of costs, and on 28 February 2024, a notice of taxation was served on Macbeth Attorneys. The taxation was set down for hearing on 20 March 2024.
Macbeth Attorneys did not appear before the taxing master. Therefore the bills were taxed on an unopposed basis. On 23 September 2024, Macbeth Attorneys initiated a review under rule 17 of the SCA Rules, but this was done outside the usual time period for reviewing a taxation under rule 17(3). Consequently, the taxing master declined to state a case for a decision by a judge. Macbeth attorneys then applied for condonation for the late filing of the review.
Findings of the SCA
Even though condonation for the late filing of the review application was granted, the SCA found that rule 17(3) contemplates two limited scenarios under which a ruling by the taxing master may be reviewed in terms of the rule:
- An item on a Bill of Costs is objected to; or
- An item on a Bill of Costs is disallowed by the taxing master on his/her own accord.
The court stated that rule 17(3) of the SCA rules contemplates items objected to before the taxing master or an item in a bill of costs that was disallowed by the taxing master. Where a party fails to attend a taxation, the correct procedure to follow is for an aggrieved party to apply to set aside the taxation in the same manner in which one applies for a default judgment to be rescinded.
The disallowing of an item in a bill of costs was not an issue in this case, but the court explained that logic dictates that the rule does not contemplate an objection from the party presenting the bill before the allocatur is signed by the taxing master.
Conclusion
Since Macbeth Attorneys did not attend the taxation and object to any item in the bill of costs, the court found that the firm could not invoke the review procedure contemplated in rule 17 of the SCA Rules. As such, the review application was dismissed with costs.
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