IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: 13420/2007

In the matter between:

ID NO: 700124 5024 08 9

ID NO: 720203 0085 08 3

And

JUDGMENT

CLOETE AJ:

INTRODUCTION

[1] The applicants (and their attorney of record, Mr Khan) brought an application in terms of rule 48 for the review of the taxing master's decision in relation to certain items in a bill of costs which the respondents had presented for taxation on 20 May 2009. The respondents then made a counter application in terms of the same rule in regard to their complaints in respect of the taxing master's decision relating to certain items.

[2] The notice of application for leave to appeal presently before me refers to the first and second applicants as being parties to the application for leave to appeal Whilst this may notionally be correct, as a matter of fact the costs order which underpins this entire matter is one granted against Mr Khan only. I agree with counsel for the respondents that there can be little doubt that Mr Khan is the effective applicant.

[3] The taxing master's stated case was delivered on 3 June 2010. The respondents delivered written submissions in terms of rule 48(5){a) in response thereto on 25 June 2010 On 14 September 2010 the taxing master delivered a notice in terms of rule 48(5)(b) indicating that he had nothing further to add and that he would abide the decision of the reviewing judge

[4] Although open to the applicants, they did not deliver any written submissions after receipt of the taxing master's stated case as is provided for in terms of rule 48(5) (a).

[5] The application and counter application for review came before me in chambers and on 8 November 2010 I made an order dismissing both, with no order as to costs.

[6] The applicants now seek leave to appeal against the whole of my judgement and order. The respondents do not seek leave to appeal, but oppose the application.

WHETHER THE ORDER IS APPEALABLE

[7] Before turning to the grounds of appeal, it is necessary to consider whether an appeal lies against my judgment and order.

[9]     At page 302 the court went on to say that:

WHETHER THE APPLICATION FOR LEAVE TO APPEAL SHOULD BE POSTPONED TO ALLOW THE MINISTER OF JUSTICE TO BE JOINED IN THE APPLICATION FOR THE PURPOSE OF A CONSTITUTIONAL CHALLENGE

[15] The applicants and Mr Khan have asked that in the event that the respondents contend that the order which I made is not appealable, they (together with Mr Khan) shall apply for an order postponing the application for leave to appeal to allow the Minister of Justice to be joined in the application for the purpose of:
15.1. Declaring that the provisions of rule 48(2) are unconstitutional in that they violate the right of the costs debtor to have a dispute determined by a court;
15.2. Declaring that the procedure of a judge sitting in chambers violates the provisions of section 34 of the Constitution of the Republic of South Africa Act no 108 of 1996 ("the Constitution"), which provides for a public hearing Alternatively, the rule must be amended to eliminate the distinction between a judge sitting in chambers - giving a judgment or making an order - and a judge sitting in open court giving a judgement or making an order. If the decision in chambers is intended as a final judgment or order, the rule must say so and the section must be amended.

[16] In my view, the second ground relied upon by the applicants (and Mr Khan) is really a variation on the same theme as the first ground.

[17]   Section 34 of the Constitution provides as follows:

34 Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."

[18]   Section 173 of the Constitution provides that:

"Inherent power
173. The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice'

[20] The preamble to the rules of court specifically provides that the purpose of the rules contained therein is to regulate the conduct of the proceedings of the provincial and local divisions of the Supreme Court of South Africa.

[22] Rule 48(6) (a) confers a discretion on the judge to whom the case has been submitted. He or she may either (a) decide the matter upon the merits of the case and submissions so submitted; or (b) require any further information from the taxing master; or (c) if he or she deems it fit, hear the parties or their advocates or attorneys in his or her chambers; or (d) refer the case for decision to the court.

[25] In my view, the discretion afforded to a judge presented with a review of taxation in terms of rule 48{6)(a) does not "unjustifiably attenuate" a costs debtor's rights in terms of section 34 of the Constitution, particularly if regard is had to the following:
25.1. The very purpose of the procedure prescribed in terms of rule 48, namely to cheapen reviews of taxation: and
25.2. The costs debtor (and the costs creditor) are each afforded two opportunities to make written submissions to the judge before whom the review is placed: the first set of submissions must comply with the detailed format prescribed in terms of rule 48(2) and, perhaps more significantly, the second set of submissions may be made after the taxing master has supplied his or her stated case, with the costs debtor (and creditor) specifically being afforded the opportunity in terms of rule 48(5)(a) to also raise any ground of objection not raised at the taxation. As set out above, the applicants (and Mr Khan) elected not to utilise the provisions of rule 48(5)(a).

[26] As to the alternative to the second ground relied upon by the applicants and Mr Khan, namely that the rule must be amended to eliminate the distinction between a judge sitting in chambers - giving a judgment or making an order - and a judge sitting in open court giving a judgement or making an order, and that if the decision in chambers is intended as a final judgment or order the rule must say so and be amended accordingly, I believe that the following is pertinent:
26.1. The powers afforded to the Chief Justice, Judge of Appeal and Judges President to make rules regulating the conduct of proceedings in the Supreme Court of Appeal and the various provincial and local divisions was abolished upon the coming into effect of the Rules Board for Courts of Law Act 107 of 1985 (the Act came into effect as from 20 February 1987). Since that date it is the Rules Board for Courts of Law which has the power to make, amend or repeal rules for both the High Court and the Magistrates Courts. The existing rules made by the judges prior to the commencement of this Act remain in force until amended or repealed by rules made by the Rules Board under section 6 of the aforesaid Act;
26.2. Section 6(1) of the Rules Board for Courts of Law Act provides that:

"The Board may, with a view to the efficient, expeditious and uniform administration of justice in the Supreme Court of Appeal, the High Courts and the Lower Courts, from time to time and on a regular basis review existing rules of court and. subject to the approval of the Minister, make, amend or repeal rules for the Supreme Court of Appeal, the High Courts and the Lower Courts regulating - ... (s) the taxation of bills of costs and the recovery of costs ..."

[28]   I accordingly decline the application to postpone the Leave to Appeal. 
THE GROUNDS OF APPEAL

[29] As I have found that I have no authority to grant leave to appeal in this matter, the views which I express hereunder are. of necessity, academic. However, I do believe that it is necessary to state that, even rf I had the power to grant leave to appeal, I would have refused it, as I do not believe that the applicants (and Mr Khan) have shown that they have a reasonable prospect of success on appeal.

[30] Apart from the aspect dealt with hereunder, I have already provided reasons in my judgment in the review of taxation as to why I believe the taxing master was correct, and it is not necessary for me repeat these reasons

COST OF THIS APPLICATION
[36] This application thus clearly falls to be struck from the roll with costs. The issues which now arise are (a) which scale of costs should apply; and <b) whether such costs should be awarded against the applicants and Mr Khan jointly and severally or against Mr Khan himself.

[40] I am not persuaded that a punitive costs order is warranted, matter but only because of the constitutional issues raised by the applicants (and Mr Khan) in their notice of application for leave to appeal. I do however believe that it would be appropriate that the costs order should be effective against Mr Khan since, as pointed out by counsel for respondents, the costs order which underpins this entire matter is granted against Mr Khan only.

[42] In the result, the application is struck from the roll with costs, such costs to be paid by Mr M R Khan, the applicants' attorney of record.