Minister of Police v Dladla and Others (2318/2023) [2025] ZAMPMBHC 45 (30 May 2025)

IN THE HIGH COURT OF
SOUTH AFRICA

MPUMALANGA DIVISION,
MBOMBELA

Moleleki
AJ

[9]            
The
rescission of an allocator is dealt with on the same principles as
applicable to the rescission of orders or judgments granted
on
default of one party. The common law principles applicable to the
setting aside of default judgments also apply to the setting
aside of
a Taxing Master’s allocatur.[1]

Rescission

[10]        
The
court in Government
of the Republic of Zimbabwe v Fick and Others,[2]
when
dealing with the requirements for recission, stated as follows:

“[T]he
requirements for rescission of a default judgment are twofold. First,
the applicant must furnish a reasonable and satisfactory
explanation
for its default. Second, it must show that on the merits it has a
bona fide
defence which prima facie
carries some prospect of success. Proof of these requirements is
taken as showing that there is sufficient cause for an order to
be
rescinded. A failure to meet one of them may result in refusal of the
request to rescind.”

The existing common law
test requires that both requirements must be met.

[11]        
Uniform Rule 70(4)(a) provides that the
Taxing Master shall not proceed with the taxation of any bill of
costs unless he/she is
satisfied that the party liable to pay the
costs has received due notice.

[12]        
Although the Taxing Master was not cited
and is not party to the proceedings, it is not in dispute that the
Applicant’s attorneys
were notified of the taxation. In its
founding affidavit, the Applicant stated that it is unknown why the
attorney that dealt with
the matters did not object to any items on
the bills of costs, nor attend the taxation. It is further stated by
the Applicant that
it is suspected that the attorney did not
anticipate that the Respondents’ attorneys would duplicate the
charges and that
the fraud would be detected at payment stage by the
Head of Office of the State Attorney Mbombela, Mr Gibson Oupa
Ngobeni.

[13]        
The Respondents challenge the allegations
made by the Applicant on several grounds. Among them is that the
Applicant has failed
to provide any reasonable explanation for the
Applicant’s default. The Respondents’ contention is that
this Court cannot
rely on assumptions when in fact, the attorney who
dealt with the matter, Mr Masete is still in the employ of the
State Attorney,
albeit at another branch. The Respondents further
stated that, since the Applicant’s affidavit is based on
assumptions, it
found it unnecessary to respond thereto. The
Respondents further challenge the Applicant on the basis that Mr
Masete was sent the
bills of costs, and he signed them off for
payment, which was an indication that he was satisfied thereof.

[14]        
After the bills of costs were taxed, an
email was transmitted to the Applicant’s attorneys on 8
December 2022 attaching the
taxed bills of costs. The Head of Office
of the State Attorney was copied in the email. During April 2023, the
Respondents’
attorney transmitted a letter reminding the
Applicant of non-payment. There was no response. There is no dispute
regarding receipt
of this correspondence.

[15]        
I am persuaded that the Applicant’s
attorney was duly notified of the taxation on 1 August 2022. The
Applicant took an informed
decision not to object to the taxation or
to challenge the items in the bills of costs which are in dispute.
The Applicant has
failed to furnish a plausible or acceptable
explanation for its default, save to speculate why its attorney of
record may have
decided not to attend the taxation.

[16]        
As stated above, an application for setting
aside or a rescission of the taxation under common law would be
applicable where notice
of taxation was given, yet a party had not
attended the taxation, resulting in the taxation being conducted in
such party’s
absence. However, the Applicant’s
application consists of a challenge to the items allowed by the
Taxing Master which, according
to the Applicant, should not have been
allowed. In essence, the Applicant contends that the Taxing Master
allowed amounts more
than what should have been allowed. This, the
Respondents refuted by referring to the taxed bill which indicated
that some items
had been taxed off. On the same breadth, the
Applicant’s application consists of the contention that the
Taxing Master did
not exercise his discretion judiciously.

Remedies Available

[17]        
There
are different remedies available to a party aggrieved by an aspect of
a taxation. A party seeking to review a taxation should
do so in
terms of the provisions of Rule 48. There are three further possible
remedies, namely, Rule 30 (Irregular Step); an application
for
setting aside or rescission of the taxation at common law and through
a Rule 53 review.[3]

[18]        
The
Applicant’s application, though presented as an application for
a rescission or setting aside, seems to have conflated
all these
remedies. However, each of these remedies cater for specific
instances, and the facts of a particular case should guide
a party in
employing one and not the other, or where suitable in the
alternative.[4]

[19]        
In
the matter before me, the Applicant was given sufficient notice of
taxation. That notwithstanding, the Applicant chose not to
object to
the items in the bill of costs and not to attend the taxation.
Clearly, the Applicant was in wilful default. Having received
notice
and not opposing and/or objecting, nor attending, by implication
amounts to consent to a taxation in absentia.[5]
An
unsatisfactory and unacceptable explanation remains so, whatever the
prospects of success on the merits. On this basis alone,
this
application must fail.

[20]        
Taxation
requires the exercise of discretion. The court in Kloot
v Interplan Inc and Another,[6]
stated the following regarding the Taxing Master’s discretion:

“The
Taxing Master has a discretion to be judicially exercised in allowing
or disallowing or reducing the various items of a bill
of costs. That
discretion must be exercised reasonably and justly on sound
principles and with due regard to all the circumstances
of the case.
In exercising his discretion he should ensure that the unsuccessful
litigant is not oppressed by having to pay an
excessive amount of
costs and accordingly, although the court does not have a free hand
to interfere with a Taxing Master’s
discretion on review, where
he has failed to exercise his discretion judicially or properly or
failed to bring his mind to bear
upon the question, intervention is
demanded.”

[21]        
As referenced by the Respondents in the
bills of costs, there are amounts that were taxed off. This is an
indication that the Taxing
Master had considered the items in the
bills. The files were presented on the same day before the Taxing
Master. It has not been
shown otherwise that the Taxing Master was
not aware that the matters emanated from the same cause of action.
The inescapable inference
is that the bills of costs were duly taxed.

[22]        
It was submitted by the Respondents’
legal representative that the delay in bringing this application to
court was inordinate.
The taxed bill was sent to the Applicant on 8
December 2022. On 6 April 2023, a reminder for outstanding payment
was emailed. The
founding affidavit in this application was deposed
to on 24 May 2023. The Applicant only acted after the Respondents had
re-issued
the writ of execution. In the Respondents’ view, the
Applicant is not bona fide
but rather is intent on frustrating the Respondents from recovering
their costs. The Applicant once again falls short of demonstrating

that the application is bona fide.

[23]        
The
applicant must abide by its election not to participate as it has
relinquished its entitlement to do so. As firmly stated by
Khampepe
J, “[l]ike all things in life, like the best of times and the
worst of times, litigation must, at some point, come
to an end”.[7]

Costs

[24]        
The Respondent submitted that a punitive
cost order be granted against the Applicant on the basis that their
conduct was mala fide.
In the exercise of my discretion, I find it unnecessary to award an
adverse cost order against the Applicant. There is no basis
to
deviate from the ordinary principle applicable to costs.

[25]        
In the result, the
following order is made:

1.              
The application is dismissed.

2.              
The Applicant is to pay the costs of the
application on a party and party scale.

M R MOLELEKI

ACTING JUDGE OF THE HIGH
COURT

MPUMALANGA DIVISION,
MBOMBELA

Appearances