Kefias Mujokeri v Hungwe & Partners and Taxing Officer N.O.

### Preamble
1
HH 555-18
HC 2401/17
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KEFIAS MUJOKERI

versus

HUNGWE & PARTNERS

and

TAXING OFFICER N.O

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 8 February 2018 & 19 September 2018

Opposed Matter

S Mahuni, for the applicant

L Zero, for the 1st respondent

No appearance for the 2nd respondent

MAKONI J: This an application made in terms of o 38 r 314 of the High Court Rules 1971 whereby the applicant seeks a review of the taxation of a bill of costs by the second respondent in favour of the first respondent. The bill was taxed on 23 February 2017 and an amount of $79 188.00, excluding VAT was allowed. The applicant was aggrieved by this decision hence the present application.

His basis for seeking review is that the taxation was done in default i.e. his legal practitioner and himself were not present. He further avers that the charges itemized were unjustified, exorbitant and unethical and that amounts charged for certain items defies logic and are unethical. He gave an example of the charge of $52.00 for a two (2) minute phone call made locally. He further averred that the respondent did not present proof of the amounts claimed.

The application is opposed and the first respondent took 3 points in limine viz

That a bill of costs done by consent is not reviewable.

That there is no reference to the taxing officers acts of commission or omission in the founding affidavit

No decision was made on 22 February 2017.

On the merits, the application is opposed on the basis that the taxing officer did not make a decision in the matter. The parties agreed to the bill in the sum of $79 188.00. The applicant was duly represented by a legal practitioner and a taxing clerk.

In determining the matter I will deal first with the points in limine in seriatum.

Is the taxation of the bill reviewable

The respondent submits that the taxed bill was arrived at by consent of the parties without any input from the taxing officer who only added VAT and the taxation charges. It submits that the taxing officer endorsed on the bill.

“parties have agreed to allow the bill at $79 188 before VAT.”

He thereafter signed the bill.

In the applicant’s answering affidavit, deposed to by his legal practitioner, the applicant denies, that the amount was agreed to. The legal practitioner suggests that the taxing officer would intervene and made decisions particularly as to the amounts billed for conferences with client and the telephone calls. She contends that his acts of commission or omission during the process can be taken on review.

It is to be noted that the respondent had indicated, in the opposing affidavit, that it attaches an Annexure C, which reflects the endorsement by the taxing officer, but it did not.

I also note that the applicant did not address all the points in limine raised by the respondent in the answering affidavit and in his heads of argument. The respondent persisted with its contention that the taxation was done by consent in its heads of argument.

This is a dispute that can easily be resolved on the papers. The applicant has not specifically denied that the taxing officer made the endorsement as alleged by the respondent.  The fact that the applicant did not address the issue in his heads of argument might suggest that such an endorsement was made. I will therefore find that such an endorsement was made. The taxing officer might have interjected here and there as suggested by the applicant but the final product was arrived at by consent.

The question that arises is can such a bill be reviewable.

Rule 314 provides

“for a party to file a review, the taxing officer must have made a decision adverse to it and it is aggrieved by that decision.”

In Benny Choto v CBZ and Anor HH 126/06 it was stated;

“It is well established principle of our law that a court may only review a taxing master’s discretion where it is shown that he did not exercise his discretion properly, or where he has adopted the wrong principle. See Bedford Pharmaceuticals Limited v SA Phamarcy Board and the Taxing Master 1947 (1) SA 291 and Cone Textiles (Pvt) Ltd v C Pettigre Pvt Ltd and Another 1984 (1) ZLR 274. In Wellworths Bazzars Limited v Chandlers Ltd 1947 (4) SA 453 Millin J stated at p 457 as follows:

“The law I can conceive it to be is that in general discretion of the taxing master will not be disturbed unless it is found that he did not exercise a proper discretion or for example by disregarding factors which were proper for him to consider or by giving a ruling which the court can see no other reasonable person would have given.”

In casu no such discretion was exercised by the taxing officer which can be a subject of review. This is succinctly dealt with in Rogers v Rogers (103/2010) 2012 ZANWHC where the court was faced with the same issue as in casu. In para 16 Broom J states;

“It is quite surprising why the defendant applies for a review well knowing that the taxing master 	did not make a decision of his own, but effected the settled bill of costs in this matter.”

The same remark can be made in casu. The bill was settled by the parties. The founding affidavit does not outline specific objections made to the taxing officer where he then exercised this discretion against the applicant. I will therefore uphold the point in limine. This brings me to the second point in limine which is tied to the first one.

The applicant in his founding affidavit does not make reference to any act or omission by the taxing officer. He rumbles on complaining about the exorbitant changes levied by the respondent but does not register any complaints against the manner in which the taxing officer dealt with the matter. This is contrary to r 314 (2) which provides;

“The court application shall specify the terms forming the subject of the grievance” (my 	underlining).

This envisages that a party, aggrieved by the decision of the taxing officer, would list the items that are his cause for  complaint un the founding affidavit.

Our rule is not as elaborate as r 48 of the Uniformed Rules of South Africa. It provides

Any party dissatisfied with the ruling of the taxing master as to any item which was objected to or disallowed mero motu by the taxing master, may within 15 days after the allocator by the notice required the taxing master to state a case for the decision of a judge.

The notice referred to in subrule (1) must –

Identify each item or part of an item in respect of which the decision of the taxing master is sought to be reviewed.

Contain the allegation that each such item or part thereof was objected to at the taxation by the dissatisfied party, or that it was disallowed mero motu by the taxing master.

….”

I would recommend the wording of r 48 to be incorporated in our own rule. It is more detailed and would guide legal practitioners is such matters and would make the judges’ task easier when dealing with such a review.

In casu the applicant’s founding affidavit is scanty on the subject matter of his grievances. He does not impute any wrong decision on the part of the taxing officer. In actual fact he gives the impression which is wrong, that the bill was taxed in default.

I will therefore uphold the second point in limine. In view of the above finding it will not be necessary to deal with the 3rd point in limine.

In the result, the applicant has not made out a case for relief in terms of r 314.

I will therefore make the following order.

The application is dismissed.

The applicant to pay the respondent’s costs.

Mahuni & Matutu Attorneys, applicant’s legal practitioners

Hungwe & Partners, 1st respondent’s legal practitioners