THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 400/2019 & 782/2019

In the Rule 17 Review of Taxation between:

TADVEST INDUSTRIAL (PTY) LTD
Formerly known as OLD ABLAND (PTY) LTD

APPLICANT

and

ANTHEA HANEKOM
FIRST RESPONDENT
STUURMAN HANEKOM
SECOND RESPONDENT
THOSE OCCUPYING COTTAGE NO 3,
TOPSHELL PARK, BADEN POWELL ROAD,
LYNEDOCH, STELLENBOSCH WITH OR UNDER
FIRST AND SECOND RESPONDENTS’ CONSENT
THIRD RESPONDENT
STELLENBOSCH MUNICIPALITY                                      FOURTH RESPONDENT
DEPARTMENT OF RURAL DEVELOPMENT
AND LAND REFORM

FIFTH RESPONDENT

Neutral citation:
Tadvest Industrial (Pty) Ltd and Another v A Hanekom & Others
(400/2019 & 782/2019) [2021] ZASCA 153 (27 October 2021)

Coram:

NAVSA ADP

ORDER

The review of taxation is dismissed with costs.

JUDGMENT

NAVSA ADP

[1] Purportedly, this is a review of taxation referred for decision in terms of Rules
of this Court. As will soon become apparent it is less about taxation than about
extraneous matters.

[2] Two bills of costs were presented to the taxing master for taxation by the
attorneys acting for first to third respondents, based on a costs order in their favor by
this Court in relation to the dismissal of an application for leave to appeal and a
subsequent dismissal of an application for a reconsideration application in terms of s
17(2)(f) of the Superior Courts Act 10 of 2013. At the commencement of the taxation
process the applicant objected to it on the basis that the aforesaid respondents had,
subsequent to the costs orders, concluded an agreement in terms of which they had
waived their claims to costs. The respondents objected to the introduction of a written
settlement agreement. They also disputed the applicability of the agreement and
asserted that the applicant had not complied with its obligations in terms thereof.

[3] It is for present purposes not necessary to have regard to all the details of the
extensive provisions of the agreement on which the applicant relied. I record only as
much as is necessary to facilitate an understanding of the parties’ respective positions.
It appears that the litigation leading up to the application for leave to appeal involved
the occupation of land. The agreement, in terms of which the respondents allegedly
waived their rights, appears to have provided for the applicant to make a substantial

financial contribution to relocating the respondents to alternative accommodation and
to pay transfer costs in respect of the land to which they would be relocated. It also
allowed for an ex gratia payment to the respondents. The agreement recorded that the
‘settlement agreement will be in full and final settlement of all the disputes between
the parties, and of all causes of action between the parties including any cost orders
or accrued costs in proceedings between the parties.’ It goes on to record that
notwithstanding that clause, the respondents ‘do not waive their right to claim costs of
the matter in the Land Claims Court under case number 189/20’.

[4] The applicant alleged, before the taxing master, that it had complied with all its
obligations and that the respondents were bound by the waiver reflected in the
settlement agreement. The applicant also alluded to an agreement for the respondents
to set-off their costs order against the amount the applicant would pay in relation to
the purchase of the alternative accommodation but that this then gave way to the
agreement, in final form, to waive the costs order. Reference was also made by the
applicant to correspondence between the parties in relation to negotiations leading up
to the settlement agreement.

[5] The applicant, in addition, had raised a further objection, namely, that the
respondents’ legal representation had been State funded and that the purpose of a
costs order is to indemnify a party against litigation expenses, which in the present
case had not been incurred, and that only the Department of Land Reform was out of
pocket but that costs had not been awarded to it. The applicant submitted that neither
the respondents nor their legal representatives were out of pocket. This was not an
instance where the legal representatives rendered services for free entitling them to
recover costs in terms of the provisions of the Legal Practice Act 28 of 2014, and that
in any event they had not complied with the statutory procedure. The applicant also
denied that there had been a cession of rights to claim costs. Finally, the applicant
submitted that the respondents’ legal representatives could not claim costs since costs
were not awarded to them. On the strength of all these grounds, the applicants
required the taxing master to prepare a stated case.

[6] The first and second respondents insisted, before the taxing master: that they
had not waived their rights to claim costs; that the settlement agreement was not

retrospective; and that in any event, it was not a matter for the taxing master to decide.
They were adamant that the applicant should take legal measures available to it,
beyond the taxation process, if it intended to dispute the validity or enforceability of
this Court’s costs order. Put differently, the applicant was free to take such legal
measures, as advised, to enforce the settlement agreement and the disputes in
relation thereto could then be ventilated.

[7] The taxing master considered that the issues raised by the applicant were
beyond his remit and proceeded to finalise the taxation of the bill against the
applicant’s objections.

[8] In its contentions in response to the taxing master’s stated case, the applicant
denied that it had failed to comply with its obligation in terms of the settlement
agreement. The applicant submitted, once again, that it was within the taxing master’s
‘jurisdiction’ to determine whether the legal representatives who sought costs were
entitled thereto. He was clothed with the power, so they submitted, to consider the
legitimacy of the costs order, viewed against the settlement agreement. The applicant
sought an order that the review be upheld and that the taxation be dismissed.

[9] The second and third respondents in their response, raised a primary point in
limine. They contended that the taxing master has no jurisdiction to entertain a review
or appeal against an order of costs by a court and that his authority in relation to costs
orders are to be found within the four corners of the applicable rules of court. The
function of a taxing master, so the respondents submitted, was to give effect to a costs
order not to question it. A taxing master addresses the reasonableness of charges and
disbursements. Rule 17(3) entitles a party aggrieved with the ruling of a taxing master
to seek a review. A taxing master on the other hand has no power to ignore or amend
a costs order. In the present case, the taxing master fulfilled his purpose by taxing the
bill.

[10] The respondents raised further ‘points in limine’. First, the same issue was
pending in the Constitutional Court. Second, evidence regarding an alleged waiver
cannot be introduced by way of a notice of taxation and it cannot be adjudicated by

the taxing master. Last, the applicant failed to adopt an appropriate remedy in relation
to its assertions concerning the agreement on which it relied.

[11] The taxing master’s report noted that the applicants opposed taxation on the
basis referred to above but did not dispute the taxation in relation to any item. The
taxing master pointed out that the applicant’s insistence that the costs order was in
favour of the successful party and not in favour of the attorneys represented by them
is without foundation, as in the normal course of events, it is the attorneys for
successful parties who submit their bills of costs to be taxed.

[12] The taxing master adopted the position that it was not for him to decide the
rights of the parties in relation to pre or post hearing developments. He was adamant
that his task was limited to giving effect to this Court’s orders in relation to costs. As to
the basis on which legal services were rendered to the respondents, that would fall
within the jurisdiction of a court to consider, and the same applied to questions
concerning settlement agreements and their enforceability. It was not for him to decide
whether there had been a waiver of the costs order. The taxing master agreed with
the contention of the respondents that it was open to the applicants to have
approached a court, assuming there to be sustainable grounds therefor, to preclude
the taxation. That was not done.

[13] As far as the taxing master was concerned there were existing court orders
which, in his taxation, he gave effect to. He took the view that the application should
be dismissed with costs.

[14] It is necessary to record that it appears from enquiries made of the parties by
this Court’s Registrar, that the questions raised in para 6 above, in relation to
respondents’ attorneys’ entitlement to claim costs, is presently an issue before the
taxing master in the Constitutional Court, but not the question of waiver.

[15] I turn to consider whether the taxing master was correct in proceeding to finalise
the taxation of the bill of costs. A taxing master does not have jurisdiction in relation to
the issues raised by the applicant. It is not for a taxing master to review, reconsider or

amend a costs order. Those are matter beyond his remit. He has no jurisdiction to
decide disputed claims of payment or the like.1

[16] Rule 17(3) of this Court’s rules circumscribes the issue that may be raised on
review in the taxation process. A party dissatisfied with a ruling by the taxing master,
in relation to an item in a bill of costs that had been objected to or disallowed mero
motu by a taxing master, is provided an opportunity to seek redress by way of review.
It does not provide an opportunity to contest the costs order itself or its enforceability.

[17] The taxing master and the respondents are correct in their view that the taxing
master’s function is limited to giving effect to the court order. In President of the
Republic of South Africa and Other v Gauteng Lions Rugby Union, the Constitutional
Court put it thus:
‘. . . [T]he ultimate object of the exercise of taxation – and hence of a review of taxation – is to
determine a reasonable fee to be recovered as between party and party for the work done…’2

[18] In Berman & Fialkov v Lumb the court held:
‘Whilst it may be the duty of a Taxing Master to interpret the effect of an agreement recording
an undertaking to pay taxed costs…a decision regarding the validity or otherwise of the
agreement in which the obligation to pay the costs that are to be taxed is sourced, in my view,
falls outside the ambit of a Taxing Master’s powers and functions: it is an aspect that should
be decided by the court.’3
And further:
‘If the Taxing Master in arriving at the conclusion to apply the non-litigious scale of the law
society did in fact make a decision on the legality of the agreement . . . he or she clearly acted
beyond his competence.’4

[19] The respondents also correctly point out that the applicant was free to resort to
legal process in relation to the alleged waiver and thus in relation to the enforceability
of the costs order. Whether that be by approaching this Court on the strength of Estate

1 Lubbe v Borman 1938 CPD 211.
2 President of the Republic of South Africa and Other v Gauteng Lions Rugby Union and Another [2001]
ZACC 5; 2002 (1) BCLR 1 (CC); 2002 (2) SA 64 (CC) para 32. In the present case the applications to
which the orders relate were decided without oral argument.
3 Berman & Fialkov v Lumb [2002] ZAWCHC 48; [2002] 4 All SA 432 (C) para 23.
4 Ibid para 24.

Garlick v Commissioner for Inland Revenue,5 as suggested by the respondent, or by
way of other process. It is not for the taxing master of this Court to advise. The same
applies in relation to the questions raised by the applicants set out in paragraph 6
above. The aforesaid conclusions are dispositive and there is no need for exploration
of the other point raised by the respondents. The taxing master was correct tto proceed
with taxation.

[20] The review of taxation is dismissed with costs.

__________________________
M S NAVSA
Acting Deputy President

5 Estate Garlick v Commissioner for Inland Revenue 1934 AD 499, where it was held that when a court
has made an order of costs, without having heard argument on it, the court is not functus officio.

APPEARANCES:

For the applicant:
McIntyre & Van der Post Attorneys,
Bloemfontein
Instructed by:
Cluver Markotter Inc, Stellenbosch

For 1st, 2nd and 3rd respondents:

Webbers, Bloemfontein
Instructed by:
JD van der Merwe Attorneys,
Stellenbosch.