THE HIGH COURT OF SWAZILAND
AT MBABANE CIVIL CASE NO. 2919/2000
the matter between:
SWAZILAND (PTY) LIMITED PLAINTIFF
WILFRED ANGUS 1st DEFENDANT
G. ANGUS 2nd DEFENDANT
PLAINTIFF ADVOCATE P. FLYNN,
BY ROBINSON BERTRAM
DEFENDANTS MR. GWEBU
ON AN APPLICATION UNDER RULE 30:
the course of already over-protracted litigation, this matter, which
was being dealt with by the learned former Chief Justice, was
before me for hearing of argument. I reluctantly heard the matter as
the papers appeared to be not quite in order, with a duplicate file
being opened for the interlocutory application and with no book of
pleadings being available. On an initial hearing of counsel, it was
agreed to entertain argument on the premise that all defects and
shortcomings in the papers would be sorted out by the end of the day.
This was not done and over the past few weeks it was with difficulty
managed to at least get some of the necessary papers together. This
sorry state of affairs leaves the court in an unenviable position -
to write a judgment without the proper court file, a book of
pleadings or most importantly, until belatedly found, the order of
the learned Chief Justice, apparently dated the 26th November 2002,
which forms the core of this matter.
further search by the court interpreter eventually unearthed a copy
of the Court Order of the 26th November 2002. It reads:-
agreement between the parties, the following order is made:
the matter be postponed to 24 March 2003 for trial for one week.
the defendants be ordered, jointly and severally, to pay the
Plaintiff's wasted costs occasioned by the postponement, and the
plaintiff's costs of the application for the postponement, on the
Attorney and client scale. That the Plaintiff's costs above to
include the costs of Counsel which are certified in terms of Rule 68
of the rules of this Court.
the Defendants be ordered:-
comply with the order granted in favour of the Plaintiff compelling
further and better particulars by 13 December 2002; and
reply to the Plaintiff's Notice in terms of Rule 35(4) by 13 December
the Defendants deliver to the Plaintiff a bundle of all documents
which the Defendants intend to use at the trial by 31 January 2002."
the Appellants/Respondents were visited with an adverse costs order
on the attorney and client scale, following a trial date on which the
matter was not proceeded with. From neither the Notice of Appeal or
the above order, or anywhere else in the available papers, is there
any indication that the costs order was endorsed to the extent that
costs had to be taxed and paid forthwith.
and most importantly, it is not contained in the Order that gave rise
to this application, which was reached by agreement between the
parties. One can expect that if it was also the intention of the
litigants to first have the costs taxed and paid instead of waiting
until the finalisation of the action, it would have formed a very
prominent part of the order.
the ordinary course of events interlocutory orders that are given
during the course of litigation do not also allow the successful
party to present a Bill of Costs for taxation and thereafter demand
practice is that costs are taxed once only, at the conclusion of a
trial. A piecemeal approach is out of the ordinary and is usually
ordered by Court when special circumstances require it to be done.
more relevant to procedure in South African lower courts, Eckard's
Principles of Civil Procedure in the Magistrate's Courts (4th edition
by Paterson, Juta 2001 at pages 235) provides healthy guidance on the
question of costs in interlocutory orders.
the court for good cause orders otherwise, costs of interim orders
are not taxed until the conclusion of the action and a party may
present only one bill for taxation up to and including the judgment
or other conclusion of the action."
normally only one bill may be presented for taxation, the court may
for good cause direct that a separate bill be presented for taxation.
It is submitted that a good reason for granting such order would be,
for example, that the matter is lengthy and complicated, so that It
would be reasonable towards the attorney in question to allow his
bill of costs to be taxed at some time during an interval in the
12 (page 235) reads:
the court usually orders the costs of interlocutory proceedings to be
costs in the cause, a court ought nevertheless to order, if it is
clear that one of the parties is entitled to succeed at the
interlocutory application stage, that that party is entitled to his
costs in respect of the interlocutory application. The costs will
only become payable, however, only after taxation, at the conclusion
of the case: Gering v Gering & Another, 1974(3) SA 358(W) at 363H
- 364A; Cape Underwear Manufacturers (Pty) Ltd v Consolidated Fashion
Industries Ltd 1948(1) SA 175(C)".
said above, there is no endorsement that I am aware of whereby the
learned Chief Justice ordered that the interlocutory costs order,
adverse to the two defendants, is to be taxed and paid forthwith, or
before the matter continues. Although it is risky to rely on further
pleadings to reconstruct an order of court, the defendants' attorneys
state in paragraph 1.1 of their Notice of Application in terms of
Rule 30, dated the 21st February 2003, that:
is no order directing that the cost (sic) be taxed immediately and/or
one has regard to the contents of appellants (defendants) Notice of
Appeal, it appears according to them that the court was not impressed
with the manner in which the defendants conducted their case, at all.
Apart from the adverse punitive costs order, it is said that the
court found them (defendants) to be responsible for a second
postponement of the trial, that their papers were not ready, and that
they were generally at fault. This order was however made by
agreement between the parties. Even so, it is not a foregone
conclusion that the court had to exercise its discretion in such a
manner, to further emphasise its alleged dissatisfaction, that it
needed to order them to pay taxed costs forthwith, or even that a
Bill of Costs had to be prepared for taxation right after the
they were ordered to pay costs of the postponement, on a punitive
scale. No, they were not also ordered to pay it there and then,
before the trial has been brought to finality, with an eventual costs
is what the defendants argue. This is what they seek to be ordered in
this present application, which is that the intended taxation must be
set aside as an irregular step.
view that it is improper and undesirable to tax and pay costs in a
piecemeal fashion is not only founded on the statutory position of
the South African Magistrate Courts (Rule 49(3)) which reads:-
Unless the court shall for good cause otherwise order, costs of
interim orders shall not be taxed until the conclusion of the action,
and a party shall present only one bill (my emphasis) for taxation up
to and including the judgment or other conclusion of the action."
further consideration is that when eventually costs are taxed uno
contextu after finalisation, it will become potentially impossible
for one party to have costs offset against the other if the other
already had a substantial costs order paid in the interim. The bill
sought to be taxed at present certainly falls into the category of
support for my view is found in Scott v Nel N.O. and Another, 1963(2)
SA ELD 384 at 387 A - B:-
is, however, a salutary practice that save in exceptional cases the
costs of a law suit are taxed at one and the same time in one bill of
at 387 - H:
any event it is an undesirable duplication of proceedings with a
probable addition to the costs of the action"
my research I managed to find only one authority that suggests
otherwise as the view I hold. That judgment is however rather dated
and the relevant portion was said obiter. It did not form part of the
ratio decidendi of Blackwell J in Balomenos v Fanels (Pty) Ltd and
another, 1954(3) SA 481 (W.
at 483 C - D. Therein, the learned Judge mentioned what his own
personal knowledge of taxation practise is and postulated as to what
the party may have been able to do if it so chose. In any event, that
judgment is not binding on this court.
their Notice under Rule 30 dated the 21st February 2003, defendants
ask for the setting aside as irregular step not only the taxation
(and payment of taxed costs before the matter is eventually
finalised) on the abovestated ground but also due to an appeal since
filed and a further technical complaint under Rule 68.
last ground reads:-
Plaintiff's Notice of Taxation is not in compliance with Rule 68 of
the rules of Court."
Flynn quite correctly argued that particulars of the alleged
irregularity are conspicuous in their absence, which causes this
complained of aspect to fall foul of Rule 30(2), which requires that
"application ... shall be on notice to all parties specifying
particulars of the irregularity alleged."
the advanced ground by defendants attorneys is as flimsy as a
technicality could ever be. In argument, it was said that the
complaint centred around the absence of a further document which was
expected to have been served together with the Notice of Taxation.
That document was one on which consent to taxation in the absence of
a party could be endorsed on, a certificate under Rule 68(5)(a)(ii).
This requirement, that a draft certificate must accompany the Notice
of Taxation, is contained in a Taxing Master's Directive, No. 1 of
1998 dated the 16th September 1998.
compliance with the directive may be a salutary practise and that it
can expedite taxations, is beyond argument. Different though is the
consequence of a failure to enclose such a pro forma certificate. The
omission complained of at present is of no consequence. It was never
to affect or influence or prejudice the defendants. They had not the
slightest intent at all to accede to a taxation in their absence.
From the lengthy list of items for taxation, barely a single handful
are not marked to be contested items. The Bill is not of
insignificance either - the untaxed claimed amount approaches E120
000, to which is still to be added near enough some seventy percent.
Even if still untaxed and it being a very rough estimation, such
amounts of costs, long before finality of the claim has been reached,
is a lot of money.
in my view, this ground, the absence of a document on which to agree
to leave the taxation in the hands of the taxing master, must fail in
so far as it was relied upon to have the intended taxation set aside
as irregular step.
it is noted that costs were ordered on the attorney and client scale
whereas the Bill of Costs for taxation clearly states it to be on a
party and party scale.
further ground relied on for setting aside the taxation is the fact
that an appeal has been noted by the defendants against the order
requiring them to pay costs of the postponement of trial.
the chronological sequence of events, Notice of Taxation was served
on the 14th February 2003, with Notice of Intention to oppose it
being served on the 20th February, the date of the notice itself
being two days earlier.
facie the Notice itself, the order complained of was given as far
back as the 26th November 2003, being an order for costs.
for plaintiff argued that there are sufficient defects in the appeal
that it will be disposed of on points in limine only, without even
entering the merits. The defects are said to be that as the appeal is
one against an order as to costs only, Section 14(l)(b) of the Court
of appeal Act of 1954 mandates leave of the court a quo to appeal. No
proof of such leave being sought or granted was brought to the fore.
argument has it that in any event, Rule 9 of the Court of Appeal
Rules required the appeal to have been filed within six weeks of the
date of judgment. Thus, it should have been done by the seventh
January 2003, which defect has not been sought to be cleared or
Flynn thus contends the appeal to be deemed as abandoned in terms of
Rule 30(4) of the Court of Appeal Rules.
for no other purpose than to show that one must be careful with what
is argued and what one reads, I briefly refer to the written
plaintiff's Heads of Argument. It is signed at the end by its
advocate, with the clear endorsement of "Defendants'
Counsel"(sic). Also, in the final paragraph, it is stated that
the defendants (sic) have obtained the costs order, that the
defendants (sic) are to have it taxed and that it is the defendants
(sic) who are not required to await the finalisation of the case.
Such obvious and glaring mistakes can and do happen and the court is
perhaps enjoined to read it as it was meant to be and not as it is
printed on paper.
least it is correctly stated that having obtained a costs order, a
party is entitled to have it taxed. It is however not also the case
that it is to be taxed forthwith and then payable on demand, unless
either the order was made at the time of finalisation of the matter
or if it was accompanied by a further order that it be so taxed and
paid at the interim stage, during the lull in the proceedings.
the merits of this line of argument might be and what effect it may
have on the Court of Appeal remains to be determined. It is not
proper for this court to pronounce on it, not even purporting to do
opinion is thus ventured on the prospects of an appeal either being
successful or nipped in the bud. Of more importance is whether the
noting of an appeal is to suspend the intended taxation, more
correctly, whether it forms a ground to have the taxation set aside.
Notice to set it aside partly reads that:-
the matter is pending before court the plaintiff has prepared a Bill
of Costs and set it down for taxation; and
have file (sic) a Notice of Appeal against the Order of Court."
defendants contend that due to the above, the Notice of Taxation is
to be set aside as an irregular step. The notice does not state that
the noting of an appeal has as result that it suspends payment, in
obedience to the order.
way it is viewed and whatever the merits and demerits of an appeal
may be, it is the requirement to pay costs of a postponement of the
trial that is the subject of the appeal. The appeal has not yet been
and could not yet have been prosecuted. To complicate the issue,
there is no court of appeal in Swaziland, following the resignation
of the Appeals Bench.
said, the normal consequence of an appeal being noted is that it puts
the subject matter of the appeal on hold, it being non executable
unless otherwise ordered. No such order is either sought or made.
the application stands to succeed on two grounds, the appeal issue
set out immediately above and also the absence of an order to
forthwith tax and pay the costs, long before the action is finalised.
At present, the plaintiff has in hand an order of the 26th November
2002 that the two defendants must pay the costs of the postponement
of the trial on an attorney and client scale. If the noted appeal is
prosecuted, it will either confirm or alter the order. Trial in the
action has not yet been concluded and the final result, with an
accompanying costs order at the end, is still to be made on some date
in the future. Meanwhile, the plaintiff will have to await
finalisation before it can insist on taxation and payment of the
costs as ordered in November 2002.
in turn causes the application under Rule 30, dated the 21st February
2003, to be successful. As prayed therein, the Notice of Taxation is
ordered to be set aside.
attorneys did not pray for an costs order in this particular
interlocutory proceeding and none is made, with the consequence that
costs hereof be costs in the cause.