IN
CHAMBERS
MWAYERA
JA
INTRODUCTION
This
is an opposed application for review of taxation proceedings made in
terms of Rule 56(2) as read with Rule 73 of the Supreme
Court Rules, 2018 and Rule 72 of the High Court Rules, 2021. On 23
February 2022 after considering written submissions by the applicant
and both written and oral submissions by the second respondent's
counsel Mr. Madya,
I delivered an ex-tempore
judgment dismissing the application with costs. The applicant
elected not to appear physically but opted in terms of section 29(4)
of the Supreme Court Act [Chapter
7:13],
to file written submissions. He has requested for written reasons
for the decision. These are the reasons.
FACTUAL
BACKGROUND
The
applicant was awarded costs in case number SC105/20 on 17 July 2020.
The first respondent is the taxing officer who is also the Registrar
of the Supreme Court and is cited in official capacity. The second
respondent is a company duly incorporated in terms of Zimbabwean law
and is the party ordered to pay costs to the applicant. The
applicant and the second respondent had a legal dispute, emanating
from retrenchment and termination of the applicant's employment
contract.
On
6 October 2021, the applicant having obtained an order for costs,
instituted proceedings for commencement of taxation of his claim for
costs. The taxation proceedings did not take off until December 2021
when the application was in compliance with the prevailing practice.
Initially, the applicant sought to rely on the wrong tariff and also
included items 1 – 121 which took place before the Labour Court
and were not relevant to the costs awarded by this Court in
SC105/20. On 16 December 2021 the taxation proceedings took place
and they were concluded. It is the decision that was made thereat by
the first respondent that forms the subject of this review
application. The first respondent disregarded the following items:
Items
[1] to [256] relating to claims of monetary value in compensation for
actual time and effort by the applicant as a litigant in person. The
computed amount for the actual time is US$746.53 man hours or unit
hours.
Items
[1] to [138] mostly comprise claims for disbursements made by the
applicant to his erstwhile legal practitioners (Messrs Kantor and
Immerman and Messrs Matizanadzo and Warhurst). These costs had been
awarded against the applicant in the Labour Court of Zimbabwe under
judgment number LC/H/679/16 handed down on 04 November 2016. That
judgment was set aside by an order of this Court under judgment
number SC105/20 handed down on 17 July 2020.
It
is evident from the first respondent's report that each item was
properly analysed and an explanation for disallowing the item was
proffered. The first respondent identified three issues on each
item. Firstly, that the applicant was claiming costs for the time
spent in prosecuting his appeal. Secondly, the applicant was
claiming costs incurred at the Labour Court and lastly, the
applicant sought costs in United States dollars (USD) instead of the
equivalent in Zimbabwean Local Currency (ZWL).
The
first respondent in respect of the first issue found that the High
Court (Fees and Allowances) (Amendment) Rules, 2020 was the
governing instrument for the fees recoverable on taxation of costs.
She held that Schedule 1 thereto was reserved specifically for legal
practitioners or employees of a legal practitioner. She further
found that the applicant was neither of these and thus disallowed
the fees so claimed.
As
regards the second claim for costs for proceedings that occurred
before the Labour Court, the first respondent disallowed the costs
on the basis that such costs ought to be claimed in the relevant
court.
In
respect of the last claim, the applicant insisted on costs in United
States dollars and declined to provide Zimbabwean Local currency
account details to facilitate the second respondent's payment of
the equivalent amount in local currency.
In
the exercise of her discretion the first respondent disallowed the
items leading to the present application.
GROUNDS
OF REVIEW
The
grounds of review discerned from the applicant's papers are
formulated as follows:
“GROUND
OF OBJECTION
The
applicant seeks to raise the following grounds of objection to the
determination made by the taxing officer.
1.
Notwithstanding the provisions of section 85 of the Constitution of
Zimbabwe Amendment (No.2) Act 2013 (the Constitution and section 6
and 34(3) of the of the Supreme Court Act [Chapter 7:13]), it appears
that there are no specific statutory provisions concerning basic
practice and procedure under a litigant in person (self-represented
litigant) as in the applicant's case may claim and recover costs
relating to time and effort (physical and mental activity) in
judicial proceedings, when costs are awarded to such a party by a
court of competent jurisdiction.
2.
First respondent did not advert to explicit 'points of dispute'
arising at/during the taxation proceedings. This is despite applicant
having formerly made submissions on these 'points of dispute' and
providing (on an apt document) for first respondent to annotate his
decision.
3.
Regardless of applicant referring first respondent to the provisions
of section 85 of the Constitution, section 6 of the Supreme Court Act
[Chapter
7:13],
Rule 73 of the Rules of the Supreme Court, 2018 and Rule 72 of the
High Court Rules, 2021, including citing apposite authorities
concerning claim of costs by a litigant in person. First respondent
disregarded applicant's pleadings.
4.
At/during reconvened taxation proceedings on 18 November 2021, first
respondent declined applicant's request for him (taxing officer) to
put his decision in writing. Such action or conduct was/is contrary
to the provisions of section 68(2) of the Constitution and section 3
of the Administrative Justice Act [Chapter
10:28].
First respondent's reasons for the determination remained, locked
in his mind.
5.
By negating the whole of the applicant's claim of costs relating
time and effort (physical and mental activity) as litigant in person
when prosecuting the appeal under SC9/17 first respondent acted
irrationally and unreasonably.
6.
First respondent's determination is discriminatory in nature hence
inconsistent with provisions of section 56(3) of the Constitution.
7.
If first respondent's determination is not reviewed, applicant
shall suffer irreparable financial prejudice. Such prejudice
manifested in costs under Civil Appeal SC1019/17, oral submissions at
the hearing anew of the matter in dispute under case LC/H/REV/125/15
before the Labour Court of Zimbabwe on 09 June 2021 and Judgment
LC/H/154/21 handed down on 29 September 2021. Costs thereunder have
been amended against second respondent.
8.
Furthermore applicant is exposed to potential significant financial
prejudice when defending and enforcing his fundamental rights under
another related case presently before the Labour Court (case number
LC/H/1536/21) thereof, second respondent seeks leave to appeal the
whole judgment referenced in para 7 above. The matter is pending
determination.” (sic)
ISSUE
FOR DETERMINATION
The
issue that falls for determination in this application is whether or
not the taxation of the applicant's bill of costs was properly
done.
THE
LAW
11. It
is a trite principle of law that a party who is aggrieved by the
taxation officer's determination may make an application for review
of the taxing proceedings as provided for by Rule 56 of the Supreme
Court Rules, 2018 which reads as follows:
“56.
Taxation
(1)
Where costs are allowed, they shall be taxed by a registrar and legal
practitioners fees shall be charged and taxed in accordance with the
relevant provisions of the tariff for the time being used by the High
Court of Zimbabwe.
(2)
Any party aggrieved by taxation shall give notice of review to the
registrar and the opposite party within 15 days of the taxation,
setting out grounds of his or her grounds of objection.
(3)
The registrar shall make a report in writing setting forth any
relevant facts found by him and stating his or her reasons for any
decision. A copy of such report shall be given to a Judge and shall
be served on the parties to the taxation.
(4)
Thereafter the registrar shall fix a date for hearing of the review
by the Judge.
(5)
The Judge may make such order on the review as to him or she seems
just.”
12. It
is important to relate to the basic definition of taxation. Taxation
is a process that is carried out when a party disputes costs levied
by a legal practitioner. The disputed costs are evaluated and
measured by a taxing officer in order to reach a just balance between
the services rendered and costs levied by the legal practitioner. The
taxing officer is empowered to exercise his discretion in coming up
with a taxed bill for the parties.
13. Where
a party is aggrieved by the taxing officer's decision, they are
entitled to seek a review. It is settled that not every review
warrants interference. The courts have over the years spelt out the
principles to be applied when deciding on whether or not to interfere
with a taxing officer's ruling. In the case of Cone
Textiles (Private) Limited v C Pettigrew (Private) Limited 1984 (1)
ZLR
274 at 275F, it was stated as follows:
“The
question as to when a court is entitled to interfere with a Taxing
Master's determination of fees has been the subject of numerous
decisions since the beginning of this century. They fall into two
main categories. Firstly, that a court will only apply common law
grounds for interference on review. Secondly, that if the court is
'clearly' or 'distinctly' of the opinion that the taxing
master was wrong it is the duty of the court to reverse or correct
it…”
And
further at 278G–279B:
In
my view, the correct position is, therefore, that the court has power
to interfere with or alter a Taxing Master's ruling on two grounds.
Firstly,
on the application of the common law rights on review which involve a
finding that he was grossly unreasonable or erred on a point of
principle or law.
In such a situation the
court would be at large and entitled to substitute its opinion for
that of the Taxing Master. It should not be overlooked that even when
such grounds for interference exist it need not follow that the
Taxing Master's decision must necessarily be set aside or altered.
He may have arrived at the correct decision for a wrong or even
improper reason.
Secondly,
regardless of the absence of any common law ground for interference
the
court has a duty to interfere if satisfied that the Taxing Master was
clearly wrong in regard to some item.
In such a case the court will substitute its own opinion for that of
the Taxing Master even if it is a matter involving degree.
It
is emphasized, however, that the court must be satisfied that the
Taxing Master was clearly wrong and not merely that in his place it
would have come to a different decision.”
(my emphasis).
14. It
is worth noting that notwithstanding a party's right to seek
recourse in terms of the rules set out above, the position within and
without this jurisdiction is fairly settled that the court will not
readily interfere with the exercise of the Taxing Officer's
discretion unless it is satisfied that the Taxing Officer acted on
some wrong principle and/or failed to exercise his or her discretion
properly. See the case of Zizhou
v The Taxing Officer and Anor
SC7/20 at p7 in which the Court held that:
“The
court is very slow to interfere with the exercise of the Taxing
Officer's discretion, it will not readily do so unless it is
satisfied that the Taxing Officer acted on some wrong principle or
did not exercise his or her discretion at all.”
15. Similarly,
the South African jurisdiction follows the same principle as set out
in both case law and rules of procedure. The
same tenets have been clearly set out by scholars Cilliers, Loots and
Nel, in Herbstein and Van Winser, The
Civil Practice of the High Courts of South Africa
5th
Edition (Cape Town) Juta
and Company Ltd, 2009
Volume 2 at p1002 which states the following concerning the
reluctance of the courts to interfere with the exercise of the taxing
master's discretion:
“Where
by rule of court the costs to be allowed on taxation are left to the
discretion of the taxing master, the court will not interfere with
this discretion in allowing or disallowing certain items even if the
court exercising an original discretion would have disallowed or
allowed them, unless the taxing master had acted upon a wrong
principle or has not really exercised discretion at all.
In
Preller
v Jordan
it was held that such interference will not take place 'unless it
is found that he [The taxing master] has not exercised his discretion
properly, as for example, where he has been actuated by some improper
motive, or has not applied his mind to the matter, or has disregarded
factors or principles which were proper for him to consider or
considered others which it was improper for him to consider, or acted
upon wrong principles or wrongly interpreted rules of law, or gave a
ruling which no reasonable man would have given.”
See
also the case of Nourse
Mines v Clarke
1910 TPD 660 at p661 which was quoted with approval in Legal
and General Society Ltd v Lieberum N.O. and Another
1968 (1) SA 473.
16. An
examination of the law entitling a party to seek review of the
principles set out in case law shows that the review of a Taxing
Officer's decision is not granted for the mere asking. There are
two main grounds upon which the court may interfere with the Taxing
Officer's decision. The first ground is based on the common law
principle wherein a court will interfere with the taxing officer's
discretion on review where the finding is proved or shown to be
grossly unreasonable. Further, where the Taxing Officer acted mala
fide,
or from an ulterior or improper motive, and that there was a failure
to apply his mind to the matter.
17. The
second ground upon which interference with a Taxing officer's
decision is warranted is when the court is clearly satisfied that the
Taxing Officer was
wrong in her decision and that she acted on a wrong principle and
misinterpreted the rules and the law.
APPLICATION
OF THE LAW TO THE FACTS
18. In
the present case the first respondent disallowed specific items and
outlined her reasons for such disallowance. It is common cause that
the applicant is a self-actor and was self-acting in respect of the
matter for which the taxing officer assessed the bill of costs. The
applicant's claim for the costs of time spent prosecuting the
matter is a right exclusively reserved for those in the legal
profession. The first respondent properly found that it would be
improper to award the costs claimed by the applicant who was not a
legal practitioner or an employee in a legal firm. Considering the
applicant's status as a self-actor, his argument that he aptly,
skillfully and diligently prosecuted his matter does not elevate his
status to that of a legal practitioner entitled to costs for services
rendered.
19. Furthermore,
the applicant's reference to section 85 and section 65 of the
Constitution in review grounds is misplaced and does not entitle him
to claim for costs as a legal practitioner. There is a concession in
his founding affidavit that there is no law that allows self-actors
to claim costs on the time spent on their own matters and alleged
opportunity costs.
20. In
the circumstances one cannot say the determination made by the taxing
officer was irrational. The issue of such costs is regulated by the
law. The Taxing Officer made a proper decision in compliance with the
law.
21. In
respect of items on costs incurred in the Labour Court, these
predated the appeal whose judgment the taxing officer was concerned
with. It is settled that costs for attendance in a particular court
are determined and taxed in the relevant court. The taxing officer's
report is clear on the reasons for the disallowance of costs for
items incurred in the Labour Court. The reasoning which is sound and
correct finds favour with this Court.
22. Lastly,
with respect to the denomination of the bill of costs in United
States dollars, the first respondent requested the applicant to
provide the equivalent in local currency since the second respondent
wanted to pay in that currency. The applicant however was adamant on
the costs being denominated in United States dollars only. The first
respondent cannot be faulted for seeking to endorse the equivalent
local currency value of the costs, since the second respondent
elected to pay in that currency. In the case of Zizhou
(supra),
it was spelt out that tariffs were to be denominated in the local
currency as this is how it is set out in Statutory Instrument 142 of
2019 which governs fees and costs. The court pronounced that:
“In
light of the prevailing legal position at the time the bill was
taxed, its denomination in United States dollars was in contravention
of the law. The first respondent therefore erred in passing under his
hand a bill that contravened the law. Accordingly, and on this basis
alone the bill cannot stand. It is the settled position of law that
anything alone in direct conflict with a statute is a nullity.”
23. The
first respondent did not disallow costs for being denominated in
United States dollars but sought to endorse the equivalent local
currency value to facilitate payment as opted for by the second
respondent. In
casu,
according to the first respondent, the applicant refused to have the
bill endorsed in local currency because he wanted payment in United
States dollars.
24. In
the circumstances the first respondent cannot be said to have
improperly exercised her discretion. When she disallowed specified
items, she explained with clarity the basis of the disallowances.
25. It
is important to highlight that a bill of costs determined by a Taxing
Officer must be necessitated by the need to achieve justice such that
only bona
fide
and necessary costs are allowed. The Taxing Officers in the exercise
of their discretion and power as regulated by law, take into account
all costs, charges and expenses so as to strike a just balance.
26. In
this case, the first respondent acted within the confines of the law.
She procedurally and properly disallowed items that did not qualify
to be taxed. The first respondent having correctly exercised her
discretion, there is no basis for interference with her findings. The
applicant has not satisfied the common law grounds warranting review
nor has he proved that the first respondent acted on a wrong
principle or misinterpreted the law.
27. Having
found no basis for interference with the taxing officer's decision
the application for review must fail. Regarding costs, they follow
the result.
28. It
is for these reasons that I dismissed the application with costs.
Wintertons,
2nd
respondent's legal practitioners
