Policansky Bros v Hermann & Canard [1911] ZATPD 57 (1 May 1911)

Costs - Taxation - Procedure - Time for Objections - Rules of Court of 24th July, 1908 - Law 12 of 1899, sec.17 - Procl.14 of 1902, sec.31 - Ord.9 of 1902, sec. 6 - Counsel's Fees - Discretion of Taxing Master - Opposed Applications - Consultations - Unnecessary Costs - Affidavits - Witnesses' Fees - Attorneys' Fees - Attorney other than of Record - Party not Resident at Place of Trial - Several Issues - Apportionment of Costs

The Rules of Court, promulgated by Government Notice 698 in the Gazette of 24th July, 1908, were framed by virtue of sec.31 of Procl.14 of 1902, and consequently, from that date, by virtue of Ord.9 of 1902, sec.6, Law 12 of 1899, sec.17, as to the time within which objection to taxation must be lodged, has been
repealed.

The Court will not interfere with the Taxing Master's discretion in taxing counsel's fees unless he acts upon a wrong principle or exercises his discretion in a wrong manner.

It is a good working rule for a Taxing Master to allow five guineas as counsel's fee in an ordinary opposed application and to allow more when the case is more difficult or complicated than usual. Generally, counsel's fees for consultation as to the advisability of an application for commission de bene esse will not be allowed between party and party.

The Taxing Master is entitled to disallow as unnecessary the costs of a supplementary affidavit filed in an application, where the facts contained therein should have been set forth in a former affidavit.

The mere fact that witnesses subpoenaed were not called at the trial does not entitle the Taxing Master to disallow their fees; but unless evidence is produced before him to show that their evidence was relevant and to account for the reason why they were not called, he is entitled to disallow their fees as between
party and party.

If a litigant is not resident at a place where proceedings rightly are instituted and, in consequence, it is necessary for him to consult an attorney at another place in connection therewith, such costs may be allowed on taxation between party and party, provided that the litigant was reasonably entitled to consult at the place he did and that costs have not been duplicated thereby. The place of consultation need not be the place of residence of the litigant but may be his place of business, e.g., when he is sued as being resident at such place of business.

When a party is successful on some issues and unsuccessful on others, costs, if selverable, must be apportioned accordingly. But costs not dependent upon the number of issues, such as counsel's fees at trial in certain cases, must be allowed in full.