35 Review of taxation

(1) Any interested party may, within 15 days after he or she has knowledge thereof, bring before a judicial officer for review —
(a) the costs and expenses claimed in any undefended action;
(b) the assessment by the registrar or clerk of the court of any costs and expenses;
(c) the taxation by the registrar or clerk of the court of any costs awarded in any action or matter; or
(d) the taxation by the registrar or clerk of the court of any fees or charges of the sheriff.
(2) A review in terms of subrule (1) shall be on 10 days' notice to the party entitled to receive or liable to pay such costs and expenses or to the
sheriff, as the case may be.
(3) Any party dissatisfied with the decision of the judicial officer as to any item or part of an item which was objected to before the registrar or
clerk of the court, may, after notice to the other party, within 10 days of the decision require the judicial officer to state a case for the decision of a
judge, which case shall embody all relevant findings of fact by the judicial officer: Provided that, save with the consent of such officer, no case shall
be stated where the total of the amounts which he or she has disallowed or allowed, as the case may be, and which the dissatisfied party seeks to
have allowed or disallowed, respectively, is less than R1 000.
(4) Any party may within 10 days after the judicial officer has stated a case in terms of subrule (3) submit contentions in writing to the judicial
officer.
(5) The judicial officer shall lay the case together with the written contentions submitted and his or her own report not later than 15 days after
receipt of such contentions, before a judge of the court of appeal who may then —
(a) decide the matter upon the case and contentions so submitted, together with any further information which he or she may require from
the judicial officer; or
(b) decide if [sic] after hearing the parties or their counsel or attorneys in chambers; or
(c) refer the case for decision to the court of appeal.
(6) The judge or the court deciding a matter in terms of subrule (5) may make such order as he or she or it deems fit, including an order that
the unsuccessful party shall pay to the opposing party a sum fixed by the judge or the court as costs.

Commentary
General. This rule was originally framed to give effect to s 81 of the Act, 1 which provides that taxation by the registrar or
clerk of the court shall be subject free of charge to review by a judicial officer of the district (subrules (1) and (2)). The
decision of the judicial officer may thereafter be brought in review before a judge of the court of appeal (subrules (3)–(6)). 2
RS 19, 2019 Rule-p35-2
In High Court practice the principle governing interference with the exercise of a taxing master's discretion is that the court
will not lightly disturb the discretion that he has; the discretion will only be interfered with if he has exercised it improperly or
has not brought his mind to bear on the question in issue or has acted on a wrong principle. The court will also interfere if it is
of opinion that the taxing master was clearly wrong, but will only do so if it is in the same position as, or in a better position
than, the taxing master to determine the point in issue. 3 It is submitted that the same principles apply in the review by a
magistrate of taxation effected by a registrar or clerk of the court, for they, like the taxing master of the High Court, have a
certain (though lesser) discretion in allowing or disallowing items of costs and expenses. 4
As far as concerns review of taxation of an attorney and own client bill, the client is entitled to have the bill (and this
includes a bill in a non-litigious matter) taxed by the registrar or clerk of the court 5 and, if dissatisfied with the taxation, may
in terms of rule 35(1) bring the taxation in review. If the client has agreed to pay the attorney a fixed sum for the work done,
there is no room for review. 6 If the client disputes that he ever gave the attorney a mandate to act for him, the registrar or
clerk of the court cannot tax the bill; the reviewing court must decide whether such mandate was given or not. 7
Subrule (1): 'Any interested party'. This is not as wide as it seems at first sight: it is limited by the definition of 'party' in
rule 2(1) as including 'the attorney or counsel appearing for any such party and the officer of any local authority nominated by
it for the purpose'. It has been held that the Road Accident Fund may be represented at the taxation by one of its officials
who is not an attorney. 8 The taxing master need only look at the record to identify the parties; he cannot, when taxing a
bill, take cognizance of third persons who may have indemnified parties who figure on the pleadings. 9
'Within 15 days'. For the computation of time, see the notes to rule 2(2) above. The time limit may be extended under rule
60(5). 10
'Bring before a judicial officer'. Under this subrule the judicial officer acts as an individual — he is not sitting as a court of
law. 11
RS 23, 2020 Rule-p35-3
'For review'. An obvious error in spelling or in figures or in date does not render a notice of taxation invalid, and the taxation
of the bill of costs by the registrar or clerk of the court may be taken in review before a judicial officer. 12
It is permissible in such a review to lay facts before the magistrate not adduced before the taxing officer in order to support
an item claimed, but such new matter may affect the question of costs. 13
Subrule (2): 'On 10 days' notice'. This notice may be waived. 14 A party who brings a bill of costs in review must give the
other party notice of revision in terms of this subrule, even if the latter did not originally give the former notice of taxation. 15
For the computation of time, see the notes to rule 2(2) above.
Subrule (3): 'Any item … which was objected to before the … clerk of the court'. These words, as they appeared in the
predecessor of this subrule, have given rise to a certain diversity of opinion. In Tempelhoff v Aberdeen Municipality 16 it was
held that the decision of a judicial officer disallowing certain items in a bill of costs which were not objected to before the clerk
of the court may be brought in review before a judge of the court of appeal. In the sixth edition of this work 17 the
correctness of this decision was questioned, and it was submitted that 'the subrule clearly relates to review by a judge of a
decision by a magistrate upon an item or part of an item which was objected to before the clerk'. However, in Krull v Bursey
18 it was held that s 81 of the Act gives a right to have taxation reviewed by a judge 'in the manner prescribed by the rules',
and that rule 35(3)–(5) does prescribe the manner, but that the rule cannot, as it purports to do, limit the rights conferred by
the Act to a review of decisions 'as to any item … objected to before the clerk'. In the Cape Provincial Division, on the other
hand, it has been held, without reference to the earlier cases, that 'rule 35(3) contemplates a review only in regard to such
items as were objected to before the clerk of the court'. 19
When a party objects to the taxation before the registrar or clerk of the court on the erroneous ground that the bill of
costs and the notice of taxation are invalid, he in effect objects to the taxation of each item of the bill of costs. When the
magistrate upon review upholds such a party's contention as to the invalidity of the taxation, he is in effect giving a decision
as to each item of the bill of costs; the decision of the magistrate is accordingly reviewable under this subrule. 20
'Within 10 days'. For the computation of time, see the notes to rule 2(2) above. The time limit may be extended under rule
60(5). 21
 RS 23, 2020 Rule-p35-4
'Which case shall embody all relevant findings of fact'. The rule is obligatory and its manifest purpose is to help the judge
of review to come to a just conclusion, which he can hardly do if he is unaware of these facts. 22
'The total of the amounts … is less than R1 000'. This provision is designed to discourage reviews involving trifling amounts.
23

Subrule (4): 'Within 10 days'. For the computation of time, see the notes to rule 2(2) above. The time limit may be extended
under rule 60(5). 24
Subrule (5)(a): 'Decide the matter upon the case … so submitted'. The case with which the judge will deal is the case
that was laid before the taxing master and the magistrate, and not an amplified case not dealt with before the taxing master
or magistrate; for neither general principle nor the provisions of subrule (3) or (5) permit the raising of such new points before
the judge to whom the decision of the magistrate has been submitted for review. 25 This does not mean that it is
incompetent to raise on review an argument which was not put before the taxing officer: developing and elaborating upon an
argument does not amount to raising a fresh point. 26
Subrule (6): 'A sum fixed by the judge … as costs'. The award of costs, including the amount fixed by the judge, is entirely
within the discretion of the judge or the court and depends upon the particular circumstances of each case. 27
RS 12, 2016 Rule-p36-1

1 As to review of taxation generally, see the notes to s 81 in vol I.

2 In s 1 of the Act 'court of appeal' is defined as meaning 'the High C ourt to which an appeal lies from the magistrate's court'. Following
the commencement of the C onstitution Seventeenth Amendment Act of 2012 and the Superior C ourts Act 10 of 2013 on 23 August 2013, the
reference to 'the High C ourt' in this definition must now, in terms of s 53(b) of the Superior C ourts Act 10 of 2013, be construed as a
reference to any division of the High C ourt of South Africa to which an appeal lies from the magistrate's court.
3 These principles have often been restated by the courts: See the authorities referred to in the notes to s 81 in vol I. C onfirmation by
the Appellate Division of the principles is to be found in Ocean Commodities Inc v Standard Bank of SA Ltd 1984 (3) SA 15 (A).
4 See the notes to s 8 in vol I. See also Fedmech EFS (Edms) Bpk v Saaiman 1990 (4) SA 637 (O) at 642A, where this submission in the
seventh edition of this work is cited with approval.
5 Assistant Taxing Master v Shenker, Shenker & Gross 1953 (4) SA 281 (T); Eller v CIR 1957 (1) SA 483 (D); Dube v Pike Shaw &
Co 1958 (1) SA 135 (N); Joel Melamed & Hurwitz v Simmons NO 1976 (4) SA 189 (T). These cases deal with High C ourt practice, but the
principle seems to apply to magistrates' courts as well.
6 Murray v Yoyo 1912 C PD 807; Nicholls v MacMuldraw 1923 C PD 401; Kruger v Resnik 1955 (3) SA 378 (A), in which the Appellate
Division at 383A expressly dissented from the decision to the contrary in Marks and Holland v Palmer 1915 TPD 246.
7 Gluckman v Winter 1931 AD 449; Ferreira v Elliott, Stewart and Wium 1944 C PD 472; Hattingh v Ngake 1966 (1) SA 64 (O); Botha v
Themistocleous 1966 (1) SA 107 (T).
8 Nel v Road Accident Fund 2000 (1) SA 931 (T) at 935H–936B.
9 Skosana v DACM Carriers (Pty) Ltd 1975 (1) SA 944 (T).
10 See CWL Baard (Edms) Bpk v Masterpiece Reproductions (Pty) Ltd 1973 (3) SA 730 (C ). In Motivation Resources v Momentum Life
Assurers Ltd 1977 (2) SA 1030 (T) at 1032 the court adverts to the 'strict time periods within which review proceedings have to be brought
and dealt with'.
11 See Briel v Van Zyl; Rolenyathe v Lupton-Smithl 1985 (4) SA 163 (T) at 168; and see Rutenberg v Magistrate, Wynberg 1997 (4) SA
735 (C ) at 746F–H.
12 Air Products SA (Pty) Ltd v Smith t/a Boschpick Structural Engineering 1978 (2) SA 397 (C ).
13 Bergh v Khanderia and Sons 1924 TPD 560 at 568–9; Lachman v Koch 1956 (4) SA 371 (N) at 374; Cordingley NO v BP Southern
Africa (Pty) Ltd 1971 (3) SA 118 (O) at 120; SA Rooikruisvereniging (Ooskaap Streek) v Retief 1981 (4) SA 60 (C ) at 61; and see Van der
Westhuizen v Gibbon 1983 (1) SA 95 (O) at 99.
14 See the notes to rule 33(15)(a)–(c) s v 'General above.
15 De Waal v Grobler (1895) 2 Off Rep 39.
16 1948 (1) SA 745 (E).
17 At 748.
18 1966 (4) SA 448 (E) at 450–1; approved and applied in Paruk v Lallo 1979 (3) SA 653 (D) and Louw v Gleeson 1991 (3) SA 219 (O).
19 Sacca Beperk v Burger 1974 (3) SA 732 (C ) at 733. This decision was not approved and not followed in Louw v Gleeson 1991 (3) SA
219 (O).
20 Air Products SA (Pty) Ltd v Smith t/a Boschpick Structural Engineering 1978 (2) SA 397 (C ) at 398.
21 See CWL Baard (Edms) Bpk v Masterpiece Reproductions (Pty) Ltd 1973 (3) SA 730 (C ). In Motivation Resources v Momentum Life
Assurers Ltd 1977 (2) SA 1030 (T) at 1032 the court adverts to the 'strict time periods within which review proceedings have to be brought
and dealt with'.
22 Cordingley NO v BP Southern Africa (Pty) Ltd 1971 (3) SA 118 (O) at 122; and see Fourie v The Taxing Master 1983 (4) SA 210 (O).
23 In Madlala v Southern Insurance Association Ltd 1982 (4) SA 280 (D) it was stated, in a review of taxation under Uniform Rule of
C ourt 48, that 'litigants and practitioners should be discouraged from wasting the time of the taxing master and judges with reviews that
clearly have no prospect of success, and it may help to discourage them if I award the defendant in this case a realistic amount to cover all
of its costs of opposition'.
24 See CWL Baard (Edms) Bpk v Masterpiece Reproductions (Pty) Ltd 1973 (3) SA 730 (C ). In Motivation Resources v Momentum Life
Assurers Ltd 1977 (2) SA 1030 (T) at 1032 the court adverts to the 'strict time periods within which review proceedings have to be brought
and dealt with'.
25 Mosely v Barker 1910 TPD 688 at 691; Golombik v Atlas Insurance Co Ltd 1916 WLD 14 at 17; Van Zyl v Van der Merwe 1936 TPD
323 at 328; Chatzkelowitz v Parsons 1938 TPD 51 at 54; Taylor v MacKay Bros & McMahon Ltd 1947 (4) SA 423 (N); Hall v Harris 1966 (1)
SA 676 (N).
26 Chatzkelowitz v Parsons 1938 TPD 51; Hall v Harris 1966 (1) SA 676 (N).
27 Examples of orders made under the predecessor of this subrule include Krull v Bursey 1966 (4) SA 448 (E); Cordingley NO v BP
Southern Africa (Pty) Ltd 1971 (3) SA 118 (O); Sacca Beperk v Burger 1974 (3) SA 732 (C ); Motivation Resources v Momentum Life Assurers
Ltd 1977 (2) SA 1030 (T); Air Products SA (Pty) Ltd v Smith t/a Boschpick Structural Engineering 1978 (2) SA 397 (C ); Kroonstad Verbruikers
Koöp Bpk v National Egg Producers Co-op Ltd 1981 (3) SA 674 (O); Santambank Bpk v Dimo 1993 (1) SA 702 (O) at 704B. As to the matters
which may be taken into consideration by the judge in fixing the amount, see Tshabalala v Hood 1986 (2) SA 615 (O) at 622. If the process
of review of taxation is in some way or other abused, the judge may make an appropriate order as to costs (Madlala v Southern Insurance
Association Ltd 1982 (4) SA 280 (D)).