Fenyane v Ndengane and Others (GJ) (unreported case no 19397/2022, 11-3-2024) (Dosio J)In the matter of Fenyane, the Gauteng Local Division High Court in Johannesburg, dealt with an application whereby the applicant asked the High Court to set aside the decision of the taxing master as unlawful, unconstitutional, and invalid and that the High Court must order that the applicant be allowed to appear on behalf of her clients before the taxing master. This was after the taxing masters decided that the applicant, who is a duly admitted attorney, could not appear at a taxation without a right of appearance in the Superior Courts, under s 25(3) of the Legal Practice Act 28 of 2014 (LPA).
The application for a judicial review, under s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), was brought in terms of rule 53 of the Uniform Rules of Court. The High Court pointed out that the applicant sought relief to the following effect:
‘(a) that the words “appear” in the High Court, the Supreme Court of Appeal, or the Constitutional Court, in terms of s 25(3) of the LPA, refer to appearance before judges of such courts, not to appearance before taxing masters of such courts, and that,
(b) any duly admitted and enrolled attorney may appear on behalf of their client before a taxing master of such courts.’
The High Court added the amici supported the decision of the applicant that the taxing impugned decision of the taxing master be reviewed. In the submissions by the applicant, the High Court said that the applicant contended that the only reasonable interpretation of ‘appear’, is to appear before a judge and that the first and sixth respondent’s (the respondents) construction, that the legislature intended it to include appearance before a taxing master, is not reasonable, considering the context, purpose, and background of the section. The High Court added that in the applicant’s submission it was further contended that even if ‘appear’ were reasonably capable of bearing the meaning urged by the respondents, the applicant’s interpretation must be preferred because it better promotes the spirit, purpose, and objects of the Bill of Rights. The High Court added that this was because the respondent’s interpretation limits the right of attorneys to practise their profession freely in terms of s 22 of the Constitution, as well as the right of the public to access justice in terms of s 34 of the Constitution.
The High Court said that it was argued that the controversy between the applicant and the respondents pertaining to the word ‘appear’, should be restrictively interpreted by way of a declaratory order to mean ‘appear’ before a judge. The High Court pointed out that in their submission the respondents contended that the taxing master’s decision to refuse the applicant’s appearance before her was justified. The High Court added that the respondents argued that the taxing master is not a separate entity from court and as such, the provisions of s 25(3) also apply to the taxing master. The High Court said it was contended that the appearance falls within the scope of a legal practitioner’s practice and that the limitation of the applicant’s right to appear before a taxing master is constitutionally valid.
The High Court said that the respondents contended that the taxing master correctly interpreted the provisions of s 25(3) of the LPA, as well as the matter of Bills of Costs (Pty) Ltd and Another v the Registrar, Cape, NO and Another 1979 (3) SA 925 (A), in that the only persons who can appear before a taxing master, in a Superior Court, are persons who are permitted to practise in such Superior Courts. It was submitted that the term ‘appear’ in the High Court, the Supreme Court of Appeal (SCA) and Constitutional Court (CC) also includes the taxing masters of those respective courts, as they are an extension of the courts. The High Court added that with reference to the matter of Bills of Costs, it was contended that when a case is adjudicated upon by a judge, it is not regarded as being finalised, until the taxing master completes the taxation and issues an allocatur.
The High Court pointed out that the respondents argued that taxation is regarded as an integral part of the judicial process and rights and obligations of the parties to a suit are not finally determined, until the costs ordered by the court have been taxed. That the liability of costs is determined by the court and the amount of liability is determined by the taxing master. Accordingly, an attempt to separate the taxing master’s duties from those of a judge is incorrect. The respondents added in their submission that the taxing master, apart from taxing a bill of costs, also conducts a hearing in opposed taxation and adjudicated on complicated issues of law, thereby exercising a judicial function and not merely as an administrator. It was further contended that the issuing of the allocatur has the same status as a court order.
The High Court said reference was made to s 33 of the LPA, which stated that:
‘Authority to render legal services –
(1) Subject to any other law, no person other than a practising legal practitioner who has been admitted and enrolled as such in terms of the Act may, in expectation of any fee, commission, gain or reward –
(a) appear in any court of law or before any board, tribunal or similar institutions in which only legal practitioners are entitled to appear; or … .’
The High Court pointed out that the respondents contended that s 33 does not place ‘appearance’ as a separate function of ‘practice’. The High Court said that the respondents submitted that ‘appearance’ forms part of legal representative’s practice and that separation of the words ‘practice’ and ‘appear’ is solely for the LPA to outline the requirements that should be met in order to obtain the right to appear before the Superior Courts and there is a valid and fair reason why the limitation put in place in respect to s 25 of the LPA should be applied to taxation proceedings in court. It was further argued that an attorney without a right of appearance or a candidate attorney, cannot appear in the Superior Courts because their practice is still limited by the LPA.
The High court stated that the amici contended that s 25(5)(a)(ii) of the LPA ought to be interpreted to allow a candidate attorney to appear before the taxing master. The amici submitted that the position held by a taxing master in the High Court is not equivalent to that of a judge and the ambit of s 25(5)(a)(ii) is wide enough for taxing master’s to fall into. The amici further submitted that allowing a candidate attorney to appear and make representations at taxation proceedings aligns with their role and duties. Moreover, such a finding aligns with the transformation and restructuring imperatives of the legal profession and more importantly, promotes and broadening of access to justice in terms of s 34 of the Constitution.
The High Court looking at historical context said that when the judgment in Bills of Costs was handed down, the legal position in South Africa was that only duly admitted advocates had the right of appearance in the Superior Courts, while they and admitted attorneys had the right of appearance in the lower courts. The High Court pointed out that that is no longer the position. An admitted attorney may now appear in the Superior Courts after being granted the right of appearance by the registrar under
s 25(3) of the LPA. The High Court added that it was asked to determine whether the decision of Bills of Costs is outdated due to the application of the Constitution. The High Court said before it deals with the Constitution, the question to be considered is whether rule 53 was the correct procedure to follow and whether PAJA is applicable.
The High Court said in the matter of Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC), the CC stated that the purpose of rule 53 is to facilitate and regulate applications for review. The High Court added that rule 53 provides for review proceedings of the decisions and proceedings of any tribunal, inferior court, board, or officer performing judicial, quasi-judicial or administrative functions. The court also referenced the matter of Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA) when the matter was at the SCA. The court further referenced the matter of Turnerland Manufacturing (Pty) Ltd v Taxing Master, Western Cape High Court and Another 2024 (1) SA 518 (WCC), the court held that a taxing master performs quasi-judicial functions. The court therefore said that it found that the review application was correctly brought in terms of rule 53.
The High Court turned to the applicability of PAJA and its definition of ‘administrative action’. The court looked back at the matter in Jonker and Others v Lambons (Pty) Ltd and Another (FB) (unreported case no 2769/2017, 8-11-2018) (Daniso AJ), the court held that:
‘PAJA is a pathway for a judicial review of administrative actions. A taxing master performs a quasi-judicial function and not an administrative function. PAJA is therefore not applicable’. The High Court also looked at the recent matter of JJVR v Taxing Master, High Court of South Africa (Western Cape Division) and Another (Horowitz and South African Legal Practice Council as intervening parties) [2024] 1 All SA 178 (WCC) the court held that in light of the findings in the matter of Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] 3 All SA 33 (SCA), that a decision of the taxing master did not constitute administrative action under PAJA. The court said in this regard.
‘I consider that the ruling of the taxing master in this matter that Ms Erasmus did not enjoy the right of appearance before her, did not constitute the exercise of the type of public power considered [in Greys Marine]. Given the legal position set out above, there was no question of the taxing master exercising any form discretion on an issue which is purely a question of law’.
The High Court pointed out that the function of a taxing master is quasi-judicial and not administrative. For this reason, it found PAJA has no application.
The court also looked at the applicability of the principal legality. In one of the cases, it referenced the matter of Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC), where the CC stated that:
‘[W]hat makes the power in question a public power is the fact that it has been vested in a public functionary, who is required to exercise the power in the public interest. When a public official performs a function in relation to his or her duties, the public official exercises public power.’ In the JJVR matter the court followed the decision of Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) and said that a taxing master in the discharge of her functions, under the control of the court, is an organ of state who is bound by the rule of law and the principle of legality. The High Court said it accordingly found that the principle of legality applies to the taxing master.
The High Court looked at s 25 of the LPA, which provides the following:
‘(1) Any person who has been admitted and enrolled to practise as a legal practitioner in terms of this Act, is entitled to practise throughout the Republic, unless his or her name has been ordered to be struck off the Roll or he or she is subject to an order suspending him or her from practising.
(2) A legal practitioner, whether practising as an advocate or an attorney, has the right to appear on behalf of any person in any court in the Republic or before any board, tribunal, or similar institution, subject to subsection (3) and (4) or any other law.
(3) An attorney who wishes to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court must apply to the registrar of the Division of the High Court in which he or she was admitted and enrolled as an attorney for prescribed certificate to the effect that the applicant has the right to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court and which the registrar must issue if he or she is satisfied that the attorney –
(a)(i) has been practising as an attorney for a continuous period of not less than three years: Provided that this period may be reduced in accordance with rules made by the Council if the attorney has undergone a trial advocacy training programme approved by the Council as set out in the Rules;
(ii) is in possession of an LLB degree; and
(iii) has not had his or her name struck off the Roll or has not been suspended from practice or that there are no proceedings pending to strike the applicant’s name from the Roll or to suspend him or her; or
(b) has gained appropriate relevant experience, as may be prescribed by the Minister in consultation with the Council, if the attorney complies with paragraph (a)(iii).’
The High Court further added that s 25(5)(a)(ii) of the LPA provides that:
‘A candidate attorney is, subject to paragraph (b), entitled to appear –
(i) in any court, other than the High Court, the Supreme Court of Appeal or the Constitutional Court; and
(ii) before any board, tribunal or similar institution on behalf of any person, instead of and on behalf of the person under whose supervision he or she is undergoing his or her practical vocational training.’
The High Court pointed out that it is clear that a candidate attorney is permitted to appear before the Competition Tribunal, the Office of the Tax Ombud, the South African Human Rights Commission, and others. The High Court also added that it is common cause that a candidate attorney is also allowed to appear before a tribunal and a magistrate court. The High Court said regarding the appearance of an admitted attorney before a taxing master, it found that the respondent’s argument based on the level of the complexity of matters to be argued before a taxing master as being too complex, is misplaced. The High Court pointed out that allowing an admitted attorney to appear before a taxing master, even without a certificate of rights of appearance in the Superior Courts, will hone these skills and increase the attorney’s confidence and skills. The High Court added that as previously stated, a taxing master acts in a quasi-judicial role regarding the taxation of bills of costs and their role cannot be equated to that of a judge. The High Court said that the taxing master is the registrar of the court and is appointed by the Minister in terms of s 11 of the Superior Courts Act 10 of 2013.
The court added that a taxing master’s function could be viewed as similar to that of a commissioner in the Commission for Conciliation, Mediation and Arbitration. The High Court said a taxing master derives authority to tax bills from rule 70 of the Uniform Rules of Court and that it is clear from rule 70 that the taxing master does not have the same powers as a judge or that a taxing master’s role is elevated to that of a judge when the taxation of the bill of costs ensues. The High Court pointed out that it is important to note that rule 70(5A)(d) makes provision for a taxing ‘party’ or an ‘attorney’ at taxation proceedings. Rule 70(5A)(d) does not specify that such attorney must be one with rights of appearance. The High Court said that rule 70(5A)(d) states the following:
‘(d) Where a party or his or her attorney or both misbehave at a taxation, the taxing master may –
(i) expel the party or attorney or both from the taxation and proceed with and complete the taxation in the absence of such party or attorney or both’. With regard to the meaning of ‘practice’ and ‘appear’, the High Court said that the LPA does not define ‘appear’, neither did its predecessors, namely, the Attorneys Act 53 of 1979 and the Admission of Advocates Act 74 of 1964. The High Court added that it found the term ‘appear’ in the context of s 25 of the LPA has no convoluted inner obscure meaning. The High Court pointed out that the term ‘legal practitioner’ means an advocate or attorney admitted and enrolled as such in terms of ss 24 and 30 of the LPA respectively. No mention is made of a certificate of right of appearance.
The High Court said that s 39(2) of the Constitution states that ‘when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’ The High Court pointed out that accordingly, judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section.
The High Court pointed out that both the preamble and s 3 of the LPA suggest that the LPA was enacted to transform the legal profession. Transformation within the legal profession must be seen as a commitment to the Constitution.
With regard to the Bills of Costs, the High Court said the matter was handed down in 1979 which is over four decades ago. During that time, there was no LPA, nor a transformative Constitution. The High Court pointed out that as things stand currently, the LPA as alluded to both in its preamble and in s 3, is transformative. It further gives effect to a fundamental right as contained in s 22 of the Constitution. The High Court said the common law position relied on in the matter of Bills of Costs should therefore be interpreted in light of the constitutional normative framework. Therefore, the common law relied on in the matter of Bills of Costs should be interpreted in light of the Constitution and the LPA which gives effect to the Constitution. The High Court said that the legal profession has been transformed as a result of the LPA. The transformation and restructuring goal, which the LPA seeks to achieve would be encroached, particularly when considering s 22 of the Constitution without justification. The High Court pointed out that the taxing master is not a court as contemplated in s 166 of the Constitution, therefore, there is no substantive reason why an admitted attorney should be deprived of the right to practice before a taxing master. That would be defeating the constitutional purpose and by extension the LPA itself, which gives effect to the Constitution.
The majority judgment made the following order:
‘(a) the words “appear” in the High Court, the Supreme Court of Appeal or the Constitutional Court, in terms of s 25(3) of the LPA, refer to appearance before judges of such courts, not to appearance before taxing masters of such courts, and that,
(b) any duly admitted and enrolled attorney may appear on behalf of their client before a taxing master of such courts.
(c) Each party is to pays their own costs.’
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2024 (June) DR 32.
