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IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 21061/2004
Date: 03/08/2007
UNREPORTABLE

IN THE COURT OF THE COMMISSIONER OF PATENTS FOR THE REPUBLIC OF SOUTH AFRICA

CASE NO: 97/10535
In the matter between
VARI-DEALS 101 [PTY] L TD tla V ARI DEAL	First Applicant
JILL BELINDA DRAK
Second Applicant
ZIMSTONE [PTY] LTD t/a ZIMSONE 
Third Applicant
KEITH ARNOLD MUNRO
Fourth Applicant
UWE FRIT
Fifth Applicant
SPECIALITY SEWING SERVICES CC
Sixth Applicant
GUTENBERG ORANGE ADVERTISING
Seventh Applicant
AND
SUNSMART PRODUCTS [PTY] LIMITED
Mr VON VOLLENHOVEN NO
First Respondent
Second Respondent

2

JUDGMENT
											
BOSIELO J
INTRODUCTION
1.1
The applicants and first respondent are locked in a fierce
legal battle relating to the use of a flag or banner. The first
respondent claims to have patent and design rights over
such a flag or banner. In an attempt to protect what it
perceives to be an unlawful use of its patent by the
applicants, it instituted proceedings in this court for an
interdict against the applicants. This dispute was referred to
oral evidence by this court during 2005.
1.2
It is common cause that the applicants had briefed one Adv
Bester, who allegedly is a specialist in intellectual property
law. The matter was enrolled for hearing on or about 4
November 2005. It then transpired that Adv Bester was not
available for the days on which the matter was enrolled. As
the applicants regarded Adv Bester as the only counsel
suitable for their case, they required a postponement. This
was vehemently opposed by the first respondent. Suffice to

1.3
1.4
3
state that there was a formal application for a postponement
which was heard in the urgent court before Patel J. Sadly for
the applicants the application was dismissed by Patel J with
costs on an attorney and own client scale.
Subsequent to the dismissal referred to in para 1.2 (supra),
the first respondent prepared a Bill of Costs for taxation by
the Taxing Master. It is not in dispute that the notice of
taxation together with the attached bills of costs was served
on the applicant's correspondents in Pretoria, viz Messrs
Hack, Stupel & Ross on 22 June 2006. It is furthermore not
in disputed that shortly thereafter Messrs Hack, Stupel &
Ross sent the said notice of taxation together with the bills to
the applicants' attorneys per telefax. It is common cause that
neither the applicants nor their attorneys attended the
taxation of the bill of costs by the Taxing Master on 15 June
2006 when the bills of costs were taxed in the amount of
R194302-44.
On or about 19 June 2006, the applicants' attorney received
a letter from the first respondents' attorneys demanding
payment of the taxed amount. According to the applicants'

1.5
4
attorney this was the first time he became aware of the
existence of the bills of costs. The applicants' attorney,
although admitting that the bills of costs and the notice of
set-down were duly sent to his offices by Messrs Hack,
Stupel & Ross, he is unable to explain why same was never
bought to his attention. In the circumstances, he accepted
that the fault lay at the door of his own office. Suffice to state
that after some exchanges of correspondence between the
respective firms of attorneys representing the parties, the
applicants' attorneys was advised by a letter dated 31
August 2006 from the first respondents' attorneys that the
first respondent declined to consent to a re-taxation of the
bills of costs. In the interm in and out of fear of execution
against their properties, the applicants paid the taxed amount
into the account of the first respondents' attorneys, without
the knowledge of their attorneys.
As applicants' attorney was concerned about the state of
affairs and the respondents' intransigence, he reported the
matter to his professional insurers, who in turn instructed a
specialist cost consultant to prepare an opinion regarding the
bills. Suffice to state that the specialist cost consultant, Ms

5
Belinda Patricia Spiers (Spiers) furnished her report on 7
August 2006. It is clear from Spiers' report, attached to the
papers as "Annexure J" that she was of the opinion that the
amounts taxed by the Taxing Master were grossly excessive
and in fact amounted to over-reaching. I find it necessary to
state that the Taxing Master filed reasons for the taxation
which are annexed to the papers as "Annexure CRJ". It is
clear from the Taxing Master's Report that amongst other, he
allowed higher tariffs on the basis that this matter was
complex due to the fact that it was a patent matter and
further that only specialist attorneys can do such matters
(see p 101). Furthermore, the Taxing Master held the view
that the mere fact that the bills of costs were in respect of an
application for a postponement only, that did not detract from
the fact the main application was a complicated patent
matter. As a result of this, the Master held, amongst others,
that this was “a complex postponement and that ±500 pages
of the main application became relevant to this application"
(see p 101). It is not in dispute that flowing from the above
perception, the Taxing Master permitted taxation at 3.5 more
that than the rate as prescribed by Rule 70.

1.6
1.7
6
It is important to note that at p 103, the Taxing Master
concedes that "the rulings made on the main bill had to be
applied to the correspondents bill. It does seem that this was
not done correctly. See for instance item 55 on the main bill
which was reduced to 1 ½ hours and item 58 on the
correspondents bill which was not reduced." Furthermore, at
the end of the report, the Taxing Master concedes further
that value added tax (VAT) should have been taxed off.
Relying amongst others, on the above- state concessions,
the applicants assert that there are reasonable prospects
that should there be a re-taxation of the bills of costs, the
bills might be appreciably reduced.
On the other hand, first respondent also filed a report by his
own specialist costs consultant. Sophia Avvakoumides who
severely attacked and criticised the report by Spiers. Suffice
to state that Avvakoumides supported the bills as taxed by
the Taxing Master and asserted that the Taxing Master had
applied her mind properly to the bills and further that the bills
are justified by that fact that they are based on an
"Agreement and Mandate between attorney and client,"
which was validly concluded between the respondents and

7
their attorneys? It is worth mentioning that the bills of costs
under attack were prepared by Avvakoumides. This in a
nutshell set the scene for this application before me.
2.
LEGAL SUBMISSIONS
2.1 It was argued on behalf of the applicants by Adv Segal that
whatever delay there was in bringing this application for
review and the setting aside of the Taxing Master's taxation of
the first respondents' bills and the concomitant allocatur is
satisfactorily explained in the application papers. Mr Segal
argued that it is abundantly clear from the actions taken by the
applicant's attorneys that no mala fide or unlawfulness can be
attributed to him in failing to attend the taxation of the bills. It is
clear from the papers that after he became aware of the taxed
bill, Mr Sklaar tried to resolve this with the respondents'
attorney. He also informed his insurers. In the process he
sought and obtained legal opinion. When it became clear that
the first respondent were not willing to accommodate him, he
took action. With respect, I agree with Mr Segal that the
applicants cannot be faulted for the delay which was caused
by the applicants' attorney valiant attempts to resolve the
problem amicably. To my mind the mistakes which occurred in

8
Mr Sklaar's office (the applicants' attorneys) which led to him
not attending the taxation is the sort of mistake which occurs
on a daily basis in attorney's practices. No evidence was
adduced to contradict Mr Sklaar's assertion that had he known
of the notice of set down for taxation, he would have attended
the taxation, In my view, his failure to attend the taxation is
excusable.
2.2 Regarding the actual amount taxed, Mr Segal argued
vigorously that the amount taxed and allowed is so grossly
excessive that it induces a sense of shock. He submitted that,
had the applicants been represented during the taxation, they
would have impugned a number of items on the bills which are
patently exorbitant and unjustified. Furthermore, he argued
that without failure, the applicants would have seriously
questioned the basis on which the Taxing Master found that
simply because the main application relates to a patent, ipso
facto, the application for a postponement is also complex and
deserved a higher tariff than an ordinary tariff. Mr Segal
argued further that the Taxing Master seriously erred in
allowing fees for both the instructing attorneys and the
Johannesburg's attorney for attending together to a simple

9
application for postponement which, quite paradoxically, was
argued by senior counsel. Another question to be raised is the
necessity of having two senior, experienced attorneys
attending to a postponement which was handled by a senior
counsel.
2.3 The other point raised by first respondents was the fact that
the applicants had already paid the taxed amount without any
protest or reservation of rights to challenge it. If I understood
the respondents correctly, the argument is that by paying the
taxed bill, without protest, the applicants waived their rights to
object to the taxation. In responding to this, Mr Segal
submitted that it is clear from the facts of this case that the
applicant never acquiesced in the taxed bill or waived their
rights to impugn same. He argued that it is patently clear from
the facts, that the applicants merely succumbed to the serious
threats of imminent execution based on the taxed bill simply to
avoid unnecessary inconvenience and the concomitant
embarrassment. It is not in dispute that the respondents made
it crystal clear that they intended to execute against the
applicants property. Mr Segal argues that payment by the
applicants of the taxed bill, in the circumstances, qualified to

10
be termed involuntary payment. For this proposition, Mr Segal
placed great reliance on the dictum by De Villiers JP in
Niehous v Eloff 19.13 at p 188 where the learned judge stated:
"Where a Court has ordered a judgment to be
carried into execution, the mere payment of
the amount or part thereof by the party
condemned to pay is no doubt consistent. A
fortiori it seems to me that where a person
pays, as in this case, under pressure, to avoid
judgment being taken against him the next
day, the doctrine of acquiescence cannot be
relied upon. The fact of payment is consistent
with
respondent's
acquiescence
in
the
taxation, but it is equally consistent with his
anxiety to avoid judgment taken against him.
In such circumstances, therefore, it cannot be
said that the act is such an unequivocal one
that the other party is justified in drawing the
inference that there has been acquiescence in
the judgment. With regard to the question of
waiver, for a man waive to his rights there
must be clear proof that he did so with

2.4
11
knowledge of the facts, and there is no proof
of that here.”
In reply, Mr Labuschagne SC (for first respondent) argued
that there
is ample
by one
Mr
expert evidence
Labuschangne that the tariffs agreed upon between
respondent and their attorneys were reasonable in the
specialised field of patent attorneys. In the alternative, Mr
Labuschangne submitted that it is incorrect to allege that the,
Taxing Master did not apply his mind to the bills as it clear
from copies of the bills that the Taxing Master did consider
the bills and reduced some of the items reflected in the bills.
Reliance was also placed on the admission by Spiers that
during the taxation, the Taxing Master asked many questions
about certain items in the bills. Mr Labuschange, submitted
that as were no longer tariffs applicable, the Taxing Master
was correct to accept the 'Mandate and Agreement' as the
starting point. He argued further that the Taxing Master was
correct in regarding the application for postponement as
being complex by virtue of the fact that reference had to be

12
made to the main application to justify the request for a
postponement.
3.
CONCLUSION
3.1 First respondent raised as a principal objection to this
application the fact that the applicants used a wrong
procedure. Mr Labuschagne argued that this matter cannot be
brought to court under Rule 53 nor under Promotion of
Administrative Justice Act 2000 (PAJA) as the applicants
failed to set the proper factual foundation out. As a result, he
argued that this application be dismissed. With respect, I
disagree with Mr Labuschangne. This issue is not novel and
has enjoyed the attention of our courts on various occasions.
I have found considerable support and guidance in the
judgment of the Road Accident Fund v Luzuko Sifimba &
Others Case No 21/02 514/02 (Transkei)as yet unreported
where in a similar situation, the learned Miller J expounded the
requirement for such an application as follows:
"The requirements for a rescission in matters where there
has been a default of appearance are well-known; they
being (1) that the applicant must give a reasonable
explanation of its defaults (2) that the application must be

13
bona fide and not made with the intention of delaying the
matter; (3) that the applicant must show that it has bona
fide defence or in a matter such as this, that there is a
reasonable prospect of the allocatur being reduced"
Furthermore, Miller J stated the following important
principle to the effect that "The court has discretion in
matters such as these and a measure of flexibility is
required in the exercise of the court's discretion. An
apparently good cause defence may compensate for a
poor explanation for the default and vice versa."
3.2 A similar approach was adopted in Grunder v Grunder En
Andere 1990 (4) SA 680 (CP) where the correct legal position
concerning the rescission of an allocatur granted by default
was stated as follows at p 685 B-H:
"Na my mening is die beginsel van die gemenereg wat by
die tersydestelling van vonnisse by verstek geld, ook, van toepassing op die tersydestelling van die allocatur van n
Takseermeester. Die allocatur van 'n Takseermeester word
nie normaalweg as 'n vonnis bestempel nie; dit word
normaalweg
gesien
as
'n
administratiefregtelike
handeling. Die uitspraak van 'n Hof is ook maar 'n

14
admimistratiefregtelike handeling, meer bepaaldelik 'n
regsprekende administrtiefregtelike handeling. Die pligte
van 'n Takseermeester by taksasie is kwasie-judisieel,
administratiewe handeling van regsprekende aard. Hy
moet partye of hul regsverteenwoordigers aanhoor,
desnoods self getuienis aanhoor, en 'n regterlike
diskresie uitoefen. Die verrigtinge voor hom is 'n geding in
die kleine.
Tersydestelling op gronde wat in De Wet and Others v
Western Bank Ltd (supra) vermeld word, geld stellig nie
ten
aansien
van
kwasie-judisiële
administratiewe
handelinge oor die algemeen nie. Ek hoef my nie hieroor
uit te laat nie. Die Kwasie-judisiele handeling van die
Takseermeester val egter in 'n besondere kategorie. In
Bills of Costs (Pty) and Another v The Registrar, Cape,
and Another 1979 (3) SA 923 (A) word die taksasieproses
so beskryf:
'It follows from what has been said above that
traditionally taxation has been, and still is, regarded as
an integral part of the judicial process and that the rights
and obligations of the parties to a suit are not finally

15
determined until the costs ordered by the Court have
been taxed.'
(Op 946B) Die takasie van koste is eintlik niks anders as 'n
kwantitisering
van
die
aanspreeklikheid
wat
die
kostebevel van die Hot oplê nie. Laasegenoemde word in
algemene terme gegee en is, sonder die Takseermeester
se medewerking, onvolledig en inderdaad onafwingbaar.
Ek kan geen rede sien waarom 'n litigant daardie gedeelte
van 'n vonnis teen hom wat deur die Takseermeester
gekwantitiseer word, as dit in sy afwesigheid gedoen
word,
nie op
dieselfde
wyse kan aanveg as 'n
verstekvonnis wat die Hot teen hom verleen nie."
Based on the above exposition, I am satisfied that Mr
Labuschagne's submissions are wrong.
3.3
have
given
this
matter anxious
and
careful
consideration. Without dealing with each and every item
as taxed by the Taxing Master, I am of the view that the
Taxing Master seriously misdirected himself in a number
of crucial issues which had an adverse and serious
effect on the taxation. It is clear that the misdirection

3.4
16
influenced him seriously in considering the bills. To
demonstrate the point, firstly it is clear to me that to a
large extent the Taxing Master was influenced to regard
this application for postponement as complex simply
because it relates to a patent matter. In my view, this
was a simple application for a postponement which
required no special legal or forensic skills. The fact that it
relates to a patent matter, is to my mind, an irrelevant
consideration.
However it is clear that the mere fact that it relates to a
patent matter was unfortunately, given undue and
unnecessary weight by the Taxing Master. In all
probability, this is the most important fact which unduly
persuaded the Taxing Master to allow fees to two senior
specialist patent attorneys attending to a postponement
whilst assisted by a senior counsel. In my view, this
cannot be justified. I cannot think of any logical and
cogent reason why the instructing attorneys in Durban
and the correspondent in Johannesburg deemed it
expedient and necessary to attend court in Pretoria
whilst there was a senior counsel who was breifed to

17
oppose a postponement. In my view, this is an abuse of
the system which regrettably resulted in extremely
exorbitant fees being allowed. Undoubtedly this was an
unnecessary duplication of legal services. This, in my
view, is an aspect which, if properly raised with the
Taxing Master, can significantly reduce the taxed bill.
3.3. It is clear that the Taxing Master considered himself bound
by the 'Mandate and Agreement' entered into by the parties.
Inasmuch as the Taxing Master has a duty to honour such
an Agreement which is properly and freely concluded by all
parties, the Taxing Master has a duty to ensure that the fees
taxed are justified, fair and reasonable. I do not think that the
existence of the 'Mandate and Agreement' should be
construed as giving any attorney a carte blanche to charge
and levy whatever fees he or she wishes to charge. It
remains an established and salutary principle of our judicial
system that attorneys irrespective of status or the nature of
the cases which they handle, are entitled to charge
reasonable fees for services rendered. Needless to state that
no attorney is entitled to over-reach his or her client under
the guise of a special 'Mandate and Agreement' concluded

18
with client. I regret to state that such a practice, if left
unchecked, would, without failure, open the doors wide for
abuse. No court can countenance such a practice which will
invariably precipitate the attorneys' profession into serious
disrepute. Needless to state that poor litigants would be left
unprotected and at the mercy and conscience of attorneys.
In my view, such a state of affairs cannot be countenanced. I
hold the view that the Taxing Master still retains a duty and
responsibility, notwithstanding any private agreement on fees
between attorneys and their clients, to determine, whether
the fees charged by attorneys are reasonable or not. For
very good and convincing reasons, various courts have
expressed serious concern and stern warnings against
allowing such a practice to flourish unchecked. This salutary
warning was more pointedly articulated by Van Dykhorst J in
Ben Macdonald Inc and Other v Rudolph and Other 1997 (4) SA 252 (1) at 258 C where he stated the following
"	My approach that in attorney and own client
bills which have to be paid by the other party, the
attorney should not be given a free hand,
untrammelled by the frown of the taxing master, is
in conformity with the approach of the Appellate

19
Division in Nel v Waterberg Landbomers Ko-
operatiwe Vereeniging 1946 AD 597and 608. The
Appellate Division, in placing its stamp of approval
on attorney and client costs, still insists that a
stricter approach, on taxation where the bill is
taxed against the losing party it is essential.........
to prevent injustice to the latter	A court may
castigate a party in an award of, costs, but will not
countenance unjust treatment. "
Later at p 258 H Van Dykhorst J expressed the principle
more clearly and elegantly as follows:
"There is a further consideration. A court awarding
costs to be taxed on the basis of attorney and own
client, has in mind that such costs should be
reasonable and not unreasonable, exorbitant or
agreed upon collusively. It follows that even faced
with a written agreement between attorney and
client as to the work to be done, or fees to be
charged therefore, the taxing master is still
empowered to enquire into the reasonableness of
such agreement".

20
It is not without significance that in Cambridge Plan AG v
Cambridge (PTY) LTD and others 1990 (2) SA 574 (T) Swart
J, had reason to sound a serious warning in the following
clear but colourful terms
"	Any Agreement by the cost creditor to pay
his attorney at rates exceeding the tariff, and
particularly the reasons for such agreement, are
obviously relevant to
the question
whether
adherence to the tariff would be inequitable, and
due consideration must be given
to such
agreement and the reasons for making it. But, there
is, in my view, no rule for any general rule or
practice to the effect that any agreement that the
costs creditor may have made with his own
attorney to pay fees, at rates exceeding the tariff
must serve as the prime indicator, or principle (sic)
guideline, for determining what amounts to a
reasonable rate of remuneration to be paid by the
costs debtor. Any such rate or practice would
obviously be open to abuse and would facilitate the
unjust oppression of the debtor inconsistently with
Nel. "

3.4
3.5
21
I am satisfied on the facts of this matter that the Taxing
Master seriously erred, in considering himself bound by the
"Agreement and Mandate" in terms whereof the costs
creditor agreed to pay his attorneys at a much higher rate
than the one ordinarily allowed. Furthermore, I am satisfied
that the Taxing Master was improperly influenced to award
costs at a much higher tariff (3.5) by his acceptance of the
fact that this application for postponement was made
complex by the fact it related to a patent matter. It is
precisely as a result of this misdirection that the Master
accepted that the cost creditor was justified to be
represented during the application for a postponement by
two senior attorneys as well as senior counsel. I have no
doubt that if the costs debtor was represented during
taxation, these issues, which had a profound effect on the
ultimate bill, would have been debated with the Taxing
Master.
Based on the reasons adverted to above, I have no doubt
that there is a strong likelihood that should the bill be re
considered,
it may be appreciably reduced.
In the

22
circumstances, and for the reasons adverted to above, I am
of the view that justice and fairness require that the allocatur
made by the Taxing Master in the applicants' absence be set
aside. In the peculiar circumstances of this matter, it have no
doubt that will be in the best interests of both parties that this
matter be remitted to the Taxing Master for proper
reconsideration where both parties will be afforded an
opportunity to debate whatever issues they may wish to raise
with the Taxing Master.
Having given this matter careful consideration, I hereby make
the following order:
1. The taxation of the bills of costs drawn on behalf of first
respondent together with the allocatur made by the
Taxing Master pursuant thereto are hereby set aside.
2. The matter is remitted to the Taxing Master to be re
enrolled for a fresh taxation.
3. First respondent is ordered to pay the costs of this
application.

23
L.O BOSIELO
JUDGE OF THE HIGH COURT