Minister of Police v Lubabalo Guntu

The respondent instituted a damages claim against the applicant (Minister of Police). The applicant failed to deliver and file expert medico-legal reports, resulting in a court order on 18 April 2023 compelling delivery within 60 days and mulcting the applicant in wasted costs. The respondent's attorneys prepared a bill of costs and delivered it to the State Attorney's office by email on 25 April 2023. The bill was taxed and allowed on an unopposed basis on 7 June 2023. The taxed bill was delivered to the State Attorney on 14 June 2023. The applicant allegedly received the bill in September 2023 and instructed objections to certain items. On 11 December 2023, the applicant issued an application for rescission of the allocatur, which was served on the respondent on 8 January 2024. The applicant sought condonation for the late filing.

• Whether sufficient explanation was provided for the delay in bringing the rescission application
• Whether good cause exists for the allocatur to be rescinded and set aside
• Whether the applicant was properly served with notice of taxation
• Whether the applicant's absence from taxation was elected or precluded
• Whether the applicant is entitled to rescission relief given willful default

The application was dismissed. The applicant was ordered to pay the respondent's costs on scale A of the amended uniform rule 67A.

A party who receives due notice of taxation but elects not to attend or object to items in the bill of costs is in willful default and not entitled to rescission of the allocatur. Such elected absence amounts to consent to taxation in absentia. The principles applicable to rescission of default judgments apply equally to rescission of a Taxing Master's allocatur, requiring an adequate explanation for default. Review of taxation under Uniform Rule 48(1) is only available to a party who objected to the items sought to be reviewed at the time of taxation. Electronic service of notice of taxation satisfies the requirements of Uniform Rule 70(4)(a) where the Taxing Master is satisfied that due notice has been given to the party affected.

The court observed that there is a distinction between an application for rescission of taxation and allocatur versus an application for review of taxation and a taxed bill of costs, noting these are governed by different rules and procedures. The court noted that the Taxing Master was not cited as a party to the proceedings, making it difficult to assess how the Taxing Master satisfied himself/herself of due notice as required by Rule 70(4)(a), leaving the court to assess the chronology of events before and after taxation. The court commented that acknowledgment in correspondence of receipt of a taxed bill and expression of willingness to settle it is inconsistent with a later claim of non-service or improper notice.

This case reinforces important principles regarding taxation of costs in South African civil procedure. It confirms that: (1) the principles for rescission of default judgments apply equally to rescission of a Taxing Master's allocatur; (2) a party who receives notice of taxation but elects not to participate is in willful default and not entitled to rescission relief; (3) electronic service of notice of taxation is valid and effective; (4) acknowledgment of receipt of a taxed bill and willingness to settle it constitutes evidence against a claim of non-service; and (5) review of taxation under Rule 48(1) is only available where objections were raised during the taxation process. The judgment applies the Constitutional Court's distinction in Zuma between elected absence and precluded absence to taxation proceedings, clarifying that rescission remedies exist to protect litigants whose presence was precluded, not those whose absence was elected.