Penwill v Penwill N.O. and Others

This matter arose from a bitter family dispute between two brothers, Andrew Donald Jonathan Penwill (Mr A D Penwill) and Richard Douglas Penwill (Mr R D Penwill), over inheritance involving the Beverly Trust, a family trust established by their late father. The trust was the sole shareholder in D J Penwill Properties (Pty) Ltd, which owned several farms. The original dispute concerned the validity of their deceased mother's will. Mr A D Penwill failed before the High Court and Supreme Court of Appeal. He then approached the Constitutional Court for leave to appeal, which was dismissed with costs for lack of reasonable prospects of success. He subsequently applied for rescission, which was also dismissed, followed by another application alleging the Registrar (not the Court) dismissed his rescission application, which was also dismissed. The Constitutional Court's Taxing Master then taxed the costs awarded when the leave to appeal was dismissed. Mr A D Penwill, acting in person, did not attend the taxation (claiming illness) but subsequently challenged certain items in the bill of costs under a stated case procedure. A warrant of execution and notice of attachment were issued against his movable property to satisfy the taxed costs. Mr A D Penwill sought to set aside the warrant and notice of attachment, challenging the taxation itself.

• Whether the Taxing Master correctly applied the applicable tariffs under the SCA Rules when taxing various items in the bill of costs
• Whether the Taxing Master was correct in allowing R47.00 per page for perusal of an affidavit drawn by counsel instructed by the attorneys claiming the costs (item 23)
• Whether the warrant of execution and notice of attachment should be set aside given the challenge to the taxation
• What standard of review applies when reviewing a Taxing Master's decisions on taxation of costs

1. The sum of R1,504.00 allowed at taxation in respect of item 23 of the bill of costs is set aside and substituted with the sum of R384.00. 2. The warrant of execution issued on 19 October 2018 in respect of the movable property of Mr Andrew Donald Jonathan Penwill is set aside. 3. The notice of attachment issued on 6 December 2018 pursuant to the warrant of execution is set aside. No order as to costs.

When taxing costs, Part C 3(c) of rule 18 of the SCA Rules applies to the perusal by an attorney of an affidavit drawn or settled by counsel instructed by that attorney, prescribing a tariff of R12.00 per page. This provision takes precedence over the general provision in Part C 3(a) for perusal of affidavits (R53.00 per page) because it is a specific provision. The lower tariff in Part C 3(c) is justified because the attorney is perusing an affidavit concerning their own client's case with which they are familiar, unlike the opposing side's documents which require more careful perusal. A court will interfere with a Taxing Master's decision only when satisfied that the Taxing Master was clearly wrong or the Taxing Master's view differs so materially from the court's that it vitiates the ruling. While Taxing Masters are afforded wide discretion, misapplication or misinterpretation of set tariffs (which form part of the applicable law) constitutes a clear error warranting intervention.

The Court noted the broader context of this being "the final round of this sorry saga of bitter litigious feuding between two brothers" involving a dispute "embedded in rivalry, jealousy, greed and hatred." The Court also addressed, without deciding, the constitutional question of whether it would be compliant for a single Judge or fewer Judges than the constitutionally set quorum of eight to determine a review of taxation, opting instead to have the full Court decide the matter under rule 17(6)(a)(iv) of the SCA Rules and section 173 of the Constitution. The Court observed that at the Supreme Court of Appeal, such reviews may be entertained by a single Judge. The Court also noted that in disputes relating to quantum of fees allowed by a Taxing Master (where no set tariff applies), courts are particularly slow to interfere with the Taxing Master's assessment of what is fair and reasonable.

This case clarifies the application of different tariff provisions under Part C of rule 18 of the SCA Rules (as applied to the Constitutional Court) when taxing bills of costs. It establishes the important distinction between Part C 3(a) (general perusal of affidavits at R53.00 per page) and Part C 3(c) (perusal of affidavits composed or corrected by counsel instructed by the attorney at R12.00 per page). The case demonstrates that while courts afford Taxing Masters wide discretion and will not lightly interfere with their decisions, clear errors in applying set tariffs—which form part of the applicable law—will warrant intervention. The judgment also confirms that the Constitutional Court will intervene to set aside execution processes when the underlying taxation is successfully challenged and the amount changes. The case serves as a reminder of the importance of correctly identifying and applying the specific tariff provisions in the Rules.