Phillips v Bradbury and Another

A party-to-party cost order was granted in favour of the City of Cape Town (second respondent) against Christine Phillips (applicant). The taxation of the bill of costs began before Taxing Master Bezana, who made rulings disallowing all items relating to the first respondent. The second respondent considered reviewing Bezana's decision but did not. Bezana left the Department before finalising the taxation. A new Taxing Master, Yalezo, took over and started the taxation afresh, holding he was not bound by Bezana's prior rulings. The applicant sought Yalezo's recusal for alleged bias, which Yalezo refused. The applicant then left the proceedings. The applicant sought review of Yalezo's decision, and after the matter was referred to court for decision under Rule 48(6)(a), the applicant applied for referral to oral evidence to resolve factual disputes.

• Whether the application for referral to oral evidence under Rule 6(5)(g) should be granted to resolve disputes of fact in a review of a Taxing Master's decision.
• Whether the factual disputes raised related to matters requiring factual findings or legal rulings.

The application for referral to oral evidence was dismissed with no order as to costs. The parties were directed to arrange a date for the court's consideration and decision under Rule 48(6)(iv).

Where disputes in a review application require rulings on law and not findings on fact, and the facts underpinning the legal issues are common cause, an application for referral to oral evidence under Rule 6(5)(g) should be dismissed as oral evidence would have no probative value on the legality or correctness of the impugned decision.

The court observed that the second respondent's 'u-turn' on reviewing Bezana's decision when the Taxing Master changed to Yalezo was 'simply too close for comfort', especially given unresolved allegations that the second respondent's cost consultant had attempted to ensure Yalezo heard the taxation.

This case clarifies the threshold for granting a referral to oral evidence under Rule 6(5)(g) in review proceedings, emphasising that such referrals are unnecessary where the core disputes are legal rather than factual in nature and the underlying facts are common cause.