Tadvest Industrial (Pty) Ltd v A Hanekom & Others

The applicant sought to review a taxation of costs by the taxing master. Two bills of costs were presented by the first to third respondents' attorneys based on costs orders in their favor following the dismissal of an application for leave to appeal and a subsequent reconsideration application in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013. At the commencement of taxation, the applicant objected on the basis that the respondents had concluded a settlement agreement after the costs orders in which they waived their claims to costs. The settlement agreement concerned litigation over land occupation and provided for the applicant to make financial contributions to relocate the respondents and included a clause stating it was in "full and final settlement of all disputes between the parties, and of all causes of action...including any cost orders or accrued costs in proceedings between the parties." The applicant also objected that the respondents' legal representation was State funded, no expenses were incurred, and the legal representatives were not entitled to claim costs. The respondents disputed the settlement agreement's applicability and asserted non-compliance with its terms. The taxing master considered the issues beyond his remit and proceeded to finalize the taxation.

• Whether a taxing master has jurisdiction to determine the validity and enforceability of a settlement agreement allegedly waiving costs orders
• Whether a taxing master has authority to review, reconsider or amend a costs order made by a court
• Whether a taxing master has jurisdiction to determine whether legal representatives funded by the State are entitled to claim costs
• What is the proper scope and limits of a taxing master's jurisdiction in the taxation process
• Whether the taxing master was correct to proceed with taxation despite the applicant's objections

The review of taxation was dismissed with costs.

A taxing master does not have jurisdiction to review, reconsider, amend or question the validity or enforceability of a costs order made by a court. The taxing master's function is limited to giving effect to court orders by determining reasonable fees to be recovered as between party and party for work done. Rule 17(3) reviews are confined to disputes about rulings by the taxing master in relation to specific items in a bill of costs that have been objected to or disallowed, and do not extend to contesting the costs order itself or its enforceability. Questions regarding the validity of settlement agreements allegedly waiving costs orders, the enforceability of costs orders, and entitlement to claim costs based on the nature of legal representation fall outside the ambit of a taxing master's powers and must be decided by a court with proper jurisdiction.

The Court noted that it appeared the questions raised regarding the respondents' attorneys' entitlement to claim costs when legal services were State funded was presently an issue before the taxing master in the Constitutional Court, though the question of waiver was not. The Court also observed that if the applicant wished to challenge the enforceability of the costs order on the basis of the alleged waiver, it was free to resort to legal process, possibly by approaching the court on the strength of the principle in Estate Garlick v Commissioner for Inland Revenue (which held that when a court has made an order of costs without hearing argument on it, the court is not functus officio), or by other legal means, though the Court declined to advise on the specific procedural route to be followed.

This case clarifies and reinforces the strict limits of a taxing master's jurisdiction in South African law. It establishes that a taxing master's role is confined to implementing and giving effect to costs orders made by courts, not questioning their validity or enforceability. The case provides important guidance on the proper forum for challenging costs orders on the basis of settlement agreements or other extraneous matters - such challenges must be brought before a court with proper jurisdiction, not in the taxation process. It emphasizes the functional separation between the judicial power to make costs orders and the administrative function of taxation. The judgment also clarifies the scope of Rule 17(3) reviews, limiting them to disputes about specific items in bills of costs rather than broader questions about entitlement to costs or the validity of the underlying costs order.