Default judgment principles and their applicability to the setting aside of a Taxing Master’s allocatur
In Barnard v Taxing Master of the High Court of SA (TPD) and others [2005] 2 All SA 485 (T), the applicant brought an application in terms of Rule 53 of the Uniform Rules of Court wherein he sought an order that the taxing master furnish reasons as to why his findings on taxation should not be taken on review. The applicant contended that several items appearing on the bill of costs which was submitted for taxation was incorrect, and the taxing master allocated amounts which were excessive and he did not apply his discretion when he allowed these amounts.
The court held that the applicant should have followed the procedure for the rescission of judgment. In this regard, as contemplated in the decision of Gründer v Gründer and Others 1990 (4) SA 680 (C), the taxing master’s allocatur is a quasijudicial administrative act: he must hear parties or their legal representatives (and if needs be also evidence) and exercise a judicial discretion. Inasmuch as proceedings before the taxing master constitute an action in miniature, commonlaw principles applicable to the setting aside of default judgment apply also to the setting aside of the taxing master’s allocatur. An order as to costs cannot be enforced without the taxing master’s quantification thereof and quantification done in the absence of one of the litigants ought to be open to challenge on the same basis as are default judgments. In the present case, notwithstanding the applicant’s reliance on the wrong procedure in attempting to have the taxing master’s allocatur set aside, the applicant could not satisfy the requirements set down for rescission of judgment, namely that (i) he should give a reasonable explanation for his default; (ii) his application must be bona fide and not be made with the intent to delay the opposite parties’ claim and (ii) he must show that he has a bona fide defence to the opposite parties’ claim.
