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Commentary

 

Form. Notice of intention to tax bill of costs, 26.

 

General. This rule deals with the taxation of attorneys’ costs in civil matters. It has been said that the taxation of such costs ‘is a regulating procedure based upon notions of fairness and practicality and designed to effect a just balance between the fruits of victory and the burden of defeat in the sphere of litigation expenses’.

Costs are awarded to a party to litigation, and not his attorney, and the purpose of taxation is to determine the reasonable charges and disbursements the successful party can fairly claim from the unsuccessful party.

See further the excursus on costs s v ‘Costs in General’ in Part D5 below.

 

Subrule (1): ‘The taxing master.’ All bills of costs, whether party and party or attorney and client bills, must be taxed by the duly appointed taxing master of the court. The registrar of the court is the taxing master and is appointed by the Minister in terms of s 11 of the Superior Courts Act 10 of 2013, as to which see Volume 1, Part A2. This does not mean that the registrar is an official who wears two different hats appertaining to two different offices: there is one office, that of registrar, and one of the registrar’s duties is to tax bills in which capacity he is referred to as the taxing master.

It is the taxing master of the High Court in which the litigation took place that has jurisdiction to tax a bill of costs in respect of services rendered in connection with such litigation.

 

‘Shall be competent to tax.’ The taxing master derives his authority to tax bills of costs from this subrule. It is through the process of taxation that control is exercised over costs that may be legally recovered. The purpose of taxation is twofold: ‘… firstly, to fix the costs at a certain amount so that execution could be levied on the judgment and, secondly, to ensure that the party who is condemned to pay the costs does not pay excessive, and the successful litigant does not receive insufficient, costs in respect of the litigation which resulted in the order for costs.’

The function of the taxing master is, therefore, to decide: ‘… whether the services have been performed, whether the charges are reasonable or according to tariff, and whether disbursements properly allowable as between party and party have been made; his function is to determine the amount of the liability, assuming that liability exists, and the fact that he requires to be satisfied that liability exists before he will tax does not show that there is any liability. The question of liability is one for the Court, not for the Taxing Master.’

The practice and procedure as laid down by the taxing master should be followed by the assistant taxing masters, leaving the parties interested to bring the matter before the court if so desired.

In Bills of Costs (Pty) Ltd v Registrar, Cape NO the question was considered whether an unqualified person, such as a ‘taxing consultant’, has a right of audience before a taxing master on behalf of a party to a bill of costs which is being taxed. The Appellate Division held that taxation is an integral part of the judicial process and that, accordingly, the only persons who can appear before a taxing master in a Supreme Court are persons who are permitted to practice in such court.

The taxing master’s functions are circumscribed and he does not have the jurisdiction to, inter alia, adjudicate defences of payment and prescription, to assess the nature and extent of a plaintiff’s claim and a defendant’s counterclaim, to determine whether an attorney acted without a mandate or exceeded it, to determine whether or not an attorney and his client had agreed that the former would render his services in respect of an application for a fixed predetermined fee, or to determine the validity of an agreement providing for an obligation to pay costs that are to be taxed.

 

‘Any bill of costs.’ A bill of costs must be a complete bill of the whole of the fees, charges and disbursements in respect of the particular business done. The business or action to which it relates should be specified item by item. Each item must be dated and should state its subject matter precisely and not in vague and general terms. Each item must be charged specifically.

In Greenberg v Mortimer it was held that in principle there can be no partial taxation of a bill of costs: a taxing master is obliged to tax a bill properly submitted for taxation and, subject to a postponement of the whole taxation, a party presenting an imperfect bill of costs bears the risk of non-persuasion.

A taxing master is not empowered by this subrule to tax the bill of costs of a foreign attorney, i e one practising outside the Republic of South Africa and not subject to the discipline of any one of the divisions of the High Court. Such a foreign bill of costs may, however, be taken into account by the taxing master in the same way as any voucher for work done in connection with a law suit. The taxing master must not take the foreign bill at face value but must scrutinize it and, depending upon the circumstances, place a greater or lesser degree of reliance upon a certificate emanating from his opposite number in the foreign court.

 

‘For services actually rendered.’ Charges for work not actually done cannot be allowed on taxation on the ground that other work has been done for which a charge has not been made.

 

‘In connection with litigious work.’ The term ‘litigious work’ (and the term ‘hofwerk’ used in the Afrikaans version) in this subrule includes work pertaining to courts of law in the strict sense (like the High Court and the magistrates’ courts) as well as other bodies which bear the name ‘court’ and function as if they were courts of law applying legal principles and not administrative discretion in the settlement of disputes.

All costs recoverable in terms of a judgment are covered by this subrule and a judgment creditor is not obliged to pay collection costs to his own attorney and, accordingly, is not entitled to recover such costs from the judgment debtor.

 

‘In accordance with the provisions of the appended tariff.’ While rule 70(5) confers a discretion on the taxing master to depart from any provisions of the tariff, the discretion is confined to extraordinary or exceptional cases. In general, therefore, the tariff must be rigidly applied. The tariff does not purport to place with scientific precision a monetary value upon every type of service rendered by an attorney: it aims at determining the remuneration of attorneys in outline and in a fairly rough, though empirical manner.

There is no tariff prescribed in respect of fees as between attorney and client, but in practice the appended tariff is used as a guide in the taxation of such fees. When taxing a bill between an attorney and his own client, the taxing master is empowered, and indeed in duty bound, to satisfy himself that the fees claimed relate to work actually authorized and that the fees charged are reasonable. If an attorney has agreed with his client in respect of certain work a remuneration higher than that laid down in the tariff under this rule, the taxing master is empowered to enquire into the reasonableness of such an agreement. A taxing master is entitled to become fully informed, either by own enquiry or by evidence placed before him, of ruling rates and current practices.

 

Proviso: ‘Where some other officer is empowered to do so.’ The Master is entitled to tax a liquidator’s bill for his services rendered in connection with the liquidation of a company and a trustees’s bill against an insolvent estate.

 

Subrule (2): ‘May call for such … documents.’ The documents which taxing masters invariably peruse are instructions to the advocate, documents discovered, statements of witnesses and the advocate’s advice on evidence in trial actions. As the taxing master is, in a sense, a court, he is bound to guard zealously the interests of litigants, and to scrutinize carefully each item in a bill, and in order to give just and equitable decisions it is his duty to call for books, documents, papers or accounts. See further the notes to rule 70(3B)(a) below.

 

Subrule (3): General. This subrule follows the wording of the former Cape rule 47(4) which was thoroughly examined in a number of cases. The purpose of the subrule has been stated to be the following:

‘It is a Rule which determines the taxation of party and party costs. It not only authorizes but requires that its injunction shall be applied with a specific object. The object is that the party to whom costs are awarded is afforded “full indemnity” for every expenditure “reasonably incurred by him in relation to his claim or defence”. It is expressly added that the object is also to ensure that “all such costs” shall be borne by the party against whom the order has been awarded. In order to achieve those objects the Taxing Master must allow all costs, charges and expenses which appear to him to have been “necessary or proper for the attainment of justice” in the case of a plaintiff (or the defending of his rights by any other party). The Rule accordingly requires that an expenditure of a type which it was reasonable to incur must be allowed. The extent of allowance must be on the level of what is “necessary or proper” in order to have his case duly presented. It is not for a Court charged with the

merits or the determination of liability for costs to compensate for a perceived inadequacy in the operation of the Rule by awarding costs on an attorney and client scale so that a “full indemnity” of more comprehensive scope is achieved than the one which the Rule maker envisaged.’

In Trollip v Taxing Mistress, High Court the full court stated that the intention of the subrule ‘is to ensure that the ultimate winner of a suit should not have the fruits of victory reduced by having to pay too high a proportion of his or her costs by way of an attorney and client bill’.

There is nothing in the subrule which draws any distinction between application proceedings and other proceedings. Though, as a general rule, fees for settling affidavits by counsel and charges for consultation with counsel on an application are not allowed as between party and party unless the application involves complicated factual or difficult legal issues, this does not mean that such charges can only be allowed where the application is complicated and involves difficult legal issues. The proper test is that stated in rule 70(3): having regard to the issues of fact or law involved in the case, was it reasonable and not overcautious for the attorney to brief counsel to settle affidavits filed on behalf of his client? See further the notes to rule 69(5) s v ‘Affidavits’ and ‘Applications’ above.

The taxing master is, in terms of the subrule, afforded a discretion. While it is permissible, and indeed often useful, for the court in its issues for the assistance and guidance of the taxing master, judges should not usurp the taxing master’s role and functions. The court should, therefore, not make special orders as to costs which have the effect of binding the taxing master unnecessarily.

In Trollip v Taxing Mistress, High Court the full court held that a taxing master is required to approach the task of taxing a bill of costs with an open mind.

 

‘A full indemnity.’ Subject to the specified exceptions, this subrule is intended to give to the successful party a full, not a partial, indemnity for all costs reasonably incurred in relation to any legal proceedings. However, owing to the operation of taxation such an award of costs is seldom a complete indemnity; but that does not affect the principle involved.

 

‘For all costs reasonably incurred.’ The touchstone is for expenditure to be allowed which has been reasonably and properly incurred. It is the duty of the taxing master to ensure that fees are reasonable and that expenditure claimed were reasonably incurred.

Costs may be reasonably and properly incurred within the meaning of the rule, even though they may not have been strictly necessary at the time they were incurred, or at all. Depending on the circumstances, costs may be reasonably and properly incurred before the institution of legal proceedings. If counsel’s fee is a reasonable one, it should be allowed in full without deduction.

If there is a dispute as to whether the costs of medical experts should be allowed the taxing master has to apply his mind and exercise his discretion to determine whether these costs must be allowed.

 

‘In relation to his claim.’ The plaintiff is entitled to a full indemnity for every expenditure reasonably incurred in relation to his claim, but he is not entitled to a special order as to costs, such as an order of costs on an attorney and client scale, to compensate for any alleged or perceived inadequacy in the operation of this rule and the tariff appended thereto. In addition, owing to the necessary operation of taxation, an award of costs is seldom a complete indemnity.

 

‘Or defence.’ While costs are awarded to a successful defendant in order to indemnify him for the expense to which he has been put through having been unjustly compelled to defend litigation, the award is seldom a complete indemnity owing to the necessary operation of taxation.

 

‘As appear to him.’ The discretion vested in the taxing master is to allow costs, charges and expenses as appear to him to have been necessary or proper; not those which may objectively attain such qualities. His opinion must relate to all costs reasonably incurred by the litigant, which imports a value judgment as to what is reasonable. A court should not usurp the taxing master’s role and functions. See further, in this regard, the notes s v ‘General’ above.

 

‘To have been necessary or proper.’ ‘Reasonable costs’ have been equated with such costs as are ‘necessary or proper for the attainment of justice or for defending the rights of any party’. Whether or not a particular item of expenditure is an allowable expense depends upon the circumstances of each particular case — thus the question whether or not the costs of obtaining a copy of evidence during a trial is a necessary expense and therefore recoverable on a party and party basis must be resolved in the light of the circumstances of each particular case. One of the functions of the taxing master is to decide whether the services for which fees have been charged and a bill of costs prepared have actually been rendered. The taxing master is entitled to demand proof that the services for which payment is demanded have actually been rendered. Should the taxing master fail to do this, the successful respondents may seek to obtain payment from the unsuccessful applicant in respect of fees of attorney and counsel where services were not actually rendered to those respondents by attorney or counsel.

In Trollip v Taxing Mistress, High Court the full court stated:

‘[20] While a taxing master may not ignore evidence that may show that work that has been charged for has, in fact, not been done, this does not mean that there is a duty upon practitioners to ‘prove their claims’, as it were. The legal profession is a ‘distinguished and venerable profession’ and its members are officers of the court. As a result, ‘absolute personal integrity and scrupulous honesty’ are expected of them. It follows that a taxing officer is entitled to take counsel’s fee list at face value as constituting a record of the work that has been done. The honesty and professional ethics of counsel ought not to be lightly questioned.’

As a taxing master must have a full picture before him, in order to determine just remuneration for work done, he may have to determine disputes of fact. In Trollip v Taxing Mistress, High Court the full court in this regard referred to what was said in Brener NO v Sonnenberg, Murphy, Leo Burnett (Pty) Ltd (formerly D’Arcy Masins Benton & Bowless SA (Pty) Ltd) of this function:

‘In the light of this discussion of the authorities, I am of the opinion that the Taxing Master has the power, and in some instances (rare though they may be) the duty, to hear oral evidence on disputed questions of fact arising out of the taxation before him. It follows, in my view, that in the occasional instance in which the Taxing Master hears oral evidence, it must be taken to be his duty to keep a record of that evidence, and of his findings of fact based upon the evidence. Therefore, when the Taxing Master is required in terms of Rule 48(1) to state a case in respect of a matter in which he has heard evidence, he will not be expected to rely entirely on his memory, and the record kept by him will assist him in drawing up the stated case.’

 

‘Incurred or increased through over caution.’

What constitutes over caution depends upon the circumstances of each particular case. Thus, it has been held that a plaintiff’s attorney was not entitled, as between party and party, to embark upon investigations as the result of an allegation which had not been raised by the defendant in the pleadings — his proper course was to await an amendment in the proper form. On the other hand, it has been held that a party and his attorney are entitled to investigate, with the least possible delay, the circumstances relating to the events giving rise to a claim and the facts and evidence which might be available to support the claim.

 

‘By payment of a special fee to an advocate.’ This subrule precludes the allowance, in a party and party bill, of expenses incurred by payment of a special fee to an advocate, such as one made on the ground that he was required to appear in a division of the High Court other than that in which he normally practises.

 

‘By other unusual expenses.’ The costs incurred in obtaining counsel where there had been an unjustified withdrawal by counsel who had initially accepted the brief are ‘unusual expenses’ within the meaning of this subrule.

 

Subrule (3A): ‘Value added tax.’ This subrule is an empowering provision. It enables the party concerned to claim reimbursement of the items referred to but obliges the taxing master to allow or disallow them depending on whether they are expenses as contemplated in the subrule.

Whether VAT is chargeable depends on the application of the relevant statutory provisions, properly construed, to the facts. If VAT has been included in the bill of costs, at the choice of the party concerned, it is the function of the taxing master to decide whether such inclusion is proper or not. In this regard the taxing master does not have a discretion. Thus, the winner has to satisfy the taxing master that the items in the bill of costs are costs in the true sense, i e expenses which actually leave the winner out of pocket.

 

Subrule (3B): General. Failure by the party who has been awarded an order for costs to satisfy the taxing master that due notice in terms of this subrule was given to the party liable to pay costs will, save in the exceptional circumstances provided for in subrule (4), effectively bar the taxing master from proceeding to the taxation of the bill of costs concerned. See further subrule (4), and the notes thereto below.

 

Subrule (3B)(b): ‘Within twenty (20) days, a written notice of opposition.’ The taxing master has no power to condone the late filing of the notice of opposition.

 

Subrule (4): ‘The party liable to pay.’ Notice of taxation must be given to the party who is primarily liable therefor.

Subrule (4)(a): ‘Received due notice.’ The provision that a taxing master shall not tax a bill unless he is satisfied that the party liable to pay the same has received due notice as required by this subrule is imperative. Substantial compliance (‘wesentlik stiptelike nakoming’) with the provisions of the subrule is sufficient.

Notice of taxation may be given at a chosen domicilium citandi et executandi.

If a party deliberately evades notice of taxation, the court can assume that the judgment creditor has complied with the subrule, i e the court is entitled to apply the doctrine of fictional fulfilment.

The provisions as to notice are for the protection of the party who has to pay the costs, and may consequently be waived by him, but such waiver, as in every case of waiver, must be clear before the court will accept that there has been a waiver. Appearance at the taxation without taking objection to the lack of notice amounts to waiver of notice. Waiver can also arise where instead of applying for a review on the ground of lack of notice, the aggrieved party seeks a review of taxation in regard to the items allowed against him by the taxing master.

If a third party has agreed, prior to taxation, to pay certain taxed costs between litigants there is no obligation in law that before such costs can be recovered from such party notice of taxation must be given him, nor is there any procedure for taxing such costs against such party. Where, however, a third party has guaranteed payment of costs incurred and to be incurred by a litigant with his attorney, and action was taken against him on a taxed bill of costs (after notice to the litigant), the court on objection raised by the guarantor ordered the bill to be retaxed after notice to him.

If a third party is joined by service upon him of a third party notice in terms of rule 13(5) and becomes liable for costs jointly and severally, he is entitled to receive notice of taxation and be present at the taxation.

 

Subrule (4)(b)(i): ‘Has consented … to taxation in his or her absence.’ If an attorney taxes his client’s attorney and client bill in his client’s absence in terms of this subrule, such taxation, though perfectly valid and proper as against the attorney’s own client, is not in law a step or proceeding against a third party.

 

Subrule (4)(b)(ii): ‘Failed to give notice … to oppose in terms of subrule (3B).’ See the notes to subrule (3B) above.

 

Subrule (4)(b)(iii): ‘For the taxation of writ and post writ bills.’ No notice is necessary for the taxation of writ and post writ bills as in these cases the tariff of fees is fixed. See items A5 and D7 of the appended Tariff of Fees of Attorneys above.

 

Subrule (5)(a): ‘To depart from any of the provisions of this tariff.’ This subrule explicitly confers a discretion on the taxing master to depart from any provisions of the tariff where strict adherence to such provisions would be inequitable. ‘Tariff’ in the subrule does not refer merely to the tariff’s actual figures but also to the items themselves. In other words, the taxing master is entitled in extraordinary circumstances to depart from the provisions of the tariff by allowing an increased fee for an item specified in the tariff, or for a matter not specified in the tariff at all.

 

‘In extraordinary or exceptional cases.’ The discretion conferred upon the taxing master to depart from the provisions of the tariff is confined to extraordinary or exceptional cases.

The taxing master’s discretion under this subrule permits him to allow, in exceptional circumstances, either a greater or a lesser fee than that prescribed in the tariff.

The mere fact that a case has many factual issues which will cause it to be much longer than the average case does not in itself make it an extraordinary or exceptional case so as to bring every item of work within the ambit of this subrule.

Although the tariff in rule 70 is intended for the taxation of party and party costs, the taxing master must use it as a guide in the taxation of (i) penal costs to be paid by a defeated adversary (‘costs on attorney and client scale’ ); and (ii) those due to a client’s own attorney ('attorney and own client costs'). The taxing master has a discretion, when taxing any bill of costs, to depart from the tariff on the basis of what is fair and reasonable, and in particular with reference to the express provisions of rule 70(5).

If an attorney and that attorney's client have agreed on fees and there is a complaint that the fees agreed are not reasonable, the taxing master must exercise his discretion to determine the reasonableness of the fees, which determination may (i) be identical to the tariff in rule 70; or (ii) be different, and at a higher rate.

In the absence of an agreement between an attorney and that attorney's client about fees to be paid by the client to the attorney for services rendered, the taxing master must exercise his discretion to determine reasonable fees, which may (i) be identical to the tariff in rule 70; or (ii) be different, and at a higher rate. Departures from the tariff must be informed by principle, rather than amount to a standardized award of a multiple of the tariff. The rote doubling or tripling of the tariff to arrive at the 'attorney and client' and 'attorney and own client' rates does not amount to a proper exercise of the taxing master's discretion and will be liable to be set aside on review.

The following statement of the various principles of taxation as between attorney and client which are applicable in the following cases, has often been cited with approval:

'(1) Where the costs are payable by the client to his or her attorney; or where the costs are payable out of a fund belonging entirely to the client.

(2) Where the costs are payable out of a general or common fund.

(3) Where the costs are payable out of a fund which belongs to other parties and in which the party has no interest, or where the costs are payable by one party to the other.

(4) Where the attorney and client costs are to be paid by the opposite party—Nel v Waterberg Landbouwers Kooperatiewe Vereeniging 1946 AD 597 at 608.

The taxation in the case of (1) is more generous than in the case of (2) and (3), while in the case of (2) the taxation is not so generous as in the case of (1). The taxation in the case of (3) is the strictest, and, in effect, gives little more than a taxation as between party and party, except that any necessary letters and attendance on the client are allowed.'

In Law Society of the Cape of Good Hope v Windvogel it was stressed that one is not here dealing with different kinds of attorney and client orders, but different principles for the taxation of attorney and client costs. A court will not normally direct the precise method of taxation, but will generally order costs to be taxed on a party and party or an attorney and client scale. If the court orders costs to be paid on the attorney and client scale, the taxing master will have regard to the different categories of attorney and client costs and will apply what he considers to be the correct scale, taking into account whatever other features are relevant. The full court of the Cape Provincial Division depreciated the practice of ordering costs to be paid by the opposite party as between attorney and own client, concluding that 'the attempt to elevate a direction that costs be paid as between attorney and own client to a different order from that of attorney and client cannot achieve what it purports to do.'

 

Subrule (6)(a): 'The copying of documents to accompany the briefs of advocates.' An advocate may be briefed with all necessary documents to enable him to draw a pleading.

Roos holds that for the purpose of drawing pleadings, attorneys should hand to the advocate the original documents in their possession as the costs of copying may be disallowed if the action is not proceeded with. However, the submission of Jacobs & Ehlers that copies of documents can be made when the first brief is delivered to counsel seems to be preferable.

In Bramley v Leonard it was held that copies of all correspondence and documents which are placed before the advocate, and which are relevant to the history of the case, are properly chargeable in a party and party bill of costs.

 

Subrule (6)(b): 'Copying of any document . . . reasonably required for any proceedings.' Before a fee for copying may properly be allowed in a party and party bill, 'the taxing master need not be of opinion that the costs under examination by him are necessary—still less absolutely necessary: if they are, though not strictly speaking necessary, yet proper in the sense of being reasonably incurred, and are not incurred or increased through over caution, negligence or mistake, they should be allowed'.

If the records of previous proceedings (whether criminal or civil or enquiries before the Master in liquidations, insolvencies, etc) contain matter which is reasonably likely to be of assistance to counsel for the purpose of conducting the case, the costs of copying these records should be allowed.

On the question whether or not the costs of obtaining a copy of evidence during a trial is a necessary expense and therefore recoverable on a party and party basis, see the notes to subrule (3) s v ‘To have been necessary or proper’ above.

 

Subrule (7): ‘Or other documents.’ These include such documents as municipal regulations and voters’ lists which can be obtained in printed form.

 

Subrule (8): ‘In the opinion of the taxing master.’ The decision as to whether a litigant is entitled in a particular case to recover the costs of more than one attorney is pre-eminently (at least in the first instance) one for the taxing master. This would include a decision as to the travelling costs of the attorney who does not reside at the seat of the court.

 

‘More than one attorney has necessarily been engaged.’ Necessity, in the opinion of the taxing master, for the employment of more than one attorney, is an essential requirement which must be satisfied before the provisions of this subrule can be invoked. The opposite party is not to be saddled with unnecessary costs; and costs are not to be duplicated.

If more than one attorney is necessarily engaged, each such attorney may draw up and have taxed a bill of costs, and may charge, in addition to the fees allowed or included in such bill, a fee for drawing the bill and a fee for having it taxed under item G1 and G2 of the appended Tariff of Fees of Attorneys. The requirements of subrule (3) apply to both bills.

If a litigant does not reside at the seat of the court where the litigation is being conducted, he will be entitled to enlist the services of one attorney at the place where he resides (or carries on business) and the services of another at the seat of the court. If he is successful and is awarded the costs of the litigation, he will be entitled to recover from the unsuccessful party the reasonable costs incurred by both attorneys. Fees for attendance in court at a trial are usually allowed only for one set of attorneys acting for a party, that is either for the attorney at the place where the litigant resides (or carries on business) or for the attorney practising at the seat of the court.

If a litigant elects not to make use of the services of an attorney at the place where he resides (or carries on business), he will not be entitled to recover the costs of more than one attorney.

In Schoeman v Schoeman it was held that in the choice of a local attorney, a litigant is not necessarily restricted to an attorney practising in the town where he lives or carries on business, and that much would depend on the circumstances of the case and a realistic and common sense approach should be adopted. Thus, for example, a litigant should not be restricted in his choice of attorney by the arbitrary nature of municipal boundaries: if an attorney lives conveniently near to a litigant or if the litigant lives conveniently near to the attorney’s offices then the litigant cannot be denied the right to consult that attorney merely because a municipal boundary separates the two places. Similarly, a company with branches countrywide is entitled to instruct attorneys where its registered head office is situated even if the cause of action had arisen at one of its branches, its principal place of business within the area of jurisdiction of another division of the High Court, and the litigation was conducted in that court. In this regard a distinction must be drawn between the case where the work performed by the local attorney is to be accepted as having been necessarily performed and the case where, by reason of the fact that the litigant could as well have given instructions direct to the attorney at the seat of the court, the work done by the local attorney cannot be classed as work necessarily done. It is in applying this distinction that a realistic and common sense approach must be applied and each case decided on its own facts. Thus, it was held in Zeelie v General Accident Insurance Co Ltd that where a litigant who resides in one town but is employed in another which is the seat of the court can with equal facility instruct an attorney in either town, he should instruct an attorney where he is employed.

 

Subrule (9): ‘A page shall contain at least 250 words and four Figures shall be counted as a word.’ The words are peremptory and are thus not merely a guide. The subrule has been worded in this manner to prevent abuse. It is considered that the aforesaid approach results in a logical and pragmatic solution where a page contains less than 250 words.

 

Subrule (10): ‘The costs taxed and allowed … shall be increased.’ If a tariff is amended (i) the amended tariff applies only to work done after the effective date of the amendment; and (ii) that tariff applies which was in force when the work was done, irrespective of when the bill is taxed.

 

TARIFF OF FEES

 

General. The Tariff of Fees introduced by GN R1557 of 20 September 1996 with effect from 21 October 1996 (and subsequently amended from time to time) differs in principle from previous Tariffs. In the past, an attorney was allowed a fee for a particular kind of word done, and often the fee ranged from a low to a high, the actual fee allowed on taxation ultimately being in the discretion of the taxing master. Thus, for example, for taking instructions to institute or defend any proceeding, the Tariff allowed a fee ranging from R25,00 to R250,00. The present tariff is time based, i e an attorney or candidate attorney is allowed a fee for the time spent on performing a particular task. The basic unit is R292,50 per quarter of an hour or part thereof for an attorney (i e R1170,00 per hour), and R90,50 per quarter of an hour or part thereof for a candidate attorney (i e R362,00 per hour). For example, in the present tariff an attorney is allowed a fee in accordance with the prescribed time rate for consultation with a client to institute or defend an action.

 

A — Consultations, Appearances, Conference and Inspections

 

Item 1: ‘Consultation … to institute or to defend an action.’ Since the fee is based on the time spent in performing a particular task, it is submitted that the fee does not include, as was held under the previous tariff, a charge for the acceptance of the responsibility of the litigation.

 

‘For obtaining an opinion or an advocate’s guidance.’ This item must be read in conjunction with rules 70(3) and (5), and the tariff consequently only provides for counsel’s opinion in cases where it is necessary or proper to obtain such an opinion as an ‘ordinary incident’ in the litigation or where it is justified in extraordinary or exceptional circumstances. The general rule is that such an opinion is not an ordinary incident in litigation but in each case the facts should be examined to determine whether the attainment of justice requires that an exception be permit.

 

Item 2: ‘Consultation to note, prosecute or defend an appeal.’ It is not clear whether this would include a fee for consultation in regard to opposing an application for leave to appeal to the Supreme Court of Appeal.

When the tariff speaks of ‘an appeal’, it refers to a form of procedure which is known to, and recognized by the law of procedure; the item does not refer to a so called ‘appeal’ which has no recognized existence in law.

 

Item 4: ‘Attendance by a candidate attorney.’ A candidate attorney need not be actually physically present in court during the whole of the day; ‘attendance’ here means if the candidate attorney is busy and concerned with the conduct of the case on behalf of the attorney.

There seems to be a lacuna in the tariff, no provision being made for ‘attendance by an attorney’.

Item 5: ‘Any conference with an advocate … which the taxing officer may consider necessary.’ There is no limitation on the number of consultations under this item. It is for the taxing master, in the light of the other items allowed, to determine the number of consultations which, in the circumstances, are to be treated as reasonably necessary.

 

Item 6: ‘Any other conference.’ It was held under the previous tariff that a clear distinction was drawn between consultations which an attorney has face to face, or in private, with his client or someone else, and discussions which he has with his client or someone else by telephone. It was held that the distinction drawn in the tariff between formal telephone calls and other telephone calls confirmed that in the latter are included telephone conversations which, had the persons concerned been together, would be regarded as consultations. In the present tariff no distinction is drawn between different kinds of telephone calls — the tariff only knows the ‘necessary telephone calls’ of item 3 of Part D. A fee for a telephonic conference may, therefore, it is submitted, be recovered under either this item or under item 3 of Part D, but not under both. Recovery under item 3 of Part D has the advantage that the actual cost of the telephone call can also be recovered.

A consultation on an offer of settlement is taxable as between party and party. A consultation on a proposed consent paper in a divorce action is probably taxable as between party and party. Similarly, a consultation with a client when an affidavit is signed.

 

Item 11: General. In regard to the fees allowable to attorneys under this item in respect of time spent in waiting in court for a matter to be heard, once the taxing master is satisfied that time was necessarily spent in waiting, he must apply his mind to the quantum of the fee to be allowed therefor, which necessarily involves also a consideration of the duration of the period necessarily spent waiting.

A wasted day caused by a matter being crowded out because an earlier case has exceeded its allotted time is not a day of ‘waiting’ within this item. The attorneys are, however, entitled to remuneration on the common law basis of costs wasted, and the costs of the wasted day should be costs in the cause.

 

B — Drafting and Drawing

 

General. In this part of the Tariff, the fee allowed is per page of documents drafted or drawn. The fee allowed is inclusive of drawing up, checking, typing, printing, delivery and filing.

 

Item 2(a): ‘Instructions for an opinion.’ See the notes under Part A of the Tariff s v ‘For obtaining an opinion or an advocate’s guidance’ above.

‘Including further particulars.’ It has been held that the drafting by an attorney of a request for further particulars and a plea which are subsequently settled by counsel may be regarded as the drafting of instructions for counsel’s guidance.

 

C — Attendance and Perusal

 

Item 1: ‘Perusing.’ The act of perusing or considering a document or letter should be held to mean the application of a trained legal mind to the content of the document in question.

If documents had been perused by an attorney in one case he cannot charge for perusing the same documents used in a subsequent case as if they were res nova, although he may in certain circumstances be allowed a fee for repetition and checking.

Where a perusal fee is permitted, a copying fee should logically be allowed under rule 70(6)(b).

 

Item 1(a): ‘Important letter, notice or document.’ This subparagraph deals with ‘important’ documents, while the succeeding paragraphs (i e items 1(b) and (c)) deal with ‘material’ documents. In the previous Tariff, perusal of the former justified a higher fee than perusal of the latter and the distinction between the two kinds of document was perhaps more important than under the present Tariff. An ‘important’ letter, notice or document is a document such as, for instance, a cheque, promissory note, mortgage bond, deed of sale, written agreement and any other document, not merely of evidential value, but on which the cause of action or the defence is directly based. ‘Material’ documents are those which further either party’s case in the sense that they have evidential or probative value.

 

Item 1(b): ‘Record.’ The word ‘record’ in this item does not only mean commercial records such as inventories; it also includes court records, records of commissions of enquiry, and records of enquiries under the Insolvency Act 24 of 1936.

 

Item 2: General. On the face of it, this item applies only to appeals, but taxing masters have applied the provisions of the equivalent item in the previous tariff (item 4 of Part B) to voluminous motion proceedings. It was held in Monja v Pretoria City Council that the item is not restricted to the papers of the court and counsel and that it also covers a charge by the attorney for ‘binding and paginating own set of pleadings’. It was queried in the same case whether the binding of such pleadings amounts to ‘sorting out’ or ‘paginating’.

 

D — Miscellaneous

 

Item 3: ‘Necessary telephone calls.’ See the notes to item 6 of Part A s v ‘Any other conference’ above.

 

Item 5: ‘Testimony.’ The costs of collecting evidence do not per se fall into the party and party bill of costs, but in appropriate circumstances and where ‘reasonably incurred’ such costs can be a proper party and party charge. The expenses of witnesses appearing before an attorney to take their statement are attorney and client costs. The attendance by an attorney on a witness to take his statement at any place other than at the witness’ office may be disallowed unless such attendance is essential, because the witness is ill or otherwise unable to travel for the purpose of giving his statement. If a witness is in another town or nearer another attorney who can take his statement, at less expense, the other attorney must be employed to do so, and his costs of doing so will be allowed.

The costs incurred in obtaining a document such as a surveyor’s plan of a locality are not costs which can be allowed under this item as being expenses incurred in procuring the evidence of a witness, unless a special order of court is obtained in regard thereto.

While an order of court or the consent of all interested parties is required before the qualifying expenses of a witness shall be allowed, the determination of the quantum of such fees is committed to the discretion of the taxing master. However, in the light of subrule (3) of this rule, the qualifying expenses of an expert witness must consist of costs and disbursements before they can be allowed as qualifying fees. Consultations with experts by counsel may, or may not, fall within the ambit of the qualifying process. Consultations with counsel by an expert to go through the latter’s report or statement are excluded; consultations with experts to inform them of the issues and matters on which they would be required to testify, and to limit those issues to a minimum, do fall within the ambit of the qualifying process. The court must be requested to make a special order allowing such expenses to be taxed as between party and party, failing which the party calling such witness will have to bear these costs himself. The request that qualifying fees be allowed need not necessarily be made before judgment: it may be made immediately upon judgment being given or ‘very soon’ thereafter.

If the expert witness is not called (for instance, because the point upon which his evidence is required is admitted), the court is entitled, where the payment of qualifying fees was reasonably necessary in the circumstances, to grant an order allowing the qualifying fees of an expert witness. If the case is settled and the agreement states that one party is to pay the other party’s taxed costs, these do not include the qualifying expenses of a witness whom the court has not heard. It is, of course, always open to a party who negotiates a settlement to stipulate for the payment of the qualifying expenses of expert witnesses.

 

E — Bill of Costs

 

Item 2: ‘Arranging and attending taxation’ includes making an appointment to tax, notice of taxation, obtaining the trustee’s consent in insolvency matters, and no separate charges for such work are permissible.

 

 

Source:

Erasmus Superior Court Practice/Volume 2: Uniform Rules and Appendices/Part D Rules/D1 Uniform Rules of Court/Rules regulating the conduct of the proceedings of the several provincial and local divisions of the supreme court of South Africa — GN R48 of 1965/Rules of court/70 Taxation and tariff of fees of attorneys