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[2019] ZAECPEHC 34
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Williams N.O v Taxing Mistress of the High Court,Port Elizabeth; In re: Williams N.O v Road Accident Fund and Others (942/2015) [2019] ZAECPEHC 34; [2019] 3 All SA 658 (ECP) (4 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 942/2015
Date
heard: 28 March 2019
Date
delivered: 4 June 2019
REPORTABLE
In
the matter between:
KENT
WILLIAMS N.O
In
his capacity as
Curator ad Litem
to
SIHLANGULE
XOLISANI KWA
Applicant
And
THE
TAXING MISTRESS OF THE HIGH COURT,
PORT
ELIZABETH
Respondent
In
re:
KENT
WILLIAMS N.O
In
his capacity as Curator ad Litem to
SIHLANGULE
XOLISANI
KWA Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
ATTORNEYS
ASSOCIATION First
Amicus Curiae
EASTERN
CAPE SOCIETY OF ADVOCATES
Second
Amicus
Curiae
JUDGMENT
Goosen,
J (Stretch J and Malusi J concurring):
[1]
This is a review of the taxation of a bill of costs taxed by the
Taxing
Mistress in Port Elizabeth. The taxation was conducted on 20
October 2017. Aggrieved by the Taxing Mistress’ decision to tax
off certain items on the Bill, viz a portion of counsel's fees and
fees charged by expert witnesses, the plaintiff filed a notice
of
review of taxation on 16 January 2018. The notice called upon the
Taxing Mistress to state a case in terms of Rule 48(3).
[2]
The Taxing
Mistress duly filed a stated case on 23 February 2018 and the matter
was placed before a judge. The matter was then held
in abeyance
pending the finalisation of a similar matter which had been referred
to a hearing before a Full Court
[1]
.
Judgment in that matter was handed down on 31 July 2018. Subsequent
thereto the taxation was placed before me. Having considered
the Full
Court judgment and the issues raised in this matter I considered that
it was necessary to refer the matter for argument
in terms of Rule
48. I also considered it necessary to invite both the Attorneys’
Association and the Bar to join as
amici
curiae
in order to assist the court in its determination of the issues.
[3]
It is not necessary to set out the process that followed. It suffices
to record that all of the parties viz plaintiff, defendant, Taxing
Mistress, Attorneys Association and the Eastern Cape Society
of
Advocates filed submissions. In the case of the Taxing Mistress these
included evidence relating to bills of costs other than
in the
present matter. The parties were also in agreement that, given the
importance of the issues raised in this matter, it would
be
appropriate to constitute a Full Bench to adjudicate the matter.
Arrangements were therefor made and the matter came before
this court
on 28 March 2019.
[4]
Before
setting out the issues raised in this matter and the contentions of
the parties it is necessary to record certain background
as context.
This was a damages claim for personal injuries arising from a motor
vehicle collision. The civil trial roll in Port
Elizabeth, like many
other divisions, is dominated by claims against the Road Accident
Fund. The Port Elizabeth civil roll is a
“
running
roll
”.
Matters are enrolled on the roll on a specified date. These number
approximately six (6) per day.
[2]
When a trial commences it runs until conclusion. All other
matters enrolled on the day (and subsequent days) wait to commence.
Thus a trial set down to commence on, say, a Monday may only commence
later in that week and occasionally only in the following
week.
[3]
Since the civil roll has, until recently, comprised a single running
roll counsel have been permitted to accept trial briefs in
consecutive matters on the roll. Since the introduction of two
separate rolls the normal “
double
briefing
”
rule in respect of the acceptance of briefs applies to the two
separate rolls. The relevance of this context will become
apparent
hereunder.
[5]
The central issue in this matter concerns the Taxing Mistress’
decision
to disallow a portion of counsel’s fees for trial. The
essential reason for so doing was that counsel had, on the same day,
charged a full day trial fee in two other matters. Although the
review of taxation was predicated also on the basis that the Taxing
Mistress had disallowed fees charged by the plaintiff’s expert
witnesses (in effect reserved day fees), this ground was effectively
abandoned. It is for this reason unnecessary to address this aspect
of the matter.
[6]
In the
Trollip
[4]
matter the Full Court set out succinctly the test to be applied in a
review of taxation as follows:
“
[15] The intention
of rule 70(3) 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.
It has also been recognised, on
the other hand, that the interests of
the loser must be protected and that party should not be oppressed by
having to pay an excessive
amount of costs. In
Thusi v Minister of
Home Affairs & Another and 71 Other Cases
Wallis J held
that the indemnity principle is of general application in the field
of costs, and that it has not become outdated.
We
agree. The touchstone is for expenditure to be allowed which has been
reasonably and properly incurred.
[16]
In
Ocean Commodities Inc and Others v Standard Bank of SA Ltd and
Others
the court restated the test applicable when dealing
with a review of taxation as follows:
‘
This
case indicates, I think, that the Court was of the view that the test
as formulated by POTGIETER JA in the Legal and General
Assurance
Society case supra and the statement that the Court will interfere
with a ruling of a Taxing Master only if it is satisfied
that he was
clearly wrong, are merely two ways of saying the same thing. I think,
with respect, that it is better to state the
test to be that the
Court must be satisfied that the Taxing Master was clearly wrong
before it will interfere with a ruling made
by him, since it
indicates somewhat more clearly than does the formulation of the test
by POTGIETER JA what the test actually involves,
viz
that the
Court will not interfere with a ruling made by the Taxing Master in
every case where its view of the matter in dispute
differs from that
of the Taxing Master, but only when it is satisfied that the Taxing
Master's view of the matter differs so materially
from its own that
it should be held to vitiate his ruling.’”
[7]
This court
must accordingly be satisfied that the Taxing Mistress was clearly
wrong in the exercise of his/her discretion to allow
or disallow a
charge on a bill of costs. The
Trollip
matter concerned the question as to whether counsel’s day fee
for a trial that had settled or was postponed on that day ought
to be
reduced or discounted in the amount of other fees earned by counsel
on that day. The court in
Trollip
found that such fees as are earned by counsel other than fees earned
in respect of a court appearance on that day are not, as a
general
rule, to be taken into account in the determination of the
reasonableness of counsel’s trial fee. The court’s
reasoning is set out as follows
[5]
:
“
[24] While the fee
allowed by the taxing master must be reasonable in the circumstances,
counsel is also entitled to ‘be fairly
compensated as a
professional man for his preparation, attendance at Court,
presentation of argument and all the thought, concern
and
responsibility that went into the matter’. If a matter is
settled, withdrawn or postponed, the function of the
taxing master is
to determine a reasonable fee for counsel, taking into account the
date when the case was settled or withdrawn
or postponed. Quite apart
from considering the complexity of the matter, the amount of work
that was required to be done and how
long before the date of trial
the matter was settled, the principles applicable to compensation for
counsel in the context of that
profession must be considered .
[25]
Van Dijkhorst J, in
Pretorius v Santam Bpk
explained the
unique position of the advocate when a trial for which he had been
briefed did not proceed:
‘
My bevinding [in I
D Myburgh en M J Fourie NO v Guardian Nasionale Versekerings
Maatskappy Bpk (TPA saak 23858/95 van 25 September
1998] was dat die
ou gebruik dat advokate ‘n eerste dag fooi of deel daarvan
betaal word waar ‘n verhoor betreklik
kort voor die verhoordag
deur die mat val, sy grondslag het in die feit dat advokate se beroep
hoofsaaklik sentreer om verskynings
in die Hof. Die etiese kode van
advokate verbied dubbel brevettering en dit kan gevolglik in die
algemeen gesproke aanvaar word
dat indien ‘n saak kort voor
verhoor deur die mat val, die advokaat waarskynlik geen ander brevet
vir verskyning op die betrokke
dag sal ontvang nie. Op ‘n
meevaller kan nie gereken word nie. Uiteraard het hy soms (en
party advokate dikwels)
pleitstukke en opiniewerk wat sy aandag verg,
maar dit sou hy waarskynlik tog na-ure of oor naweke gedoen het.
Die glyskaal
het dus ten grondslag gehad die gedagte dat hoe nader
aan die verhoordatum ‘n saak deur die mat val hoe
onwaarskynliker dit
is dat ‘n plaavervangende brevet ontvang
sal word. Die situasie het nie verander nie en daar is
gevolglik geen rede
om te bevind dat die praktyk wat voortgeduur het
sedert 1990 onredelik is nie. Na my mening was dit billik.
Gevolglik
het ek beslis dat die toelating van ‘n eerste dag
verhoorfooi redelik was.’
[6]
[26]
There is a difference between the nature, structure and functioning
of the advocates’ profession and the attorneys’
profession. As a result, a distinction is drawn between a trial fee
which an advocate may charge when a trial is settled or postponed
on
or shortly before the trial date, and that which an attorney may
charge. The settlement or postponement of a trial prejudices
counsel if he or she is not properly compensated for having reserved
that day for trial (not to mention the reservation of sufficient
days
to allow for the completion of the trial and potential delay on the
running trial roll). An attorney however is able to do
other work in
the same circumstances. The difference between the two branches of
the profession were explained by Blieden J in
Road Accident Fund v
Le Roux
:
‘
The
structure of the advocate's profession is such that the settlement of
a trial and the loss of a first-day trial fee prejudices
counsel, who
runs a real risk of not being compensated for reserving a day for
trial. An attorney, on the other hand, in the time
set aside for the
first day of the hearing, can do other lucrative work. . .’
[27]
Counsel, when accepting a trial brief must make a number of
decisions. He or she is obliged to consider the number of
days which
must be kept available for a particular trial. If a particular court
has a running roll (as this court has) counsel
is required to factor
in that a trial may not commence on the day of set down. He or she
also has to take into account that the
trial may run for longer than
expected. No other brief may properly be accepted for the days so
reserved as this would constitute
double-briefing. This all
constitutes a loss of opportunity to earn fees from other work in
consequence of the acceptance of the
trial brief.
[28]
Counsel’s chamber work would have been performed at one time or
another in any event, often after hours. If counsel
performed chamber
work on the day of a settled or postponed trial this does not
compensate for, and should not be taken into account,
in respect of
the entitlement to a full day trial fee.
The only possible
compensation for loss of opportunity in respect of the first day of
trial would be the fortunate retention of
another brief for court
work accepted subsequent to it becoming apparent that the trial would
not proceed. In these circumstances,
the fee charged for the first
day of trial in the matter not proceeding would obviously have to be
determined with reference to
the fees earned from the subsequent
brief for court work on that same day – and of course be
commensurate with the service
rendered.
” (emphasis added)
[8]
The court
went on, in the context of the issues raised in that matter, to deal
with the judgments in
General
Council of the Bar of South Africa v Geach and Others
[7]
citing both the majority judgment of Nugent JA and the minority
judgment of Wallis JA in respect of circumstances in which a trial
fee or fee for a brief may be charged. The court observed that:
[8]
“
[38] While the
judgment of Wallis JA is the minority judgment, what has been quoted
above is, for the most part, not inconsistent
with the paragraph
referred to in the judgment of Nugent JA. Indeed, it is a more
detailed explanation of what Nugent JA
had said. Neither judgment
changes the position set out in Van Dijkhorst J’s judgment in
Pretorius that an advocate
is entitled to be compensated
for his or her opportunity cost when a trial settles or is postponed
and that, generally speaking,
will be on the basis of a full day fee
.
If, however, he or she is lucky enough to be briefed to appear on
that day in another matter, he or she may not charge a full
day fee
for the matter that did not proceed. This places in proper context
Nugent JA’s statement to the effect that an advocate
may charge
a full day fee if he or she ‘has been left with no other income
for the day’. We understand that by ‘no
other income’
Nugent JA meant income derived from appearance work, and not chamber
work, as this is consistent with the case
law
. We do not
understand Nugent JA to place an onus on an advocate to prove that he
or she has no other appearance work on the day
in question: advocates
being officers of the court, that can be assumed, in the absence of
evidence pointing to the contrary. To
the extent that Wallis JA’s
minority judgment is inconsistent with this, Nugent JA’s
majority judgment is to be preferred
and followed.” (emphasis
added)
[9]
As already indicated,
Trollip
concerned the question of
fees charged other than in respect of appearance work. In the present
matter, wholly different considerations
apply.
[10]
In her stated case the Taxing Mistress says that in preparation for
the taxation she noted
that counsel had charged a full day fee for 5
and 6 December 2016. She noted from the civil roll for those days
that the counsel
concerned had appeared in two other matters on 5
December 2016 and a further matter on 6 December 2016. The Taxing
Mistress accordingly
requested plaintiff’s attorney to provide
invoices in respect of those matters. In response to this plaintiff’s
attorney
furnished a letter addressed to him by counsel concerned in
which an explanation was provided.
[11]
Counsel’s explanation was that the present matter (
Kwa
)
was set down for trial on 24 November 2016. The matter had stood down
to 29 November 2016 and thereafter to 1 December 2016. The
trial
commenced on 5 December 2016 and proceeded to 6 December 2016. The
fees charged were for an attendance fee on each of 24
and 29 November
2016 and 1 December; for preparation and a fee on trial on each of 5
and 6 December 2016.
[12]
Counsel further explained his involvement in two other matters which
were on the roll,
viz the matter of
Louwskieter v RAF
and
Groenewald v RAF
. The
Louwskieter
matter was enrolled for trial on 25 November 2016. It had stood down
for settlement discussions and a settlement was made an order
of
court on 5 December 2016. Counsel charged a day fee for preparation,
settlement negotiations, attending court on 5 December
2016 and “
for
the reservation of the day on the running roll
”. The
Groenewald
matter was set down for trial on 6 December
2016. The matter was settled and an order taken on that day. Counsel
charged a day
fee in respect of preparation, “
the
reservation of the day on the running roll
” and attending
court when the order was granted. In the letter addressed to the
attorney explaining the charges raised, counsel
states that:
“
It will be clear
from what I have set out above that a day fee is not in respect of a
particular day. It includes preparation, attending
on settlement
negotiations, etc, as insisted upon by the Registrar. Moreover, there
is a running roll in Port Elizabeth. I have
to ensure my availability
not only for the allocated trial date, but also for the ensuing days,
in the event of the matter standing
down or running and not being
completed in one day. This is all taken into account when my accounts
are drafted.”
[13]
This matter concerns two fundamental questions. Firstly,
whether the Taxing Mistress
properly considered the question as to
counsel’s fees raised in respect of other matters in the
taxation of this matter.
Secondly, it concerns the question whether
the Taxing Mistress properly exercised her discretion in taxing off a
portion of counsel’s
fees, based on what was charged in
relation to those other matters.
[14]
Mr
Frost
, for the plaintiff, submitted that the Taxing
Mistress ought to confine consideration of the reasonableness of the
fee to factors
relevant to the bill to be taxed and the work done in
relation to that matter. What was charged in the other matters fell
to be
determined in the taxation of the relevant bills. To allow
otherwise would, it was submitted, bring about prejudice to the
plaintiff.
Such prejudice would arise from the fact that the
plaintiff as the successful party in the litigation would, to the
extent that
fees are taxed off as between party and party, be saddled
with a more onerous attorney-client bill.
[15]
The initial submissions (in the form of heads of argument) filed by
the Bar as second
amici
, appeared to endorse the view that the
Taxing Mistress is confined to considerations relevant to the
reasonableness of the fee
charged in respect of the particular
matter. Other considerations such as whether the fee charged is
permissible are matters of
a disciplinary nature to be addressed by
the Bar. Mr
de la Harpe
, who appeared for the second
amici
at the hearing, however, eschewed any reliance on the heads as filed.
He took the stance that the Taxing Mistress is not only entitled
to
give consideration to what was charged by counsel in other matters,
but is duty bound to do so when it appears that such other
charges
are relevant to determining what constitutes a reasonable fee in the
circumstances of a particular matter.
[16]
We have already referred to the principle, referred to in
Trollip
,
that there is no onus upon an advocate or attorney to justify his/her
fee. As members of an honourable profession the Taxing Mistress
will,
as starting point, assume that they had acted honourably and in
accordance with their ethical obligations in raising charges
for work
done. Yet, the authorities also make it clear that where there is
evidence to the contrary the Taxing Mistress will take
such evidence
into account in the exercise of his/her discretion.
[17]
We would go further to hold that it is incumbent upon a taxing master
in giving effect
to the purpose of taxation in terms of Rule 70, to
solicit appropriate information relevant to the exercise of his/her
discretion
where it appears that such may exist. This is not to
suggest that the taxing master is required to investigate matters
without
cause.
[18]
It can, in our view, hardly be suggested that a Taxing Mistress who
becomes aware of facts
which are relevant to deciding what
constitutes a reasonable fee, is precluded from taking these into
account merely because such
facts may relate to a disciplinary
infraction by a practitioner. Nor can it be suggested that all that
can be done is to refer
the matter to the relevant professional body.
[19]
The operation of the running roll outlined above is significant. As
already indicated the
practice in this Division is that counsel are
not prohibited, in principle, from holding trial briefs in
consecutive matters on
the roll even if they are set down for the
same day. It does not, of course, follow that counsel may raise a fee
on trial for each
such matter where the attendance on trial overlaps.
[20]
In this regard the authorities are clear. The underlying basis is
that counsel may not
charge a fee for work not done. Where one trial
does not proceed because it has settled no work is performed on
trial. In that
event counsel may only charge a fee on trial if she/he
is in fact “
prejudiced
” inasmuch as the
opportunity to earn a trial fee is lost. There can, of course, be no
such lost opportunity if counsel holds
a second trial brief for the
day in a successive matter and that matter proceeds. Should counsel
charge a full trial fee in both
matters it would, on the clear
authority of
Geach
, constitute over-reaching. Such
over-reaching necessarily renders the fee charged in each such matter
unreasonable.
[21]
It is in this context that the decision of the Taxing Mistress to
call for information
regarding the fees charged by counsel in the
other matters must be viewed. In our view the Taxing Mistress was
undoubtedly correct
to do so.
[22]
Wallis JA
in the
Geach
matter
[9]
referred to the
comparative advantages that practitioners enjoy when marking fees in
the following terms:
“
[132] Overreaching
involves an abuse of the person's status as an advocate, to take
advantage for personal gain of the person who
is paying them.
Advocates enjoy a considerable advantage in setting a fee. They know
what standards are applicable to the charging
of fees; they know what
work has been done on the brief and what time and effort has gone
into that work; they know in broad terms
the fees charged by
advocates of comparable seniority and ability for similar work. This
creates what economists call information
asymmetry between the
advocate and the client and even the attorney, one of whose functions
is to ensure that the advocate does
not claim or be paid unreasonable
fees. Where the attorney is ignorant of what constitutes a reasonable
fee, or is unable or has
no incentive to act as a check on counsel,
which was probably the situation here because all concerned
anticipated that the fees
were to come out of the Fund, the
advocate's advantage is magnified as the check built into the system
is absent. For the advocate
to take advantage of that situation, by
marking a fee knowing that it is not a proper fee, but one that is
unreasonable and improperly
marked under the rules, is an abuse of
the advocate's position and amounts to overreaching. It is innately
dishonest behaviour.”
[23]
The point bears emphasis. It is that the usual check upon what may
constitute a reasonable
fee charged by counsel is the instructing
attorney whose responsibility lies to his/her client. This addresses
the argument for
prejudice advanced by the plaintiff in these
proceedings. The responsibility of the plaintiff’s
attorney to ensure
that the fees raised by counsel are fees to which
counsel is entitled and that such fees are reasonable is not confined
to what
may be allowed as between party and party. It extends also to
what may encumber a client on an attorney-client basis. Where
necessary
it is incumbent upon the attorney to raise objection
thereto in accordance with long-established procedures adopted by the
Bar
to regulate such matters. Apart from this primary check on the
reasonableness of fees there is also the check which arises at
taxation
in terms of Rule 70. At this stage the Taxing Mistress, as
we have indicated, is under a duty to ensure that the fees charged
are
reasonable.
[24]
It is appropriate to make a further comment upon the operation of the
running roll. The
explanation of the fees charged by counsel appears
to suggest that a fee on trial for reservation of the day on the
trial roll
may be charged whenever the matter settles after the trial
date. This is not so. A fee on trial in the event that the matter
settles
may only be charged on the basis described in the
Geach
matter.
[25]
As indicated in the
Trollip
judgment the acceptance of
a brief on the running roll requires the advocate to give
consideration to the possibility that the
matter may not commence on
the allocated date
and
that it may run for longer than
anticipated. The acceptance of a brief on trial in these
circumstances necessarily means that the
trial fee may be
earned not on the day allocated for the trial but on a subsequent
day. If the matter settles either on the
allocated date or
thereafter, the entitlement to a trial fee will depend upon whether
the advocate has, as the authorities put
it, lost the opportunity to
earn the fee. Where the day has been “
reserved
” it
necessarily follows that no other appearance work has been or can be
conducted on that date. In the event that other
appearance work is
performed the advocate is not entitled to charge the trial fee on the
basis merely that the day has been reserved.
[26]
We turn now to the question whether the Taxing Mistress properly
exercised her discretion
to disallow certain fees. The plaintiff
seeks the setting aside of the decision of the Taxing Mistress in
respect of items 1, 5,
7, 9, 11, 12, 13, 20, 21, 24 and 26 of
Counsel’s fee note and that the said items be included in the
allocatur alternatively
be referred back to the Taxing Mistress to be
taxed
de novo
. All of these items on counsel’s fee note
were included in the total disbursement to counsel at item 873 of the
Bill.
[27]
In
City
of Cape Town v Arun Property Development (Pty) Ltd and Another
[10]
it was stated that:
“
[22] This is a
convenient juncture at which to reiterate a point of clarification:
While the language of some of the cases may suggest
that it is wrong
or improper for counsel to charge separately for drafting heads of
argument and preparation, this is not the case.
What is being
conveyed is that it is not correct to tax a party and party bill on
that basis. The modern trend - if I may call
it that - of charging a
fee based on time actually expended is both acceptable and in the
interest of transparency. It is likely
to result in fees that are
less troubling than those referred to in, for example, Ocean
Commodities. In Price Waterhouse at para
15 the prevalence of this
practice was acknowledged without adverse comment, thus:
'We were
also informed that it is the almost invariable practice throughout
the country nowadays for legal practitioners to make
their charges
time-related and insofar as appeals are concerned, for counsel to
charge separately for preparation, heads of argument
and time in
court.'”
[28]
In her stated case the Taxing Mistress avers that she adopted the
approach of assessing
a globular fee for preparation and attendance
at trial. This, it is averred, accords with well-established practice
and authority.
These authorities are clear. At taxation of a party
and party bill in respect of counsel’s fees, the taxing master
is required
to consider and determine a globular amount to be allowed
to counsel as a reasonable fee for the first day of trial. In doing
so
the taxing master will take cognisance,
inter alia
, of such
individually itemized fees related to the preparation of the matter;
the fee charged for the day’s attendance; the
nature and
complexity of the matter and the experience and standing of counsel
to determine a reasonable fee. Where the trial proceeds
into a second
or subsequent day, the taxing master will assess the reasonableness
of such second or subsequent day fee.
[29]
It is
apposite to pause here briefly to clarify terms since, despite the
authorities referred to, there remained (at least in the
submissions
of some parties) some confusion as to the concepts of a day fee or
fee on brief or trial fee. There is no magic in
the terms. They mean
no more than the fee charged for attendance for the day on trial,
that is the reasonable charge levied by
counsel to attend to the
conduct of a trial matter in court.
[11]
Such a fee on brief or trial fee or day fee is wholly different to a
“
first
day trial fee
”
and is not to be confused therewith. A “
first
day fee
”
includes fees for preparation, for consultations, advices on
evidence, heads of argument and the like. As noted in the
Arun
matter the practice has developed that Advocates now rarely charge a
“first day fee” and refresher for subsequent days.
Preparation is individually specified as costs in addition to the
attendance fee or trial fee.
[30]
We highlight these distinctions because in plaintiff’s
submissions (possibly mirroring
counsel’s fee note) the trial
fee charged per day was referred to as a first day fee (including
reference to preparation).
What is, however, clear from the fee note
and the submissions of the Taxing Mistress is that this was a day fee
simpliciter
, excluding preparation.
The
contested items
Item
1: Fees for advice on evidence
[31]
Counsel raised a fee on 4 October 2016 for “
perusing the
entire brief, including all medico-legal reports obtained to date, as
well as other quantum documentation, researching
quantum and drafting
advice on evidence
.” For this counsel charged for five
hours at R2000.00 per hour. The Taxing Mistress allowed the sum of
R2000.00 for the advice
on evidence and deferred four hours as an
item of preparation to be considered when determining a globular fee
on trial.
[32]
It was
submitted that the matter was one of considerable complexity and that
the time spent was reasonable. Since a fee for advice
on evidence is
one allowable as between party and party
[12]
,
the Taxing Mistress ought to have allowed the full fee charged.
[33]
The Taxing Mistress’ rationale for the approach was based on
the fact that perusal
and consideration of the entire brief,
including all expert reports, is necessarily a charge relating to
trial preparation. In
our view, the Taxing Mistress cannot be faulted
in this approach. The fact that more time might have been allowed for
the drafting
of advice is not a basis to interfere with the Taxing
Mistress’ discretion. She did not disallow the entire charge.
She took
into consideration four hours spent thereon as part of
necessary pre-trial preparation.
Items
5, 7, 11, 12, 13, 20 and 21
[34]
In respect of each of these items the Taxing Mistress “
stood
over
” or deferred consideration of the fees charged to
determination of the globular or composite fee to be allowed as a
first
day fee.
[35]
The stance adopted by the plaintiff was that these items, which
relate to perusal of reports
and documentation (including a joint
minute prepared by the industrial psychologists and an actuarial
report relating thereto),
concern necessary preparation subsequent to
the advice on evidence. It was submitted that given the complexity of
the matter, it
cannot have been expected of counsel to proceed to
trial without such preparation.
[36]
The submission, however, loses sight of the fact that the Taxing
Mistress did not ignore
or disallow such preparation. What the Taxing
Mistress did was to take all of these items of specified preparation
into consideration
of the globular fee to allow for the first day of
trial. In doing so the Taxing Mistress acted in accordance with
established authority.
There is accordingly no room to interfere with
the Taxing Mistress’ discretion on account of the approach
adopted by her.
We shall deal hereunder with the exercise of
the discretion in regard to the globular fee allowed.
Items
9 and 24
[37]
Item 9 on counsel’s fee note related to a charge for the
drafting of a further Rule
37 minute in an amount of R1000.00. Item
24 concerns a charge for perusal of the report of the reporting
curatrix ad litem
(in an application for the appointment of a
curator ad litem
to the plaintiff). This charge was raised on
1 December 2016.
[38]
The Taxing Mistress taxed off item 9 (i.e. disallowed it), on the
basis that the task was
one that the attorney could have performed.
In respect of item 24 the Taxing Mistress deferred consideration of
the item in the
form of half an hour’s preparation for trial
together with the other deferred items.
[39]
In the submissions advanced on behalf of the Taxing Mistress, Mr
Petersen
conceded that the Taxing Mistress ought to have
allowed the equivalent of the tariff charge that the attorney could
have raised
for item 9. It was also conceded that, in respect of item
24, this was not strictly an item related to trial preparation and
that
it, therefore, ought to have been allowed. It was however
submitted that the effect is minimal.
[40]
As indicated in the Taxing Mistress’ submissions she could have
allowed an amount
of R 263.00 for item 9, which would have equated to
the amount allowed on item 804 of the Bill of costs. She points out,
however,
that when the item was disallowed the plaintiff’s
attorney did not object thereto.
[41]
It was
submitted that insofar as the two items ought to have been allowed
this court should consider that the Taxing Mistress had
generously
allowed certain attendance fees on the days that the trial had stood
down whereas these items could, properly, have
been disallowed. When
this is taken into consideration this court will not interfere with
the exercise of the discretion of the
Taxing Mistress. In our view,
notwithstanding the concessions made, the overall effect upon the
allocatur is not such as would
vitiate the Taxing Mistress’
ruling.
[13]
Items
26 and 27
[42]
The Taxing Mistress’ decision to disallow these items in full
is what lies at the
heart of this matter. The items in counsel’s
fee note relate to a full day fee on each of 5 and 6 December. The
Taxing Mistress
disallowed the full day fees on the basis that
counsel had charged a full day fee in the
Louwskieter
and
Groenewald
matters on 5 and 6 December
respectively.
[43]
The Taxing Mistress submitted that in determining the amount to be
allowed as a “
composite
” fee she took into
consideration the individually itemised preparation (the so-called
deferred items set out above) and the
fact that counsel had charged a
full day fee for each day in the other two matters. She also took
into consideration the nature
of the matter and its complexity as
well as the standing of counsel and determined that a composite fee
of R 20 500.00 (excluding
VAT) be allowed for the preparation
and presentation of the case on 5 and 6 December 2016.
[44]
The amount of R 20 500.00 is the amount allowed in respect of
three charges, namely:
·
R17 500.00, which is the total of “
deferred
”
items relating to itemised preparation;
·
R20 000.00, which is the day fee, apparently inclusive of
preparation
for 5 December 2016; and
·
R20 000.00, which is a further day fee, again inclusive of
preparation,
heads of argument and argument for 6 December 2016.
[45]
The Taxing Mistress states that she took into consideration the fact
that evidence was
led on 5 December for approximately 45 minutes and
that there were two earlier attendances on that day. She took into
account that
on 6 December proceedings lasted for one hour 35
minutes.
[46]
It was argued by Mr
Petersen
, on behalf of the Taxing Mistress
that the R20 500.00 was determined on the basis of allowing
approximately three hours for
the presentation of the case (i.e.
R6000.00) on 5 and 6 December 2016 and allowing the balance
(R14 500.00) for the itemized
preparation.
[47]
The Taxing Mistress filed further submissions by way of supplementing
the report filed
in terms of Rule 48. In those submissions she states
that she did not allow a day fee in respect of counsel’s fees
because
counsel had charged a day fee in other matters. She only
allowed a fee for time spent on the matter. This averment, together
with
the averments detailing the time for which counsel was engaged
indicate the basis upon which the determination was made. It is in
this context that the Taxing Mistress took the view that, but for the
fact that counsel had charged full fees on 5 and 6 December
2016, she
would have allowed the R20 000.00 charged on each of those days.
[48]
Mr
Petersen
is accordingly correct when he argues that insofar
as the amount allowed for the itemised preparation is concerned,
there is no
substantial discrepancy between the amount allowed and
the amount claimed such as would vitiate the Taxing Mistress’
ruling
in the exercise of her discretion.
[49]
It should be emphasized that, contrary to the understanding of the
defendant’s counsel,
the appearance fees charged for the
different matters were not apportioned. The Taxing Mistress
considered that a time-based allocation
would fairly compensate
counsel for work done. In our view this approach cannot be faulted.
It appears to be reasonable and rational
and to meet the requirement
of fairness envisaged by Rule 70.
[50]
We should, of course, not be understood to endorse an entitlement to
charge fees on a time-spent
basis in addition to day fees where more
than one appearance occurs on the same day. Such endorsement would
run contrary to established
authority discussed above. We confine
ourselves to a finding that in the circumstances presented in this
taxation, where the Taxing
Mistress was aware that full fees had been
charged in relation to other matters, the use of time spent as a
measure was neither
arbitrary nor irrational.
[51]
It follows from this that we are not persuaded that there is any
basis to interfere with
the exercise of the Taxing Mistress’
discretion in this matter.
[52]
At the hearing of the matter an affidavit was handed up indicating
that the advocate concerned
had paid back the day fee in each of the
Louwskieter
and
Groenewald
matters,
retaining only an appearance fee of R2 000.00 for the attendances at
court in those matters. We did not understand it
to be suggested that
this would entitle the court to interfere with the exercise of the
Taxing Mistress’ discretion in this
matter. That would plainly
not be correct since this court is called upon to determine whether
at the time that the taxation occurred
the Taxing Mistress properly
exercised her discretion.
[53]
There is one final aspect which warrants attention. As will be
gleaned from the circumstances
giving rise to this matter a very
important issue lay at the centre of the dispute viz the propriety of
counsel charging more than
one full day trial fee on any one day and
whether that circumstance may be taken into account at taxation in
which that might occur.
Equally important was the question of the
fact that this might occur in relation to matters in which the
unsuccessful party is
the Road Accident Fund, which fulfils an
important public purpose utilizing public funds in compensating
victims of road accident
collisions. It was not necessary to address
this latter aspect, however, since the basis upon which the Taxing
Mistress exercises
her discretion does not alter depending upon the
identity of the unsuccessful party.
[54]
In her further submissions the Taxing Mistress drew attention to the
fact that the problem
brought to the fore in this matter appears not
to be isolated. The Taxing Mistress stated that there were to her
knowledge other
counsel who had been briefed on trial in Road
Accident Fund matters, in more than one matter per day. It appears
that these advocates,
who were not identified, may have charged more
than one day fee or trial fee in circumstances similar to the present
case.
[55]
The Eastern Cape Society of Advocates, as second
amici
,
consequently sought an order that the Taxing Mistress be directed to
furnish the Society with the details of each of those matters
referred to in par [30] of her further submissions. The Taxing
Mistress did not object to such an order. We consider that it is
a
matter of grave importance that the Bar should, with expedition,
investigate these and any other instances where warranted.
[56]
Finally, there is the question of costs. Costs are infrequently
granted in matters of this
nature. The
amici
were engaged in
the matter at the instance of the court. In our view they should bear
their own costs. The plaintiff was unsuccessful
in the review, having
also abandoned a substantive challenge to the Taxing Mistress’
decision shortly before the hearing.
Ordinarily that would justify a
costs order against the plaintiff. This matter, however, clearly
raised an issue of considerable
importance regarding the duties of
the Taxing Mistress. In our view it would be appropriate to order
that each party bear their
own costs.
[57] In
the result the following order will issue:
1. The
review of taxation is dismissed.
2. The
Taxing Mistress is directed to furnish the Eastern Cape Society of
Advocates with all relevant information
relating to the fees charged
by Advocates in the cases detailed in par [30] of her further
submissions.
3. Each
party is to bear its own costs in the review.
_________________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Stretch
J
_________________________
I.
T. STRETCH
JUDGE
OF THE HIGH COURT
Malusi
J
________________________
T.
MALUSI
JUDGE
OF THE HIGH COURT
Obo
the Plaintiff/Applicant: Adv
A. Frost / Adv B. Westerdale
Instructed
by: Jock
Walter Attorneys, 38 3rd Ave, Newton Park, Port Elizabeth
Ref:
A.J Walter
Tel:
(041) 363 5501
Obo
the Defendant: Adv
M. Euijen SC
Instructed
by: BLC
Attorneys, 4 Cape Road, Port Elizabeth
Ref:
S Tifloen
Obo
the Respondent: Adv
F. Petersen
Instructed
by: The
State Attorneys, Western Road, Central, Port Elizabeth
Ref:
2097/2017/K
Tel
(041) 585 7921
Obo
the First Amicus Curiae:
Mr K. Karsan
Obo
the Second Amicus Curiae: Adv D. H de la Harpe
[1]
Trollip v Taxing Mistress, High Court and Others 2018 (6) SA 292
(ECG)
[2]
More recently the roll has been split into two separate rolls each
accommodating ± 5 per day.
[3]
The management of the trial roll has undergone certain important
changes which have ensured that matters likely to settle (in
which
may be counted a large percentage of RAF matters) are settled prior
to the trial date thus reducing (if not eliminating)
the waiting
time to commence trials.
[4]
Supra
at paras [15] and [16]
[5]
Trollip (
supra
)
at par [24] to [28]
[6]
See the translation of this passage where it appears in the Trollip
judgment at footnote 17
[7]
2013 (2) SA 52 (SCA)
[8]
Trollip (
supra
)
at par [38]
[9]
Geach (
supra
)
at par [132]
[10]
2009 (5) SA 227
(C) at par [22]
[11]
In the case of opposed application proceedings the “opposed
application” fee or fee on brief will equally be the
fee on
attendance.
[12]
See Stuart-Lamb v Stuart-Lamb 1997 (3) SA 140 (E)
[13]
See Oceana Commodities Incorporated and Others v Standard Bank of
South Africa Ltd and Others 1984 (SA) 15 (A) at 19 E-G