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[2022] ZAKZPHC 16
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Miya v Member of the Executive Council for Health KwaZulu Natal (11036/2015) [2022] ZAKZPHC 16 (11 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 11036/2015
In
the matter between:
AYANDA
SILINDOKUHLE MIYA
PLAINTIFF
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
RESPONDENT
FOR
HEALTH KWAZULU NATAL
JUDGMENT
Mngadi
J
[1]
The issue for determination is whether the collapse fee is
recoverable as part of the party- and- party costs.
[2]
The plaintiff, on behalf of her minor child, instituted action for
damages against the defendant for injuries sustained at birth
rendering the minor child permanently disabled. The defendant
firstly admitted liability. Thereafter, the matter was
enrolled
for trial for a period of fifteen (15) days to determine quantum.
A day prior to the commencement of the trial,
the defendant made an
offer to settle the damages. The plaintiff accepted the offer,
and court made the draft consent order
an order of court..
[3]
In the consent order made an order of court, provision was made for
the amount settling the claim and all the costs but the
parties could
not agree on the issue of the collapse fee. Collapse fee means
a fee in excess of one refresher, charged
by counsel in respect
of days reserved for the hearing of the matter, which for any reason
the trial does not run on those days.
[4]
The defendant agreed to pay costs including costs of senior and
junior counsel engaged. The trial was enrolled for hearing
from
3 May 2022 to 20 May 2022. The plaintiff claimed collapse fee
for both counsel for the dates 3, 4, 5, 6 and 9 May 2022.
Counsel’s
fee is based on the work necessary and actually done. It is
determined by the time and labour expended, the
novelty and
difficulty of the issues involved, and the skill and expertise
required to deal with the issues properly. It is rounded
off by the
customary charges charged by counsel of similar status for similar
work.
[5]
Plaintiff counsel submitted that due to the special circumstances of
the case the collapse fee should be included as part of
the party and
party costs. He indicated that when the pleadings had been
closed and the matter ready for trial, the defendant
in February 2020
amended its plea by raising the so called ‘Public Health
Defence’. The matter had to be enrolled
for hearing for a
period of three (3) weeks; counsel had to do extensive preparation.
He argued that the collapse fee is
meant to compensate counsel in
that they had to reserve themselves for the matter and not take any
work during that period.
[6]
The defendant contends that’s collapse fee is not part of the
party- and-party- costs; the defendant has settled
the claim
including undertaking to pay party- and-party costs; the defendant
relied on public funds to settled the claim.
[7]
The Taxing Master determines whether costs incurred were necessary
and whether they are reasonable or not. It may not
be the
function of the Taxing Master to determine whether a collapse fee is
part of the party-and-party costs or not. Rule
69 provides for
taxing of advocates fees where the amount of the claim is within the
jurisdiction of the Magistrate’s Court
according to the tariff
of minimum fees for advocates between party and party scale referred
to in Part IV of Table A of
annexure 2 of the Rules of the
magistrate’s Court. In other cases the fees are taxed in
accordance with the tariff
and where the tariff does not apply, the
taxing master allows such fees, as he considers reasonable.
[8] The
action instituted by the plaintiff against defendant is a matter of
which costs are regulated by the tariff.
The taxing Master does
not have the authority to tax items in the bill of costs, which are
not party- and-party costs. Party-and-party
costs are those
costs charged and expenses incurred by a party to legal proceedings
that appear to the taxing Master to have been
necessary or proper for
the attainment of justice. It is trite that the purpose of an award
of costs is to indemnify the successful
party for the expense he has
been put through by the litigation. The party-and –party costs
are part of the judgment given
by the court and are strictly
regulated.
[9]
Attorney–and-client costs on the other hand are costs that an
attorney is entitled to recover from a client for the disbursements
made on behalf of the client and for professional services rendered.
The costs are regulated by any agreement between the
client and his
attorney.
Francis-Subbiah R
. Taxation of Legal
Costs in South Africa (2013) 56 states that attorney-and –client
costs have a double meaning. Firstly,
they refer to the costs
that an unsuccessful party is ordered to pay to the successful
party. Secondly, they refer to costs
that a client has to pay
to her attorney for legal services rendered. The author states that
strictly speaking the latter type
of costs should be called
‘attorney- and- own client’ costs. Thus,
attorney-and-client costs are fees that
a client has to pay to his or
her attorney regardless of the outcome of the case.
[10]
Generally, the Rules of the Society of Advocates regulate the
charging of a collapse fee by a member. They provide that
unless specifically agreed upon on acceptance of a brief or only an
exceptional circumstances, the collapse fee may not be charged.
Even
if charged, it must still be reasonable in the circumstances.
It is regarded as reasonable If it equals no more
than half the time
a member required to reserve himself (See
Fluxman Incorporated v
Lithos Incorporated of SA
(No1)
2015 (2) SA 295
GP at para
79/91).
[11]
It is irrelevant that the other party agreed to pay counsel collapse
fee in order to determine whether the collapse fee forms
part of
party-and–party costs or not. The underlying factor for
determining party-and-party costs are reasonable costs
actually and
necessarily incurred. If there other counsel who could accept
the brief without an agreement to charge a collapse
fee, it is
difficult to say the collapse fee in that case was a necessary
expense. It is not in the interest of a party to
assist his
opponent to retain services of a particular counsel.
[12]
Litigation has been going on for many years. There are no
records showing collapse fee being regarded as part of the
party-and-party costs. It must be accepted that counsel who
made no provisions for charging a collapse fee separately, they
provide for the risk of the matter not proceeding in the fee they
charge to mitigate material financial prejudice.
[13]
In my view, the collapse fee is not part of the party-and –party
costs. The plaintiff has not explained any basis
that I this
case the collapse fee be regarded as party-and-party costs. I
also find no exceptional circumstances in this
case, for example, in
Fluxmans
counsel continued working on the case during the
period reserved for hearing of the case. In other
matters, counsel
may do other remunerative work relating to other
matters during the days that had been reserved for the matter.
[14]
In the result, it is ordered as follows:
1.
The application is refused.
_______________________
Mngadi
J
APPEARANCES
Case
Number
:
11036/2015
For
the applicant
:
Gajoo SC with Ms Gajoo
Instructed
by
: Justice
Reichlin Ramsamy
Durban
For
the Defendant
: Mr Rajinath
Instructed
by
: Norton Rose
Fulbright South Africa
La Lucia Ridge
Heard
on
: 3 May 2022
Judgment
delivered on
:
11 May 2022