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[2018] ZAKZPHC 6
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Naidoo v MEC for Health, KwaZulu-Natal (5787/16P) [2018] ZAKZPHC 6 (14 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. 5784/16P
In
the matter between:
A
NAIDOO
APPLICANT
and
MEC
FOR HEALTH,
KWAZULU-NATAL
RESPONDENT
CASE
NO. 5785/16P
In
the matter between:
A
NAIDOO
APPLICANT
and
MEC
FOR HEALTH,
KWAZULU-NATAL
RESPONDENT
CASE
NO. 5786/16P
In
the matter between:
HP
PHEWA
APPLICANT
and
MEC
FOR HEALTH,
KWAZULU-NATAL
RESPONDENT
CASE
NO. 5787/16P
In
the matter between:
K
GOVENDER
APPLICANT
and
MEC
FOR HEALTH,
KWAZULU-NATAL
RESPONDENT
CASE
NO. 5788/16P
In
the matter between:
SM
NTHOMBELA
APPLICANT
and
MEC
FOR HEALTH,
KWAZULU-NATAL
RESPONDENT
J U D G M E N T
STEYN
et POYO DLWATI JJ
Introduction
[1]
This is a review of five bills of costs referred to this court for
consideration since the applicants (plaintiffs before the
taxing
master) are dissatisfied with the rulings of the taxing master of
this court. The applicants seek to review the taxing master’s
decisions in terms of Uniform rule 48(1) and (2).
[1]
[2]
All five matters were consolidated for purposes of this review as
they raised similar issues. The applicants, who are residents
of this
Province, lodged various medical negligence claims against the MEC
for Health in the Province of KwaZulu-Natal. They were
successful in
their actions and were awarded costs of taxed or agreed party and
party costs that included counsel’s fees,
expert fees and
travelling and accommodation costs.
[3]
After the finalisation of litigation, the
applicants set their bills of costs down for taxation. Various
objections were raised
on behalf of the respondent. The bills of
costs were then set down for taxation before the taxing master of
this court. We consider
it necessary to quote the entire report and
shall return to a discussion of the report later in this judgment.
The taxing master’s
report reads:
‘
1.
There
were issues raised in respect of the fees charged by Counsel in the
fee notes presented at the taxation and in the contingency
fee
agreements as it appeared that there were differences.
2.
I
applied my mind to the fees in respect of Counsel and Experts having
regard to the established practice in this division.
3.
I
considered what was reasonable under the circumstances.’
[2]
[4]
The taxing master taxed off various items on the applicants’
bills for the reasons stated in the taxing master’s
case. The
applicants remained aggrieved and launched these review proceedings.
By agreement between the parties and for the sake
of certainty the
review was referred to a full bench for oral argument by all
interested parties in terms of rule 48(6)(a)(iv).
[3]
The referral was necessitated by the fact that the taxing master’s
ruling has far-reaching implications for future taxations.
In
the interests of justice we requested and received heads of argument
from the Society of Advocates, KwaZulu-Natal and the KwaZulu-Natal
Law Society. These professional bodies also made submissions during
the hearing and we are indebted to them for their assistance,
albeit
at short notice.
[5]
The
brief background to this review is that even though all the
applicants are residents of this Province and their claims
[4]
arose out of treatments received in the various public hospitals in
KwaZulu-Natal, their attorney and consequently counsel are
from the
Gauteng Province. They were also referred to various experts in the
Gauteng Province. As a result, various costs relating
to
consultations with experts and travelling and accommodation for when
they went to consult with those experts were incurred.
The issues
that arose in relation to those costs were the reasonableness of it
and whether some costs should be categorised as
attorney and client
costs and not party and party as ordered by the court in each of the
orders. Furthermore, counsel and expert
fees were disallowed
inter
alia
because
the taxing master regarded further attendances, studying the
instructing attorney’s memorandum and so forth as costs
outside
the scope of party and party costs.
[6]
The following duties of the taxing master have been highlighted and
confirmed by our courts. In 1973 the Appellate Division
in
Kruger
v Sekretaris van Binnelandse Inkomste
[5]
considered the duties of the taxing master in terms of rule 9(2) of
the then Uniform Rules of Court and held:
‘
Die
takseermeester het die bepalings van Reël 9 (2) ongelukkig nie
behoorlik nagekom nie. Die gestelde saak, soos deur
hom
opgestel en aan die partye besorg, bestaan hoofsaaklik uit kort
antwoorde op die besware wat in die applikant se brief genoem
word:
dit bevat nie ‘n uiteensitting van die items waarteen daar
tydens die taksasie beswaar gemaak is nie, en ook nie van
die besware
wat teen die betrokke items ingebring is nie; dit toon ook ‘n
gebrek aan feitebevindings op sekere belangrike
punte. Ná
ontvangs van die gestelde saak, het die applikant ‘n kort
kommentaar op enkele punte daarin aan die takseermeester
gestuur. Die
respondent het nie op die gestelde saak gereageer nie. Daarna het die
takseermeester ‘n verslag opgestel waarin
weinig meer gesê
word as dat hy al die geskilpunte (“issues”) reeds in sy
gestelde saak behandel het. Toe die
stukke onder ons aandag gekom
het, het die betrokke takseermeester reeds afgetree en was hy nie
meer beskikbaar nie.
Die
vermelde gebreke in die gestelde saak skep die probleem dat dit nou
nie duidelik blyk teen welke items in die rekeninge die
applikant by
taksasie beswaar gemaak het nie, en dit is belangrik om dit te weet,
want uit die bewoording van Reëls 9 (2)
en 9 (3) blyk dit dat ‘n
item alleen in hersiening geneem kan word indien by taksasie daarteen
beswaar gemaak is
.’
(Our
emphasis.)
And
Schutz J in
Nedperm
Bank Ltd v Desbie (Pty) Ltd
[6]
succinctly defined what rule 8(1) requires of the taxing master:
‘
state
a case for the decision of a Judge, which shall set out each item or
part of an item together with the grounds of objection
advanced at
the taxation and shall embody any findings of fact by the Taxing
Master.’
[7]
[7]
The duties of the taxing master do not end with the filing of the
stated case and that much is clear in terms of rule 48(5)(a)
of the
rules. The report should deal with the rulings that were challenged
at the time of the taxation. That the taxing master
fulfils a
specialist’s function when it comes to taxations has been
recognised in the leading case on taxations,
Price
Waterhouse Meyernel v Thoroughbred Breeders’ Association of
South Africa
:
[8]
‘
[25]
. . .determination of a reasonable fee will, in the light of the
arguments raised on behalf of the defendant before us, involve
having
regard to fees charged in major cases in this Court over the last few
years. Unquestionably the Taxing Master is in a better
position than
we are, on the material before us, to undertake the necessary survey
and evaluation.
[26]
Counsel for plaintiff also pressed upon us the submission that the
Court should lend its approval to the determination
of fees on
taxation on a time-related basis, given the prevailing tendency in
the profession to charge on that footing. In
JD
van Niekerk en Genote Ing v Administrateur, Transvaal
1994 (1) SA 595
(A) this Court disapproved of that approach to fee
assessment for taxation purposes and held that the established
practice was
to fix a globular first day fee for heads, preparation
and appearance. A departure from what was said there –and even
a re-appraisal
of that practice – would require evidence and
argument far beyond that with which we have been presented in this
matter.’
[8]
The taxing master in the stated case stated in relation to expert
fees, that she allowed what she deemed was reasonable in the
circumstances. Furthermore, when exercising her discretion, she bore
in mind that the fee was payable for the amount of work which
the
witnesses had to do to qualify themselves. With regard to counsel’s
fees the taxing master stated that many of the items
appearing on
counsel’s fee notes did not fall within the ambit of party and
party costs. Furthermore, she regarded counsel’s
day fee and
hourly rates as higher than those ordinarily charged by similar
counsel practicing in the Province of KwaZulu-Natal.
She therefore
allowed what she deemed was reasonable.
[9]
With regard to accommodation costs, she allowed
what similar entities in Pietermaritzburg would have charged. With
regard to shuttle
services to transport the applicants to and from
the various experts, she was of the view that the attorney could have
taken the
clients to the experts concerned or hired a cheaper vehicle
for that purpose. In the circumstances, she was of the view that
these
costs were unreasonable and were attorney and client in nature.
She also believed that a bus could have been used by the applicants
to travel from KwaZulu-Natal to Gauteng instead of flights.
[10]
The applicants’ legal representatives responded to the taxing
master’s stated case. With regard to the expert witness’
costs, the applicants submitted that there was no support in law for
the taxing master to automatically reduce the rate charged
by an
expert witness. However, so went the submission, it was permissible
if the taxing master found, on a factual basis, that
a particular
expense or portion thereof was unreasonable. Furthermore, the taxing
master’s decision of allowing one hour
assessment at junior
counsel’s rate and drafting fee at an attorney’s rate was
arbitrary and therefore not a judicious
exercise of her discretion.
The applicants submitted also that the experts’ fees should be
subjected to a test as laid down
in rule 70(3).
[11]
With
regard to counsel’s fees the applicants submitted that the
taxing master failed to take into account that the amounts
charged
were for all the work that counsel had attended to over a protracted
period of time. Furthermore, allowing counsel’s
drafting fee at
an attorney’s rate was only applicable in applications and not
trials. Accordingly, the taxing master had
erred in relying on the
principle laid down in
Aloes
Executive Cars (Pty) Ltd v Motorland (Pty) Ltd & another.
[9]
Accordingly all fees charged by counsel ought to have been allowed as
they were necessary in the preparation of the applicants’
trials.
[12]
With regards to the applicants’
travelling costs and accommodation, it was submitted that the taxing
master failed to take
into account the social context of the
applicants and the fact that they came from vulnerable groups of
people. The costs therefore
were neither luxurious nor elegant in
nature but were necessarily and reasonably incurred. It was therefore
submitted that the
taxing master did not apply her mind in reaching
her conclusions in that regard.
[13]
Even though the respondent originally filed a notice to abide by the
decision of the court, submissions were made on behalf
of the
respondent in order to assist the court and because the Judge
President issued a directive that both parties needed to file
heads
of argument before the matter was heard. For the purpose of this
judgment a few submissions will be referred to, since the
respondent
in main, supports the taxing master’s decision. With regard to
counsel’s fees, it was submitted that the
taxing master had
exercised her discretion correctly as she had considered it using the
parameters allowed in this Province for
such fees. Furthermore, as
there was no further information of substance placed before the
taxing master by the applicants, other
than the accounts in question,
the taxing master had in the circumstances exercised her discretion
correctly. When the matter was
argued, Ms
Gabriel SC
, for the
respondent, submitted that the respondent’s representative
raised objections before the taxing master which were
referred to but
not described in the report of the taxing master. The issue was
raised that the applicants were also advancing
arguments that were
similarly not reflected in the taxing master’s report. A
similar submission was also made in respect
of expert fees.
[14]
The taxing master has filed a detailed stated case, which we consider
to be relevant in its entirety:
‘
The
following matters were placed down together for taxation due to the
fact that the same attorney was instructed to represent
all of the
Plaintiffs, namely Paul Du Plessis Attorneys as they specialise in
these type of matters (i.e. retinopathy of prematurity)
as well as
the fact that they were based on relatively similar facts and in all
5 matters the same experts were used to prepare
for trial:
5784/16P
A Naidoo v MEC for Health;
5785/16P
A Naidoo vs MEC for Health;
5786/16P
HB Pewa vs MEC for Health;
5787/16P
K Govender vs MEC for Health; and
5788/16P
S M Nthombela v MEC for Health.
Another
point to note is that in all these matters the same counsel was used
to represent the Plaintiffs in the individual cases.
The
stated case deals with, but does not necessarily consolidate the 5
matters mentioned above, due to the similarities mentioned
as well as
the fact that all 5 taxations were dealt with together due to the
similar arguments that had arisen as a result of the
similarity of
the facts allowing for similar bills of costs to be drawn up. Where
there are differences, this is pointed out specifically
within the
stated case below in respect of the various points that are being
argued.
[A]
In KŐHNE v UNION AND NATIONAL INSURANCE CO. Ltd
it
was held that:
“
It
has been emphasized in regard to Rules … that the discretion
vested in 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, and that such opinion
must relate
to all costs reasonably incurred by the litigant which also imports a
value judgement as to what is reasonable.”
[B]
In PHIRI v NORTHERN ASSURANCE LTD it was held that:
“
the
discretion to decide what costs have been necessarily or properly
incurred is given to the Taxing Master and not to the Court”.
This discretion must be exercised judicially in the sense that the
Taxing Master must act reasonably, justly and on the basis of
sound
principles with due regard to the circumstances of the case.
In
the High Court, the Taxing Master must have regard to the fact that
for costs to be allowed as between Party and Party they need
not be
necessary, less still absolutely necessary. Thus if the costs
incurred are, though not strictly speaking necessary, but
proper in
the sense of having been reasonably incurred and have not been
incurred through over-caution, negligence or mistake,
and are not
luxuries, then they should be allowed as between Party and Party.
Barnett
v isemonger
1942
SA 325
CPD at 327,
Hasting
v Taxing Master
1962 (3) SA 789
(N).
FUNCTION
OF THE TAXING MASTER
It
is trite that the discretion vested in the taxing master is to allow
costs, charges and expenses as appear to him/her to have
been
necessary or proper, and not those which may objectively attain those
qualities.
1.
EXPERT
FEES:
Please
see annexure attached hereto, setting out the fees charged of the
expert witnesses and what was allowed in each case.
EXPERT
FEES:
What
are qualifying fees?
These
are the fees charged by the expert witness to study the facts of the
particular case and hereby become qualified to render
an opinion
thereon.
There
are thus 3 facets to be considered with regards to qualifying fees:
1.
The
technical background which the expert possess already (his degree on
qualifications etc. that make him an expert);
2.
The
work the expert does to make the facts of the particular case his
own, and;
3.
The
experts drawing up a report, and possibly attending at Court and
giving his expert opinion based on his qualifications and the
circumstances of the particular case at hand.
I
have taken all the above mentioned facets into consideration to
determine a reasonable fee for all the experts as per attached
annexure.
Further
it is worth noting the following passage from
Elstein v Feinberg
N.O. and others
1968 (3) SA 342
(C) at 346F-H:
“
The
fees charged by attorneys and counsel or any other professional men
are in some measure a guide to the Taxing Master as to what
would be
a reasonable fee with which to remunerate a professional witness for
his labours and exertions in qualifying himself to
give expert
evidence in regard to the matters in dispute, but they must in
themselves be inconclusive. They are, at most, only
a general guide.
There are a mass of other matters to which weight should also be
given, for instance matters such as the complexity
of the subject
investigated, the arduousness of the investigation, the standing of
the expert witness, the costs to the expert
of making the necessary
investigations and enquiries.”
In
the unreported case of
NH
Shange v MEC for Health, KwaZulu-Natal
Case
No 7264/2015; and
NN
Gcabashe (obo W Gcabashe) v MEC for Health, KwaZulu-Natal
Case
No 7265/2015 (KwaZulu-Natal Division, Pietermaritzburg) Booyens AJ
quoted the above from
Elstein
with approval, but added this at paragraph 11:
“
I
wish to point out that the passage quoted above, is no authority for
equating expert fees to the
same level
as counsel’s fees and the paragraph should be read within its
context.”
Ultimately
the quantum of qualifying fees falls within the discretion of the
Taxing Master. In determining same, he/she will bear
in mind that the
fee is payable for the amount of work which the witness has to do to
qualify himself. The discretion of the Taxing
Master as to the
quantum of the fee will not lightly be interfered with,
Kohne
& another v Union National Insurance Co Ltd
1968 (2) SA 499
(N);
City
Deep Ltd v JHB City Council
1973 (2) SA 109
(W).
The
court held in
Champion v Morkel
1971 (2) SA 121
(R) at 128,
that:
“
It
is of the essence of qualifying expenses that they represent the
reasonable charges to be allowed to an expert for so preparing
himself with regard to the specific matter upon which his testimony
is required that his evidence may be properly impressed with
that
measure of authority which may be attributed to it by reason of his
specialised knowledge and training in the particular field
to which
his evidence relates.”
2.
COUNSEL’S
FEES:
For
the record, it is important to mention that the counsel used by the
Plaintiffs were based outside the province and the clients
were based
in KwaZulu-Natal, i.e. local.
Items
334 and 335 :
Counsel
charged a fee of R447 450.00, R422 558.10 was taxed off.
Many of the items that appeared on Counsel fee
note does not fall
within the ambit of party and party costs, i.e. further attendances,
studying instructing Attorney’s memorandum,
etc.
Counsel
charged a first day fee on brief of R50 000.00 and R5 000.00
per hour. I have allowed Counsel a first day fee
on brief at
R25 000.00 and R2 400.00 per hour subject to a 10% decrease
per annum.
Junior
Counsel was only allowed half that of Senior Counsel,
Paton
v Santam Ins. Co. Ltd
1967 (1) SA 98
(E);
Toxopeus
v Kwanda Tile & Concrete
Works (Edms) Bpk
1988 (3) SA 440
(T);
SAR
& H v Mills
1924
CPD 110
and paragraph 13.20
Law
of Costs
Cilliers;
Rule 69(2) of the Uniform Rules.
I
have taken all factors into account in determining a reasonable fee
to be allowed,
President
of Gauteng Lion’s Rugby Union & another
2000
(2) SA 64
Constitutional Court;
Louw
v Santam Bpk
2000(4)
SA 402 (T),
Van Der
Westhuizen vs Gibbon & another
1983 (1) SA 95
(O).
As
alluded to the above very same Counsel was used in the other matters
with exactly the same cause of action and his charges were
as
follows:
Case
No. 5785/16P
A
Naidoo v MEC for Health
R419 594.10
R370 423.62 (T/O)
Counsel
charged a fee on brief of R45 000.00 and R4 500.00 per
hour.
Allowed
: First Day Fee on Brief R25 000.00 and R2 400.00 per hour.
Case
No. 5786/16P
H B
Phewa v MEC for Health
R505 020.00
R347 603.00 (T/O)
Counsel
charged a fee on brief of R40 000.00 and R4 600.00 per
hour.
Allows
: R25 000.00 (FOB) and R2 400.00 per hour.
Case
No. 5787/16P
K
Govender v MEC for Health
R753 435.12
R654 990.42 (T/O)
Counsel
charged R40 000.00 (FOB) and R4 000.00 per hour.
Allowed
at R25 000.00 (FOB) and R2 400.00 per hour.
Case
No. 5788/16P
S M
Nthombela v MEC for Health
R644 670.00
R588 832.80
Counsel
charged R45 000.00 and R4 500.00 per hour.
Allowed
R25 000.00 and R2 400.00 per hour.
Total
Fees Charged By Counsel in these four matters:
R2 322 719.22
Case
No. 5784/16P Ayesha Naidoo vs MEC for Health – (Quantum).
Was
set down on 06 October 2014 for 5 days. The quantum portion was
settled the day before the trial proceeded.
Case
No. 5785/16P A Naidoo vs MEC for Health – (Liability).
Was
set down on 18 November 2013, the trial to run for ten days.
Liability was conceded on the first day of trial.
Case
No. 5786/16P H B Phewa vs MEC for Health
–
this
matter was settled on 24 May 2013 after all trial preparations had
been attended to (the matter was set down for trial on 27-31
May
2013).
Case
No. 5787/16P K Govender vs MEC for Health – Liability was set
down for 14 October 2013 for 5 days (Liability was settled
on the day
before trial proceeded)
.
Quantum trial was set down on 01 September 2014 and was postponed
until the second day (02 Sept 2014) at request of Defendant.
The matter was stood down (again at request of Defendant) until 04
September 2014 on that day, the quantum became settled during
the
morning.
Case
No. 5788/16P S M Nthombela vs MEC for Health – Liability
was conceded on first day of trial at 08h30 (11 November
2013) the
matter was set down for 4 days.
With
regards to quantum, the matter was set down on 15 November 2013 but
was stood down until 19 November 2013 (this was agreed
to by the
Plaintiff). The quantum then became settled late on 18 November 2013.
In
Camps Bay Ratepayers’
and Residents’ Association v Harrison
2012
JDR 1723 (CC), the Court expressed disquiet at how Counsel’s
fees have burgeoned in recent years.
Counsel
was allowed a drafting fee on the Attorney’s rate, the
principle used in
Aloes
Executive Cars (Pty) Ltd v Motorland (Pty) Ltd and another
1990 (4) SA 587
(T) was applied.
3.
The
applicant’s travelling and accommodation costs :
Case
NO. 5784/16P
Rate
for accommodation was allowed as what similar entitles in
Pietermaritzburg would charge.
ITEM
: 38
Pay
Thatch Cottage for 10 nights at R1400 per night = R14 000.00 and
amount of R695.00 was allowed per night and amount of
R10 500.00
was taxed off.
ITEM
: 79
Payment
of a Corporate Shuttle to transport client to and from expert
witnesses = R8500.00 this amount is unreasonable the instructing
Attorney could have driven the client to the expert witnesses or used
a cheaper alternative, if he chooses to hire a Shuttle, this
amount
should not then recovered from the other party.
ITEM
: 121
Attend
to pay Travelstart = R7091.00 (Airticket) an amount of R6673.00 was
taxed off, the cheapest mode of transport was a busfare
(for example
Intercape) at R418.00 there and back.
ITEM
: 129
Payment
of a Corporate Shuttle to transport client to and from expert
witnesses = R1930.00 this amount is unreasonable the instructing
Attorney could have driven the client (or used a cheaper alternative)
the whole amount was taxed off, if he chooses to hire a Shuttle,
this
amount should not then recovered from the other party.
ITEM
: 161
Pay
Richtershuyz at R1390.00 an amount of R695.00 was allowed for one
night an amount of R716.00 was taxed off.
ITEM
: 189
Attend
to pay a Guest House =
R1049.50
an amount of
R404.12
was taxed off an amount of R695.00 per night was allowed.
ITEM
: 190
Once
again the Instructing Attorney made use of a Corporate Shuttle and
paid R1630.00 this amount was taxed off and the instructing
attorney
or candidate attorney could have driven the client (or a cheaper
alternative could have been used).
In
Kruger v De Bruyn
1943 OPD 38
at 45, Van Den Heever, J made it
perfectly clear that:
“
the
tariff of witness fees has no relation to actual travelling expenses
in the sense of disbursements whatever. He held that all
that the
tariff does is to provide that the witness who travels elegantly and
expensively, when he may do so inexpensively by public
conveyance,
shall not recover more from the party condemned in costs that the
actual fare on such public conveyance, whether used
by him or not.”
4.
The
Applicant’s travelling and accommodation costs : Case No.
5785/16P
ITEM
: 149
Payment
of Eurocare (car rental) amount claimed R2 440.00 an amount of
R1846.00 was taxed off. A fee of R3.00 p/km (Attorney’s
Rate) was allowed for 89km.
ITEM
: 178
Pay
for Corporate Shuttle amount of R1900.00 claimed, disallowed in toto.
The Instructing Attorney/Candidate Attorney could have
driven the
client.
ITEM
: 180
Payment
of Guest Lodge in the amount of R938.70, the whole amount was taxed
off.
ITEM
: 224
Pay
Redlands R6250.00 and amount of R2083.33 was taxed off.
5.
The
Applicant’s travelling costs : Case No. 5786/16P
Items
423, 427 and 534:
The
shuttle costs were disallowed, the Instructing Attorney could have
driven the Applicant to various appointments.
6.
The
Applicant’s travelling and accommodation costs : Case No.
5787/16P
Items
205, 223, 239, 251, 275, 350, 365, 375, 393, 480, 482 and 494:
Flights
were disallowed as a bus fare would be cheaper and that is what was
allowed.
Shuttle
costs were disallowed as the Instructing Attorney could have driven
his client, it would not be reasonable to saddle the
other party with
these costs.
An
amount of R695.00 was allowed for accommodation, see the reasoning
used in case number5784/16P.
Vehicle
rental costs for the Instructing Attorney was limited to R3.00 p/km.
The
Applicant’s travelling and accommodation costs : Case No.
5788/16P.
Items
: 118, 124, 130, 218, 242, 245, 253, 258, 296, 300, 302, 304, 317,
319, 344 and 378.
My
reasons in disallowing portions of the abovementioned items are set
out in the previous cases referred to above.’
[10]
[15]
Three issues arise in this review: Firstly, whether the fees charged
by the experts and counsel were reasonable and necessary
in the
circumstance of these cases and ought to have been allowed. Secondly,
whether the applicants’ costs of travelling
and accommodation
were reasonable compared to those charged in KwaZulu-Natal and
lastly, whether the costs of the expert witnesses
were correctly
disallowed as per the taxing master’s decision. Related to the
aforesaid is whether any of these costs claimed
fall into the
category of attorney and client costs as opposed to party and party
costs. Ultimately it has to be decided whether
the taxing master
erred or exercised her discretion wrongly in taxing the costs. See
SANTS
Private Education Institution (Pty) Ltd v MEC for the Department of
Education of the Province of KwaZulu-Natal & others
;
[11]
Lander
v O’Meera & another
;
[12]
Köhne
& another v Union & National Insurance Co Ltd.
[13]
[16]
It is trite that the court will not interfere with the exercise of
the taxing master’s discretion unless it appears that
such has
not been exercised judicially or it was exercised improperly or
wrongly, for example, by disregarding factors which she
should have
considered, or considering matters which were improper for her to
have considered, or she had failed to bring her mind
to bear on the
question in issue, or she had acted on a wrong principle. The court
will however interfere where it is of the opinion
that the taxing
master was clearly wrong or in circumstances where it is in the same
position as, or a better position than the
taxing master to determine
the very point in issue. The court must be of the view that the
taxing master was clearly wrong i.e.
its conviction on a review that
he or she was wrong must be considerably more pronounced than would
have sufficed had there been
an ordinary right of appeal.
[14]
[17]
It is not in dispute that the costs to be considered in these matters
are party and party costs. These are described as reasonable
and
necessary fees or disbursements that the other side should contribute
to the winning party.
[15]
It is not a full indemnity in respect of all costs but only those
reasonably and necessarily incurred in the course of litigation.
Party
and party costs
[18]
It remains important for purposes of this judgment to be mindful of
the fact that party and party costs are distinct from attorney
and
client costs and that the taxing master was concerned with party and
party costs, since that is what the applicants were entitled
to in
terms of the orders.
[16]
Kriegler J’s definition of party and party costs in
President
of the Republic of South Africa v Gauteng supra
remains valid and should be applied in assessing party and party
costs.
[19]
Rule 70 entrusts the taxing master with the authority to tax any bill
of costs for services actually rendered by an attorney
or advocate in
litigious matters. It is apposite to quote rule 70(3) in relation to
the reasonableness and necessity of the costs
so incurred. Rule 70(3)
provides:
‘
With
a view to affording the party who has been awarded an order for costs
a full indemnity for all costs reasonably incurred by
him in relation
to his claim or defence and to ensure that all such costs shall be
borne by the party against whom such order has
been awarded, the
taxing master shall, on every taxation, allow all such costs, charges
and expenses as appear to him
to
have been necessary or proper for the attainment of justice or for
defending the rights of any party
,
but save as against the party who incurred the same, no costs shall
be allowed which appear to the taxing master to have been
incurred or
increased through over-caution, negligence or mistake, or by payment
of a special fee to an advocate, or special charges
and expenses to
witnesses or to other persons or by other unusual expenses.’
(Our
emphasis.)
[20]
The taxing master is tasked to enquire into the reasonableness and
necessity of the costs so charged or incurred. 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.
[17]
With all of that background and conscious of the fact that this court
must not usurp the taxing master’s functions,
[18]
we now deal with the disputed categories of costs.
Travelling
and accommodation costs
[21]
The taxing master has dealt with the said costs on pages 39 to 42 of
the record. With regard to the costs for flights to Pretoria
to
attend to various consultations with the various experts, we find no
error by the taxing master in having taxed off these amounts.
There
is no reasonable explanation as to why experts or attorneys and
counsel outside of the Province had to be used instead of
those that
are within the Province. We are mindful of the fact that the
applicants or any party for that matter can instruct any
expert or
counsel in the country. However, this must be regarded as a luxury
that they can afford and the unsuccessful party should
not be
burdened with such costs. Nothing has been shown that the specific
experts that were instructed were the only ones who could
be of
assistance in the applicants’ pursuance of justice. The costs
of travelling to these experts therefore must be limited
to costs
that are reasonable. There is no doubt that air travel is a luxurious
expense for those who can afford it. It has nothing
to do with
socio-economic rights for any litigant or any right to equality
before the law. Mr
Dickson SC
, in argument, submitted that
this mode of travel was necessary because the applicants that were
transported are blind and air travel
limits the discomfort
experienced by them. This argument is not persuasive because it was
never the case of the applicants that
the experts used are the best
qualified in their field or that the transport allowed by the taxing
master would have resulted in
harm being suffered by the applicants.
[22]
In any event, instructing the preferred experts appears to have been
for the convenience of the attorneys and not necessarily
for the
benefit of the applicants. We agree with the view of Spilg J in
Khoza
v MEC for Health and Social Development, Gauteng
[19]
where it was held:
‘
[87]
Finally, the plaintiff’s legal representatives elected to
choose the team of experts. This
is one of a number of medical
negligence cases where the same team of experts is used around the
country by the same lawyers.
[88]
It is evident that Prof Smith is possibly the leading authority in a
very specialised field and
can also provide a broader level of expert
knowledge, as a number of specialist disciplines need to be
traversed. I consider
that he is essential to the legal team.
However, the other experts are drawn from around him and there is
nothing to suggest
that there are not suitably qualified experts in
these other fields who live in Gauteng, or that the cost implications
would be
greater despite the Stellenbosch team having to be flown up.
[89]
The use of experts who are at the same university as Prof Smith is
obviously convenient for the
plaintiff. However, the experts do
not have the uniqueness within their disciplines to the same degree
as warrants setting
Professor Smith apart from the reasons given
earlier.
[90]
Accordingly the plaintiff may well have been able to find equally
competent experts locally.
Only convenience resulted in
their appointment.
’
(Our
emphasis.)
The
respondent cannot be expected to foot the bill. The taxing master
used her specialist knowledge of the issue and applied her
mind to
it. We do not believe that any interference is warranted in this
regard. This principle also applies to the costs of shuttle
services
and the costs of the rentals of vehicles for the attorney.
[23]
The same principle would apply to the accommodation costs since it
would not have been incurred if the attorney had instructed
local
experts. As such costs have been allowed but at a reduced rate. We
are not convinced that the taxing master has erred in
any way. She
has determined what was reasonable and what would be charged in the
Province and nothing to the contrary was produced
or advanced to
interfere with her decision. Accordingly, we are unable to find that
the taxing master was wrong in her discretion
to disallow these
costs.
[24]
This principle also applies to the travelling costs of an attorney
and or counsel from outside this Province as there is no
evidence
before us or placed before the taxing master that the applicants’
rights could only be enforced by lawyers from
outside the Province of
KwaZulu-Natal. Put differently, there was no suggestion that there
are no competent lawyers from KwaZulu-Natal
that could have assisted
the applicants to attain justice in these matters or that they would
have suffered a substantial injustice.
[20]
No evidence was placed before us that the applicants could not find a
competent firm in this Province to act on a contingency basis.
[21]
There is therefore no reason for our interference with these costs.
The underlying principle in this regard is that unless it can
be
shown that there were no competent attorneys or advocates and experts
of a similar standing in KwaZulu-Natal, only then should
such costs
be allowed.
Counsel’s
fees
[25]
They next category of costs concerns counsel’s fees. Mr
Pammenter
SC
on behalf of the Society of Advocates submitted that he disagrees
with earlier submissions made by counsel for the applicants.
He
submitted that the fee of counsel should be determined at the time
the work was performed and not at the time when the case
was
finalised. He also referred us to the proposed amendment to rule 69
that has been proposed by the Rules Board for Courts of
Law in the
Republic of South Africa in 2014.
[22]
Counsel’s fees were disallowed in respect of drafting,
preparation time, hourly rate and consequently day rate. With regard
to the drafting fees, these were allowed on the attorney’s
rates and some were determined as falling in the attorney and
client
category. With the information before us we are not in a better
position than the taxing master to determine whether it
was necessary
for counsel to draft the documents so drafted instead of an attorney.
The taxing master has not erred in any way.
It may have been
overcautious for the attorney to have instructed counsel to draft
these documents and if that is the case, such
costs would fall
squarely in attorney and client costs.
[26]
We considered the decision of the full court in
Pretoria
Society of Advocates & another v Geach & others
[23]
as being of assistance in determining a counsel’s fees in
relation to the General Council of the Bar of South Africa’s
Rules of Ethics:
‘
7.1
Fees must be reasonable
7.1.1
Counsel is entitled to a reasonable fee for all services. In
fixing fees, counsel should avoid charges
which over-estimate the
value of their advice and services, as well as those which undervalue
them. A client’s ability
to pay cannot justify a charge
in excess of the value of the service, though his lack of means may
require a lower charge, or even
none at all. In determining the
amount of the fee, it is proper to consider:
(a)
the time and labour
required, the novelty and difficulty of the questions involved and
the skill requisite properly to conduct the
cause;
(b)
the customary charges
by counsel of comparable standing for similar services; and
(c)
the amount involved
in the controversy and its importance to the client.
No
one of the above considerations in itself is controlling. They
are mere guides in ascertaining the real value of the service.
In fixing fees it should never be forgotten that the profession is a
branch of the administration of justice and not a mere money-getting
trade.’
[24]
(Our
emphasis.)
[27]
With
regard to the preparation time, it is now accepted that counsel can
charge a separate fee for preparation and then a daily
fee for each
day in court. See
Naval
Servicos a Vanegcauo Limitada v Strang Rennies Metal Terminals (Pty)
Ltd;
[25]
City
of Cape Town v Arun Property Development (Pty) Ltd & another
[26]
and
Society
of Advocates of KwaZulu-Natal v Levin.
[27]
This is especially so in trial matters. What is required is for the
taxing master to reconsider the bills and assess what reasonable
time
of preparation would have been required in each of the matters. This
would be in line with an hourly rate that will be determined
below.
[28]
With
regard to the hourly and daily rates the applicants submitted that
the rates determined by the taxing master were too low if
one had to
consider the rates determined in
Levin
supra
and
Mkhize
v MEC for Health KZN.
[28]
The respondent on the other hand submitted that the rates determined
by the taxing master were reasonable and that she was best
placed to
determine that as she dealt with various taxations. We do not agree.
It is decided that these items must be taxed afresh
in line with the
rates determined in
Levin
and
Mkhize
and regard being had to inflation where necessary. Previous cases
dealt with by various Judges of this division should be used
as a
guide in determining some of the issues in future. The Constitutional
Court has given sufficient guidance in
Hennie
De Beer Game Lodge CC v Waterbok Bosveld Plaas CC & another
[29]
as follows:
‘
[8]
The principles guiding the review of taxation in this court were
settled in
President
of the Republic of South Africa and Others v Gauteng Lions Rugby
Union and Another:
·
Costs
are awarded to a successful party to indemnify it for the expense to
which it has been put through, having been unjustly compelled
either
to initiate or defend litigation.
·
A
moderating balance must be struck which affords the innocent party
adequate indemnification, but within reasonable bounds.
·
The
taxing master must strike this equitable balance correctly in the
light of all the circumstances of the case.
·
An
overall balance between the interests of the parties should be
maintained.
·
The
taxing master should be guided by the general precept that the fees
allowed constitute reasonable remuneration for necessary
work
properly done.
·
And
the court will not interfere with a ruling made by the taxing master
merely because its view differs from his or hers, but only
when it is
satisfied that the taxing master’s view differs so materially
from its own that it should be held to vitiate the
ruling.
[9]
To these general principles must be appended one of particular
importance in this
case. The Supreme Court of Appeal has taken note
of “the almost invariable practice throughout the country
nowadays for legal
practitioners to make their charges time-related.
The principle flowing from this is that time charged is not
decisive.
An objective assessment of the features of the
case is primary, and time actually spent in preparing an appeal
cannot be decisive
in determining the reasonableness, between party
and party, of a fee for that work. The reason is that time
alone would put
a premium on slow and inefficient work and would
conduce to the charging of fees wholly out of proportion to the value
of the services
rendered.
’
(Our
emphasis.) (Footnotes omitted.)
[29]
Lastly on this issue, counsel appearing on behalf of the applicants
submitted to us that the contingency fee agreements concluded
between
the parties in these five matters are of no relevance to the taxation
of the aforesaid bills. We disagree. As much
as it is not
definitive of the fee claimed, it remains a factor to be taken into
account in determining the reasonableness of counsel’s
fees.
Fees
of expert witnesses
[30]
The last issue is that of fees relating to
expert witnesses. Some of the fees were disallowed in that the
initial assessments were
limited to an hour, consultations by the
expert with counsel were disallowed
in
toto
, tests and assessments
performed by these experts in formulation and compilation of their
reports were disallowed and at times
reduced. In some instances, the
preparation in formulating and compiling of these expert reports was
disallowed; their reservation
fees were limited to R1 500 per day and
their drafting and hourly rates were allowed at attorneys’
rates or junior counsel
respectively. The taxing master, in her
stated case, submitted that she took into account the amount of work
which the witness
had to do to qualify himself or herself and
determined the reasonableness of the amount so charged.
[31]
Counsel for the applicants submitted that these amounts ought to have
been allowed in the light of the court orders that allowed
the costs
of obtaining the reports and the reasonable preparation and
qualifying fees of the experts. In counsel’s submissions
these
costs would have included costs for consultation with counsel in some
cases and reservation fees in others. Accordingly,
so it was
submitted, all those fees were reasonable to remunerate those
professionals for the work they had done and ought to have
been
allowed since the accounts are
prima facie
proof of the work
done and not unreasonable.
[32]
What follows is the experts’ fees as presented to the taxing
master and the allocation allowed by her:
[30]
‘
ANNEXURE
: EXPERT WITNESS FEES
Case
No 5784/16P: A Naidoo v MEC for Health
EXPERT
FEE
CHARGED
TAXED
OFF
ALLOWED
77
DA
Birrell
4 275.00
900.60
3 374.40
81
Pip
Jackson
13 131.60
8 135.27
4 996.33
98
Dr
Konig
11 008.20
8 988.20
2 020.00
132
M
Henning
7 800.00
5 545.00
2 255.00
144
B
Purchase
20 200.00
14 655.00
5 545.00
182
Ida-Marie
Hattingh
26 875.00
22 975.00
3 900.00
184
Beryl
Carvalho
850.00
380.00
470.00
337
B
Purchase
4 000.00
3 765.00
235.00
339
Prof
Jacklin
7 050.00
5 030.00
2 020.00
341
Ida-Marie
Hattingh
5 375.00
4 905.00
470.00
345
Louis
Linde
25 564.50
8 019.90
17 544.60
347
A
E Greef
14 863.07
8 273.87
6 589.20
349
K
Truter
15 048.00
14 578.00
470.00
350
(should be 351)
Algorithm
Actuary’s Report
34 200.00
30 181.00
4 019.00
353
Eybers
Architects
33 250.00
26 530.00
6 720.00
Case
No 5785/16P: A Naidoo v MEC for Health
EXPERT
FEE
CHARGED
TAXED
OFF
ALLOWED
216
Prof
Johan Smith
11 000.00
7 685.00
3 315.00
218
Dr
H L E Konig
5 000.00
2 750.00
2 250.00
220
Dr
A Tjale
11 900.00
7 520.00
4 380.00
Case
No 5786/16P: HB Pewa v MEC for Health
EXPERT
FEE
CHARGED
TAXED
FEE
ALLOWED
64
Prof
Cooper
2 250.00
1 780.00
470.00
472
Dr
Konig
8 500.00
7 198.20
1 301.80
523
B
Purchase
14 500.00
8 939.20
5 560.80
542
Dr
Birrell
1 710.00
169.20
1 540.80
559
Kobus
Truter
13 680.00
8 758.20
4 921.80
580
Pip
Jackson
10 552.41
6 695.61
3 856.80
612
Beryl
Carvalho
1 035.00
Nil
630
Ida-Marie
Hattingh
30 237.50
26 380.70
3 856.80
663
Anneke
Greef
11 394.90
3 113.03
8 281.87
723
Louis
Linde
977.50
Nil
748
779
Len
Eybers (architect)
3 750.00
3 750.00
travelling
784
Greg
Whittaker
22 800.00
15 618.00
7 182.00
886
Prof
Jacklin
15 250.00
15 250.00
0
1029
Greg
Whittaker
4 560.00
4 560.00
0
1222
Kobus
Truter
25 600.00
21 628.00
3 972.00
1223
Dr
Birrell
3 990.00
1 518.00
2 472.00
1224
B
Purchase
3 000.00
528.00
2 472.00
Case
No 5787/16P: K Govender v MEC for Health
EXPERT
FEE
CHARGED
TAXED
FEE
ALLOWED
84
Prof
Kirsten
28 800.00
25 272.00
3 528.00
105
Dr
Konig
5 000.00
3 602.00
1 398.00
143
D
Tjale
10 150.00
8 539.00
1 611.00
149
Prof
Fielder
14 845.27
11 650.27
3 195.00
227
Dr
Truter
15 048.00
10 334.10
4 713.90
234
Dr
Konig
10 508.20
8 723.20
1 785.00
272
Ms
Jackson
10 200.00
6 065.00
4 135.00
289
Ms
Purchase
20 200.00
13 245.00
6 955.00
312
Dr
Birrell
3 420.00
849.30
2 570.70
337
Ms
Greef
14 863.07
5 059.07
9 804.00
359
Ms
Hattingh
27 412.50
23 512.50
3 900.00
382
Dr
P Henning
6 825.00
4 805.00
2 020.00
384
Dr
M Lippert
12 000.00
10 215.00
1 785.00
488
Mr
Whittaker
28 500.00
26 010.00
2 490.00
490
Mr
Linde
36 679.50
28 679.50
8 000.00
Case
No 5788/16P: SM Nthombela v MEC for Health
EXPERT
FEE
CHARGED
TAXED
OFF
ALLOWED
100
Prof
Smith
24 000.00
19 740.00
4 260.00
134
Dr
Konig
9 500.00
7 889.00
1 611.00
234
Dr
Tjale
11 200.00
9 790.00
1 410.00
260
Dr
Truter
15 048.00
10 334.10
4 713.90
266
B
Carvalho
850.00
380.00
470.00
350
Pip
Jackson
11 208.00
7 073.00
4 135.00
359
A
Greef
13 274.74
1 595.44
11 679.30
384
Elmarie
Prinsloo
25 251.00
16 181.00
9 070.00
403
Dr
Birrell
3 420.00
1 385.10
2 034.90
412
Mr
L Linde
36 679.50
13 657.20
23 022.30
497
Ida-Marie
Hattingh
35 312.50
27 927.50
7 385.00
509
Elmarie
Prinsloo
5 301.00
4 831.00
470.00
514
Prof
Fielder
15 375.51
13 260.51
2 115.00’
[33]
The respondent’s counsel submitted that most of the experts’
fees were attorney and client costs in nature and
ought to be borne
out by the applicants. A thorough consideration of the relevant court
orders is required in order to determine
what should be allowed in
the experts’ fees. Where a particular expert has qualified
herself and that is allowed in terms
of the court order, then there
is no question that she will be entitled to her fees, provided that
it is reasonable. What the taxing
master has to consider is the
reasonableness of those fees claimed.
[34]
Furthermore where the expert has quantified the time spent on
consultation and on drafting the necessary report, one should
be very
slow to determine otherwise. It would be even more difficult to
pronounce on them if one has not had sight of those reports.
It would
also be difficult to determine whether it was necessary for one
expert to peruse the report of another in order to come
to their own
conclusion in a particular matter.
[35]
As Mbatha J held in
Kishore
Sonny & another v Premier of the Province of KwaZulu-Natal &
another
[31]
a limitation of one hour consultation by an expert might not be a
fair measure of the time spent by that expert, especially if
one
considers that experts sometimes carry out assessments and tests
during their consultations. Sometimes they have to analyse
reports by
other experts, like x-ray reports during the consultation, before
coming to a particular conclusion. Mbatha J concluded
that once an
expert has specified the number of hours spent on each consultation
that it should be a guideline in the determination
of their fees.
They should be indemnified for such hours on the basis of their
reasonableness.
[36]
To emphasise the point of reasonableness, the court in
Mdandalaza
v The MEC for Health for the Province of KwaZulu-Natal
[32]
held that ‘because clients are charged the spill over of costs
not recovered on a party and party scale as attorney and client
costs
that should not be a reason to allow excessive fees on a party and
party basis’. Although the taxing master has provided
a
conclusion for each item taxed, she does not provide reasons as to
why a particular amount and not the others have been disallowed.
In
the absence of such explanation one might conclude, like the
applicants, that her discretion was arbitrarily applied in the
circumstances.
[37]
On the issue of experts we are of the view that where time has been
specified for consultation, assessment and drafting of
the report,
there is no reason why such costs should not be allowed. What the
taxing master should then do is to determine whether
the time spent
is reasonable. If it is deemed to be excessive, then the difference
will be attorney and client. This, obviously,
would take into account
that the expert, even though she might have dealt with numerous
similar matters, has to still apply her
mind to the facts of each
particular matter. Furthermore, the taxing master should also take
into account the costs of a similar
nature charged by similar experts
within this Province.
[38]
The aforesaid challenge could have been avoided if the taxing
master’s report was a true response to the objections made
by
the applicants.
[33]
In our view the report filed does not deal with the contentions
raised and in future it should. We endorse the view of Schutz J
in
Nedperm
Bank Ltd v Desbie (Pty) Ltd
[34]
that the report in terms of rule 48(5)(b) should contain the taxing
master’s full reasons. This review has focussed on the
unenviable task that a taxing master has when it comes to the
determination of costs, especially in relation to counsel’s
fees and experts’ fees.
Order
[39]
Accordingly, the following order is issued:
(a)
The taxations of the bills of costs dealt with in all the five
matters where the
allocaturs
were not confirmed, same are
reviewed and set aside insofar as they are not in accordance with the
principles endorsed in this
judgment.
(b)
The bills of costs are referred back to the taxing master to be taxed
afresh in accordance
with this judgment;
(c)
Each party to pay its own costs.
________________________
STEYN
et POYO DLWATI JJ
APPEARANCES
Date
of hearing
: 11 May 2017
Date
of judgment
:
14 March 2018
Counsel
for applicants
: AJ Dickson
SC
Instructed
by
: Sophia Avvakoumides Attorneys c/o Franci Leppan Attorneys
Counsel
for the respondent
: AA Gabriel SC
Instructed
by
: State Attorney c/o Cajee Setsubi Chetty Inc
Interested
Party
: A Nepaul
Instructed
by
: The KwaZulu-Natal Law Society
Interested
Party
: CJ Pammenter SC
Instructed
by
: The KwaZulu-Natal Society of Advocates
[1]
‘(1) Any party dissatisfied with the ruling of the
taxing master as to any item or part of an item which was objected
to or disallowed
mero
motu
by the taxing master, may within 15 days after the
allocatur
by notice require the taxing master to state a case for the decision
of a judge.
(2)
The notice referred to in subrule (1) must-
(a)
identify each item or part of an item in respect of which the
decision of the taxing master is sought to be reviewed;
(b)
contain the allegation that each such item or part thereof was
objected to at the taxation by the dissatisfied party, or that it
was disallowed
mero motu
by the taxing master
;
(c)
contain the grounds of objection relied upon by the dissatisfied
party at the taxation, but not argument in support thereof; and
(d)
contain any finding of fact which the dissatisfied party
contends the taxing master has made and which the dissatisfied party
intends to challenge, stating the ground of such challenge, but not
argument in support thereof.’
[2]
See pages 158 and 159 of the record.
[3]
Rule 48(6)(a)(iv) provides:
‘
The
judge may refer the case for decision to the court.’
[4]
The
causa
in
all five matters is Retinopathy of Prematurity (ROP).
[5]
Kruger
v Sekretaris van Binnelandse Inkomste
1973 (3) SA 231
(A) at 232E-H.
[6]
Nedperm
Bank Ltd v Desbie (Pty) Ltd
1995 (2) SA 711 (W).
[7]
Ibid at 713A.
[8]
Price
Waterhouse Meyernel v Thoroughbred Breeders’ Association of
South Africa
2003 (3) SA 54 (SCA).
[9]
Aloes
Executive Cars (Pty) Ltd v Motorland (Pty) Ltd & another
1990 (4) SA 587 (T).
[10]
See pages 33 to 42 of the record.
[11]
SANTS
Private Education Institution (Pty) Ltd v MEC for the Department of
Education of the Province of KwaZulu-Natal & others
(8539/15) [2016] ZAKZPHC 101 (13 September 2016).
[12]
Lander
v O’Meera & another
2011 (1) SA 204 (KZD).
[13]
Köhne
& another v Union & National Insurance Co Ltd
1968 (2) SA 499 (N).
[14]
Visser
v Gubb
1981 (3) SA 753
(C) at 754H-755I;
Lander
v O’Meera supra
para
14.
[15]
See
President
of the Republic of South Africa & others v Gauteng Lions Rugby
Union & another
2002
(2) SA 64
(CC) para 47:
‘
In
addition it should be remembered that although a rate per unit of
time worked can be a useful measure of what would be fair
remuneration for work necessarily done and although the need for
written submissions in this Court may permit this method more
readily than in the SCA, the overall balance between the interests
of the parties should be maintained. The rate may be
reasonable enough and the time spent may be reasonable enough but in
the ultimate assessment of the amount or amounts to be allowed
on a
party and party basis a reasonable balance must still be struck.
Here the inherent anomaly of assessing party and party costs
should be borne in mind
. One is not primarily determining
what are proper fees for counsel to charge their client for the work
they did.
That is mainly an attorney and client issue and when
dealing with a party and party situation it is only the first step.
When taxing a party and party bill of costs the object of the
exercise is to ascertain how much the other side should contribute
to the reasonable fees the winning party has paid or has to pay on
her or his own side
. Or, to put it differently, how much
of the client’s disbursement in respect of her or his own
counsel’s fees
would it be fair to make recoverable from the
other side?’
(Our
emphasis.)
[16]
Also see rule 69(2) and (5) that regulates bills and taxation as
between ‘party and party’.
[17]
Van
Rooyen v Commercial Union Assurance Co of SA Ltd
1983 (2) SA 465
(O) at 467E.
[18]
Aaron’s
Whale Rock Trust v Murray & Roberts Ltd & another
1992 (1) SA 652
(C) at 661C-H.
[19]
Khoza
v MEC for Health and Social Development, Gauteng
2015
(3) SA 266 (GJ).
[20]
See
Schoeman
v
Schoeman
1990 (2) SA 37
(E) at 42H;
Sonnenburg
v
Moima
1987 (1) SA 571
(T) and
Wimbush
& another v Erintrade (Pty)
Ltd
Case No. 548/13 paras 15 and 16, unreported case of Koen J in
Pietermaritzburg.
[21]
See
D
& another v MEC for Health and Social Development, Western Cape
Provincial Government
2017 (5) SA 134
(WCC) para 13.
[22]
The draft proposed amendment contains in subrule (5) the following:
‘
The
taxing master may in his or her discretion depart from any
provisions of the tariff in extraordinary or exceptional cases,
where strict adherence to such provisions would be equitable.’
Tariff
of fees for appearances by advocates includes the following relevant
portions:
‘
1.
Appearances in court-
(a) First day of hearing:
(i) Unopposed
applications; hourly fee for duration of argument only;
(ii) Opposed
applications, day fee for day of hearing of application only;
(iii) Exceptions or motions to
strike out, hourly fee for duration of argument only;
(iv) Stated cases, hourly fee
for argument only;
(v) Trials, day fee if
proceedings in court exceed four and a half hours;
(vi) Trials, hourly fee if
proceedings in court do not exceed four and a half hours;
(vii) Appeals from Magistrates’
Courts including review or proceedings thereof, hourly fee for
duration of appeal argument
only.’
In
terms of 2 the following scale of tariffs is listed:
ATTORNEY WITH RIGHT OF
APPEARANCE
ADVOCATE
0-3 YEARS
3-5 YEARS
5-10 YEARS
10-15 YEARS
15-20 YEARS
20+ YEARS
R -
R
R -
R
R -
R
R -
R
R -
R
R -
R
Hourly rate
1 100
1 400
1 800
2 300
2 900
3 700
Day fee
6 600
8 400
10 800
13 800
17 400
22 200
’
[23]
Pretoria
Society of Advocates & another v Geach & others
2011 (6) SA 441 (GNP).
[24]
Ibid para 19.
[25]
Naval
Servicos a Vanegcauo Limitada v Strang Rennies Metal Terminals (Pty)
Ltd
2008 JDR 1002 (N) at 15 and 16.
[26]
City
of Cape Town v Arun Property Development (Pty) Ltd & another
2009 (5) SA 227
(C) paras 22 - 30.
[27]
Society
of Advocates of KwaZulu-Natal v Levin
2015 (6) SA 50 (KZP).
[28]
Case
No. 6867/16P decided by D Pillay J.
[29]
Hennie
De Beer Game Lodge CC v Waterbok Bosveld Plaas CC & another
2010 (5) SA 124 (CC).
[30]
See pages 43 to 45 of the record.
[31]
Kishore
Sonny & another v Premier of the Province of KwaZulu-Natal &
another
Case No. 33185/2015 decided on 12 December 2016 para 17.
[32]
Mdandalaza
v The MEC for Health for the Province of KwaZulu-Natal
Case No. 17643/14 decided by D Pillay J.
[33]
See
Kruger
supra
at 232E-H.
[34]
Nedperm
Bank Ltd v Desbie (Pty) Ltd
1995 (2) SA 711
(W) at 713A-C. See also
Brener
NO v Sonnenberg, Murphy, Leo-Burnett (Pty) Ltd (formerly D’Arcy
Masins Benton & Bowless SA (Pty) Ltd)
1999 (4) SA 503
(W) at 508C-D.